CING HONG SO (ALIAS TAN LIM ZI), PLAINTIFF AND APPELLANT, VS. TAN BOON KONG ET AL., DEFENDANTS AND APPELLEES.

After the period for the pleadings had terminated and the hearing of
the case had been postponed several times, the court, on September 25,
1928, the date last set for the trial, in the absence of the plaintiff,
denied the motion for a further postponement of the hearing for a few
days, dismissed the complaint as against the defendants represented by
Attorney Yap, and, granting the petition of counsel for defendant Tan
Boon Kong, declared the plaintiff in default and permitted said
defendant to adduce his evidence, which was done, and judgment was
rendered on September 26, 1928, absolving said defendant Tan Boon Kong
from the complaint, declaring the document, the deed of sale, attached
to said defendant’s answer fraudulent and void, with costs against the
plaintiff.

Such is the judgment from which the present appeal is taken, based
upon three assignments of error, to wit: First, the denial of the
motion to postpone the hearing, and in not postponing the same to the
next day, although the party defendant was agreeable thereto; second,
in declaring the plaintiff in default, absolving the defendants from
the complaint, dismissing said complaint, and in permitting the
defendants to adduce evidence; and third, in denying the motion for a
new trial.

The following, found on pages 21-26 of the bill of exceptions, is an
account of what took place in the court below relative to this case on
September 25, 1928, when it came up for trial:

“This case having come up for trial, Attorney
Aboitiz appeared in behalf of defendant Tan Boon Kong, and Attorney Yap
in behalf of the other defendants, the plaintiff entering no appearance.

“Attorney
Seva appeared and informed the court that he had come to Iloilo because
he had a case in Branch III of said court, and that the day before he
had been asked to represent the plaintiff in this case; that he
appeared not as counsel for the plaintiff, but in order to pray the
court to postpone the hearing of the case in order to gjve him time to
study it and see whether he could or should represent the plaintiff in
this case.

“Attorney Aboitiz asked that the defendant Tan
Boon Kong be personally permitted to answer the petition for
postponement presented by Attorney Seva.

“On being called
upon by the court, defendant Tan Boon Kong stated that he had brought
his witnesses, and would consent to the postponement of the hearing of
this case only till the following day, but that he could not agree to
have it postponed any longer because said hearing had already been
postponed several times.

“Then Attorney Seva informed the
court that he could not take charge of this case as counsel for the
plaintiff, if the hearing were postponed only to the following day,
because he had a case in the Court of First Instance of Negros on that
day.

“The court denies the postponement prayed for by
Attorney Seva, it appearing of record that counsel for the plaintiff
had been notified on August 11 of this year that the hearing of this
case would be had today; that said counsel filed a motion on the 22d
instant praying; that the hearing of the case be postponed, and that as
counsel for defendant Tan Boon Kong objected to such postponement, it
was denied.

“If the plaintiff was not sure of securing
attorneys to take the place of those who had been representing her, she
should not have consented to the petition filed yesterday afternoon and
signed by her attorneys, praying that they be relieved from
representing her in this case.

“It appears from this
proceeding that the first time, the date set for trial was December 14,
1927, and it was postponed on motion of defendant Tan Boon Kong, on
account of illness, according to the medical certificate attached to
the motion.

“The second time the hearing was set for the
1,2th of January of this year, and on the 10th of January counsel for
the plaintiff moved for the postponement of the trial on the ground
that his witness Enrique Echaus was absent from this province; and the
court granted the petition for postponement.

“Once more the
hearing of this case was set for the 21st of February this year, and
because defendant Tan Boon Kong and his attorney had not been notified
of it, the hearing of this case was again postponed to March 15 of this
year.

“On March 12 of this year, the court on petition of
defendant Tan Boon Kong, ordered several other persons to be included
as parties defendant: this being the reason why the trial was not held
on March 15 of this year.

“The hearing of this case was again
set for June 15 of this year, and upon petition of the attorney for
defendant Tan Boon Kong, it was postponed to July 2 of this year.

