GABRIEL ZARI, PLAINTIFF AND APPELLANT VS. JOSE R. SANTOS, DEFENDANT AND APPELLEE.

-This case was appealed from the “Court of
First Instance to the Court of Appeals, in which the
plaintiff-appellant specified as a second assignment of error, that the
trial court erred in denying the petition of the attorney for the
appellant to set aside the order dismissing plaintiff’s complaint and
declaring plaintiff in default on defendant’s counterclaim, filed under
section 2, Rule 38, of the Rules of Court, which provides for relief
against judgment entered into against a party through fraud, accident;
mistake and excusable negligence.

We said that it is the principal question raised in the appeal
because, the plaintiff’s action having been dismissed for his failure
to appear at the trial and to produce evidence in support of the facts
alleged in the complaint, the plaintiff can not obtain a positive
relief from the defendant in the appeal unless and until the order of
September 17, denying his petition for relief from the order of
September 13 that dismissed his claim or action for failure to appear
at the trial, is set aside and the principal case tried upon its merits
under section .6 of Rule 38.

In his petition for relief, the attorney for, the
plaintiffappellant alleged that the latter’s failure to appear and
prove appellant’s complaint and defense to the counterclaim was due to
a slight stroke of influenza which prevented him from appearing on the
date of the trial, upon the advice of his physician. This motion for
relief was accompanied by the affidavits of Dr. Francisco F. Tangco,
the appellant and his attorney tending to show the truth of said
allegation, and that the plaintiff has a good cause of action against
the defendant and a good defense against the latter’s counterclaim.

The. attorney for the defendant-appellee filed, under section 4 of
Rule 38, his answer opposing the plaintiff’s petition for relief on the
ground that “the non-appearance of the counsel for the
plaintiff-appellant was premeditated,” because it was the second time
he failed to appear at the date of the trial, and that “during
the.second nonappearance of the counsel for. the plaintiff, the
plaintiff himself and the representative of the law office of the
plaintiff’s counsel were present.”

The court in its order of September 17, denied the plaintiff’s
petition for relief stating that “Finding the motion of the plaintiff,
dated September 13, 1949, to be without merit, the same’ is hereby
denied. It is so ordered.” Although the trial court did not specify in
its order the reasons or grounds for the dismissal, but simply stated
that the; motion was without merits, ifc is obvious that the dismissal
was based on the fact that the court found that the allegations of the
petition are not true according to section 6 of Rule 38.

In all judicial cases the question for the courts to decide must
be, either of fact and law, or of law only if the ultimate facts on
which the law is to be predicated are admitted or not in issue; but it.
can never be a question of fact only, because the administration of
justice consists in the application of the law to the ultimate fact
admitted by the adverse party, or proven by the evidence according to
the findings of fact of the court.

It is obvious that the principal question submitted to the trial
court for decision involved both questions of fact arid law. The
question of fact was whether or not the dismissal of the plaintiff’s
action for failure of the plaintiff to appear at the time of the trial,
“was due to accident, namely, that one of his attorneys was sick of
influenza and the other was busy attending to other legal matters; and
that question was decided by the trial court against the contention or
allegation of the plaintiff. And the question of law was whether the
failure of the plaintiff to appear at the time of the trial not being
due to accident, plaintiff’s petition for relief should begranted or
denied by the court; and the trial court, applying the provision of
section 6, Rule 38, of Rules of Court, decided that legal questions
denying the plaintiff’s petition for relief.

The argument in the dissenting opinion that the trial court denied
the plaintiff’s motion or petition for relief on the grounds stated in
its decision on the merits of September 22, 1949, is untenable. The
grounds set forth therein are in support of the denial of the motion to
postpone the trial on September 9, 1949, as expressly stated in said
decision of September 22, arid not in support of its order of September
17 denying the plaintiff’s petition for relief. But if the facts and
circumstances set foi-th therein were considered by the trial court in
finding without merit the motion of the plaintiff, a fortiori
they were taken into consideration by the trial court to decide against
the plaintiff the question of fact whether or not there was such
accident alleged in the petition that prevented the plaintiff from
appearing at the time of the trial, before passing upon the question of
law whether or not, there being no such accident, plaintiff’s petition
for relief should be denied.

