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

YTORIAGA FACTS: This involves a land dispute filed by Ytoriaga and Lopez against Hedriana and Jalover in the CFI of Iloilo. They claim that they the owners of the lot, covered by TCT by virtue of the effects of the current of the river based on the principle of continuous possession and alluvion. They alleged that Jalover , without their consent had the portion of the land surveyed and even placed concrete monuments thereof and even took possession of the land. Jalover , alleged, inter alia, that he is the owner of the land as sole heir of his mother, who owned the land pursuant to Article 461 of the Civil Code of the Philippines. Ytoriaga and Lopez offered documentary evidence and upon admission thereof, rested their case. Jalover prayed the court to dismiss the complaint with costs against Ytoriaga and Lopez Issues having been joined, the case was set for trial. 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 then Presiding Judge Ramon Blanco dismissed the case, for failure of private respondents to appear in court, since the Plaintiff did not take the necessary steps to engage the service of another lawyer in lieu of Atty. Atol, who since several years ago has been appointed Chief of the Secret Service of the Iloilo City Police Department. Two years later, private respondents' lawyer, Atty. Amado B. Atol, filed a motion for reconsideration alleging 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. respondent Judge Venicio Escolin, who succeeded Judge Blanco in Branch V, issued an order denying the motion for reconsideration 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 dated July 10, 1972, claiming that the order of dismissal dated January 26, 1970 was void because of lack of due process and for having been obtained thru fraud, for the petitioner had misrepresented to the court the status of the case by making Judge Blanco - who was not the Presiding Judge when private respondents presented their evidence and rested their case in 1963 - believe that trial had not even begun. Petitioner opposed the petition for relief contending that private respondents were served a copy of the order of dismissal on February 5, 1970, and, therefore, pursuant to Section 3, Rule 38 of the Revised Rules of Court, the petition for relief should have been filed within 60 days from February 5, 1970, and within 6 months from January 26, 1970, when the order was issued; hence, the filing of the petition was beyond the reglementary period.The petition for relief was given due course,setting aside the orders dated January 26, 1970 and June 23, 1972, and setting the continuation of the trial for September 15, 1972. Hence, the present recourse by petitioner. ISSUE: WON the prior case was validly dismissed for failure to prosecute HELD: NO It will be noted that, as found by respondent Judge, private respondents, as plaintiffs, adduced their evidence and rested their case on September 4, 1963, or more than six years before the dismissal of the case on January 26, 1970. It was, therefore, the turn of petitioner, as defendant, to present his evidence. In the premises, private respondents court 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 been 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.However,relief from judgment under Rule 38 of the Revised Rules of Court is not the appropriate remedy. 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 January 26, 1970 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.