First Page 11 15 Cases Legal Ethics

7/24/2019 First Page 11 15 Cases Legal Ethics

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Republic of the Philippines

SUPREME COURT

Manila

SECOND DIVISION

11.) G.R. No. L-35113 March 25, 1975

EUGENIO CUARESMA, petitioner,

vs.

MARCELO DAUIS, P!!C, CESAR NA"ARRO, NICANOR GUE"ARRA, Sh#r$%% o% 'o( C$*

or h$+ D#&* a( UDGE PACI/ICO P. DE CASTRO, r#+o(#(+. ATTORNE0 MACARIO O.

DIRECTO, respondent.

R E S O ! " I O N

/ERNANDO, J.:+.wph!1

"he predica#ent in $hich respondent Macario O. Directo, a #e#ber of the Philippine bar, no$ finds

hi#self is one of his o$n #a%in&. In a petition for certiorari filed $ith this Court on behalf of one

Eu&enio Cuares#a, he included the follo$in& cate&orical alle&ations' (). "hat *our petitioner has no

%no$led&e of the e+istence of said case Civil Case No. --/0, C1I of Ri2al, 3ue2on Cit* 4ranch5

aforecited bet$een the respondents Marcelo Da6uis, P77C, and Cesar Navarro, and $herein the

respondent 8ud&e, 9&ave: due course to the co#plaint, and the sub;ect #atter in liti&ation< =. "hat on

Ma* 0, ->/, the respondent 8ud&e issued an order of de#olition, orderin& the respondent Sheriff

of 3ue2on Cit* or his deput* to de#olish the house of *our petitioner etc., and on the sa#e da* Ma*0, ->/, the Sheriff of 3ue2on Cit* throu&h his deput* 9&ave: three ?5 da*s to *our petitioner to

re#ove his house or face de#olition, ... /, (that petitioner $as full* a$are of the e+istence of said civil

case because on Dece#ber -), ->/- @tt*. Macario Directo, as counsel of petitioner, addressed to

respondent Marcelo Da6uis a letter $hich indicates that both counsel and petitioner $ere a$are of the

e+istence of the case. It also appears that, before respondents Marcelo Da6uis and Cesar Navarro filed a

#otion for a $rit of Possession in Civil Case No. 3A--/0, petitioner Eu&enio Cuares#a, alon& $ith the

other occupants of the lot in 6uestion, $as &iven thirt* ?B5 da*s notice to vacate the pre#ises $hich

period $as even e+tended for another thirt* ?B5 da*s, but that, despite that notice, petitioner Eu&enio

Cuares#a refused to vacate the lot involved in the case. It further appears that on Ma* ?, ->/, @tt*.

Macario Directo, as counsel for petitioner, filed a #otion for intervention in the afore#entioned Civil Case

No. 3A--/0< and on Ma* -?, ->/, sa#e counsel filed a #otion to 6uash or recall the $rit of e+ecution,

and an opposition to the issuance of a $rit of de#olition. On Ma* , ->/, respondent 8ud&e Pacifico de

Castro issued an order den*in& the #otion to intervene as $ell as the #otion to 6uash or recall the $rit of

e+ecution.(2It $as then set forth in such resolution that there $as no truth to the alle&ation that on Ma*

/, ->/, the date of the filin& of the petition for certiorari in the present case, petitioner had no

%no$led&e of the e+istence of Civil Case No. --/0.


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Respondent Macario O. Directo $as then &iven ten da*s to sho$ cause $h* no disciplinar* action

should be ta%en a&ainst hi# for deliberatel* #a%in& false alle&ations in such petition. "hereafter, on

@u&ust -0, ->/, ca#e a pleadin& $hich he entitled Co#pliance. "his is his e+planation' (hat *our

petitioner honestl* #eant $hen he alle&ed that he 9has: no %no$led&e of the e+istence of said Civil

Case No. --/0, C1I of Ri2al, 3ue2on Cit* 4ranch, $as fro# the ti#e the plaintiff Marcelo Da6uis

instituted the said case in 8une ->0 up to and after the ti#e the Court issued the decision in the*ear ->/B. "he plaintiff Marcelo Da6uis entered into a conditional contract of sale of the lot involved

in said Civil Case No. --/0 $ith the P77C. "here $ere four )5 purchasers, the plaintiff, t$o others,

and *our petitioner. 4ecause of the re6uire#ent of the P77C that onl* one of the# should enter into

the contract, Marcelo Da6uis $as chosen b* the others to enter into the sa#e. Since this $as a sale

on install#ent basis, b* a&ree#ent of all the purchasers, dul* ac%no$led&ed b* the P77C, the

#onthl* dues of the petitioner and the t$o others, $ere re#itted to Marcelo Da6uis, $ho in turn

re#its the sa#e to the P77C. In 8une ->0 plaintiff Marcelo Da6uis instituted Civil Case No. --/0

in the C1I of 3ue2on Cit*. 1ro# 8une ->0 up to the ti#e and after the decision $as issued b* the

court, plaintiff Marcelo Da6uis never infor#ed *our petitioner of the said case.( 37e reiterated in a

later para&raph that all he $anted to conve* $as that his %no$led&e of the aforesaid civil case ca#e onl*

after the decision $as issued. 7e closed his Co#pliance $ith the plea that if there $ere an* #ista%e

co##itted, (it had been an honest one, and $ould sa* in all sincerit* that there $as no deliberate atte#pt

and intent on his part of #isleadin& this 7onorable Court, honestl* and totall* una$are of an* false

alle&ation in the petition.(

"he above e+planation lends itself to the suspicion that it $as a #ere afterthou&ht. It could ver* $ell

be that after his attention $as called to the #isstate#ents in his petition, he decided on such a

version as a $a* out. "hat is #ore than a bare possibilit*. "here is the assu#ption thou&h of &ood

faith. "hat is in his favor. Moreover, ;ud&in& fro# the a$%$ardl* $orded petition and even his

co#pliance 6uite indicative of either carelessness or lac% of proficienc* in the handlin& of the En&lish

lan&ua&e, it is not unreasonable to assu#e that his deficienc* in the #ode of e+pression contributed

to the inaccurac* of his state#ents. hile a #ere disclai#er of intent certainl* cannot e+culpate hi#,

still, in the spirit of charit* and forbearance, a penalt* of repri#and $ould suffice. @t least, it $ould

serve to i#press on respondent that in the future he should be #uch #ore careful in the preparation

of his pleadin&s so that the least doubt as to his intellectual honest* cannot be entertained. Ever*

#e#ber of the bar should reali2e that candor in the dealin&s $ith the Court is of the ver* essence of

honorable #e#bership in the profession.

7ERE1ORE, @ttorne* Macario O. Directo is repri#anded. et a cop* of this resolution be spread

on his record.

Barredo, Antonio, Fernandez and Aquino, JJ., concur. 1wph1.t

Republic of the PhilippinesSUPREME COURT

Manila

EN 4@NC

12.) G.R. No. L-175 D#c#4#r 17, 19


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AURORA CAMARA "DA. DE U6IRI,plaintiffAappellee,vs.ENCESLAO U6IRI alias6EN, ET AL.,defendants.ENCES@O !4IRI alias 4EN, defendantAappellant.

C. Jumapao or plainti and appellee.

!. ". #etilla and $apoleon %e&ores or deendant and appellant.

REGALA, J.:

"his is an appeal fro# the order of the Court of 1irst Instance of anao del Norte in Civil Case No.IA->, dated Septe#ber -=, ->=> den*in& the defendantAappellantFs #otion to postpone, and fro#its order of the sa#e date den*in& the latterFs petition to set aside ;udent.

On @pril -/, ->=>, the plaintiffAappellee, @urora Ca#ara Vda. de ubiri, filed $ith the Court of 1irstInstance of anao del Norte a co#plaint for the recover* of her alle&ed share in t$o co##ercial lotssituated in Ili&an Cit* a&ainst the herein defendantAappellant, enceslao 4en ubiri, and theStandard Vacuu# Oil Co., the occupant of portions of the said properties. "he plaintiff alle&ed that

the said lots $ere con;u&al, havin& been purchased b* her and her late husband durin& their#arria&e, so that at least oneAhalf of the sa#e belon&ed to her (plus the e6ual share of the heir orheirs of the decedent.( Moreover, the plaintiff clai#ed that the said parcels $ere in the possession ofthe defendant $ho, (unless he can prove before this 7onorable Court that he is a dul* reco&ni2ednatural child of the late 8esus ubiri, 9he: has no ri&ht, interest, and participation $hatsoever over theabove#entioned t$o lots.(

On Ma* =, ->=>, four )5 pleadin&s $ere filed in the afore#entioned case, na#el*' -5 the hereinappellantFs ans$er $hich sho$ed on its face that it $as si&ned b* the latter in his o$n behalf andunassisted b* counsel< 5 a Stipulation of 1acts, si&ned b* the plaintiff, assisted b* counsel, and thedefendant, $ithout such assistance< ?5 a #otion to render ;udent on the pleadin&s, a&ain si&nedb* the plaintiff, dul* assisted b* counsel, and the defendantAappellant herein, si&nin& alone, $ithoutbenefit of counsel< and )5 the defendant Standard Vacuu# Oil Co#pan*Fs ans$er to the aboveco#plaint.

On Ma* 0, ->=>, the trial court rendered ;udent in accordance $ith the afore#entioned Stipulationof 1acts. Since in both the ans$er of the herein defendantAappellant and the stipulation of facts thelatter ad#itted practicall* all the alle&ations of the co#plaint, the decision rendered in accordancethere$ith $as actuall* in favor of the plaintiff.

