GUILLERMO VIACRUCIS, AND LUISA DE VIACRUCIS, PETITIONERS, VS. HON. NUMERIANO G. ESTENZO, JUDGE OF THE COURT OF FIRST INSTANCE OF LEYTE, ANASTACIO ORAIS, AND CELESTINA MALAZARTE,…

On November 15, 1960, respondents Anastacio Orais and Celestina
Malazarte filed with the Court of First Instance of Leyte a complaint
(Civil Case No. 444-0) against petitioners Guillermo Viacrucis and
Luisa de Viacrucis, for recovery of possession of a parcel of land
allegedly acquired by plaintiffs by virtue of a deed of sale in their
favor, with damages. On December 15, 1960, petitioners were served with
summons and a copy of the complaint. On December 21,1960, due to
respondents’ failure to attach to the complaint a copy of the deed of
sale, referred to Annex “A,” petitioners, as defendants below, filed a
motion seeking an extension pf time for them to answer the complaint
until after receipt of said document. Acting on said motion, the court,
on December 28, 1960, issued an order giving petitioners 10 days from
receipt of said document within which to file their answer to the
complaint. Said order, together with the copy of said document, was
actually received by petitioners’ former counsel: on February 6, 1961,
the notices issued by the postmaster of Davao City to said counsel
having been issued as follows: First notice: January 24, 1961; Second
notice: February 1, 1961; and Third notice: February 6, 1961.

On January 31, 1961, however, presumably on motion of respondents’
counsel, the court issued an order declaring petitioners in default, to
wit:

“ORDER

“For failure on the part of the defendants to file their answer; the said defendants are hereby declared in default.

“On
motion of Attorney Leonardo C. Dejano, the hearing of this case for
the reception of the evidence for the plaintiffs is hereby set on
February’ 13, 1961 at 7:30 o’clock in the morning, with notice to
Attorney Dejano in open court. “So Ordered.”

On February 14, 1961, petitioners filed their answer, with
counterclaim, asserting that the deed relied upon by the plaintiffs was
but a simulated sale to enable plaintiffs to obtain a loan which was
never carried out.

On February 15, 1961, the court received the evidence ,for
respondents ex parte and thereafter, on the same date, rendered a
decision in favor of respondents the dispositive part of which reads:

“WHEREFORE, the Court hereby declares the plaintiffs
to be the lawful owner of all the parcel of land described as follows:
* * * The Court hereby orders the defendants to jointly and severally
pay the plaintiffs the sum of P400.00 representing damages from 1956 up
to December, 1960, and another sum at the rate of P10.00 a month from
January, 1961 up to the time the four-hectares northern portion of the
aforesaid land shall have been delivered to the plaintiffs and to pay
the plaintiffs the sum of P150.00 for as attorney’s fees.

“The
defendants are hereby ordered to vacate the four-hectare northern
portion of land aforesaid and restore the plaintiffs to the possession
thereof, and that costs is hereby adjudged against the defendants.”

” On February 16, 1961, herein petitioners received notice of the
order of the court of January 31, 1961, declaring them in default and
setting tbe case for reception of evidence ex parte on February 13, 1961. Thereupon, petitioners filed a motion for reconsideration of the said order of default stating partly:

“1. The record of this case shows that by order of
this Honorable Court dated December 28, 1960, the defendants were given
ten (10) days from the receipt of the copy of the manifestation of the
plaintiffs’ counsel together with the copy of Annex ‘A’, the Deed of
sale alleged in the complaint.

“2. The said order of this
Honorable Court dated December 28, 1960, together with the copy of the
Manifestation of plaintiffs’ counsel and also a copy of the deed of
sale (Annex ‘A’), was received by the undersigned on February 6, 1961.
Defendants therefore have up to February 16, 1961 within which period
of ten (10) days said defendants should file their answer under and by
virtue of said order of this Honorable Court dated December 28, 1960
referred above. The mail received was by ordinary registered mail.

