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RULE 9: EFFECT OF FAILURE TO PLEAD opposition and refused to lift the order of default against him, and in a separate

Order issued on the same date, the City Court granted PCIB's motion to require
G.R. No. L-49396 January 15, 1988 Sy Ho to pay monthly rentals corresponding to the premises occupied by him
directly to it, instead of to his co-defendant, Minoria, who apparently had
JUAN A. GOCHANGCO, HON. FELINO GARCIA, as Presiding Judge of the City therefore been acting as caretaker of the property.
JOSE, petitioners, At this point all proceedings in this ejectment suit were for the most part
vs. suspended for the reason of controversies as regards the administration and
THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, BRANCH IV, SY hereditary rights over his estate. The Court directed the heirs of C. N. Hodges to
HO and MILAGROS MINORIA, respondents. sell and dispose the real properties composing the intermixed assets of the said
estate. Among the estate assets sold were the lots subject of the ejectment
Petition: suit at bar. They were sold to Juan A. Gochangco he obtained titles over them
in his name in due course.
Application of no more than quite elementary principles governing the modes of
acquisition of jurisdiction by a court over the person of a defendant, default, Gochangco lost no time in advising Minoria and Sy Ho of his acquisition of the
substitution of parties plaintiff, judgment on the pleadings, and execution property and demanding their vacation thereof. 12 He also filed an "Ex-Parte
pending appeal in ejectment cases, is what is chiefly called for in this appeal Motion for Substitution of Plaintiff and Reception of Evidence, which the City
by certiorari. Court granted. Accordingly, Gochangco presented evidence ex-parte; this, as
regards Sy Ho, who had been declared in default.
As regards defendant Minoria, Gochangco filed a motion for judgment on the
pleadings. He contended that Minoria's answer failed to tender any issue
An action of unlawful detainer was filed by C.N. Hodges in the City Court of because it admitted the material allegations of the complaint; that her answer
Bacolod. Hodges sought the ejectment from certain parcels of land in Bacolod City also failed to disclose any privity between her and the late Manuel Moreno, whom
titled in his name, of several persons, namely: Sy Ho, and Milagros Minoria, she claimed to be co-owner of the house found on the premises in question, so as
among others. to substantiate her theory that she had been properly designated caretaker of the
Summons was duly served on Minoria. Although she refused to acknowledge
such service, she subsequently filed an answer to the complaint, thru counsel. In his turn, Sy Ho filed a motion to set aside order of default in which he also
prayed to be allowed to present a written answer to the complaint, he claimed
Sy Ho also appears to have been served with summons, service being evidenced, that his failure to file answer to the complaint was due to the fault of his
it is claimed, by the return to this effect of the Provincial Sheriff. But, as, will counsel. What the City Court did was to issue subpoena for the appearance of
shortly be recounted, Sy Ho would later deny such service. Minoria and Sy so that "they might have their day in Court." But one day before
his scheduled appearance, Sy Ho filed a Motion to Dismiss the complaint stating
Plaintiff Hodges died during the pendency of the ejectment suit; and the court- in substance that the complaint stated no cause of action; the case against him
appointed Administrator of his estate, the Philippine Commercial and Industrial had not been prosecuted for an unreasonably long span of time; and the cause of
Bank (PCIB), was substituted as party plaintiff. PCIB thereafter filed a motion to action was barred by the statute of limitations under PD No. 20
declare Sy Ho in default for failure to answer the complaint, which was granted.
Sy Ho filed a verified "Opposition to the Motion for Default." He alleged that he There followed various attempts by the parties, to arrive at an amicable
had never received summons; apparently the summons had been served at the settlement. All failed Thereafter the City Court finally rendered judgment
place where he maintained his scrap iron business, which was not his residence ordering Sy Ho and Minoria to vacate the premises within thirty (30) days.
and at which he had no representative authorized to receive court processes and Motions for reconsideration separately filed by By Ho and Minoria were denied,
notices; and he prayed that 'he be allowed to present his answer within ten (10) as were also, their second motions for reconsideration.
days and that if ever he has been already declared in default without due service
of the notice to him, the said order be lifted." 7 The City Court overruled his
Gochangco moved for execution pending appeal. The Court granted the motion that declaration. He did fail to answer the complaint within the reglementary
and issued the writ of execution. Sy Ho and Minoria thereupon filed a joint period therefor prescribed, and proof of such failure had in due course been
petition for certiorari and prohibition with application for preliminary injunction adduced. 33 And even if that failure may in truth be blamed on his lawyer, there is
discretion with the Court of First Instance of Negros Occidental. The petition nothing in the record excusing that negligence, or showing fraud, accident or
imputed grave abuse of discretion to the City Court in denying Sy Ho's mistake warranting the Court's setting aside of the order of default.
motion to set aside order of default and motion to dismiss.
