Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
11.) G.R. No. L-35113 March 25, 1975
EUGENIO CUARESMA, petitioner,
vs.
MARCELO DAQUIS, PHHC, CESAR NAVARRO, NICANOR GUEVARRA, Sheriff of Quezon City
or his Deputy and JUDGE PACIFICO P. DE CASTRO, respondents. ATTORNEY MACARIO O.
DIRECTO, respondent.
RESOLUTION

FERNANDO, J.:

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The predicament in which respondent Macario O. Directo, a member of the Philippine bar, now finds
himself is one of his own making. In a petition for certiorari filed with this Court on behalf of one
Eugenio Cuaresma, he included the following categorical allegations: "4. That your petitioner has no
knowledge of the existence of said case (Civil Case No. 12176, CFI of Rizal, Quezon City Branch)
aforecited between the respondents Marcelo Daquis, PHHC, and Cesar Navarro, and wherein the
respondent Judge, [gave] due course to the complaint, and the subject matter in litigation; 5. That on
May 26, 1972, the respondent Judge issued an order of demolition, ordering the respondent Sheriff
of Quezon City or his deputy to demolish the house of your petitioner etc., and on the same day May
26, 1972, the Sheriff of Quezon City through his deputy [gave] three (3) days to your petitioner to
remove his house or face demolition, ... ;6 ... 7. That your petitioner was not given a day in court to
present his side of the case, in violation of law, and of the dictum of due process of the
constitution, ... " 1 Thereafter, after receipt of the comments of respondents, it turned out, as set forth in a
resolution of this Court of August 4, 1972, "that petitioner was fully aware of the existence of said civil
case because on December 14, 1971 Atty. Macario Directo, as counsel of petitioner, addressed to
respondent Marcelo Daquis a letter which indicates that both counsel and petitioner were aware of the
existence of the case. It also appears that, before respondents Marcelo Daquis and Cesar Navarro filed a
motion for a writ of Possession in Civil Case No. Q-12176, petitioner Eugenio Cuaresma, along with the
other occupants of the lot in question, was given thirty (30) days notice to vacate the premises which
period was even extended for another thirty (30) days, but that, despite that notice, petitioner Eugenio
Cuaresma refused to vacate the lot involved in the case. It further appears that on May 3, 1972, Atty.
Macario Directo, as counsel for petitioner, filed a motion for intervention in the aforementioned Civil Case
No. Q-12176; and on May 13, 1972, same counsel filed a motion to quash or recall the writ of execution,
and an opposition to the issuance of a writ of demolition. On May 22, 1972, respondent Judge Pacifico de
Castro issued an order denying the motion to intervene as well as the motion to quash or recall the writ of
execution." 2 It was then set forth in such resolution that there was no truth to the allegation that on May
27, 1972, the date of the filing of the petition for certiorari in the present case, petitioner had no
knowledge of the existence of Civil Case No. 12176.

Respondent Macario O. Directo was then given ten days to show cause why no disciplinary action
should be taken against him for deliberately making false allegations in such petition. Thereafter, on
August 16, 1972, came a pleading which he entitled Compliance. This is his explanation: "What your
petitioner honestly meant when he alleged that he [has] no knowledge of the existence of said Civil
Case No. 12176, CFI of Rizal, Quezon City Branch, was from the time the plaintiff Marcelo Daquis
instituted the said case in June 1968 up to and after the time the Court issued the decision in the
year 1970. The plaintiff Marcelo Daquis entered into a conditional contract of sale of the lot involved
in said Civil Case No. 12176 with the PHHC. There were four (4) purchasers, the plaintiff, two others,
and your petitioner. Because of the requirement of the PHHC that only one of them should enter into
the contract, Marcelo Daquis was chosen by the others to enter into the same. Since this was a sale
on installment basis, by agreement of all the purchasers, duly acknowledged by the PHHC, the
monthly dues of the petitioner and the two others, were remitted to Marcelo Daquis, who in turn
remits the same to the PHHC. In June 1968 plaintiff Marcelo Daquis instituted Civil Case No. 12176
in the CFI of Quezon City. From June 1968 up to the time and after the decision was issued by the
court, plaintiff Marcelo Daquis never informed your petitioner of the said case." 3 He reiterated in a
later paragraph that all he wanted to convey was that his knowledge of the aforesaid civil case came only
after the decision was issued. He closed his Compliance with the plea that if there were any mistake
committed, "it had been an honest one, and would say in all sincerity that there was no deliberate attempt
and intent on his part of misleading this Honorable Court, honestly and totally unaware of any false
allegation in the petition." 4
The above explanation lends itself to the suspicion that it was a mere afterthought. It could very well
be that after his attention was called to the misstatements in his petition, he decided on such a
version as a way out. That is more than a bare possibility. There is the assumption though of good
faith. That is in his favor. Moreover, judging from the awkwardly worded petition and even his
compliance quite indicative of either carelessness or lack of proficiency in the handling of the English
language, it is not unreasonable to assume that his deficiency in the mode of expression contributed
to the inaccuracy of his statements. While a mere disclaimer of intent certainly cannot exculpate him,
still, in the spirit of charity and forbearance, a penalty of reprimand would suffice. At least, it would
serve to impress on respondent that in the future he should be much more careful in the preparation
of his pleadings so that the least doubt as to his intellectual honesty cannot be entertained. Every
member of the bar should realize that candor in the dealings with the Court is of the very essence of
honorable membership in the profession.
WHEREFORE, Attorney Macario O. Directo is reprimanded. Let a copy of this resolution be spread
on his record.
Barredo, Antonio, Fernandez and Aquino, JJ., concur.

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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
12.) G.R. No. L-16745

December 17, 1966

AURORA CAMARA VDA. DE ZUBIRI, plaintiff-appellee,

vs.
WENCESLAO ZUBIRI alias BEN, ET AL., defendants.
WENCESLAO ZUBIRI alias BEN, defendant-appellant.
C. Jumapao for plaintiff and appellee.
L. E. Petilla and Napoleon Dejores for defendant and appellant.
REGALA, J.:
This is an appeal from the order of the Court of First Instance of Lanao del Norte in Civil Case No.
IL-219, dated September 15, 1959 denying the defendant-appellant's motion to postpone, and from
its order of the same date denying the latter's petition to set aside judgment.
On April 17, 1959, the plaintiff-appellee, Aurora Camara Vda. de Zubiri, filed with the Court of First
Instance of Lanao del Norte a complaint for the recovery of her alleged share in two commercial lots
situated in Iligan City against the herein defendant-appellant, Wenceslao Ben Zubiri, and the
Standard Vacuum Oil Co., the occupant of portions of the said properties. The plaintiff alleged that
the said lots were conjugal, having been purchased by her and her late husband during their
marriage, so that at least one-half of the same belonged to her "plus the equal share of the heir or
heirs of the decedent." Moreover, the plaintiff claimed that the said parcels were in the possession of
the defendant who, "unless he can prove before this Honorable Court that he is a duly recognized
natural child of the late Jesus Zubiri, [he] has no right, interest, and participation whatsoever over the
abovementioned two lots."
On May 5, 1959, four (4) pleadings were filed in the aforementioned case, namely: 1) the herein
appellant's answer which showed on its face that it was signed by the latter in his own behalf and
unassisted by counsel; 2) a Stipulation of Facts, signed by the plaintiff, assisted by counsel, and the
defendant, without such assistance; 3) a motion to render judgment on the pleadings, again signed
by the plaintiff, duly assisted by counsel, and the defendant-appellant herein, signing alone, without
benefit of counsel; and 4) the defendant Standard Vacuum Oil Company's answer to the above
complaint.
On May 6, 1959, the trial court rendered judgment in accordance with the aforementioned Stipulation
of Facts. Since in both the answer of the herein defendant-appellant and the stipulation of facts the
latter admitted practically all the allegations of the complaint, the decision rendered in accordance
therewith was actually in favor of the plaintiff.
On June 5, 1959, the defendant-appellant, for the first time thru counsel, filed with the trial court a
petition to set aside judgment upon two grounds, to wit: first, the three pleadings filed on May 5,
1959, namely: appellant's answer, the stipulation of facts and the motion to render judgment on the
pleadings were all prepared by the plaintiff's counsel and that he, the appellant, was made to sign all
of them when he was ill and, therefore, incapable of realizing the full consequences of the act; and,
second, that the plaintiff's cause of action was barred by a prior judgment. Under this latter ground,
the appellant represented that the properties claimed by the plaintiff had already been determined
and adjudicated to him in a previous decisions, under Special Proceedings No. IL-2 of the Court of
First Instance of Lanao del Norte, which has since become final. Attached to this petition to set aside
judgment were two affidavits of merit executed by the defendant-appellant himself and Vicente A.
Miranda, the Clerk of Court of the Court of First Instance of Cebu before whom the three pleadings
repudiated in the petition were subscribed. In the affidavit of Vicente A. Miranda, it was recited that
the said pleadings were sworn to before him "at the resident of the affiant [defendant-appellant] at F.