The order or ruling of the trial court denying the motion of
plaintiff’s petition for relief having been appealed by the
plaintiff-appellant the same questions of fact and law are being raised
and submitted to the Court of Appeals for decision by the appellant who
assigns as errors said ruling in his second assignment of errors above
quoted.

As Professor P. W. Viesselman says in his preface to the Fifth
Edition of the well known “Abbot on Facts,” edited by said Professor,
“The proof of facts is one of the most important fields of practice.
The ultimate facts upon which the rights of the parties rest are
usually in dispute. In such cases it becomes necessary to introduce
evidentiary matters to prove them.” It is obvious that the question
whether or not taken in consideration the evidentiary matter or the
affidavits of the plaintiff-appellant, or his attorney, and of Dr.
Francisco F. Tangco with the other facts and circumstances of the cage
found in the record, they are sufficient to establish the alleged
ultimate fact of accident within the meaning of, section .2, Rule 38,
contrary to the lower court’s resolution, is clearly a question of fact
for the Court of Appeals to decide.

It. is true that the question for a court to decide is only of law
if the ultimate facts alleged by one party are admitted or not denied
by the other. But it is not/less true that the fact that evindentiary
matters have been introduced without contradiction does not majie
said.ultimate facts undisputed and the question for the appellate
courts to decide one only of law, for the court may not give any credit
or weight to the evidence presented. The appellate courts in such case
cannot just assume the ultimate facts as proven or admitted, and decide
only the question of law and state in its judgment its conclusion
derived from the law applicable as major premise, and the ultimate
facts as minor premise of the syllogism,. for section 1 of Rule 85
requires that a judgment should §tate clearly the findings of fact and
of law on which,it is based. The court should first decide or make its
findings of fact or conclusion whether or not the ultimate facts in
issue have been established. And such conclusion is drawn from a
syllogism the minor premise of which is the direct and indirect or
circumstantial evidence, presented, and the major premise is reason or
logic and every day experience according to which the truth or
existence of a fact in issue may be or may not be logically inferred
from the evidence presented.^[1]

In view of the foregoing, the ease is remanded to the Court of Appeals for further proceedings,

Pablo, Bengzon, Padilla, Reyes, Jugo, and Bautista Angelo, JJ., concur.

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^[1] (See Wigniore on Evidence, 3rd edition, vol. 1, section 25.)

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PARAS, C. J.,

The plaintiff-appellant filed an action in the Court of First
Instance of Rizal in which it is prayed that judgment be rendered
ordering the defendant “(a) to respect and recognize the rights acquired by the plaintiff over the portion of the land in question; (b)
to accept the installments due the defendant by the plaintiff, who is
ready and willing at any time to tender him said installments; (c)
to execute in favor of the plaintiff the corresponding certificate of
sale of said portion of the land in question upon full payment of
balance of the purchase price thereof; (d) to pay unto the
plaintiff the sum of P958.33 corresponding to his share in the rentals
collected by the defendant from the U. S. Army, with legal interest
from the time of the filing of this complaint; and (e) to pay the costs of this suit.”

After several postponements, the case was set for trial on
September 9, 1949, on which date counsel for the plaintiff did not
appear. However, the plaintiff, accompanied by his brother (Eliseo
Zari), came to the court and informed the latter that plaintiff’s
counsel, Atty. Kodolfo E. Medina, was sick, and accordingly suggested
the postponement of the trial. Asked by the Court about his stand in
the matter, Atty. N. U. Gatchalian, counsel for defendant-appellee,
replied: “We are not in anyway trying to take advantage of the absence
of counsel for the plaintiff. I leave it to the discretion of this
Honorable Court with regard to this motion for continuance.” Whereupon
the trial court denied the petition for transfer, dismissed plaintiff’s
complaint, and allowed the defendant to present his. evidence in
support of his counter-claim.

On September 22, 1949, the trial court rendered a written decision
dismissing plaintiff’s complaint and defendant’s counter-claim, without
pronouncement as to costs. In the meantime, the plaintiff filed a
motion to set aside the verbal order of the trial court dismissing
plaintiff’s complaint and declaring the plaintiff in default on
defendant’s counterclaim, supported by affidavits of merit to the
effect (1) that Atty. Rodolfo E. Medina was sick on September 9, 1949;
(2) that Atty. Angel N. Castafio.jwho knew the case and could handle
the trial, was attending to other legal matters requiring his personal
attention;. and (3) that the plaintiff had a good cause of action
against the defendant as well as a good defense against defendant’s
counter-claim. This motion was denied by the. trial court in its order
of September 17, 1949.

