DOMINGO, DOMINADOR, LAURO AND PABLO, ALL SURNAMED ANTONIO, PLAINTIFFS AND APPELLEES VS. JOSE RAMOS, LEONORA RAMOS AND NICOLAS FRANCISCO, DEFENDANTS. NICOLAS FRANCISCO, DEFENDANT…

On January 3, 1953, plaintiffs Dominga, Dominador, Lauro and Pablo, surnamed
Antonio, filed a complaint for the recovery of real property with an area of
14.7600 hectares, against defendants Jose Ramos, Leonora Ramos and Nicolas
Francisco. Because only defendant Francisco answered, the other two defendants
were declared in default on March 21, 1956, and August 20, 1956, was designated
for the reception of plaintiff’s evidence with respect to Francisco. On this
date, neither defendant Francisco nor his counsel, appeared, notwithstanding the
fact that said attorney received the notice of hearing as early as March 24,
1956. Plaintiffs presented their evidence in the absence of defendant Francisco
and counsel. On August 23, 1956, Judge Makasiar rendered a decision, as
follows:

“* * * WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and
against the defendants Jose Ramos, Leonora Ramos and Nicolas Francisco
DECLARING:

(1) Exhibit B, the extra-judicial partition with deed of absolute1 sale of
the lot covered by Transfer Certificate of Title Nos. 14245 (Exhibit A) and
2491, executed’ by the defendants Jose Ramos and Leonora Ramos on November 24,
1947, null and void insofar as the one-half portion of said lot corresponding to
the conjugal shape of Teresa Antonio is concerned; and

(2) The plaintiffs herein as the only intestate heirs of the deceased Teresa
Antonio and as owners of the said one-half portion of the aforesaid lot as their
inheritance from the late Teresa Antonio; and ORDERING:

(a) The defendants Jose Ramos and Leonora Ramos to deliver to the
plaintiffs their corresponding share and participation in the produce of the
land from 1945 to 1947 at the rate of 100 cavanes of palay per agricultural year
or a total of 200 cavanes of palay for 1945 to 1947 or their equivalent in cash
computed at the rate of P8.50 per cavan;

(b) The defendant Nicolas Francisco to deliver to the plaintiffs
their corresponding share and participation in the produce of the land from 1948
to 1956 or a total of 800 cavanes of palay or their equivalent in cash computed
at the rate of P8.50 per cavan;

(c) The partition of the land in question between the plaintiffs and
the defendant Nicolas Francisco in the following proportion: One-fourth (1/4)
for the plaintiff Dominga Antonio, one-fourth (1/4) for the other plaintiffs
Dominador, Lauro and Pablo, all surnamed Antonio, and one-half (1/2) to the
defendant Nicolas Francisco;

(d) the defendant Nicolas Francisco to deliver immediately the
possession to the plaintiffs of their corresponding share of portion of said
land;

(e) The cancellation of Transfer Certificate of Title No. 2491 in
the name of Nicolas Francisco and in lieu thereof the issuance of another title
in the name of the plaintiffs and the said defendant Nicolas Francisco in the
proportion aforementioned;

(f) The defendants Jose Ramos, Leonora Ramos and Nicolas Francisco
to pay the plaintiffs the sum of P500.00 as attorney’s fees; and

(g) The said defendants to pay the costs.”

On September 22, 1956, the defendant Francisco filed a “Motion for new
Trial”, with an affidavit of merit incorporated as Annex A, of counsel and
defendant, asking that the decision dated August 23, 1956 be set aside and a
rehearing be ordered in order that defendant may confront plaintiff’s witnesses
and present his defenses; alleging that their failure to appear during the
hearing of the case was due to accident, mistake and excusable negligence which
ordinary prudence could not have guarded against. In said affidavit, counsel
alleged that in the new trial, if granted, he would adduce evidence sufficient
to alter, modify, if not reverse, the decision, such as proofs (a) that
the property in litigation is the exclusive property of Hermenegildo Ramos and
not a conjugal property with his wife; (b) that defendant Francisco had
no knowledge of the existence of the heirs of Teresa Antonio and that he was a
purchaser in good faith and for value; (c) that the property in
litigation was a forest land and has not been placed under cultivation from the
time of its acquisition by Hermenegildo Ramos, until after the filing of the
complaint; and (d) that as alleged in the answer, the cause of action
has prescribed. An opposition was filed by the plaintiffs and on October 26,
1956, the lower court denied the motion to set aside the decision and for new
trial. Defendant appealed to the Court of Appeals “from the decision rendered on
August 23, 1956 and from the order rendered on November 26,1956”, announcing
that he will raise “questions of law and facts”. The case, however, was
certified to Us, as the issues are purely legal in character.

