BENITO RABAJANTE, PETITIONER, VS. P. M. MOIR, JUDGE OF FIRST INSTANCE OF THE EIGHTH JUDICIAL DISTRICT, AND TOMASA RANCES, RESPONDENTS.

This is a proceeding begun under section 513 of the Code of Civil Procedure
to set aside an order of the Court of First Instance of the Province of Albay
upon the ground that it was rendered upon default and that the petitioner was
unjustly deprived of a hearing by fraud.

It appears from the record that the petitioner and his mother, Tomasa Rances,
were the son and widow of Vidal Rabajante, who died leaving a last will and
testament in which he divided his property between them, the will providing that
certain real estate given by the testator to the son during the lifetime of the
testator and certain debts paid by him for the son during the same period be
taken into consideration in the division of the property and that they be
regarded as advances and deducted from the share to which the son would
otherwise be entitled.

The will was duly probated and commissioners were appointed to partition the
real property between the petitioner and the respondent. They proceeded to a
division of the real estate without taking into consideration that portion of
the will relating to the advances to the petitioner and divided the property
equally between the petitioner and the respondent.

Before the report of the commissioners partitioning the property was approved
by the court, their attention was called to the provisions in the will relative
to the advances and they thereupon changed their report by deducting from the
property which they had allowed him the value of the advances. In making this
deduction it was found that the amount of the advances exceeded the value of the
property which the petitioner would have received if there had been no advances,
and accordingly, the commissioners reported that all of the property described
in the will be turned over to the widow. This report was duly approved by the
court, which entered a judgment thereon turning the property over to the
widow.

Upon ascertaining that the order just-mentioned had been entered turning the
property over to his mother, the petitioner immediately made an application to
the court to set aside the order upon the ground that it was made without notice
to him and that it was obtained by the mother by fraud, misrepresentation, and
deceit. The application came on for a hearing, the parties were heard, and the
court found, upon all the facts and circumstances of the case, that the
petitioner had received notice of the hearing on the commissioners’ report; that
no fraud had been practiced by anybody upon him; that he was not entitled to the
relief asked for; and, accordingly, denied his motion.

Thereupon petitioner brought this proceeding for the purposes already
mentioned.

A mere statement of the case is sufficient to show the lack of grounds for
the proceeding. It will be seen from a reading of section 513 that the remedy
granted thereby is available only in case the Court of First Instance which made
the order “has finally adjourned so that no adequate remedy exists in that
court.” The section reads:

“Procedure in cases of defaults caused by fraud, accident, or mistake. When a
judgment is rendered by a Court of First Instance upon default, and a party
thereto is unjustly deprived of a hearing by fraud, accident, mistake, or
excusable negligence, and the Court of First Instance which rendered the
judgment has finally adjourned so that no adequate remedy exists in that court,
the party so deprived of a hearing may present his petition to the Supreme Court
within sixty days after he first learns of the rendition of such judgment, and
not thereafter, setting forth the facts and praying to have such judgment set
aside. * * * “

It is clear that, if the Court of First Instance which rendered the judgment
or made the order is still in session, the party aggrieved should present his
petition directly to that court. This is precisely what he did. He obtained from
that court a reconsideration of the order complained of, presented the facts
upon which he based his relief, and the court, after full consideration, found
that he had failed to prove the facts necessary to obtain relief and, therefore,
denied it. This being the case, the remedy under section 513 is not available.
The condition precedent to the right to that remedy, viz., that the court which
made the order “has finally adjourned so that no adequate remedy exists in that
court’ is not present. The petitioner could have. excepted to the order denying
his motion and could have taken his appeal therefrom as provided by law. That
was his only remedy.

The petition is denied, with costs against the
petitioner.

Arellano, C. J., Torres, Johnson, Carson, and Araullo, JJ.,
concur.