ESCUETA AND BALOLOY V. LIM (REMEDIAL)

PRE-TRIAL is mandatory. The notices of pre-trial had been sent to both the Baloloys and their former counsel of record. Being served with notice, he is charges with the duty of notifying the party represented by him. He must see to it that his client receives such notice and attends the pre-trial. What the Baloloys and their former counsel have alleged instead in their motion is the belated receipt of the special power of attorney, not that they have not received the notice or been informed of the scheduled pre-trial. Not having raised the ground of lack of a special power of attorney in their motion, they are not deemed to have waived it. Certainly, they cannot raise it at this late stage of the proceedings. For lack of representation, Baloloy was properly declared in default.

Section 3 of Rule 38 of the Rules of Court sates:

SEC 3. TIME FOR FILING PETITION; CONTENTS AND VERIFICATION - a petition provided for in either of the preceding sections of this Rule must be verified, filed within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not mroe that 6 months after such judgment or final order was entered, or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner's good and substantial cause of action or defense as the cas may be.

There is no reason for the Baloloys to ignore the effects of the above rule. the 60-day period is reckoned from the time the party acquired knowledge of the order, judgment, or proceedings and not from the date he actually read the same.

Further, no fraud, accident, mistake, or excusable negligence exists in order that the PETITION FOR RELIEF may be granted.