[G.R. No. L-3541. May 31, 1950.]
TOMAS T. FABELLA, Petitioner, v. TIBURCIO TANCINCO ETC., ET AL., Respondents.
Alberto R. de Joya for Petitioner.
Cecilio I. Lim and Antonio M. Castro for Respondents.
1. DAMAGES; BOND FOR INJUNCTION; PROCEDURE FOR RECOVERY OF DAMAGES; EFFECT OF FAILURE TO COMPLY WITH SUCH STEP. — The provision of section 20 of Rule 59 of the Rules of Court clearly contemplates that before damages could be recovered on a bond filed in accordance with section 5 of Rule 38, there must first be an application with due notice to the other party and his sureties, setting forth the facts showing applicant’s right to damages and the amount thereof. To this application, the other party may interpose his pleading, and upon the issue thus being joined, the matter will be tried and determined. An order of the court declaring the bond confiscated without complying with this procedure is illegal.
2. JUDGMENT; PETITION FOR RECONSIDERATION; AT COURT’S DISCRETION. — A petition for reconsideration on the ground of excusable negligence is addressed to the sound discretion of the court. This discretion cannot be interfered with except in a clear case of abuse.
D E C I S I O N
This is a petition for certiorari to annul two orders of the Court of First Instance of Manila in civil case No. 3354, entitled Juan A. Ramos Et. Al. v. Tomas T. Fabella.
It appears that on December 24, 1947, plaintiffs in said case obtained a judgment against defendant for the sum of P4,050 plus legal interest and costs. Defendant did not appeal, but on March 17, 1948, he filed a petition to have the judgment set aside, and, in accordance with section 5 of Rule 38, Rules of Court, and upon the filing of a bond for P4,050, he had the court issue a preliminary injunction to prevent the judgment from being executed.
The petition to set aside the judgment was granted. But in the new trial that followed, defendant again lost. Not only that; plaintiffs were allowed to recover more, for in the new judgment that was rendered, defendant was ordered to pay them P12,400, plus interest, in addition to the sum previously adjudged. Notified of this new judgment on July 21, 1949, defendant filed his motion for reconsideration 33 days thereafter, but it was denied by the court on the ground that the said judgment had already become final.
On August 30, 1949, the court, at the instance of plaintiffs, ordered the issuance of a writ of execution, and on the 21st of the following month, again at plaintiffs’ instance, ordered the above- mentioned bond confiscated, "to be applied," so the order says, "in partial satisfaction of the judgment rendered herein." Reconsideration of this last order having been denied by the court below, its annulment is now sought in the present petition.
On October 4, 1949, defendant filed a petition to set aside the order of August 30, denying reconsideration of the second decision for the reason that the same had already become final. As ground for this petition defendant alleged that the late filing of his motion for reconsideration was due to mistake and excusable negligence, more specifically as follows:red:chanrobles.com.ph
"1. That the said motion for reconsideration was not filed on time, i. e., August 20, 1949, due to mistake and excusable neglect on the part of the clerk of the undersigned counsel, which consists in that said clerk, Miss Jovita Nierras, had been sick from August 18, 1949 to August 22, 1949, and consequently she was absent and did not come to the office of the undersigned, during the said period; that inasmuch as the undersigned had been relying upon his said clerk to remind him of the filing of pleadings, records, briefs, etc., as they become due, and that said clerk had been absent during the said period, and failed to notify the undersigned of the last day for the filing of the said record on appeal, and the undersigned counsel not knowing of the exact last day for the perfection of the appeal in this case, he was not able to perfect the appeal in this case; that the truth of the matter being said clerk had been preparing the record on appeal in this case; that defendant had not had the intention to abandon his appeal in this case; that the amount involved in the appeal is more than P16,400; that it would be an injustice to the herein defendant to be deprived of his right to appeal in this case; that the said defendant has been the victim of persecution, criminal and civil, which has impoverished him; that his case is meritorious and that the judge then presiding over this Honorable Court, the Hon. Buenaventura Ocampo had not fully appreciated the evidence and the law in this case; that no violation of any substantial right of the plaintiffs in this case could be incurred, in view of the fact that said plaintiffs had already levied upon all the properties of the herein defendant, including those which are by law exempt from execution, thus totally depriving the herein defendant of his only means of livelihood.."