On 8une =, ->=>, the defendantAappellant, for the first ti#e thru counsel, filed $ith the trial court apetition to set aside ;udent upon t$o &rounds, to $it' first, the three pleadin&s filed on Ma* =,->=>, na#el*' appellantFs ans$er, the stipulation of facts and the #otion to render ;udent on thepleadin&s $ere all prepared b* the plaintiffFs counsel and that he, the appellant, $as #ade to si&n allof the# $hen he $as ill and, therefore, incapable of reali2in& the full conse6uences of the act< and,

second, that the plaintiffFs cause of action $as barred b* a prior ;udent. !nder this latter &round,the appellant represented that the properties clai#ed b* the plaintiff had alread* been deter#inedand ad;udicated to hi# in a previous decisions, under Special Proceedin&s No. IA of the Court of1irst Instance of anao del Norte, $hich has since beco#e final. @ttached to this petition to set aside

;udent $ere t$o affidavits of #erit e+ecuted b* the defendantAappellant hi#self and Vicente @.Miranda, the Cler% of Court of the Court of 1irst Instance of Cebu before $ho# the three pleadin&srepudiated in the petition $ere subscribed. In the affidavit of Vicente @. Miranda, it $as recited thatthe said pleadin&s $ere s$orn to before hi# (at the resident of the affiant 9defendantAappellant: at 1.


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Ra#os Street 9Cebu Cit*: because he $as then sic% and confined in bed and (sufferin& fro# fever,$ith an ice cap on his head and profusel* perspirin&.(

On 8une -, ->=>, the trial court re6uired the plaintiff to ans$er the above#entioned petition to setaside ;udent $ithin -= da*s fro# receipt of the notice thereof and, thereafter, the said petition $asset for hearin& on @u&ust >, ->=>.

On @u&ust , ->=>, or a $ee% before the scheduled hearin&, the counsel for the defendantAappellant filed $ith the trial court a #otion to postpone the hearin& set for the >th on the &round thathe, the defendantFs counsel, could not release hi#self fro# his current e#plo*#ent as to be free toattend the said hearin&. On @u&ust >, ->=>, ho$ever, the court denied the #otion to postpone andproceeded $ith the scheduled hearin& despite the absence of the defendantFs counsel and, afterhearin& the plaintiffFs ar&u#ent, li%e$ise denied the petition to set aside ;udent. "he subse6uent#otion for reconsideration thereof havin& been denied too, the defendantAappellant interposed thepresent appeal.

@lthou&h the allo$ance or denial of petitions for postpone#ent and the settin& aside of previous dul*issued orders rest principall* upon the sound discretion of the #a&istrate to $ho# the* are

addressed "ell v. "ell, ) Phil. /B< Mac%e v. Ca#ps, = Phil. -=< Salva v. Palacio, et al., G.R. No. A))/, 8anuar* ?B, ->=5, the e+ercise of this po$er, ho$ever, ou&ht to be prudent and ;ust. It shouldal$a*s be predicated on the consideration that #ore than the #ere convenience of the courts or ofthe parties of the case, the ends of ;ustice and fairness $ould be served thereb*. In the case at bar,this consideration see#s to have been inco#pletel* observed.

In the first place, the #otion for postpone#ent under consideration $as the ver* first filed b* thecounsel for the appellant. It $as filed $ith the court a full $ee% prior to the scheduled hearin&, $ithdue and proper notice to the opposin& part*. Its &round $as not unreasonable and hardl* fli#s*since it is not denied that then, the counsel for the appellant $as under so#e contractualco##it#ents fro# $hich he needed ti#e to be release. !nder these circu#stances, it does see#that the denial of the #otion prevented rather than serve the ends of ;ustice.

Secondl*, the appellantFs petition to set aside ;udent, $hich $as verified and dul* supported b*t$o affidavits of #erit, $as &rounded on ver* serious alle&ations, to $it' that it $as the plaintiffFscounsel $ho prepared and induced the defendant to si&n all the pleadin&s upon $hich the assaileddecision $as based, includin& and particularl* the said defendantFs ans$er, that the dis#issal of thesa#e, in the absence of the petitioner and $ithout affordin& hi# the chance to be heard thereon,indeed $as inco#patible $ith the e+ercise of sound ;udicial discretion. "his Court is &ravel*concerned $ith the truth of the above accusation H so#ethin& $hich, on account of the lo$ercourtFs precipitate dis#issal of the appellantFs petition to set aside ;udent is no$ hidden andundeter#inable H particularl* because the ver* face, tenor, and for# of the appellantFs alle&edans$er established a pri#a facie case, so to spea%, for the petitioner. "hus, the said alle&ed ans$erreads in full'

@NSER

Co#es no$ the defendant, enceslao ubiri alias 4en in his o$n behalf, and to this7onorable Court #ost respectfull* states'

-. "hat the defendant ad#its the alle&ations contained in the co#plaint of the case.

. "hat upon the re6uest and su&&estion of the defendant and $ith the confor#it* of theplaintiff and her la$*er, both parties, plaintiff and defendant have a&reed to settle the above


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entitled case a#icabl* and to sub#it a S"IP!@"ION O1 1@C"S for the correspondin&decision, $ith the ai# in vie$ to finish this case as soon as possible, and to avoid troubles inco#in& to Ili&an Cit* fro# Cebu Cit*, losin& precious ti#e of this 7on. Court andunnecessar* e+penses in the future.

Cebu Cit* for Ili&an Cit*5 Philippines, Ma* , ->=>.

SGD.5 enceslao 4en5 ubiriENCES@O !4IRIalias 4endefendant

@ cop* of this @NSER $as delivered personall* to @tt*. C. 8u#apao, counsel for thePlaintiff at Man&o @venue, )/B, Cebu Cit*, and another cop* $as served personall* todefendant Standard Vacuu# Oil Co#pan*, Cebu Cit*, this nd da* of Ma*, ->=>.

SGD.5 enceslao 4en5 ubiriENCES@O !4IRI

alias 4en

@ #ere &lance at the aboveA6uoted t$oApara&raph @ns$er should have pro#pted the trial court to$onder and in6uire if the defendant $as a$are of $hat he $as co##ittin& thereb*. "he ad#ission inpara&raph - of the sa#e $as so total and un6ualified a repudiation of the defendantFs o$n interestthat indeed, especiall* as it $as avo$ed in the said pleadin& that the defendant $as unassisted b*counsel, the trial court should have insisted upon so#e assurance that the defendant $as solel* andfull* accountable therefor. @fter the defendant represented under oath that the plaintiffFs counsel $asthe principal author of the sa#e, and the one $ho tal%ed hi# into participatin& in it, the interventionof the lo$er court beca#e an absolute necessit*.

"o be sure, the active participation of a la$*er in one part*Fs affairs relatin& to a pendin& case in

$hich the said la$*er is the counsel for the opposin& part* is bra2enl* unethical to sa* the least. "heCanons of e&al Ethics ver* e+plicitl* declare that (it is unprofessional to represent conflictin&interests( No. 05, and co##and that H

@ la$*er should not in an* $a* co##unicate upon the sub;ect of controvers* $ith a part*represented b* counsel< #uch less should he underta%e to ne&otiate or co#pro#ise the#atter $ith hi#, but should deal onl* $ith his counsel. It is incu#bent upon the la$*er #ostparticularl* to avoid ever*thin& that #a* tend to #islead a part* not represented b* counseland he should not underta%e to advise hi# as to the la$. No. >5

@s $e have alread* said in the case of Cantorne '. %ucusin, =/ Phil. ?, the si#ultaneousrepresentation b* a la$*er of both parties to a suit constitutes #alpractice $hich should be severel*conde#ned and the la$*er corrected b* disciplinar* action. If but for this consideration alone, the

court belo$ should have allo$ed the #otion for postpone#ent pleaded b* the appellant and heardthe #erits of the latterFs petition to set aside ;udent.

Moreover, the affidavits of #erit appended to the petition to set aside ;udent recited that thedefendantAappellant $as seriousl* sic% at the ti#e he $as #ade to si&n and s$ear to the abovethree repudiated pleadin&s. "o be sure, no less than the officer before $ho# the said pleadin&s $eresubscribed and s$orn to ad#itted that this verification $as conducted at the appellantFs residence inCebu $here the latter $as confined (sufferin& fro# fever, $ith an ice cap on his head and profusel*perspirin&.( !nder the circu#stances, therefore, the #ental capacit* of the appellant to responsibl*


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assent to co##it#ents set forth in the sa#e three pleadin&s beca#e doubtful and the trial courtshould have e+erted its earnest efforts to resolve the doubt. Especiall* so $hen account is ta%en ofthe fact that the sub;ect #atter of the suit $as not ;ust an insubstantial su# but properties alle&edl*$orth so#e P-0=,BBB.BB.

1inall*, one of the &rounds invo%ed b* the defendantAappellant in his petition to set aside ;udent

$as the alle&ed finalit* of a ;udicial decision in $hich the properties involved in the above co#plaint$ere involved in Special Proceedin&s No. IA of the Court of 1irst Instance of anao and that thedecision in the said case declarin& hi# as the sole heir of his deceased father, had since beco#efinal. In brief, the appellant #aintained that inas#uch as the plaintiffAappelleeFs clai# under herco#plaint $as predicated upon her alle&ed ri&ht as an heir of the late 8esus ubiri, the sa#e $asbarred b* the aforesaid ;udent $hich, to repeat, alle&edl* held that the defendantAappellant $asthe sole and onl* heir of the sa#e decedent.

4* den*in& the appellantFs petition to set aside ;udent, therefore, the lo$er court failed todeter#ine the truth and validit* of the afore#entioned &round. @nd *et, if it $as true that theplaintiffFs co#plaint $as barred b* a prior ;udent then the order den*in& the petition to set aside

;udent H in other $ords, #aintainin& the decision rendered upon the alle&ed stipulation of

another decision that $as totall* inconsistent and irreconcilable $ith $hat $as held, and hadbeco#e final, under the decision in Special Proceedin&s No. IA, considerin& that in this latter caseit $as held that onl* the herein appellant $as entitled to participate in the decedentFs estate $hile inthe decision upon the alle&ed stipulation of facts, the appellee as $ell $as deter#ined to be soentitled to participate.

Of course, the appellee assails the proceedin&s under Special Proceedin&s No. IA as void on the&round of fraud. She clai#s that the herein appellant #isrepresented in the said case that the late8esus ubiri had no other heir save hi# even as he %ne$ that she, the plaintiffAappellee, $asanother such heir and that she $as still livin&. "his does not alter nor di#inish the need for &rantin&the appellantFs petition to set aside ;udent, ho$ever, and hearin& the plaintiffFs co#plaint upon its#erits. "he vice, if an*, in Special Proceedin&s No. IA #a* $ell be deter#ined at such hearin&.

