G.R. No.

200134               August 15, 2012

ROBERTO OTERO, Petitioner,
vs.
ROGER TAN, Respondent.

VILLARAMA, JR.,*

RESOLUTION

REYES, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the

Rules of Court seeking to annul and set aside the Decision 1 dated April 29,
2011 rendered by the Court of Appeals (CA) in CA-G.R. SP No. 02244,
which affirmed the Judgment2 dated December 28, 2007 issued by the
Regional Trial Court (RTC), Cagayan de Oro City, Branch 23 in Civil Case
No. 2007-90.

The Antecedent Facts

A Complaint3 for collection of sum of money and damages was filed by

Roger Tan (Tan) with the Municipal Trial Court in Cities (MTCC), Cagayan
de Oro City on July 28, 2005 against Roberto Otero (Otero). Tan alleged
that on several occasions from February 2000 to May 2001, Otero
purchased on credit petroleum products from his Petron outlet in Valencia
City, Bukidnon in the aggregate amount of ₱ 270,818.01. Tan further
claimed that despite several verbal demands, Otero failed to settle his
obligation.

Despite receipt of the summons and a copy of the said complaint, which
per the records of the case below were served through his wife Grace R.
Otero on August 31, 2005, Otero failed to file his answer with the MTCC.

On November 18, 2005, Tan filed a motion with the MTCC to declare Otero
in default for his failure to file his answer. Otero opposed Tan’s motion,
claiming that he did not receive a copy of the summons and a copy of Tan’s
complaint. Hearing on the said motion was set on January 25, 2006, but
was later reset to March 8, 2006, Otero manifesting that he only received
the notice therefor on January 23, 2006. The hearing on March 8, 2006
was further reset to April 26, 2006 since the presiding judge was attending
a convention. Otero failed to appear at the next scheduled hearing, and the
MTCC issued an order declaring him in default. A copy of the said order
was sent to Otero on May 9, 2006. Tan was then allowed to present his
evidence ex parte.

Tan adduced in evidence the testimonies of Rosemarie Doblado and Zita

Sara, his employees in his Petron outlet who attended Otero when the
latter made purchases of petroleum products now the subject of the action
below. He likewise presented various statements of account 4 showing the
petroleum products which Otero purchased from his establishment. The
said statements of account were prepared and checked by a certain Lito
Betache (Betache), apparently likewise an employee of Tan.

The MTCC Decision

On February 14, 2007, the MTCC rendered a Decision5 directing Otero to

pay Tan his outstanding obligation in the amount of ₱ 270,818.01, as well
as attorney’s fees and litigation expenses and costs in the amounts of ₱
15,000.00 and ₱ 3,350.00, respectively. The MTCC opined that Otero’s
failure to file an answer despite notice is a tacit admission of Tan’s claim.

Undeterred, Otero appealed the MTCC Decision dated February 14, 2007
to the RTC, asserting that the MTCC’s disposition is factually baseless and
that he was deprived of due process.

The RTC Decision

On December 28, 2007, the RTC rendered a Judgment 6 affirming the

MTCC Decision dated February 14, 2007. The RTC held that the
statements of account that were presented by Tan before the MTCC were
overwhelming enough to prove that Otero is indeed indebted to Tan in the
amount of ₱ 270,818.01. Further, brushing aside Otero’s claim of denial of
due process, the RTC pointed out that:

As to the second assignment of error, suffice to say that as borne out by

the record of the case, defendant-appellant was given his day in Court
contrary to his claim. His wife, Grace R. Otero received a copy of the
summons together with a copy of the Complaint and its corresponding
annexes on August 31, 2005, per Return of Service made by Angelita N.
Bandoy, Process Server of OCC-MTCC of Davao City. He was furnished
with a copy of the Motion to Declare Defendant in Default on November 18,
2005, per Registry Receipt No. 2248 which was received by the defendant.
Instead of filing his answer or any pleading to set aside the Order of
default, he filed his Comment to the Motion to Declare Defendant in Default
of which plaintiff filed his Rejoinder to Defendant’s Comment.

The case was set for hearing on January 23, 2006, but defendant through
counsel sent a telegram that he only received the notice on the day of the
hearing thereby he was unable to appear due to his previous scheduled
hearings. Still, for reasons only known to him, defendant failed to lift the
Order of Default.

The hearing on January 23, 2006 was reset on March 8, 2006 and again
reset on April 26, 2006 by agreement of counsels x x x.

It is not therefore correct when defendant said that he was deprived of due
process.7

Otero sought reconsideration of the Judgment dated December 28, 2007

but it was denied by the RTC in its Order8 dated February 20, 2008.

Otero then filed a petition for review 9 with the CA asserting that both the
RTC and the MTCC erred in giving credence to the pieces of evidence
presented by Tan in support of his complaint. Otero explained that the
statements of account, which Tan adduced during the ex parte presentation
of his evidence, were prepared by a certain Betache who was not
presented as a witness by Tan. Otero avers that the genuineness and due
execution of the said statements of account, being private documents, must
first be established lest the said documents be rendered inadmissible in
evidence. Thus, Otero asserts, the MTCC and the RTC should not have
admitted in evidence the said statements of account as Tan failed to
establish the genuineness and due execution of the same.

The CA Decision

On April 29, 2011, the CA rendered the assailed Decision 10 which denied
the petition for review filed by Otero. In rejecting Otero’s allegation with
regard to the genuineness and due execution of the statements of account
presented by Tan, the CA held that any defense which Otero may have
against Tan’s claim is already deemed waived due to Otero’s failure to file
his answer. Thus:
Otero never denied that his wife received the summons and a copy of the
complaint. He did not question the validity of the substituted service.
Consequently, he is charged with the knowledge of Tan’s monetary claim.
Section 1, Rule 9 of the Rules of Court explicitly provides that defenses and
objections not pleaded are deemed waived. Moreover, when the defendant
is declared in default, the court shall proceed to render judgment granting
the claimant such relief as his pleading may warrant.

Due to Otero’s failure to file his Answer despite being duly served with
summons coupled with his voluntary appearance in court, he is deemed to
have waived whatever defenses he has against Tan’s claim. Apparently,
Otero is employing dilatory moves to defer the payment of his obligation
which he never denied.11 (Citation omitted)

Otero’s Motion for Reconsideration12 was denied by the CA in its

Resolution13 dated December 13, 2011.

Hence, the instant petition.

Issues

Essentially, the fundamental issues to be resolved by this Court are the

following: first, whether Otero, having been declared in default by the
MTCC, may, in the appellate proceedings, still raise the failure of Tan to
authenticate the statements of account which he adduced in evidence; and
second, whether Tan was able to prove the material allegations of his
complaint.

The Court’s Ruling

The petition is denied.

First Issue: Authentication of the Statements of Account

The CA, in denying the petition for review filed by Otero, held that since he
was declared in default by the MTCC, he is already deemed to have
waived whatever defenses he has against Tan’s claim. He is, thus, already
barred from raising the alleged infirmity in the presentation of the
statements of account.

