G.R. No. L-12379; July 31, 1958
NUGUID and NUGUID, plaintiff-appellant, vs. VENANCIO CARIÑO, defendant-appellee.

FACTS

On May 19, 1952, plaintiffs-appellants Nuguid brothers, civil engineers, entered into a contract with defendant-appellee Venancio Cariño for him to supply labor for construction work on a house. In December 1952, the Nuguid brothers filed a complaint for specific performance and damages, alleging Cariño abandoned the project. Cariño answered, denying abandonment and counterclaiming for unpaid labor wages. At the hearing, plaintiffs failed to appear. The court declared them in default, received defendant’s evidence, and on June 17, 1953, dismissed the complaint and ordered plaintiffs to pay Cariño P811.05 plus attorney’s fees and costs. Plaintiffs filed a motion for relief under Rule 38 (on grounds of accident), which was granted, setting aside the decision. On the new hearing date of November 4, 1954, plaintiffs again failed to appear. The court revived its June 17, 1953 decision. Plaintiffs filed a motion for reconsideration dated November 29, 1954, alleging excusable negligence because their former lawyer withdrew without informing them of the hearing date. This motion was filed without an accompanying affidavit of merit. On the date set for hearing the motion, plaintiffs filed an affidavit of merit stating their defenses but not detailing the accident or negligence. The lower court denied the motion for not being presented in accordance with the Rules of Court. Plaintiffs appealed.

ISSUE

Whether the lower court erred in denying plaintiffs’ motion for reconsideration (treated as a petition for relief under Rule 38) for failure to comply with the procedural requirement of accompanying it with a proper affidavit of merit.

RULING

No, the lower court did not err. The Supreme Court affirmed the lower court’s order. While the subsequent filing of the affidavit of merit on the hearing date could be considered as having “accompanied” the motion, the affidavit itself was deficient. Under Rule 38, Section 3, an affidavit of merit must show both the fraud, accident, mistake, or excusable negligence relied upon and the facts constituting the petitioner’s good and substantial defense. The filed affidavit only set forth plaintiffs’ defenses but did not specify the accident or excusable negligence. The motion itself alleged the negligence (lawyer’s withdrawal without notice), but this was not under oath in the affidavit. The granting of relief under Rule 38 is discretionary with the court, and under the circumstances, the lower court did not abuse its discretion in denying the motion. The order was affirmed with costs against appellants.