Ramos Street [Cebu City] because he was then sick and confined in bed and "suffering from fever,
with an ice cap on his head and profusely perspiring."
On June 12, 1959, the trial court required the plaintiff to answer the abovementioned petition to set
aside judgment within 15 days from receipt of the notice thereof and, thereafter, the said petition was
set for hearing on August 29, 1959.
On August 22, 1959, or a week before the scheduled hearing, the counsel for the defendantappellant filed with the trial court a motion to postpone the hearing set for the 29th on the ground that
he, the defendant's counsel, could not release himself from his current employment as to be free to
attend the said hearing. On August 29, 1959, however, the court denied the motion to postpone and
proceeded with the scheduled hearing despite the absence of the defendant's counsel and, after
hearing the plaintiff's argument, likewise denied the petition to set aside judgment. The subsequent
motion for reconsideration thereof having been denied too, the defendant-appellant interposed the
present appeal.
Although the allowance or denial of petitions for postponement and the setting aside of previous duly
issued orders rest principally upon the sound discretion of the magistrate to whom they are
addressed (Tell v. Tell, 48 Phil. 70; Macke v. Camps, 5 Phil. 185; Salva v. Palacio, et al., G.R. No. L4247, January 30, 1952), the exercise of this power, however, ought to be prudent and just. It should
always be predicated on the consideration that more than the mere convenience of the courts or of
the parties of the case, the ends of justice and fairness would be served thereby. In the case at bar,
this consideration seems to have been incompletely observed.
In the first place, the motion for postponement under consideration was the very first filed by the
counsel for the appellant. It was filed with the court a full week prior to the scheduled hearing, with
due and proper notice to the opposing party. Its ground was not unreasonable and hardly flimsy
since it is not denied that then, the counsel for the appellant was under some contractual
commitments from which he needed time to be release. Under these circumstances, it does seem
that the denial of the motion prevented rather than serve the ends of justice.
Secondly, the appellant's petition to set aside judgment, which was verified and duly supported by
two affidavits of merit, was grounded on very serious allegations, to wit: that it was the plaintiff's
counsel who prepared and induced the defendant to sign all the pleadings upon which the assailed
decision was based, including and particularly the said defendant's answer, that the dismissal of the
same, in the absence of the petitioner and without affording him the chance to be heard thereon,
indeed was incompatible with the exercise of sound judicial discretion. This Court is gravely
concerned with the truth of the above accusation something which, on account of the lower
court's precipitate dismissal of the appellant's petition to set aside judgment is now hidden and
undeterminable particularly because the very face, tenor, and form of the appellant's alleged
answer established a prima facie case, so to speak, for the petitioner. Thus, the said alleged answer
reads in full:
ANSWER
Comes now the defendant, Wenceslao Zubiri alias Ben in his own behalf, and to this
Honorable Court most respectfully states:
1. That the defendant admits the allegations contained in the complaint of the case.
2. That upon the request and suggestion of the defendant and with the conformity of the
plaintiff and her lawyer, both parties, plaintiff and defendant have agreed to settle the above

entitled case amicably and to submit a STIPULATION OF FACTS for the corresponding
decision, with the aim in view to finish this case as soon as possible, and to avoid troubles in
coming to Iligan City from Cebu City, losing precious time of this Hon. Court and
unnecessary expenses in the future.
Cebu City (for Iligan City) Philippines, May 2, 1959.
(SGD.)
Wenceslao
WENCESLAO
alias
defendant

(Ben)

Zubiri
ZUBIRI
Ben

A copy of this ANSWER was delivered personally to Atty. C. Jumapao, counsel for the
Plaintiff at Mango Avenue, 470, Cebu City, and another copy was served personally to
defendant Standard Vacuum Oil Company, Cebu City, this 2nd day of May, 1959.
(SGD.)
Wenceslao
WENCESLAO
alias Ben

(Ben)

Zubiri
ZUBIRI

A mere glance at the above-quoted two-paragraph Answer should have prompted the trial court to
wonder and inquire if the defendant was aware of what he was committing thereby. The admission in
paragraph 1 of the same was so total and unqualified a repudiation of the defendant's own interest
that indeed, especially as it was avowed in the said pleading that the defendant was unassisted by
counsel, the trial court should have insisted upon some assurance that the defendant was solely and
fully accountable therefor. After the defendant represented under oath that the plaintiff's counsel was
the principal author of the same, and the one who talked him into participating in it, the intervention
of the lower court became an absolute necessity.
To be sure, the active participation of a lawyer in one party's affairs relating to a pending case in
which the said lawyer is the counsel for the opposing party is brazenly unethical to say the least. The
Canons of Legal Ethics very explicitly declare that "it is unprofessional to represent conflicting
interests" (No. 6), and command that
A lawyer should not in any way communicate upon the subject of controversy with a party
represented by counsel; much less should he undertake to negotiate or compromise the
matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most
particularly to avoid everything that may tend to mislead a party not represented by counsel
and he should not undertake to advise him as to the law. (No. 9)
As we have already said in the case of Cantorne v. Ducusin, 57 Phil. 23, the simultaneous
representation by a lawyer of both parties to a suit constitutes malpractice which should be severely
condemned and the lawyer corrected by disciplinary action. If but for this consideration alone, the
court below should have allowed the motion for postponement pleaded by the appellant and heard
the merits of the latter's petition to set aside judgment.
Moreover, the affidavits of merit appended to the petition to set aside judgment recited that the
defendant-appellant was seriously sick at the time he was made to sign and swear to the above
three repudiated pleadings. To be sure, no less than the officer before whom the said pleadings were
subscribed and sworn to admitted that this verification was conducted at the appellant's residence in
Cebu where the latter was confined "suffering from fever, with an ice cap on his head and profusely
perspiring." Under the circumstances, therefore, the mental capacity of the appellant to responsibly

assent to commitments set forth in the same three pleadings became doubtful and the trial court
should have exerted its earnest efforts to resolve the doubt. Especially so when account is taken of
the fact that the subject matter of the suit was not just an insubstantial sum but properties allegedly
worth some P165,000.00.
Finally, one of the grounds invoked by the defendant-appellant in his petition to set aside judgment
was the alleged finality of a judicial decision in which the properties involved in the above complaint
were involved in Special Proceedings No. IL-2 of the Court of First Instance of Lanao and that the
decision in the said case declaring him as the sole heir of his deceased father, had since become
final. In brief, the appellant maintained that inasmuch as the plaintiff-appellee's claim under her
complaint was predicated upon her alleged right as an heir of the late Jesus Zubiri, the same was
barred by the aforesaid judgment which, to repeat, allegedly held that the defendant-appellant was
the sole and only heir of the same decedent.
By denying the appellant's petition to set aside judgment, therefore, the lower court failed to
determine the truth and validity of the aforementioned ground. And yet, if it was true that the
plaintiff's complaint was barred by a prior judgment then the order denying the petition to set aside
judgment in other words, maintaining the decision rendered upon the alleged stipulation of
another decision that was totally inconsistent and irreconcilable with what was held, and had
become final, under the decision in Special Proceedings No. IL-2, considering that in this latter case
it was held that only the herein appellant was entitled to participate in the decedent's estate while in
the decision upon the alleged stipulation of facts, the appellee as well was determined to be so
entitled to participate.
Of course, the appellee assails the proceedings under Special Proceedings No. IL-2 as void on the
ground of fraud. She claims that the herein appellant misrepresented in the said case that the late
Jesus Zubiri had no other heir save him even as he knew that she, the plaintiff-appellee, was
another such heir and that she was still living. This does not alter nor diminish the need for granting
the appellant's petition to set aside judgment, however, and hearing the plaintiff's complaint upon its
merits. The vice, if any, in Special Proceedings No. IL-2 may well be determined at such hearing.
IN VIEW OF ALL THE FOREGOING, the order of the court below denying the appellant's petition to
set aside judgment is hereby revoked and set aside. Let the said petition be granted and the plaintiffappellee's complaint under Civil Case No. IL-219 be heard or tried on its merits, after the herein
appellant shall have been allowed to file his answer or the necessary responsive pleading thereto.
No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and
Castro, JJ.,concur.

13.) G.R. No. L-21906

December 24, 1968

INOCENCIA DELUAO and FELIPE DELUAO plaintiffs-appellees,

vs.
NICANOR CASTEEL and JUAN DEPRA, defendants,
NICANOR CASTEEL, defendant-appellant.
Aportadera and Palabrica and Pelaez, Jalandoni and Jamir plaintiffs-appellees.
Ruiz Law Offices for defendant-appellant.

CASTRO, J.:
This is an appeal from the order of May 2, 1956, the decision of May 4, 1956 and the order of May
21, 1956, all of the Court of First Instance of Davao, in civil case 629. The basic action is for specific
performance, and damages resulting from an alleged breach of contract.
In 1940 Nicanor Casteel filed a fishpond application for a big tract of swampy land in the then Sitio of
Malalag (now the Municipality of Malalag), Municipality of Padada, Davao. No action was taken
thereon by the authorities concerned. During the Japanese occupation, he filed another fishpond
application for the same area, but because of the conditions then prevailing, it was not acted upon
either. On December 12, 1945 he filed a third fishpond application for the same area, which, after a
survey, was found to contain 178.76 hectares. Upon investigation conducted by a representative of
the Bureau of Forestry, it was discovered that the area applied for was still needed for firewood
production. Hence on May 13, 1946 this third application was disapproved.
Despite the said rejection, Casteel did not lose interest. He filed a motion for reconsideration. While
this motion was pending resolution, he was advised by the district forester of Davao City that no
further action would be taken on his motion, unless he filed a new application for the area
concerned. So he filed on May 27, 1947 his fishpond application 1717.
Meanwhile, several applications were submitted by other persons for portions of the area covered by
Casteel's application.
On May 20, 1946 Leoncio Aradillos filed his fishpond application 1202 covering 10 hectares of land
found inside the area applied for by Casteel; he was later granted fishpond permit F-289-C covering
9.3 hectares certified as available for fishpond purposes by the Bureau of Forestry.
Victor D. Carpio filed on August 8, 1946 his fishpond application 762 over a portion of the land
applied for by Casteel. Alejandro Cacam's fishpond application 1276, filed on December 26, 1946,
was given due course on December 9, 1947 with the issuance to him of fishpond permit F-539-C to
develop 30 hectares of land comprising a portion of the area applied for by Casteel, upon
certification of the Bureau of Forestry that the area was likewise available for fishpond purposes. On
November 17, 1948 Felipe Deluao filed his own fishpond application for the area covered by
Casteel's application.
Because of the threat poised upon his position by the above applicants who entered upon and
spread themselves within the area, Casteel realized the urgent necessity of expanding his
occupation thereof by constructing dikes and cultivating marketable fishes, in order to prevent old
and new squatters from usurping the land. But lacking financial resources at that time, he sought
financial aid from his uncle Felipe Deluao who then extended loans totalling more or less P27,000
with which to finance the needed improvements on the fishpond. Hence, a wide productive fishpond
was built.
Moreover, upon learning that portions of the area applied for by him were already occupied by rival
applicants, Casteel immediately filed the corresponding protests. Consequently, two administrative
cases ensued involving the area in question, to wit: DANR Case 353, entitled "Fp. Ap. No. 661 (now
Fp. A. No. 1717), Nicanor Casteel, applicant-appellant versus Fp. A. No. 763, Victorio D. Carpio,
applicant-appellant"; and DANR Case 353-B, entitled "Fp. A. No. 661 (now Fp. A. No. 1717), Nicanor
Casteel, applicant-protestant versus Fp. Permit No. 289-C, Leoncio Aradillos, Fp. Permit No. 539-C,
Alejandro Cacam, Permittees-Respondents."