In any case, Sy Ho never really pressed the issue of the efficacy of service of
On August 29, 1978, judgment was rendered by the Court of First Instance summons on him with vigor or persistence Instead, he submitted himself to the
granting the writ of certiorari and annulling all the proceedings in the City Court's jurisdiction. His submission to the Court's jurisdiction is necessarily
Court of Bacolod. The Court said that Sy Ho was not properly served with inferred from his act of request for leave to present his answer to the
summons, hence, there was no basis at all for respondent court to declare him in complaint, of voluntarily complying with the City Court's Order for the payment
default. of rentals, and filing various other motions and pleadings. There is, too, his
counsel's admission already adverted to, that Sy Ho had really submitted himself
Issue: Whether Sy Ho was properly served with summons to the City Court's jurisdiction. There can thus be no debate about the proposition
that jurisdiction of his person had been acquired by the City court by his
Ruling: Yes. The Trial Court erred. Whatever defect might have existed in voluntary appearance and acquiescence.
the return of the service of summons on Sy Ho was rendered
inconsequential by subsequent events, duly entered in the record, The record furthermore discloses that the prejudice to Sy Ho occasioned by the
demonstrating that service of summons had indeed been effected and Sy Ho declaration of default against him was nominal and minimal. For his default
had voluntarily submitted himself to the jurisdiction of the City Court. notwithstanding, he was in fact able fully and exhaustively to present his side to
the Court.
Assuming it to be true, as claimed, that summons addressed to Sy Ho had been
served not at his residence but at the place where he maintained his scrap iron Also correct was the rendition of judgment on the pleadings as against
business, and at which he had no representative authorized to receive court Minoria. Minoria's answer admitted the material averments of the complaint
processes and notices, this would be of no moment. This is valid service. It is and failed to include allegations establishing her claim for compensation as being,
expressly authorized by the Rules. It is substituted service, allowed when the supposedly, the authorized caretaker of the house. Judgment on the pleadings
defendant cannot be served personally within a reasonable time, in which event, was therefore properly rendered on plaintiff's motion. It is sanctioned by Section
service may be effected by leaving copies of the summons at defendants dwelling 1, Rule 19 of the Rules of court, which provides that "(w)here an answer fails to
house or residence with some person of suitable age and discretion then residing tender an issue or otherwise admits the material allegations or admits the
therein, or at his office or regular place of business with some competent person in material allegations of the adverse party's pleading, the court may, on motion of
charge thereof. 30 Nor is it necessary that the person in charge of the defendant's that party, direct judgment on such pleading." 47
regular place of business be specially authorized to receive the summons. It is
enough that he appears to be in charge. The underlying philosophy of the doctrine of default is that the defendant's
failure to answer the complaint despite receiving copy thereof together
Moreover, in the Affidavit of Merits attached to his motion to set a side order of with summons, is attributable to one of two causes: either (a) to his
default filed on April 5, 1976, 32 Sy Ho attributed his failure to the answer realization that he has no defenses to the plaintiffs cause and hence
seasonably to the fault of his counsel — who he said had failed to make the resolves not to oppose the complaint, or, (b) having good defenses to the
"proper follow-up" — and asked to be excused for "depending too much on his suit, to fraud, accident, mistake or excusable negligence which prevented
lawyer." Here is another clear admission, no less cogent because merely him from seasonably filing an answer setting forth those defenses,. It does
implied, that the reason for his omission to answer the complaint was not make sense for a defendant without defenses,and who accepts the correctness of
really the failure of service of summons on him but his lawyer's negligence. the specific relief prayed for in the complaint, to forego the filing of the answer or
any sort of intervention in the action at all. For even if he did intervene, the result
The record also demonstrates that he was indeed correctly declared in would be the same: since he would be unable to establish any good defense,
default, and he failed to adduce any tenable grounds for the setting aside of having none in fact, judgment would inevitably go against him. And this would be
an acceptable result, if not being in his power to alter or prevent it, provided that
the judgment did not go beyond or differ from the specific relief stated in the violation committed by his institution when it used the term university unless the
complaint. 54 It would moreover spare him from the embarrassment of openly school had complied with the basic requirement of being a university as
appearing to defend the indefensible. On the other hand, if he did have good prescribed in CHED Memorandum.
defenses, it would be unnatural for him not to set them up properly and timely,
and if he did not in fact set them up, it must be presumed that some insuperable As a consequence of said Report, respondent directed petitioner to desist from
cause prevented him from doing so: fraud, accident, mistake, excusable using the term University, including the use of the same in any of its alleged
negligence. In this event, the law will grant him relief, and the law is in truth quite branches. In the course of it investigation, respondent was able to verify from the
liberal in the reliefs made available to him: a motion to set aside the order of Securities and Exchange Commission (SEC) that petitioner had filed a proposal to
default prior to judgment; 55 a motion for new trial to set aside the default amend its corporate name from Indiana School of Aeronautics to Indiana
judgment; 56 an appeal from the judgment by default even if no motion to set Aerospace University, which was supposedly favorably recommended by the
aside the order of default or motion for new trial had been previously Department of Education, Culture and Sports (DECS).
presented; 57 a special civil action for certiorari impugning the court's
jurisdiction. The appeal of petitioner was however rejected by respondent and the the latter
ordered the former to cease and desist from using the word University. However,
WHEREFORE, the judgment of the Court of First Instance of August 29, 1978 is prior to said date, petitioner filed a Complaint for Damages with prayer for Writ
reversed and set aside, and that of the City Court dated February 18, 1977 of preliminary and Mandatory Injunction and Temporary Restraining Order
reinstated and affirmed in toto. Costs against private respondents. against respondent.

