FRANCISCO A. FUENTES, JOHHNY DAYANG AND SILVERIO DELA TORRE, PETITIONERS, VS. JUDGE OSCAR LEVISTE, AS JUDGE OF THE COURT OF FIRST INSTANCE OF CAPIZ, BRANCH II, AND CIRILO BACANT…

This is a petition for review by certiorari of an order of
the respondent Judge of the Court of First Instance of Capiz, Branch II, Roxas
City, dismissing Special Civil
Action No. V-3909 for contempt of court.

In a judgment rendered on August
26, 1959 by the municipal court of Pilar, Capiz for unlawful
detainer, where petitioner Fuentes was the plaintiff and Emilio Bacanto the
defendant, the latter was ordered to pay the former a sum of money.  Emilio Bacanto failed to appeal.  After the judgment became final, the
municipal court issued a writ of execution on September 30, 1959. 
On December 23, 1959, the Provincial Sheriff of Capiz levied on all rights and titles of defendant
Emilio Bacanto over five parcels of land, known as Lots 1619, 1652, 1653, 1655
and 1657 situated in Pilar, Capiz.  After
due proceedings, the lots were sold by the Sheriff to petitioner Fuentes as
highest bidder, and the corresponding certificate of sale was issued.  When the one year period for redemption
expired without any redemption, the Sheriff executed a final deed of sale to
Fuentes on February 18, 1975, which deed was registered in the Office of
the Register of Deeds of Capiz on February 20, 1975.

On February
25, 1975, pursuant
to Section 35 of Rule 39 of the Rules of Court and after notice to the
defendant, the Deputy Provincial Sheriff went to the disputed parcels of land
to deliver the physical pos­session to Fuentes through his
representatives.  The petitioner contends
that Emilio Bacanto and his brother-in-law, Antonio
Edaño, as well as his children Salvador, Herminio and Cirilo Bacanto, refused to
vacate or remove their houses from the premises.  One Arnaldo Vasquez who claimed to be a
lessee on four of the lots also refused to vacate the area occupied by him.

On February
25, 1976, Mr.
Fuentes and his overseers, Johnny Dayang and Silverio dela Torre, filed
“Special Civil Action No. V-3909 (For Contempt of Court)” before the
respondent court against Emilio Bacanto, Salvador Bacanto, Herminio Bacanto,
Cirilo Bacanto, Antonio Edaño and Arnaldo Vasquez, alleging among others, that
the acts of the defendants consti­tute:

“’a. A blatant and open defiance of and unlawful interference with
the writ of execution duly issued by the Municipal Court of Pilar and of the
legal processes duly issued by the Provincial Sheriff of Capiz in the
above-entitled Civil Case No. 72 of the said Court;

“’b. Disturb the peaceful and lawful possession and enjoyment of
plaintiff Francisco A. Fuentes, as owner thereof, and his agents and re­presentatives
over the five parcels of land named-above, to his damage and prejudice; and

“’c. Directly impede, obstruct and degrade the administration of
justice, which acts constitute a clear case of criminal contempt, as defined by
and clearly punishable under Rule 71, Sections 3 and 6 of the New Rules of
Court, which acts of defendants, if not forthwith stopped and punished, will
expose our Courts of justice to open ridicule and disrespect;'”

The petitioners prayed
for the issuance of an order:

“’1. Declaring each of the above-named defendants guilty of
indirect contempt of court and imposing upon each the penalty established in
Rule 71, Sections 6 and 7 of the New Rules of Court;

“’2. Ordering the said defendants and their agents or privies to
remove their respective houses or structure of any kind from the five parcels
of land described above;

“’3. Ordering and restraining the said defendants and their agents
or privies from gathering any fruits from any of the coconut trees, cutting and
gathering any bamboos, and/or disfoiling (sic), cutting or taking away any
plant or tree of economic value from the five lots mentioned above;

“’4. Ordering defendant Arnaldo Vasquez to pay plaintiff Francisco
A. Fuentes, by way of rentals, a
rental of P500.00 per hectare for the 10 hectares at present planted by him to
sugarcanes on Lots Nos. 1652, 1653, 1655 and 1657 for the agricultural years
1975 and 1976, and after harvesting the present standing sugar crop, to desist
and refrain from continuing with or making any further plantations, without the
written consent of plaintiff Francisco A. Fuentes;

“5. Ordering each of the above-named defendants from doing or
committing any such acts as will disturb the plaintiffs or their authorized
representatives in the peaceful
possession and enjoyment of the above-parcels of land mentioned above;

“’6. Ordering the above-named defendants jointly and severally to
pay plaintiff Francisco A. Fuentes the sum of Two Thousand Pesos (P2,000.00) by way of attorneys fees and
liquidated damages in this instance, the cost of this suit, and granting to
plaintiffs such other relief and remedy as may be warranted in the
premises.'”