We do not agree.
A defendant who fails to file an
answer loses his standing in court.

The effect of a defendant’s failure to file an answer within the time allowed
therefor is primarily governed by Section 3, Rule 9 of the Rules of Court,
viz:

Sec. 3. Default; declaration of. – If the defending party fails to answer within
the time allowed therefor, the court shall, upon motion of the claiming party
with notice to the defending party, and proof of such failure, declare the
defending party in default. Thereupon, the court shall proceed to render
judgment granting the claimant such relief as his pleading may warrant,
unless the court in its discretion requires the claimant to submit evidence.
Such reception of evidence may be delegated to the clerk of court. x x x
(Emphasis ours)

A defendant who fails to file an answer may, upon motion, be declared by

the court in default. Loss of standing in court, the forfeiture of one’s right as
a party litigant, contestant or legal adversary, is the consequence of an
order of default. A party in default loses his right to present his defense,
control the proceedings, and examine or cross-examine witnesses. He has
no right to expect that his pleadings would be acted upon by the court nor
may be object to or refute evidence or motions filed against him. 14

A defendant who was declared in

default may nevertheless appeal
from the judgment by default,
albeit on limited grounds.

Nonetheless, the fact that a defendant has lost his standing in court for
having been declared in default does not mean that he is left sans any
recourse whatsoever. In Lina v. CA, et al.,15 this Court enumerated the
remedies available to party who has been declared in default, to wit:

a) 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 his failure to answer was due to fraud, accident, mistake
or excusable neglect, and that he has meritorious defenses; (Sec 3, Rule
18)
b) 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 motion for new trial under Section 1(a) of Rule 37;

c) If the defendant discovered the default after the judgment has become
final and executory, he may file a petition for relief under Section 2 of Rule
38; and

d) He may also appeal from the judgment rendered against him as contrary
to the evidence or to the law, even if no petition to set aside the order of
default has been presented by him. (Sec. 2, Rule 41)16 (Emphasis ours)

Indeed, a defending party declared in default retains the right to appeal

from the judgment by default. However, the grounds that may be raised in
such an appeal are restricted to any of the following: first, the failure of the
plaintiff to prove the material allegations of the complaint; second, the
decision is contrary to law; and third, the amount of judgment is excessive
or different in kind from that prayed for. 17 In these cases, the appellate
tribunal should only consider the pieces of evidence that were presented by
the plaintiff during the ex parte presentation of his evidence.

A defendant who has been declared in default is precluded from raising any
other ground in his appeal from the judgment by default since, otherwise,
he would then be allowed to adduce evidence in his defense, which right he
had lost after he was declared in default. 18 Indeed, he is proscribed in the
appellate tribunal from adducing any evidence to bolster his defense
against the plaintiff’s claim. Thus, in Rural Bank of Sta. Catalina, Inc. v.
Land Bank of the Philippines,19 this Court explained that:

It bears stressing that a defending party declared in default loses his

standing in court and his right to adduce evidence and to present his
defense. He, however, has the right to appeal from the judgment by default
and assail said judgment on the ground, inter alia, that the amount of the
judgment is excessive or is different in kind from that prayed for, or that the
plaintiff failed to prove the material allegations of his complaint, or that the
decision is contrary to law. Such party declared in default is proscribed
from seeking a modification or reversal of the assailed decision on the
basis of the evidence submitted by him in the Court of Appeals, for if it were
otherwise, he would thereby be allowed to regain his right to adduce
evidence, a right which he lost in the trial court when he was declared in
default, and which he failed to have vacated. In this case, the petitioner
sought the modification of the decision of the trial court based on the
evidence submitted by it only in the Court of Appeals. 20 (Citations omitted
and emphasis ours)

Here, Otero, in his appeal from the judgment by default, asserted that Tan
failed to prove the material allegations of his complaint. He contends that
the lower courts should not have given credence to the statements of
account that were presented by Tan as the same were not authenticated.
He points out that Betache, the person who appears to have prepared the
said statements of account, was not presented by Tan as a witness during
the ex parte presentation of his evidence with the MTCC to identify and
authenticate the same. Accordingly, the said statements of account are
mere hearsay and should not have been admitted by the lower tribunals as
evidence.

Thus, essentially, Otero asserts that Tan failed to prove the material
allegations of his complaint since the statements of account which he
presented are inadmissible in evidence. While the RTC and the CA, in
resolving Otero’s appeal from the default judgment of the MTCC, were only
required to examine the pieces of evidence that were presented by Tan,
the CA erred in brushing aside Otero’s arguments with respect to the
admissibility of the said statements of account on the ground that the latter
had already waived any defense or objection which he may have against
Tan’s claim.

Contrary to the CA’s disquisition, it is not accurate to state that having been
declared in default by the MTCC, Otero is already deemed to have waived
any and all defenses which he may have against Tan’s claim.

While it may be said that by defaulting, the defendant leaves himself at the
mercy of the court, the rules nevertheless see to it that any judgment
against him must be in accordance with the evidence required by law. The
evidence of the plaintiff, presented in the defendant’s absence, cannot be
admitted if it is basically incompetent. Although the defendant would not be
in a position to object, elementary justice requires that only legal evidence
should be considered against him. If the same should prove insufficient to
justify a judgment for the plaintiff, the complaint must be dismissed. And if a
favorable judgment is justifiable, it cannot exceed in amount or be different
in kind from what is prayed for in the complaint. 21
Thus, in SSS v. Hon. Chaves,22 this Court emphasized that:

We must stress, however, that a judgment of default against the petitioner

who failed to appear during pre-trial or, for that matter, any defendant who
failed to file an answer, does not imply a waiver of all of their rights, except
their right to be heard and to present evidence to support their allegations.
Otherwise, it would be meaningless to request presentation of evidence
every time the other party is declared in default. If it were so, a decision
would then automatically be rendered in favor of the non-defaulting party
and exactly to the tenor of his prayer. The law also gives the defaulting
parties some measure of protection because plaintiffs, despite the default
of defendants, are still required to substantiate their allegations in the
complaint.23 (Citations omitted and emphasis ours)

The statements of account

presented by Tan were merely
hearsay as the genuineness and due
execution of the same were not
established.

Anent the admissibility of the statements of account presented by Tan, this

Court rules that the same should not have been admitted in evidence by
the lower tribunals.

Section 20, Rule 132 of the Rules of Court provides that the authenticity
and due execution of a private document, before it is received in evidence
by the court, must be established. Thus:

Sec. 20. Proof of private document. – Before any private document offered

as authentic is received in evidence, its due execution and authenticity
must be proved either:

a) By anyone who saw the document executed or written; or

b) By evidence of the genuineness of the signature or handwriting of the

maker.

