CANUTO E. LARROBIS, PETITIONER, VS. ADOLPH WISLIZENUS, JUDGE OF THE COURT OF FIRST INSTANCE OF CEBU, AND SMITH, BELL & CO., LTD., RESPONDENTS.

It appears from the petition that on May 24, 1919, Smith, Bell
& Co. Ltd. filed in the Court of First Instance of the Province of
Cebu an application to register, in accordance with the Land
Registration Act, certain land particularly described in the technical
plan and description attached to the application. On December 22, 1919,
an interlocutory order was entered in that proceeding declaring general
default against all persons, with the exception of the Government of
the Philippine Islands, for failure to appear and answer within the
time allowed by law. On February 18, 1920, one Canuto E. Larrobis
appeared and filed a motion in the same proceeding, asking that the
default be set aside as to him for the reasons stated in said motion,
and that he be allowed to make opposition to the registration of a
portion of the land included in the application. The trial judge,
acting in the exercise of the discretion which he supposed himself to
possess in such matters, granted this motion, and the opposition of
Larrobis was accordingly entered. Meanwhile the proceedings continued
their course, no final decree having been entered at any time, until
April 18, 1921, when a motion was interposed by the attorneys for the
applicant, asking the court to reconsider its order permitting Canuto
E. Larrobis to make opposition and to reinstate the default order as
against him. On June 15, 1921, this motion was granted, and although
the attorney of Larrobis promptly moved for a reconsideration of the
action thus taken, the court remained firm. As a consequence Larrobis
was effectually excluded from the proceedings, and the present petition
was thereupon filed in this court.

The motion interposed in the lower court on April 18, 1921, by the
attorneys for the petitioner Smith, Bell & Co. proceeds on the
following line of reasoning, to wit, that general default against all
persons, with the exception of the Government of the Philippine
Islands, had been declared on December 22, 1919; that any application
for the setting aside of such default should have been made within
thirty days thereafter; that the motion of Canuto E. Larrobis to set
aside this default as to himself and to permit him to enter opposition
was not interposed until more than thirty days after the default was
entered, that is to say, until February 18, 1920; and that as a
consequence the court was wholly devoid of jurisdiction to entertain
and grant said motion. Although the order of the lower court of June
15, 1921, does not specifically so state, it is evident that the action
taken by that court in making the default again effective against
Canuto E. Larrobis was based on the ground thus indicated, namely, want
of jurisdiction to set the default aside.

The action of the court in reinstating the default order to which
allusion has been made and thus disabling Canuto E. Larrobis, the
petitioner herein, from continuing his opposition in the proceeding
referred to, was clearly mistaken; and the error was due to a failure
to discriminate between an interlocutory order declaring default and
the final judgment which is based upon such default. That the two
species of orders, or judgments, are entirely different may be
collected from section 128 of the Code of Civil Procedure, wherein the
court is first required to order judgment for the plaintiff to be
entered by default, in case the defendant fails to appear or answer at
the time required, after which the plaintiff submits his proof and
final judgment is rendered for the plaintiff.

The power of the court, in the exercise of its discretion, and in
accordance with the immemorial usage of courts of justice operating
under our system of procedure, to set aside an interlocutory default
order and permit a person to come in and make defense for any good
cause shown cannot be questioned. The power to set aside such a
judgment is a power inherent in courts of general jurisdiction, and
may, so it has been declared, be exercised without the grant of
statutory authority. (23 Cyc, 889.) Moreover, an interlocutory judgment
or order remains under the control of the court, in the absence of
provision to the contrary, until the final decision of the case, and
may be modified or rescinded, on sufficient grounds shown, at any time
before the entry of final judgment. Even the rule prevailing in many
jurisdictions to the effect that the power of a court over its orders
ceases with the expiration of the term has no application except to
final judgment, and not while the proceedings are in fieri. (Hastings vs.
Cunningham, 35 Cal., 549, 552.) As regards interlocutory orders and
decrees, no question can be made as to the authority of the court to
change or reverse them, in accordance with the principles governing the
exercise of judicial power, so long 1 as the cause remains undetermined
before the court.

The ordinary interlocutory order declaring default against a party
for failure to appear or answer is precisely the same sort of order as
that known to the practice of courts of equity as the taking of a bill pro confesso.
Such an order is grantable as of course upon any of the contingencies
justifying the taking of a bill as confessed; and when taken, such
order becomes the foundation for the subsequent final decree. It is the
uniform practice of courts of equity to allow pro confesso
orders to be set aside upon timely application and any reasonable
showing that the defendant probably has a meritorious defense and that
he was not culpably negligent in failing to put in his defense sooner.

