ANGELES CASON, SUBSTITUTED BY ANTONIO C. GARRETERO, PLAINTIFF AND APPELLEE, VS. VICENTE SAN PEDRO, AND CARMEN FAVILA, DEFENDANTS AND APPELLANTS.

“The defendants in this case
not satisfied with the order dated September 2, 1960, in which they were
declared in default for not answering a written interrogatory and the order
dated November 11, 1960 denying the motion for reconsideration and the decision
dated June 28, 1961, for being contrary to law, hereby serve notice that they
are appealing, as they hereby appeal said orders and said judgment by default
directly to the Hon. Supreme Court for the review of the question of law involved.”

On June 16, 1959, plaintiff filed
with the abovementioned court a complaint against defendants, seeking the
permanent closing of certain windows and balconies of the VICAR Building, Dagupan City, owned by defendants, as they offer direct and
oblique views upon plaintiff’s tenement; removal of the electrical, wirings
attached and installed on the southwestern wall of VICAR Building and VICAR
Building Annex; and payment to plaintiff attorney’s fees and expenses of
litigation in the sum of P2,000.00. The VICAR Building and VICAR Building X
Annex are owned by and constructed in the lot of defendants, located at the poblacion of Dagupan City, on Tprres Bugallon Avenue, which lot
adjoins the plaintiff’’s.

To this complaint, defendants filed
an answer with counterclaim (on July 1, 1959) specifically denying the
allegations thereof and alleging as specific defenses that the construction of
VICAR Building and VICAR Building Annex were made in accordance with plans and
specifications designed by duly licensed engineers and architects It and duly
approved by the City Engineer of Dagupan City who
issued the necessary building permits for the construction of said buildings;
that during the construction of t said buildings which lasted for almost three
years, plaintiff did not interpose any objection and acquiesced to the same;
that what plaintiff considered as windows, apertures, and balconies are not
those openings prohibited by law; that plaintiff’s building which is only two
stories adjoins VICAR Building and the VICAR, Building Annex does not extend to
the rear of plaintiff’s lot, so that by the side of the Annex, there is an open
space in which no privacy of dwelling could be violated; and that under the
circumstances of the case, plaintiff is guilty of laches.
As counterclaim, defendants alleged that there is no damage suffered by
plaintiff and her complaint is motivated solely by ulterior motives rather than
an actual violation of a legal right; plaintiff’s complaint is intended to
harass and besmirch defendants’ reputation in the community and in their
business and, by reason thereof, they suffered moral “damages in the sum
of P10,000.00 and attorney’s fees in the sum of
P5,000.00.

On October 19, 1959 and March 17,
1960, plaintiff served written interrogatories to defendants, which the latter
received on March 19. Defendants failed to answer said written interrogatories.

On May 11, I960, therefore,
plaintiff filed a motion to declare defendants in default, for their failure to
answer the written interrogatories within the reglementary
period of 15 days from receipt thereof, which motion reads thus:

“MOTION FOR JUDGMENT BY
DEFAULT”

“Comes Now
the plaintiff, thru counsel, unto this Honorable Court and respectfully states:

1.      That on July 6, 1959,
plaintiff received the answer dated June 29, 1959 filed by the defendants, thru
their counsel.

2.      That on October 19,
1959, plaintiff, thru counsel, served upon the defendants Vicente San Pedro and
Carmen Favila, written interrogatories to be answered
separately by each of them in accordance with Rule 20.

3.      That the said
defendants failed to serve their answers to the said interrogatories within the
reglementary period of 15 days from and after their
receipt thereof.

4.      That when plaintiff-movant was about to file the corresponding motion for
judgment by default on account of their failure to serve their answers thereto,
it was noted that defendant’s counsel could not be served with notice at their
address of record, in consequence of which, this representation filed the motion
of February 16, 1960 seeking an order of this Honorable Court to require the
defendants’ counsel to make more specific their office address or to authorize
plaintiff to serve notice directly to defendants.