IN VIE O1 @ "7E 1OREGOING, the order of the court belo$ den*in& the appellantFs petition toset aside ;udent is hereb* revo%ed and set aside. et the said petition be &ranted and the plaintiffAappelleeFs co#plaint under Civil Case No. IA-> be heard or tried on its #erits, after the hereinappellant shall have been allo$ed to file his ans$er or the necessar* responsive pleadin& thereto.No pronounce#ent as to costs.

Concepcion, C.J., (e)es, J.B.!., Barrera, %izon, *a+alintal, Benzon, J.#., -aldi'ar, anchez andCastro, JJ.,concur.

13.) G.R. No. L-2198 D#c#4#r 2, 19

INOCENCIA DELUAO a( /ELIPE DELUAOplaintiffsAappellees,vs.NICANOR CASTEEL a( UAN DEPRA,defendants,NICANOR CASTEEL,defendantAappellant.

Aportadera and #ala/rica and #elaez, Jalandoni and Jamir plaintis0appellees.(uiz !aw ices or deendant0appellant.


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CASTRO, J.:

"his is an appeal fro# the order of Ma* , ->=0, the decision of Ma* ), ->=0 and the order of Ma*-, ->=0, all of the Court of 1irst Instance of Davao, in civil case 0>. "he basic action is for specificperfor#ance, and da#a&es resultin& fro# an alle&ed breach of contract.

In ->)B Nicanor Casteel filed a fishpond application for a bi& tract of s$a#p* land in the then Sitio ofMalala& no$ the Municipalit* of Malala&5, Municipalit* of Padada, Davao. No action $as ta%enthereon b* the authorities concerned. Durin& the 8apanese occupation, he filed another fishpondapplication for the sa#e area, but because of the conditions then prevailin&, it $as not acted uponeither. On Dece#ber -, ->)= he filed a third fishpond application for the sa#e area, $hich, after asurve*, $as found to contain -/./0 hectares. !pon investi&ation conducted b* a representative ofthe 4ureau of 1orestr*, it $as discovered that the area applied for $as still needed for fire$oodproduction. 7ence on Ma* -?, ->)0 this third application $as disapproved.

Despite the said re;ection, Casteel did not lose interest. 7e filed a #otion for reconsideration. hilethis #otion $as pendin& resolution, he $as advised b* the district forester of Davao Cit* that nofurther action $ould be ta%en on his #otion, unless he filed a ne$ application for the area

concerned. So he filed on Ma* /, ->)/ his fishpond application -/-/.

Mean$hile, several applications $ere sub#itted b* other persons for portions of the area covered b*CasteelFs application.

On Ma* B, ->)0 eoncio @radillos filed his fishpond application -B coverin& -B hectares of landfound inside the area applied for b* Casteel< he $as later &ranted fishpond per#it 1A>AC coverin&>.? hectares certified as available for fishpond purposes b* the 4ureau of 1orestr*.

Victor D. Carpio filed on @u&ust , ->)0 his fishpond application /0 over a portion of the landapplied for b* Casteel. @le;andro Caca#Fs fishpond application -/0, filed on Dece#ber 0, ->)0,$as &iven due course on Dece#ber >, ->)/ $ith the issuance to hi# of fishpond per#it 1A=?>AC to

develop ?B hectares of land co#prisin& a portion of the area applied for b* Casteel, uponcertification of the 4ureau of 1orestr* that the area $as li%e$ise available for fishpond purposes. OnNove#ber -/, ->) 1elipe Deluao filed his o$n fishpond application for the area covered b*CasteelFs application.

4ecause of the threat poised upon his position b* the above applicants $ho entered upon andspread the#selves $ithin the area, Casteel reali2ed the ur&ent necessit* of e+pandin& hisoccupation thereof b* constructin& di%es and cultivatin& #ar%etable fishes, in order to prevent oldand ne$ s6uatters fro# usurpin& the land. 4ut lac%in& financial resources at that ti#e, he sou&htfinancial aid fro# his uncle 1elipe Deluao $ho then e+tended loans totallin& #ore or less P/,BBB$ith $hich to finance the needed i#prove#ents on the fishpond. 7ence, a $ide productive fishpond$as built.

Moreover, upon learnin& that portions of the area applied for b* hi# $ere alread* occupied b* rivalapplicants, Casteel i##ediatel* filed the correspondin& protests. Conse6uentl*, t$o ad#inistrativecases ensued involvin& the area in 6uestion, to $it' D@NR Case ?=?, entitled (1p. @p. No. 00- no$1p. @. No. -/-/5, Nicanor Casteel, applicantAappellant versus 1p. @. No. /0?, Victorio D. Carpio,applicantAappellant(< and D@NR Case ?=?A4, entitled (1p. @. No. 00- no$ 1p. @. No. -/-/5, NicanorCasteel, applicantAprotestant versus 1p. Per#it No. >AC, eoncio @radillos, 1p. Per#it No. =?>AC,

@le;andro Caca#, Per#itteesARespondents.(


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7o$ever, despite the findin& #ade in the investi&ation of the above ad#inistrative cases thatCasteel had alread* introduced i#prove#ents on portions of the area applied for b* hi# in the for#of di%es, fishpond &ates, clearin&s, etc., the Director of 1isheries nevertheless re;ected CasteelFsapplication on October =, ->)>, re6uired hi# to re#ove all the i#prove#ents $hich he hadintroduced on the land, and ordered that the land be leased throu&h public auction. 1ailin& to securea favorable resolution of his #otion for reconsideration of the DirectorFs order, Casteel appealed to

the Secretar* of @&riculture and Natural Resources.

In the interre&nu#, so#e #ore incidents occurred. "o avoid repetition, the* $ill be ta%en up in ourdiscussion of the appellantFs third assi&n#ent of error.

On Nove#ber =, ->)> Inocencia Deluao $ife of 1elipe Deluao5 as part* of the first part, andNicanor Casteel as part* of the second part, e+ecuted a contract H deno#inated a (contract ofservice( H the salient provisions of $hich are as follo$s'

"hat the Part* of the 1irst Part in consideration of the #utual covenants and a&ree#ents#ade herein to the Part* of the Second Part, hereb* enter into a contract of service,$hereb* the Part* of the 1irst Part hires and e#plo*s the Part* of the Second Part on the

follo$in& ter#s and conditions, to $it'

"hat the Part* of the 1irst Part $ill finance as she has hereb* financed the su# of "EN"SEVEN "7O!S@ND PESOS P/,BBB.BB5, Philippine Currenc*, to the Part* of the SecondPart $ho renders onl* his services for the construction and i#prove#ents of a fishpond at4arrio Malala&, Municipalit* of Padada, Province of Davao, Philippines, ->)> the Director of 1isheries re;ected the application filed b* 1elipe Deluao onNove#ber -/, ->). !nfa2ed b* this re;ection, Deluao reiterated his clai# over the sa#e area in thet$o ad#inistrative cases D@NR Cases ?=? and ?=?A45 and as%ed for reinvesti&ation of theapplication of Nicanor Casteel over the sub;ect fishpond. 7o$ever, b* letter dated March -=, ->=Bsent to the Secretar* of Co##erce and @&riculture and Natural Resources no$ Secretar* of

@&riculture and Natural Resources5, Deluao $ithdre$ his petition for reinvesti&ation.

On Septe#ber -=, ->=B the Secretar* of @&riculture and Natural Resources issued a decision inD@NR Case ?=?, the dispositive portion of $hich reads as follo$s'


9/27

In vie$ of all the fore&oin& considerations, 1p. @. No. 00- no$ 1p. @. No. -/-/5 of NicanorCasteel should be, as hereb* it is, reinstated and &iven due course for the area indicated inthe s%etch dra$n at the bac% of the last pa&e hereof< and 1p. @. No. /0 of Victorio D. Carpioshall re#ain re;ected.

On the sa#e date, the sa#e official issued a decision in D@NR Case ?=?A4, the dispositive portion

statin& as follo$s'

7ERE1ORE, 1ishpond Per#it No. 1A>AC of eoncio @radillos and 1ishpond Per#it No.1A=?>AC of @le;andro Caca#, should be, as the* are hereb* cancelled and revo%ed< NicanorCasteel is re6uired to pa* the i#prove#ents introduced thereon b* said per#ittees inaccordance $ith the ter#s and dispositions contained else$here in this decision....

So#eti#e in 8anuar* ->=- Nicanor Casteel forbade Inocencia Deluao fro# further ad#inisterin& thefishpond, and e;ected the latterFs representative encarado5, 8esus Donesa, fro# the pre#ises.

@lle&in& violation of the contract of service e+hibit @5 entered into bet$een Inocencia Deluao andNicanor Casteel, 1elipe Deluao and Inocencia Deluao on @pril ?, ->=- filed an action in the Court of

1irst Instance of Davao for specific perfor#ance and da#a&es a&ainst Nicanor Casteel and 8uanDepra $ho, the* alle&ed, insti&ated Casteel to violate his contract5, pra*in& inter alia, a5 thatCasteel be ordered to respect and abide b* the ter#s and conditions of said contract and thatInocencia Deluao be allo$ed to continue ad#inisterin& the said fishpond and collectin& the proceedsfro# the sale of the fishes cau&ht fro# ti#e to ti#e< and b5 that the defendants be ordered to pa*

;ointl* and severall* to plaintiffs the su# of PB,BBB in da#a&es.

On @pril -, ->=- the plaintiffs filed an e+ parte #otion for the issuance of a preli#inar* in;unction,pra*in& a#on& other thin&s, that durin& the pendenc* of the case and upon their fillin& the re6uisitebond as #a* be fi+ed b* the court, a preli#inar* in;unction be issued to restrain Casteel fro# doin&the acts co#plained of, and that after trial the said in;unction be #ade per#anent. "he lo$er courton @pril 0, ->=- &ranted the #otion, and, t$o da*s later, it issued a preli#inar* #andator*in;unction addressed to Casteel, the dispositive portion of $hich reads as follo$s'

POR E PRESEN"E, 6ueda usted ordenado 6ue, hasta nueva orden, usted, el de#andado* todos usu abo&ados, a&entes, #andatarios * de#as personas 6ue obren en su a*uda,desista de i#pedir a la de#andante Inocencia R. Deluao 6ue continue ad#inistrandopersonal#ente la pes6ueria ob;eto de esta causa * 6ue la #is#a continue recibiendo losproductos de la venta de los pescados provenientes de dicha pes6ueria, * 6ue, asi#is#o,se prohibe a dicho de#andado Nicanor Casteel a desahuciar #ediante fuer2a al encar&adode los de#andantes lla#ado 8esus Donesa de la pes6ueria ob;eto de la de#anda de autos.

On Ma* -B, ->=- Casteel filed a #otion to dissolve the in;unction, alle&in& a#on& others, that he$as the o$ner, la$ful applicant and occupant of the fishpond in 6uestion. "his #otion, opposed b*the plaintiffs on 8une -=, ->=-, $as denied b* the lo$er court in its order of 8une 0, ->0-.

"he defendants on Ma* -), ->=- filed their ans$er $ith counterclai#, a#ended on 8anuar* , ->=,den*in& the #aterial aver#ents of the plaintiffsF co#plaint. @ repl* to the defendantsF a#endedans$er $as filed b* the plaintiffs on 8anuar* ?-, ->=.

"he defendant 8uan Depra #oved on Ma* , ->=- to dis#iss the co#plaint as to hi#. On 8une ),->=- the plaintiffs opposed his #otion.


10/27

"he defendants filed on October ?, ->=- a ;oint #otion to dis#iss on the &round that the plaintiffsFco#plaint failed to state a clai# upon $hich relief #a* be &ranted. "he #otion, opposed b* theplaintiffs on October -, ->=-, $as denied for lac% of #erit b* the lo$er court in its order of October, ->=-. "he defendantsF #otion for reconsideration filed on October ?-, ->=- suffered the sa#efate $hen it $as li%e$ise denied b* the lo$er court in its order of Nove#ber -, ->=-.

@fter the issues $ere ;oined, the case $as set for trial. "hen ca#e a series of postpone#ents. "helo$er court 4ranch I, presided b* 8ud&e Enri6ue @. 1ernande25 finall* issued on March -, ->=0 anorder in open court, readin& as follo$s' .

!pon petition of plaintiffs, $ithout an* ob;ection on the part of defendants, the hearin& of thiscase is hereb* transferred to Ma* and ?, ->=0 at '?B oFcloc% in the #ornin&.

"his case $as filed on @pril ?, ->=- and under an) circumstance this Court will not entertainan) other transer o hearin o this case and if the parties $ill not be read* on that da* setfor hearin&, the court $ill ta%e the necessar* steps for the final deter#ination of this case.e#phasis supplied5

On @pril =, ->=0 the defendantsF counsel received a notice of hearin& dated @pril -, ->=0, issuedb* the office of the Cler% of Court thru the special deput* Cler% of Court5 of the Court of 1irstInstance of Davao, settin& the hearin& of the case for Ma* and ?, ->=0 before 8ud&e @#adorGo#e2 of 4ranch II. "he defendants, thru counsel, on @pril 0, ->=0 filed a #otion forpostpone#ent. @ctin& on this #otion, the lo$er court 4ranch II, presided b* 8ud&e Go#e25 issuedan order dated @pril /, ->=0, 6uoted as follo$s'

"his is a #otion for postpone#ent of the hearin& of this case set for Ma* and ?, ->=0. "he#otion is filed b* the counsel for the defendants and has the confor#it* of the counsel forthe plaintiffs.

@n e+a#ination of the records of this case sho$s that this case $as initiated as earl* as @pril

->=- and that the sa#e has been under advise#ent of the 7onorable Enri6ue @. 1ernande2,Presidin& 8ud&e of 4ranch No. I, since Septe#ber ), ->=?, and that various incidents havealread* been considered and resolved b* 8ud&e 1ernande2 on various occasions. "he lastorder issued b* 8ud&e 1ernande2 on this case $as issued on March -, ->=0, $herein hedefinitel* states that the Court $ill not entertain an* further postpone#ent of the hearin& ofthis case.

CONSIDERING @ "7E 1OREGOING, the Court believes that the consideration andter#ination of an* incident referrin& to this case should be referred bac% to 4ranch I, so thatthe sa#e #a* be disposed of therein. e#phasis supplied5

@ cop* of the above6uoted order $as served on the defendantsF counsel on Ma* ), ->=0.

On the scheduled date of hearin&, that is, on Ma* , ->=0, the lo$er court 4ranch I, $ith 8ud&e1ernande2 presidin&5, $hen infor#ed about the defendantsF #otion for postpone#ent filed on @pril0, ->=0, issued an order reiteratin& its previous order handed do$n in open court on March -,->=0 and directin& the plaintiffs to introduce their evidence e+ parte, there bein& no appearance onthe part of the defendants or their counsel. On the basis of the plaintiffsF evidence, a decision $asrendered on Ma* ), ->=0 the dispositive portion of $hich reads as follo$s'


11/27

EN S! VIR"!D, el 8u2&ado dicta de decision a favor de los de#andantes * en contra delde#andado Nicanor Casteel'

a5 Declara per#anente el interdicto prohibitorio e+pedido contra el de#andado=0, thusdeprivin& the appellant of his da* in court and of his propert* $ithout due process of la$=0 in accordance $ith

Rule ?, Rules of Court< and

?5 hether the lo$er court erred in orderin& the issuance e+ parte of a $rit of preli#inar*in;unction a&ainst defendantAappellant, and in not dis#issin& appelleesF co#plaint.

-. "he first and second issues #ust be resolved a&ainst the appellant.

"he record indisputabl* sho$s that in the order &iven in open court on March -, ->=0, the lo$ercourt set the case for hearin& on Ma* and ?, ->=0 at '?B oFcloc% in the #ornin& and e#pathicall*stated that, since the case had been pendin& since @pril ?, ->=-, it $ould not entertain an* further#otion for transfer of the scheduled hearin&.

@n order &iven in open court is presu#ed received b* the parties on the ver* date and ti#e ofpro#ul&ation,-and a#ounts to a le&al notification for all le&al purposes."he order of March -,->=0, &iven in open court, $as a valid notice to the parties, and the notice of hearin& dated @pril -,->=0 or one #onth thereafter, $as a superfluit*. Moreover, as bet$een the order of March -, ->=0,dul* pro#ul&ated b* the lo$er court, thru 8ud&e 1ernande2, and the notice of hearin& si&ned b* a(special deput* cler% of court( settin& the hearin& in another branch of the sa#e court, the for#erFsorder $as the one le&all* bindin&. "his is because the incidents of postpone#ents and ad;ourn#entsare controlled b* the court and not b* the cler% of court, pursuant to section ), Rule ?- no$ sec. ?,Rule 5 of the Rules of Court.

Much less had the cler% of court the authorit* to interfere $ith the order of the court or to transfer theca&e fro# one sala to another $ithout authorit* or order fro# the court $here the case ori&inated

and $as bein& tried. 7e had neither the dut* nor prero&ative to reAassi&n the trial of the case to adifferent branch of the sa#e court. 7is dut* as such cler% of court, in so far as the incident in6uestion $as concerned, $as si#pl* to prepare the trial calendar. @nd this dut* devolved upon thecler% of court and not upon the (special deput* cler% of court( $ho purportedl* si&ned the notice ofhearin&.

It is of no #o#ent that the #otion for postpone#ent had the confor#it* of the appelleesF counsel."he postpone#ent of hearin&s does not depend upon a&ree#ent of the parties, but upon the courtFsdiscretion.?


13/27

"he record further discloses that Casteel $as represented b* a total of - la$*ers, none of $ho#had ever $ithdra$n as counsel. Notice to @tt*. Rui2 of the order dated March -, ->=0 intransferabl*settin& the case for hearin& for Ma* and ?, ->=0, $as sufficient notice to all the appellantFs elevenother counsel of record. "his is a $ellAsettled rule in our ;urisdiction.)

It $as the dut* of @tt*. Rui2, or of the other la$*ers of record, not e+cludin& the appellant hi#self, to

appear before 8ud&e 1ernande2 on the scheduled dates of hearin& Parties and their la$*ers haveno ri&ht to presu#e that their #otions for postpone#ent $ill be &ranted. =1or indeed, the appellantand his - la$*ers cannot pretend i&norance of the recorded fact that since Septe#ber ), ->=?until the trial held on Ma* , ->=0, the case $as under the advise#ent of 8ud&e 1ernande2 $hopresided over 4ranch I. "here $as, therefore, no necessit* to (reAassi&n( the sa#e to 4ranch IIbecause 8ud&e 1ernande2 had e+clusive control of said case, unless he $as le&all* inhibited to tr*the case H and he $as not.

"here is truth in the appellantFs contention that it is the dut* of the cler% of court H notof the CourtH to prepare the trial calendar. 4ut the assi&n#ent or reassi&n#ent of cases alread* pendin& in onesala to another sala, and the settin& of the date of trial after the trial calendar has been prepared, fall$ithin the e+clusive control of the presidin& ;ud&e.

"he appellant does not den* the appelleesF clai# that on Ma* and ?, ->=0, the office of the cler% ofcourt of the Court of 1irst Instance of Davao $as located directl* belo$ 4ranch I. If the appellant andhis counsel had e+ercised due dili&ence, there $as no i#pedi#ent to their &oin& upstairs to thesecond store* of the Court of 1irst Instance buildin& in Davao on Ma* , ->=0 and chec%in& if thecase $as scheduled for hearin& in the said sala. "he appellant after all ad#its that on Ma* , ->=0his counsel $ent to the office of the cler% of court.

