JAIME T. MALANYAON, PETITIONER, VS. HON. DELFIN VIR. SUÑGA, IN HIS CAPACITY AS PRESIDING JUDGE, BRANCH I, CFI OF CAMARINES SUR, GENEROSO BONA, VICENTE GARCHITORENA, RODOLFO ALFE…

This is a petition far certiorari and prohibition with
preliminary injunction to set aside the order of the respondent judge declaring
petitioner Jaime Malanyaon in default for the latter’s failure to appear on
October 9, 1978 before the trial court for the pre-trial and the contempt hearing in Civil Case No. 164 on the ground that
said judge had already excused petitioner’s absence from said hearing by
lifting the order of arrest against him in an order issued on November 23,
1978.

It appears from the records that on March 15, 1977, private
respondents, who are members of the Camarines Sur I Teachers Association
(CASTEA I) and Camarines Sur II Public
School Teachers Association (CASTEA II), filed a Petition for Annulment of Proceedings,
Injunction with Application for Preliminary Injunctions and Restraining Order
with the Court of First Instance of Camarines Sur, Branch I in Civil Case No. 164 against petitioner
Jaime Malanyaon and Emma Perfecto.^[1]

On that same afternoon or about 35 minutes after filing said petition, respondent judge issued a corresponding restraining order against petitioner which led
the latter to file on July 25,
1977, an urgent motion to disqualify respondent judge from further sitting in
judgment over Civil Case No. 164 alleging that there is a client-lawyer
relationship between said judge and private respondent’s counsel Atty. Vicente de Lima as shown by the latter’s appearances in Special
Proceedings No. 438 before the Court of
First Instance of Camarines Norte.^[2]

On September 20, 1977, respondent judge denied the motion to
disqualify for lack of merit.^[3]
Likewise, petitioner’s Motion for Reconsideration was denied on November 15, 1977.^[4]

On October 5, 1978, petitioner was personally served in his
office a notice of hearing on the pre-trial
and contempt proceedings set on October 9, 1978 at 8:30 A.M.

However, at around 8:10 A.M. of October 9, 1978, petitioner felt
chilly and went to see his doctor who ordered him to stay in bed for a couple of days as he had just been released
from Mother Seton Hospital where he was confined from September 30, 1978 to
October 3, 1978. Thereafter,
petitioner immediately sent a letter
to the respondent judge requesting for the deferment of his appearance on the
scheduled hearing^[5] but said letter was only filed at 10:05 A.M. of that same morning due to the stormy
weather.

Consequently, upon petitioner’s failure to appear at the hearing of October 9, 1978, he was declared in
default and ordered arrested.

In the afternoon of the
same day, petitioner’s counsel filed a motion to lift the Order of Arrest
against his client^[6]
which was denied in an order dated
October 19, 1978.^[7]

On October 18, 1978, petitioner was airlifted and confined at the
Veterans Memorial Medical Center at Quezon City where he was operated for a
gall bladder dysfunction on November 13, 1978.^[8]

On November 17, 1978, petitioner filed an Omnibus Motion to Lift
his Order of Arrest, to set aside the order of default and to reset the hearing
of November 27, 1978 and December 1, 1978 on account of his illness and
subsequent surgical operation.

Acting on the motion, respondent judge in an Order dated November
23, 1978 lifted the Order of Arrest of the petitioner but denied his motion to
set aside the order of default and the
resetting of the scheduled hearing.^[9]

On November 27, 1978, petitioner filed a motion for
reconsideration of said Order of November 23, 1978 but the same was denied on
December 1, 1978.^[10]

Hence, this petition alleging grave abuse of discretion on the
part of the respondent judge in denying his
motion to lift the order of default in spite of the fact that the latter
had already lifted the order of arrest against petitioner after finding petitioner’s absence in the October 9, 1978
hearing excusable due to the latter’s illness as supported by the affidavit of the petitioner’s physician stating the severity of petitioner’s
illness which caused the latter not to attend the scheduled hearing.

To begin with, the respondent court’s act of ordering
petitioner’s arrest is patently illegal. There is nothing in the Rules which authorizes the trial court to order
the arrest of the party in default. A
party declared in default merely loses the right to be notified of subsequent
proceedings and the right to take part in the trial,^[11]
until the order of default is lifted.

With regard to the lifting of the order of default, Section 3, Rule
18 of the Revised Rules of Court provides that:

“A party declared in default may at any time after discovery
thereof and before judgement filed a motion under oath to set aside the order
of default upon proper showing that his failure to answer was due to fraud,
accident, mistake or excusable neglect and that he has a meritorious
defense. In such case the order of
default may be set aside on such terms and conditions as the judge may impose
in the interest of justice.”

Where the failure to
appear at the pre-trial hearing was uncontrovertedly due to illness, the
default order may be set aside on the ground of accident over which petitioner
had no control as in the case at bar. Inasmuch as the respondent judge had already lifted the order of arrest
after finding petitioner’s absence excusable, it therefore follows that said
judge should have also set aside the order of default. Thus, the basis for lifting petitioner’s
order of arrest should also apply to the order of default since both orders
were issued on petitioner’s non-appearance on October 9, 1978.

On the matter of the petition for prohibition, the same is
dismissed in view of the separation of the respondent judge from the judiciary
as stated in the petitioner’s Manifestation dated October 3, 1988.^[12]

WHEREFORE, the petition for certiorari is hereby
GRANTED and the order of default dated October 9, 1978 is hereby annulled and
lifted. The respondent court is ordered
to set Civil Case No. 164 for pre-trial and trial with notice to petitioner. The petition for prohibition is DISMISSED
and the issuance of a preliminary injunction restraining respondent judge from
proceeding over Civil Case No. 164 is DENIED.

SO ORDERED.

Melencio-Herrera,
(Chairman), Paras, Padilla, and
Regalado, JJ., concur.

^[1]
Annex “A”; Petition, p. 9, Rollo.

^[2]
Annexes “C”, “D”, “E” and “F”, Rejoinder.

^[3]
p. 75, Rollo.

^[4]
p. 77, Id.

^[5]
p. 38, Id.

^[6]
p. 39, Rollo.

^[7]
p. 47, Rollo.

^[8]
p. 52, Id.

^[9]
p. 57, Id.

^[10]
p. 60, Id.

^[11]
Sec. 2, Rule 18, Rules of Court.

^[12]
Rollo, p. 110.