However, despite the finding made in the investigation of the above administrative cases that
Casteel had already introduced improvements on portions of the area applied for by him in the form
of dikes, fishpond gates, clearings, etc., the Director of Fisheries nevertheless rejected Casteel's
application on October 25, 1949, required him to remove all the improvements which he had
introduced on the land, and ordered that the land be leased through public auction. Failing to secure
a favorable resolution of his motion for reconsideration of the Director's order, Casteel appealed to
the Secretary of Agriculture and Natural Resources.
In the interregnum, some more incidents occurred. To avoid repetition, they will be taken up in our
discussion of the appellant's third assignment of error.
On November 25, 1949 Inocencia Deluao (wife of Felipe Deluao) as party of the first part, and
Nicanor Casteel as party of the second part, executed a contract denominated a "contract of
service" the salient provisions of which are as follows:
That the Party of the First Part in consideration of the mutual covenants and agreements
made herein to the Party of the Second Part, hereby enter into a contract of service,
whereby the Party of the First Part hires and employs the Party of the Second Part on the
following terms and conditions, to wit:
That the Party of the First Part will finance as she has hereby financed the sum of TWENTY
SEVEN THOUSAND PESOS (P27,000.00), Philippine Currency, to the Party of the Second
Part who renders only his services for the construction and improvements of a fishpond at
Barrio Malalag, Municipality of Padada, Province of Davao, Philippines;
That the Party of the Second Part will be the Manager and sole buyer of all the produce of
the fish that will be produced from said fishpond;
That the Party of the First Part will be the administrator of the same she having financed the
construction and improvement of said fishpond;
That this contract was the result of a verbal agreement entered into between the Parties
sometime in the month of November, 1947, with all the above-mentioned conditions
enumerated; ...
On the same date the above contract was entered into, Inocencia Deluao executed a special power
of attorney in favor of Jesus Donesa, extending to the latter the authority "To represent me in the
administration of the fishpond at Malalag, Municipality of Padada, Province of Davao, Philippines,
which has been applied for fishpond permit by Nicanor Casteel, but rejected by the Bureau of
Fisheries, and to supervise, demand, receive, and collect the value of the fish that is being
periodically realized from it...."
On November 29, 1949 the Director of Fisheries rejected the application filed by Felipe Deluao on
November 17, 1948. Unfazed by this rejection, Deluao reiterated his claim over the same area in the
two administrative cases (DANR Cases 353 and 353-B) and asked for reinvestigation of the
application of Nicanor Casteel over the subject fishpond. However, by letter dated March 15, 1950
sent to the Secretary of Commerce and Agriculture and Natural Resources (now Secretary of
Agriculture and Natural Resources), Deluao withdrew his petition for reinvestigation.
On September 15, 1950 the Secretary of Agriculture and Natural Resources issued a decision in
DANR Case 353, the dispositive portion of which reads as follows:

In view of all the foregoing considerations, Fp. A. No. 661 (now Fp. A. No. 1717) of Nicanor
Casteel should be, as hereby it is, reinstated and given due course for the area indicated in
the sketch drawn at the back of the last page hereof; and Fp. A. No. 762 of Victorio D. Carpio
shall remain rejected.
On the same date, the same official issued a decision in DANR Case 353-B, the dispositive portion
stating as follows:
WHEREFORE, Fishpond Permit No. F-289-C of Leoncio Aradillos and Fishpond Permit No.
F-539-C of Alejandro Cacam, should be, as they are hereby cancelled and revoked; Nicanor
Casteel is required to pay the improvements introduced thereon by said permittees in
accordance with the terms and dispositions contained elsewhere in this decision....
Sometime in January 1951 Nicanor Casteel forbade Inocencia Deluao from further administering the
fishpond, and ejected the latter's representative (encargado), Jesus Donesa, from the premises.
Alleging violation of the contract of service (exhibit A) entered into between Inocencia Deluao and
Nicanor Casteel, Felipe Deluao and Inocencia Deluao on April 3, 1951 filed an action in the Court of
First Instance of Davao for specific performance and damages against Nicanor Casteel and Juan
Depra (who, they alleged, instigated Casteel to violate his contract), praying inter alia, (a) that
Casteel be ordered to respect and abide by the terms and conditions of said contract and that
Inocencia Deluao be allowed to continue administering the said fishpond and collecting the proceeds
from the sale of the fishes caught from time to time; and (b) that the defendants be ordered to pay
jointly and severally to plaintiffs the sum of P20,000 in damages.
On April 18, 1951 the plaintiffs filed an ex parte motion for the issuance of a preliminary injunction,
praying among other things, that during the pendency of the case and upon their filling the requisite
bond as may be fixed by the court, a preliminary injunction be issued to restrain Casteel from doing
the acts complained of, and that after trial the said injunction be made permanent. The lower court
on April 26, 1951 granted the motion, and, two days later, it issued a preliminary mandatory
injunction addressed to Casteel, the dispositive portion of which reads as follows:
POR EL PRESENTE, queda usted ordenado que, hasta nueva orden, usted, el demandado
y todos usu abogados, agentes, mandatarios y demas personas que obren en su ayuda,
desista de impedir a la demandante Inocencia R. Deluao que continue administrando
personalmente la pesqueria objeto de esta causa y que la misma continue recibiendo los
productos de la venta de los pescados provenientes de dicha pesqueria, y que, asimismo,
se prohibe a dicho demandado Nicanor Casteel a desahuciar mediante fuerza al encargado
de los demandantes llamado Jesus Donesa de la pesqueria objeto de la demanda de autos.
On May 10, 1951 Casteel filed a motion to dissolve the injunction, alleging among others, that he
was the owner, lawful applicant and occupant of the fishpond in question. This motion, opposed by
the plaintiffs on June 15, 1951, was denied by the lower court in its order of June 26, 1961.
The defendants on May 14, 1951 filed their answer with counterclaim, amended on January 8, 1952,
denying the material averments of the plaintiffs' complaint. A reply to the defendants' amended
answer was filed by the plaintiffs on January 31, 1952.
The defendant Juan Depra moved on May 22, 1951 to dismiss the complaint as to him. On June 4,
1951 the plaintiffs opposed his motion.

The defendants filed on October 3, 1951 a joint motion to dismiss on the ground that the plaintiffs'
complaint failed to state a claim upon which relief may be granted. The motion, opposed by the
plaintiffs on October 12, 1951, was denied for lack of merit by the lower court in its order of October
22, 1951. The defendants' motion for reconsideration filed on October 31, 1951 suffered the same
fate when it was likewise denied by the lower court in its order of November 12, 1951.
After the issues were joined, the case was set for trial. Then came a series of postponements. The
lower court (Branch I, presided by Judge Enrique A. Fernandez) finally issued on March 21, 1956 an
order in open court, reading as follows: .
Upon petition of plaintiffs, without any objection on the part of defendants, the hearing of this
case is hereby transferred to May 2 and 3, 1956 at 8:30 o'clock in the morning.
This case was filed on April 3, 1951 and under any circumstance this Court will not entertain
any other transfer of hearing of this case and if the parties will not be ready on that day set
for hearing, the court will take the necessary steps for the final determination of this case.
(emphasis supplied)
On April 25, 1956 the defendants' counsel received a notice of hearing dated April 21, 1956, issued
by the office of the Clerk of Court (thru the special deputy Clerk of Court) of the Court of First
Instance of Davao, setting the hearing of the case for May 2 and 3, 1956 before Judge Amador
Gomez of Branch II. The defendants, thru counsel, on April 26, 1956 filed a motion for
postponement. Acting on this motion, the lower court (Branch II, presided by Judge Gomez) issued
an order dated April 27, 1956, quoted as follows:
This is a motion for postponement of the hearing of this case set for May 2 and 3, 1956. The
motion is filed by the counsel for the defendants and has the conformity of the counsel for
the plaintiffs.
An examination of the records of this case shows that this case was initiated as early as April
1951 and that the same has been under advisement of the Honorable Enrique A. Fernandez,
Presiding Judge of Branch No. I, since September 24, 1953, and that various incidents have
already been considered and resolved by Judge Fernandez on various occasions. The last
order issued by Judge Fernandez on this case was issued on March 21, 1956, wherein he
definitely states that the Court will not entertain any further postponement of the hearing of
this case.
CONSIDERING ALL THE FOREGOING, the Court believes that the consideration and
termination of any incident referring to this case should be referred back to Branch I, so that
the same may be disposed of therein. (emphasis supplied)
A copy of the abovequoted order was served on the defendants' counsel on May 4, 1956.
On the scheduled date of hearing, that is, on May 2, 1956, the lower court (Branch I, with Judge
Fernandez presiding), when informed about the defendants' motion for postponement filed on April
26, 1956, issued an order reiterating its previous order handed down in open court on March 21,
1956 and directing the plaintiffs to introduce their evidence ex parte, there being no appearance on
the part of the defendants or their counsel. On the basis of the plaintiffs' evidence, a decision was
rendered on May 4, 1956 the dispositive portion of which reads as follows:

