RURAL PROGRESS ADMINISTRATION, PETITIONER, VS. EULOGIO F. DE GUZMAN, JUDGE OF THE COURT OF FIRST INSTANCE OF PANGASINAN (THIRD JUDICIAL DISTRICT), THE ROMAN CATHOLIC BISHOP OF L…

The petitioner filed a complaint against the respondent Roman
Catholic Bishop of Lingayen to expropriate two lots containing an
aggregate area of 12,880 square meters, situated in the City of
Dagupan, for the purpose of reselling them to the occupants of said
land. Within the time specified in section 4 of Rule 69 said respondent
filed a pleading entitled “Motion of Dismissal” in which he alleged his
objections and defenses to the right of the plaintiff to expropriate
the property for. the use specified in the complaint, serving copy of
said pleading upon the attorney of the adverse party.

Contending that said motion of dismissal was not filed in
accordance with Rule 26 governing motions in that it did not contain
notice of the time and place for the hearing thereof, the petitioner
moved the respondent judge to declare the defendant in default, which
motion was denied in an order dated March 31, 1949.

The petitioner also moved the respondent judge to issue an order of
delivery of possession, the assessed value of the land sought to be
expropriated having been deposited with the provincial treasurer of
Pangasinan. That motion was also denied by the respondent judge in his
order of July 16, 1949.

The petitioner has presented this original petition for certiorari
to annul the said orders of the respondent judge on the ground that
they were issued with grave abuse of discretion.

1. The respondent judge not only did not abuse his discretion
   but acted in accordance with law in denying petitioner’s motion to
   declare the defendant Roman Catholic Bishop of Lingayen in default.
   Rule 69 governing eminent domain in its section 4 provides as follows:

   “Sec. 4. Defenses and objections.—Within
   the time specified in the summons, each defendant, in lieu of an
   answer, shall present in a single motion to dismiss or for other
   appropriate relief, all of his objections and defenses to the right of
   the plaintiff to take his property for the use specified in the
   complaint. All such objections and defenses not so presented are
   waived. A copy of the motion shall be served on the plaintiff’s
   attorney of record and filed with the court with the proof of service.”

The
motion to dismiss referred to in the above-quoted section is not
governed by Rule 26 referring to ordinary motions and need not be set
by the movant for hearing, it being a pleading that takes the place of
an answer in an ordinary civil action. It is the pleading that puts in
issue the right of the plaintiff to expropriate the property of the
defendant for the use specified in the complaint. All that the rule
requires is that copy of said motion be served on the plaintiff’s
attorney of record. It is the court that at its convenience will set
the case for trial after the filing of said pleading.

2. With
   regard to the denial of petitioner’s motion for the delivery to the
   plaintiff of the property sought to be expropriated, it appearing that
   the right of the plaintiff to expropriate is contested by the
   defendant, and it further appearing that the occupants of the land for
   whose benefit the plaintiff is seeking to expropriate it are already in
   possession of said land, we find that the respondent judge did not
   abuse his discretion in refraining from issuing the order applied for
   by the petitioner pending the resolution of the issue as to the right
   of the plaintiff to expropriate the land for the use specified in the
   complaint, specially taking into consideration the decisions of this
   court in the cases of Guido vs. Rural Progress Administration, 47 Off. Gaz., 1848; 84 Phil., 847 and City of Manila vs. Arrellano Law College, 47 Off. Gaz., 4197; 85 Phil., 663.

The petition is denied, without any finding as to costs.

Moran, C.J., Pablo, Tuason, Montemayor, and Reyes, JJ., concur.