Appellant alleges in his brief that the trial court erred: (1) in holding
that their failure to appear at the hearing on Aug. 20, 1956, was not due to
accident, mistake and excusable negligence; (2) in holding that the affidavit of
merit is not sufficient to justify a new trial; and (3) in not granting the
motion for new trial.

Counsel for the appellant explains that on March 24, 1956, or 6 months before
August 20, 1956 the date scheduled for hearing, he received a registered
enveloped containing the notice of hearing. But the envelope was lost before he
knew what it was all about, and before he had an opportunity of opening it and
knowing its contents. If the envelope was opened, he said, he must have read the
order contained therein and must have recorded it in his calendar the date of
the hearing, as it was his habit to do; but from the time he received the
envelope, he did not see it again. He learned that said envelope contained an
order of hearing, only when he checked it up in court the day after August 20,
1956, when he received the decision. Appellants counsel submits that the land
being quite a wide tract, and the damages involved considerable, he and his
client would not have deliberately absented themselves, during the hearing on
August 20, 1956. Appellant’s counsel argues that the accident consisted in the
loss of the envelope containing the notice of hearing. There was mistake on his
part, he asserted, because he did not open the letter and read its contents
immediately upon receipt thereof from the post office, so that he could have
been informed of the date of the hearing, before its loss.

Does the omission of counsel constitute an excusable mistake and negligence,
so as to entitle his client, the appellants herein, to be heard?

The aggrieved party may move the trial court to set aside the judgment and
grant a new trial on the ground of

“(a) fraud, accident, mistake or excusable negligence which ordinary
prudence could not have guarded against and by reason of which such aggrieved
party has probably been impaired in his rights” (Sec. 1, (a), Rule 37;
Sunico vs. Villapando, 14 Phil. 352).

The allegation of counsel that he forgot to note the notice of hearing in his
calendar is flimsy. It does not constitute the accident, mistakes or excusable
negligence, contemplated by the Rules of Court. The exercise of ordinary
prudence on his part could have guarded against or avoided such mistake or
negligence. Counsel did not exercise ordinary prudence because he did not
perform his routine job or duty of noting down the notice of hearing in his
calendar. On this point, the learned trial judge commented:

“Considering the motion for new trial and the opposition thereto, the court
believes the negligence of the counsel as not excusable in view of his admission
that he received the registry notice from the court on May 24, 1956,
and that it was duly registered and that its envelope shows it came from the
court which made the envelope and its contents so important that he should
have immediately opened the same and not just put it aside, that he misplaced
the same is also indicative of his recklessness (See Gonzales vs. Amen,
L-8963, Feb. 29, 1956). Furthermore, counsel for the defendant Nicolas Francisco
has all the time from March 24, 1956, until the date of the trial on Aug. 20,
1956, to inquire from the Court records or Clerk of Court about the nature of
the registered notice that was sent to him on March 24, 1956, if he really
misplaced the same. This is what a diligent counsel should do as required by
ordinary prudence. All he had to do was to examine the records of this case.
This Court noted that since it reconvened on June 18, 1956, counsel for the
defendant Nicolas Francisco has been appearing in Court almost every week if not
everyday. He had, therefore, ample opportunity to verify the nature of the said
registered notice of hearing which he allegedly misplaced upon his receipt
thereof on March 24, 1956.”

Little need be added to these observations of the trial court, except to
state that lawyers should always be vigilant and alert, in order to properly
safeguard the rights and interests of their clients. Upon the lawyers specially
devolve the duty to evaluate the urgency and importance of registered letters
coming from the courts where, they daily ply their trade.

The granting of a new trial in this case would not substantially change the
result thereof. The trial court found that the spouses Hermenegildo Ramos and
Teresa Antonio acquired in 1939, during their marriage, the properties in
question, as evidence by Transfer Certificate of Title No. 14245 (Exhibit A),
issued in their names on February 3, 1939; that at the time of their death, the
said properties were free from all liens and encumbrances; that when Pablo
Antonio, a witness, saw the defendant Jose Ramos in 1948, to inquire about the
lot left by his aunt, Jose Ramos informed him that he had already sold it to
Nicolas Francisco and to see the latter; and that Nicolas Francisco: asked them
to sell their portion to him. The fact that defendants Jose Ramos and Leonora
Ramos had defaulted, reveals that they admitted the conjugal character of the
properties left by the spouses. Appellant cannot be said to have been impaired
of his rights, as the trial court did not make pronouncement regarding his
cross-claim.

The orders appealed from are therefore, affirmed. Costs against
defendant-appellant.

Padilla, Labrador, Concepcion, Reyes, J.B.L.,
Barrera, Dizon, De Leon, and Natividad, JJ., concur.