G.R. No. L-5083, TOMAS SUNICO, liquidator of a mercantile association, known as Chuidian, Buenaventura & Co., in liquidation, plaintiff-appellant, vs. JOSE VILLAPANDO, ET AL., defendants-appellees, October 25, 1909.

FACTS:
Tomas Sunico, as liquidator of a mercantile association, filed an action to foreclose a mortgage. During the initial hearing on July 21, 1908, it was found that one defendant had not been served and was believed deceased without a legal representative. The trial judge directed the plaintiff to either proceed against the served defendant or amend the pleadings to bring in a legal representative for the deceased. Plaintiff chose the latter, and the case was continued to the “first day of the October term,” with a formal order directing the plaintiff to amend the pleadings.

The case was subsequently set on the October calendar for the 13th day of that month. When called, the plaintiff and his counsel failed to appear, and the pleadings had not been amended. The served defendant appeared, ready for trial, and moved for the dismissal of the action due to the plaintiff’s absence and failure to prosecute. The trial court dismissed the complaint under Section 127 of the Code of Civil Procedure (failure to appear and failure to prosecute for an unreasonable length of time).

Plaintiff’s counsel later filed motions for continuance and reinstatement of the action, both of which were denied. On appeal, plaintiff’s counsel explained their absence on October 13 by stating that notice of the hearing reached them in Manila only on the evening of October 12, making it physically impossible to travel to Batangas in time. They also excused their failure to amend the pleadings by claiming it had been “impracticable” to secure the necessary data for the appointment of a legal representative.

ISSUE:
Did the trial court err in refusing to reinstate the action after dismissing it due to the plaintiff’s failure to appear and prosecute, considering the plaintiff’s explanations?

RULING:
No. The Supreme Court affirmed the dismissal.

The Court held that the trial court properly dismissed the complaint under Section 127 of the Code of Civil Procedure, as the plaintiff failed to appear at the time of trial and failed to prosecute his action by amending the pleadings as previously ordered. No excuse or explanation was forthcoming at the time of the dismissal.

Regarding the refusal to reinstate the case, the Supreme Court found the plaintiff’s explanations unsatisfactory:
1. Failure to appear: Plaintiff and counsel were duly notified on July 21, 1908, that the case was set for the “first day of the October term.” It was their duty to appear on that date. The notice for October 13 was merely a continuance within the same term. Their failure to receive this later notice in time for October 13 was a consequence of their initial failure to appear on the originally set date. The Court noted that “ordinary prudence” would have guarded against the alleged surprise.
2. Failure to amend pleadings: The period from July 21 to October 13 was “amply sufficient” for securing the appointment of a legal representative, in the absence of exceptional circumstances, which were not shown. The Court noted that the plaintiff’s counsel, having neglected to perfect their pleadings, seemed to have “recklessly relied upon the generosity of their adversary and the liberality of the court.”

Therefore, the trial judge did not commit reversible error in exercising his discretion to refuse the reinstatement of the action.