Any other private document need only be identified as that which it is

claimed to be.
A private document is any other writing, deed, or instrument executed by a
private person without the intervention of a notary or other person legally
authorized by which some disposition or agreement is proved or set forth.
Lacking the official or sovereign character of a public document, or the
solemnities prescribed by law, a private document requires authentication
in the manner allowed by law or the Rules of Court before its acceptance
as evidence in court. The requirement of authentication of a private
document is excused only in four instances, specifically: (a) when the
document is an ancient one within the context of Section 21, Rule 132 of
the Rules of Court; (b) when the genuineness and authenticity of an
actionable document have not been specifically denied under oath by the
adverse party; (c) when the genuineness and authenticity of the document
have been admitted; or (d) when the document is not being offered as
genuine.24

The statements of account which Tan adduced in evidence before the

MTCC indubitably are private documents. Considering that these
documents do not fall among the aforementioned exceptions, the MTCC
could not admit the same as evidence against Otero without the required
authentication thereof pursuant to Section 20, Rule 132 of the Rules of
Court. During authentication in court, a witness positively testifies that a
document presented as evidence is genuine and has been duly executed,
or that the document is neither spurious nor counterfeit nor executed by
mistake or under duress.25

Here, Tan, during the ex parte presentation of his evidence, did not present
anyone who testified that the said statements of account were genuine and
were duly executed or that the same were neither spurious or counterfeit or
executed by mistake or under duress. Betache, the one who prepared the
said statements of account, was not presented by Tan as a witness during
the ex parte presentation of his evidence with the MTCC.

Considering that Tan failed to authenticate the aforesaid statements of

account, the said documents should not have been admitted in evidence
against Otero. It was thus error for the lower tribunals to have considered
the same in assessing the merits of Tan’s Complaint.

Second Issue: The Material Allegations of the Complaint

In view of the inadmissibility of the statements of account presented by
Tan, the remaining question that should be settled is whether the pieces of
evidence adduced by Tan during the ex parte presentation of his evidence,
excluding the said statements of account, sufficiently prove the material
allegations of his complaint against Otero.

We rule in the affirmative.

In civil cases, it is a basic rule that the party making allegations has the
burden of proving them by a preponderance of evidence. The parties must
rely on the strength of their own evidence and not upon the weakness of
the defense offered by their opponent. 26 This rule holds true especially
when the latter has had no opportunity to present evidence because of a
default order. Needless to say, the extent of the relief that may be granted
can only be so much as has been alleged and proved with preponderant
evidence required under Section 1 of Rule 133. 27

Notwithstanding the inadmissibility of the said statements of account, this

Court finds that Tan was still able to prove by a preponderance of evidence
the material allegations of his complaint against Otero.

First, the statements of account adduced by Tan during the ex parte

presentation of his evidence are just summaries of Otero's unpaid
obligations, the absence of which do not necessarily disprove the latter's
liability.

Second, aside from the statements of account, Tan likewise adduced in

evidence the testimonies of his employees in his Petron outlet who testified
that Otero, on various occasions, indeed purchased on credit petroleum
products from the former and that he failed to pay for the same. It bears
stressing that the MTCC, the R TC and the CA all gave credence to the
said testimonial evidence presented by Tan and, accordingly, unanimously
found that Otero still has unpaid outstanding obligation in favor of Tan in
the amount of ₱ 270,818.01.

Well-established is the principle that factual findings of the trial court, when
adopted and confirmed by the CA, are binding and conclusive on this Court
and will generally not be reviewed on appeal. 28 The Court sees no
compelling reason to depart from the foregoing finding of fact of the lower
courts.
WHEREFORE, in consideration of the foregoing disquisitions, the petition
is DENIED. The Decision dated April 29, 2011 rendered by the Court of
Appeals in CA-G.R. SP No. 02244 is AFFIRMED.

SO ORDERED.
FIRST DIVISION

G.R. No. 192477, July 27, 2016

MOMARCO IMPORT COMPANY,

INC., Petitioner, v. FELICIDAD VILLAMENA, Respondent.

DECISION

BERSAMIN, J.:

A default judgment is frowned upon because of the policy of the

law to hear every litigated case on the merits. But the default
judgment will not be vacated unless the defendant satisfactorily
explains the failure to file the answer, and shows that it has a
meritorious defense.

The Case

Under challenge by the petitioner is the affirmance on January

14, 2010 by the Court of Appeals (CA)1 of the trial court's default
judgment rendered against it on August 23, 1999 in Civil Case
No. C-18066 by the Regional Trial Court (RTC), Branch 126, in
Caloocan City.2 The defendant hereby prays that the default
judgment be undone, and that the case be remanded to the RTC
for further proceedings, including the reception of its
evidence.3chanrobleslaw

Antecedents

Civil Case No. C-18066 is an action the respondent initiated

against the petitioner for the nullification of a deed of absolute
sale involving registered real property and its improvements
situation in Caloocan City as well as of the transfer certificate of
title issued in favor of the latter by virtue of said deed of absolute
sale on the ground of falsification.

The following factual and procedural antecedents are summarized

by the CA in its assailed decision, to
wit:ChanRoblesVirtualawlibrary
On September 23, 1997, plaintiff filed against defendant a
complaint for "Nullification of Deed of Sale and of the Title
Issued" pursuant thereto alleging that she is the owner of a
parcel of land with improvements located in Caloocan City and
covered by Transfer Certificate of Title No. 204755. A letter from
defendant corporation dated June 12, 1997, informed plaintiff
that TCT No. 204755 over aforesaid property had been cancelled
and TCT No. C-319 464 was issued in lieu thereof in favor of
defendant corporation on the strength of a purported Special
Power of Attorney executed by Dominador Villamena, her late
husband, appointing her, plaintiff Felicidad Villamena, as his
attorney-in-fact and a deed of absolute sale purportedly executed
by her in favor of defendant corporation on May 21, 1997, the
same date as the Special Power of Attorney. The Special Power of
Attorney dated May 21, 1997 is a forgery. Her husband
Dominador died on June 22, 1991. The deed of sale in favor of
defendant corporation was falsified. What plaintiff executed in
favor of Mamarco was a deed of real estate mortgage to secure a
loan of P100,000.00 and not a deed of transfer/conveyance.

x x x x

On August 19, 1998, plaintiff filed a motion to declare defendant

corporation in default for failure of aforesaid defendant to file its
answer as of said date despite the filing of an Entry of
Appearance by its counsel dated May 4, 1998.

On September 10, 1998 defendant corporation filed its Answer

with Counterclaim which denied the allegations in the complaint;
alleged that plaintiff and her daughter Lolita accompanied by a
real estate agent approached the President of Momarco for a loan
of P100,000.00; offered their house and lot as collateral; and
presented a Special Power of Attorney from her husband. She
was granted said loan. Aforesaid loan was not repaid. Interests
accumulated and were added to the principal. Plaintiff offered to
execute a deed of sale over the property on account of her
inability to pay. Plaintiff presented to defendant corporation a
deed of sale and her husband's Special of Power Attorney already
signed and notarized.4chanroblesvirtuallawlibrary
Under the order dated October 15, 1998, the petitioner was
declared in default, and its answer was ordered stricken from the
records. Thereafter, the RTC allowed the respondent to present
her evidence ex parte.