"he appellantFs state#ent that parties as a #atter of ri&ht are entitled to notice of trial, is correct. 4uthe $as properl* accorded this ri&ht. 7e $as notified in open court on March -, ->=0 that the case$as definitel* and intransferabl* set for hearin& on Ma* and ?, ->=0 before 4ranch I. 7e cannotar&ue that, pursuant to the doctrine in iochi 's. 2irona,0his counsel $as entitled to a ti#el* noticeof the denial of his #otion for postpone#ent. In the cited case the #otion for postpone#ent $as the

first one filed b* the defendant< in the case at bar, there had alread* been a series ofpostpone#ents. !nli%e the case at bar, the iochicase $as not intransferabl* set for hearin&.1inall*, $hereas the cited case did not spend for a lon& ti#e, the case at bar $as onl* finall* andintransferabl* set for hearin& on March -, ->=0 H after al#ost five *ears had elapsed fro# thefilin& of the co#plaint on @pril ?, ->=-.

"he pretension of the appellant and his - counsel of record that the* lac%ed a#ple ti#e to preparefor trial is unacceptable because bet$een March -, ->=0 and Ma* , ->=0, the* had one #onthand ten da*s to do so. In effect, the appellant had $aived his ri&ht to appear at the trial and thereforehe cannot be heard to co#plain that he has been deprived of his propert* $ithout due process ofla$./Veril*, the constitutional re6uire#ents of due process have been fulfilled in this case' the lo$ercourt is a co#petent court< it la$full* ac6uired ;urisdiction over the person of the defendant

appellant5 and the sub;ect #atter of the action< the defendant appellant5 $as &iven an opportunit*to be heard< and ;udent $as rendered upon la$ful hearin&.

. 1inall*, the appellant contends that the lo$er court incurred an error in orderin& the issuance e3parte of a $rit of preli#inar* in;unction a&ainst hi#, and in not dis#issin& the appelleeFs co#plaint.e find this contention #eritorious.


14/27

@pparentl*, the court a quo relied on e+hibit @ H the soAcalled (contract of service( H and theappelleesF contention that it created a contract of coAo$nership and partnership bet$een InocenciaDeluao and the appellant over the fishpond in 6uestion.

"oo $ellAsettled to re6uire an* citation of authorit* is the rule that ever*one is conclusivel* presu#edto %no$ the la$. It #ust be assu#ed, confor#abl* to such rule, that the parties entered into the soA

called (contract of service( co&ni2ant of the #andator* and prohibitor* la$s &overnin& the filin& ofapplications for fishpond per#its. @nd since the* $ere a$are of the said la$s, it #ust li%e$ise beassu#ed H in fairness to the parties H that the* did not intend to violate the#. "his vie$ #ustperforce ne&ate the appelleesF alle&ation that e+hibit @ created a contract of coAo$nership bet$eenthe parties over the disputed fishpond. ere $e to ad#it the establish#ent of a coAo$nershipviolative of the prohibitor* la$s $hich $ill hereafter be discussed, $e shall be co#pelled to declarealto&ether the nullit* of the contract. "his $ould certainl* not serve the cause of e6uit* and ;ustice,considerin& that ri&hts and obli&ations have alread* arisen bet$een the parties. e shall thereforeconstrue the contract as one of partnership, divided into t$o parts H na#el*, a contract ofpartnership to e+ploit the fishpond pendin& its a$ard to either 1elipe Deluao or Nicanor Casteel, anda contract of partnership to divide the fishpond bet$een the# after such a$ard. "he first is valid, thesecond ille&al.

It is $ell to note that $hen the appellee Inocencia Deluao and the appellant entered into the soAcalled (contract of service( on Nove#ber =, ->)>, there $ere t$o pendin& applications over thefishpond. One $as CasteelFs $hich $as appealed b* hi# to the Secretar* of @&riculture and NaturalResources after it $as disallo$ed b* the Director of 1isheries on October =, ->)>. "he other $as1elipe DeluaoFs application over the sa#e area $hich $as li%e$ise re;ected b* the Director of1isheries on Nove#ber >, ->)>, refiled b* Deluao and later on $ithdra$n b* hi# b* letter datedMarch -=, ->=B to the Secretar* of @&riculture and Natural Resources. Clearl*, althou&h thefishpond $as then in the possession of Casteel, neither he nor, 1elipe Deluao $as the holder of afishpond per#it over the area. 4ut be that as it #a*, the* $ere not ho$ever precluded fro#e+ploitin& the fishpond pendin& resolution of CasteelFs appeal or the approval of DeluaoFs applicationover the sa#e area H $hichever event happened first. No la$, rule or re&ulation prohibited the#fro# doin& so. "hus, rather than let the fishpond re#ain idle the* cultivated it.

"he evidence preponderates in favor of the vie$ that the initial intention of the parties $as not tofor# a coAo$nership but to establish a partnership H Inocencia Deluao as capitalist partner andCasteel as industrial partner H the ulti#ate underta%in& of $hich $as to divide into t$o e6ual partssuch portion of the fishpond as #i&ht have been developed b* the a#ount e+tended b* the plaintiffsAappellees, $ith the further provision that Casteel should rei#burse the e+penses incurred b* theappellees over oneAhalf of the fishpond that $ould pertain to hi#. "his can be &leaned, a#on&others, fro# the letter of Casteel to 1elipe Deluao on Nove#ber -=, ->)>, $hich states, inter alia'

... 9:ith respect to *our allo$in& #e to use *our #one*, sa#e $ill redound to *our benefitbecause )ou are the ones interested in hal o the wor+ we ha'e done so ar, besides 4 didnot insist on our /ein partners in m) ishpond permit, /ut it was )ou 52ata)5 "pin the one

who wanted that we /e partners and it so happened that we /ecame partners /ecause 4 ampoor, but in the #idst of #* povert* it never occurred to #e to be unfair to *ou. "herefore sothat each o us ma) /e secured, let us ha'e a document prepared to the eect that we are

partners in the ishpond that we caused to /e made here in Balasinon, /ut it does not meanthat )ou will treat me as one o )our 5Banta)5 6careta+er7 on wae /asis /ut not earninwaes at all, while the truth is that we are partners. In the event that *ou are not a#enable to#* proposition and consider #e as (4anta*( careta%er5 instead, do not bla#e #e if I$ithdra$ all #* cases and be left $ithout even a little and *ou li%e$ise.e#phasis supplied5>


15/27

Pursuant to the fore&oin& su&&estion of the appellant that a docu#ent be dra$n evidencin& theirpartnership, the appellee Inocencia Deluao and the appellant e+ecuted e+hibit @ $hich, althou&hdeno#inated a (contract of service,( $as actuall* the #e#orandu# of their partnership a&ree#ent."hat it $as not a contract of the services of the appellant, $as ad#itted b* the appellees the#selvesin their letter-Bto Casteel dated Dece#ber ->, ->)> $herein the* stated that the* did not e#plo* hi#in his CasteelFs5 clai# but because he used their #one* in developin& and i#provin& the fishpond,

his ri&ht #ust be divided bet$een the#. Of course, althou&h e+hibit @ did not specif* an* $a&e orshare appertainin& to the appellant as industrial partner, he $as so entitled H this bein& one of theconditions he specified for the e+ecution of the docu#ent of partnership.--

1urther e+chan&es of letters bet$een the parties reveal the continuin& intent to divide the fishpond.In a letter,-dated March ), ->=B, the appellant su&&ested that the* divide the fishpond and there#ainin& capital, and offered to pa* the Deluaos a *earl* install#ent of P?,BBB H presu#abl* asrei#burse#ent for the e+penses of the appellees for the develop#ent and i#prove#ent of the oneAhalf that $ould pertain to the appellant. "$o da*s later, the appellee 1elipe Deluaoreplied,-?e+pressin& his concurrence in the appellantFs su&&estion and advisin& the latter to as% for areconsideration of the order of the Director of 1isheries disapprovin& his appellantFs5 application, sothat if a favorable decision $as secured, then the* $ould divide the area.

@pparentl* rel*in& on the partnership a&ree#ent, the appellee 1elipe Deluao sa$ no further need to#aintain his petition for the reinvesti&ation of CasteelFs application. "hus b* letter-)dated March -=,->=B addressed to the Secretar* of @&riculture and Natural Resources, he $ithdre$ his petition onthe alle&ed &round that he $as no lon&er interested in the area, but stated ho$ever that he $antedhis interest to be protected and his capital to be rei#bursed b* the hi&hest bidder.

"he arran&e#ent under the soAcalled (contract of service( continued until the decisions both datedSepte#ber -=, ->=B $ere issued b* the Secretar* of @&riculture and Natural Resources in D@NRCases ?=? and ?=?A4. "his develop#ent, b* itself, brou&ht about the dissolution of the partnership.Moreover, subse6uent events li%e$ise reveal the intent of both parties to ter#inate the partnershipbecause each refused to share the fishpond $ith the other.

@rt. -?B?5 of the Civil Code enu#erates, as one of the causes for the dissolution of a partnership,(... an* event $hich #a%es it unla$ful for the business of the partnership to be carried on or for the#e#bers to carr* it on in partnership.( "he approval of the appellantFs fishpond application b* thedecisions in D@NR Cases ?=? and ?=?A4 brou&ht to the fore several provisions of la$ $hich #adethe continuation of the partnership unla$ful and therefore caused its ipso actodissolution.

