GUILLERMO COMEDA, PETITIONER AND APPELLANT, VS. E. Q. CAJILOG, ETC., ET AL., RESPONDENTS AND APPELLEES.

On April 15, 1958, Cornelio O. Tan filed an action against Guillermo
Comeda for recovery of a sum of money before the justice of the Peace
Court of Lopez Jaena, Misamis Occidental. Summons was issued requiring
Comeda to appear before said court on April 28, 1958. On said date,
Comeda appeared and requested the court for time to file his answer and
there being no objection there- to the hearing was reset on May 5,
1958. On this date, Comeda, having failed to appear, the justice of the
peace court declared him in default and received plaintiff’s evidence.

Barely 1 hour and 15 minutes after his declaration of default, Comeda
appeared and presented his written answer asking at the same time that
he be given a new trial, to which the court merely stated that the
request will be considered. However, on May 12, 1958, Comeda received a
copy of the decision on the merits, whereupon he riled a motion for new
trial which was forthwith denied. His motion for reconsideration having
also been denied and believing that the justice of the peace court
committed a grave abuse of discretion in depriving him of his right to
be heard, Comeda filed a petition for certiorari with the Court of
First Instance of Misamis Occidental seeking to annul not only the
order declaring him in default but also the decision on the merits.

Instead of filing an answer, respondent Tan moved to dismiss the
petition based on the ground that the relief prayed for cannot be
granted by certiorari but by appeal, and finding the motion well-taken,
the court a quo dismissed the petition. Comeda interposed the present appeal.

The appeal is well-taken. It appears that on the date set by the
Justice of the Peace Court of Lopez Jaena for the hearing of this case,
defendant Guillermo Comeda appeared and requested that the hearing be
deferred to another date which was granted, but on the date newly set
he failed to appear for which reason he was declared in default.
However, barely 1 hour and 15 minutes after his declaration of default,
he showed up and requested that he be given an opportunity to be heard.
This plea however was disregarded and the court decided the case- on
the merits.

We believe that the justice of the peace court abused its discretion
not only in declaring Comeda in default because he actually appeared on
the date originally set for hearing but also because on the second
hearing he only was late for barely one hour and immediately requested
that he be given an opportunity to present his evidence. Fairness and
justice demand that such hearing be given Comeda considering that when
the request was made the court had, not yet rendered Its decision on
the merits (Section 14, Rule 4, Rules of Court). In the circumstances,
the step he took for the redress of his grievance is justified.

The case of Carballo vs. Encarnacion, et al., 92 Phil., 974 is in point. This Court said:

“We agree that decision by default rendered by an inferior court is not appealable (Lim Toco vs.
Go Fay, 80 Phil., 166; 45 Off. Gaz. No. 8, p. 3350). The question now
is whether defendant (now petition Carballo) defaulted in the municipal
court of Manila. True, he filed no answer, but his counsel filed a
written appearance. In addition, said counsel filed a motion or
manifestation asking for postponement of the hearing on the ground that
he was ill. In the case of Flores vs. Zurbito, 37 Phil. 746,
this Court held that an appearance in whatever form without expressly
objecting to the jurisdiction of the court over the person, is a
submission to the jurisdiction’ of the court over the person. It is,
therefore, clear that petitioner Carballo made an appearance in the
municipal court. Could he then be declared in default just because he
filed no answer? The answer must be in the negative. In the case of
Quisan vs. Arellano, .G. R. No. L-4461, December 28, 1951, the Supreme
Court said that in the Justice of the peace court failure to appear,
not failure to answer is the sole ground for default. What really
happened in the municipal court was that the defendant though he filed
no answer to the complaint, nevertheless, he made his appearance, and
in writing at that, but because of his failure and that of his counsel
to appear on the date of the trial, a hearing ex-parte was held and
judgment was rendered thereafter. The judgment, therefore, was not by
default. So defendant Antonio Carballo had a right to appeal as in fact
he appealed, and the Court of First Instance should not have declared
the decision appealed from final and executory under the theory that it
was not appealable.

“The present petition is granted and the respondent judge is hereby
directed to proceed with the trial of the case. Respondent Mariano Ang
will pay the costs.”

Wherefore, the order appealed from is set aside. The case is remanded to the court a quo for further proceedings. Costs against Appellee, Cornelio O. Tan.

Bengzon, C. J., Padilla, Labrador, Concepcion, Reyes, J. B. L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.