On August 23, 1999, the RTC rendered the default judgment

nullifying the assailed deed of absolute sale and the transfer
certificate of title issued pursuant thereto; and ordering the
Register of Deeds of Caloocan, City to cancel the petitioner's
Transfer Certificate of Title No. C-319464, and to reinstate the
respondent's Transfer Certificate of Title No. 204755.5 It
concluded that the act of the petitioner's counsel of formally
entering an appearance in the case had mooted the issue of
defective service of summons; and that the respondent had duly
established by preponderance of evidence that the purported
special power of attorney was a forgery.6chanrobleslaw

The petitioner appealed the default judgment to the CA, arguing

that the RTC had gravely erred in nullifying the questioned deed
of absolute sale and in declaring it in default.

On January 14, 2010, the CA promulgated the assailed decision

affirming the default judgment upon finding that the RTC did not
commit any error in declaring the petitioner in default and in
rendering judgment in favor of the respondent who had
successfully established her claim of forgery by preponderance of
evidence.7chanrobleslaw

On May 31, 2010, the CA denied the petitioner's motion for

reconsideration.8chanrobleslaw

Hence, this appeal by the petitioner.

Issue
The petitioner raises the lone issue of whether or not the CA
gravely erred in upholding the default judgment of the RTC; in
ordering its answer stricken off the records; in allowing the
respondent to adduce her evidence exparte; and in rendering the
default judgment based on such evidence.9chanrobleslaw

Ruling of the Court

The appeal lacks merit.

The petitioner claims denial of its right to due process, insisting

that the service of summons and copy of the complaint was
defective, as, in fact, there was no sheriff's return filed; that the
service of the alias summons on January 20, 1998 was also
defective; and that, accordingly, its reglementary period to file
the answer did not start to run.

The claim of the petitioner is unfounded. The filing of the formal

entry of appearance on May 5, 1998 indicated that it already
became aware of the complaint filed against it on September 23,
1997. Such act of counsel, because it was not for the purpose of
objecting to the jurisdiction of the trial court, constituted the
petitioner's voluntary appearance in the action, which was the
equivalent of the service of summons.10 Jurisdiction over the
person of the petitioner as the defendant became thereby vested
in the RTC, and cured any defect in the service of
summons.11chanrobleslaw

Under Section 3,12 Rule 9 of the Rules of Court, the three

requirements to be complied with by the claiming party before
the defending party can be declared in default are: (1) that the
claiming party must file a motion praying that the court declare
the defending party in default; (2) the defending party must be
notified of the motion to declare it in default; (3) the claiming
party must prove that the defending party failed to answer the
complaint within the period provided by the rule. 13 It is plain,
therefore, that the default of the defending party cannot be
declared motu proprio.14chanrobleslaw

Although the respondent filed her motion to declare the petitioner

in default with notice to the petitioner only on August 19, 1998,
all the requisites for properly declaring the latter in default then
existed. On October 15, 1998, therefore, the RTC appropriately
directed the answer filed to be stricken from the records and
declared the petitioner in default. It also received ex parte the
respondent's evidence, pursuant to the relevant
15
rule. chanrobleslaw

The petitioner's logical remedy was to have moved for the lifting
of the declaration of its default but despite notice it did not do the
same before the RTC rendered the default judgment on August
23, 1999. Its motion for that purpose should have been under the
oath of one who had knowledge of the facts, and should show
that it had a meritorious defense,16 and that its failure to file the
answer had been due to fraud, accident, mistake or excusable
negligence. Its urgent purpose to move in the RTC is to avert the
rendition of the default judgment. Instead, it was content to insist
in its comment/opposition vis-a-vis the motion to declare it in
default that: (1) it had already filed its answer; (2) the order of
default was generally frowned upon by the courts; (3)
technicalities should not be resorted to; and (4) it had a
meritorious defense. It is notable that it tendered no
substantiation of what was its meritorious defense, and did not
specify the circumstances of fraud, accident, mistake, or
excusable negligence that prevented the filing of the answer
before the order of default issued - the crucial elements in asking
the court to consider vacating its own order.

The policy of the law has been to have every litigated case tried
on the merits. As a consequence, the courts have generally
looked upon a default judgment with disfavor because it is in
violation of the right of a defending party to be heard. As the
Court has said in Coombs v. Santos:17
A default judgment does not pretend to be based upon the merits
of the controversy. Its existence is justified on the ground that it
is the one final expedient to induce defendant to join issue upon
the allegations tendered by the plaintiff, and to do so without
unnecessary delay. A judgment by default may amount to a
positive and considerable injustice to the defendant; and the
possibility of such serious consequences necessitates a careful
examination of the grounds upon which the defendant asks that it
be set aside.
In implementation of the policy against defaults, the courts have
admitted answers filed beyond the reglementary periods but
before the declaration of default.18chanrobleslaw

Considering that the petitioner was not yet declared in default

when it filed the answer on September 10, 1998, should not its
answer have been admitted?

The petitioner raised this query in its motion for reconsideration

in the CA, pointing out that the RTC could no longer declare it in
default and order its answer stricken from the records after it had
filed its answer before such declaration of default. However, the
CA, in denying the motion for reconsideration, negated the query,
stating as follows:ChanRoblesVirtualawlibrary
Unfortunately, we find the foregoing arguments insufficient to
reverse our earlier ruling. These points do little to detract from
the fact that Defendant-Appellant filed its Answer only after a
period of more than four months from when it entered its
voluntary appearance in the case a quo, and only after almost a
month from when Plaintiff-Appellee moved to have it declared in
default.

Verily, Defendant-Appellant's temerity for delay is also betrayed

(sic) by the fact that it had waited for a judgment to be rendered
by the court a quo before it challenged the order declaring it in
default. If it truly believed that it had a "meritorious defense[,]
which if properly ventilated could have yielded a different
conclusion [by the trial court]," then it could very well have
moved to set aside the Order of Default immediately after notice
thereof or anytime before judgment. Under the circumstances,
that would have been the most expeditious remedy.
Inauspiciously, Defendant-Appellant instead elected to wager on
a favorable judgment. Defeated, Defendant-Appellant would now
have us set aside the Order of Default on Appeal and remand the
case for further proceedings. These we cannot do.

While we are aware that we are vested with some discretion to

condone Defendant-Appellant's procedural errors, we do not find
that doing so will serve the best interests of justice. To remand
this case to the court a quo on the invocation that we must be
liberal in setting aside orders of default, would be to reward
Defendant-Appellant with more delay. It bears stating that the
Rules of Procedure are liberally construed not to suit the
convenience of a party, but "in order to promote their objective of
securing a just, speedy and inexpensive disposition of every
action and proceeding." To this end, it has been rightly
Procedural rules are not to be disregarded as mere technicalities
that may be ignored at will to suit the convenience of a party. x x
x.

