DIGEST/CHERRIE MAE GRANADA/A.M. No. MTJ-00-1283 - COL. OCTAVIO ALVAREZ v. JUDGE AUGUSTUS C. DIAZ, ET AL./2004

[A. M. No. MTJ-00-1283 - March 3, 2004]

COL. OCTAVIO ALVAREZ, Complainant, v. JUDGE AUGUSTUS C. DIAZ, ATTY. VICTORY EDRALIN and MR. EFREN P. LUNA, MeTC, Branch 37, Quezon City, Respondents.


FACTS

This is an administrative complaint filed by Col. Octavio Alvarez against Judge Augustus C. Diaz, Clerk of Court Atty. Victory Edralin and Deputy Sheriff Efren Luna for grave abuse of authority, gross misconduct and solicitation of gifts relative to a forcible entry case. Complainant Alvarez was one of the defendants in the said case which resulted in the demolition of his office, his tenants' houses and other structures.

The allegation against the judge was centered primarily on: (1) his failure to issue to all parties a notice of hearing of the motion for execution since said notice was only furnished to the clerk of court, and (2) for granting plaintiff’s motion for demolition without notice and hearing. As to the second allegation, respondent judge argued that a hearing for the Motion for Demolition was "moot and academic" as his decision already included the demolition of the structures in the subject premises.

Edralin and Luna were both charged with grave misconduct and solicitation of gifts for the dismissal of the forcible entry case. As to the first charge, the former was alleged to have received the defective motions filed by the plaintiff, while the latter for demolishing the structures in the subject premises.

 

ISSUE

          Whether or not the respondents committed grave abuse of authority, gross misconduct and solicitation of gifts

 

RULING

After a meticulous review of the records, the Court finds respondent Judge Diaz guilty of gross ignorance of basic procedural laws and grave abuse of authority. In a previous decision, it was well-settled that any motion with a notice of hearing that is not addressed to all parties, in violation of Section 5, Rule 15 of the Rules of Court, is a mere scrap of paper which should not be accepted for filing and, if filed, is not entitled to judicial cognizance. Considering the seriousness of the offenses committed by respondent judge (gross ignorance of the law and grave abuse of authority), he is fined in the amount of P20,000.

On the other hand, the Court finds the evidence against respondents Clerk of Court Edralin and Deputy Sheriff Luna insufficient to hold them liable for grave misconduct and solicitation of gifts. However, respondent clerk of court is found guilty of ignorance of the law and incompetence in the performance of official duties for accepting the fatally defective motions of the plaintiffs. It is elementary in procedural law that any motion that fails to comply with Sections 4, 5 and 6, Rule 15 of the Rules of Court is a mere scrap of paper which the court has no right to consider, nor the clerk of court any right to receive.  It is also elementary that any Motion for Demolition cannot be granted ex parte, as notice and hearing are necessary for the issuance of the Writ of Demolition. For this, she is fined in the amount of P5,000

On the other hand, respondent deputy sheriff cannot be held liable for grave misconduct because "when a writ is placed in the hands of the sheriff, it is his duty, in the absence of any instruction to the contrary, to proceed with reasonable celerity and promptness, to execute it accord

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