NINFA F. CUA, PETITIONER, VS. JUDGE EULALIO D. ROSETE, COURT OF FIRST INSTANCE OF MISAMIS ORIENTAL, BRANCH V; BANK OF THE PHILIPPINE ISLANDS, CAGAYAN DE ORO BRANCH; ISMAELA ALVA…

This is an appeal under Republic Act No. 5440 from the lower
court’s order, dismissing Ninfa F. Cua’s complaint because of her nonappearance at the
hearing, a failure which she attributes to her counsel’s alleged mis­understanding
of the date thereof.

On April 25, 1979, Ninfa Cua filed in the Court of First Instance of Misamis Oriental Civil Case No. 6512 to annul the
extrajudicial foreclosure of the mortgage on her Lot No. 1051-C covered by OCT
No. 0-166 located at Lapasan, Cagayan
de Oro City with an area of 989 square meters valued
at P40,320.

The mortgage had been executed in her behalf by Ismaela B. Alvaro, her attorney-in-fact (lessee of the
lot), in favor of the Bank of the Philippine Islands, to secure a loan of P120,000.

Cua had sued in 1977 the spouses Ismaela B. Alvaro
and Felipe Alvaro in Civil Case No. 5538 (p. 70, Rollo).
Its pendency was annotated by means of a notice of lis pendens on the back of OCT-166. The bank’s
new title is TCT No. 29323 (supposed to be Annex 6 of the bank’s comment but
Annex 6 is OCT No. 0-166 and not TCT No. T-29323.) Presumably, the notice of lis pendens is
also annotated on TCT No. T-29323).

After the issues had
been joined in Civil Case No. 6512 and the pre-trial was held on October 31, 1979, the case was set
for hearing on February 8, 1980.
Apparently, no trial was held on that date. The case was again set for trial on
July 29, 1980 but “for
lack of material time” the hearing was transferred to “September 5, 1980 at 9:00 o’clock in the morning“. A copy of this order was
received by Monica Jardin, the wife of Galdino B. Jardin, counsel of
plaintiff Cua (p. 131, Rollo).

Cua’s counsel alleges in paragraph 9 of
the instant petition that the real reason why no hearing was held on July 29, 1980 was because of the
absence of Augusto Maderazo, counsel for the
Alvaro spouses, and not because of “lack of material time”.

On September 5, 1980,
Cua and
her counsel did not appear. The
lower court dismissed the complaint and defendants’ counterclaims (p. 47, Rollo). Cua and her counsel
thought that the hearing was scheduled on September 8, 1980
and not September 5.

The version of Cua’s counsel is that he
was in the office of the clerk of court at about eleven
o’clock of September 5,
1980 to file Civil Case No. 7341. On that occasion, the court
interpreter informed him that Civil Case No. 6512 was dismissed for nonappearance of Cua and her counsel. At about two
o’clock in the afternoon of that same day, he talked with the Pre­siding
Judge to explain his nonappearance. He thought that the case was scheduled on September 8, 1980 as he had
indicated in his diary book (p. 57, Rollo). Cua’s counsel received on September 5, 1980 a copy of the order of dismissal.

Cua’s counsel alleged that a certain
stenographer named Edilberto S. Salceda
was the one who took down the notes of the hearing on July 29, 1980 which he and the two opposing
lawyers signed. But, contrary to the usual practice, the stenographic notes of Salceda and the minutes of the hearing on that date were
not attached to the record of the case. Salceda
and the deputy clerk of court could not explain why the minutes of the hearing
were not in the record. They are now attached to the lower court’s record on
page 57-A.

Cua filed a motion for reconsideration
of the order of dismissal. It was denied by respondent Judge Eulalio Rosete in his order of
October 7, 1980 on the grounds that the bases of the motion “are
deliberate falsehoods” and that Cua’s counsel
filed at three o’clock in the afternoon of September 5, 1980 an “urgent
motion for transfer of hearing” accompanied by a medical certifi­cate as
to Cua’s “pretended illness” so that
plaintiff and her counsel could have an excuse for not coming to court in the
morning of September 5, 1980.

Judge Rosete concluded his dismissal
order with the observation that Cua had admitted the
execution of the special power of attorney to accommodate the Alvaro spouses
and, therefore, she “has no meritorious cause of action and there is no
point in granting the motion for reconsideration. It would be an exercise in
futility to reinstate the complaint only to dismiss it again because it lacks a
meritorious cause of action.” (pp. 62-63, Rollo.)

On the other hand, the version of the bank is that a copy of the
court order transferring the trial to September 5, 1980 was actually
received by Jardin’s wife (Annexes 7 and 8 of
Comment). So, there was no reason for him to insist that the trial was scheduled
on September 8, 1980. And at three
o’clock in the afternoon of the same day, September 5, 1980, he filed a motion for
transfer of the September 8 hearing because of Cua’s
illness (Annex 10 of Comment). That was a “diversionary strategy”
according to the bank’s counsel inconsistent with the allegation of Cua’s counsel that he learned of the dismissal at eleven o’clock and with his conference with the
Presiding Judge at two o’clock.

The bank’s counsel attached to his comment a copy of the
stenographic notes and the minutes of the hearing for July 29, 1980 (p. 57-A, Record), and the
affidavit of the deputy clerk of court to refute Cua’s
allegations that the case was set for September
8, 1980.

We hold that in the interest of justice Mrs. Cua
should not be prejudiced by her counsel’s failure to appear at the hearing of September 5, 1980. Such failure was
sufficiently explained by her counsel. Moreover, Judge Rosete
had shown in his order of October 7,
1980 that he had prejudged the case.

Civil Case No. 6512, Cua vs. Bank of
the P. I., should be consolidated with the related case of Civil Case No. 5538,
“Ninfa F. Cua vs. Ismaela B. Alvaro, et al.,” which is now pending
before Branch 17 of the Regional Trial Court of Misamis
Oriental, presided by Hon. Judge Cesar Ybañez.

WHEREFORE, Judge Rosete’s order
of dismissal dated September 5, 1980
in Civil Case No. 6512 is reversed and set aside. That case should be
consolidated with Civil Case No. 5538 and transferred to Judge Ybañez. No costs.

SO ORDERED.

Makasiar, (Chairman), Concepcion, Jr., Guerrero, Abad
Santos, and Escolin,
JJ., concur.

De Castro, J., on sick leave.