5.      That in compliance
with the order of the Court dated March 7, 1960, the
defendants’ counsel furnished the Court and the plaintiff with their new office
address.

6.      That on March 17,
1960, in order to avoid any possible technical objections, plaintiff thru
counsel again served written interrogatories upon the defendants to be answered
by them separately, and also furnished copies thereof defendants’ counsel and
to this Honorable Court.

7.      That
defendants
Vicente San Pedro and Carmen Favila received the said
written interrogatories on March 19, 1960 as evidenced by the registry return
cards.

8.      That
defendants
again failed to serve their answers to the said written interrogatories in
spite of the lapse of more than 40 days from and after the date of service upon
them thereof.

“Wherefore, it is respectfully
prayed that an order issue (1) declaring the defendants to have wilfully failed to answer written interrogatories; (2)
striking out all the answer of said defendants; and (3) entering a judgment by
default against the said defendants in accordance with Section 5, Rule 24 of
the Rules of Court.”

On July 29, 1960, defendants filed
an opposition to the motion (or judgment by default, on the ground that they
did not receive the interrogatories “due to the fact that they were abroad
for business purposes and they only arrived on June 27, 1960. Defendants
claimed also that the granting of the motion will transfer the burden or onus probandi from plaintiff to defendants, which is contrary to
the Rules of Evidence; that said interrogatories contain immaterial, irrelevant
and improper questions; that plaintiff could establish the facts intended to
secure from defendants’ answer by his own evidence; that the interrogatory puts
defendants in a very disadvantageous position of proving plaintiff’s case by
their testimony, when it should be plaintiff who should prove his own case; and
that it is discretionary on the. court to determine whether plaintiff is
entitled to have his interrogatory answered and to receive evidence about the wilfulness of denying or refusing to answer, before a
judgment by default is entered and there is no showing that there was wilfull failure or refusal by them to answer such
interrogatories.

On August 12, 1960, plaintiff filed
a reply to defendants’ opposition, alleging that plaintiff’s motion is governed
by Section 5, Rule 24, Rules of Court, which authorizes entering of a default
judgment against a party who fails to answer written interrogatories submitted
under Rule 20; that due to defendants’ default, they have lost their standing
in court and their opposition is too late, having been filed more than two
months after the motion for default was submitted for resolution; that
defendants’ claim that the granting, of the motion for default will transfer
the onus probandi, to defendants is without merit as
plaintiff is still obliged to present evidence in support of the complaint;
that defendants’ objections that the interrogatories contain immaterial,
irrelevant, and improper questions may not he entertained by the court because
defendants’ invariable answer to the allegations of the complaint is “lack
of knowledge or information”, despite the fact that VICAR Building and the
Annex are in existence, thus affording them opportunity to perceive if the
allegations of the complaint are true or not; that defendants’ objection that
the facts intended to be elicited from their answer to the interrogatories may
be established by proof, does not constitute valid objection because one of the
principal purposes of interrogatories is to obviate necessity of proof of
matters certain.

On September 3, 1960, defendants
filed a rejoinder alleging that Rule 20 does not establish any sanction or
specify the effect of failure or refusal to answer a written interrogatory.

On September 2, 1960, the court
issued an order (of default) of this tenor:

“ORDER

“Acting upon the Motion for
Judgment by Default filed by the plaintiff, thru counsel, dated May 5, 1960, to
which a written opposition, dated July 29, 1960, was filed by the defendants
and then counsel were duly served with plaintiff’s written interrogatories, but
that they have failed to submit to this Court their written answers thereto
“within the period fixed in Section 2 of Rule 20 of the Rules of Court,
and finding plaintiff’s motion for judgment by default, as well as his reply to
the opposition of the defendants to be well taken, as prayed for.

“The Court, under the
authority of Section 5 of Rule 24 of the Rules of Court, grants the said
motion.

“Let this case be set for
September 20, 1960, at 8:30 A.M. for the reception of plaintiff”s
evidence.

“SO ORDERED.”