@ct )BB?, %no$n as the 1isheries @ct, prohibits the holder of a fishpond per#it the per#ittee5 fro#transferrin& or sublettin& the fishpond &ranted to hi#, $ithout the previous consent or approval of theSecretar* of @&riculture and Natural Resources.-="o the sa#e effect is Condition No. ? of thefishpond per#it $hich states that ("he per#ittee shall not transfer or sublet all or an* area herein&ranted or an* ri&hts ac6uired therein $ithout the previous consent and approval of this Office.(Parentheticall*, $e #ust observe that in D@NR Case ?=?A4, the per#it &ranted to one of the parties

therein, eoncio @radillos, $as cancelled not solel* for the reason that his per#it covered a portionof the area included in the appellantFs prior fishpond application, but also because, uponinvesti&ation, it $as ascertained thru the ad#ission of @radillos hi#self that due to lac% of capital, heallo$ed one ino Estepa to develop $ith the latterFs capital the area covered b* his fishpond per#it1A>AC $ith the understandin& that he @radillos5 $ould be &iven a share in the produce thereof.-0

Sec. )B of Co##on$ealth @ct -)-, other$ise %no$n as the Public and @ct, li%e$ise provides that


16/27

"he lessee shall not assi&n, encu#ber, or sublet his ri&hts $ithout the consent of theSecretar* of @&riculture and Co##erce, and the violation of this condition shall avoid thecontract


17/27

Govern#ent $as in his favor and the onl* reason $h* ad#inistration had been &ranted to theDeluaos $as because he $as indebted to the#. In the sa#e letter, the appellant forbade 1elipeDeluao fro# sendin& the coupleFs encarado, 8esus Donesa, to the fishpond. In repl* thereto, 1elipeDeluao $rote a letterBdated 8anuar* =, ->=- in $hich he reiterated his refusal to &rant thead#inistration of the fishpond to the appellant, statin& as a &round his belief (that onl* the co#petenta&encies of the &overn#ent are in a better position to render an* e6uitable arran&e#ent relative to

the present case< hence, an* action $e #a* privatel* ta%e #a* not #eet the procedure of le&alorder.(

Inas#uch as the erst$hile partners articulated in the aforecited letters their respective resolutionsnot to share the fishpond $ith each other H in direct violation of the underta%in& for $hich the* haveestablished their partnership H each #ust be dee#ed to have e+pressl* $ithdra$n fro# thepartnership, thereb* causin& its dissolution pursuant to art. -?B5 of the Civil Code $hichprovides, inter alia, that dissolution is caused (b* the e+press $ill of an* partner at an* ti#e.(

In this ;urisdiction, the Secretar* of @&riculture and Natural Resources possesses e+ecutive andad#inistrative po$ers $ith re&ard to the surve*, classification, lease, sale or an* other for# ofconcession or disposition and #ana&e#ent of the lands of the public do#ain, and, #ore specificall*,

$ith re&ard to the &rant or $ithholdin& of licenses, per#its, leases and contracts over portions of thepublic do#ain to be utili2ed as fishponds. -, "hus, $e held in#a&o, et al. 's. Ao, et al. A-=)-),8une ?B, ->0B5, and reiterated in 8anitano 's. ecretar) o Ariculture and $atural (esources, et al.A--0/, March ?-, ->005, that

... 9":he po$ers &ranted to the Secretar* of @&riculture and Co##erce Natural Resources5b* la$ re&ardin& the disposition of public lands such as &rantin& of licenses, per#its, leases,and contracts, or approvin&, re;ectin&, reinstatin&, or cancellin& applications, or decidin&conflictin& applications, are all e+ecutive and ad#inistrative in nature. 4t is a well0reconized

principle that purel) administrati'e and discretionar) unctions ma) not /e interered with /)the courtsColoso v. 4oard of @ccountanc*, G.R. No. A=/=B, @pril B, ->=?5. In &eneral,courts have no supervisin& po$er over the proceedin&s and action of the ad#inistrativedepart#ents of the &overn#ent. "his is &enerall* true $ith respect to acts involvin& the

e+ercise of ;udent or discretion, and findin&s of fact. =) @#. 8ur. ==A==>5 1indin&s of factb* an ad#inistrative board or official, follo$in& a hearin&, are bindin& upon the courts and$ill not be disturbed e+cept $here the board or official has &one be*ond his statutor*authorit*, e+ercised unconstitutional po$ers or clearl* acted arbitraril* and $ithout re&ard tohis dut* or $ith &rave abuse of discretion... e#phasis supplied5

In the case at bar, the Secretar* of @&riculture and Natural Resources &ave due course to theappellantFs fishpond application -/-/ and a$arded to hi# the possession of the area in 6uestion. Invie$ of the finalit* of the Secretar*Fs decision in D@NR Cases ?=? and ?=?A4, and considerin& theabsence of an* proof that the said official e+ceeded his statutor* authorit*, e+ercised unconstitutionalpo$ers, or acted $ith arbitrariness and in disre&ard of his dut*, or $ith &rave abuse of discretion, $ecan do no less than respect and #aintain unfettered his official acts in the pre#ises. It is a salutar*

rule that the ;udicial depart#ent should not dictate to the e+ecutive depart#ent $hat to do $ithre&ard to the ad#inistration and disposition of the public do#ain $hich the la$ has entrusted to itscare and ad#inistration. Indeed, courts cannot superi#pose their discretion on that of the landdepart#ent and co#pel the latter to do an act $hich involves the e+ercise of ;udent anddiscretion.

"herefore, $ith the vie$ that $e ta%e of this case, and even assu#in& that the in;unction $asproperl* issued because present all the re6uisite &rounds for its issuance, its continuation, and,$orse, its declaration as per#anent, $as i#proper in the face of the %no$led&e later ac6uired b* the


18/27

lo$er court that it $as the appellantFs application over the fishpond $hich $as &iven due course.@fter the Secretar* of @&riculture and Natural Resources approved the appellantFs application, hebeca#e to all intents and purposes the le&al per#ittee of the area $ith the correspondin& ri&ht topossess, occup* and en;o* the sa#e. Conse6uentl*, the lo$er court erred in issuin& the preli#inar*#andator* in;unction. e cannot overe#phasi2e that an in;unction should not be &ranted to ta%epropert* out of the possession and control of one part* and place it in the hands of another $hose

title has not been clearl* established b* la$.?

7o$ever, pursuant to our holdin& that there $as a partnership bet$een the parties for thee+ploitation of the fishpond before it $as a$arded to Casteel, this case should be re#anded to thelo$er court for the reception of evidence relative to an accountin& fro# Nove#ber =, ->)> toSepte#ber -=, ->=B, in order for the court to deter#ine a5 the profits reali2ed b* the partnership, b5the share in the profits5 of Casteel as industrial partner, e5 the share in the profits5 of Deluao ascapitalist partner, and d5 $hether the a#ounts totallin& about P/,BBB advanced b* Deluao toCasteel for the develop#ent and i#prove#ent of the fishpond have alread* been li6uidated.4esides, since the appellee Inocencia Deluao continued in possession and en;o*#ent of thefishpond even after it $as a$arded to Casteel, she did so no lon&er in the concept of a capitalistpartner but #erel* as creditor of the appellant, and therefore, she #ust li%e$ise sub#it in the lo$ercourt an accountin& of the proceeds of the sales of all the fishes harvested fro# the fishpond fro#Septe#ber -0, ->=B until Casteel shall have been finall* &iven the possession and en;o*#ent of thesa#e. In the event that the appellee Deluao has received #ore than her la$ful credit of P/,BBB or$hatever a#ounts have been advanced to Casteel5, plus 0L interest thereon per annu#, then sheshould rei#burse the e+cess to the appellant.

@CCORDING, the ;udent of the lo$er court is set aside. @nother ;udent is hereb* rendered'-5 dissolvin& the in;unction issued a&ainst the appellant, 5 placin& the latter bac% in possession ofthe fishpond in liti&ation, and ?5 re#andin& this case to the court of ori&in for the reception ofevidence relative to the accountin& that the parties #ust perforce render in the pre#ises, at theter#ination of $hich the court shall render ;udent accordin&l*. "he appellantFs counterclai# isdis#issed. No pronounce#ent as to costs.

Concepcion, C.J., (e)es, J.B.!., %izon, *a+alintal, -aldi'ar, anchez, Fernando and Capistrano,JJ.,concur.

1.) G.R. No. 1155 Ar$: 12, 2888G.R. No.

!EIRS O/ ELIAS LORILLA, Na#:*; /E, ELIAS, R. a( SER"ANDO, ALL SURNAMEDLORILLA,petitioners,vs.COURT O/ APPEALS, COMMERCIAL CREDIT CORPORATION, !ON. /RANCISCO"ILLANUE"A a( S!ERI// !ONORIO P. SANTOS,respondents.

UISUM6ING, J.:


19/27

"his petition for revie$ assails the decision -of the Court of @ppeals pro#ul&ated on Nove#ber >,->>), $hich dis#issed the petition for annul#ent of the ;udent rendered on @pril =, ->>, b* theRe&ional "rial Court, 4ranch =, of Ma%ati in Civil Case No. =0. "he #otion to reconsider thedecision of the Court of @ppeals $as denied b* said Court in a Resolution pro#ul&ated on 8anuar*--, ->>=. ?

"he antecedent facts of this case as found b* the Court of @ppeals are as follo$s'

-5 On eptem/er 19, 1:;>0,

and $hich lev* $as dul* annotated on the certificate of title concerned.

?5 Defendant Elias orilla, to&ether $ith four other individual defendants, $as initiall*represented b* one @tt*. Dann* "abli2o, but $ho later on $ithdre$ his appearance and $assubstituted b* another la$*er, @tt*. @lfredo Concepcion.

)5 Durin& the pendenc* of Civil Case No. =0, Elias . orilla e+ecuted a dacion enpaoover the propert* attached in favor of the 8oint Resources Mana&e#ent Develop#entCorporation hereinafter referred to as 8RMDC5 b* reason of $hich "ransfer Certificate of"itle No. >>0 in the na#e of Elias . orilla $as cancelled and replaced b* "ransferCertificate of "itle No. --)B0/ in the na#e of 8RMDC. 4ut the lev* caused to be #ade b*PENC@PI"@ over the propert* $as carried over to the ne$ certificate of title.

=5 On June :, 1:;=, 8RMDC filed suit a&ainst PENC@PI"@ for the cancellation of thelatterFs lev* on the propert* in 6uestion $ith the Re&ional "rial Court of Pasi&, Metro Manilahereinafter referred to as the Pasi& Court5, $hich $as doc%eted therein as Civil Case No.0?/=/ and assi&ned b* raffle to its 4ranch -=?.

05 OnApril >, 1:;:, the Ma%ati Court, after due hearin&, rendered ;udent in Civil CaseNo. =0 in favor of PENC@PI"@ and a&ainst the defendants therein, includin& Elias .orilla. "he dispositive portion of said ;udent reads'

7ERE1ORE, pre#ises considered, ;udent is rendered in favor of plaintiff anda&ainst defendants $ho are hereb* ordered to pa* to plaintiff, ;ointl* and severall*,and solidaril* the total principal a#ount of P)-,=>0. plus interest at -L per

annumand a penalt* of ?L per #onth of default fro# the ti#e it beca#e due on 8ul*-, ->- until full* paid, and BL of the entire a#ount due as attorne*Fs fees, plus thecosts.

