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Petitioner Vergara commenced in the MTC of Davao City an action for

unlawful detainer against the private respondents GUINOO, MONTEBON

DOMINGO VERGARA, SR., petitioner, and CABASE.
HON. JOSE T. SUELTO Presiding Judge of the Municipal Trial Court in In their answer to the complaint, 3 defendants —
Davao City, Branch IV, MANOLITO GUINOO ROMEO MONTEBON and 1) denied Vergara's ownership of the building
PORFERIO CABASE respondents. 2) claimed that their lease contract was null and void;
3) claiming that they had been "occupying the premises in the
Two issues are involved in the instant special civil action of mandamus. concept of an owner;,
4) claimed that by virtue of the judgment of the RTC in Civil Case
declaring null and void the title issued over a certain- of which
FACTS: Vergara's was formerly a part, they were claiming Vergara's land "as
their share as member of Salandanan et al Landless Association,"
1) Petitioner Vergara is the owner of a commercial building consisting of 3 which was "a recognized intervenor" in the case.
sections, each of which is separately occupied by the private respondents as
lessees; Vergara filed a Motion for Summary Judgment. 5

2) the defendants' lease contracts, two of which were written, were all on "a Defendants filed an "Opposition to Motion for Summary Judgment and
month to month basis, originally prescribed a monthly rental of P350.00, later Motion to Dismiss." 8 They argued, among others, that —
increase to P450.00;
1. It "cannot be resolved by mere resort to summary judgment," that issue
3) because the defendants all defaulted in the payment of their rentals for having arisen from Vergara's claim "of possession and ownership over the
many months, Vergara's lawyer sent each of them a letter "(1) demanding commercial building and the land.
payment of their unpaid rentals, (2) terminating their lease contracts on 2
grounds: non- payment of rentals and plaintiff's need of the property for some
other purpose, and (3) demanding that defendants vacate the leased 3. The Court had no jurisdiction over the case because "the real issue
premises not later than the end of said month of December 1985; " involved ... is title and/or ownership of the property and not physical
possession," and "this case should not be by accion interdictal but accion de
reivendicacion . "
4) the defendants sent Vergara a joint reply stating this confirmation to leave
the said premises. However, they requested for extension for another 3
months due to economic reason, & for them to find new space. In addition, MTC (respondent Judge):
defendant Montebon also paid a part of his arrearage;
1. denied the defendants' motion to dismiss bec. -MTC believes there was
5) later however, the defendants wrote Vergara another letter; this time, they Unlawful Detainer. Which, in accordance with Section 33 of BP 129 said
refused to leave the premises on the ground that the lot on which the court has authority to resolve the issue of ownership if only to determine the
building stands, though titled in Vergara's name, was part of a tract of land issue of possession.
Identified ordered reverted to the public domain by the RTC in a decision
rendered in a Civil Case. 2. denied Vergara's motion for summary judgment. On the ground that -
... there was material allegations of facts in the complaint constituting
6) Vergara wrote back, reiterating his demand to vacate; his reply having plaintiff's cause of action. The rule gives the court limited authority to enter
ignored, he referred to the Lupon ng Barangay; and when the controversy summary judgment. Upon a motion for summary judgment, the court's sole
was not settled by conciliation, he instituted the ejectment suit at bar. function is to determine whether there is an issue of fact to be tried.
ISSUE 1: constitutional or other tribunals, bodies or agencies whose acts for some
WON the appropriateness of a summary judgment may ever be so self- reason or another, are not controllable by the Court of Appeals.
evident in a case so as to grant the plaintiff's motion therefor by the
Trial Judge. Where the issuance of an extraordinary writ is also within the competence of
the Court of Appeals or a Regional Trial Court, it is in either of these courts
ISSUE 2: that the specific action for the writ's procurement must be presented. This is
WON application for a writ of mandamus against a municipal trial court and should continue to be the policy in this regard, a policy that courts and
be filed directly with the Supreme Court considering that jurisdiction to lawyers must strictly observe.
issue this extraordinary writ is also possessed by the Court of Appeals
as well as the Regional Trial Court. In the case at bar, however, to apply the policy by referring the action to the
Regional Trial Court of the district would serve no useful purpose. It would on
SC HELD: the contrary work injustice to the petitioner to whom the relief rightly due has
already been withheld for many years. The case having been filed before this
1. Even if the answer does tender issues and therefore a judgment on Court as early as 1986, and having already been subject of an extensive
the pleadings is not proper-a summary judgment may still be exchange of pleadings, it should and will now be decided without further
rendered. If he can show to the Court's satisfaction that "except as to delay.
the amount of damages, there is no genuine issue as to any material
fact," that is to say, the issues thus tendered are not genuine or WHEREFORE, the Order of the respondent Judge denying the petitioner's
patently unsubstantial. (plaintiff's) motion for summary judgment, and declining to reconsider the
same, are hereby annulled and set aside.
In this case, the defendants' answer appears on its face to tender
issues. But the issues thus tendered are not genuine. Premises Said respondent Judge is hereby commanded forthwith to render a summary
considered, the propriety of a summary judgment cannot be judgment in favor of the petitioner (plaintiff) against the private respondents
disputed. (defendants), in accordance with the prayer of the former's motion for
summary judgment.

