THIRD
DIVISION
SPOUSES
ROBERTO and LILIA MONDONEDO,
Petitioners,
G. R. No. 113349
January 18, 1996
-versus-
COURT
OF APPEALS, HON. LUCIA VIOLAGO ISNANI,as Presiding Judge of Branch 59,
Regional
Trial Courtof Makati, MAKATI DEPUTY SHERIFF
MAXIMO
CONTRERAS,REGISTER OF DEEDS OF MAKATI,
REGISTER OF DEEDS
OFLAS PIÑAS, REGISTER OF
DEEDS OF BAGUIO
CITY and SECURITY BANK AND TRUST COMPANY,
Respondents. |
R
E S O L U T I O N
PANGANIBAN, J.:
What is the
remedy of a plaintiff declared non-suited
for failure to appear at the pre-trial hearings? This is the main issue
in this Petition for Certiorari praying for a review of a Resolution of
the respondent Court of Appeals[1]
promulgated on October 6, 1993 [and the subsequent Resolution denying
the
motion for reconsideration, promulgated on January 7, 1994] dismissing
the Petition for Certiorari to set aside orders issued by the Regional
Trial Court of Makati, Branch 59, which threw out the complaint in view
of counsel's late appearance during the pre-trial hearing. Reason
advanced
for counsel's delay was allegedly "flooded street" due to a typhoon
which
reason was factually disputed by the private respondent Security Bank
and
Trust Company.
By resolution of
the First Division of this Court
on October 25, 1995, this case [along with several others] was
transferred
to the Third Division. After carefully deliberating on the Petition,
the
Omnibus Motion to Cite Petitioners, et al. In Contempt and to Lift
Temporary
Restraining Order, the Comment, the Reply [to Comment] and Opposition
[to
Omnibus Motion], the Rejoinder [to Reply] and Reply [to Opposition],
the
Motion for Reconsideration, and the Opposition [to Motion for
Reconsideration]
and Reply (to Opposition) as well as all the other submissions of the
parties,
the Court assigned the writing of this Resolution to the undersigned
ponente].cralaw:red
The respondent
Court held that appeal, not certiorari,
is the remedy of a party declared non-suited for failure to appear at
the
pre-trial hearing. In addition, said Court noted the failure of
petitioners
to state the date of receipt of the order denying the motion for
reconsideration
in the Court a quo. Hence, it could not determine whether the
petition
was filed on time.cralaw:red
The Court finds
no reversible error in the said
Resolutions of the Court of Appeals. Well-settled is the rule that a
dismissal
for failure to appear at the pre-trial hearing is deemed an
adjudication
on the merits, unless otherwise stated in the order.cralaw:red
For
non-appearance at the pre-trial, a plaintiff
may be non-suited and a dismissal of the complaint for failure to
prosecute
has the effect of an adjudication upon the merits unless otherwise
provided
by the trial court. [Geralde vs. Sabido, G. R. No. L-35440, August 19,
1982, 115 SCRA 839, 841, citing Sec. 3, Rule 17 and Sec. 2, Rule 20,
Rules
of Court, and Ouye vs. American President Lines, Ltd., 77 Phil. 635;
Tuballa
vs. De la Cruz, 111 Phil. 335, 337; American Insurance Co. vs.
Republic,
21 SCRA 464; Home Insurance Co. vs. United States Lines Co., 21 SCRA
863].cralaw:red
And the remedy of
a plaintiff declared non-suited
is to appeal from the order of dismissal the same being a final
resolution
of the case [Regalado, Remedial Law Compendium, 1988 Ed., p. 185].
Further,
if a motion for reconsideration had been filed by the plaintiff but was
denied, appeal lies from both orders [Ibid.]. And where appeal
is
the proper remedy, certiorari will not lie.cralaw:red
We are not
unaware of the fact that there is a
pending motion for reconsideration of this Court's Order dated January
11, 1995 denying respondent Bank's motion for contempt. However, We
find
no more need to resolve directly such motion as by this Resolution, the
temporary restraining order is lifted and the possession of the subject
property is thus to be restored to said respondent.cralaw:red
WHEREFORE,
finding no reversible error in the
questioned Resolution, the petition is hereby denied and the temporary
restraining order issued by this Court lifted. Costs against
petitioners.cralaw:red
SO ORDERED.cralaw:red
Narvasa, C.J.,
Davide, Jr., Melo and Francisco,
JJ., concur.cralaw:red
__________________________________
Endnote
[1]
First Division composed of Justice Minerva P. Gonzaga-Reyes, Ponente;
and
JJ. Santiago M. Kapunan and Eduardo G. Montenegro. |