On October 10, 1949, the plaintiff filed a motion for
reconsideration and new trial, which was denied by the trial court in
its order of October 18, 1949.

The plaintiff has appealed and assigned the -following errors:

“I.—El Juzgado originario incurri6 en error al
denegar la peticion de posposicion de vista de esta causa en la tarde
del dia 9 de septiembre de 1949.

“II.—El juzgado originario
incurrio en error al denegar la mocion del demandante para dejar sin
efecto la orden que sobresee la demanda del demandante, y le declara a
este en rebeldia en relacion con el ‘counter-claim’ del demandado.

“III.—El
juzgado originario incurrio en error al no oir lag ruebas del
demandante que adveran las alegaeiones de su demanda antes de sobreseer
esta.

“IV.—El juzgado originario incurrio en error al sobreseer la demanda del demandante en su decision dictada en esta causa.

“V.—El
juzgado originario incurrio en error al denegar la mocidn de
reconsideration de ]a decision que sobresee la demanda del demandante,
y la nueva vista de la causa.”

The Court of Appeals, to which the case was elevated, has certified
the same to this Court on the ground that the issues are purely legal,
namely, “whether or not, upon the undisputed facts stated heretofore,
the trial court erred firstly, in denying ‘appellant’s motion for
postponement of the trial; secondly, in rendering judgment dismissing
appellant’s complaint and declaring him in default on the counterclaim,
and thirdly, in denying the motion to set aside the order of dismissal
of the complaint and the motion for reconsideration and new trial:
mentioned heretofore.”

The majority are of the opinion that the case involves qnsstion of
fact and of law, and that the question of fact is ¦ whether or not the
dismissal. of the plaintiff’s action for his failure to appear at the
time of the trial was due to the circumstance that one of his attorneys
was sick of influenza and the other was busy attending to other legal
matters, said question of fact having been decided by the trial court
against the contention or allegation of the plaintiff. It is true that,
in the opposition to appellant’s motion for relief, counsel for
appellee alleged that “the non-appearance of the counsel for the
plaintiff is deliberate and premeditated”. But it is very significant
that the trial court had refused to lift the order of default, not on
the ground that counsel for the plaintiff-appellant was not in fact
sick, but on the grounds stated in its decision of September 22, 1949.
Said decision ruled: “It appearing that the trial was set upon mutual
petition of the parties and their counsel; th’at said petition for
continuance has not been made in the form and with the requisites
prescribed by law; that the plaintiff is represented by a firm
of:¦attorneys any member of which could have appeared and prosecuted
the case in lieu of Atty. Medina, and that Atty. Angel M. Castano is
the one personally in charge of the case (see sworn petition ..for
postponement of Atty. Castano dated August 5, 1949); the Court denied
the postponement of the trial sought by the plaintiff and forthwith
ordered the defendant to present his evidence on his counter-claim.”

That the trial court did not and never intended to base its refusal
to reconsider the order of default on the ground that appellant’s
counsel was not really sick on the date of the trial, is clearly
negatived by the grounds specified in its decision and plainly shown by
the further fact that said court did not deem it necessary to require
evidence to be presented by the parties on the matter. The trial court
considered the facts appearing on the record sufficient for drawing a
legal conclusion as to whether, or not counsel for appellant could be
excused for his absence during the trial on September 9, 1949. To say
the least, it would have been unfair for the trial court to rule out
the appellant on a question of fact without giving him ample
opportunity to present necessary evidence. And certainly it could not
have accepted as true the bare allegation of attorney for appellee that
the non-appearahee of counsel for appellant was premeditated.

It may be contended that the trial court ruled that” Atty. Angel M.
Castano was the one personally in charge of the case and could have
appeared in lieu of Atty. Medina, and that this is a finding of fact.
Even so, it is also beyond question that Atty. Castano was busy
attending to other matters requiring his personal attention on
September 9, 1949.

It is my opinion, therefore, upon the undisputed ‘facts” appearing
in the record, the main point to be determined is whether or not
counsel for the appellant can be legally excused for his failure to
appear on the date of the trial in question, and this is a purely legal
issue.

Wherefore, I vote to give due course to the plaintiff’s appeal in this Court.

Tuason, J., concurs.