[No. L-6450.

August 11, 1954]

GONZALO MAKABENTA, petitioner, vs. JUAN L. BOCAR,

Judge of First Instance of Leyte, and FILOMENO R. NEGADO,
respondents.

1. PLEADING AND PRACTICE; JUDGMENT BY DEFAULT;

FAILURE OF DEFENDANT TO APPEAR, SOME GROUND
FOR DEFAULT IN INFERIOR COURTS; FILING OF ANSWER
WITHIN THE REGLEMENTARY PERIOD EQUIVALENT TO
APPEARANCE.—The sole ground ex or def ault in the inferior
court is failure of the defendant to appear before it. Although the
defendant has failed to appear during the trial of his case in the
Justice of the Peace Court, yet if he has filed his answer to the
complaint within the prescribed period, he is deemed to have put in
his appearance and submitted to its jurisdiction. Hence, he was not,
and should not have been declared, in default.

_______________

* 93 Phil. 68.

635

VOL. 95, AUGUST 11, 1954 635

Makabenta vs. Bocar, etc. and Negado

2. ID.; ID.; ID.; ID.; COURT MAY PROCEED WITH TRIAL IN

THE ABSENCE OF DEFENDANT; JUDGMENT OF THE
MERITS, NOT BY DEFAULT; JUDGMENT APPEALABLE.—
While it was discretionary for the court to proceed with the trial of
the case in the absence of defendant or his counsel, and render
judgment on the basis of the evidence presented by the plaintiff,
such judgment was not one by default, and defendant could, under
the law, appeal to the Court of First Instance.

3. CERTIORARI IN THE NATURE OF MANDAMUS, NOT

BARRED, ALTHOUGH ORDER COMPLAINED OF is
APPEALABLE.—A petition for certiorari to annul the order of
dismissal of the appeal in such case is in the nature of a petition for
 mandamus to order the Court of First Instance to proceed with the
hearing of the case, and it is not barred by the ex act that the order
complained of was appealable (Quizan vs. Arellano, 90 Phil., 644).

ORIGINAL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.
Alberto T. Aguja for petitioner.
Mateo Canonoy for respondents.

REYES, J. B. L., J.:

On September 30, 1950, Filomeno R. Negado filed a complaint in

the Justice of the Peace Court of Carigara, Leyte, against Gonzalo
Makabenta for the recovery of a sum of money. Within the
prescribed period, the defendant Gonzalo Makabenta filed his
answer with counterclaim. After issues had been joined, the case
was set for trial on September 18, 1951. At the trial, defendant failed
to appear; plaintiff moved that the former be declared in default, and
accordingly, the Justice of the Peace Court declared him in default
and ordered the plaintiff to present his evidence. Judgment was
rendered for the plaintiff on November 24, 1951, copy of which
defendant Makabenta received on December 8, 1951, and it was
only then that he learned for the first time that he was declared in
default and that judgment by default had been taken against him.
Whereupon, defendant Gonzalo Makabenta appealed to the Court of
First Instance of Leyte (Civil Case No. 1453), where both parties
filed their respective

636

636 PHILIPPINE REPORTS ANNOTATED

Makabenta vs. Bocar, etc. and Negado

pleadings. When the case was ready for trial, the plaintiffappellee
Filomeno R. Negado filed on July 20, 1952 a motion for the
dismissal of the appeal on the ground that the appellant had been
declared in default in the Justice of the Peace Court and had,
therefore, no standing in court. The Court of First Instance
considered the motion well-taken and dismissed the appeal, holding
that Makabenta had no right to appeal unless the order declaring him
in default is first set aside. A motion for the reconsideration of the
order of dismissal was denied, and defendant-appellant Gonzalo
Makabenta came to this court with a petition ex or certiorari, asking
that after due hearing, the order of the respondent Judge dismissing
his appeal be annulled, and the case set for trial on the merits.
The petition must be granted. The order of default taken against
the petitioner Gonzalo Makabenta in the Justice of the Peace Court
of Carigara, Leyte is clearly illegal and without effect; for although
 petitioner failed to appear during the trial of the case therein, he filed
his answer to the complaint, and as we have consistently held, the
sole ground for default in the inferior courts is failure to appear
(Veluz vs. Justice of the Peace of Sariaya, 42 Phil., 557; Quizan vs.
Arellano, 90 Phil., 644, Carballo vs. Hon. Demetrio B. Encarnacion,
et al, 92 Phil., 974). By filing his answer in the Justice of the Peace
Court, petitioner put in his apperance and submitted to its
jurisdiction; hence, he was not, and should not have been declared,
in default. While it was discretionary for the court to proceed with
the trial of the case in the absence of petitioner or his counsel, and
render judgment on the basis of the evidence presented by the
plaintiff, such judgment was not by default, and petitioner could,
under the law, appeal, as he in fact did appeal, to the Court of First
Instance (Carballo vs. Hon. Demetrio B. Encarnacion, supra).
Consequently, in dismissing petitioner's appeal on the ground that he
had no standing in court unless the order of default is first set aside,
the respond-

637

VOL. 95, AUGUST 18, 1954 637

Del Rosario vs. Nava, et al.

ent Court committed a grave abuse of discretion amounting to lack

of jurisdiction.
This petition for certiorari to annul the order of dismissal of the
appeal is in the nature of a petition for mandamus to order the Court
of First Instance to proceed with the hearing of the case, and it is not
barred by the fact that the order complained of was appealable
(Quizan vs. Arellano, Supra).
Wherefore, the petition for certiorari is granted, the order of the
court a quo dismissing petitioner's appeal is annulled, and the
respondent judge is hereby directed to reinstate said appeal and
proceed with the trial of the case on the merits. Costs to be taxed
against the respondent Filomeno R. Negado.

Parás, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A.,

Jugo, Bautista Angelo, Labrador and Concepción, JJ., concur.

Petition granted.

——o0o——

© Copyright 2019 Central Book Supply, Inc. All rights reserved.