SOLEDAD PEÑA DE LUZ, PETITIONER,vs. THE COURT OF FIRST INSTANCE OF LEYTE, RESPONDENT.

PERFECTO, J.:

The validity of a decision rendered on March 24, 1944, granting Simeon D. Luz
divorce from his wife Soledad Peña, is in issue in this case.

On September 26, 1940, Simeon D. Luz married Soledad Peña in Manila, where
they established their conjugal abode. On July 11, 1941, their son Cesar was
born.

Alleging that on July 20, 1941, his wife abandoned him, by leaving him and
going to her mother at SInait, Ilocos Sur, and that all his efforts to make her
return proved fruitless, Luz filed in the Court of First Instance of Leyte on
September 22, 1943, a complaint seeking divorced under the provisions of
Executive Order No. 141 issued on March 25, 1943, by the CHairman of the
Philippine Executive Commission pursuant to the authority conferred upon upon
him by the commander in chief of the imperial Japanese forces in the Philippines
and with the approval of the latter, which repealed and superseded Act No. 2710
of the Philippine Legislature.

Soledad Peña was served at Sinait with summons togehter eith the copy of the
complaint on January 20, 1944. On January 13, she filed a motion to dismiss the
complaint on the ground of lack of jurisdiction of the court over the subject
matter. The motion was denied in an order issued by Judge Froilan Bayona on
April 1, 1944, copy of which was received by defendant’s attorney on May 12, and
on the same date on attorney deposited in the mail an answer to the complaint,
addressed to the court in Leyte where it was received only on June 23, having
been in transit for one month and eleven days.

On August 19 same attorney filed a petition praying for the wife’s alimony
pendente lite in the amount of P250 a month. As no order disposing of
said petition had as yet been received, defendant’s attorney on October 2, 1945,
file anex parte motion asking for a copy of any order that might have
been issued concerning the alimony pendente lite prayed for. On October
23, 1945, Judge Fernando Hernandez issued an order denying the ex parte
motion on the ground that the case had been decide since March 24, 1944, and
that it does not appear that the decision has ever been set aside. Defendant’s
attorney receieved copy of the order on November 7, 1945, and on the same date
he filed a motion, accompanied with affidavits, praying that the decision be set
aside, that defendant’s answer to the compalaint be admitted, and that defendant
be granted alimony pendente lite, said attorney alleging under oath that it was
only on said date that he happened to know about the existence of the decision
in question. ON February 9, 1946, defendant’s motion was denied by JUdge
Fernando Hernandez.

Upon receipt of said order of denial, defendant’s attorney filed on March 1,
1946, a motion praying for trial on the merits, and insisting that the decision
rendered on March 24, 1944, is a nullity, having been rendered without granting
defendant her day in court. The motion was denied on April 13; hence, the
petition noe under our consideration.

From the lower court’s answer, signed by Judge Mariano C. Melendres, it
appears that Atty. Emilio Benitez, now Judge of First Instance of Samar, on
behlaf of plaintiff filed on February 24, 1944, a motion to declare defendant in
default for failure to file her answer. On February 26, Judge Vicente de la Cruz
postponed the consideration of the motion to declare defendant in default “in
view of the fact that hte telegram that was received by the clerk of court of
Tacloban from the Sheriff of Vigan is not very clear and it may be said that the
defendant has filed an answer and was mailed.”

On March 18, 1944, three days after receipt of the sheriff’s return to the
effect that the defendant was summoned on January 20, Judge Froilan Bayona
issued an order declaring defendant in default and authorizing plaintiff to
adduce evidence.

There is no question that when the motion to declare defendant in default was
filed on February 24, the consideration of which was postponed on February 26,
and finally granted on March 18, and when the decision was rendered on March 24,
1944, defendant’s petition to dismiss sent from Ilocos Sur since January 31 was
transit and must have been received between the date of the decision and April
1, 1944, when the order denying it was issued

This case has been submitted for decision upon the above facts gathered fro m
the allegations and exhibits of petitioner and Judge Mariano C. Melendres, of
the Court of FIrst Instance of Leyte; but are not in a position to render
decision in view of petitioner’s noncompliance with provisions of section 5 of
Rule 67 of the Rules of Court.

“SEC. 5. Defendants and costs in certain cases. When the petition
filed relates to the acts or omissions of a court or judge, the petitioner shall
join, as parties defendant with such court or judge, the person or persons
interested in sustaining the proceedings in the court; and it shall be the duty
of such person or persons to appear and defend, both in his or their behalf and
in behalf of the court or judge affected by the proceedings, and costs awardedin
such proceedings in favor of the petitioner shall be aginst the person or
persons in interest only, and not against the court of judge.”

Although the omission has not been questioned by respondent lower court, and
Judge Melendres, in alleging in his answer that plaintiff Simeon D. Luz can not
be located and his former attorney
has no interest in the case, appears to
have waived his right to question the petition for noncompliance with section 5
of Rule 67, as the decision may adversely affect said plaintiff, it is in the
interest of justice that he be given an opportuniy to be heard in this case.

The court, therefore, resolved that in accordance with section 6 of Rule 67
and section 16 of Rule 7 plaintiff Simeon D. Luz be declared joined as party
respondent.

He may answer the petition within ten (10) days from notice of this
resolution.

Moran, C. J., Paras, Feria, Pablo, Hilado, Bengzon, Briones, Padilla,
and Tuason, JJ., concur.