“3.
That it may also be mentioned herein that an order of this Honorable
Court dated January 24, 1961, was received on the said date of February
6, 1961 setting the hearing of this case on January 31, 1961 at 7:80
A.M., with the notice to Atty. Dejano in open court. It is herein
alleged that the envelope containing this order was postmarked at Ormoc
City Post Office January 27, 1961 and as already said, received on
February 6, 1961. It was sent by ordinary mail.

“4. That
defendants filed their answer by registered airmail on February 14,
1961 as per registry office receipt No. 14189 issued by Davao City Post
Office and clearly within the ten-day period granted to the defendants
in the said order of this Honorable Court on December 28, 1960 which
wa3 received on February 6. 1961.

“5. That considering these
incontrovertible facts appearing in the record of this case, the
undersigned counsel cannot imagine how the defendants could be declared
in default; and furthermore the undersigned counsel entertain the
belief that plaintiffs were permitted to present their evidence on
February 13,1961 by and under the virtue of the order herein sought to
be reconsidered.

“6. That under the above set of
incontrovertible facts, there is absolutely no justification that
defendants be declared in default and therefore whatever proceedings
had on February 13, 1961 will have no binding effect upon the
defendants.

“WHEREFORE, it is respectfully prayed of this
Honorable. Court that the order dated January 31, 1961 be reconsidered,
lifting same; and that whatever proceedings had on February 13, 1961,
having no binding effect upon the defendants, be set aside.”

Said motion was denied by respondent Judge on April 21, 1961, in an order of this tenor:

“ORDER

“It appears from the
certificate issued by the Postmaster of Davao City that as early as
January 24, 1961, the first registry notice was sent to Attorney
Bonifacio Tamayo representing the defendants.

“The said
registered letter No. 3789 contains the order of this Court giving the
defendant ten (10) days within which to present his answer to the
complaint.

“Under Section 8, Rule 27, of the Rules of Court
that service on this letter is deemed complete on January 29, 1961, and
that on February 9, 1961, as the defendants have not filed any answer,
this Court is well grounded in proceeding with the hearing of this case
as the defendants, since then, have already been in default.

“This
Court has waited until February 15, 1961, for this Court to receive an
answer, but as no answer was filed, the hearing proceeded and a
corresponding decision was rendered.

“WHEREFORE, for lack of
sufficient merits, the motion for reconsideration filed by the
defendants is hereby denied, with notice to Attorneys Dejano and Payos,
in open court. “So ordered.”

Notified of this order of denial on April 26, 1961, petitioners
filed with this Court the present petition for certiorari (with prayer
for preliminary injunction) and mandamus.

Petitioners claim that respondent Judge acted with grave abuse of
discretion and in excess of his jurisdiction in declaring them in
default on January 31, 1961. Respondents on their part urge the
dismissal of the present petition, on the ground that appeal from the
order of April 21, 1961 denying petitioners’ motion for reconsideration
of the default order, is the proper remedy.

Petitioners admit that the first notice of the registered mail
containing the order of the trial court dated December 28, 1960 (giving
them 10 days from receipt thereof within which to file their answer to
the complaint) was sent by the Davao City Postmaster to petitioners’
counsel on January 24, 1961. Having failed to claim said mail from the
post office within 5 days from said date of first notice, or
specifically on January 29, 1961, service thereof was, pursuant to
Section 8, Rule 27, of the Rules of Court, deemed completed at the
expiration of the latter date. Nonetheless, petitioners had until
February 8, 1961 (1Q days from January 29) within which to file their
answer to the complaint. In the circumstances, the trial court could
not have legally declared them in default before such date. Hence, the
order of default made on January 31, 1961, Le., 8 days prior to the
expiration of the time expressly granted petitioners to answer, was
premature and, therefore, null and void.

It is, however, contended that petitioners’ remedy properly should
have been an appeal from the order denying their motion to set aside
the order of default, citing the case of Madrigal Shipping Co. vs. Ogilvie, et al., (104 Phil., 748; 55 Off. Gaz. [35] 7331), wherein this Court said:

“Counsel argue that an order of default being interlocutory, the
petitioner could not appeal therefrom. True, but from a denial of a
motion to set aside an order of default, as the petitioner’s ‘urgent
motion to set aside order of default’ (Annex F), which may be deemed to
fall under section 2, Rule 38, the petitioner could have appealed.
Instead of taking an appeal from such denial, the petitioner chose to
bring the matter to this Court by a petition for certiorari with
preliminary injunction which was correctly dismissed for the remedy was
an appeal from the order denying the motion to set aside the order of
default entered against the petitioner because of mistake or excusable
neglect. * * *.” (Italics supplied.)

Note, however, that in the above-mentioned case, the motion to set
aside the default order, being predicated on the movant’s own alleged
mistake and excusable neglect, was treated, and .properly so, as one
for relief under Rule 38. In other words, the order of default issued
therein was not being assailed as inherently defective, but as one
resulting from the mistake or excusable neglect of the party seeking
the relief. ‘It is evident that upon denial of the motion to set aside
such order of default, appeal is in order.

Upon the other hand, we have the case of Luz vs. Court of First Instance of Tacloban, et al. (77 Phil., 454, 44 Off. Gaz. 42) wherein this Court, finding that—

“When the motion to declare defendant in default was filed on
February 24, * * * and when the decision was rendered on March 24,
1944, defendant’s petition to dismiss sent from Docos Sur since January
31 was in transit and must have been received between the date of the
decision and April 1, 1944, when the order denying it was issued”,

held that the lower court acted prematurely in pronouncing defendant
(petitioner) in default, and the decision rendered therein, without
giving said defendant her day in court, was declared null and void.

In another case^[1] we
granted the writ of certiorari prayed for where it was established that
the defendant was prematurely declared in default through
misinterpretation by the lower court of the provisions of section 5 of
Rule 13, of the Rules of Court. Such premature declaration of default
of defendant or the rendering of judgment before the expiration of the
time for the filing of an answer, we held therein, deprives the
defendant of his day in court and the judgment so rendered may,
consequently, be vacated.

Conformably with the foregoing pronouncements, the declaration of
default by the court in this case, before petitioners’ period to file
their answer had expired, clearly is in excess of and/or without
jurisdiction and, therefore, properly correctable by a writ of
certiorari.

Respondents also argue that since petitioners actually filed their
answer only on February 14, 1961, i.e., 6 days after the expiration of
the period to file the answer (on February 8), the trial court
correctly proceeded ex parte with the case on February 15. Differently
stated, it is respondents’ contention that petitioners’ failure to file
their answer on time cured the previous premature declaration of
default and validated the otherwise defective proceedings had on
February 15.

Such argument can not be sustained. Firstly, under Section 6, Rule
35, of the Rules of Court, a defendant who fails to timely file his
answer can only be declared in default “upon motion of the plaintiff”
(not motu proprio by the court). There is no question that
after the premature, and hence void, declaration of default on January
31, 1961, no other motion to the same effect was filed by
respondents-plaintiffs and granted by the court. Petitioners,
therefore, were never legally in default. Secondly, petitioners’
subsequent failure to file their answer within the extension period
could not produce the retroactive effect of supplying the deficiency or
lack of legal basis of the declaration of default issued on January 31.
A null and void order can not be revived or ratified. Thirdly, the
proceeding on February 15, that is, the reception of plaintiffs’
evidence ex parte and the decision rendered thereon, having
been predicated on a void order of default, is by itself also a nullity
which is reviewable by certiorari (Luna vs. Abaya, etc., et al., supra.)

The records before us containing the pleadings of the parties
indicate that there are genuine issues raised by the
defendants-petitioners which would seem to entitle them to a due
hearing on the merits.

Wherefore, the writ of certiorari prayed for by petitioners is
granted, the order of January 31, 1961, as well as the decision
rendered on February 15, 1961, and the order of denial of the motion
for reconsideration issued on April 21, 1961, are set aside, and the
case ordered remanded to the court of origin for further proceedings,
upon the complaint and answer filed therein, without costs.

So ordered.

Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Paredes, Dizon, Regala and Makalintal, JJ., concur.