G.R. No. 139371. April 4, 2001 Respondent filed a Special Appearance with Motion to Dismiss, based on 1)
improper venue; 2) lack of authority of the person instituting the action; and 3)
INDIANA AEROSPACE UNIVERSITY, petitioner, vs. COMMISSION ON HIGHER lack of cause of action. Public respondent judge, in an Order denied respondents
EDUCATION (CHED), respondent. Motion to Dismiss and at the same time, issued a Writ of preliminary Injunction
in favor of petitioner. Respondent, in the same Order, was directed to file its
When the delayed filing of an answer causes no prejudice to the plaintiff, default Answer within fifteen (15)days from receipt of said Order.
orders should be avoided. Inasmuch as herein respondent was improvidently
declared in default, its Petition for Certiorari to annul its default may be given due
course. On September 22, 1998, petitioner filed before public respondent a Motion To
Declare Respondent in Default pursuant to Section 3, Rule 9 in relation to Section
Petition: Before us is a Petition for Review on Certiorari under Rule 45 of the 4, Rule 16 of the Rules of Court, as amended. On the same date, respondent filed
Rules of Court a Motion For Extension of Time to File its Answer.
Public respondent judge granted Petitioners Motion to Declare Respondent in
Dr. Reynaldo B. Vera, Chairman, Technical Panel for Engineering, Architecture, Default. Aggrived, respondent filed with the CA a Petition for certiorari, arguing
and Maritime Education (TPRAM) of CHED, received a letter from Douglas R. that the RTC had committed grave abuse of discretion in declaring respondent in
Macias, Chairman, Board of Aeronautical Engineering, Professional Regulatory default despite its filing an Answer, among others.
Commission (PRC) and Chairman, Technical Committee for Aeronautical
Engineering (TPRAME) inquiring whether petitioner had already acquired The CA ruled that Respondent should not have been declared in default, because
university status in view of the latter’s advertisement in the Manila Bulletin. its answer had been filed long before the RTC ruled upon petitioners Motion to
declare respondent in default. Thus, respondent had not obstinately refused to
In a letter Dr. Vera formally referred the aforesaid letter to Chairman file an Answer; on the contrary, its failure to do so on time was due to excusable
Alcala. Thereafter, CHED referred the matter to its Regional Director in Cebu City, negligence. Declaring it in default did not serve the ends of justice, but only
requesting said office to conduct an investigation and submit its report. The prevented it from pursuing the merits of its case. Hence, this Petition,
Report submitted stated that Director Ma. Lilia Gaduyon met the school and
advised them not to use University when it first came out in an advertisement Issue: Whether Respondent should not have been declared in default by the trial
column of a local daily newspaper in Cebu City. It was explained that there was a court
Ruling: Yes. Petitioner avers the RTC was justified in declaring respondent in but on the ground that it is intrinsically void for having been rendered
default, because the August 14, 1998 Order directing the filing of an answer had pursuant to a patently invalid order of default.9
been served on August 25, 1998. And as late as October 30, 1998, respondent
could only file a Motion for Extension of Time, which the trial court denied Petitioner claims that in issuing the default Order, the RTC did not act with
because of the expiry of the fifteen-day period. Petitioner adds that respondents grave abuse of discretion, because respondent had failed to file its answer within
proper remedy would have been a Motion to Set Aside the Order of Default, fifteen days after receiving the August 14, 1998 Order.
pursuant to Section 3(b), Rule 9 of the Rules of Court. We disagree. Quite the contrary, the trial court gravely abused its
discretion when it declared respondent in default despite the latter’s filing
Respondent, in turn, avers that certiorari was the only plain, speedy and adequate of an Answer. Placing respondent in default thereafter served no practical
remedy in the ordinary course of law, because the default Order had purpose.
improvidently been issued.
Petitioner was lax in calling the attention of the Court to the fifteen-day
period for filing an answer. It moved to declare respondent in default only
We agree with respondent. Lina v. Court of Appeals7 discussed the remedies
on September 20, 1998, when the filing period had expired on August 30,
available to a defendant declared in default, as follows: (1) a motion to set aside
1998. The only conclusion in this case is that petitioner has not been
the order of default under Section 3(b), Rule 9 of the Rules of Court, if the default
prejudiced by the delay. The same leniency can also be accorded to the RTC,
was discovered before judgment could be rendered; (2) a motion for new trial
which declared respondent in default only on December 9, 1998, or twenty-two
under Section 1(a) of Rule 37, if the default was discovered after judgment but
days after the latter had filed its Answer on November 17, 1998. Defendants
while appeal is still available; (3) a petition for relief under Rule 38, if judgment
Answer should be admitted, because it had been filed before it was declared in
has become final and executory; and (4) an appeal from the judgment under
default, and no prejudice was caused to plaintiff. The hornbook rule is that default
Section 1, Rule 41, even if no petition to set aside the order of default has been
judgments are generally disfavored.11
resorted to.