In this case, the defendants' answer appears on its face to tender issues. It The appropriateness and correctness of a summary judgment in the
purports to deal with each of the material allegations of the complaint, and premises having already been adjudged by this Court, His Honor is further
either specifically denies, or professes lack of knowledge or information to commanded to direct execution of the judgment immediately upon its
form a belief as to them. It also sets up affirmative defenses. But the issues rendition. This decision is immediately executory and no motion for extension
thus tendered are sham, not genuine, as the slightest reflection and analysis of time to file a motion for reconsideration shall be entertained. Costs against
will readily demonstrate private respondents.

The remedy properly available to the petitioner, however, is not the

writ of mandamus. Well known is the rule that mandamus issues only
to compel performance of a mandatory, ministerial duty.

2. Such a direct recourse to the Supreme Court should not be allowed.

The Supreme Court is a court of last resort. It cannot and should not
be burdened with the task of dealing with causes in the first instance.

Its original jurisdiction to issue the so-called extraordinary writs should be

exercised only where absolutely necessary or where serious and important SOLIS, RAFAEL ALEJANDRO L. CASE # 06 CRISTINA DIMAN, et al vs.
reasons exist therefor. Hence, that jurisdiction should generally be exercised HON, FLORENTINO M. ALUMBRES, PRESIDING JUDGE, RTC, LAS
relative to actions or proceedings before the Court of Appeals, or before
PIÑAS, BRANCH 255; HEIRS OF VERONICA V. MORENO LACALLE, as professor of law and dean of the University of Manila," and had
REPRESENTED BY JOSE MORENO LACALLE entertained "the honest belief" that it would be granted.


HOW THE CASE REACHED THE SC:  Alumbres granted only 15-day extension based on judge’s discretion.