EN SU VIRTUD, el Juzgado dicta de decision a favor de los demandantes y en contra del

demandado Nicanor Casteel:
(a) Declara permanente el interdicto prohibitorio expedido contra el demandado;
(b) Ordena al demandado entregue la demandante la posesion y administracion de la mitad
() del "fishpond" en cuestion con todas las mejoras existentes dentro de la misma;
(c) Condena al demandado a pagar a la demandante la suma de P200.00 mensualmente en
concepto de danos a contar de la fecha de la expiracion de los 30 dias de la promulgacion
de esta decision hasta que entregue la posesion y administracion de la porcion del
"fishpond" en conflicto;
(d) Condena al demandado a pagar a la demandante la suma de P2,000.00 valor de los
pescado beneficiados, mas los intereses legales de la fecha de la incoacion de la demanda
de autos hasta el completo pago de la obligacion principal;
(e) Condena al demandado a pagar a la demandante la suma de P2,000.00, por gastos
incurridos por aquella durante la pendencia de esta causa;
(f) Condena al demandado a pagar a la demandante, en concepto de honorarios, la suma
de P2,000.00;
(g) Ordena el sobreseimiento de esta demanda, por insuficiencia de pruebas, en tanto en
cuanto se refiere al demandado Juan Depra;
(h) Ordena el sobreseimiento de la reconvencion de los demandados por falta de pruebas;
(i) Con las costas contra del demandado, Casteel.
The defendant Casteel filed a petition for relief from the foregoing decision, alleging, inter alia, lack
of knowledge of the order of the court a quo setting the case for trial. The petition, however, was
denied by the lower court in its order of May 21, 1956, the pertinent portion of which reads as
follows:
The duty of Atty. Ruiz, was not to inquire from the Clerk of Court whether the trial of this case
has been transferred or not, but to inquire from the presiding Judge, particularly because his
motion asking the transfer of this case was not set for hearing and was not also acted upon.
Atty. Ruiz knows the nature of the order of this Court dated March 21, 1956, which reads as
follows:
Upon petition of the plaintiff without any objection on the part of the defendants, the
hearing of this case is hereby transferred to May 2 and 3, 1956, at 8:30 o'clock in the
morning.
This case was filed on April 3, 1951, and under any circumstance this Court will not
entertain any other transfer of the hearing of this case, and if the parties will not be
ready on the day set for hearing, the Court will take necessary steps for the final
disposition of this case.

In view of the order above-quoted, the Court will not accede to any transfer of this case and
the duty of Atty. Ruiz is no other than to be present in the Sala of this Court and to call the
attention of the same to the existence of his motion for transfer.
Petition for relief from judgment filed by Atty. Ruiz in behalf of the defendant, not well taken,
the same is hereby denied.
Dissatisfied with the said ruling, Casteel appealed to the Court of Appeals which certified the case to
us for final determination on the ground that it involves only questions of law.
Casteel raises the following issues:
(1) Whether the lower court committed gross abuse of discretion when it ordered reception of
the appellees' evidence in the absence of the appellant at the trial on May 2, 1956, thus
depriving the appellant of his day in court and of his property without due process of law;
(2) Whether the lower court committed grave abuse of discretion when it denied the verified
petition for relief from judgment filed by the appellant on May 11, 1956 in accordance with
Rule 38, Rules of Court; and
(3) Whether the lower court erred in ordering the issuance ex parte of a writ of preliminary
injunction against defendant-appellant, and in not dismissing appellees' complaint.
1. The first and second issues must be resolved against the appellant.
The record indisputably shows that in the order given in open court on March 21, 1956, the lower
court set the case for hearing on May 2 and 3, 1956 at 8:30 o'clock in the morning and empathically
stated that, since the case had been pending since April 3, 1951, it would not entertain any further
motion for transfer of the scheduled hearing.
An order given in open court is presumed received by the parties on the very date and time of
promulgation,1 and amounts to a legal notification for all legal purposes. 2 The order of March 21,
1956, given in open court, was a valid notice to the parties, and the notice of hearing dated April 21,
1956 or one month thereafter, was a superfluity. Moreover, as between the order of March 21, 1956,
duly promulgated by the lower court, thru Judge Fernandez, and the notice of hearing signed by a
"special deputy clerk of court" setting the hearing in another branch of the same court, the former's
order was the one legally binding. This is because the incidents of postponements and adjournments
are controlled by the court and not by the clerk of court, pursuant to section 4, Rule 31 (now sec. 3,
Rule 22) of the Rules of Court.
Much less had the clerk of court the authority to interfere with the order of the court or to transfer the
cage from one sala to another without authority or order from the court where the case originated
and was being tried. He had neither the duty nor prerogative to re-assign the trial of the case to a
different branch of the same court. His duty as such clerk of court, in so far as the incident in
question was concerned, was simply to prepare the trial calendar. And this duty devolved upon the
clerk of court and not upon the "special deputy clerk of court" who purportedly signed the notice of
hearing.
It is of no moment that the motion for postponement had the conformity of the appellees' counsel.
The postponement of hearings does not depend upon agreement of the parties, but upon the court's
discretion.3

The record further discloses that Casteel was represented by a total of 12 lawyers, none of whom
had ever withdrawn as counsel. Notice to Atty. Ruiz of the order dated March 21, 1956 intransferably
setting the case for hearing for May 2 and 3, 1956, was sufficient notice to all the appellant's eleven
other counsel of record. This is a well-settled rule in our jurisdiction.4
It was the duty of Atty. Ruiz, or of the other lawyers of record, not excluding the appellant himself, to
appear before Judge Fernandez on the scheduled dates of hearing Parties and their lawyers have
no right to presume that their motions for postponement will be granted. 5 For indeed, the appellant
and his 12 lawyers cannot pretend ignorance of the recorded fact that since September 24, 1953
until the trial held on May 2, 1956, the case was under the advisement of Judge Fernandez who
presided over Branch I. There was, therefore, no necessity to "re-assign" the same to Branch II
because Judge Fernandez had exclusive control of said case, unless he was legally inhibited to try
the case and he was not.
There is truth in the appellant's contention that it is the duty of the clerk of court not of the Court
to prepare the trial calendar. But the assignment or reassignment of cases already pending in one
sala to another sala, and the setting of the date of trial after the trial calendar has been prepared, fall
within the exclusive control of the presiding judge.
The appellant does not deny the appellees' claim that on May 2 and 3, 1956, the office of the clerk of
court of the Court of First Instance of Davao was located directly below Branch I. If the appellant and
his counsel had exercised due diligence, there was no impediment to their going upstairs to the
second storey of the Court of First Instance building in Davao on May 2, 1956 and checking if the
case was scheduled for hearing in the said sala. The appellant after all admits that on May 2, 1956
his counsel went to the office of the clerk of court.
The appellant's statement that parties as a matter of right are entitled to notice of trial, is correct. But
he was properly accorded this right. He was notified in open court on March 21, 1956 that the case
was definitely and intransferably set for hearing on May 2 and 3, 1956 before Branch I. He cannot
argue that, pursuant to the doctrine in Siochi vs. Tirona,6 his counsel was entitled to a timely notice
of the denial of his motion for postponement. In the cited case the motion for postponement was the
first one filed by the defendant; in the case at bar, there had already been a series of
postponements. Unlike the case at bar, the Siochi case was not intransferably set for hearing.
Finally, whereas the cited case did not spend for a long time, the case at bar was only finally and
intransferably set for hearing on March 21, 1956 after almost five years had elapsed from the
filing of the complaint on April 3, 1951.
The pretension of the appellant and his 12 counsel of record that they lacked ample time to prepare
for trial is unacceptable because between March 21, 1956 and May 2, 1956, they had one month
and ten days to do so. In effect, the appellant had waived his right to appear at the trial and therefore
he cannot be heard to complain that he has been deprived of his property without due process of
law.7 Verily, the constitutional requirements of due process have been fulfilled in this case: the lower
court is a competent court; it lawfully acquired jurisdiction over the person of the defendant
(appellant) and the subject matter of the action; the defendant (appellant) was given an opportunity
to be heard; and judgment was rendered upon lawful hearing.8
2. Finally, the appellant contends that the lower court incurred an error in ordering the issuance ex
parte of a writ of preliminary injunction against him, and in not dismissing the appellee's complaint.
We find this contention meritorious.