While there are instances when a party may be properly declared in default,
These remedies, however, are available only to a defendant who has been validly these cases should be deemed exceptions to the rule and should be resorted to
declared in default. Such defendant irreparably loses the right to participate in only in clear cases of obstinate refusal or inordinate neglect in complying with
the trial. On the other hand, a defendant improvidently declared in default may the orders of the court.12 In the present case, however, no such refusal or neglect
retain and exercise such right after the order of default and the subsequent can be attributed to respondent.
judgment by default are annulled, and the case remanded to the court of
Judges, as a rule, should avoid issuing default orders that deny litigants the
origin. The former is limited to the remedy set forth in section 2, paragraph 3 of
chance to be heard. Instead, the former should give the latter every opportunity
Rule 41 of the pre 1997 Rules of Court, and can therefore contest only the
to present their conflicting claims on the merits of the controversy, as much as
judgment by default on the designated ground that it is contrary to evidence or
possible avoiding any resort to procedural technicalities.13
law. The latter, however, has the following options: to resort to this same
remedy; to interpose a petition for certiorari seeking the nullification of the order WHEREFORE, the Petition is hereby GRANTED IN PART, and the assailed
of default, even before the promulgation of a judgment by default; or in the event Decision MODIFIED. The trial court is DIRECTED to SET ASIDE the Order of
that judgment has been rendered, to have such order and judgment declared default of December 9, 1998; to ADMIT the Answer dated November 5, 1998;
void. to LIFT the preliminary injunction; and to CONTINUE, with all deliberate speed,
the proceedings in Civil Case No. 98-811.
In prohibiting appeals from interlocutory orders, the law does not intend to
G.R. No. 151098 March 21, 2006
accord executory force to such writs, particularly when the effect would be to
cause irreparable damage. If in the course of trial, a judge proceeds without or in
excess of jurisdiction, this rule prohibiting an appeal does not leave the aggrieved
party without any remedy.8 In a case like this, a special civil action of certiorari is
the plain, speedy and adequate remedy.
- versus -
Herein respondent controverts the judgment by default, not on the TRADERS ROYAL BANK
ground that it is unsubstantiated by evidence or that it is contrary to law,
failure to pay additional filing fees. Petitioners re-filed the complaint with the
The mere fact that a defendant is declared in default does not automatically result same Court, petitioners this time impleaded as additional defendants the
in the grant of the prayers of the plaintiff. To win, the latter must still present the Ceroferr Realty Corporation and/or Cesar Roque, and Lorna Roque, and included
same quantum of evidence that would be required if the defendant were still an additional cause of action that said new defendants conspired with
present. A party that defaults is not deprived of its rights, except the right to be respondent bank in canceling the notice of lis pendens by falsifying a letter sent
heard and to present evidence to the trial court. If the evidence presented does to and filed with the office of the Register of Deeds of Quezon City, purportedly
not support a judgment for the plaintiff, the complaint should be dismissed, even for the cancellation of said notice.
if the defendant may not have been heard or allowed to present any
countervailing evidence. Summons was served on respondent bank. Supposing that all the defendants had
filed their answer, petitioners filed a motion to set case for pre-trial, which
Petition: Before us is a Petition for Review under Rule 45 of the Rules of Court, motion was, however, denied by the Trial Court on the ground that respondent
Facts: bank has not yet filed its answer. Petitioners filed a motion for reconsideration,
Petitioners filed a complaint before the RTC of Quezon City against respondent thereunder alleging that they received by registered mail a copy of respondent
Traders Royal Bank, the City Sheriff of Quezon City and the Register of Deeds of banks answer with counterclaim, which copy was attached to the motion. The
Quezon City. The complaint sought the annulment of the extra-judicial trial Court denied the motion for reconsideration for lack of merit.
foreclosure and auction sale made by the city sheriff of Quezon City of a parcel of
land, the conventional redemption thereof, and prayed for damages and the For this reason, petitioners filed a motion to declare respondent bank in default,
issuance of a writ of preliminary injunction. thereunder alleging that no answer has been filed despite the service of
summons. Upon proof that petitioners had indeed served respondent bank with
The complaint alleged that in mid-1977, Petitioner Danilo Chua obtained a loan a copy of said motion, the Trial Court issued an Order of default against
from respondent bank secured by a real estate mortgage over a parcel of land and respondent bank.
owned in common by the petitioners; that when the loan was not paid,
respondent bank commenced extra-judicial foreclosure proceedings on the The Court allowed the petitioners to present evidence ex parte, insofar as
property; the Sheriff of Quezon City sold the property to the respondent bank, the respondent bank was concerned.
highest bidder therein; that the auction sale was tainted with irregularity
because, amongst others, although the period of redemption had long expired, Thereafter, the Trial Court rendered the new questioned partial decision.
Petitioner Chua offered to buy back, and respondent bank also agreed to sell back, Aggrieved, respondent bank filed a motion to set aside the partial decision by
the foreclosed property; and that sometime later, respondent bank wrote Chua, default against Traders Royal Bank and admit respondent Traders Royal Banks
requiring him to tender a new offer to counter the offer made thereon by another Answer with counterclaim: thereunder it averred that the erroneous filing of said
buyer. answer was due to an honest mistake of the typist and inadvertence of its counsel.

