SPS. DULOS vs. COURT OF APPEALS, G.R. No. 87917 August 7, 1990 (Digested)

SPS. DULOS vs. COURT OF APPEALS,G.R. No. 87917 August 7, 1990.CRUZ, J.:

Civil Procedure: Rule 9 Effect of Failure to Plead

Facts:

The spouses Dulos were sued for forcible entry by the spouses Mariano and Anacoreta Nocom, private respondents herein, in the

Earlier, on August 16, 1988, the petitioners had filed a complaint against the private respondents for annulment of sale, reconveyance of title, and various other reliefs plus a writ of preliminary injunction. The petitioners filed a motion for the suspension of the proceedings in the forcible entry case on the ground that there was a prejudicial question of ownership involved in the annulment case. The petitioners' counsel, Atty. Ravelo, set August 18, 1988, for the hearing of the motion at the pre-trial conference scheduled on the same date.

Neither petitioners nor their counsel appeared on that date. However, one Ananita Rectra manifested at the hearing that she was duly authorized by virtue of a special power of attorney to represent petitioner Juan Dulos, her brother, who was then confined at the Manila Doctors Hospital after having undergone a femur operation. The petitioners were nonetheless declared in default. Judge Alfredo R. Enriquez denied the motion for the suspension of the proceedings, holding that the issue of ownership was not a prejudicial question in the ejectment case. The evidence of the private respondents was subsequently received in the absence of the petitioners.

On October 4, 1988, judgment was rendered in favor of the private respondents.

They filed a motion for reconsideration and was denied.

Issue:

Whether or not the petitioners had been properly declared in default for failure to appear at the scheduled hearing.

Held:

Yes, petitioners did not employ the proper remedy prescribed by the Rules of Court. As enumerated in Lina v. Court of Appeals, ³ the remedies available to a defendant declared in default are:

1. The defendant in default may, at any time after discovery thereof and before judgment, file a motion under oath to set aside the order of default on the ground that was failure to answer or appear on the date set for pre-trial was due to fraud, accident, mistake or excusable negligence, and that he has a meritorious defense;

2. If the judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory, he may file a petition for new trial under Sec. 1(a) of Rule 37;

3. If the defendant discovered the default after the judgment has become final and executory, he may file a petition for relief under Sec. 2, Rule 38; and

4. He may also appeal from the judgment rendered against him as contrary to the evidence or the law, even if no petition to set aside the order of default has been presented by him.

The petitioners did not avail themselves of any of the above remedies. Instead, after taking no action whatsoever for all of sixty days, x x x

It is obvious the petitioners have failed to take into account the following pertinent provisions of the Rules of Court concerning notices in case a party is declared in default:

Rule 18, Sec. 2. Effect of order of default. — Except as provided in Section 9 of Rule 13, a party declared in default shall not be entitled to notice of subsequent proceedings, nor to take part in the trial.

Rule 13, Sec. 9. Service upon party in default. — No service of papers other than substantially amended or supplemental pleadings and final orders or judgments shall be necessary on a party in default unless he files a motion to set aside the order of default in which event he shall be entitled to notice of all further processings regardless of whether the order of default is set aside or not.

Rule 18, Sec. 3. Relief from order of default. — A party declared in default may at any time after discovery thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable neglect and that he has a meritorious defense. In such case the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice.

 x x x x

In Suzara v. Caluag, ⁵ this Court held that a motion for reconsideration of a judgment of default may be considered a petition for relief under Section 2 of Rule 38 only if the following requisites are present: (1) it must be verified; (2) it must be filed within 60 days from the time petitioner learns of the decision but not more than 6 months from entry thereof, and (3) in case of failure to file an answer, the motion must be accompanied by affidavits of merit showing the fraud, accident, mistake and excusable negligence relied upon