G.R. No. L-35989 October 28, 1977 FERMIN JALOVER, petitioner, vs.

PORFERIO YTORIAGA, CONSOLACION LOPEZ and HON. VENICIO ESCOLIN, in his capacity as Presiding Judge, Branch V, Court of First Instance of Iloilo, respondents. Facts: Sometime in April, 1960, private respondents Porferio Ytoriaga and Consolacion Lopez filed against Ana Hedriana and petitioner Fermin Jalover a complaint in the CFI of Iloilo. The action involves the possession and ownership of an accreted land. Respondents prayed that they be declared the owners of the increased portion of land and petitioners to vacate the premises and restore possession to the former. The case was set for trial. On September 4, 1963, private respondents, formally offered documentary evidence, and upon the admission thereof, they rested their case. (PLS. TAKE NOTE) Whereupon, continuation of trial was ordered transferred until further assignment. Trial was postponed many times stretching to a period of more than 6 years, until January 26, 1970, when the case was called for trial, and the Presiding Judge dismissed the case, for failure of private respondents to appear in court, in an order which reads: The complaint was filed on April 6, 1960 up to the present the trial of the case has not been finished. The counsel of record for the plaintiff is Atty. Amado Atol who since several years ago has been appointed Chief of the Secret Service of the Iloilo City Police Department. Plaintiff did not take the necessary steps to engage the service of another lawyer in lieu of Atty. Atol. Two years later, private respondents' lawyer, Atty. Amado B. Atol, filed an MR of the order dismissing the case. Atty. Atol alleged that the said respondents did not fail to prosecute because, during the times that the case was set for hearing, at least one of said respondents was always present, and the record would show that the transfers of hearing were all made at the instance of petitioner or his counsel; and, moreover, private respondents had already finished presenting their evidence. Petitioner opposed the motion on the ground that the order of dismissal issued two years before was an adjudication on the merits and had long become final. Respondent Judge denied the MR on the ground that the order of dismissal had become final long ago and was beyond the court's power to amend or change. Private respondents then filed a Petition for Relief from Judgment. The petition for relief was given due course, and respondent Judge set aside the order of dismissal by the CFI, and setting the continuation of the trial for September 15, 1972. The reasons stated by respondent Judge in support are: 1. While respondent Porferio Ytoriaga was furnished with a copy of the dismissal order, his counsel, Atty. Atol, was never served with a copy thereof, hence,

pursuant to the settled rule that where a party appears by attorney, a notice to the client and not to his attorney is not a notice of law, the said order of dismissal never became final; and (PLS. TAKE NOTE) 2. The order of dismissal was without legal basis, considering that private respondents had already presented their evidence and rested their case on September 4, 1963, and the hearing scheduled for January 26, 1970 was for reception of petitioner's evidence; Petitioner moved for reconsideration but was denied. Hence, the present special civil action. Issue: Whether the case has long become final and executory. Held: No. Order of Dismissal served to respondents, not to their counsel of record.

It is uncontroverted that the order dismissing the case for private respondents' "failure to Prosecute," was served upon private respondents themselves, and not upon their as attorney of record, Atty. Amado B. Atol, and that there was no court order directing that the court's processes, particularly the order of dismissal should be served directly upon private respondents. It is settled that when a party is represented by counsel, notice should be made upon the counsel, and notice upon the party himself is not considered notice in law unless service upon the party is ordered by the court. The term "every written notice" used in Section 2 of Rule 13 includes notice of decisions or orders. Private respondents' counsel of record not having been served with notice of the order dismissing the case, the said order did not become final. It will also be noted that, as found by respondent Judge, private respondents adduced their evidence and rested their case on September 4, 1963, or more than six years before the dismissal of the case. It was, therefore, the turn of petitioner, as defendant, to present his evidence.

Respondents absence at the hearing waived only right to cross-examine and not Failure to Prosecute.

In the premises, private respondents could not possibly have failed to prosecute they were already past the stage where they could still be charged with such failure. As correctly held by respondent Judge, private respondents' absence at the hearing scheduled on January 6, 1970 "can only be construed as a waiver on their part to cross-examine the witnesses that defendants might present at the continuation of trial and to object to the admissibility of the latter's evidence." The right to cross-examine petitioner's witnesses and/or object to his evidence is a right that belongs to private respondents which they can certainly waive. Such waiver could be nothing more than the "intentional relinquishment of a known right," and as such, should not have beer taken against private respondents. To dismiss the case after private respondents had submitted their evidence and rested their case, would not only be to hold said respondents accountable for waiving a right, but also to deny them one of the cardinal primary rights of a litigant, which is,

corollary to the right to adduce evidence, the right to have the said evidence considered by the court. The dismissal of the case for failure to prosecute, when in truth private respondents had already presented their evidence and rested their case, and, therefore, had duly ,prosecuted their case, would in effect mean a total disregard by the court of evidence presented by a party in the regular course of trial and now forming part of the record.

The ends of justice would be better served if, in its deliberative function, the court would consider the said evidence together with the evidence to be adduced by petitioner. Petition for relief from judgment A petition for relief is available only if the judgment or order complained of has already become final and executory; but here, as earlier noted, the order of dismissal never attained finality for the reason that notice thereof was not served upon private respondents' counsel of record. The petition for relief may nevertheless be considered as a second motion for reconsideration or a motion for new trial based on fraud and lack of procedural due process.