RTC Las Pinas dismissed ->Petition for review on certiorari dismissed ->MR ISSUES: WON the comment should be admitted by the court
 The case began in the RTC Las Pinas where a complaint for "Quieting of  Application of the rules on modes of discovery rests upon the sound
Title and Damages" was filed by the Heirs of Veronica V. Moreno Lacalle discretion of the court. Parallel to this, determination of the sanction to be
(represented by Jose Moreno Lacalle) against Cristina Diman, Clarissa imposed upon a party who fails to comply with the modes of discovery rests
Diman, George Diman, Felipe Diman and Florina Diman. on the same sound judicial discretion. It is the duty of the courts to examine
thoroughly the circumstances of each case and to determine the applicability
 The petition for review on certiorari in this case was initially dismissed via of modes of discovery, bearing always in mind the aim to attain an
Resolution on January 1998 but after deliberating on petitioners' MR on expeditious administration of justice.
February 1998, the private respondents' comment thereon, the reply to the
comment, as well as the record of the case itself, the Court was convinced  Although the pleadings on their face appear to raise issues of fact, if it is
that the order of dismissal should be reconsidered and the petition reinstated. shown by admissions, depositions or affidavits, that those issues are sham,
fictitious or not genuine, or, in the language of the Rules, that except as to
 The court accordingly promulgated a resolution to that effect on October the amount of damages, there is no genuine issue as to any material fact and
12, 1998, and required respondents to file their Comment on the petition that the moving party is entitled to a judgment as a matter of law, the Court
within ten (10) days from notice. Notice of the Resolution was duly served on shall render a summary judgment for the plaintiff as the case may be.
private respondents' attorney on October 21, 1998. The latter filed a motion
for extension of time of 30 days to file comment, counted from October 31.  A judgment on the pleadings is a judgment on the facts as pleaded, while a
The Court granted the extension sought, but only for 15 days. The comment summary judgment is a judgment on the facts as summarily proven by
was filed late, on November 20, 1998, Counsel's explanation is that he had affidavits, depositions or admissions. Another distinction is that while the
sought an extension of 30 days "due to the other volume of legal works remedy of a judgment on the pleadings may be sought only by a claimant
similarly situated and school work of the undersigned as professor of law and (one seeking to recover upon a claim, counterclaim, or cross-claim or to
dean of the University of Manila," and had entertained "the honest belief" that obtain a declaratory relief, supra), a summary judgment may be applied for
it would be granted. However, he learned belatedly that only a 15-day by either a claimant or a defending party.
extension had been conceded. He completed the comment and filed it, but it
was five days late.  The Court admits the late comment, but takes this occasion to reiterate the
familiar doctrine that no party has a right to an extension of time to comply
 This case deals with modes of discovery — a request for admission under with an obligation within the period set therefor by law; motions for extension
Rule 26; legal consequences of the failure to respond thereto in the manner are not granted as a matter of course; their concession lies in the sound
indicated by law. It also treats of other adjective devices to expedite litigation: discretion of the Court exercised in accordance with the attendant
a summary judgment under Rule 34, and a judgment on demurrer to circumstances; the movant is not justified in assuming that the extension
evidence under Rule 35. (NOTE: This case used the 1964 ROC!). sought will be granted, or that it will be granted for the length of time
suggested by him. Thus, any movant may move for extension to exercise
PETITIONER’S ARGUMENT: due diligence to inform himself as soon as possible of the Court's action on
his motion, by time inquiry of the Clerk of Court. Should he neglect to do so,
 Counsel's explanation for seeking an extension of 30 days "due to the other he runs the risk of time running out on him, for which he will have nobody but
volume of legal works similarly situated and school work of the undersigned himself to blame.
Nocom oppose Camerino’s motion on ground that there were factual issues.
 The Lacalle Heirs had proven nothing whatever to justify a judgment in Subsequently, Nocom file d Motion to Dismiss- NO Jurisdiction since it is a Real
their favor. They had not presented any copy whatever of the title they Action docket fees paid was insufficient. Camerino insisted that it was a personal
wished to be quieted. They had not adduced any proof worthy of the name to action (revocation of an Irrevocacle Power of Attorney).
establish their precedessors' ownership of the land. On the contrary, their
own evidence, from whatever aspect viewed, more than persuasively RTC granted Motion for Summary Judgment since there is no genuine issue of fact
indicated their lack of title over the land, or the spuriousness of their claim of that needs to be tried in court. Camarino is also ordered to pay the balance of the
ownership thereof. The circumstances, including the outlandish grounds of docket fees.
opposition advanced by the Heirs against the Dimans' motions for summary
judgment and for demurrer to evidence, no less than the obviously mistaken RTC rendered a Summary Judgment annulling the “Irrevocable Power of Attorney” for
grounds cited by the Trial Court for denying said motions, this Court has no being contrary to law and public policy on the qualification of the beneficiaries of the
hesitation in declaring that it was indeed grave abuse of discretion on the agrarian reform program.
part of the TC to have refused to render a summary judgment or one on
demurrer to evidence. CA affirmed Summary Judgment and dismissed Nocom’s appeal. The CA found the
issues raised by the petitioner in his appeal to be questions of law. MR denied.
 WHEREFORE, the challenged Decision of the Court of Appeals is
REVERSED and SET ASIDE: the Orders are annulled and the Civil Case ISSUE: WON CA erred in dismissing Nocom’s appeal and upholding that the
dismissed. Cost against private respondents. summary judgment was proper.


