PHILIPPINE NATIONAL BANK, IN ITS CAPACITY AS JUDICIAL ADMINISTRATOR OF THE IN­TESTATE ESTATE OF THE LATE MACAUYAG (MORO), PLAINTIFF-APPELLEE, VS. SEGUNDO FERNANDEZ, DEFENDANT-AP…

The Court of First Instance of Manila denied defendant’s petition
for relief from judgment in Civil Case No. 37757.  The matter is before Us
on appeal from the order of denial.

The proceedings which took place below are as follows:

September 13, 1958
– Plaintiff filed a complaint for recovery of P10,000.00
from defendant, plus interest, on the strength of a promissory note signed by
the latter and dated February 16, 1948.

October 1, 1958
– Defendant moved to dismiss on the ground that the action had prescribed. 
Plaintiff opposed, and the Court
denied the motion by order dated October 14, 1958.

October 22, 1958
– Plaintiff moved to have defendant declared in default and to set the case for
reception of plaintiff’s
evidence.

November 7, 1958
– Defendant moved ex-parte for extension of time
within which to file his answer to the complaint.

November 8, 1958
– The Court issued an order denying plaintiff’s motion for default, “there
being no showing that defendant has received a copy of the order of this Court
denying the motion to dismiss.”

November 12, 1958
– Defendant filed an answer.

November 17, 1958
– Plaintiff filed an ex-parte motion for reconsideration praying that
the order of November 8 be set aside and another one be issued declaring
defendant in default.

November 19, 1958
– The Court issued the following order:

“Finding the reasons adduced by Attorney Ramon de los Reyes to be well-taken, the Order of this Court of Novemer 8, 1958 is hereby reconsidered and set aside.

The defendant Segundo Fernandez is declared in default, it
appearing that he had filed an extension of time to file his answer on November 7, 1958 which is 5 days after
the expiration of the reglementary period required by
law and his answer filed on November
12, 1958.”

January 22, 1959
– The court beard the case for plaintiff ex-parte and on the same date decided it, as fol­lows:

“IN VIEW OF THE FOREGOING, this Court hereby renders judgment
condemning the herein defendant to pay the sum of P10,000.00, value of the pro­missory
note, plus interest at 6% per annum from the filing of this com­plaint and 10%
of the total amount due as attorney’s fees and to pay the costs.”

April 7, 1959
– Defendant filed with the trial court a verified petition for relief from
judgment, which plain­tiff opposed.  The
petition was denied on April 11, 1959.

Defendant seasonably appealed to the Court of Appeals, which
certified the case to Us on the ground that the issues
involved are purely legal.

Appellant’s main point is that when appellee
filed its motion for reconsideration ex-parte
on November 17, 1958,
appellant was not in default and hence was entitled to notice of said motion so
as to be able to oppose it and be heard on his opposition.  Rule 26, Section 6 (of the old Rules)
provided that “no motion shall be acted upon by the Court, without proof
of service of the notice thereof.”

Appellee answers this argument by
emphasizing the fact that appellant was actually in default by reason of his
failure to file his answer within the reglementary
period.  The following circumstances are
cited:  Summons was served on appellant
on September 20, 1958.  He filed his motion to dismiss eleven (11)
days later, or on October 1, 1958.  Only four (4) days then remained of the
15-day period within which to answer. 
The four days started to run again on October 29, 1958, when appellant received copy of the
order denying his motion to dismiss, and expired on November 2, 1958. 
Therefore, appellee submits, appellant was
already in de­fault by five (5) days when he filed, on November 7, 1958, a
motion for extension of time within which to answer and when he did file his
answer on November 12.  Such being the
case, appellee continues, appellant was not entitled
to notice of the motion for reconsideration, for under Rule 27, Section 9 (old
Rules of Court) “no service of papers shall be necessary on a party in
default except when he files a motion to set aside the order of default, in
which event he is entitled to notice of all further proceedings.”

Technically appellant’s position appears well-founded.  As of
November 12, 1958 when he
filed his answer, or even as of November
17, 1958, when appellee filed its motion
for reconsideration, the effective order which defined the standing of
appellant was that of November 8 denying appellee’s
motion to declare appellant in default. 
In other words, by express court order appellant was not in default when
he filed his answer to the complaint on November 12, 1958. 
As a matter of fact,
however, the ground on which that order was based was erroneous, and it was to show such
error that appellee filed his motion for
reconsideration on November 17, 1958.  To be sure, appel­lant had a right to
be heard on the matter, but such hear­ing would not alter the fact, which
appellant does not now dispute, that his answer was really filed late.

In any event, this being an appeal from an order denying relief
from judgment, it is pertinent to inquire whether or not appellant has a
meritorious defense.  This is the
reason why the Rules require that a petition for such relief be accompanied by
an affidavit of merits.  We have examined
appellant’s answer to the complaint and found that the only defense alleged
therein which has any relevance is that of prescription; but then the answer
itself shows that the defense is untenable, for it admits that appellant
received from appellee written demands for payment
before the prescriptive period of ten years expired, and according to Article
1155 of the Civil Code prescription of actions is interrupted when there is a
written extra­judicial demand by the creditor. 
We therefore see no point in granting the reliefs
sought by appellant.

WHEREFORE, the order appealed from is affirmed, with
costs.

Reyes, Bengzon, JP, Zaldivar, Sanchez, Ruiz Castro, Angeles and Fernando, JJ., concur.

Concepcion, C.J., and Dizon, JJ., did not take part.