“On
the 2d of July, the hearing of this case was again postponed on motion
of counsel for the plaintiff, to the 11th of said July, when it was
again postponed upon petition of the attorney for defendant Tan Boon
Kong.

“The trial being set for August 6 of this year, it was
postponed again to this day, because the court was busy hearing
election contests.

“There having been so many postponements
of the trial of this case, upon petition both of the plaintiff and of
the attorney for defendant Tan Boon Kong, and it being publicly known
to all attorneys and other interested parties who come to this court,
that as a rule petitions for postponements of the hearing presented on
the day of the trial are denied, unless justified by just and powerful
reasons, which is not the case with the petition to postpone presented
today by Attorney Seva, the court reiterates its ruling denying the
postponement prayed for, and hereby orders that the hearing of the case
proceed.

“The plaintiff upon being again called by the announcer, failed to appear.

“Attorney
Yap, who represents the other defendants, prays for the dismissal of
the complaint because of the plaintiff’s failure to appear.

“Attorney
Aboitiz, in behalf of defendant Tan Boon Kong, prays the court to enter
an order of default against the plaintiff, and to permit him to adduce
his evidence in support of his answer.

“In accordance with
Attorney Yap’s petition, the court orders the dismissal of the
complaint against the defendants represented by said Attorney Yap.

“In
accordance with Attorney Aboitiz’s petition, the plaintiff is declared
in default, and said attorney is hereby authorized to adduce his
evidence.

“So ordered.”

From the foregoing it appears that on the afternoon before the 25th
day of September, 1928, the attorneys for the plaintiff had presented a
petition to the court praying to be relieved from the representation of
the plaintiff in this case, to which petition said plaintiff agreed;
that on said preceding day, Attorney Seva had been asked to represent
the plaintiff, and on said 25th day of September, 1928, he appeared in
court, not as counsel for the plaintiff, but merely to ask for the
postponement of the hearing of the case in order to have time to study
it and to decide whether or not he would represent the plaintiff; that
the defendant personally answered saying that he had brought his
witnesses, and that he would consent to postponing the trial to the
next day, which did not seem to Attorney Seva to be sufficient time,
for which reason he informed the court that he could not undertake to
represent the plaintiff.

We believe that under the circumstances of the case, no negligence
can be imputed to the plaintiff for not being definitely represented by
counsel on September 25, 1928. On the preceding day, when her first
attorneys retired from the case, Attorney Seva was asked to represent
the plaintiff, for which reason he appeared in the court on September
25, 1928, and presented the petition to postpone the trial of the case,
asking for sufficient time to inform himself of the same, in order to
decide whether or not he would represent the plaintiff.

We also consider that, in view of these facts, the interests of
justice and equity required that the petition presented by Attorney
Seva, who had just been designated to represent the plaintiff, be
granted, and that the hearing be postponed for a greater length of time
than a day.

It is true that there had been postponements of the hearing of this
case since the 14th of December of the preceding year, that is, for
more than seven months previously; but of the eight postponements
appearing in the above-quoted order, five had been requested by the
defendant, one had been made by the court itself, and only two had been
requested by the plaintiff.

In cases like the present, where a party litigant, without malice,
fault, or inexcusable neglect, is not prepared for the trial of a case,
the court exceeds the discretion conferred upon it by law in denying to
said litigant a reasonable opportunity to prepare for the trial and to
obtain due process of law and proper protection under the law.

The doctrine enunciated by this court in similar cases, such as, Lino Luna vs. Arcenas (34 Phil., 80), should be followed in the present case.

Wherefore, the judgment appealed from is reversed, setting aside the
trial held, and under the provisions of section 496 and others in
connection therewith of the Code of Civil Procedure, let the case be
remanded to the court below for a new trial, giving the parties a
reasonable opportunity to protect their respective rights. Without
express pronouncement of costs. So ordered.

Avanceña, C. J., Johnson, Street, Villamor, Johns, and Villa-Real, JJ., concur.