It cannot be overemphasized that procedural rules have their own

wholesome rationale in the orderly administration of justice.
Justice has to be administered according to the rules in order to
obviate arbitrariness, caprice and whimsicality.19
We concur with the CA's justification. The RTC and the CA acted
in accordance with the Rules of Court and the pertinent
jurisprudence. The petitioner was insincere in assailing the
default judgment, and its insincerity became manifest from its
failure to move for the lifting of the order of default prior to the
rendition of the default judgment. The CA rightly observed that
the petitioner had apparently forsaken its "expeditious remedy" of
moving soonest for the lifting of the order of default in favor of
"wager[ing]" on obtaining a favorable judgment. The petitioner
would not do so unless it intended to unduly cause delay to the
detriment and prejudice of the respondent.

The sincerity of the petitioner's actions cannot be presumed.

Hence, it behooves it to allege the suitable explanation for the
failure or the delay to file the answer through a motion to lift the
order of default before the default judgment is rendered. This
duty to explain is called for by the philosophy underlying the
doctrine of default in civil procedure, which Justice Narvasa
eruditely discoursed on in Gochangco v. CFI Negros
20
Occidental,  to wit:ChanRoblesVirtualawlibrary
The underlying philosophy of the doctrine of default is that the
defendant's failure to answer the complaint despite receiving
copy thereof together with summons, is attributable to one of two
causes: either (a) to his realization that he has no defenses to
the plaintiff's cause and hence resolves not to oppose the
complaint, or, (b) having good defenses to the suit, to fraud,
accident, mistake or excusable negligence which prevented him
from seasonably filing an answer setting forth those defenses. It
does make sense for a defendant without defenses, and who
accepts the correctness of 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 would be the same: since he would be unable to establish
any good defense, 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 complaint. It would moreover spare him from
the embarrassment of openly appearing to defend the
indefensible. On the other hand, if he did have good
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 cause prevented
him from doing so: fraud, accident, mistake, excusable
negligence. In this event, the law will grant him relief; and
the law is in truth quite liberal in the reliefs made available
to him: a motion to set aside the order of default prior to
judgment, a motion for new trial to set aside the default
judgment; an appeal from the judgment by default even if
no motion to set aside the order of default or motion for
new trial had been previously presented; a special civil
action for certiorari impugning the court's
21
jurisdiction. chanroblesvirtuallawlibrary
It is true that the RTC had the discretion to permit the filing of
the answer even beyond the reglementary period, or to refuse to
set aside the default order where it finds no justification for the
delay in the filing of the answer.22 Conformably with the judicious
exercise of such discretion, the RTC could then have admitted the
belated answer of the petitioner and lifted the order of default
instead of striking the answer from the records. However, the
RTC opted not to condone the inordinate delay taken by the
petitioner, and went on to render the default judgment on August
23, 1999. Such actions were fully within its discretion. 23 We
uphold the default. While the courts should avoid orders of
default, and should be, as a rule, liberal in setting aside orders of
default,24 they could not ignore the abuse of procedural rules by
litigants like the petitioner, who only had themselves to blame.

WHEREFORE, the Court DENIES the petition for review

on certiorari; AFFIRMS the decision of the Court of Appeals
promulgated on January 14, 2010; and ORDERS the petitioner to
pay the costs of suit.

SO ORDERED.chanRoblesvirtualLawlibrary
G.R. No. 205249, October 15, 2014

SPOUSES BENEDICT AND SANDRA

MANUEL, Petitioners, v. RAMON ONG, Respondent.

DECISION

LEONEN, J.:

This resolves a petition1 for review on certiorari under Rule 45 of

the 1997 Rules of Civil Procedure, praying that the June 28, 2012
decision2 and the December 19, 2012 resolution3 of the Court of
Appeals in CA-G.R. SP No. 119270 be reversed and set aside.

The assailed June 28, 2012 decision dismissed for lack of merit
the petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure filed by petitioners Benedict and Sandra Manuel (the
Spouses Manuel) and sustained the November 30, 2010 and
February 16, 2011 orders of the Regional Trial Court, La Trinidad,
Benguet.4 The assailed December 19, 2012 resolution of the
Court of Appeals denied the Spouses Manuel's motion for
reconsideration. The Regional Trial Court's November 30, 2010
order denied their motion to lift order of default, while its
February 16, 2011 order denied their motion for reconsideration. 5

On December 21, 2009, respondent Ramon Ong (Ong) filed with

the Regional Trial Court, La Trinidad, Benguet, a complaint for
accion reivindicatoria.6 Ong charged the Spouses Manuel with
having constructed improvements — through force, intimidation,
strategy, threats, and stealth — on a property he supposedly
owned.7 The case was docketed as Civil Case No. 09-CV-2582.8

On January  19, 2010, Ong filed an "amended complaint."9  On

February 3, 2010, summons was issued directed to the Spouses
Manuel.10
On April 23, 2010, Ong filed with the Regional Trial Court a
motion to declare the Spouses Manuel in default. 11 Per the
sheriffs return on summons, on February 12, 2010, Sheriff
Joselito Sales, along with Ong's counsel, Atty. Christopher
Donaal, and a certain Federico Laureano, attempted to personally
serve summons on the Spouses Manuel at their address in Lower
Bacong, Loacan, Itogon, Benguet.12 The Spouses Manuel,
however, requested that service be made at another time
considering that petitioner Sandra Manuel's mother was then
critically ill.13 The sheriffs return further indicates that on March
16, 2010, another attempt at personal service was made. After
Sheriff Joselito Sales had personally explained to petitioner
Sandra Manuel the content of the summons and the complaint,
the latter refused to sign and receive the summons and the
complaint. Sheriff Joselito Sales was thus prompted to merely
tender the summons and complaint to petitioner Sandra Manuel
and to advise her to file their answer within fifteen (15) days.14 As
the Spouses Manuel failed to file their answer within this period,
Ong asked that they be declared in default.15

On June 28, 2010, the Regional Trial Court issued an order

granting Ong's motion to declare the Spouses Manuel in default.
Following this, Ong moved for the ex parte presentation of
evidence, which the Regional Trial Court granted.16

On September 13, 2010, the Spouses Manuel filed a motion to lift

the order of default. They alleged that it is the siblings of
petitioner Sandra Manuel who resided in Lower Bacong, Itogon,
Benguet, while they resided in Ambiong, La Trinidad, Benguet.
Thus, summons could not have been properly served on them in
the former address. They surmised that Ong and his companions
mistook petitioner Sandra Manuel's siblings as the defendants in
Civil Case No. 09-CV-2582. They further claimed that they only
subsequently received via registered mail copies of (1) a
compliance and manifestation filed by Ong and (2) the Regional
Trial Court's order scheduling the ex parte presentation of
evidence. Attached to the Spouses Manuel's motion to lift order of
default was their answer.17
In its order dated November 30, 2010, the Regional Trial Court
denied the Spouses Manuel's motion to lift order of default. It
noted that, first, their motion was not sworn to, as required by
the 1997 Rules of Civil Procedure, and, second, they did not show
that their failure to timely file an answer "was due to fraud,
accident, mistake or excusable negligence."18 In its order dated
February 16, 2011, the Regional Trial Court denied the Spouses
Manuel's motion for reconsideration.19

Aggrieved, the Spouses Manuel filed a petition

for certiorari before the Court of Appeals.20

As mentioned, the assailed June 28, 2012 decision of the Court of

Appeals dismissed the Spouses Manuel's Rule 65 petition for lack
of merit. The assailed December 19, 2012 resolution of the Court
of Appeals denied their motion for reconsideration.

