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290 SUPREME COURT REPORTS

ANNOTATED
Philippine National Bank vs. Pineda

No. L 28505. August 29, 1969.

PHILIPPINE NATIONAL BANK, plaintiff-

appellee, vs. ESTANISLAO PINEDA,
defendant-appellant.

Remedial law; Civil actions; Appeal from

inferior courts to courts of first instance; Dismissal of
appeal far failure to prosecute.—Defendant-
appellant's failure to appear at the scheduled pre-
trial is a ground to authorize dismissal for failure to
prosecute, The judgment of the inf ferior court is
thus revived.
Same; Same; Same; Same; Withdrawal of
attorney from case.—Defendant-appellant's excuse
for his failure to appear at the scheduled pre-trial
that his counsel had withdrawn from the case as his
attorney was considered "very flimsy." The record
did not bear out such withdrawal.
Same; Same; Same; Same; Where defendant
appellant has no valid defense.—Where defendant
has no valid defense, reopening of the dismissal of
the appealed case will be futile.

BARREDO, J., concurring:

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Remedial law; Civil actions; Pre-trial; Judgment

on the pleadings.—If at the pre-trial the court finds
that facts exist upon which a judgment on the
pleadings may be made, it may render judgment on
the pleadings as justice may require. The questioned
order of dismissal of defendant-appellant's appeal
would be a judgment on the pleadings considering
that its effect is to revive the inferior court's
judgment against the defendantappellant

APPEAL from a judgment of the Court of First

Instance of Manila. Vasquez, J.

The facts are stated in the opinion of the Court

          Conrado E. Medina, Antonio P. Ruiz &
Augusto C. Villegas for plaintiff-appellee.
          Leopoldo M. Sembrano for defendant-
appellant.

SANCHEZ, J.:
1
From a judgment of the City Court of Manila
which

________________

1 Civil Case 153045, City Court of Manila, entitled

"Philippine National Bank, Plaintiff, versus Estanislao
Pineda, Defendant."

291

VOL. 29, AUGUST 29, 1969 291

Philippine National Bank vs. Pineda

reads: "Wherefore, judgment is hereby

rendered ordering the defendant to vacate the
premises within six (6) months from receipt of
this Decision, provided he pays the rent in
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arrears in the sum of ?149.60 as of April 30,

1967, and updates the payment of rental within
(10) days from receipt of this Decision,
provided, however, that defendant shall not be
entitled to the said 6-month grace should he
fail to make the above-stated payments.
Attorney's fees in the amount of P50.00 and
costs are assessed against defendant,"
defendant appealed 2
to the Court of First
Instance of Manila. Issues having been joined
in the latter court, the case was set for pre-
trial. After the case was repeatedly called for
the scheduled pre-trial on October 20, 1967, the
last time at 9:05 a.m., defendant and his
counsel failed to appear. The court dismissed
the appeal for failure to prosecute. Defendant's
efforts at reopening were thwarted below. He
came to this Court on appeal.
We vote to affirm. First. Defendant and his
counsel's failure to appear is a ground to
authorize dismissal for failure to prosecute.
The judgment
3
of the inferior court is thus
revived. Defendant's excuse for his failure to
appear at the scheduled pre-trial was that his
counsel, Atty. Pompeyo L. Bautista, had
withdrawn from the case as his attorney.
Correctly did the lower court
4
state that this
excuse is "very flimsy." With reason. The
record does not bear out such withdrawal.5
Under the law, notices are given to counsel.
Second. Defendant has not shown any valid
defense. It is conceded that he is a lessee
without a fixed term. This explains the fact
that the City Court gave him time to vacate the
premises. Nor will his averment that he has a
residential house on the land advance his
cause. He may not, as he claims, require

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________________

2 Civil Case 69965, Court of First Instance of Manila,

Branch V. entitled "Philippine National Bank, Plaintiff,
versus Estanislao Pineda, Defendant."
3 Section 9, Rule 40, Rules of Court; Vda. de Palanca vs.
Chua Keng Kian (1969), 27 SCRA 356, 365.
4 Record on Appeal, p. 40.
5 Section 2, Rule 13, Rules of Court.

292

292 SUPREME COURT REPORTS

ANNOTATED
Philippine National Bank vs, Pineda,

reimbursement of one-half of the value thereof.

Because, the option to acquire 6the
improvements is on the owner of the land. 7
So
that reopening of the case will be futile.
Judgment affirmed. Costs against
defendant-appellant So ordered.

          Concepcion, C.J., Dizon, Makalintal,

Zaldivar, Castro, Fernando, Capistrano and
Teehankee, JJ., concur.
          Barredo, J., concurs in the result in a
separate opinion.
     Reyes, J.B.L., J., is on official leave.

BARREDO, J.. concurring:

I concur in the result.

To my mind, this case is quite different from
the case of Vda. de Palanca vs. Chua Keng
Kian, 27 SCRA 356, wherein I dissented. In the
Palanca case, the Court of First Instance
dismissed defendant's appeal for failure to
prosecute only because he had not taken any
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move to have the case calendared even for pre-

trial for an unreasonable length of time. In the
case at bar, the record shows that the same had
been set for pre-trial several times and the
cause of the dismissal of the appeal was
precisely the failure of defendant-appellant to
appear thereat, Under Sec. 3 of Rule 20, "if at
the pre-trial the court finds that facts exist
upon which a judgment on the pleadings or a
summary judgment may be made, it may
render judgment on the pleadings or a
summary judgment as justice may require." I
imagine that while His Honor may not have
actually held any pre-trial, His Honor must
have gone somehow over the pleadings, and
since, as explained in the main opinion, it is
obvious from the records that defendant-
appellant has no substantial defense on the
merits, I would regard the herein questioned
order of dismissal of defendant-appellant's
appeal as virtually a judgment on the
pleadings, considering that its effect is to

________________

6 Article 1678, Civil Code of the Philippines. See: Lapeña

vs. Morfe, 101 Phil. 997, 1001.
7 Cf. De la Cruz vs. Burgos, L-28095, July 30, 1969.

293

VOL. 29, AUGUST 29, 1969 293

Galsim vs. Philippine National Bank

revive the inferior court's judgment against the

defendantappellant. It is my belief that the
rules on pre-trial are broad enough to enable
courts to adopt any measure, conducive to the
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early and expeditious termination of any case,

which is consistent with the purposes of a pre-
trial set forth in Section 1 of Rule 20 and not
expressly prohibited by said rule or any law or
other provision of the rules of court
Judgment affirmed.

Note.—Effect of failure to appear at pre-

trial.—See the annotation in 26 SCRA 5-13.

_____________

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