FACTS: Contrary to the findings of the RTC and the CA, the present case involves certain
factual issues which remove it from the coverage of a summary judgment.
Respondents are tenants of the lots which they were seeking to redeem from SMSC.
In this present case, while both parties acknowledge or admit the existence of the
They won but the case has not yet been fully executed since TCT’s were not yet
transferred to them. While all of these are pending, Atty. Santos the counsel for “Irrevocable Power of Attorney,” the variance in the allegations in the pleadings of the
Respondents in their case against SMSC facilitated a deal between Respondents and petitioner and that of the respondents require the presentation of evidence on the
Nocom. The deal would transfer all their inchoate rights to Nocom. The deal went issue of the validity of the “Irrevocable Power of Attorney” to determine whether its
through and Respondents’ were paid after they executed an “Irrevocable Power of execution was attended by the vices of consent and whether the respondents and
Attorney” in the name of Nocom.Respondents won their case and the court ordered their spouses did not freely and voluntarily execute the same.
the transfer of titles and the annotation of the Irrevocable Power of Attorney to the
Under Section 1, Rule 35 of the Rules of Court, a party seeking to recover upon a
claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time
However, Camerino filed a complaint against Nocom, captioned as “Petition to after the pleading in answer thereto has been served, move with supporting affidavits,
depositions or admissions for a summary judgment in his favor upon all or any part
Revoke Power of Attorney. Alleging that the document was not explained to them and
they were mislead by their counsel. thereof.

On January 30, 2006, respondent Oscar Camerino filed a Motion for Summary Summary judgment is a procedural device resorted to in order to avoid long drawn out
Judgment alleging that since the existence of the “Irrevocable Power of Attorney” was litigations and useless delays. When the pleadings on file show that there are no
genuine issues of fact to be tried, the Rules allow a party to obtain immediate relief by
admitted by petitioner, the only issue to be resolved was whether the said document
was coupled with interest and whether it was revocable in contemplation of law and way of summary judgment, that is, when the facts are not in dispute, the court is
jurisprudence; that Summary Judgment was proper because petitioner did not raise allowed to decide the case summarily by applying the law to the material facts.
any issue relevant to the contents of the “Irrevocable Power of Attorney”; and that in Conversely, where the pleadings tender a genuine issue, summary judgment is not
an Affidavit dated January 23, 2005, he admitted receipt of a check amounting to proper.
P500,000.00 which was given to him by petitioner as financial assistance.
A “genuine issue” is such issue of fact which requires the presentation of evidence as
distinguished from a sham, fictitious, contrived or false claim.
Section 3 of the said rule provides two (2) requisites for summary judgment to be - now they're assailing the validity of the foreclosure proceedings by mercator
proper: (1) there must be no genuine issue as to any material fact, except for the , the sale in the public auction, new tct's, and subsequent sale to Salazar,
amount of damages; and (2) the party presenting the motion for summary judgment and the subsequent sale and transfer to herein respondent Lamecs.
must be entitled to a judgment as a matter of law.
2. Mercator:
A summary judgment is permitted only if there is no genuine issue as to any material - contended that "on February 16, 1982, plaintiffs executed a Mortgage in
fact and a moving party is entitled to a judgment as a matter of law. A summary favor of defendant Mercator for and in consideration of certain loans and
judgment is proper if, while the pleadings on their face appear to raise issues, the other forms of credit accommodations given by mercator, amounting to
affidavits, depositions, and admissions presented by the moving party show that such P844,625, and those that mortgagee may extend to the plaintiff mortgagors.
issues are not genuine. - since petitioners and Embassy Farms signed the promissory note as co-
makers, aside from the Continuing Suretyship and the succeeding
The present case should not be decided via a summary judgment. Summary promissory notes restructuring the loan, then petitioners are jointly and
judgment is not warranted when there are genuine issues which call for a full blown severally liable with Embassy Farms.
trial. The party who moves for summary judgment has the burden of demonstrating - Due to their failure to pay the obligation, the foreclosure and subsequent
clearly the absence of any genuine issue of fact, or that the issue posed in the sale of the mortgaged properties are valid.
complaint is patently unsubstantial so as not to constitute a genuine issue for trial.
Trial courts have limited authority to render summary judgments and may do so only 3. Respondents Salazar and Lamecs:
when there is clearly no genuine issue as to any material fact. When the facts as - innocent purchasers for value and in good faith, relying on the validity of
pleaded by the parties are disputed or contested, proceedings for summary judgment the title of Mercator.
cannot take the place of trial - they are guilty of laches and estoppel. It was only after a lapse of almost
ten (10) years from the foreclosure of the property and the subsequent sales
that they made their claim.