Respondent bank, in its answer with counterclaim, asserts that the foreclosure The trial court thumbed down the motion. Respondent bank appealed the Partial
sale of the mortgaged property was done in accordance with law. The parties Decision to the CA. The CA ruled in favor of respondent bank. Even if the CA stated
entered upon trial. However, a big conflagration hit the City Hall of Quezon City, that the erroneous docket number placed on the Answer filed before the trial
which destroyed the records of the case. After the records were reconstituted, court was not an excusable negligence by the bank’s counsel and that these were
petitioners discovered that the foreclosed property was sold by respondent bank binding on the bank, the petitioners had not convincingly established their right
to the Ceroferr Realty Corporation, and that the notice of lis pendens annotated to relief as there was no ground to invalidate the foreclosure sale of the
on the certificate of title of the foreclosed property, had already been mortgaged property. They stated that an extrajudicial foreclosure sale did not
cancelled. Accordingly, petitioners, with leave of court, amended their complaint, require personal notice to the mortgagor, that there was no allegation or proof of
but the Trial Court dismissed the case without prejudice due to petitioners’ noncompliance with the publication requirement and the public posting of the
notice of sale, and that there was no showing of inadequacy of price as no
competent evidence was presented to show the real market value of the land sold In sum, while petitioners were allowed to present evidence ex parte under
or the readiness of another buyer to offer a price higher than that at which the Section 3 of Rule 9, they were not excused from establishing their claims for
property had been sold. Moreover, petitioners failed to prove that the bank had damages by the required quantum of proof under Section 1 of Rule 133. Stated
agreed to sell the property back to them. After pointing out that the redemption differently, any advantage they may have gained from the ex parte presentation
period had long expired, respondent’s written communications to Petitioner of evidence does not lower the degree of proof required. Clearly then, there is no
Chua only showed, at most, that the former had made a proposal for the latter to incompatibility between the two rules.
buy back the property at the current market price.
Petitioners have failed to convince this Court of the cogency of their position,
The petitioners argue that the quantum of evidence for judgments flowing from notwithstanding the advantage they enjoyed in presenting their evidence ex
a default order under Section 3 of Rule 9 is not the same as that provided for in parte. Not in every case of default by the defendant is the complainant entitled to
Section 1 of Rule 133 (Preponderance of Evidence rule – which states that the win automatically.
party having the burden of proof must establish his case by a preponderance of
evidence) WHEREFORE, this Petition is hereby DENIED and the assailed Decision and
Resolution AFFIRMED. Costs against petitioners.
Issues: Whether or not the Respondent Court of Appeals erred in failing to apply
the provisions of Section 3, Rule 9 of the 1997 Rules of Civil Procedure and in G.R. No. 171827 September 17, 2008
applying instead the rule on preponderance of evidence under Section 1, Rule TERESITA MONZON,
133 of the Rules of Court. - versus -
Ruling: No. Between the two rules, there is no incompatibility that would EUFRACIA PEREZ
preclude the application of either one of them. To begin with, Section 3 of Rule 9
Petition: Petition for Review on Certiorari
governs the procedure which the trial court is directed to take when a defendant
fails to file an answer. According to this provision, the court shall proceed to Facts:
render judgment granting the claimant such relief as his pleading may warrant,
subject to the courts discretion on whether to require the presentation of The spouses James and Maria Rosa Nieves Relova and the spouses Bienvenido
evidence ex parte. The same provision also sets down guidelines on the nature and Eufracia Perez, respondents before this Court, filed against Atty. Ana Liza
and extent of the relief that may be granted. In particular, the courts judgment Luna, Clerk of Court of the RTC of Tagaytay City, and herein petitioner Teresita
shall not exceed the amount or be different in kind from that prayed for nor Monzon an initiatory pleading captioned as a Petition for Injunction.
award unliquidated damages.
In their Petition for Injunction, respondents alleged that Monzon executed a
promissory note in favor of the spouses Perez for the amount of P600,000.00
Regarding judgments by default, it was explained in Pascua v. Florendo22 that payable on or before 28 December 1999. This was secured by a 300-square
complainants are not automatically entitled to the relief prayed for, once the meter lot in Tagaytay City. On 31 December 1998, Monzon executed a Deed of
defendants are declared in default. Favorable relief can be granted only after the Absolute Sale over the said parcel of land in favor of the spouses Perez.
court has ascertained that the relief is warranted by the evidence offered and the
Respondents also claim in their Petition for Injunction that on 29 March 1999,
facts proven by the presenting party. In Pascua, this Court ruled that x x x it would
Monzon executed another promissory note, this time in favor of the spouses
be meaningless to require presentation of evidence if every time the other party Relova for the amount of P200,000.00 payable on or before 31 December
is declared in default, a decision would automatically be rendered in favor of the 1999. This loan was secured by a 200 square meter lot. On 27 December 1999,
non-defaulting party and exactly according to the tenor of his prayer. This is not Monzon executed a Deed of Conditional Sale over said parcel of land in favor of
contemplated by the Rules nor is it sanctioned by the due process clause. the spouses Relova.
Monzon filed the instant Petition for Review on Certiorari under Rule 45 of the
On 23 October 1999, the Coastal Lending Corporation extrajudicially foreclosed Rules of Court. Monzon stresses that she was never declared in default by the trial
the entire property covered by Psu-232001, including the portions mortgaged court. The trial court should have, thus, set the case for hearing for the reception
and subsequently sold to respondents. According to the Petition for Injunction, of the evidence of the defense. She claims that she never waived her right to
Monzon was indebted to the Coastal Lending Corporation in the total amount present evidence.
of P3,398,832.35. The winning bidder in the extrajudicial foreclosure, Addio
Properties Inc., paid the amount of P5,001,127.00, thus leaving a P1,602,393.65 Issue: Whether mere non-appearance of defendants at an ordinary hearing and
residue. According to respondents, this residue amount, which is in the custody to adduce evidence constitute default, when they have already filed their answer
of Atty. Luna as Branch Clerk of Court, should be turned over to them pursuant to to the complaint within the reglementary period
Section 4, Rule 68 of the Revised Rules of Civil Procedure. Thus, respondents pray
in their Petition for Injunction for a judgment (1) finding Monzon liable to the Ruling: No.
