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4. Contending that such notice was fatally defective, Azajar filed a 3. Without the notice, the occasion would not arise to determine with
motion to declare Samco in default, which the court granted. Azajar was reasonable certitude whether and within what time the adverse party
allowed to present evidence ex parte and the court rendered judgment would respond to the motion, and when the motion might already be
against Samco. resolved by the Court.
5. The TC justified its order of default in this wise: that instead of 4. The duty to give that notice is imposed on the movant and not on
filling an answer to the complaint, Samco filed a motion to dismiss which the court.
is not a motion at all because the “notice” is directed to the Clerk of Court
instead of the party concerned (as required by Sec.5, Rule 15, RC) and is
without the requisite notice of hearing directed to the CC and not to the
parties, and merely stating that the same be submitted for resolution. It
is without the requisite notice of time and place of hearing.
ISSUE: WON the failure of Cham Samco to set its motion to dismiss for
hearing on a specified date and time and for not addressing the same to
the party interested is fatal to his cause.