Since the enactment of the Code of Civil Procedure the power to set
aside default orders in the courts of the Philippine Islands seems to
have been generally exercised under section 113 of said Code; and for
present purposes it is unnecessary to inquire whether any more
extensive power can be exercised by our courts with reference to this
matter than that conferred by that section. Suffice it to say that,
under that section, the court below undoubtedly had the power to
entertain the motion of Canuto E. Larrobis to have the default against
him set aside; and the action of said court in granting that motion
involved an exercise of discretion the propriety of which cannot be
here questioned.

That a Court of First Instance acting in land registration
proceedings has identically the same power over interlocutory orders
that it has in ordinary civil actions is evident from the second
paragraph of section 10 of Act No. 2347, which is to the effect that in
all matters of procedure not provided in the Land Registration Act (No.
496), the rules and provisions contained in the Code of Civil Procedure
in civil actions and proceedings shall be applied in registration cases
in so far as the same may be applicable. Again, there is express
provision in the Cadastral Act to the effect that “Orders of default
and confession shall also be entered in the same manner as in ordinary
cases in the same court and shall have the same effect.” (Act No. 2259,
sec. 11.)

But it is supposed that the decision of this court in Caballes vs.
Director of Lands and Court of First Instance of Laguna (41 Phil.,
357), has limited the exercise of the power of setting aside a default
order in land registration cases to the situation where the motion to
this end is filed within thirty days after the default order is
entered. The decision referred to was not intended to have this effect;
and when the facts on which that decision is based are examined, it
will be seen that no such doctrine is properly deducible therefrom.

The judgment from which relief was sought in that case was a decree
which had been entered upon default, and said decree was so framed as
to constitute a final adjudication of title. The petition addressed to
this court was before us for consideration in one aspect or another for
two and a half years; and the case was repeatedly examined by more than
one member of the Tribunal, but no expedient suggested itself which
would have justified us in ignoring the finality of the judgment. The
matter was considered to have passed into res judicata. Upon
this state of facts it was held, among other points decided, that
section 113 of the Code of Civil Procedure could not be invoked to
relieve a person included in the default and who had not up to that
time appeared in the proceedings. The reason for this is that the
particular conditions under which relief can be obtained from a final
decree in registration proceedings are specified in section 38 of Act
No. 496, as amended, and that provision is incompatible with the
application of section 113 of the Code of Civil Procedure in respect to
final decrees.

In the case now under consideration the default order was of a
purely interlocutory nature and the proceedings in the court below have
not even yet arrived at the point where a final judgment could be
entered. Under these conditions the doctrine of Caballes vs. Director of Lands and Court of First Instance of Laguna, supra,
is inapplicable. It is to be regretted that the first proposition in
the syllabus prefixed to that decision, as it appears in the Official
Gazette of February 26, 1921, is expressed in terms so broad as to be
misleading, and said proposition has been reformed, for reproduction in
the official edition of the Philippine Reports, to read as follows:

“1.REGISTRATION OF LAND; CADASTRAL PROCEEDINGS,
RELIEF FROM ERRONEOUS JUDGMENT; POWER OF COURTS OF FIRST INSTANCE.—The
remedy by motion provided in section 113 of the Code of Civil Procedure
cannot be successfully invoked in a Court of First Instance for the
purpose of obtaining relief from a final decree adjudicating title in a
land registration or cadastral proceeding.”

We wish to add that when said case was here under discussion, we
were not unmindful of the second paragraph of section 10 of Act No.
2347; but we made no reference to it in the opinion for the reason that
the granting of relief after final judgment is governed by special
provisions, as already indicated.

From what has been said it is apparent that the order of the
respondent judge, dated June 15,1921, making the default for a second
time effective against Canuto E. Larrobis was based upon a mistaken
view of the law, in that his Honor supposed that his previous order
setting the original default aside was void for want of jurisdiction in
him to make it. This being true, it results that the making of said
order of June 15, 1921, was itself an act which constituted an
irregular exercise of judicial power, and the same is remediable by
means of a petition for the writ of certiorari. After the original
default had been set aside and the petitioner had been admitted to make
opposition, he was on the same footing before the court as any
defendant party in any ordinary proceeding; and even conceding that the
court might in the exercise of its interlocutory powers have reviewed
the order setting the default aside for good cause shown, nevertheless
where the action excluding the petitioner from the proceeding was
clearly based on no other ground than a mistaken view of the law, such
act must be treated as an irregular exercise of jurisdiction even if
not as altogether beyond the court’s power. A Court of First Instance
cannot eject a litigant from court without some legitimate basis being
laid therefor.

From what has been said it is evident that the demurrer is not well
taken. The same will therefore be overruled, and judgment will be
entered to the effect that the order of June 15,1921, entered by the
respondent judge be vacated, and that the petitioner be admitted to
continue his opposition, unless within five days after notification of
this decision the respondents shall interpose a sufficient answer to
the petition. So ordered.

Johnson, Araullo, Avancena, Villamor, and Romualdez, JJ., concur.