spouses Perez in the amount of P1,215,000.00 and to the spouses Relova in the
amount of P385,000.00; (2) ordering Atty. Luna to deliver said amounts to It can be seen that despite the fact that Monzon was not declared in default by the
respondents; and (3) restraining Atty. Luna from delivering any amount to RTC, the RTC nevertheless applied the effects of a default order upon petitioner
Monzon pending such delivery in number (2). under Section 3, Rule 9 of the Rules of Court:

Monzon, in her Answer, claimed that the Petition for Injunction should be SEC. 3. Default; declaration of. If the defending party
dismissed for failure to state a cause of action. Monzon likewise claimed that fails to answer within the time allowed therefor, the court shall,
respondents could no longer ask for the enforcement of the two promissory notes upon motion of the claiming party with notice to the defending
because she had already performed her obligation to them by dacion en pago as party, and proof of such failure, declare the defending party in
evidenced by the Deed of Conditional Sale and the Deed of Absolute Sale. She default. Thereupon, the court shall proceed to render
claimed that petitioners could still claim the portions sold to them if they would judgment granting the claimant such relief as his pleading
only file the proper civil cases. As regards the fund in the custody of Atty. Luna, may warrant, unless the court in its discretion requires the
respondents cannot acquire the same without a writ of preliminary attachment claimant to submit evidence. Such reception of evidence
or a writ of garnishment in accordance with the provisions of Rule 57 and Section may be delegated to the clerk of court.
9(c), Rule 39 of the Revised Rules of Civil Procedure.
(a) Effect of order of default.A party in default shall be
The RTC, citing the absence of petitioner and her counsel on said hearing date entitled to notice of subsequent proceedings but not to take
despite due notice, granted an oral Motion by the respondents by issuing an part in the trial.
Order allowing the ex parte presentation of evidence by respondents. The RTC
rendered a Decision in favor of respondents. The Decision also mentioned that
the Order allowing the ex parte presentation of evidence by respondents was due
In his book on remedial law, former Justice Florenz D. Regalado writes
to the continuous and incessant absences of petitioner and counsel.
that failure to appear in hearings is not a ground for the declaration of a
Monzon filed a Notice of Appeal, which was approved by the trial court. Monzon defendant in default:
claims that the RTC gravely erred in rendering its Decision immediately after
respondents presented their evidence ex parte without giving her a chance to Failure to file a responsive pleading within the
present her evidence, thereby violating her right to due process of law. reglementary period, and not failure to appear at the hearing,
is the sole ground for an order of default (Rosario, et al. vs. Alonzo,
The Court of Appeals rendered the assailed Decision dismissing the et al., L-17320, June 29, 1963), except the failure to appear at a
appeal. According to the Court of Appeals, Monzon showed tepid interest in pre-trial conference wherein the effects of a default on the
having the case resolved with dispatch. She, thus, cannot now complain that she part of the defendant are followed, that is, the plaintiff shall be
was denied due process when she was given ample opportunity to defend and allowed to present evidence ex parte and a judgment based
assert her interests in the case. thereon may be rendered against the defendant (Section 5, Rule
18).6 Also, a default judgment may be rendered, even if the
defendant had filed his answer, under the circumstance in Sec. as much as possible; it is for this reason that judgments by default are frowned
3(c), Rule 29.7

Hence, according to Justice Regalado, the effects of default are followed Does this mean that defendants can get away with failing to attend
only in three instances: (1) when there is an actual default for failure to file a hearings despite due notice? No, it will not. We agree with petitioner that such
responsive pleading; (2) failure to appear in the pre-trial conference; and (3) failure to attend, when committed during hearing dates for the presentation of
refusal to comply with modes of discovery under the circumstance in Sec. 3(c), the complainants evidence, would amount to the waiver of such defendants right
Rule 29. to object to the evidence presented during such hearing, and to cross-examine
the witnesses presented therein. However, it would not amount to a waiver of the
In Philippine National Bank v. De Leon,8 we held: defendants right to present evidence during the trial dates scheduled for the
reception of evidence for the defense. It would be an entirely different issue if the
We have in the past admonished trial judges against issuing failure to attend of the defendant was on a hearing date set for the presentation
precipitate orders of default as these have the effect of denying of the evidence of the defense, but such did not occur in the case at bar.
a litigant the chance to be heard, and increase the burden of
needless litigations in the appellate courts where time is needed
for more important or complicated cases. While there are In view of the foregoing, we are, therefore, inclined to remand the case
instances when a party may be properly defaulted, these to the trial court for reception of evidence for the defense.
should be the exception rather than the rule, and should be
allowed only in clear cases of obstinate refusal or
inordinate neglect to comply with the orders of the WHEREFORE, the Decision of the Court of Appeals dated 27 September 2005 and
court (Leyte vs. Cusi, Jr., 152 SCRA 496; Tropical Homes, Inc. vs. its Resolution dated 7 March 2006 are REVERSED and SET ASIDE. The Petition
Hon. Villaluz, et al., G.R. No. L-40628, February 24, 1989). for Injunction in Civil Case No. TG-2069 is hereby ordered DISMISSED insofar as
Atty. Ana Liza Luna is concerned. The Petition for Injunction in Civil Case No. TG-
It is even worse when the court issues an order not denominated as an 2069, insofar as petitioner Teresita Monzon is concerned,
order of default, but provides for the application of effects of default. Such isordered REMANDED to the Regional Trial Court of Tagaytay City for further
amounts to the circumvention of the rigid requirements of a default order, to wit: proceedings.
