ONG GUAN CAN, PLAINTIFF AND APPELLEE, VS. THE CENTURY INSURANCE COMPANY, LTD., DEFENDANT AND APPELLANT.

JOHNSON, J.:



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}The only question presented by the appeal is whether or not the judgment by
default rendered by the lower court should be set aside and annulled. We think
it should be, for the following reasons:

The action was commenced in the Court of First Instance of the City of Iloilo
on the 15th day of May, 1923. Its purpose was to recover an amount due on the
policy of insurance issued by the defendant to the plaintiff. On the same day a
copy of the complaint was served upon the defendant, through its duly authorized
representative in the City of Iloilo, Messrs. Andrews & Co. The defendant
filed its appearance with the clerk of the court on the 7th day of June, 1923.
The notice of appearance, it is alleged and not denied, was mailed at the City
of Manila on the 2d day of June, 1923. On the 5th day of June, 1923, the
attorneys for the plaintiff presented a motion praying that a judgment by
default be rendered against the defendant. Said motion was granted on the same
day, and a judgment by default was duly entered. On the 8th day of June, 1923,
the defendant, through its attorneys, filed a motion praying that the judge set
aside said judgment by default and permit the defendant to answer. Said motion
recited that the said notice of appearance was mailed at the City of Manila on
the 2d day of June, 1923, and that the steamship Vizcaya, carrying
mails, including the letter containing the notice of appearance on the 2d day of
June, did not arrive at Iloilo in the usual course until after the time had
expired for filing its appearance, or on the 7th day of June, 1923, due to the
fact that said ship encountered a storm at sea. The lower court denied said
motion on the 11th day of June, 1923, to which order the defendant duly
excepted, and later presented another motion to the same effect, alleging and
asserting that it had a valid and meritorious defense to the cause of action
presented by the plaintiff. Later the second motion was also denied, to which
the defendant also excepted. Some further proceedings were had in the lower
court concerning the judgment by default, which have no importance in the
consideration of the question presented.

From the judgment by default of the lower court the defendant appealed and
now alleges that it committed an error in not granting the motions to set aside
said judment and permit the defendant to answer. It is admitted that the
plaintiff and defendant resided in the same province. Under paragraph 2 of
section 392 of Act No. 190 it became the duty of the defendant to appear within
twenty days from the service of the summons. The summons was served on the 15th
day of May. The twenty days within which the defendant was required to appear
expired on the 5th day of June. No appearance was filed by the defendant until
perhaps the 7th day of June. It is admitted that the defendant mailed its
appearance in the City of Manila on the 2d day of June, 1923. It is also a fact
that mail, in the ordinary course, will arrive at Iloilo from Manila in two
days. The defendant mailed its appearance at a time when in the ordinary course
of events it would have reached the hand of the clerk of the court on or before
the expiration of the time within which it was obliged to make its appearance.
The reason that the appearance did not reach its destination was due to a fact
over which the defendant had no control. The failure to make the appearance
within the time prescribed by law was due to no fault of the defendant. The
defendant evidently made an honest effort to comply with the law. To render a
judgment against it under these circumstances would be to render a judgment
against it without giving it an opportunity to be heard.

It has been frequently decided that, if pleadings or other papers essential
to a case are entrusted to the mails in due season and under proper precaution
and are lost or miscarried, it will be ground for vacating a judgment by
default. (Boyd vs. Williams and Overbaugh, 70 N. J. Law, 185; Corning
vs. Tripp, 1 Howard’s Practice [N. Y.], 14; Williams vs.
Richmond, etc. Railroad Co., 110 N. C, 466; Chicago, etc. Railway Co.
vs. Eastham, 30 L. R. A. [N. S.], 740; 23 Cyc, 943; 15 Ruling Case Law,
708.)

A delay of mail, such as occurred in the present case, in our opinion amounts
to accident or surprise for which judgments by default may be set aside,
especially when the defendant shows by affidavit or otherwise that he has a
valid and meritorious defense. The time fixed for filing papers in a cause is
generally directory and the court always has it in its power, in the exercise of
a proper discretion, to extend the time fixed by law whenever the ends of
justice would seem to demand such an extension. (Wood vs. Fobes and
Farnham, 5 Cal., 62.)

Considering the causes which prevented the defendant from making its
appearance within the time prescribed by subparagraph 2 of article 392 of Act
No. 190 and considering its showing that, if permitted to answer, it has a
meritorious defense, we are of the opinion, and so decide, that the judgment by
default rendered by the lower court should be and is hereby set aside, and it is
hereby ordered and decreed that the defendant’s appearance be admitted and that
it be given ten days in which to answer from notice of this decision. And
without any finding as to costs, it is so ordered.

Araullo, C J., Street, Malcolm, Avancena, Ostrand, Johns, and
Romualdez, JJ., concur.