This petition was also denied in an order rendered November 4, 1949. This is the second order whose annulment is herein sought.
Going back to the order for the confiscation of the bond, it should be noted that the said bond is not one given under section 2 of Rule 39 to guarantee the performance of an appealed judgment, but one required for the issuance of a writ of preliminary injunction to stay the execution of a judgment which is sought to be set aside on the ground of fraud, accident, mistake or excusable negligence. Such a bond is specifically authorized by section 5 of Rule 38, and its condition is that if the petition to reopen is dismissed or petitioner fails on the trial of the case upon its merits, the petitioner "will pay the adverse party all damages and costs that may be awarded to him by reason of the issuance of such injunction or the other proceedings following the petition." Such a bond "shall not answer for the amount of the judgment sought to be set aside." (I Moran, Rules of Court, 636.) .
As directed by section 9 of Rule 60, the damages recoverable on a bond of this kind "shall be claimed, ascertained and awarded under the same procedure as prescribed in section 20 of Rule 59," which, in so much as is pertinent to this case, provides:red:chanrobles.com.ph
" *** Such damages may be awarded only upon application and after proper hearing, and shall be included in the final judgment. The application must be filed before the trial or, in the discretion of the court, before entry of the final judgment, with due notice to the plaintiff and his surety or sureties, setting forth the facts showing his right to damages and the amount thereof. ***.."
This provision clearly contemplates that before damages could be recovered on the bond here under consideration, there must first be an application with due notice to the other party and his sureties setting forth the facts showing applicant’s right to damages and the amount thereof. To this application, the other party may interpose his pleading, and upon the issue thus being joined, the matter will be tried and determined. But the respondent judge appears to have completely disregarded this procedure and, without hearing on the amount of damages and without even notice to the surety, declared the bond confiscated and ordered it applied to the satisfaction of the judgment, merely on the gratuitous assumption that the plaintiffs had suffered damages in the amount of the bond. The order is illegal and should therefore be revoked.
As to the other order herein complained of, it should be recollected that defendant’s motion for a reconsideration of the second judgment was filed after the said judgment had already become final. It was, therefore, properly denied. It may be added that the motion was merely pro forma. But 35 days after the denial of the motion, defendant sought reconsideration of the order of denial, alleging as a ground that the tardiness in the filing of the first motion was due to "mistake and excusable neglect" on the part of his clerk who, it was alleged, had been absent from office on account of sickness, and invoking the precedent established by this Court in Coombs v. Santos, 24 Phil., 446, and in Siguensa v. Mun. of Hinigaran, 14 Phil., 495. It may well be disputed whether an attorney could be excused for the negligence of his clerk where there is no showing that he himself has shown diligence or has done anything to guard against such negligence. But assuming that a case of that kind is covered by the precedent laid down in the cases cited, it may not be amiss to point out that the defendants in those cases had not had their day in court, for judgment was obtained against them by default, and this consideration must have weighed heavily in the mind of the court. Such is not the situation here. The judgment which petitioner seeks to set aside is one that has been rendered after regular trial, and the first motion for reconsideration does not contain any prima facie showing that the judgment was wrong. Indeed, said motion for reconsideration was merely pro forma, based on the bare statement that the decision was contrary to law and was not supported by the evidence. And nothing was said at that time why the motion was filed out of time.
A petition for reconsideration on the ground of excusable negligence is addressed to the sound discretion of the court. This discretion can not be interfered with except in a clear case of abuse. Taking into account all the circumstances of the case, we are not prepared to say that the respondent judge did not make a good use of his discretion in refusing to set aside his order denying reconsideration of the judgment on the ground that this had already become final.
Wherefore, the order of September 21, 1949, for the confiscation of the bond is hereby revoked; but the order of November 4, 1949, denying the motion to set aside the order of August 30, which in turn denies reconsideration of the judgment, is affirmed. Without pronouncement as to the costs.
Ozaeta, Pablo, Bengzon, Tuason, and Montemayor, JJ., concur.
Order of September 21, 1949, for confiscation of bond, revoked; order of November 4, 1949, denying motion to set aside order of August 30, affirmed.
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