Apparently, the court a quo relied on exhibit A the so-called "contract of service" and the
appellees' contention that it created a contract of co-ownership and partnership between Inocencia
Deluao and the appellant over the fishpond in question.
Too well-settled to require any citation of authority is the rule that everyone is conclusively presumed
to know the law. It must be assumed, conformably to such rule, that the parties entered into the socalled "contract of service" cognizant of the mandatory and prohibitory laws governing the filing of
applications for fishpond permits. And since they were aware of the said laws, it must likewise be
assumed in fairness to the parties that they did not intend to violate them. This view must
perforce negate the appellees' allegation that exhibit A created a contract of co-ownership between
the parties over the disputed fishpond. Were we to admit the establishment of a co-ownership
violative of the prohibitory laws which will hereafter be discussed, we shall be compelled to declare
altogether the nullity of the contract. This would certainly not serve the cause of equity and justice,
considering that rights and obligations have already arisen between the parties. We shall therefore
construe the contract as one of partnership, divided into two parts namely, a contract of
partnership to exploit the fishpond pending its award to either Felipe Deluao or Nicanor Casteel, and
a contract of partnership to divide the fishpond between them after such award. The first is valid, the
second illegal.
It is well to note that when the appellee Inocencia Deluao and the appellant entered into the socalled "contract of service" on November 25, 1949, there were two pending applications over the
fishpond. One was Casteel's which was appealed by him to the Secretary of Agriculture and Natural
Resources after it was disallowed by the Director of Fisheries on October 25, 1949. The other was
Felipe Deluao's application over the same area which was likewise rejected by the Director of
Fisheries on November 29, 1949, refiled by Deluao and later on withdrawn by him by letter dated
March 15, 1950 to the Secretary of Agriculture and Natural Resources. Clearly, although the
fishpond was then in the possession of Casteel, neither he nor, Felipe Deluao was the holder of a
fishpond permit over the area. But be that as it may, they were not however precluded from
exploiting the fishpond pending resolution of Casteel's appeal or the approval of Deluao's application
over the same area whichever event happened first. No law, rule or regulation prohibited them
from doing so. Thus, rather than let the fishpond remain idle they cultivated it.
The evidence preponderates in favor of the view that the initial intention of the parties was not to
form a co-ownership but to establish a partnership Inocencia Deluao as capitalist partner and
Casteel as industrial partner the ultimate undertaking of which was to divide into two equal parts
such portion of the fishpond as might have been developed by the amount extended by the plaintiffsappellees, with the further provision that Casteel should reimburse the expenses incurred by the
appellees over one-half of the fishpond that would pertain to him. This can be gleaned, among
others, from the letter of Casteel to Felipe Deluao on November 15, 1949, which states, inter alia:
... [W]ith respect to your allowing me to use your money, same will redound to your benefit
because you are the ones interested in half of the work we have done so far, besides I did
not insist on our being partners in my fishpond permit, but it was you "Tatay" Eping the one
who wanted that we be partners and it so happened that we became partners because I am
poor, but in the midst of my poverty it never occurred to me to be unfair to you. Therefore so
that each of us may be secured, let us have a document prepared to the effect that we are
partners in the fishpond that we caused to be made here in Balasinon, but it does not mean
that you will treat me as one of your "Bantay" (caretaker) on wage basis but not earning
wages at all, while the truth is that we are partners. In the event that you are not amenable to
my proposition and consider me as "Bantay" (caretaker) instead, do not blame me if I
withdraw all my cases and be left without even a little and you likewise.
(emphasis supplied)9

Pursuant to the foregoing suggestion of the appellant that a document be drawn evidencing their
partnership, the appellee Inocencia Deluao and the appellant executed exhibit A which, although
denominated a "contract of service," was actually the memorandum of their partnership agreement.
That it was not a contract of the services of the appellant, was admitted by the appellees themselves
in their letter10 to Casteel dated December 19, 1949 wherein they stated that they did not employ him
in his (Casteel's) claim but because he used their money in developing and improving the fishpond,
his right must be divided between them. Of course, although exhibit A did not specify any wage or
share appertaining to the appellant as industrial partner, he was so entitled this being one of the
conditions he specified for the execution of the document of partnership. 11
Further exchanges of letters between the parties reveal the continuing intent to divide the fishpond.
In a letter,12dated March 24, 1950, the appellant suggested that they divide the fishpond and the
remaining capital, and offered to pay the Deluaos a yearly installment of P3,000 presumably as
reimbursement for the expenses of the appellees for the development and improvement of the onehalf that would pertain to the appellant. Two days later, the appellee Felipe Deluao
replied,13expressing his concurrence in the appellant's suggestion and advising the latter to ask for a
reconsideration of the order of the Director of Fisheries disapproving his (appellant's) application, so
that if a favorable decision was secured, then they would divide the area.
Apparently relying on the partnership agreement, the appellee Felipe Deluao saw no further need to
maintain his petition for the reinvestigation of Casteel's application. Thus by letter 14 dated March 15,
1950 addressed to the Secretary of Agriculture and Natural Resources, he withdrew his petition on
the alleged ground that he was no longer interested in the area, but stated however that he wanted
his interest to be protected and his capital to be reimbursed by the highest bidder.
The arrangement under the so-called "contract of service" continued until the decisions both dated
September 15, 1950 were issued by the Secretary of Agriculture and Natural Resources in DANR
Cases 353 and 353-B. This development, by itself, brought about the dissolution of the partnership.
Moreover, subsequent events likewise reveal the intent of both parties to terminate the partnership
because each refused to share the fishpond with the other.
Art. 1830(3) of the Civil Code enumerates, as one of the causes for the dissolution of a partnership,
"... any event which makes it unlawful for the business of the partnership to be carried on or for the
members to carry it on in partnership." The approval of the appellant's fishpond application by the
decisions in DANR Cases 353 and 353-B brought to the fore several provisions of law which made
the continuation of the partnership unlawful and therefore caused its ipso facto dissolution.
Act 4003, known as the Fisheries Act, prohibits the holder of a fishpond permit (the permittee) from
transferring or subletting the fishpond granted to him, without the previous consent or approval of the
Secretary of Agriculture and Natural Resources. 15 To the same effect is Condition No. 3 of the
fishpond permit which states that "The permittee shall not transfer or sublet all or any area herein
granted or any rights acquired therein without the previous consent and approval of this Office."
Parenthetically, we must observe that in DANR Case 353-B, the permit granted to one of the parties
therein, Leoncio Aradillos, was cancelled not solely for the reason that his permit covered a portion
of the area included in the appellant's prior fishpond application, but also because, upon
investigation, it was ascertained thru the admission of Aradillos himself that due to lack of capital, he
allowed one Lino Estepa to develop with the latter's capital the area covered by his fishpond permit
F-289-C with the understanding that he (Aradillos) would be given a share in the produce thereof. 16
Sec. 40 of Commonwealth Act 141, otherwise known as the Public Land Act, likewise provides that

The lessee shall not assign, encumber, or sublet his rights without the consent of the
Secretary of Agriculture and Commerce, and the violation of this condition shall avoid the
contract; Provided, That assignment, encumbrance, or subletting for purposes of speculation
shall not be permitted in any case:Provided, further, That nothing contained in this section
shall be understood or construed to permit the assignment, encumbrance, or subletting of
lands leased under this Act, or under any previous Act, to persons, corporations, or
associations which under this Act, are not authorized to lease public lands.
Finally, section 37 of Administrative Order No. 14 of the Secretary of Agriculture and Natural
Resources issued in August 1937, prohibits a transfer or sublease unless first approved by the
Director of Lands and under such terms and conditions as he may prescribe. Thus, it states:
When a transfer or sub-lease of area and improvement may be allowed. If the permittee
or lessee had, unless otherwise specifically provided, held the permit or lease and actually
operated and made improvements on the area for at least one year, he/she may request
permission to sub-lease or transfer the area and improvements under certain conditions.
(a) Transfer subject to approval. A sub-lease or transfer shall only be valid when first
approved by the Director under such terms and conditions as may be prescribed, otherwise
it shall be null and void. A transfer not previously approved or reported shall be considered
sufficient cause for the cancellation of the permit or lease and forfeiture of the bond and for
granting the area to a qualified applicant or bidder, as provided in subsection (r) of Sec. 33 of
this Order.
Since the partnership had for its object the division into two equal parts of the fishpond between the
appellees and the appellant after it shall have been awarded to the latter, and therefore it envisaged
the unauthorized transfer of one-half thereof to parties other than the applicant Casteel, it was
dissolved by the approval of his application and the award to him of the fishpond. The approval was
an event which made it unlawful for the business of the partnership to be carried on or for the
members to carry it on in partnership.
The appellees, however, argue that in approving the appellant's application, the Secretary of
Agriculture and Natural Resources likewise recognized and/or confirmed their property right to onehalf of the fishpond by virtue of the contract of service, exhibit A. But the untenability of this argument
would readily surface if one were to consider that the Secretary of Agriculture and Natural Resources
did not do so for the simple reason that he does not possess the authority to violate the
aforementioned prohibitory laws nor to exempt anyone from their operation.
However, assuming in gratia argumenti that the approval of Casteel's application, coupled with the
foregoing prohibitory laws, was not enough to cause the dissolution ipso facto of their partnership,
succeeding events reveal the intent of both parties to terminate the partnership by refusing to share
the fishpond with the other.
On December 27, 1950 Casteel wrote 17 the appellee Inocencia Deluao, expressing his desire to
divide the fishpond so that he could administer his own share, such division to be subject to the
approval of the Secretary of Agriculture and Natural Resources. By letter dated December 29,
1950,18 the appellee Felipe Deluao demurred to Casteel's proposition because there were allegedly
no appropriate grounds to support the same and, moreover, the conflict over the fishpond had not
been finally resolved.
The appellant wrote on January 4, 1951 a last letter 19 to the appellee Felipe Deluao wherein the
former expressed his determination to administer the fishpond himself because the decision of the

