EN BANC
[G.R. No. L-6428. August 31, 1954. ]
Testate Estate of the Deceased TOMASA DAYO. PATRICIO DAYO and HIPOLITO DAYO, Petitioners-Appellants, v. FILEMON, AGAPITA, CANDIDO, AMADO, JULIO, LAURA, CRISPINA, FELIX, ADRIANO, HIPOLITO, CORNELIO, TOMAS, GREGORIA, CASTOR, RITA, TEOFILA, GREGORIO, SILVINO, FELICIDAD, QUITERIO, IRENE, and EMILIO, all surnamed DAYO, CORNELIA VILLAVERDE, MARIA JARDIN, ASUNCION VILLAVERDE, RUFINO VILLAVERDE, SABINA TALABONG, LUCAS GAGAN, DIEGO SENO, and SOFIA DE ASIS, Oppositors-Appellees.
Tañada, Pelaez & Teehankee, for Appellants.
SYLLABUS
1. PLEADING AND PRACTICE; GENERAL CONSIDERATION FOR DISMISSAL OF ACTIONS APPLIES TO SPECIAL PROCEEDINGS. — Although no specific provision exists in the Rules of court regarding the dismissal of special proceedings, the same general consideration for the dismissal of actions should apply to their dismissal, with the added circumstances that since they are not contentious suits depending upon the will of an actor, but upon a state or condition of things or persons not entirely within the control of the parties interested, dismissals should be ordered not as penalty for neglect of the applicants, but only in extreme cases where the termination of the proceeding by dismissal is the only remedy consistent with equity and justice.
2. ID.; ID.; PROBATE OF WILLS; PROBATE CAN NOT BE DISMISSED FUR TO ABSENCE OF COUNSEL OF APPLICANTS. — In the case at bar, the applicants for the probate of a will were present in court, only that their lawyer was absent. The probate court denied the motion of counsel for applicants for postponement and dismissed the application with prejudice. Held: The Rules of Court do not provide for dismissal of an action on the ground of the absence of counsel. The probate court should have given the applicants an opportunity, even, in the absence of their lawyer, to continue presenting their evidence (as the case only needed the formal presentation of the deposition of the third attesting witness), instead of dismissing the application for probate.
2. ID.; ID.; PROBATE OF WILLS; PROBATE CAN NOT BE DISMISSED FUR TO ABSENCE OF COUNSEL OF APPLICANTS. — In the case at bar, the applicants for the probate of a will were present in court, only that their lawyer was absent. The probate court denied the motion of counsel for applicants for postponement and dismissed the application with prejudice. Held: The Rules of Court do not provide for dismissal of an action on the ground of the absence of counsel. The probate court should have given the applicants an opportunity, even, in the absence of their lawyer, to continue presenting their evidence (as the case only needed the formal presentation of the deposition of the third attesting witness), instead of dismissing the application for probate.
D E C I S I O N
LABRADOR, J.:
This is an appeal from a judgment of the Court of First Instance of Quezon, the Honorable Vicente Santiago presiding, dismissing the petition for probate filed and pending continuation of trial in the above-entitled proceedings. The petition for probate was filed on May 28, 1947, and was set for hearing on June 24,1947. Three oppositions were filed against the petition, one by relatives of the decedent represented by Attorney Felixberto M. Serrano, another by others represented by Attorney Vicente Constantino, and a third by Sofia de Asis represented by Attorneys De Mesa and De Mesa. The hearing of the petition took place as scheduled on June 24, 1947, and at said hearing the original will and a duplicate were presented, and the testimonies of two attesting witnesses taken. The third attesting witness is Attorney Nicodemus L. Dasig of Manila, and authority for the taking of his deposition was obtained by the applicant. The deposition was actually taken on January 3, 1948, and certified to the court in May, 1948. No action appears to have been taken on the case by the court or by the parties the rest of the year 1948, but in the year 1949 the following proceedings were taken:chanrob1es virtual 1aw library
Date Nature of Proceeding Action taken
February 9 Motion by applicant to set Court did not grant
case for continuation of motion but ordered the
hearing transcription of the
stenographic notes.
July 29 Motion of applicant to set Court order, August 9,
case for continuation of setting trial for
hearing September 1.
August 23 Motion for postponement Granted. Attorney for
by Atty. F. M. Serrano, on petitioners did not
the ground that he is busy appear; postponed to
attending sessions of to September 23rd.
Congress
September 23. Telegraphic petition of Granted in order of
Atty. F. M. Serrano to September 29; post-
postpone trial. poned November 8
November 15. Order setting hearing for
December 6.
December 6. Order postponing for
December 21 trial of case
because of absence of clerk
of court and conformity of
parties.
December 12. Motion for postponement of Denied by Court
Attys. De Mesa & De Mesa December 19th.
on the ground that the lawyer
was going to act as sponsor
in a wedding.
December 19. Attorney for petitioner Denied by Court
telegraphs conformity December 19th.
to petition.
December 21. Hearing, Present were
applicants without lawyer;
oppositors oppositors with
their attorneys.