Respondent Cirilo Bacanto received summons on March 23, 1976.  On April
6, 1976, all defendants through counsel moved for an extension of
time to file an answer.  The motion was
granted by the court.  On May 8, 1976, defendant Antonio Edaño
filed his answer.  Not one of the Bacanto
clan filed any answer.

On August 25, 1976,
the pre-trial hearing was set for September
16, 1976.  Pre-trial was
later reset to September 17, 1976.  On that date scheduled for pre-trial, all the
defendants and their counsel failed to appear. 
Upon motion of plaintiff Francisco A.
Fuentes, all the defendants were declared in default.  The plaintiff was directed to present his
evidence before a commissioner.

On December 2, 1976,
upon motion of Arnaldo Vasquez, the court lifted the declaration of default
insofar as he was concerned.

On June 3, 1977, respondent Cirilo Bacanto filed a motion to
quash/dismiss the complaint alleging as grounds therein that – (a) the facts
charged do not constitute an offense and/or the complaint states no cause of
action and (b) the cause of action is barred by statute of limitations and/or that
the criminal action or liability has been extinguished.

After conducting hearings
on said motion, the respondent Judge issued the questioned order of July 27,
1977, dismissing the
complaint for contempt as to respondent Cirilo Bacanto.

The court stated:

“The Court finds that the
Complaint does not state that after the lands in question have been delivered
to the plaintiffs, that actual ejectment of the defendants was effected by the
proper authorities.  In fact it is
admitted in the Complaint that said defendants refused to remove their houses
and vacate the premises.  Is it disobedience
for Cirilo Bacanto to re­fuse to vacate the premises even if he is not a party
to the original action, Civil Case No. 72 for Unlawful Detainer?  The Court says no, because the Court has not
acquired jurisdiction on his person.

“The Court finds that defendant is not charged with conspiracy
to interfere or impede the enjoyment of the properties in question by
plaintiffs after the said properties were ‘delivered’ and that defendant has
not been actually ejected from the property in question.”

A motion for
reconsideration was denied prompting the petitioners to file the instant
petition.  The main issue raised by the
petitioners is –

May a party after being duly summoned, and after nine months is
duly declared in default move to dismiss the complaint against him on the
ground that it does not state a cause of action without first moving for and
obtaining an order lifting the order of default?

It is argued by
petitioners that when a defendant is declared in default, he loses his standing
or is considered out of court, and consequently cannot appear in court, adduce
evidence and be heard, and he is not entitled to notice of the proceedings
until the final termination of the same.

To refute the respondent
Judge’s finding that the complaint states no cause of action, the petitioners
argued further that there were sufficient allegations in the complaint stating
valid cause for injunction and damages, particularly the gathering of the
fruits of the coconut trees and bamboos standing on the parcels of land in
question by the defendants and their refusal to vacate the premises.

On the other hand, the
private respondent claims that since he was not a party in Civil Case No. 72
for unlawful detainer in the municipal court of Pilar, Capiz, the
failure to allege that he conspired with his co-defendants in the complaint for
contempt filed before the respondent court is tantamount to failure to state a
cause of action against him.

Parenthetically, Francisco A. Fuentes was sole plaintiff and
Emilio Bacanto, sole defendant in Civil Case No. 72 for unlawful detainer.  Respondent Cirilo Bacanto was not a party in
Civil Case No. 72 but was included as a party with various other defendants in
the contempt of court charges arising from the detainer case.  This was the basis of Cirilo Bacanto’s
invocation of lack of cause of action in his motion to quash or dismiss the complaint
and of the respondent court’s finding of lack of jurisdiction over his person.

