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G.R. No. L-15813           December 29, 1960
GERMAN DE ORTUBE vs. JUSTINIANO T. ASUNCION, ET AL. -->

EN BANC

G.R. No. L-15813           December 29, 1960

GERMAN DE ORTUBE, Plaintiff-Appellee, vs. JUSTINIANO T. ASUNCION, and JACOBO R. ASUNCION, Defendants-Appellants.

K. Digno M. Asuncion for appellants.
Agustin Frivaldo for appellee.

BENGZON, J.:

The defendants appealed to the Court of Appeals from the judgment of Sorsogon court of first instance requiring them to pay the plaintiff the sum of P4,700.00 with interest at 12% plus costs. However, as the case disclosed no factual questions, it was forwarded to this Court.chanroblesvirtualawlibrary chanrobles virtual law library

It appears that in October 1957, German de Ortube filed his complaint to recover, from the defendants, a debt of P4,700.00 evidenced by a promissory note payable on or before November 7, 1956, with interest as stated. The complaint copied the note, and alleged non-payment notwithstanding repeated demands.chanroblesvirtualawlibrary chanrobles virtual law library

The answer admitted the due execution of the note, but asserted that defendants "have paid on their obligation certain amounts, probably in full, and they will ascertain from their records the amounts of such payments."chanrobles virtual law library

The hearing of the case was set for June 6, 1958. But on June 5, 1958, defendant Justiniano Asuncion sent a telegram to the court for postponement on the ground of sickness of his counsel, and promising submission of the medical certificate later. On the same date, he sent a similar telegram to his opponent's attorney.chanroblesvirtualawlibrary chanrobles virtual law library

On June 6, 1958, neither the defendants nor their counsel appeared in court. On the same day, the judge rendered the following decision:

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Del testimonio del demandante y del Exhibito A se desprende que el 7 Noviembre de 1955, los demandados otorgaron y suscribieron mancomunada y solidariamente un pagare por la suma de P4,700.00, con interes de doce por ciento (12%) anual y pagaderos al plazo de un ano desde la fecha del pagare. No existe ninguna duda sobre la autenticidad y debido otorgamiento de dichopagare puesto que en la contestacion de los demandados esta admitido expresamente tal hecho. Segun el demandante, apesar de haber vencido el 7 de Noviembre de 1956, el pago no se ha verificado hasta el presente. Hetratado de notificar a los demandados, pero las dos cartas certificadas que a este efecto se les han remitido, han sido devueltas por no haber sidorecogidas.chanroblesvirtualawlibrary chanrobles virtual law library

Habiendose probado los hechos alegados en la demanda.chanroblesvirtualawlibrary chanrobles virtual law library

POR LA PRESENTE, se dicta sentencia condenando a los demandados a pagar. . . .

On June 12, 1958, defendants filed the medical certificate of illness which their telegram had promised to submit. And on July 8, 1958, they moved for the setting aside of the decision, copy of which they had received on June 12, 1958, reiterating the illness of their counsel and asserting a "good defense." Their motion was supported by an affidavit of Justiniano Asuncion, the material portion of which said "defendants have a good defense and the result of the case would probably be substantially changed if they were allowed to present evidence, primary and secondary, of certain payments made by them both on the interest and the principal obligation mentioned in the complaint." As the court denied the motion, defendants appealed claiming error in the denial of their motion to postpone and of their set-aside petition.chanroblesvirtualawlibrary chanrobles virtual law library

The matter of affording relief from the failure of the party or his counsel to appear at the trial is largely discretionary with the judge. It should not be interfered with unless abuse is patent on the record.chanroblesvirtualawlibrary chanrobles virtual law library

In the case now before us, we note: first, the motion for postponement was not under oath nor supported by a medical certificate; secondly, it was signed by only one defendant; third, on the day appointed, none of defendants appeared to ratify under oath, the contents of the telegram; fourth, according to plaintiff, this was the second postponement on the ground of illness requested by defendants; fifth, and most important, the affidavit of merit supporting the merit for new trial did not specify the payments made, i.e., the amounts and dates thereof, although defendants had more than six months to "ascertain from their records" as they had announced in their answer. ¹ Even in their brief here, defendants make no specification.chanroblesvirtualawlibrary chanrobles virtual law library

Considering the admitted genuineness of the promissory note and the existence of the debt, the defendant's maneuvers smack of mere delay.chanroblesvirtualawlibrary chanrobles virtual law library

Judgment affirmed, with costs against appellant. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Paras, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David, and Paredes, JJ., concur. chanrobles virtual law library

Endnotes:

1 This is vital, for obviously, if defendants had made two five-peso payments, Justiniano would not have falsified the affidavit; but the matter would not be sufficient cause to re-open the court proceedings.