Motion for postponement Denied by Court on
by attorney for applicants December 21 and
alleging: "que el infrascrito dismissed petition
esta mejorandose de for probate, with
su reciente ataque de prejudice.
fiebre reumatica, y aunque
este dia ha podido bajar
un momento a la calle,
es el case de que no puede
todavia hacer un viaje
por tren o auto, como se
acredita por el adjunto
Certificado Medico," which
states that Atty. Salazar
667 Legarda, "is suffering
from rheumatoid arthritis
with acute episodes of attacks.
With his partial recovery,
it is advised that he should
keep and must avoid jerky
movements or any muscular
strenous activity."cralaw virtua1aw library
January 4, (1950) Motion for reconsideration, Denied by Court on
by attorney for applicants, March 31, 1950.
alleging partly that he himself
was to testify, as he is the
one who prepared the will,
and the words "her mark"
were placed by him thereon,
etc.
January 9. Opposition to motion for
reconsideration. Attention
called to fact that Atty. Salazar
appeared in Manila at hearing
of Electoral Tribunal on
December 21, 1949.
January 15, (1950) Oppositions of other oppositors
to motion for reconsideration.
On this appeal it is contended that the dismissal of the petition for probate is not justified by the provisions of section 3 of Rule 30 of the Rules, and that inasmuch as the proceedings are special in nature and no specific provision exists in the Rules regarding their dismissal as in ordinary cases, the trial court should have given opportunity to the applicants, even in the absence of their lawyer, to continue presenting their evidence (as the case only needed the formal presentation of the deposition of the third attesting witness), instead of dismissing the application.
It is true that the Rules do not expressly provide for the application of Rule 30 in special proceedings, but the same general considerations should apply to their dismissal (of special proceedings), with the added circumstance that since they are not contentious suits depending upon the will of an actor, but upon a state or condition of things or persons not entirely within the control of the parties interested, dismissals should be ordered not as penalty for neglect of the petitioners, but only in the extreme cases where the termination of the proceeding by dismissal is the only remedy consistent with equity and justice. Here was a will of a decedent, in accordance with the provisions of which his properties are to be disposed of. The oppositors are not in court because they have been forced to do so by summons, as in ordinary cases; they are in court voluntarily, claiming right by intestate succession. Their right should not be considered paramount to those of the deceased owner, who had tried to dispose of his properties. Every opportunity should be afforded to the parties, who seek to have the decedent’s will carried out, to have the will admitted to probate before the oppositor’s claims can be given consideration. We hold that this opportunity was improperly refused the applicants in these proceedings.
Even under the provisions of section 3 of Rule 30, the dismissal may not be justified. Said rule provides:.
SEC. 3. Failure to prosecute. — When plaintiff fails to appear at the time of the trial, or to prosecute his action for an unreasonable length of time, or to comply with these rules or any order of the court, the action may be dismissed upon motion of the defendant or upon the court’s own motion. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise provided by court.
In the case at bar, the petitioners were present in court, only that their lawyer was absent. The rule does not provide a dismissal on the ground of the absence of counsel. In a case decided by this court (Lourdes del Prado de Alegre v. Jose Nespral, G. R. No. L-3933, promulgated May 28, 1952), it was held that there is failure to prosecute when the plaintiff, being present, is unwilling to proceed with the scheduled trial, as when he or his attorney made no appearance at all. In the case at bar, only counsel for petitioners were absent, not the parties interested in the probate. Neither can it be said that they have failed "to prosecute their action for an unreasonable length of time, or to comply with the rules or any order of the court." Petitioner had also never asked for postponement; it was always the oppositors who had asked for it, and at all times it was always granted by the court. As appellants claim, the most that the judge below could have done, under the circumstances, was to grant the petitioners an hour or two to engage the services of a new lawyer to terminate with the formal presentation of the deposition of the last attesting witness and the documentary evidence.
An examination of the order denying the motion for reconsideration seems to indicate that the trial judge was peeved at what he thought to have been an act of bad faith of counsel for petitioners in claiming that he was unable to appear at the trial. There can be no justification for this conclusion, that petitioners’ counsel tried to mislead the court, misrepresenting that he was ill and could not attend. What counsel actually stated is that he was prohibited by his condition to undertake the trip to Lucena, Quezon, from Manila. And this is proved by the medical certificate attached to the motion for postponement.
We, therefore, hold that the trial judge erred in dismissing the petition for probate. The order appealed from is hereby reversed and the case ordered reinstated for further proceedings. Without costs.
Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Concepcion and Reyes, J.B.L., JJ., concur.
Date Nature of Proceeding Action taken
February 9 Motion by applicant to set Court did not grant
case for continuation of motion but ordered the
hearing transcription of the
stenographic notes.
July 29 Motion of applicant to set Court order, August 9,
case for continuation of setting trial for
hearing September 1.
August 23 Motion for postponement Granted. Attorney for
by Atty. F. M. Serrano, on petitioners did not
the ground that he is busy appear; postponed to
attending sessions of to September 23rd.
Congress
September 23. Telegraphic petition of Granted in order of
Atty. F. M. Serrano to September 29; post-
postpone trial. poned November 8
November 15. Order setting hearing for
December 6.