Under the rules of civil procedure in ordinary civil actions, the
private respondent could no longer file a motion to dismiss after he had been
declared in default and had done nothing to lift or set aside the said default
declaration.  A defendant declared in default is not entitled to notice of
subsequent proceedings nor to take part in the trial (Sec. 2, Rule 18, Rules of Court). 
While it is true that a defaulting defendant does not completely lose
his standing under the revised Rules such as the right to appeal from the
judgment without having to file a petition to set aside the order of default,
the right to file a motion to dismiss is not among those granted to him (Cf.
Sec. 4, Rule 13; Sec. 2, Rule 41).  It is
not clear, therefore, why the respondent court acted favorably on the
defendant’s motion to dismiss more than eight months after having declared him
in default.

But more important, the
respondent court overlooked the fact that the case before it was a contempt
case and not the ejectment case.  The
trial court erred in assuming that a contempt proceeding is governed by the
rules of ordinary civil actions. 
A contempt case is a special civil action governed by Rule 71 of the
Rules of Court, and by the rules on ordinary civil
actions only insofar as they are not inconsistent with the rules of the special
civil action.  (Sec. 1, Rule 62).  A contempt
charge partakes of the nature of a criminal prosecution and should follow
procedure similar to criminal prose­cutions (Flores vs. Ruiz, 90 SCRA 428; Lee Yick Hon. vs. Collector of Customs,
41 Phil. 548, 552).

Under Rule 71, a respondent in a contempt charge is not required
to file a formal answer similar to that in ordinary civil actions.  Instead, the court must set the contempt
charge for hearing on a fixed date, on which date the respondent must make his
“appearance to answer the charge” (Sec. 5).  If he shall fail to appear on the date fixed
for the hearing (and thus fail to answer or offer his testimony), the court may
order his arrest (Sec. 8).  The court
does not declare him in default.  This
procedure is analogous to what follows the non-appearance of an accused in a
criminal case during arraignment to enter his plea.

The finding of the
respondent court that it had not acquired jurisdiction over the person
of the private respondent in the contempt case because he was not a party to
the original action, Civil Case No. 72 for Unlawful Detainer, cannot be
sustained.  Private respondent was not
asking for the dismissal of the ejectment case, but of the contempt proceeding
filed against him where he was duly summoned and, thru counsel, filed a motion
for extension of time to file an answer. 
He had therefore been placed under the jurisdiction of the court insofar
as the contempt case was concerned.

The mishandling of this case by the respondent judge
notwithstanding, we have to sustain his order dismissing the complaint against
Cirilo Bacanto to avoid a remand that will result in unnecessary court
proceedings.  It was error for the
petitioners to file a petition for contempt of court as a mode of relief from
the refusal of the Bacanto clan to vacate the premises.  A refusal to obey the implementation of a
writ of execution in an ejectment case is not contempt of court.

The petitioners should have filed a petition for the issuance of
a special order to destroy, demolish or remove the improvements on the property
subject of execution.  This special order
may only issue upon the plaintiff’s petition after due hearing and upon the
defendant’s failure to remove the improvements within a reasonable time to be
fixed by the court.  (Sec. 14, Rule 39,
Rules of Court).

Under Sec. 13, Rule 39 of the Rules of Court, it is not enough
for the sheriff, in the enforcement of a judgment for delivery or restitution
of property, to merely direct the defeated party to effect
such delivery or restitution.  The
refusal of the defeated party to surrender the property to the winning party
upon the order of the sheriff does not constitute contempt.  The sheriff himself must oust the defeated
party from the property and effect the delivery or
restitution by placing the winning party in possession of the property (U.S.
v. Ramayat, 22 Phil. 183).  However, if
to place the winning party in possession, the sheriff has to remove an
improvement made by the defeated party, he cannot do so, unless upon special
order of the court issuing the execution. 
And this order may be granted only upon motion of the plaintiff with
notice and after hearing, and upon the defeated party’s failure to remove the
improvement within the reasonable time given him by the court (Guevara v.
Laico, 64 Phil. 144).  This is in
accordance with Sec. 14, Rule 39 of the Rules of Court.

The proper recourse of the petitioners, therefore, was to apply
for a special order of the court for demolition and removal of the judgment
debtor’s hose, with due notice to the judgment debtor, and not the institution
of the contempt charge against the judg­ment debtor.  (Rom v. Cobadora, 28 SCRA 758, 763).

WHEREFORE, the petition is hereby dismissed.

SO ORDERED.

Melencio-Herrera, (Acting Chairman), Plana, Vasquez, and Relova, JJ., concur.

Teehankee, J., (Chairman), on
official leave.