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[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.

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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.

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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
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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

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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-

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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

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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——

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