(1) the court must have validly acquired jurisdiction over the person of the
defendant either by service of summons or voluntary appearance; (2) the G.R. No. 185922 January 15, 2014
defendant failed to file his answer within the time allowed therefor; and (3) there
HEIRS OF DR. MARIANO FAVIS SR. represented by their co-heirs and
must be a motion to declare the defendant in default with notice to the latter. In Attorneys-in-Fact MERCEDES A. FAVIS and NELLY FAVIS-
the case at bar, petitioner had not failed to file her answer. Neither was notice VILLAFUERTE, Petitioners,
sent to petitioner that she would be defaulted, or that the effects of default shall vs.
be imposed upon her. Mere non-appearance of defendants at an ordinary hearing FAVIS, JAMES MARK D. FAVIS, all minors represented herein by their
and to adduce evidence does not constitute default, when they have already filed parents SPS. MARIANO FAVIS and LARCELITA D. FAVIS,Respondents.
their answer to the complaint within the reglementary period. It is error to
default a defendant after the answer had already been filed. It should be borne in Petition: Before this Court is a petition for review assailing the 10 April 2008
Decision1 and 7 January 2009 Resolution2 of the Court of Appeals in CA-G.R. CV
mind that the policy of the law is to have every litigants case tried on the merits
No. 86497 dismissing petitioners’ complaint for annulment of the Deed of a valid Deed of Donation. The trial court also declared Juana and Mariano as
Donation for failure to exert earnest efforts towards a compromise. compulsory heirs of Dr. Favis. The Court also ruled that Heirs of Dr. Mariano
Favis, Sr. shall inherit in equal shares.
Respondents interposed an appeal before the Court of Appeals challenging the
Dr. Mariano Favis, Sr. (Dr. Favis) was married to Capitolina Aguilar (Capitolina) trial court’s nullification, on the ground of vitiated consent, of the Deed of
with whom he had seven children named Purita A. Favis, Reynaldo Favis, Donation in favor of herein respondents. The Court of Appeals ordered the
Consolacion Favis-Queliza, Mariano A. Favis, Jr., Esther F. Filart, Mercedes A. dismissal of the petitioners’ nullification case. However, it did so not on the
Favis, and Nelly Favis-Villafuerte. When Capitolina died in March 1944, Dr. Favis grounds invoked by herein respondents as appellant.
took Juana Gonzales (Juana) as his common-law wife with whom he sired one
child, Mariano G. Favis (Mariano). When Dr. Favis and Juana got married in 1974, The Court of Appeals motu proprio ordered the dismissal of the complaint for
Dr. Favis executed an affidavit acknowledging Mariano as one of his legitimate failure of petitioners to make an averment that earnest efforts toward a
children. Mariano is married to Larcelita D. Favis (Larcelita), with whom he has compromise have been made, as mandated by Article 151 of the Family Code. The
four children, named Ma. Theresa Joana D. Favis, Ma. Cristina D. Favis, James appellate court justified its order of dismissal by invoking its authority to review
Mark D. Favis and Ma. Thea D. Favis. rulings of the trial court even if they are not assigned as errors in the appeal.

Dr. Favis died intestate on 29 July 1995 leaving the following properties: Petitioners filed a motion for reconsideration contending that the case is not
subject to compromise as it involves future legitime.
1. A parcel of residential land located at Bonifacio St. Brgy. 1, Vigan, Ilocos Sur, consisting
an area of 898 square meters, more or less, bounded on the north by Salvador Rivero; on The Court of Appeals rejected petitioners’ contention. In their Comment,
the East by Eleutera Pena; on the South by Bonifacio St., and on the West by Carmen Giron; respondents defended the ruling the Court of Appeals that the complaint is
x x x;
dismissible for failure of petitioners to allege in their complaint that earnest
2. A commercial building erected on the aforesaid parcel of land with an assessed value of
efforts towards a compromise have been exerted.
₱126,000.00; x x x;
3. A parcel of residential land located in Brgy. VII, Vigan, Ilocos Sur, containing an area of
154 sq. ms., more or less, bounded on the North by the High School Site; on the East by Issue: Whether or not the appellate court may dismiss the order of dismissal of
Gomez St., on the South by Domingo Go; and on the West by Domingo Go; x x x; the complaint for failure to allege therein that earnest efforts towards a
4. A house with an assessed value of ₱17,600.00 x x x; compromise have been made.
5. A parcel of orchard land located in Brgy. VI, Vigan, Ilocos Sur, containing an area of 2,257
sq. ma. (sic) more or less, bounded on the North by Lot 1208; on the East by Mestizo River;
Ruling: No.
on the South by Lot 1217 and on the West by Lot 1211-B, 1212 and 1215 x x x.3

The appellate court committed egregious error in dismissing the complaint. The
Beginning 1992 until his death in 1995, Dr. Favis was beset by various illnesses. appellate courts’ decision hinged on Article 151 of the Family Code, viz:
On 16 October 1994, he allegedly executed a Deed of Donation transferring and
conveying properties described in (1) and (2) in favor of his grandchildren with
Juana. Art. 151. No suit between members of the same family shall prosper unless it
should appear from the verified complaint or petition that earnest efforts toward
a compromise have been made, but that the same have failed. If it is shown that
Claiming that said donation prejudiced their legitime, Dr. Favis’ children with
no such efforts were in fact made, the case must be dismissed.