4. After pre-trial, Mercator moved for summary judgment on the ground that
except as to the amount of damages as petitioners had admitted the
SPOUSES EDUARDO B. EVANGELISTA and EPIFANIA C. existence of the promissory note, the continuing suretyship agreement and
EVANGELISTA, Petitioners, the subsequent promissory notes restructuring the loan, hence, there is no
vs. genuine issue regarding their liability. All transacations were valid.
AND DEVELOPMENT CORP. and the REGISTER OF DEEDS OF 5. Petitioners opposed the motion for summary judgment claiming that
BULACAN, Respondents. because their personal liability to Mercator is at issue, there is a need for a
full-blown trial.
1. Petitioners filed a complaint1 for annulment of titles against respondents,
Mercator Finance Corporation, Lydia P. Salazar, Lamecs Realty and 6. RTC granted the motion for summary judgement and dismissed the
Development Corporation complaint:
- they are the registered owners of 5 parcels of land contained in the Real - the liability of the signatories thereto are solidary in view of the phrase
Estate Mortgage executed by them and Embassy Farms, Inc. "jointly and severally."
- MAIN CONTENTION: they executed the Real Estate Mortgage in favor of - On the promissory note the signatures of Eduardo B. Evangelista, Epifania
Mercator ONLY as officers of Embassy Farms. C. Evangelista and another signature of Eduardo B. Evangelista below the
- They did not receive the proceeds of the loan evidenced by a promissory words Embassy Farms, Inc. It is crystal clear then that the plaintiffs-spouses
note, as all of it went to Embassy Farms. signed the promissory note NOT only as officers of Embassy Farms but in
- so the mortgage was without any consideration as to them since they did their personal capacity.
not personally obtain any loan or credit accommodations. There being no - Plaintiffs by affixing their signatures thereon in a dual capacity have bound
principal obligation on which the mortgage rests, the real estate mortgage is themselves as solidary debtor(s) with Embassy Farms, Inc. to payMercator
void. - That the principal contract of loan is void for lack of consideration, in the
light of the foregoing is untenable. MFR denied.
issue: WON summary judgment is proper? YES. IN VIEW WHEREOF, the petition is dismissed.