Hence, this petition.

For resolution is the sole issue of whether the Spouses Manuel

may be granted relief from the Regional Trial Court's June 28,
2010 order of default.

Jurisdiction over the persons

of the Spouses Manuel
acquired

As a preliminary matter, we rule on whether jurisdiction over the

persons of the Spouses Manuel, as defendants in Civil Case No.
09-CV-2582, was validly acquired. This preliminary matter is
determinative of whether the fifteen-day period within which they
must file their answer started to run, thereby facilitating the
context in which they could have validly been declared to be in
default.

We hold that jurisdiction over the persons of both defendants in

Civil Case No. 09-CV-2582 — the Spouses Benedict and Sandra
Manuel — was validly acquired. This is so because personal
service of summons, via tender to petitioner Sandra Manuel, was
made by Sheriff Joselito Sales on March 16, 2010.

Rule 14, Section 6 of the 1997 Rules of Civil Procedure provides:

SEC. 6. Service in person on defendant. — Whenever practicable,

the summons shall be served by handing a copy thereof to the
defendant in person, or, if he refuses to receive and sign for it, by
tendering it to him.

Tendering summons is itself a means of personal service as it is

contained in Rule 14, Section 6. Personal service, as provided by
Rule 14, Section 6, is distinguished from its alternative :—
substituted service — as provided by Rule 14, Section
7:chanRoblesvirtualLawlibrary

SEC. 7. Substituted service. — If, for justifiable causes, the

defendant cannot be served within a reasonable time as provided
in the preceding section, service may be effected (a) by leaving
copies of the summons at the defendant's residence with some
person of suitable age and discretion then residing therein, or (b)
by leaving the copies at defendant's office or regular place of
business with some competent person in charge thereof.
(Emphasis supplied)

In this case, the sheriffs return on summons indicated that Sheriff

Joselito Sales endeavored to personally hand the summons and a
copy of the complaint to the Spouses Manuel on two (2) separate
occasions. He relented from doing so on the first occasion in
deference to the medical condition of petitioner Sandra Manuel's
mother. On the second occasion, he was constrained to tender
the summons and copy of the complaint as petitioner Sandra
Manuel refused to accept them.

The Spouses Manuel did not deny the occurrence of the events
narrated in the sheriffs return but claimed that no valid service of
summons was made. They claimed that they did not reside in
Lower Bacong, Loacan, Itogon, Benguet, where the service of
summons, was made. From this, they surmised that the "Sandra
Manuel" who was specifically identified in the sheriffs return was
someone other than petitioner Sandra Manuel.

The Spouses Manuel cannot capitalize on the supposed variance

of address. Personal service of summons has nothing to do with
the location where summons is served. A defendant's address is
inconsequential. Rule 14, Section 6 of the 1997 Rules of Civil
Procedure is clear in what it requires: personally handing the
summons to the defendant (albeit tender is sufficient should the
defendant refuse to receive and sign). What is determinative of
the validity of personal service is, therefore, the person of the
defendant, not the locus of service.

In any case, the Court of Appeals is correct in pointing out that

the Spouses Manuel's self-serving assertion must crumble in the
face of the clear declarations in the sheriffs return.21 Pursuant to
Rule 131, Section 3(m) of the Revised Rules on Evidence,22 the
acts of Sheriff Joselito Sales and the events relating to the
attempt to personally hand the summons and a copy of the
complaint to the Spouses Manuel, as detailed in the sheriffs
return, enjoy the presumption of regularity.23 Moreover, Sheriff
Joselito Sales must be presumed to have taken ordinary care and
diligence in carrying out his duty to make service upon the proper
person(s) and not upon an impostor.24

A sheriffs return, if complete on its face, must be accorded the

presumption of regularity and, hence, taken to be an accurate
and exhaustive recital of the circumstances relating to the steps
undertaken by a sheriff. In this case, the Spouses Manuel have
harped on their (self-serving) claim of maintaining residence
elsewhere but failed to even allege that there was anything
irregular about the sheriffs return or that it was otherwise
incomplete.

Having alleged irregularities in the service of summons, it was

incumbent upon the Spouses Manuel to adduce proof of their
claims. All they mustered was their self-serving allegation of an
alternative address. If at all, this claim of maintaining residence
elsewhere should not even be lent an iota of credibility
considering that, as respondent Ramon Ong pointed out, the
barangay clearances, which the Spouses Manuel themselves
attached to one of their pleadings (as proof of their identities),
actually indicated that they were residents of Bacong Loacan,
Itogon, Benguet.25cralawred Their lie is, thus, revealed by their
own pleading.

As the Spouses Manuel not only failed in discharging the burden

of proving their allegation but even succeeded in contradicting
themselves, Sheriff Joselito Sales' recollection of events must be
taken to be true. Thus, valid personal service of summons, via
tender to petitioner Sandra Manuel, was made. From this, it
follows that jurisdiction over the persons of petitioners Benedict
and Sandra Manuel was acquired by the Regional Trial Court, La
Trinidad, Benguet, in Civil Case No. 09-CV-2582.

The Spouses Manuel are not

entitled to relief from the
order of default

As valid service of summons was made on them, it was

incumbent upon the Spouses Manuel, pursuant to Rule 11,
Section 1 of the 1997 Rules of Civil Procedure,26 to file their
answer within fifteen (15) days from March 16, 2011. Having
failed to do so, they were rightly declared to be in default.

Rule 9, Section 3 of the 1997 Rules of Civil Procedure provides for

when a party to an action may be declared in default. Further,
Rule 9, Section 3(b) governs the grant of relief from orders of
default:chanRoblesvirtualLawlibrary

SEC. 3.  Default; declaration of.  — If the defending party fails to

answer within the time allowed therefor, the court shall, upon
motion of the claiming party with notice to the defending party,
and proof of such failure, declare the defending party in default.
Thereupon, the court shall proceed to render judgment granting
the claimant such relief as his pleading may warrant, unless the
court in its discretion requires the claimant to submit evidence.
Such reception of evidence may be delegated to the clerk of
court.

(a) Effect of order of default. — A party in default shall be entitled

to notice of subsequent proceedings but not to take part in the
trial.

(b) Relief from, order of default. — A party declared in default

may at any time after notice 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 negligence 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. (Emphasis supplied)

Pursuant to Rule 9, Section 3, a court may proceed to render

judgment as the pleading may warrant should a defendant fail to
timely file his or her answer. However, a court may decline from
immediately rendering judgment and instead require the plaintiff
to present evidence. Per Rule 9, Section 3(a), a party declared to
be in default shall nevertheless be "entitled to notice of
subsequent proceedings," although he or she may no longer take
part in the trial.

