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PHILIPPINE SUPREME COURT DECISIONS

SECOND DIVISION

[G.R. No. L-40111. October 27, 1983.]

PEDRO S. RAVELO and CARMEN TAN RAVELO, Petitioners, v. COURT OF APPEALS and RURAL BANK OF SALINAS, INC., Respondents.

Ravelo and Valente, for Petitioners.

Genaro P. Aguas for Private Respondent.


SYLLABUS


1. REMEDIAL LAW; CIVIL PROCEDURE; PRE-TRIAL; OMISSION OF COURT TO SPECIFY IN A NOTICE OF HEARING THAT IT WAS A NOTICE OF PRE-TRIAL, NOT AN IRREGULARITY; EFFECT IF DEFENDANT DOES NOT APPEAR AT THE PRE-TRIAL. — As correctly contended by the bank that "initial hearing" was intended as a pre-trial but the Ravelos moved for postponement and did not appear at that initial hearing. It has been held that the omission of the court to specify in a notice of hearing that it we a notice of pre-trial is not an irregularity (Trocio v. Labayo, L-35701, September 19, 1973, 53 SCRA 97). If the defendant does not appear at the pre-trial, the plaintiff may he allowed to present his evidence (Province of Pangasinan and Soriano v. Palisoc, 116 Phil. 609).

2. ID.; APPEAL; INSTANT APPEAL MANIFESTLY FRIVOLOUS AND DILATORY. — Since the Ravelos did not appeal from the judgment, they cannot now complain that the trial court erred in allowing the bank to present its evidence ex parte. The lower court acted properly in denying the Ravelos’ motion for postponement. They hod no void defense to the action. The instant appeal is manifestly frivolous and dilatory.


D E C I S I O N


AQUINO, J.:


The Rural Bank of Salinas, Inc. on February 17, 1969 filed an action to foreclose a mortgage on two lots with an area of 1,923 square meters located at San Fernando, Pampanga which the spouses Pedro S. Ravelo and Carmen Tan executed on February 9, 1967 as security for a loan of P16,000 maturing after 270 days.

The Ravelo spouses pleaded that suit was premature because they had made representations to the bank that they be allowed to sell the lots in order to pay the mortgage debt.

The Ravelos and their counsel did not appear at the "initial hearing" scheduled on September 19, 1969. Instead, they caused to be filed on that date a motion for postponement on the ground of illness which the lower court denied (p. 43, Record on Appeal). A copy of the denial order was allegedly received by Ravelo on October 27, 1969. The bank presented its evidence ex parte. In its decision dated October 24, 1969 the lower court ordered the Ravelo spouses to pay the bank within ninety days from the finality of the decision P16,000 with 12% interest per annum from December 12, 1967, plus P500 as attorney’s fees, and, if no payment was made, then the mortgaged lots should be sold to pay the amount of the debt. A copy of the decision was received on November 4, 1969 by the Ravelos’ lawyer.

The lower court in its order of January 19, 1970 denied the Ravelos’ motion to set aside the judgment "by default" and granted the bank’s motion for reconsideration by increasing the attorney’s fees to P1,600 in accordance with the stipulation in the mortgage contract. The judgment became final and executory.

The sheriff sold the mortgaged properties on August 21, 1970 to the bank for P6,000. (The bank in its appellee’s brief offered to allow the Ravelos to redeem the mortgaged lots by paying P16,000 plus interest and bank charges within sixty days from the receipt of the brief.)

The bank filed a motion for confirmation of the sheriff’s sale. It was opposed by the mortgagors. It was confirmed in the lower court’s order of March 22, 1971. The Ravelos appealed that order to the Court of Appeals which affirmed the lower court’s order on December 16, 1974. The Ravelos appealed to this Court.chanrobles.com:cralaw:red

Their three assignments of error have no relevance to the said confirmation order. They assail the proceedings leading to the rendition of the judgment from which they did not appeal. They contend that the trial court erred in omitting the mandatory pre-trial and that the Court of Appeals erred in holding that the Ravelos had waived it by not raising that omission in the trial court.

The fact is that the bank filed a motion to set the case for pre-trial, a pleading not included in the Ravelos’ record on appeal. Acting on that motion, the trial court set the case for "initial hearing on September 19, 1969" (p. 14, Record on Appeal; pp. 9-10, Bank’s Brief)

As correctly contended by the bank that "initial hearing" was intended as a pre-trial but the Ravelos moved for postponement and did not appear at that initial hearing. It has been held that the omission of the court to specify in a notice of hearing that it was a notice of pre-trial is not an irregularity (Trocio v. Labayo, L-35701, September 19, 1973, 53 SCRA 97)

If the defendant does not appear at the pre-trial, the plaintiff may be allowed to present his evidence (Province of Pangasinan and Soriano v. Palisoc, 116 Phil. 609).

Since the Ravelos did not appeal from the judgment, they cannot now complain that the trial court erred in allowing the bank to present its evidence ex parte. The lower court acted properly in denying the Ravelos’ motion for postponement. They had no valid defense to the action. The instant appeal is manifestly frivolous and dilatory.chanroblesvirtualawlibrary

WHEREFORE, the judgment of the Court of Appeals is affirmed with costs against the Ravelos.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and Escolin, JJ., concur.

De Castro, J., is on sick leave.

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