1. Summary judgement proper: there are no genuine issues raised by

petitioners. Petitioners do not deny that they obtained a loan from Mercator. MONTEREY FOODS V ESERJOSE By: Christine Nartea
They merely claim that they got the loan as officers of Embassy Farms G.R. No. 153126. Topic: Propriety of
without intending to personally bind themselves or their property. However, a September 11, 2003 Summary Judgment
simple perusal of the promissory note and the continuing suretyship FACTS:
agreement shows otherwise. These documentary evidence prove that  For 12 years, ESERJOSE bought from MONTEREY live cattle and hogs
petitioners are solidary obligors with Embassy Farms. which he in turn sold and distributed to his customers.
- Transations were covered by invoices and delivery receipts
2. The note was signed at the bottom by petitioners Eduardo B. Evangelista - Payable within 10 days from invoice date
and Epifania C. Evangelista, and Embassy Farms, Inc. with the signature of  ESERJOSE was not able to pay which led to an overdue account of P87M.
Eduardo B. Evangelista below it. So, MONTEREY ceased its transaction with ESERJOSE.
 During the existence of the contractual relations between the parties, they
3. The Continuing Suretyship Agreement also proves the solidary obligation entered into a contract growing agreement.
of petitioners ((3) The obligations hereunder are joint and several and - MONTEREY supplied livestock for ESERJOSE to grow, care for and
independent of the obligations of the Principal. ) nurture in his farm located in San Jose, Batangas.
- After 5 months, MONTEREY withdrew from the contract without
4. as to the argument that there is an ambiguity in the wording of the paying ESERJOSE for his services, alleging that ESERJOSE failed to
promissory note and that since it was Mercator who provided the form, then post the requisite bond under the contract and poorly performed his
the ambiguity should be resolved against it. farm management functions to the detriment of the animals.
 ESERJOSE repeatedly demanded that MONTEREY pay him for his
SC SAYS: Courts can interpret a contract only if there is doubt in its letter.25 services under the contract, amounting to P1.28M.
But, an examination of the promissory note shows no such ambiguity. - His demands went unheeded.
Besides, assuming arguendo that there is an ambiguity, Section 17 of the - He filed with RTC an action for sum of money and damages.
Negotiable Instruments Law states, viz:  At pre-trial conference, MONTEREY and their counsel failed to appear,
SECTION 17. Construction where instrument is ambiguous. – Where the and an Order was issued declaring them as in default and allowed
language of the instrument is ambiguous or there are omissions therein, the ESERJOSE to present evidence ex parte.
following rules of construction apply:
 MONTEREY filed a motion for new trial which the trial court granted.
(g) Where an instrument containing the word "I promise to pay" is signed by
 At the initial hearing of the case, petitioners confirmed in open court that
two or more persons, they are deemed to be jointly and severally liable
they indeed entered into a contract growing agreement with respondent
and that the latter was entitled to a net compensation of P482,766.88 under
the said contract.
5. as to the argument that: the promissory note does not convey their true
 The trial court, acting on petitioner’s judicial admission, rendered partial
intent in executing the document.
summary judgment insofar as the amount of P482,766.88 was concerned,
SC SAYS: NO. Even if petitioners intended to sign the note merely as
and set the case for trial for the presentation of evidence on petitioners’
officers of Embassy Farms, still they executed a continuing suretyship
agreement. A surety is one who is solidarily liable with the principal. claim for damages. Respondent moved for the execution of the partial
Petitioners cannot claim that they did not personally receive any summary judgment, which the trial court granted.
consideration for the contract for well-entrenched is the rule that the  Petitioners filed a motion for reconsideration which was denied for lack of
consideration necessary to support a surety obligation need not pass directly merit.
to the surety, a consideration moving to the principal alone being sufficient. A  Petitioners filed a petition for certiorari befor the CA, which was
surety is bound by the same consideration that makes the contract effective dismissed.
between the principal parties thereto. Issue:
WON summary judgment is proper
 Rule 35, Section 3 of the Rules of Court provides two (2) requisites for aside or the irregularity otherwise cured by the court, or to appeal from the
summary judgment to be proper: (1) there must be no genuine issue as to final judgment, and not thru certiorari.
any material fact, except for the amount of damages; and (2) the party
presenting the motion for summary judgment must be entitled to a
judgment as a matter of law.
 The record shows that at the hearing on November 25, 1999, petitioners
admitted liability under the contract growing agreement in the amount of
P482,766.88. As a result, respondent agreed to waive all his other claims
in the complaint, including his claim for consequential damages.
Correspondingly, insofar as the complaint was concerned, there was no
other genuine issue left for which the complaint for sum of money and
damages may be prosecuted. Also by reason of such admission,
petitioners, in effect, likewise waived whatever defenses they may have to
deter recovery by respondent under the said contract. Thus, respondent
became entitled, as a matter of law, to the execution of the partial summary
judgment. When there are no genuine issues of fact to be tried, the Rules
of Court allows a party to obtain immediate relief by way of summary
judgment. In short, since the facts are not in dispute, the court is allowed
to decide the case summarily by applying the law to the material facts.
 The rulings in Province of Pangasinan and Guevarra is not applicable in
the case at bar. The said cases specifically delved on the appeal of a partial
summary judgment, which did not dispose of all the reliefs sought in the
complaint. In the case at bar, other than the admitted liability of petitioners
to respondents under the contract growing agreement, all other reliefs
sought under the complaint had already been expressly waived by
respondent before the trial court. Accordingly, the assailed November 25,
1999 Order of the trial court which granted partial summary judgment in
favor of respondent was in the nature of a final order which leaves nothing
more for the court to adjudicate in respect to the complaint. In Santo
Tomas University Hospital v. Surla, the Court distinguished a final
judgment or order from an interlocutory issuance in this wise: The concept
of a final judgment or order, distinguished from an interlocutory issuance,
is that the former decisively puts to a close, or disposes of a case or a
disputed issue leaving nothing else to be done by the court in respect
thereto. Once that judgment or order is rendered, the adjudicative task of
the court is likewise ended on the particular matter involved. An order is
interlocutory, upon the other hand, if its effects would only be provisional
in character and would still leave substantial proceedings to be further had
by the issuing court in order to put the controversy to rest.
 We find, however, that the absence of the written notice did not divest the
trial court of authority to pass on the merits of the motion made in open
court. The order of the court granting the motion for summary judgment
and its execution thereof despite absence of a notice of hearing, or proof
of service thereof, is merely an irregularity in the proceedings. It cannot
deprive the court of its authority to pass on the merits of the motion. The
remedy of the aggrieved party in such cases is either to have the order set