As explained in Spouses Delos Santos v. Carpio,27 "there are

three requirements which must be complied with by the claiming
party before the court may declare the defending party in
default:chanRoblesvirtualLawlibrary

(1) the claiming party must file a motion asking the court to declare the defending
party in default;
(2) the defending party must be notified of the motion to declare him in default;
(3) the claiming party must prove that the defending party has failed to answer
within the period provided by the Rule."28
All these requisites were complied with by respondent Ramon
Ong.

It is not disputed that Ong filed a motion to declare the Spouses

Manuel in default. It is also not disputed that the latter filed their
answer after the fifteen-day period, counted from March 16,
2010, had lapsed. The Spouses Manuel only filed their answer
along with their motion to lift order of default on September 13,
2010.

It is similarly settled that the Spouses Manuel were notified that a

motion to declare them in default had been filed. They
acknowledged in the present petition for certiorari that on June
23, 2010, Ong filed a compliance to the Regional Trial Court's
April 30, 2010 order that required the submission of the registry
return card evidencing the mailing to the Spouses Manuel of a
copy of the motion to have them declared in default.

Not only were the requisites for declaring a party in default

satisfied, the Spouses Manuel's motion to lift order of default was
also shown to be procedurally infirm.

Consistent with Rule 9, Section 3(b) of the 1997 Rules of Civil

Procedure, "the remedy against an order of default is a motion to
set it aside on the ground of fraud, accident, mistake, or
excusable negligence."[29 However, it is not only the motion to lift
order of default which a defendant must file. As this court
emphasized in Agravante v. Patriarca,30 to the motion to lift
order, of default must "be appended an affidavit showing the
invoked ground, and another, denominated affidavit of merit,
setting forth facts constituting the party's meritorious defense or
defenses."31

The heed for an affidavit of merit is consistent with Rule 8,

Section 5 of the 1997 Rules of Civil Procedure,32 which requires
that "[i]n all averments of fraud or mistake, the circumstances
constituting fraud or mistake must be stated with particularity."
In Montinola, Jr. v. Republic Planters Bank,33 this court noted that
the three (3) requisites that must be satisfied by a motion in
order "to warrant the setting aside of an order of default for
failure to file answer, are:chanRoblesvirtualLawlibrary

(1) it must be made by motion under oath by one that has knowledge of the facts;
(2) it must be shown that the failure to file answer was due to fraud, accident,
mistake or excusable negligence; and
(3) there must be a proper showing of the existence of a meritorious
defense."[34 (Citations omitted)

Consistent with Agravante, it is through an affidavit of merit that

a defendant seeking relief from an order of default shows that
"the failure to file answer was due to fraud, accident, mistake or
excusable negligence."35

In this case, the Court of Appeals noted that the Spouses

Manuel's motion to lift order of default was not made under oath.
We add that this motion was not accompanied by an affidavit of
merit specifying the facts which would show that their non-filing
of an answer within fifteen (15) days from March 16, 2010 was
due to fraud, accident, mistake, or excusable negligence.

Failing both in making their motion under oath and in attaching

an affidavit of merits, the Spouses Manuel's motion to lift order of
default must be deemed pro-forma. It is not even worthy of
consideration.

Certainly, there is jurisprudence to the effect that an affidavit of

merit is not necessary "where a motion to lift an order of default
is grounded on the very root of the proceedings [such as] where
the court has not acquired jurisdiction over the
36
defendants."  Similarly, there is jurisprudence stating that "when
a motion to lift an order of default contains the reasons for the
failure to answer as well as the facts constituting the prospective
defense of the defendant and it is sworn to by said defendant,
neither a formal verification nor a separate affidavit of merit is
necessary."37

However, in this case, the Spouses Manuel failed not only in

attaching an affidavit of merit but also in making their motion
under oath. They are, therefore, left without any alternative on
which to rest. Their motion is utterly ineffectual.

Apart from their failure to make their motion to lift order of

default under oath and to attach to it an affidavit of merit, the
Court of Appeals also noted that the Spouses Manuel set their
motion to lift order of default for hearing on the same date that
they filed it (i.e., September 13, 2010). Thus, they also violated
Rule 15, Section 4 of the 1997 Rules of Civil Procedure, 38 which
requires that service of a motion upon an adverse party must be
made in such a manner that ensures receipt by the latter "at
least three (3) days before the date of hearing. . . ."

We do not lose sight of the admonitions that have been made in

jurisprudence that, as a rule, courts should be liberal in setting
aside orders of default and that default judgments are frowned
upon.39 Indeed, apart from a motion to lift order of default, other
remedies are available to a defaulted defendant even after
judgment has been rendered. Thus, if judgment had already been
rendered but has not yet become final and executory, an appeal
asserting that the judgment was contrary to the law or to the
evidence,40 or a motion for new trial under Rule 37, may be
filed.41 In the case of the latter, the same affidavits as are
required in a motion to lift order of default must be attached.42 If
judgment has become final and executory, a defaulted defendant
may file a petition for relief from judgment under Rule 38. 43 Still,
should the defaulted defendant fail to file a petition for relief, a
petition for annulment of judgment on the ground of lack of
jurisdiction or extrinsic fraud remains available.44

However, jurisprudence, too, has qualified the intent that

animates this liberality. As this court stated in Acance v. Court of
Appeals:45
The issuance of the orders of default should be the exception
rather than the rule, to be allowed only in clear cases of obstinate
refusal by the defendant to comply with the orders of the trial
court.46 (Emphasis supplied)

Moreover, this liberality must be tempered with a recognition

that, in the first place, it is. a defendant who is at fault in failing
to timely file an answer.

Rule 9, Section 3(b) gives an exclusive list of only four (4)

grounds that allow for relief from orders of default. Moreover,
these grounds — extrinsic fraud, accident, mistake, and
excusable negligence — relate to factors that are extraneous to a
defendant, that is, grounds that show that a defendant was
prevented, by reasons beyond his or her influence, from timely
filing an answer.

The recognition that it is the defendant who is at fault and must

suffer the consequences of his or her own failure is analogous to
the dismissal of an action due to the fault of a plaintiff, as
provided by Rule 17, Section 3 of the 1997 Rules of Civil
Procedure. Rule 17, Section 3 reads:chanRoblesvirtualLawlibrary

SEC. 3. Dismissal due to fault of plaintiff. — If for no

justifiable cause, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint, or to
prosecute his action for an unreasonable length of time, or to
comply with these Rules or any order of the court, the complaint
may be dismissed upon motion of the defendant or upon the
court's own motion, without prejudice to the right of the
defendant to prosecute his counterclaim in the same or in a
separate action. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise declared by the
court.

Rule 17, Section 3 is qualified by the phrase "for no justifiable

cause." Thus, in cases covered by Rule 17, Section 3, should the
failure to comply with court processes be the result of the
plaintiffs own fault, it is but logical that a plaintiff must suffer the
consequences of his own heedlessness. Rule 9, Section 3 — on
default — applies the same logic to a culpable defendant.