Government was in his favor and the only reason why administration had been granted to the
Deluaos was because he was indebted to them. In the same letter, the appellant forbade Felipe
Deluao from sending the couple's encargado, Jesus Donesa, to the fishpond. In reply thereto, Felipe
Deluao wrote a letter20 dated January 5, 1951 in which he reiterated his refusal to grant the
administration of the fishpond to the appellant, stating as a ground his belief "that only the competent
agencies of the government are in a better position to render any equitable arrangement relative to
the present case; hence, any action we may privately take may not meet the procedure of legal
order."
Inasmuch as the erstwhile partners articulated in the aforecited letters their respective resolutions
not to share the fishpond with each other in direct violation of the undertaking for which they have
established their partnership each must be deemed to have expressly withdrawn from the
partnership, thereby causing its dissolution pursuant to art. 1830(2) of the Civil Code which
provides, inter alia, that dissolution is caused "by the express will of any partner at any time."
In this jurisdiction, the Secretary of Agriculture and Natural Resources possesses executive and
administrative powers with regard to the survey, classification, lease, sale or any other form of
concession or disposition and management of the lands of the public domain, and, more specifically,
with regard to the grant or withholding of licenses, permits, leases and contracts over portions of the
public domain to be utilized as fishponds.21, Thus, we held in Pajo, et al. vs. Ago, et al. (L-15414,
June 30, 1960), and reiterated in Ganitano vs. Secretary of Agriculture and Natural Resources, et al.
(L-21167, March 31, 1966), that
... [T]he powers granted to the Secretary of Agriculture and Commerce (Natural Resources)
by law regarding the disposition of public lands such as granting of licenses, permits, leases,
and contracts, or approving, rejecting, reinstating, or cancelling applications, or deciding
conflicting applications, are all executive and administrative in nature. It is a well-recognized
principle that purely administrative and discretionary functions may not be interfered with by
the courts (Coloso v. Board of Accountancy, G.R. No. L-5750, April 20, 1953). In general,
courts have no supervising power over the proceedings and action of the administrative
departments of the government. This is generally true with respect to acts involving the
exercise of judgment or discretion, and findings of fact. (54 Am. Jur. 558-559) Findings of fact
by an administrative board or official, following a hearing, are binding upon the courts and
will not be disturbed except where the board or official has gone beyond his statutory
authority, exercised unconstitutional powers or clearly acted arbitrarily and without regard to
his duty or with grave abuse of discretion... (emphasis supplied)
In the case at bar, the Secretary of Agriculture and Natural Resources gave due course to the
appellant's fishpond application 1717 and awarded to him the possession of the area in question. In
view of the finality of the Secretary's decision in DANR Cases 353 and 353-B, and considering the
absence of any proof that the said official exceeded his statutory authority, exercised unconstitutional
powers, or acted with arbitrariness and in disregard of his duty, or with grave abuse of discretion, we
can do no less than respect and maintain unfettered his official acts in the premises. It is a salutary
rule that the judicial department should not dictate to the executive department what to do with
regard to the administration and disposition of the public domain which the law has entrusted to its
care and administration. Indeed, courts cannot superimpose their discretion on that of the land
department and compel the latter to do an act which involves the exercise of judgment and
discretion.22
Therefore, with the view that we take of this case, and even assuming that the injunction was
properly issued because present all the requisite grounds for its issuance, its continuation, and,
worse, its declaration as permanent, was improper in the face of the knowledge later acquired by the

lower court that it was the appellant's application over the fishpond which was given due course.
After the Secretary of Agriculture and Natural Resources approved the appellant's application, he
became to all intents and purposes the legal permittee of the area with the corresponding right to
possess, occupy and enjoy the same. Consequently, the lower court erred in issuing the preliminary
mandatory injunction. We cannot overemphasize that an injunction should not be granted to take
property out of the possession and control of one party and place it in the hands of another whose
title has not been clearly established by law.23
However, pursuant to our holding that there was a partnership between the parties for the
exploitation of the fishpond before it was awarded to Casteel, this case should be remanded to the
lower court for the reception of evidence relative to an accounting from November 25, 1949 to
September 15, 1950, in order for the court to determine (a) the profits realized by the partnership, (b)
the share (in the profits) of Casteel as industrial partner, (e) the share (in the profits) of Deluao as
capitalist partner, and (d) whether the amounts totalling about P27,000 advanced by Deluao to
Casteel for the development and improvement of the fishpond have already been liquidated.
Besides, since the appellee Inocencia Deluao continued in possession and enjoyment of the
fishpond even after it was awarded to Casteel, she did so no longer in the concept of a capitalist
partner but merely as creditor of the appellant, and therefore, she must likewise submit in the lower
court an accounting of the proceeds of the sales of all the fishes harvested from the fishpond from
September 16, 1950 until Casteel shall have been finally given the possession and enjoyment of the
same. In the event that the appellee Deluao has received more than her lawful credit of P27,000 (or
whatever amounts have been advanced to Casteel), plus 6% interest thereon per annum, then she
should reimburse the excess to the appellant.
ACCORDINGLY, the judgment of the lower court is set aside. Another judgment is hereby rendered:
(1) dissolving the injunction issued against the appellant, (2) placing the latter back in possession of
the fishpond in litigation, and (3) remanding this case to the court of origin for the reception of
evidence relative to the accounting that the parties must perforce render in the premises, at the
termination of which the court shall render judgment accordingly. The appellant's counterclaim is
dismissed. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Fernando and Capistrano,
JJ., concur.

14.) G.R. No. 118655

April 12, 2000G.R. No.

HEIRS OF ELIAS LORILLA, Namely: FE, ELIAS, JR. and SERVANDO, ALL SURNAMED
LORILLA, petitioners,
vs.
COURT OF APPEALS, COMMERCIAL CREDIT CORPORATION, HON. FRANCISCO
VILLANUEVA and SHERIFF HONORIO P. SANTOS, respondents.
QUISUMBING, J.:

This petition for review assails the decision 1 of the Court of Appeals promulgated on November 29,
1994, which dismissed the petition for annulment of the judgment rendered on April 5, 1989, by the
Regional Trial Court, Branch 58, of Makati in Civil Case No. 5262. 2 The motion to reconsider the
decision of the Court of Appeals was denied by said Court in a Resolution promulgated on January
11, 1995. 3
The antecedent facts of this case as found by the Court of Appeals are as follows:
(1) On September 10, 1983, private respondent Commercial Credit Corporation (now known
as Pentacapital Finance Corporation and hereinafter referred to as PENCAPITAL) filed a
complaint with the Regional Trial Court of Makati, Metro Manila, (hereinafter referred to as
the Makati Court) for a sum of money against Sanyu Machineries Agencies, Inc., Sanyu
Chemical Corporation, and several other defendants, among whom was Elias Lorilla, (now
deceased) who had acted as sureties for the two corporate debtors. The complaint was
docketed as Civil Case No. 5262 and was assigned by raffle to Branch 58 of said court.
(2) PENCAPITAL sought for, and obtained from the Makati Court, a writ of attachment on the
real property of defendant Elias L. Lorilla covered by Transfer Certificate of Title No. 298986,
and which levy was duly annotated on the certificate of title concerned.
(3) Defendant Elias Lorilla, together with four other individual defendants, was initially
represented by one Atty. Danny Tablizo, but who later on withdrew his appearance and was
substituted by another lawyer, Atty. Alfredo Concepcion.
(4) During the pendency of Civil Case No. 5262, Elias L. Lorilla executed a dacion en
pago over the property attached in favor of the Joint Resources Management Development
Corporation (hereinafter referred to as JRMDC) by reason of which Transfer Certificate of
Title No. 298986 in the name of Elias L. Lorilla was cancelled and replaced by Transfer
Certificate of Title No. 114067 in the name of JRMDC. But the levy caused to be made by
PENCAPITAL over the property was carried over to the new certificate of title.
(5) On June 9, 1986, JRMDC filed suit against PENCAPITAL for the cancellation of the
latter's levy on the property in question with the Regional Trial Court of Pasig, Metro Manila
(hereinafter referred to as the Pasig Court), which was docketed therein as Civil Case No.
63757 and assigned by raffle to its Branch 153.
(6) On April 5, 1989, the Makati Court, after due hearing, rendered judgment in Civil Case
No. 5262 in favor of PENCAPITAL and against the defendants therein, including Elias L.
Lorilla. The dispositive portion of said judgment reads:
WHEREFORE, premises considered, judgment is rendered in favor of plaintiff and
against defendants who are hereby ordered to pay to plaintiff, jointly and severally,
and solidarily the total principal amount of P421,596.28 plus interest at 12% per
annum and a penalty of 3% per month of default from the time it became due on July
1, 1981 until fully paid, and 20% of the entire amount due as attorney's fees, plus the
costs.
SO ORDERED.

(7) Despite receipt of a copy of the aforesaid decision by Alfredo Concepcion, then counsel
of record of defendant Elias L. Lorilla, no appeal whatsoever was interposed from said
judgment by said lawyer in behalf of defendant Lorilla.
(8) On March 3, 1993, upon motion of PENCAPITAL, the Makati Court issued a writ of
execution in Civil Case No. 5262 and PENCAPITAL thereafter proceeded against the
property covered by TCT No. 298986 in the name of defendant Lorilla.
(9) On May 26, 1993 the Pasig Court rendered decision in its Civil Case No. 53757
dismissing JRMDC's complaint for the cancellation of the levy on attachment on the Lorilla
property, ruling that the dacion en pago executed by defendant Lorilla in favor of JRMDC
cannot prevail over the prior writ of attachment duly annotated on the property in favor of
PENCAPITAL. No appeal from the decision in Civil Case No. 53757 having been made by
JRMDC, the same became final and executory (Annex "15", Reply Memorandum of
PENCAPITAL).
(10) On September 15, 1993 petitioners herein as heirs of Elias L. Lorilla, filed a motion in
Civil Case No. 5262 to quash the writ of execution issued by the Makati Court, arguing that
since defendant Elias L. Lorilla passed away on January 15, 1988, or one year and three
months before the Makati Court rendered decision in Civil Case No. 5262 on April 5, 1989,
the case should have been dismissed insofar as Elias L. Lorilla is concerned, in keeping with
Section 21, Rule 3 of the Rules of Court which provides:
Sec. 21. Where claim does not survive. When the action is for recovery of money,
debt, or interest therein, and the defendant dies before final judgment in the Court of
First Instance, it shall be dismissed to be presented in the manner especially
provided in these rules.
(11) On February 8, 1994, the Makati Court, through its Acting Presiding Judge, the
Honorable Francisco Donato Villanueva, denied the motion to quash said writ of execution,
ruling that the judgment in Civil Case No. 5256 having become final, it is now beyond its
authority to amend it by dismissing the same insofar as defendant Elias L. Lorilla is
concerned, and that the suggested remedy, if at all, is a petition for its annulment. Petitioners
moved to reconsider the denial of their motion to quash the writ of execution, but the Makati
Court stood pat on its ruling, hence, petitioners' recourse to this Court for annulment of
judgment. 4
Petitioners, thus, filed with the Court of Appeals a Petition for Annulment of Judgment, Writ of
Execution, and/or Levy on Execution with Preliminary Injunction and Restraining Order to annul or
enjoin enforcement of the judgment dated April 5, 1989 of the Makati Court in Civil Case No. 5262.
In its decision promulgated on November 29, 1994, the Court of Appeals resolved to deny the
petition, hence petitioners' present recourse to this Court. They assign the following errors:
I
THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN NOT
ANNULLING THE DECISION OF THE TRIAL COURT, DATED 5 APRIL 1989, INSOFAR AS
DECEASED DEFENDANT ELIAS LORILLA IS CONCERNED, THEREBY VIOLATION (sic)
PETITIONERS RIGHT TO DUE PROCESS OF LAW.
II

THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN VIOLATING

SECTION 21, RULE 3, AND SECTIONS 5 AND 7, RULE 86 OF THE REVISED RULES OF
COURT.
III
THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING
PETITIONERS THEIR CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW. 5
In our view, the main issue for resolution now is whether the respondent appellate court erred and
gravely abused its discretion in denying petitioners' action for annulment of judgment of the RTC of
Makati, Branch 58, concerning the deceased defendant Elias Lorilla. Pertinently, we have to
consider whether Section 21 of Rule 3 and Sections 5 and 7 of Rule 86 of the Revised Rules of
Court are applicable in the present case. Similarly, we have to inquire whether petitioners, heirs of
Elias Lorilla, were deprived of their right to due process of law.
Petitioners argue that the cause of action of private respondent Commercial Credit Corp. (now
known as Pentacapital Finance Corp. and hereinafter referred to as PENTACAPITAL) did not survive
for being in violation of Section 21 of Rule 3 of the Revised Rules of Court. They claim that under
this rule, the trial court lost jurisdiction over the person of Elias Lorilla when he died, and
consequently the action against him should have been dismissed.
Sec. 21 of Rule 3 states:
Sec. 21. Where claim does not survive. Where the action is for recovery of money, debt or
interest thereon, and the defendant dies before final judgment in the Court of First Instance,
it shall be dismissed to be prosecuted in the manner especially provided in these rules.
Sec. 21 of Rule 3 provides that upon the defendant's death, the action "shall be dismissed to be
presented in the manner especially provided in these rules." Petitioners argue that this manner is
provided for in Sections 5 and 7 of Rule 86 of the Revised Rules of Court. 6 As contemplated in
Section 21 of Rule 3, the action has to be dismissed without prejudice to the plaintiff thereafter
presenting his claim as a money claim in the settlement of the estate of the deceased
defendant. 7 The claim becomes a mere incident in the testamentary or intestate proceedings of the
deceased where the whole matter may be fully terminated jointly with the settlement and distribution
of the estate. 8
In the present case, however, the records do not show if any notice of death was filed by Atty.
Alfredo Concepcion, counsel of record of Elias Lorilla in Civil Case No. 5262 before the Makati
Court. Thus, neither the Makati Court nor PENTACAPITAL were made aware of the death of Elias
Lorilla. The trial court could not be expected to know or take judicial notice of the death of Lorilla,
absent such notice. Neither could the petitioners have been made aware of the trial court's judgment
adverse to their father, for all notices and orders of the court were sent to Lorilla's counsel of record,
who did not bother to inform the parties concerned of Elias Lorilla's death. Apparently, Lorilla's
counsel failed in his duty to promptly inform the court of the death of his client, as the Rules require. 9
As far as the Makati Court was concerned, until the Writ of Execution was issued and the levy
thereof on August 5, 1993, Lorilla continued to be represented by counsel of record, Atty.
Concepcion; and that upon service of a copy of the decision on said counsel at the latter's address,
Lorilla was deemed to have been validly served notice of the judgment. 10 The failure of Atty.
Concepcion to serve notice on the court and the adverse parties regarding his client's death binds

herein petitioners as much as the client himself could be so bound. Jurisprudence teems with
pronouncements that a client is bound by the conduct, negligence and mistakes of his counsel. 11
In this case, petitioners claim that their right to due process was violated when the Court of Appeals
did not annul the decision of the Makati Court dated April 5, 1989. They claim that as heirs of Elias
Lorilla, they would be deprived of their lawful inheritance without due process, as they were not
parties to the case where the adverse decision against their father was rendered. Said judgment,
they posit, cannot be enforced against them because the court had not acquired jurisdiction over
them, nor over the estate of Elias Lorilla.
True, a judgment may be annulled for want of jurisdiction or lack of due process of law. 12 But while
petitioners were not properly substituted for Elias Lorilla as defendants, absent any notice of his
death, it could not be said that petitioners were deprived of due process of law, for as far as the trial
court was concerned, they were not parties to the case. To rule otherwise would be, in fact, a more
obvious and grievous transgression of due process.
Moreover in this case, we find that the property which petitioners claim as their lawful inheritance,
was no longer part of the estate of Elias Lorilla at the time of his death. For Elias Lorilla had earlier
executed a dacion en pagoover this property in favor of the Joint Resources Management
Development Corporation (JRMDC). By reason thereof, Lorilla's transfer certificate of title was
cancelled, and a new one was issued in favor of JRMDC. 13 The levy of PENTACAPITAL annotated
on Lorilla's certificate of title was carried over onto the title of JRMDC. Elias Lorilla's payment of his
obligation to JRMDC being one of dation in payment, it is governed by the law on sales. 14The
subject property was validly transferred to JRMDC already. Hence petitioners could not claim that
they were deprived of their lawful inheritance without due process of law.
1wphi1

Sec. 21 of Rule 3 of the Revised Rules of Court sets out the procedure that should be followed after
the death of the defendant in a case. If he died "before final judgment in the Court of First Instance,"
the action should be dismissed without prejudice to the plaintiff presenting his claim in the settlement
of the estate of the deceased in accordance with and as required by Section 5 of Rule 86 of the
Revised Rules of Court. 15 Here, however, the property in question had already been taken out of the
estate of Elias Lorilla, even before judgment in Civil Case No. 5262 was rendered, and it was
transferred to JRMDC by virtue of the dacion en pago executed by Elias Lorilla. For this reason,
Section 5 of Rule 86 loses its pertinence to the case at bar.
Likewise, Section 7 of Rule 39 of the Revised Rules of Court 16 will not apply to the present case. For
it speaks of a situation where a party dies after the entry of the judgment or order of the court. It
does not cover a situation where the court was reportedly informed of the death of a party only after
final judgment.
Since there was no timely appeal taken from the judgment of the Regional Trial Court of Makati
dated April 5, 1989, in Civil Case No. 5262, that judgment had properly become final and executory.
As well said by respondent appellate court, to adopt a view contrary would ". . . open the floodgates
to protracted and endless litigations, because all that counsel for defendant has to do, in an action
for recovery of money, in case said defendant dies before final judgment in a regional trial court, is to
conceal such death from the court and thereafter pretend to go through the motions of trial, and,
after judgment is rendered against his client, to question such judgment for being violative of Section
21, Rule 3 of the Rules of Court. Thus, counsel for such defendant could unduly delay the rendering
of a judgment against his client. It is a fundamental concept in any jural system, that even at the risk
of occasional errors, judgments of courts should become final at some definite time fixed by law.
Interest rei publicae ut finis sit litim." 17

We see no reason, in the interest of justice, to disturb, much less annul, the aforesaid judgment.
WHEREFORE, the assailed decision of the Court of Appeals promulgated on November 29, 1994
and its Resolution promulgated on January 11, 1995 are hereby AFFIRMED. Costs against
petitioners.
SO ORDERED.
Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
A.M. No. 405 May 31, 1971
15.) VALENTIN AVELINO, petitioner,
vs.
ATTY. PEDRO K. PALANA, respondent.
DIZON, J.:
In a verified complaint filed by Valentin Avelino against Atty. Pedro K. Palaa the latter was charged
with malpractice in connection with his professional conduct as the complainant's counsel in Civil
Case No. 2250 of the Court of First Instance of Leyte such malpractice having given rise to the
rendition of judgment against said complainant and his wife ordering them:
... to restore the ownership and possession of the property described under
paragraph 2 of the complaint to the plaintiffs herein; to demolish or transfer the house
they built in the land within a period of three months counted from the receipt of this
decision at the expiration of which, if they shall fail to remove the house from the land
in question, the plaintiffs shall be authorized to remove it at the expense of the
defendants; to pay the plaintiffs in the amount of (P300.00) three hundred pesos for
attorneys' fees; for damages, to pay the plaintiffs the amount of P1,800.00 which is
the estimated value of the produce of the land in question from 1951 up to the
present year which the plaintiffs failed to take advantage of due to their being
dispossessed of the aforementioned land; and, to pay the costs there being no
adequate evidence to support the claim for moral damages, no such damages are
adjudged.
Answering the complaint, the respondent admitted some of the allegations thereof and denied the
others, and, by way of affirmative defenses, alleged the following:
xxx xxx xxx

2. That the respondent was admitted a member of the Philippine Bar in 1939 which is
now a fifth of a century since his taking his oath as attorney and counselor-at-law;
was appointed to the Judiciary as Justice of the Peace Court of Palo, Province of
Leyte, in 1949, remaining as such until 1954 the date when he resigned to
continue his practice of law; in 1957, he (respondent) was again appointed as Justice
of the Peace Court, this time in his home town at Tolosa, Leyte; remaining as such
until he resigned in 1958 to accept the position as Assistant Administrative Officer in
the Office of the Speaker of the House of Representatives, Congress of the
Philippines. During all the years that he was actively practicing his noble profession,
he has never been nor will he in the future, be a renegade to this noble profession. In
his actuations as a Justice of the Peace Courts: first at Palo, Leyte then at Tolosa,
Leyte, his records are his eloquent proof of his being a missionary of justice;
3. That it is true that the respondent was engaged by the petitioner to be their
counsel in the case entitled "FERMIN NATIVIDAD, ET AL., versus VALENTIN
AVELINO, ET AL.," docketed as Civil Case No. 2250 of the Court of First Instance of
Leyte where the petitioner is one of the defendants;
4. That the respondent verbally advised the petitioner of the hearing of the
aforestated case on November 15, 1957, at 8:30 o'clock in the morning at least three
days before the scheduled hearing when the petitioners called on the respondent at
the latter's residence which the former were used to do as admitted by him in
paragraph 4 of the complaint as that is their understanding to enable them to confer;
5. That when the scheduled hearing of the aforecited case on November 15, 1957, at
8:30 o'clock in the morning arrived, the respondent failed to be present in court or
appear thereat because: "at about 3:00 o'clock in the morning of that day, I had a
severe stomach ache followed by constant moving of bowel and vomiting. As a
consequence I became very weak and I felt that I was about to die," as shown by a
medical certificate which is attached to the "motion for new trial" filed by the
respondent, hereto attached as an integral part hereof and marked as Annex "A";
6. That when the respondent received a copy of the decision in the Court of First
Instance of Leyte entitled "Fermin Natividad, et al., versus Valentin Avelino, et al., he
filed a "motion for new trial" already marked as Annex "A" hereof, wherein the
respondent explained his failure to appear on the date of the hearing of said case on
November 15, 1957, at 8:30 o'clock in the morning;
7. That on January 18, 1958, the herein respondent filed an "amended motion for
new trial" where, in addition to the reasons recited by him in his motion for new trial
he stated that:
... the evidence of the defendants in this case at bar consisting of
their adverse, continuous and peaceful possession of the property in
question for almost twenty years, payment of land taxes, fraud
committed in the part of the plaintiffs herein and estoppel in the part
of the plaintiffs are very strong; and that if the defendants are given
their day in court to present their evidence, the findings and
conclusions of the Honorable Court might be made in favor of the
herein defendants and adverse to the plaintiffs;

or another way of alleging that the defendants have a good and valid defense; said
"amended motion for new trial is hereto attached as Annex "B" and made an integral
part hereof;
8. That the failure of the defendants to appear in court when their case was set for
hearing on November 15, 1957, at 8:30 o'clock in the morning despite the verbal
notice to them by the herein respondent is not until the present known to herein
respondent;
9. That when the herein respondent was appointed Administrative Officer in the
Office of the Speaker of the House of Representatives, Congress of the Philippines,
sometime in March 1958, he already advised the petitioner to look for another lawyer
to represent him.
The issues having been thus joined, the case was referred to the Office of the Solicitor General for
investigation report and recommendation.
Upon the evidence presented by the parties the Solicitor General submitted his report, the portion of
which under the title "ANALYSIS" reads as follows:
From the foregoing facts, this Office finds the respondent guilty of negligence on the
following counts:
1. Atty. Palaa did not duly inform his client of the date of the trial scheduled for
November 15, 1957 when the evidence shows that he received notice of such
hearing on October 11, 1957.
2. The filing of the motion for new trial on January 7, 1958 was made out of time,
exactly 40 days after the decision was received on November 28, 1957. The delay in
the filing of the said motion remains unexplained in the record.
3. Atty. Palaa's 2nd motion for new trial, after the Court had afforded him all the
opportunity to plead his motion successfully, was denied by the lower court on the
ground that he failed to comply with an order of the court dated February 1, 1958.
While the said motion was duly filed on time, a previous order of the Court directed
the movant (Atty. Palaa to serve a copy of his amended motion to the other party
through counsel, but compliance therewith does not appear on the said motion) (Exh.
4).
The testimony of petitioner is not clear as to whether respondent was responsible in
hiring Atty. Aristedes de la Paz to take over the case after the decision had become
final. However, we allow such a doubt to be resolved in favor of the respondent's
claim that he suggested to his client that he contract Atty. De la Paz.
This Office believes that although petitioner had verified the petition for relief from
judgment dated March 18, 1958 filed by Atty. De la Paz, petitioner herein did not
exactly comprehend, due to his patent illiteracy, what he was signing in alleging
excusable negligence on the part of Atty. Palaa for failing to notify him and his corespondents in Civil Case No. 2250 of the date of the hearing. Furthermore, we are
fully aware of the practice that practicing attorneys usually prepare such petitions for
their clients to sign.

This Office however believes that the non-appearance of Atty. Palaa at the bearing
of November 15, 1957 has been satisfactorily explained by the verified medical
certificate. But we do not share the same view insofar as his negligence in failing to
notify his clients of the date of hearing is concerned."
On the basis of the findings contained in the above-quoted portion of his report, the Solicitor General
found the respondent "guilty of negligence in the performance of his duties as a member of the Bar"
and consequently recommended "that he be suspended from the practice of law for at least six
months."
Thereafter following the procedure provided by the Rules of Court in cases of the same nature, the
Office of the Solicitor General filed with this Court the corresponding complaint based on the findings
of fact contained in his report. In respondent's answer thereto he reproduced the defenses set forth
in his answer to the verified complaint, filed by the complainant.
Thereafter, We set the case for hearing but, instead of arguing the case orally, the respondent
submitted a written memorandum while the Office of the Solicitor General did not.
Upon consideration of the whole record, We find no sufficient justification to reverse the finding made
by the Office of the Solicitor General to the effect that respondent "did not duly inform his client of the
date of the trial scheduled for November 15, 1957" in spite of the fact that, according to the
evidence, he had received notice of such hearing four days before.
As regards respondent's failure to appear in court on the day set for the trial, We are inclined to
accept his claim that it was due to the fact that early in the morning of that date he had "a severe
stomach ache, followed by constant moving of bowel and vomiting and that as a consequence he
became very weak." But while this might be, to a certain extent, a good excuse for his nonappearance in court, it is obviously not sufficient to explain his failure to notify his clients in due time
of the date of the trial. Had he done so, his clients would probably have tried to contact him in due
time, and upon discovering that he was sick they would have either gone to court to ask for the
postponement of the trial, or they would have looked for another lawyer to represent them in court.
Then again We find no sufficient exculpatory evidence for respondent filing a motion for new trial
"out of time," exactly forty days after notice of the decision rendered by the court. Moreover, although
he was given an opportunity to file a second motion for new trial, it appears that the same was
denied by the court "on the ground that he had failed to comply with its previous order dated
February 1, 1958. In this connection, We reproduce hereunder the pertinent portion of the report
submitted by the Solicitor General:
xxx xxx xxx
The said decision was received by Atty. Palaa on November 28, 1957. This is
admitted by him in his second motion for new trial (Exh. 1) Atty. Palaa filed his
motion for new trial dated December 26, 1957 on January 7, 1958, 40 days after
receipt of judgment (Exh. C). The motion for new trial was opposed by the attorney
for the plaintiffs on the grounds: (1) that the motion for new trial is not the proper
remedy; (2) that the motion was not accompanied by affidavits or affidavits of merits
(Exh. E). An amended motion for new trial was subsequently filed dated January 18,
1958, attaching thereto an affidavit executed by Atty. Palaa (Exh. F). On the same
date, January 18, 1958, the Court of First Instance of Tacloban City ordered the
movant "to serve a copy of his amended motion, if he so desires to amend his
motion, to the other party through counsel, Atty. Fernando Suddrio not later than the

25th of January so that the latter may file a reply if he so desires." On February 1,
1958, another order was issued by the Court giving Atty. Palaa one week's time
within which to present another amended motion for new trial (Exh. H). A subsequent
amended motion for new trial was filed on February 8, 1958 (Exh. H). The said
motion for new trial was however denied on the same date for "not having complied
with the order of this court dated February 1, 1938" (Exh. J).
IN VIEW OF ALL THE FOREGOING, the respondent, as hereby found guilty as charged in the report
and complaint filed by the Solicitor General, and considering all the circumstances of the case, he is
hereby suspended from the practice of law for a period of three months from notice hereof.
Concepcion, Reyes, J.B.L., Makalintal, Zaldivar, Fernando, Teehankee, Villamor and Makasiar, JJ.,
concur.
Castro, Barredo, JJ., took no part.