SO ORDERED.
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/5 Despite receipt of a cop* of the aforesaid decision b* @lfredo Concepcion, then counselof record of defendant Elias . orilla, no appeal $hatsoever $as interposed fro# said

;udent b* said la$*er in behalf of defendant orilla.

5 On *arch 0 in the na#e of defendant orilla.

>5 On *a) ?=, 1::, 1::, or one *ear and three#onths before the Ma%ati Court rendered decision in Civil Case No. =0 on @pril =, ->>,the case should have been dis#issed insofar as Elias . orilla is concerned, in %eepin& $ithSection -, Rule ? of the Rules of Court $hich provides'

Sec. -. @here claim does not sur'i'e. H hen the action is for recover* of #one*,debt, or interest therein, and the defendant dies before final ;udent in the Court of1irst Instance, it shall be dis#issed to be presented in the #anner especiall*provided in these rules.

--5 On Fe/ruar) ;, 1::, the Ma%ati Court, throu&h its @ctin& Presidin& 8ud&e, the7onorable 1rancisco Donato Villanueva, denied the #otion to 6uash said $rit of e+ecution,rulin& that the ;udent in Civil Case No. ==0 havin& beco#e final, it is no$ be*ond itsauthorit* to a#end it b* dis#issin& the sa#e insofar as defendant Elias . orilla isconcerned, and that the su&&ested re#ed*, if at all, is a petition for its annul#ent. Petitioners#oved to reconsider the denial of their #otion to 6uash the $rit of e+ecution, but the Ma%atiCourt stood pat on its rulin&, hence, petitionersF recourse to this Court for annul#ent of

;udent. )

Petitioners, thus, filed $ith the Court of @ppeals a Petition for @nnul#ent of 8udent, rit ofE+ecution, andKor ev* on E+ecution $ith Preli#inar* In;unction and Restrainin& Order to annul oren;oin enforce#ent of the ;udent dated @pril =, ->> of the Ma%ati Court in Civil Case No. =0.In its decision pro#ul&ated on Nove#ber >, ->>), the Court of @ppeals resolved to den* thepetition, hence petitionersF present recourse to this Court. "he* assi&n the follo$in& errors'

I

"7E CO!R" O1 @PPE@S COMMI""ED GR@VE @4!SE O1 DISCRE"ION IN NO"@NN!ING "7E DECISION O1 "7E "RI@ CO!R", D@"ED = @PRI ->>, INSO1@R @SDECE@SED DE1END@N" EI@S ORI@ IS CONCERNED, "7ERE4 VIO@"ION sic5PE"I"IONERS RIG7" "O D!E PROCESS O1 @.

II
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"7E CO!R" O1 @PPE@S COMMI""ED GR@VE @4!SE O1 DISCRE"ION IN VIO@"INGSEC"ION -, R!E ?, @ND SEC"IONS = @ND /, R!E 0 O1 "7E REVISED R!ES O1CO!R".

III

"7E CO!R" O1 @PPE@S COMMI""ED GR@VE @4!SE O1 DISCRE"ION IN DENINGPE"I"IONERS "7EIR CONS"I"!"ION@ RIG7" "O D!E PROCESS O1 @. =

In our vie$, the #ain issue for resolution no$ is $hether the respondent appellate court erred and&ravel* abused its discretion in den*in& petitionersF action for annul#ent of ;udent of the R"C ofMa%ati, 4ranch =, concernin& the deceased defendant Elias orilla. Pertinentl*, $e have toconsider $hether Section - of Rule ? and Sections = and / of Rule 0 of the Revised Rules ofCourt are applicable in the present case. Si#ilarl*, $e have to in6uire $hether petitioners, heirs ofElias orilla, $ere deprived of their ri&ht to due process of la$.

Petitioners ar&ue that the cause of action of private respondent Co##ercial Credit Corp. no$%no$n as Pentacapital 1inance Corp. and hereinafter referred to as PEN"@C@PI"@5 did not survive

for bein& in violation of Section - of Rule ? of the Revised Rules of Court. "he* clai# that underthis rule, the trial court lost ;urisdiction over the person of Elias orilla $hen he died, andconse6uentl* the action a&ainst hi# should have been dis#issed.

Sec. - of Rule ? states'

Sec. -. @here claim does not sur'i'e. H here the action is for recover* of #one*, debt orinterest thereon, and the defendant dies before final ;udent in the Court of 1irst Instance,it shall be dis#issed to be prosecuted in the #anner especiall* provided in these rules.

Sec. - of Rule ? provides that upon the defendantFs death, the action (shall be dis#issed to bepresented in the manner especiall* provided in these rules.( Petitioners ar&ue that this #anner is

provided for in Sections = and / of Rule 0 of the Revised Rules of Court. 0

@s conte#plated inSection - of Rule ?, the action has to be dis#issed $ithout pre;udice to the plaintiff thereafterpresentin& his clai# as a #one* clai# in the settle#ent of the estate of the deceaseddefendant./"he clai# beco#es a #ere incident in the testa#entar* or intestate proceedin&s of thedeceased $here the $hole #atter #a* be full* ter#inated ;ointl* $ith the settle#ent and distributionof the estate.

In the present case, ho$ever, the records do not sho$ if an* notice of death $as filed b* @tt*.@lfredo Concepcion, counsel of record of Elias orilla in Civil Case No. =0 before the Ma%atiCourt. "hus, neither the Ma%ati Court nor PEN"@C@PI"@ $ere #ade a$are of the death of Eliasorilla. "he trial court could not be e+pected to %no$ or ta%e ;udicial notice of the death of orilla,absent such notice. Neither could the petitioners have been #ade a$are of the trial courtFs ;udentadverse to their father, for all notices and orders of the court $ere sent to orillaFs counsel of record,

$ho did not bother to infor# the parties concerned of Elias orillaFs death. @pparentl*, orillaFscounsel failed in his dut* to pro#ptl* infor# the court of the death of his client, as the Rules re6uire. >

@s far as the Ma%ati Court $as concerned, until the rit of E+ecution $as issued and the lev*thereof on @u&ust =, ->>?, orilla continued to be represented b* counsel of record, @tt*.Concepcion< and that upon service of a cop* of the decision on said counsel at the latterFs address,orilla $as dee#ed to have been validl* served notice of the ;udent.-B"he failure of @tt*.Concepcion to serve notice on the court and the adverse parties re&ardin& his clientFs death binds
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herein petitioners as #uch as the client hi#self could be so bound. 8urisprudence tee#s $ithpronounce#ents that a client is bound b* the conduct, ne&li&ence and #ista%es of his counsel. --

In this case, petitioners clai# that their ri&ht to due process $as violated $hen the Court of @ppealsdid not annul the decision of the Ma%ati Court dated @pril =, ->>. "he* clai# that as heirs of Eliasorilla, the* $ould be deprived of their la$ful inheritance $ithout due process, as the* $ere not

parties to the case $here the adverse decision a&ainst their father $as rendered. Said ;udent,the* posit, cannot be enforced a&ainst the# because the court had not ac6uired ;urisdiction overthe#, nor over the estate of Elias orilla.

"rue, a ;udent #a* be annulled for $ant of ;urisdiction or lac% of due process of la$. -4ut $hilepetitioners $ere not properl* substituted for Elias orilla as defendants, absent an* notice of hisdeath, it could not be said that petitioners $ere deprived of due process of la$, for as far as the trialcourt $as concerned, the* $ere not parties to the case. "o rule other$ise $ould be, in fact, a #oreobvious and &rievous trans&ression of due process.

Moreover in this case, $e find that the propert* $hich petitioners clai# as their la$ful inheritance,$as no lon&er part of the estate of Elias orilla at the ti#e of his death. 1or Elias orilla had earlier

e+ecuted a dacion en paoover this propert* in favor of the 8oint Resources Mana&e#entDevelop#ent Corporation 8RMDC5. 4* reason thereof, orillaFs transfer certificate of title $ascancelled, and a ne$ one $as issued in favor of 8RMDC. -?"he lev* of PEN"@C@PI"@ annotatedon orillaFs certificate of title $as carried over onto the title of 8RMDC. Elias orillaFs pa*#ent of hisobli&ation to 8RMDC bein& one of dation in pa*#ent, it is &overned b* the la$ on sales. -)"hesub;ect propert* $as validl* transferred to 8RMDC alread*. 7ence petitioners could not clai# thatthe* $ere deprived of their la$ful inheritance $ithout due process of la$. 1wphi1

Sec. - of Rule ? of the Revised Rules of Court sets out the procedure that should be follo$ed afterthe death of the defendant in a case. If he died (before final ;udent in the Court of 1irst Instance,(the action should be dis#issed $ithout pre;udice to the plaintiff presentin& his clai# in the settle#entof the estate of the deceased in accordance $ith and as re6uired b* Section = of Rule 0 of theRevised Rules of Court.-=7ere, ho$ever, the propert* in 6uestion had alread* been ta%en out of the

estate of Elias orilla, even before ;udent in Civil Case No. =0 $as rendered, and it $astransferred to 8RMDC b* virtue of the dacion en paoe+ecuted b* Elias orilla. 1or this reason,Section = of Rule 0 loses its pertinence to the case at bar.

i%e$ise, Section / of Rule ?> of the Revised Rules of Court -0$ill not appl* to the present case. 1orit spea%s of a situation $here a part* dies after the entr* of the ;udent or order of the court. Itdoes not cover a situation $here the court $as reportedl* infor#ed of the death of a part* onl* afterfinal ;udent.

Since there $as no ti#el* appeal ta%en fro# the ;udent of the Re&ional "rial Court of Ma%atidated @pril =, ->>, in Civil Case No. =0, that ;udent had properl* beco#e final and e+ecutor*.