In this case, the Spouses Manuel only have themselves to blame

in not properly receiving the summons and copy of the complaint
served on them. It has been shown that their claim that service
of summons was made on persons other than them deserves no
credence. Quite the contrary, it is quite apparent that Sheriff
Joselito Sales not only explained the contents of the summons
and the complaint but actually told them that they must file their
answer in fifteen (15) days. It was petitioner Sandra Manuel who
refused to sign and receive the summons and the complaint. This
is evidently an act of obstinate refusal to submit to and to comply
with court processes. Thus, the r Spouses Manuel are not
deserving of any leniency.

WHEREFORE, the petition for review on certiorari is DENIED.

The June 28, 2012 decision and the December 19, 2012
resolution of the Court of Appeals in CA-G.R. SP No. 119270
are AFFIRMED.

SO ORDERED.chanroblesvirtuallawlibrary

N
G.R. No. 144568               July 3, 2007

GUILLERMA S. SABLAS, joined by her husband, PASCUAL

LUMANAS, Petitioners,
vs.
ESTERLITA S. SABLAS and RODULFO S. SABLAS, Respondents.

DECISION

CORONA, J.:

This case traces its roots to a complaint for judicial partition, inventory and
accounting filed by respondents Esterlita S. Sablas and Rodulfo S. Sablas
against petitioner spouses Pascual Lumanas and Guillerma S. Sablas in
the Regional Trial Court of Baybay, Leyte, Branch 14 1 on October 1, 1999.2

Petitioner spouses were served with summons and a copy of the complaint
on October 6, 1999. On October 21, 1999, they filed a motion for extension
of time requesting an additional period of 15 days, or until November 5,
1999, to file their answer. However, they were able to file it only on
November 8, 1999. While the trial court observed that the answer was filed
out of time, it admitted the pleading because no motion to declare petitioner
spouses in default was filed.3

The following day, November 9, 1999, respondents filed a motion to

declare petitioner spouses in default.4 It was denied by the trial court in an
order dated December 6, 1999. 5 Respondents moved for reconsideration
but it was also denied.6 Thereafter, they challenged the December 6, 1999
order in the Court of Appeals in a petition for certiorari 7 alleging that the
admission of the answer by the trial court was contrary to the rules of
procedure and constituted grave abuse of discretion amounting to lack of
jurisdiction.

In a decision dated July 17, 2000, 8 the appellate court ruled that the trial
court committed grave abuse of discretion because, pursuant to Section 3,
Rule 9 of the Rules of Court, the trial court had no recourse but to declare
petitioner spouses in default when they failed to file their answer on or
before November 5, 1999. Thus, the Court of Appeals granted the petition,
vacated the December 6, 1999 order and remanded the case to the trial
court for reception of plaintiffs’ evidence.
Aggrieved, petitioner spouses (defendants in the trial court) now assail the
July 17, 2000 decision of the Court of Appeals in this petition for review on
certiorari.9

Petitioner spouses contend that the Court of Appeals decision was not in
accord with the rules of procedure as it misconstrued Section 3, Rule 9 of
the Rules of Court and was in contravention of jurisprudence.

We agree.

Where There Is No Motion, There

Can Be No Declaration of Default

The elements of a valid declaration of default are:

1. the court has validly acquired jurisdiction over the person of the
defending party either by service of summons or voluntary
appearance;10

2. the defending party failed to file the answer within the time allowed
therefor and

3. a motion to declare the defending party in default has been filed by the
claiming party with notice to the defending party.

An order of default can be made only upon motion of the claiming party. 11 It
can be properly issued against the defending party who failed to file the
answer within the prescribed period only if the claiming party files a motion
to that effect with notice to the defending party.

In this connection, Section 3, Rule 9 of the Rules of Court provides:

SEC. 3. Default: Declaration of. – If the defending party fails to answer

within the time allowed therefor, the court shall, upon motion of the
claiming party with notice to the defending party, and proof of such failure,
declare the defending party in default. x x x. (emphasis supplied)

Three requirements must be complied with before the court can declare the
defending party in default: (1) the claiming party must file a motion asking
the court to declare the defending party in default; (2) the defending party
must be notified of the motion to declare him in default and (3) the claiming
party must prove that the defending party has failed to answer within the
period provided by the Rules of Court.12

The rule on default requires the filing of a motion and notice of such motion
to the defending party. It is not enough that the defendant fails to answer
the complaint within the reglementary period. 13 The trial court cannot motu
proprio declare a defendant in default 14 as the rules leave it up to the
claiming party to protect his or its interests. The trial court should not under
any circumstances act as counsel of the claiming party.

Where There Is No Declaration of Default, Answer May be Admitted

Even If Filed Out Of Time

It is within the sound discretion of the trial court to permit the defendant to
file his answer and to be heard on the merits even after the reglementary
period for filing the answer expires. 15 The Rules of Court provides for
discretion on the part of the trial court not only to extend the time for filing
an answer but also to allow an answer to be filed after the reglementary
period.16

Thus, the appellate court erred when it ruled that the trial court had no
recourse but to declare petitioner spouses in default when they failed to file
their answer on or before November 5, 1999.

The rule is that the defendant’s answer should be admitted where it is filed
before a declaration of default and no prejudice is caused to the
plaintiff.17 Where the answer is filed beyond the reglementary period but
before the defendant is declared in default and there is no showing that
defendant intends to delay the case, the answer should be
admitted.181avvphi1

Therefore, the trial court correctly admitted the answer of petitioner

spouses even if it was filed out of time because, at the time of its filing, they
were not yet declared in default nor was a motion to declare them in default
ever filed. Neither was there a showing that petitioner spouses intended to
delay the case.

Where Answer Has Been Filed, There can Be No Declaration of

Default Anymore
Since the trial court already admitted the answer, it was correct in denying
the subsequent motion of respondents to declare petitioner spouses in
default.

In Cathay Pacific Airways, Ltd. v. Hon. Romillo, Jr.,19 the Court ruled that it
was error to declare the defending party in default after the answer was
filed. The Court was in fact even more emphatic in Indiana Aerospace
University v. Commission on Higher Education:20 it was grave abuse of
discretion to declare a defending party in default despite the latter’s filing of
an answer.

The policy of the law is to have every litigant’s case tried on the merits as
much as possible. Hence, judgments by default are frowned upon. 21 A case
is best decided when all contending parties are able to ventilate their
respective claims, present their arguments and adduce evidence in support
thereof. The parties are thus given the chance to be heard fully and the
demands of due process are subserved. Moreover, it is only amidst such
an atmosphere that accurate factual findings and correct legal conclusions
can be reached by the courts.

Accordingly, the petition is hereby GRANTED. The July 17, 2000 decision

of the Court of Appeals in CA-G.R. SP No. 57397 is REVERSED and SET
ASIDE and the December 6, 1999 order of the Regional Trial Court of
Baybay, Leyte, Branch 14 is REINSTATED. The case is REMANDED to
the trial court for further proceedings.

SO ORDERED.

RENATO C. CORONA
Associate Justice

WE CONCUR: