ILDEFONSO SUZARA, PETITIONER, VS. HON HERMONES CALUAG, ET AL., RESPONDENTS.

On August 8, 1958, Aurora de Castro filed a complaint before the Court of
First Instance of Quezon City seeking to recover from Ildefonso Suzara the sum
of P2,000.00 and P1,152.00 on two causes of action. Defendant failed to file his
answer within the reglementary period and so plaintiff filed a motion to declare
him in default. On October 13, 1958, the court declared defendant in default,
and after allowing plaintiff to present-her evidence, it rendered judgment
against defendant as prayed for in the complaint.

Before defendant became aware of the order of default and of the judgment
rendered against him, he filed on November 17, 1958 his answer wherein he
alleged as defense that the amounts which plaintiff seeks to collect are
usurious. On November 19, 1958, when he learned of the order of default and the
judgment rendered against him, defendant filed a motion for reconsideration
which was verified although not accompanied by affidavits of merit. On November
29, 1958, the court denied the motion, but issued a writ of execution of its
decision. On December 17, 1958, defendant gave notice of appeal from the order
denying his motion to set aside the order of default, which was followed by the
record on appeal and appeal bond, but the court denied the appeal on the ground
that defendant having been declared in default has no standing in court, while
his petition for relief was presented out of time. Hence, defendant interposed
the present petition for certiorari.

It should be stated at the outset that while the present petition partakes of
the nature of a certiorari based on grave abuse of discretion on the part of the
court a quo, it however asks that respondent judge be ordered to give course to
petitioner’s appeal. In effect, therefore, it is a petition for mandamus.

There is no dispute that petitioner was declared in default because of his
failure to file his answer within the reglementary period, and as a result
judgment was rendered against him on October 20, 1958. On November 19, 1958,
petitioner filed a motion for reconsideration which was verified although it was
not accompanied by the required affidavits of merit. It is probably for this
reason that the court a quo denied the motion and instead issued a writ
of execution of the decision. The question that now arises is: Can said motion
for reconsideration be considered as a petition for relief under Section 2, Rule
38, of our Rules of Court? Should the answer be in the affirmative, can that
motion be considered as one filed in accordance with our rules?

In order that said motion may be considered as a petition for relief, the
following requisites must be present: (1) it must be verified; (2) it must be
filed within 60 days from the time petitioner learns of the decision but not
more than 6 months from entry thereof; and (3) the petition must be accompanied
by affidavits of merit showing the fraud, accident, mistake or excusable
negligence relied upon and the facts constituting petitioner’s cause of action
or defense. Here it appears that the motion was filed before the reglementary
period for appeal has expired, or before the decision has become final and
executory. In other words, the motion was filed before entry of judgment and so
it cannot be considered as a petition for relief. Thus, in Quirino vs.
Philippine National Bank, et al., 101 Phil. 705; 54 Off. Gaz., (14) 4248, we
held:

“We are in complete accord with the trial court and counsel for the appellee
bank in the position taken by them. When the appellant filed his petition for
relief before the Court of First Instance, the judgment against him by the
Justice of the Peace had not yet become final and executory. Consequently,
relief under Rule 38 of the Rules of Court was not in order for the reason that
said relief is available only after a decision or a judgment from which
relief is sought is final and executory. Such is our ruling in the case of Veluz
vs. Justice of the Peace Court of Sariaya, 42 Phil., 557; wherein we said. * *
*”

The motion filed by petitioner cannot therefore be considered in any other
light than that of a motion for new trial for in effect it seeks to set aside
the order and judgment of default based on fraud, accident, mistake or excusable
negligence, as provided for in Section 1, Rule 37 of our Rules of Court. Even
then, said rule requires that the motion be accompanied by affidavits of merit,
which was not done in the present case. This is perhaps the reason why the court
a quo denied it even though it does not say so in so many words.

But petitioner contends that the lower court erred in denying him his right
to appeal. He contends that his motion was verified and sets forth his special
defense as well as the facts on which it is based. It states in effect that the
amounts claimed are not true and correct and part thereof constitutes a
violation of the Usury Law. He claims that his motion substantially complies
with the rule and so the lower court erred in denying him his right to
appeal.

We believe that this is a right which the trial court cannot deny unless it
appears that the appeal is flagrantly frivolous and having denied it without any
valid reason, the court a quo committed an abuse of discretion which
needs to be corrected.^[1] We find,
therefore, the present petition justified.

Wherefore, petition is granted. Respondent court is ordered to give course to
the appeal of petitioner, with costs against respondent Aurora de Castro.

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

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[1] De la Paz vs. Biring, et al., 96 Phil., 733; 51
Off. Gaz., [5] 2419; Coquiliano vs. Buenaventura 87 Phil., 300; 48 Off. Gaz.,
63; Medran vs. Court of Appeals, et al., 83 Phil., 164; 46 Off. Gaz., 4277;
Tecson, et al. vs. Melendres, et al., 88 Phil., 703.