Avelino vs Palana Facts: Atty. Pedro K. Palana represented the petitioner in a Civil Case before CFI of Leyte. It appears that a hearing was scheduled on November 15, 1957 at 8:30 in the morning. During the said hearing, the respondent attorney failed to attend due to severe stomachache followed by constant moving moving of bowel and vomiting. As a result thereof, the trial court ruled against the petitioner and ordered the latter to surrender the ownership and possession of the land subject of the case to Fermin Natividad. A Motion for New Trial was filed by Atty. Palana, which was later amended. However, said Motions were denied by the court. Petitioner now charge Atty. Palana of malpractice in connection with his professional conduct, for his failure to inform them of the date of hearing and for failing to appear in the said date of hearing. The case was refered Office of the Solicitor General Issue: WON Atty. Palana is guilty of negligence in the performance of his duties as member of the bar. Held: Yes. In ruling against Atty. Palana, the Court adopted the findings of the Office of the Solicitor General. It was found Atty. Palana did not duly inform his client of the date of the trial scheduled for November 15, 1957 when the evidence shows that he received notice of such hearing on October 11, 1957. Also the Motion for new trial was made out of time, exactly 40 days after he received the decision, and he never explained such delay. As regards respondent's failure to appear in court on the day set for the trial, the Court is inclined to accept his claim that it was due to the fact that early in the morning of that date he had "a severe stomach ache, followed by constant moving of bowel and vomiting and that as a consequence he became very weak." But while this might be, to a certain extent, a good excuse for his non-appearance in court, it is obviously not sufficient to explain his failure to notify his clients in due time of the date of the trial. Had he done so, his clients would probably have tried to contact him in due time, and upon discovering that he was sick they would have either gone to court to ask for the postponement of the trial, or they would have looked for another lawyer to represent them in court. The Court found no sufficient exculpatory evidence for respondent filing a motion
for new trial "out of time," exactly forty days after notice of the decision rendered by the court. Moreover, although he was given an opportunity to file a second motion for new trial, it appears that the same was denied by the court "on the ground that he had failed to comply with its previous order dated February 1, 1958. IN VIEW OF ALL THE FOREGOING, the respondent, as hereby found guilty as charged in the report and complaint filed by the Solicitor General, and considering all the circumstances of the case, he is hereby suspended from the practice of law for a period of three months from notice hereof.