December 6. Order postponing for
December 21 trial of case
because of absence of clerk
of court and conformity of
parties.
December 12. Motion for postponement of Denied by Court
Attys. De Mesa & De Mesa December 19th.
on the ground that the lawyer
was going to act as sponsor
in a wedding.
December 19. Attorney for petitioner Denied by Court
telegraphs conformity December 19th.
to petition.
December 21. Hearing, Present were
applicants without lawyer;
oppositors oppositors with
their attorneys.
Motion for postponement Denied by Court on
by attorney for applicants December 21 and
alleging: "que el infrascrito dismissed petition
esta mejorandose de for probate, with
su reciente ataque de prejudice.
fiebre reumatica, y aunque
este dia ha podido bajar
un momento a la calle,
es el case de que no puede
todavia hacer un viaje
por tren o auto, como se
acredita por el adjunto
Certificado Medico," which
states that Atty. Salazar
667 Legarda, "is suffering
from rheumatoid arthritis
with acute episodes of attacks.
With his partial recovery,
it is advised that he should
keep and must avoid jerky
movements or any muscular
strenous activity."cralaw virtua1aw library
January 4, (1950) Motion for reconsideration, Denied by Court on
by attorney for applicants, March 31, 1950.
alleging partly that he himself
was to testify, as he is the
one who prepared the will,
and the words "her mark"
were placed by him thereon,
etc.
January 9. Opposition to motion for
reconsideration. Attention
called to fact that Atty. Salazar
appeared in Manila at hearing
of Electoral Tribunal on
December 21, 1949.
January 15, (1950) Oppositions of other oppositors
to motion for reconsideration.
On this appeal it is contended that the dismissal of the petition for probate is not justified by the provisions of section 3 of Rule 30 of the Rules, and that inasmuch as the proceedings are special in nature and no specific provision exists in the Rules regarding their dismissal as in ordinary cases, the trial court should have given opportunity to the applicants, even in the absence of their lawyer, to continue presenting their evidence (as the case only needed the formal presentation of the deposition of the third attesting witness), instead of dismissing the application.
It is true that the Rules do not expressly provide for the application of Rule 30 in special proceedings, but the same general considerations should apply to their dismissal (of special proceedings), with the added circumstance that since they are not contentious suits depending upon the will of an actor, but upon a state or condition of things or persons not entirely within the control of the parties interested, dismissals should be ordered not as penalty for neglect of the petitioners, but only in the extreme cases where the termination of the proceeding by dismissal is the only remedy consistent with equity and justice. Here was a will of a decedent, in accordance with the provisions of which his properties are to be disposed of. The oppositors are not in court because they have been forced to do so by summons, as in ordinary cases; they are in court voluntarily, claiming right by intestate succession. Their right should not be considered paramount to those of the deceased owner, who had tried to dispose of his properties. Every opportunity should be afforded to the parties, who seek to have the decedent’s will carried out, to have the will admitted to probate before the oppositor’s claims can be given consideration. We hold that this opportunity was improperly refused the applicants in these proceedings.
Even under the provisions of section 3 of Rule 30, the dismissal may not be justified. Said rule provides:.
SEC. 3. Failure to prosecute. — When plaintiff fails to appear at the time of the trial, or to prosecute his action for an unreasonable length of time, or to comply with these rules or any order of the court, the action may be dismissed upon motion of the defendant or upon the court’s own motion. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise provided by court.
In the case at bar, the petitioners were present in court, only that their lawyer was absent. The rule does not provide a dismissal on the ground of the absence of counsel. In a case decided by this court (Lourdes del Prado de Alegre v. Jose Nespral, G. R. No. L-3933, promulgated May 28, 1952), it was held that there is failure to prosecute when the plaintiff, being present, is unwilling to proceed with the scheduled trial, as when he or his attorney made no appearance at all. In the case at bar, only counsel for petitioners were absent, not the parties interested in the probate. Neither can it be said that they have failed "to prosecute their action for an unreasonable length of time, or to comply with the rules or any order of the court." Petitioner had also never asked for postponement; it was always the oppositors who had asked for it, and at all times it was always granted by the court. As appellants claim, the most that the judge below could have done, under the circumstances, was to grant the petitioners an hour or two to engage the services of a new lawyer to terminate with the formal presentation of the deposition of the last attesting witness and the documentary evidence.
An examination of the order denying the motion for reconsideration seems to indicate that the trial judge was peeved at what he thought to have been an act of bad faith of counsel for petitioners in claiming that he was unable to appear at the trial. There can be no justification for this conclusion, that petitioners’ counsel tried to mislead the court, misrepresenting that he was ill and could not attend. What counsel actually stated is that he was prohibited by his condition to undertake the trip to Lucena, Quezon, from Manila. And this is proved by the medical certificate attached to the motion for postponement.
We, therefore, hold that the trial judge erred in dismissing the petition for probate. The order appealed from is hereby reversed and the case ordered reinstated for further proceedings. Without costs.
Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Concepcion and Reyes, J.B.L., JJ., concur.
