G.R. No. 176652 - AUGUSTO C. SOLIMAN, VS. JUANITO C. FERNANDEZ, IN HIS CAPACITY AS RECEIVER OF SMC PNEUMATICS (PHILS.), INC..D E C I S I O N - Supreme Court E-Library

Ruling

WHEREFORE, for failure to prosecute let this case be, as it is hereby DISMISSED. [15] Respondent filed a Motion for Reconsideration [16] but it was denied by the trial court in its 22 April 2005 Order. Respondent filed a Notice of Appeal [17] seeking the reversal of the Orders of the RTC. In his Brief, [18] respondent argued that it is the duty of the Branch Clerk of Court to set a case for pre-trial. Respondent hinged this argument on the Supreme Court Resolution entitled Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures, [19] wherein the Court ruled that: Within five (5) days from the date of filing of reply, the plaintiff must promptly move ex parte that the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the Branch COC shall issue a notice of pre-trial. Respondent contended that the Guidelines set by the Supreme Court has effectively relaxed Rule 18, Section 1 of the Revised Rules of Court, which states that it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. Finding merit in the contentions advanced by respondent, the appellate court held that the lower court need not immediately dismiss the case for failure of respondent to file a motion to set the case for pre-trial because the Branch Clerk of Court should have issued a Notice of Pre-Trial. The dispositive portion of the assailed Decision of the CA read: WHEREFORE , premises considered, the appeal is GRANTED . The assailed Orders are hereby REVERSED and SET ASIDE. Let this case be REMANDED to the Regional Trial Court of Quezon City, Branch 83 for further proceedings. [20] Aggrieved by the Decision, petitioner filed with the CA a Motion for Reconsideration of the 27 July 2006 Decision. [21] Petitioners Motion for Reconsideration was denied in a Resolution [22] of the CA dated 12 February 2007. Petitioner elevated the case to this Court by filing the present Petition for Review on Certiorari . Petitioner raised in issue the CA jurisdiction to entertain respondents appeal from the order of dismissal of the RTC. He contends that since the respondents appeal from the RTC order of dismissal raised a question purely of law, the same was within the exclusive appellate jurisdiction of the Supreme Court. [23] He maintained that the Decision of the CA should therefore be deemed null and void ab initio. Respondent, on the other hand, emphasized that petitioner cannot raise the issue of jurisdiction in the present Petition for Review on Certiorari under Rule 45 of the Rules of Court. He argued that petitioner should have filed instead a special civil action under Rule 65. For such error, he insisted that the instant petition should be dismissed outright. Respondent further pointed out that petitioner never questioned the jurisdiction of the CA while the case was pending before the appellate court. He even in