It appears that on the day of promulgation of the trial court's decision, the law firm of Vivar, Lopez and Associates entered its appearance as counsel for petitioners.

On November 10, 1992, a motion to set aside the order of default of October 15, 1992 was filed by Atty. Arnel nadias, former counsel of petitioners to whom pre-trial notice was sent, resigned as petitioner Five Star's house counsel on September 30, 1992, and their law firm's services were engaged by petitioner much later and the records of the case were delivered to them only on October 28, 1992, or days after the pre-trial conference.

On November 18, 1991, petitioners also filed a motion for reconsideration of the court's decision.

In an order dated December 10, 1992, the trial court denied both motions to set aside the order of default an for reconsideration. ⁶

Petitioners appealed to the Court of Appeals.

On April 28, 1995, the Court of Appeals affirmed the decision of the trial court but added thereto an award of P50,000.00 for moral damages, as follows:

WHEREFORE, except as to the additional award of P50,000.00 as and for moral damages, the Decision of November 4, 1992 of the RTC-Kalookan City, Branch 129 in Civil Case No. C-15500, is hereby AFFIRMED. Costs against defendants Five Star Bus Co., Inc. and Carlos Salonga. ⁷

Before us, petitioners raise the following errors:

I

THE LOWER COURT ERRED IN DECLARING THE DEFENDANTS-APPELLANTS (PETITIONERS) HEREIN AS IN DEFAULT, ALLOWING EX-PARTE PRESENTATION OF EVIDENCE AND ORDERING PETITIONER TO PAY PLAINTIFFS (RESPONDENTS) COMPENSATORY DAMAGES ON THE SUM OF FIFTY THOUSAND PESOS (P50,000.00), ACTUAL DAMAGES (FUNERAL EXPENSES) IN THE AMOUNT OF TWELVE THOUSAND PESOS (P12,000.00) AND TO PAY PRIVATE RESPONDENTS' LAWYER THE SUM OF TEN THOUSAND PESOS (P10,000.00) AS ATTORNEY'S FEES, ARE ALL NULL AND VOID, BEING CONTRARY TO AND INCONSISTENT WITH THE RULES OF COURT, EXISTING JURISPRUDENCE ON THE MATTER, AND CONSTITUTIONAL PROVISION ON DUE PROCESS.

II

THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE REGIONAL TRIAL COURT, KALOOKAN CITY, BRANCH 129 AND GRANTING ADDITIONAL AWARD OF FIFTY THOUSAND PESOS (P50,000.00) AS AND FOR MORAL DAMAGES. ⁸

We find the petition partly meritorious.

We reject the petitioner's claim that the trial court erred in declaring them as in default for failure to appear at the pre-trial conference when they, as parties, were never notified thereof.

We have ingrained the rule that when the court schedules a case for pre-trial, notices must be served on the party separately from his counsel which may be made directly to both party and counsel. It is preferred, however, that service of such notice on a party be made through or care of his counsel at counsel's address "with the express imposition upon counsel of the obligation of notifying the party of the date, time and place of pre-trial conference." ⁹ It is the duty of counsel upon whom a pre-trial notice is served to see to it that his client receives such notice and attends the pre-trial, otherwise, he will be liable for grave administrative disciplinary action. ¹⁰

In the instant case, the notice of pre-trial was sent to the counsels of both parties with the express instruction that they notify their respective clients of the conference. Atty. Naidas received the notice on September 28, 1992, ¹¹ i.e., seventeen (17) days before the scheduled conference and two (2) days before his resignation as house counsel of petitioner Five Star. He had ample time to notify petitioners of the pre-trial conference.

Atty. Naidas may have already resigned on the day of the pre-trial, but as far as the trial court was concerned, he continued to be petitioners' counsel of record since no withdrawal of appearance had been filed by him. having duly notified them of the pre-trial, the trial court did not err in declaring petitioners as in default. They were bound by the negligence of their counsel.

We also hold that after declaring a party as in default or non-suited, the trial court is not duty-bound to receive evidence ex-parte on the very same day it issued the default or non-suit order. The hearing that petitioners failed to attend was a pre-trial; pre-trial and trial on the merits are usually held on separate days to enable the parties to prepare for trail. ¹² To be sure, petitioners have no cause to complain for it was to their advantage that the trial court scheduled the reception of respondents' evidence fifteen (15) days after its pre-trial date. The time gap gave them the opportunity to move for reconsideration of the default order before the presentation of respondents' evidence.

We also reject petitioners' argument that the trial court decided the case with undue haste simply because it promulgated its decision four (4) days after receiving respondents' evidence. The records show that the issues of the case were simple and the basic evidence consisted of the testimonies of two witnesses which were relatively short.

We agree, however, with petitioner's contention that the additional award of moral damages should not have granted by the Court of Appeals because private respondents did not appeal the decision of the trial court.

Fairness dictates that a party who has not appealed from a judgment of the trial court is bound by the terms of the judgment. We reiterate the rule that an appellee, who is not an appellant, may assign errors in his brief where his purpose is to maintain the judgment on other grounds, but he may not do so if his purpose is to have the judgment modified or reversed, in which case he must appeal. ¹³

IN VIEW THEREOF, the decision of the Court of Appeals in CA-G.R. CV No. 40969 is affirmed with the modification that the award of P50,000.00 for moral damages is deleted.

No cost.

SO ORDERED.