ELENA PERALTA VDA. DE CAINA, PETITIONER, VS. HON. ANDRES REYES, JUDGE OF THE COURT OF FIRST INSTANCE OF PASIG, RIZAL, AND FLAVIANO T. DALISAY, JR., RESPONDENTS.

This
is a petition for a writ of certiorari to review the order of the Court
of First Instance of Rizal, dated March 23, 1959, dismissing the
complaint in intervention for failure of counsel for the intervenors
and/or the latter to appear at the pre-trial scheduled on the said date.

The record discloses the following facts: On June 28, 1956, Flaviano T.
Dalisay, Jr., brought a complaint for ejectment in the Justice of the
Peace Court of Caloocan, Rizal against Lorenzo A. Yutuc, alleging that
he is the owner of a piece of land situated at Baisa, Caloocan, Rizal,
which land was formerly registered in the name of Valeriano Caina, and
praying that defendant be ordered to vacate the same for failure to pay
the monthly rentals since July, 1955 and up to the time of the filing
of the complaint, notwithstanding repeated demands. During the trial
and on September 3, 1957, Elena Peralta Vda. de Caina, representing her
three children, filed a complaint in intervention, which was duly
admitted by the justice of the peace court on October 25, 1957. The
complaint in intervention alleges that intervenor is the surviving
spouse of Valeriano Caina; that the parcel of land on which defendant
Yutuc built his house is a part of the land inherited by intervenor and
her children from her deceased husband; that the supposed title
plaintiff Dalisay has over said land was acquired through fraud,
deceit, and machination, the intervenor not having made or executed any
deed of sale over the land in favor of plaintiff; that defendant Yutuc
has not paid the rentals for the use of the land from January to August
1957 and despite several demands defendant refuses to pay said rentals.
Intervenor prayed, among others, for an order dismissing plaintiff
Dalisay’s complaint against Lorenzo Yutuc, requiring Yutuc to vacate
and remove his house from the land in question, and to pay to
intervenor and not to plaintiff Dalisay the sum of P49.00 as back
rentals for the period from January to August, 1957, with legal rate of
interest, until he vacates the premises.

On March 25, 1958,
the justice of the peace court rendered judgment in favor of plaintiff
Dalisay and against defendant Yutuc and his spouse, and also against
the intervenor Elena Peralta Vda. de Caina and her children, who were
ordered to pay the sum of P500 as attorney’s fees and the expenses of
litigation. Upon receipt of this decision, intervenor perfected her
appeal and the case was elevated to the Court of First Instance of
Rizal, and docketed therein as Civil Case No. 5108. In this court
defendant Yutuc reproduced his answer to the complaint, but plaintiff
Dalisay did not file his answer to the complaint in intervention nor
did reproduce the answer which he filed before the Justice of the Peace
Court of Caloocan. In the meantime, the Court of First Instance set the
case for pre-trial on March 23, 1959. On the day of the pre-trial,
neither intervenor nor her counsel appeared, so the court, on
plaintiff’s motion, dismissed the complaint in intervention in an order
dated March 23, 1959. A motion to set aside this order was denied, and
so was the motion for reconsideration of the order denying the motion
to set aside. Hence, the present petition for certiorari.

In
praying for a writ of certiorari before this Court, petitioner Elena
Peralta Vda. de Caina claims that the respondent judge, in issuing the
order of March 23, 1959, dismissing her complaint in intervention,
acted arbitrarily and with grave abuse of discretion amounting to lack
or excess of jurisdiction, the order being contrary to and not
authorized by the provisions of Rule 25 of the Rules of Court; that her
failure and that of her counsel to appear at the pre-trial was due to
mistake or excusable negligence, as the clerk in her counsel’s office
forgot to deliver the notice thereof due to pressure of work in the
office; that dismissal of the complaint in intervention under these
circumstances would be tantamount to depriving petitioner, of her right
to due process and to have her day in court; and that if the order of
March 23, 1959 were carried out, petitioner would be subjected to grave
and irreparable loss, damage and injury, and there is no other plain,
speedy, and adequate remedy in the ordinary course of law, except this
petition for certiorari.

On September 7, 1959, respondent
Flaviano T. Dalisay, Jr., filed in this Court his answer to the
petition, alleging that intervenor’s complaint in the court below is
malicious and intended to embarrass the respondent, because in October,
1956, petitioner testified before the Justice of the Peace Court of
Caloocan that she had already transferred the ownership and possession
of the land in question to respondent Dalisay, way back in April, 1955;
that although it is true that he failed to reproduce in the Court of
First Instance his answer to the complaint in intervention, he was
never declared in default for such failure, that the petitioner’s
defense of excusable negligence in failing to appear at the pre-trial
is malicious and flimsy, the reason given therefor being unbelievable
and highly questionable; that under Rule 25 of the Rules of Court, the
respondent judge had the power and authority to dismiss the case of
intervenors in a pre-trial if they do not appear thereat or comply with
his order, or when the court finds that their case is baseless,
manifestly for delay or is clearly malicious and unfounded; that
petitioner has a plain and proper remedy by appeal, and not by
certiorari, and therefore the petition should be dismissed.

