EN BANC
[G.R. No. L-6908. December 22, 1954. ]
GREGORIO RODILLAS, Plaintiff-Appellant, v. FARMACIA CENTRAL, INC., Defendant-Appellee.
Nicetas A. Suanes for Appellant.
Tañada & Teehankee for Appellee.
SYLLABUS
PLEADING AND PRACTICE; DISMISSAL FOR FAILURE TO PROSECUTE. — Failure of plaintiff’s attorney to be present at the trial constitute a failure to prosecute, if the party is unwilling to proceed with the scheduled trial (Del Prado v. Gonzales, Et Al., L-3933 May 23, 1952). Plaintiff’s counsel should have presented his motion for postponement at least three days in advance, in accordance with sections 2, 3 and 4 of Rule 26. As plaintiff failed to comply with the rules, it cannot be said that the trial court abused its discretion in denying the motion, or that plaintiff has been deprived of any right without due process of law.
D E C I S I O N
LABRADOR, J.:
This is an appeal from a judgment of the Court of First Instance of Manila, dismissing an action for overtime pay for failure on plaintiff’s part to prosecute the case. The appeal was brought directly to this court. It is claimed that the dismissal deprived the plaintiff-appellant of his day in court, and constituted a grave abuse of discretion. The facts are of records and the questions raised exclusively of law.
The action is for the recovery of overtime pay, with attorney’s fees as damages, The complaint alleges that plaintiff had rendered three hours of overtime service every day since his employment as driver, for which he claims corresponding overtime pay. The defendant- appellee denied the claim and demands damages in a counterclaim. Issues having been joined, attorney for plaintiff filed on May 6, 1953 an ex-parte motion to set the case for immediate hearing. Pursuant to this motion, the court set it for hearing on May 19, 1953 at 1:00 o’clock p.m. When the case was called for hearing in accordance with this assignment, plaintiff appeared, but without the presence of his counsel. On that day, at about 11:00 o’clock in the morning, the court had received a telegram which reads as follows: "Please postpone Rodillas versus Farmacia late June busy continuation criminal trial Batangas. Atty. Suanes." As counsel for defendant objected to the postponement prayed for in the telegram, and as plaintiff stated that he could not proceed with the trial, the court dismissed the case. Against this order, a motion for reconsideration was submitted, but the same was denied by the trial court.
In this court, counsel for the plaintiff-appellee argues that since he had asked for the inclusion of the case in the trial court’s calendar at its earliest convenience, as early as January, 1953, and that the case was barely seven months old, plaintiff can not be said to have failed to prosecute his case "for an unreasonable length of time."cralaw virtua1aw library
We have held that failure of a plaintiff’s attorney to be present at the trial constitutes a failure to prosecute, if the party is unwilling to proceed with the scheduled trial (Del Prado v. Gonzales, Et Al., * G. R. No. L-3933). In any case, counsel for plaintiff-appellant should have presented his motion for postponement at least three days in advance, in accordance with sections 2, 3 and 4, Rule 26 of the Rules of Court. The petition for postponement came on the very day of the trial and is without notice to the adverse party. As plaintiff-appellant failed to comply with the rules, it can not be said that the trial court abused its discretion in denying the motion, or that plaintiff-appellant has been deprived of any right without due process of law.
The order appealed from is hereby affirmed, with costs against the plaintiff-appellant.
Paras, C.J., Pablo, Bengzon, Montemayor, Jugo, Bautista Angelo, Concepcion, and Reyes, J. B. L., JJ., concur.
The action is for the recovery of overtime pay, with attorney’s fees as damages, The complaint alleges that plaintiff had rendered three hours of overtime service every day since his employment as driver, for which he claims corresponding overtime pay. The defendant- appellee denied the claim and demands damages in a counterclaim. Issues having been joined, attorney for plaintiff filed on May 6, 1953 an ex-parte motion to set the case for immediate hearing. Pursuant to this motion, the court set it for hearing on May 19, 1953 at 1:00 o’clock p.m. When the case was called for hearing in accordance with this assignment, plaintiff appeared, but without the presence of his counsel. On that day, at about 11:00 o’clock in the morning, the court had received a telegram which reads as follows: "Please postpone Rodillas versus Farmacia late June busy continuation criminal trial Batangas. Atty. Suanes." As counsel for defendant objected to the postponement prayed for in the telegram, and as plaintiff stated that he could not proceed with the trial, the court dismissed the case. Against this order, a motion for reconsideration was submitted, but the same was denied by the trial court.
In this court, counsel for the plaintiff-appellee argues that since he had asked for the inclusion of the case in the trial court’s calendar at its earliest convenience, as early as January, 1953, and that the case was barely seven months old, plaintiff can not be said to have failed to prosecute his case "for an unreasonable length of time."cralaw virtua1aw library
We have held that failure of a plaintiff’s attorney to be present at the trial constitutes a failure to prosecute, if the party is unwilling to proceed with the scheduled trial (Del Prado v. Gonzales, Et Al., * G. R. No. L-3933). In any case, counsel for plaintiff-appellant should have presented his motion for postponement at least three days in advance, in accordance with sections 2, 3 and 4, Rule 26 of the Rules of Court. The petition for postponement came on the very day of the trial and is without notice to the adverse party. As plaintiff-appellant failed to comply with the rules, it can not be said that the trial court abused its discretion in denying the motion, or that plaintiff-appellant has been deprived of any right without due process of law.
The order appealed from is hereby affirmed, with costs against the plaintiff-appellant.
Paras, C.J., Pablo, Bengzon, Montemayor, Jugo, Bautista Angelo, Concepcion, and Reyes, J. B. L., JJ., concur.
Endnotes:
* Promulgated on May 28, 1952.