On September 8, 1960, defendants
filed a motion for reconsideration of said order of default and prayed that
they be permitted to present evidence surrounding the reception of the written
interrogatories and the non-answer thereof, on the ground that the court has
discretionary power to require further evidence before judgment by default
could be entered.

On September 14, 1960, defendants
(in retaliation) also filed a motion to declare plaintiff in default for
failure to answer their counterclaim (embodied in their answer of July 1,
1959).

On November 11, 1960, the court
issued an order denying defendants’ aforementioned motion for reconsideration
dated September 8, 1960; motion of September 14, 1960 and memorandum of October
12, 1960, for lack of merit.

From this order, which is
equivalent to a denial of relief from an order of default under Rule 38, no
appeal has been taken.
More than seven months later, and after the reception of plaintiff’’s
evidence ex parte, the court, on June
28, 1961,
rendered the decision above adverted to.

From this decision, defendants
appealed directly to us, with the following assignment of errors:

1.      The lower court erred
in declaring that the defendants-appellants were in default when there was no
valid service of the written interrogatories served to them.

2.      The lower court erred
in holding that it is an abuse of discretion not to grant the motion for
judgment by default filed by plaintiff.

3.      The lower court erred
in denying defendants-appellants a day in court and, therefore, the decision
rendered by said court is null and void.

4.      The lower court erred
in not resolving defendants-appellants’ motion to declare plaintiff-appellee in default and not giving appellants an equal
opportunity to prove their counterclaim.

In support of their first
assignment of error, defendants-appellants claim that there was no valid
service of the written interrogatories, because they were served on appellants
personally and not on their counsel. The claim is devoid of merit. The truth of the matter is
that appellants and their counsel were each duly served with the written
interrogatories and a copy thereof was even filed with the trial court. Note
that in the order of September 2, 1960, the trial court categorically found
“that the defendants (appellants) and their counsel were duly served with
the plaintiff’’s (appellee’s)
written interrogatories” (Paragraph 1, Order of September 2, 1960, pp.
40-41, Record on Appeal). In view of this factual finding1 of the trial court,
and having chosen to raise this appeal to this Court for the express purpose of
“reviewing the question of law involved” (Notice of Appeal, supra),
appellants have thereby accepted without reservation the findings of fact of
the trial court; and they cannot raise said issue for the first time on appeal.

As to the second and third
assignments of error, we also find the same untenable. Section 5 Rule 24, of
the Rules of Court, expressly authorizes the court to render a default judgment
against a party who “fails to serve answers to written interrogatories
submitted under Rule 20 after proper service of such interrogatories”,
upon motion of the serving party. In this, respect, we fully agree with the
following observations of the trial court, in justifying its order of default against
appellants;

“The Court sees no cogent
reasons to disturb its aforesaid order of September 2, 1960. Said order was
issued pursuant to Section 5 of Rule 24 of .the Rules of Court, which
authorizes the Court to enter a judgment by default against a party who fails
to serve answers to interrogatories submitted under Rule 20, after the
requisites therein mentioned have been complied with, which the plaintiff did.
In this connection, it is well to quote American authorities on this point,
thus:

“The proper remedy for failure
to answer interrogatories is a motion for judgment by default, and not a motion
to require answers to the interrogatories.’ (United.
States vs. W. E. O’Neil Construction Co., 4 Fed. Rules Service, p. 527; U.S.
Dist. Ct. D, Mass, Jan. 6, 1941).

‘Under some statutes a party may
take a judgment by default on the opposing party’s failure to answer
interrogatories.’ (34 C.J. 161, citing several American
cases).

While there is authority to the
effect that:

‘After an answer to the merits, plaintiff
cannot take judgment by default because defendant neglects to answer
interrogatories which are taken for confessed, but can avail himself only of
the confession as proved on the trial’ (Behan vs.
Hite, 14 la. 67), however this Court cannot properly apply the ruling laid down
in said case, in the face of an express provision in our procedural law which
authorizes the taking of judgment by default against the party failing to
answer, within the prescribed period written interrogatories served on him. To
do so, will do violence to this specific provision of law and render it dead
and meaningless.