One of the issues to be resolved in this petition is whether or not the
lower court could dismiss the complaint in intervention for failure of
the intervenor and her counsel to appear at the pre-trial. Petitioner
argues that failure of the parties to appear at a pre-trial does not
authorize the dismissal of the complaint by the court; that a pre-trial
is not a trial on the merits and has for its purpose merely to simplify
the issues, to have the parties arrive at an amicable settlement, etc.;
that Section 3 of Rule 30 which authorizes the court to dismiss a
complaint for failure of plaintiff to appear at the trial, refers to a
trial on the merits of the case.

Petitioner’s arguments can
not be sustained. Under Rule 25 of the Rules of Court, the court is
given the discretion to hold a pre-trial of a case for the purposes
enumerated in Section 1 of said rule, which are principally intended to
prevent lengthy trials. When the court chooses to exercise its
discretion to order a pre-trial it may avail itself of all means
necessary to carry its order into effect (Rule 124, section 6) and may
compel obedience to its judgments, orders, and process (Id.,
section 5[c]). And to this end it may dismiss a complaint or any other
action brought before it. Likewise, failure to appear at a pre-trial
may be considered as failure to prosecute, which is a ground to dismiss
an action under Section 3 of Rule 30 of the Rules of Court, which reads:

“Sec. 3. Failure to prosecute.—When plaintiff fails to appear at the time of the trial, or to prosecute his action for an unreasonable length of time, or to comply with these rules or any order of the court,
the action may be dismissed upon motion of the defendant or upon the
court’s own motion. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise provided by court.”
(Italics supplied.)

American courts,
interpreting Rule 16 of the Federal Rules of Civil Procedure (from
which our rule on pre-trial has been adopted), have held the view that
where plaintiff fails to appear at a pre-trial conference ordered by
the Court, advance notice of which was given to the attorneys for both
parties, the same shall be considered as a failure to prosecute and
failure to comply with the Rules, and defendant’s motion to dismiss the
action on the merits shall be granted (Wisdom vs. Texas Co., 27 F. Supp. 992, cited in 1 Moran 397, 1957 ed.)

That the Court of First Instance had the power to dismiss petitioner’s
complaint in intervention is, therefore, beyond question.

However, petitioner claims that the lower court acted arbitrarily and
with grave abuse of discretion in dismissing her complaint in
intervention, because her counsel’s as well as her failure to appear at
the pre-trial was due to excusable negligence. In the affidavit
supporting the motion to set aside the order of March 23, 1959, Ernesto
Virtucio, a clerk in the office of her counsel, states that he had
received the notice of pre-trial but forgot to bring the same on time
to the attention of intervenor’s counsel because of too much work in
the office. But said affidavit is not accompanied by an affidavit of
merits stating that intervenor has a good and valid cause of action
against both plaintiff and defendant which, if proved would entitle her
to judgment against both of them. The necessity of such an affidavit of
merits has been stressed in the case of Gonzales vs. Amon, 99 Phil., 587; 52 Off. Gaz. (8) 1445; wherein this Court held:

“The
motion for reconsideration, though supported by the affidavit of the
clerk to the effect that, through inadvertence, she forgot to bring to
the knowledge of attorney and client the notice of hearing that she had
received, is not accompanied by an affidavit of merit, that is, a sworn
declaration that plaintiff has a good and valid cause of action against
the defendant, notwithstanding the latter’s defense that he had already
redeemed the lands in question. Even supposing, therefore, that the
failure of the plaintiff and his attorney to appear at the hearing was
really due, as they alleged ‘to excusable error or accident,’ still
plaintiff would not be entitled to a reopening of the case in the
absence of a reasonable assurance supported by proper affidavit that he
had a just and valid cause, which, if provided, would entitle him to a
judgment in his favor. (Remedios M. Vda. de Miranda vs. Urbano
Legaspi, et al., 92 Phil., 290; 48 Off. Gaz. 4819.) In the
circumstances, the lower court did not commit any error or abuse its
discretion in denying a reopening.” (Gonzales vs. Amon, 98 Phil., 587; 52 Off. Gaz., 1445).

Hence, because of intervenor’s failure to present the required
affidavit of merits, the lower court may not be said to have committed
a grave abuse of discretion when it dismissed petitioner’s complaint in
intervention.

In her memorandum submitted before this Court,
petitioner argues that the setting of the case for pre-trial was
premature because respondent Flaviano T. Dalisay had not yet filed his
answer to the complaint in intervention and, therefore, all the issues
had not yet been joined. This contention cannot be entertained as this
matter was never raised in the court below and it is brought up here
for the first time.

For the foregoing considerations, the
order appealed from should be affirmed, the petition for certiorari
denied and the preliminary injunction issued by us dissolved, with
costs against petitioner.

Paras, C. J., Bengzon, Bautista Angelo, Concepcion, Barrera, and Gutierrez David, JJ., concur.

Montemayor, Reyes, J.B.L., and Endencia, JJ., took no part.