Dismiss were all in such nature and character that addressed themselves to a motu
Court of Appeals
proprio resolution by the court and thus rendered a hearing dispensable.
- This was denied and the appeal was also denied by the CA.
- Cham Samco's belief that it was not necessary that its motion to dismiss be set for
hearing because the fact that while the Rules of Court "specify the motions which
can be heard only with prior service upon adverse parties, said Rules "do not point
out which written motions may be ex parte, and the further fact that its motion to
dismiss was based on two grounds on which a hearing was superfluous.
ISSUE
W/N Cham Samcos motion is considered an excusable negligence.
RULING & RATIO
YES
These considerations, to be sure, did not erase movant's duty to give notice to the
adverse party of the date and time of the hearing on its motion, the purpose of said
notice being, as already stressed, not only to give the latter time to oppose the
motion if so minded, but also to determine the time of its submission for resolution.
Without such notice, the occasion would not arise to determine with reasonable
certitude whether and within what time the adverse party would respond to the
motion, and when the motion might already be resolved by the Court. The duty to
give that notice is imposed on the movant, not on the Court.
This circumstance, taken together with the fact, found by the Intermediate Appellate
Court and not disputed by petitioner Azajar, that Cham Samco has meritorious
defenses which if proven would defeat Azajar's claim against it, and the eminent
desirability more than once stressed by this Court that cases should be determined
on the merits after full opportunity to all parties for ventilation of their causes and
defenses, rather than on technicality or some procedural imperfections, all conduce
to concurrence with the Court of Appeals that "the ends of justice would be better
served in this case if we brush aside technicality and afford the petitioner its
day in court.
Azajar v.
Petition to review the Resolution of the Court of Appeals
Petitioner: Igmedio Azajar
Respondents: Court of Appeals (Second Division) and Cham Samco & Sons, Inc.
DOCTRINE: Requirement of service of motions upon the adverse party three (3) days
before the date of hearing; Failure to comply with the requirement of notice, fatal.
However, in the case it was not fatal for the purpose of achieving justice.
FACT
- Azajar purchased 100 kegs of nails in the amount of 18k through the agent of Cham
Samco which was specified in the latter s printed forms. However, Cham Samco
only offered to deliver half of the order. Subsequently Azjar filed a complaint in the
CFI of Camarines Sur.
- Cham Samco filed a motion to dismiss on two grounds:
For Failure of the complaint to state a cause of action and that the Venue was
improperly laid
- The motion contained a notice addressed to the clerk of court which states Please
submit the foregoing motion to the Court for its consideration and resolution
immediately upon receipt thereof.
- Azajar contended that such a notice was fatally defective and rendered the Motion
to Dismiss incapable of to the period to answer, Azajar filed a motion to declare
Cham Samco in default, which the Court granted.
This is because the defendant filed a Motion to Dismiss rather than an answer
which, in legal contemplation, is not a motion at an because the "notice" therein is
directed to the Clerk of Court instead of to the party concerned as required by
Section 5, Rule 15 of the Rules of Court.
Also is without the requisite notice of time and place of hearing; that a motion
"with a notice of hearing (a) directed to the Clerk of Court not to the parties; and
(b) merely stating that the same be "submitted for resolution of the Honorable
Court upon receipt thereof," copy of which motion was duly furnished to and
received by "the adverse counsel is fatally defective and did not toll the running of
the period to appeal.
- Cham Samco filed for a motion for new trial contending that his failure of abiding by
the rules is an excusable diligence because the grounds alleged in the Motion to