“The defendants also invoke
the exercise by this Court of its sound discretion by giving them further
opportunity to answer the written interrogatories served on them, as held in
the case of Dann vs. Campagnie
General Trang-Atalantique Ltd., 2 Fed. Rules Service
399, Rule 37d, 33 Case No. 1. This Court cannot see its way clear to exercising
this sound discretion in favor of the herein defendants. On the contrary, it
will be abusing its discretion, if the defendants are given further opportunity
to answer the written interrogatories, on the ground that the situation
obtaining in this case does not justify the granting of the relief prayed for
by said defendants. Note that the defendants have negligently failed to give
their answer to the interrogatories duly served on them despite the lapse of
more than sufficient time for them to do so. If they want to invoke the
exercise by this Court of its sound discretion in their favor, why did they not
even bother to file their written answers to the interrogatories soon after
they were served with plaintiff’s motion for judgment by default dated May 6,
1960? The Court could probably have given them the opportunity they now seek.
Neither had the defendants cared to ask for extension of time within which to
answer the said interrogatories under Section 2, Rule 20, of the Rules of
Court. Nor had they filed any objection to said interrogatories, on the ground
that they violate their privilege against self-incrimination. The Court
believes that the answers to the interrogatories will not place the defendants
in estoppel to claim such privilege. Stated
otherwise, the defendants have remained in long hibernation, and awoke only at
this late hour when compelled to do so, because they now see that their rights
are being injured or prejudiced. The Court cannot countenance this situation.
The law protects the vigilant and not those who sleep on their rights.

“The fact that the issues in this
case have already been joined is no reason for the non-application of Section
5, Rule .24, of “the Rules of Court, for the reason that the rule on
written. interrogatories, as on deposition, inspection of documents, things,
lands, or of any property, physical and mental examination of persons, and
admission by an adverse party, may be availed of by any, party even after the
issues are joined, because the purpose of these modes of discovery is, as
stated by Moran, ‘to provide both parties with complete variety of means by
which they may compel each other to lay all their cards on the table without
concealing any relevant fact prior to the trial.’

“Further, the rules on
interrogatories are intended to expedite trial, and to relieve parties of the
cost of proving facts which will not be disputed and the truth of which can be
ascertained with reasonable certainty (Federal Rules, Civil Procedure, Rule 33,
28 USCA, Jackson vs. Dotsebue Oil Sales, 17
FRD 204). This is the underlying spirit that prompted the Supreme Court in
promulgating the rules on interrogatories. The defendants have disregarded this
spirit behind the promulgation of said rules by their long, continued failure,
or refusal to answer the interrogatories served on them. It is, therefore, a
manifest intent to delay the; early termination of the case.

“This failure or refusal of
the defendants to give their answers to the interrogatories could also be taken
to mean that they do not dispute the facts alleged in paragraphs VII to XII of
plaintiff’s’ complaint, or that said facts could be determined with reasonable
certainty. This conclusion finds support in defendants’ invariable answers to
the allegations to said paragraphs VII and XII of the complaint which bear the
uniform pattern of have not knowledge or information sufficient to form a
belief as to the truth of x x x.”

Lastly, appellants’ last assignment
of error cannot be sustained. Note that at the time appellants filed their
motion to declare appellee in default (on September
14, 1960), they were already declared in default by
the trial court’s order dated September 2, 1960. Having been declared in
default, they have lost their standing in court (Lim Toco
vs. Go Fay, 45 O.G. 3350) and the trial court was justified in refusing
or failing to act on their aforementioned motion to declare appellee
in default.

Wherefore, finding that the trial court committed no error in
rendering the judgment appealed for, based on facts found
by the trial court, which factual findings are not in issue here, the
same is hereby affirmed, with costs against the defendants-appellants.
It is so ordered.

Bengzon, C. J., Padilla, Concepcion, Paredes, Dizon, Regala and Makalintal, JJ., concur.