@s $ell said b* respondent appellate court, to adopt a vie$ contrar* $ould (. . . open the flood&ates

to protracted and endless liti&ations, because all that counsel for defendant has to do, in an actionfor recover* of #one*, in case said defendant dies before final ;udent in a re&ional trial court, is toconceal such death fro# the court and thereafter pretend to &o throu&h the #otions of trial, and,after ;udent is rendered a&ainst his client, to 6uestion such ;udent for bein& violative of Section-, Rule ? of the Rules of Court. "hus, counsel for such defendant could undul* dela* the renderin&of a ;udent a&ainst his client. It is a funda#ental concept in an* ;ural s*ste#, that even at the ris%of occasional errors, ;udents of courts should beco#e final at so#e definite ti#e fi+ed b* la$.Interest rei pu/licae ut inis sit litim.(-/
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e see no reason, in the interest of ;ustice, to disturb, #uch less annul, the aforesaid ;udent.

7ERE1ORE, the assailed decision of the Court of @ppeals pro#ul&ated on Nove#ber >, ->>)and its Resolution pro#ul&ated on 8anuar* --, ->>= are hereb* @11IRMED. Costs a&ainstpetitioners.

SO ORDERED.

Bellosillo, *endoza, Buena and %e !eon, Jr., JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN 4@NC

A.M. No. 85 Ma* 31, 1971

15.) "ALENTIN A"ELINO, petitioner,vs.ATT0. PEDRO


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. "hat the respondent $as ad#itted a #e#ber of the Philippine 4ar in ->?> $hich isno$ a fifth of a centur* since his ta%in& his oath as attorne* and counselorAatAla$)>, re#ainin& as such until ->=) H the date $hen he resi&ned tocontinue his practice of la$< in ->=/, he respondent5 $as a&ain appointed as 8usticeof the Peace Court, this ti#e in his ho#e to$n at "olosa, e*te< re#ainin& as such

until he resi&ned in ->= to accept the position as @ssistant @d#inistrative Officer inthe Office of the Spea%er of the 7ouse of Representatives, Con&ress of thePhilippines. Durin& all the *ears that he $as activel* practicin& his noble profession,he has never been nor $ill he in the future, be a rene&ade to this noble profession. Inhis actuations as a 8ustice of the Peace Courts' first at Palo, e*te then at "olosa,e*te, his records are his elo6uent proof of his bein& a #issionar* of ;ustice=/, at '?B oFcloc% in the #ornin& at least threeda*s before the scheduled hearin& $hen the petitioners called on the respondent atthe latterFs residence $hich the for#er $ere used to do as ad#itted b* hi# inpara&raph ) of the co#plaint as that is their understandin& to enable the# to confer=/, at '?B oFcloc% in the #ornin&=/, at '?B oFcloc% in the #ornin& despite the verbal

notice to the# b* the herein respondent is not until the present %no$n to hereinrespondent. "hat $hen the herein respondent $as appointed @d#inistrative Officer in theOffice of the Spea%er of the 7ouse of Representatives, Con&ress of the Philippines,so#eti#e in March ->=, he alread* advised the petitioner to loo% for another la$*erto represent hi#.

"he issues havin& been thus ;oined, the case $as referred to the Office of the Solicitor General forinvesti&ation report and reco##endation.

!pon the evidence presented b* the parties the Solicitor General sub#itted his report, the portion of

$hich under the title (@N@SIS( reads as follo$s'

1ro# the fore&oin& facts, this Office finds the respondent &uilt* of ne&li&ence on thefollo$in& counts'

-. @tt*. Palaa did not dul* infor# his client of the date of the trial scheduled forNove#ber -=, ->=/ $hen the evidence sho$s that he received notice of suchhearin& on October --, ->=/.

. "he filin& of the #otion for ne$ trial on 8anuar* /, ->= $as #ade out of ti#e,e+actl* )B da*s after the decision $as received on Nove#ber , ->=/. "he dela* inthe filin& of the said #otion re#ains une+plained in the record.

?. @tt*. PalaaFs nd #otion for ne$ trial, after the Court had afforded hi# all theopportunit* to plead his #otion successfull*, $as denied b* the lo$er court on the&round that he failed to co#pl* $ith an order of the court dated 1ebruar* -, ->=.hile the said #otion $as dul* filed on ti#e, a previous order of the Court directedthe #ovant @tt*. Palaa to serve a cop* of his a#ended #otion to the other part*throu&h counsel, but co#pliance there$ith does not appear on the said #otion5 E+h.)5.

"he testi#on* of petitioner is not clear as to $hether respondent $as responsible inhirin& @tt*. @ristedes de la Pa2 to ta%e over the case after the decision had beco#efinal. 7o$ever, $e allo$ such a doubt to be resolved in favor of the respondentFsclai# that he su&&ested to his client that he contract @tt*. De la Pa2.

"his Office believes that althou&h petitioner had verified the petition for relief fro#;udent dated March -, ->= filed b* @tt*. De la Pa2, petitioner herein did note+actl* co#prehend, due to his patent illiterac*, $hat he $as si&nin& in alle&in&e+cusable ne&li&ence on the part of @tt*. Palaa for failin& to notif* hi# and his coArespondents in Civil Case No. =B of the date of the hearin&. 1urther#ore, $e arefull* a$are of the practice that practicin& attorne*s usuall* prepare such petitions fortheir clients to si&n.


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"his Office ho$ever believes that the nonAappearance of @tt*. Palaa at the bearin&of Nove#ber -=, ->=/ has been satisfactoril* e+plained b* the verified #edicalcertificate. 4ut $e do not share the sa#e vie$ insofar as his ne&li&ence in failin& tonotif* his clients of the date of hearin& is concerned.(

On the basis of the findin&s contained in the aboveA6uoted portion of his report, the Solicitor General

found the respondent (&uilt* of ne&li&ence in the perfor#ance of his duties as a #e#ber of the 4ar(and conse6uentl* reco##ended (that he be suspended fro# the practice of la$ for at least si+#onths.(

"hereafter follo$in& the procedure provided b* the Rules of Court in cases of the sa#e nature, theOffice of the Solicitor General filed $ith this Court the correspondin& co#plaint based on the findin&sof fact contained in his report. In respondentFs ans$er thereto he reproduced the defenses set forthin his ans$er to the verified co#plaint, filed b* the co#plainant.

"hereafter, e set the case for hearin& but, instead of ar&uin& the case orall*, the respondentsub#itted a $ritten #e#orandu# $hile the Office of the Solicitor General did not.

!pon consideration of the $hole record, e find no sufficient ;ustification to reverse the findin& #adeb* the Office of the Solicitor General to the effect that respondent (did not dul* infor# his client of thedate of the trial scheduled for Nove#ber -=, ->=/( in spite of the fact that, accordin& to theevidence, he had received notice of such hearin& four da*s before.

@s re&ards respondentFs failure to appear in court on the da* set for the trial, e are inclined toaccept his clai# that it $as due to the fact that earl* in the #ornin& of that date he had (a severesto#ach ache, follo$ed b* constant #ovin& of bo$el and vo#itin& and that as a conse6uence hebeca#e ver* $ea%.( 4ut $hile this #i&ht be, to a certain e+tent, a &ood e+cuse for his nonAappearance in court, it is obviousl* not sufficient to e+plain his failure to notif* his clients in due ti#eof the date of the trial. 7ad he done so, his clients $ould probabl* have tried to contact hi# in dueti#e, and upon discoverin& that he $as sic% the* $ould have either &one to court to as% for thepostpone#ent of the trial, or the* $ould have loo%ed for another la$*er to represent the# in court.

"hen a&ain e find no sufficient e+culpator* evidence for respondent filin& a #otion for ne$ trial(out of ti#e,( e+actl* fort* da*s after notice of the decision rendered b* the court. Moreover, althou&hhe $as &iven an opportunit* to file a second #otion for ne$ trial, it appears that the sa#e $asdenied b* the court (on the &round that he had failed to co#pl* $ith its previous order dated1ebruar* -, ->=. In this connection, e reproduce hereunder the pertinent portion of the reportsub#itted b* the Solicitor General'

+++ +++ +++

"he said decision $as received b* @tt*. Palaa on Nove#ber , ->=/. "his isad#itted b* hi# in his second #otion for ne$ trial E+h. -5 @tt*. Palaa filed his

#otion for ne$ trial dated Dece#ber 0, ->=/ on 8anuar* /, ->=, )B da*s afterreceipt of ;udent E+h. C5. "he #otion for ne$ trial $as opposed b* the attorne*for the plaintiffs on the &rounds' -5 that the #otion for ne$ trial is not the properre#ed*< 5 that the #otion $as not acco#panied b* affidavits or affidavits of #eritsE+h. E5. @n a#ended #otion for ne$ trial $as subse6uentl* filed dated 8anuar* -,->=, attachin& thereto an affidavit e+ecuted b* @tt*. Palaa E+h. 15. On the sa#edate, 8anuar* -, ->=, the Court of 1irst Instance of "acloban Cit* ordered the#ovant (to serve a cop* of his a#ended #otion, if he so desires to a#end his#otion, to the other part* throu&h counsel, @tt*. 1ernando Suddrio not later than the


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=th of 8anuar* so that the latter #a* file a repl* if he so desires.( On 1ebruar* -,->=, another order $as issued b* the Court &ivin& @tt*. Palaa one $ee%Fs ti#e$ithin $hich to present another a#ended #otion for ne$ trial E+h. 75. @ subse6uenta#ended #otion for ne$ trial $as filed on 1ebruar* , ->= E+h. 75. "he said#otion for ne$ trial $as ho$ever denied on the sa#e date for (not havin& co#plied$ith the order of this court dated 1ebruar* -, ->?( E+h. 85.

IN VIE O1 @ "7E 1OREGOING, the respondent, as hereb* found &uilt* as char&ed in the reportand co#plaint filed b* the Solicitor General, and considerin& all the circu#stances of the case, he ishereb* suspended fro# the practice of la$ for a period of three #onths fro# notice hereof.

Concepcion, (e)es, J.B.!., *a+alintal, -aldi'ar, Fernando, 2eehan+ee, illamor and *a+asiar, JJ.,concur.

Castro, Barredo, JJ., too+ no part.

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