Capitolina, petitioners herein, filed an action for annulment of the Deed of
Donation before the RTCof Vigan 20 against Juana, Spouses Mariano and Larcelita
and their grandchildren as respondents. This rule shall not apply to cases which may not be the subject of compromise
under the Civil Code.
RTC nullified the Deed of Donation and cancelled the corresponding tax
declarations. The trial court found that Dr. Favis, at the age of 92 and plagued The appellate court correlated this provision with Section 1, par. (j), Rule 16 of
with illnesses, could not have had full control of his mental capacities to execute the 1997 Rules of Civil Procedure, which provides:
Section 1. Grounds. — Within the time for but before filing the answer to the between members from the same family shall prosper unless it should appear
complaint or pleading asserting a claim, a motion to dismiss may be made on any from the verified complaint that earnest efforts toward a compromise have been
of the following grounds: made but had failed, is, as the Rule so words, a ground for a motion to dismiss.
Significantly, the Rule requires that such a motion should be filed "within the time
xxxx for but before filing the answer to the complaint or pleading asserting a claim."
The time frame indicates that thereafter, the motion to dismiss based on the
(j) That a condition precedent for filing the claim has not been complied with. absence of the condition precedent is barred. It is so inferable from the opening
sentence of Section 1 of Rule 9 stating that defense and objections not pleaded
either in a motion to dismiss or in the answer are deemed waived. There are, as
The appellate court’s reliance on this provision is misplaced. Rule 16 treats of the just noted, only four exceptions to this Rule, namely, lack of jurisdiction over the
grounds for a motion to dismiss the complaint. It must be distinguished from the subject matter; litis pendentia ; res judicata ; and prescription of action. Failure
grounds provided under Section 1, Rule 9 which specifically deals with dismissal to allege in the complaint that earnest efforts at a compromise has been made but
of the claim by the court motu proprio. Section 1, Rule 9 of the 1997 Rules of Civil had failed is not one of the exceptions. Upon such failure, the defense is deemed
Procedure provides: waived.

Section 1. Defenses and objections not pleaded. − Defenses and objections not In the case at hand, the proceedings before the trial court ran the full course. The
pleaded either in a motion to dismiss or in the answer are deemed waived. complaint of petitioners was answered by respondents without a prior motion to
However, when it appears from the pleadings or the evidence on record that the dismiss having been filed. The decision in favor of the petitioners was appealed
court has no jurisdiction over the subject matter, that there is another action by respondents on the basis of the alleged error in the ruling on the merits, no
pending between the same parties for the same cause, or that the action is barred mention having been made about any defect in the statement of a cause of action.
by a prior judgment or by statute of limitations, the court shall dismiss the claim. In other words, no motion to dismiss the complaint based on the failure to comply
with a condition precedent was filed in the trial court; neither was such failure
Section 1, Rule 9 provides for only four instances when the court may motu assigned as error in the appeal that respondent brought before the Court of
proprio dismiss the claim, namely: (a) lack of jurisdiction over the subject matter; Appeals.
(b) litis pendentia ; (c) res judicata ; and (d) prescription of action. 10Specifically
in Gumabon v. Larin,11 cited in Katon v. Palanca, Jr.,12 the Court held: Therefore, the rule on deemed waiver of the non-jurisdictional defense or
objection is wholly applicable to respondent. If the respondents as parties-
x x x The motu proprio dismissal of a case was traditionally limited to instances defendants could not, and did not, after filing their answer to petitioner’s
when the court clearly had no jurisdiction over the subject matter and when the complaint, invoke the objection of absence of the required allegation on earnest
plaintiff did not appear during trial, failed to prosecute his action for an efforts at a compromise, the appellate court unquestionably did not have any
unreasonable length of time or neglected to comply with the rules or with any authority or basis to motu propio order the dismissal of petitioner’s complaint.
order of the court. Outside of these instances, any motu proprio dismissal would
amount to a violation of the right of the plaintiff to be heard. Except for qualifying WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE
and expanding Section 2, Rule 9, and Section 3, Rule 17, of the Revised Rules of and the Judgment of the Regional Trial Court of Vigan, Ilocos Sur, Branch 20 is
Court, the amendatory 1997 Rules of Civil Procedure brought about no radical AFFIRMED.
change. Under the new rules, a court may motu proprio dismiss a claim when it
appears from the pleadings or evidence on record that it has no jurisdiction over
the subject matter; when there is another cause of action pending between the SO ORDERED.
same parties for the same cause, or where the action is barred by a prior
judgment or by statute of limitations. x x x.13

The error of the Court of Appeals is evident even if the consideration of the issue
is kept within the confines of the language of Section 1(j) of Rule 16 and Section
1 of Rule 9. That a condition precedent for filing the claim has not been complied
with, a ground for a motion to dismiss emanating from the law that no suit