JOSE P. BANZON AND LUCILA ROSAURO, PLAINTIFFS AND APPELLEES, VS. GEORGE C. SELLNER, DEFENDANT AND APPELLANT.

This is an appeal taken by the defendant herein, George C. Sellner,
from the judgment rendered by the Court of First Instance of Bataan,
the dispositive part of which reads as follows:

“Wherefore,
the court renders judgment ordering the defendant, George C. Sellner,
to pay to the plaintiffs Jose P. Banzon and Lucila Rosauro, within the
period of three months from the date of this judgment, the sum of
P35,000 with interest thereon at the rate of 10 per cent per annum from
March 1, 1931, until fully paid, plus 5 per cent thereof as attorney’s
fees, with the costs of this suit against the defendant. In case of
failure to make the required payment within the above-mentioned period,
the parcels of land described in the complaint shall be ordered sold to
satisfy the amount of the judgment, with the costs. So ordered.”

In support of his appeal, the appellant assigns the following alleged
errors as committed by the trial court in its decision, to wit:

“1.
The trial court erred in denying the motion for postponement of the
trial based on the ground that the defendant was seriously ill, and in
not permitting him to defend himself during the trial of the case.

“2. The trial court erred in rendering judgment for the total amount of
the obligation notwithstanding the fact that it was not yet due.

“3.
The trial court erred in rendering judgment ordering the defendant to
pay the penal clause specified in the mortgage contract in spite of the
fact that said contract was novated.

“4. The trial court erred in having abused its discretionary power in each and every proceeding in the instant case.

“5. The trial court erred in rendering judgment in this case and in denying the motion for a new trial.”

The first question to decide in the case at bar is procedural in character and consists in whether or not the court a quo
erred in denying the motion for postponement of trial filed by the
attorney for the defendant, alleging as his ground that said defendant
was seriously ill.

In support of his motion for postponement
of the trial, the attorney in question presented a medical certificate,
not sworn to, issued by Dr. H. H. Steinmetz.

This court has
repeatedly held that it is discretionary on the part of the judge
trying a case to grant or deny a postponement of the trial thereof, in
accordance with the provisions of section 130 of the Code of Civil
Procedure, and that unless said motion for postponement, based on the
serious illness of the party requesting it, is accompanied with a sworn
statement, either in the form of an affidavit or of a medical
certificate, the court does not commit an abuse of discretion in
denying it. (Natividad vs. Marquez, 38 Phil., 608.)

The second question to decide is whether the mortgage creditor can
institute foreclosure proceedings for the recovery of the full amount
of the loan in spite of the fact that all the installments stipulated
in the mortgage deed have not yet become due.

Although it is
true that in the stipulation of facts entered into by the parties on
October 13, 1932, new installments for the payment of the mortgage debt
of the defendant George C. Sellner in favor of the plaintiffs-appellees
Jose P. Banzon and Lucila Rosauro were established, and according to
which the last installment- would be due in May, 1932—said date of
maturity not having arrived yet on April 13, 1932, when the present
complaint was filed—however, inasmuch as the former two installments
had already become due, the payments corresponding to them were
demandable and the creditors could foreclose the mortgage to recover
the amount thereof. The third installment fell due before the
defendant-appellant filed his answer and the plaintiffs could have
amended their complaint so as to include the same had it not yet been
included, but inasmuch as it was already included therein, and the
defendant did not file any demurrer for its exclusion, there was no
necessity for the said plaintiffs to amend their complaint for the
purpose of including the same.

Although in loans payable in
installments which do not contain any clause accelerating the maturity
thereof, the payment of an installment cannot be demanded until it is
due, however, when, the payment of all the installments including those
not yet due is demanded in the complaint and no demurrer for the
exclusion of those not yet due is filed, if such installments fall due
during the pendency of the suit, they are included therein.

The third question to decide is whether or not the court a quo erred in ordering the defendant to pay the penal clause specified in the mortgage deed under consideration.

The defendant, in maintaining the affirmative, bases his contention on
the assumption that the penal clause in question was cancelled when the
mortgage deed in question was novated by virtue of the stipulation of
April 13, 1932. It should be noted that at the end of the stipulation
of facts above-mentioned it reads: “Without prejudice to the rights
derived by the plaintiffs from the mortgage on the land described in
the complaint.” The penal clause referred to above being one of those
rights which the plaintiffs reserved for themselves in the said
stipulation, they have the right to demand compliance therewith.

In view of the foregoing considerations, we are of the opinion and so
hold: (1) That it being discretionary on the part of the judge trying a
case to grant or deny a postponement of the trial thereof (sec. 130,
Act No. 190), his refusal to grant a motion for postponement based on
the alleged serious illness of the party filing it and accompanied with
a medical certificate not sworn to, does not constitute abuse of
discretion (Natividad vs. Marquez, 38 Phil., 608); and (2) that
when a demand for the payment of installments not yet due is included
in the complaint for the recovery of installments due on a debt, and a
demurrer for the exclusion thereof is not filed, and they fall due
during the pendency of the suit, their inclusion is thereby rendered
valid and the judgment for the whole amount of the complaint is not
erroneous.

Wherefore, not finding any error in the judgment
appealed from, and it appearing that the instant appeal is frivolous,
the aforesaid judgment is hereby affirmed, with double costs against
the appellant. So ordered.

Avanceña, C. J., Malcolm, Hull, and Imperial, JJ., concur.