G.R. No. L-45270. February 28, 1979
LUIS T. PEGGY, RESTITUTA TUDTUD, AND LUZVIMINDA T. PEGGY, PETITIONERS, VS. HON. LAURO L. TAPUCAR, AS THE PRESIDING JUDGE OF THE COURT OF FIRST INSTANCE OF AGUSAN DEL NORTE AND B…
CONCEPCION JR., J.:
Petition for certiorari to annul and set aside the order of the
respondent judge declaring the petitioners in default in Civil Case No. 1712 of
the Court of First Instance of Agusan del Norte, as
well as all the proceedings made subsequent thereto, with a prayer for the
issuance of a writ of preliminary injunction to restrain the respondents from
enforcing the writ of execution issued therein.
The petitioners are the defendants in said Civil Case No. 1712,
an action for separation of property, dissolution of conjugal partnership, reconveyance of properties, etc., initiated by the private
respondent Purita Peggy, the estranged spouse of the
petitioner Luis T. Peggy, on December 9, 1974.[1]
Instead of filing a responsive pleading, the defendants filed a
motion to dismiss the complaint on January 16, 1975 upon the grounds that: (1) the venue is improperly laid; (2) the
action is barred by prior judgment or that the same has prescribed; (3) the
plaintiff is estopped from prosecuting the case; (4)
the claims or demands set forth in the complaint have already been waived,
abandoned or otherwise extinguished; and (5) no earnest efforts towards a
compromise or amicable settlement had been made prior to the filing of the
complaint.[2]
On January 31, 1975,
the plaintiff, Purita T. Peggy, filed an amended
complaint[3]
and her opposition to the motion to dismiss the complaint.[4]
The respondent court denied the motion to dismiss on July 7, 1975 and set the pre-trial
conference on August 8, 1975.[5]
Pursuant thereto, a notice of pre-trial conference was sent to the parties and
their respective attorneys on July 8,
1975.[6]
On August 8, 1975,
the respondent court issued an order which reads, as follows:
“ORDER
“APPEARANCES: plaintiff
Purita Torralba Peggy and
her counsel, Atty. Romeo Gonzaga; defendant Luis T.
Peggy thru a special power of attorney in favor of Atty. George P. Bragat, who also appeared as counsel; defendants Restituta Tudtud and Luzviminda T. Peggy with special powers of attorney in
favor of Atty. Fil C. Veloso
who also appeared as their counsel.
“The defendants thru counsel manifested that at their
initiative they caused xerox copies to be made of
plaintiff’s amended complaint and that it was not necessary for the plaintiff
to furnish them a copy thereof. The
defendants asked that they be given fifteen days to file their amended answers.
“The plaintiff thru counsel manifested that she had six
witnesses, some of whom are residing in Cebu City.
“WHEREFORE, it is hereby ordered:
“1. That the
pretrial conference is reset on 15 October 1975 at 4 p.m. and the trial shall
proceed on 16 and 17 October 1975 at 9 a.m. to 12 noon and 3 to 5 p.m., it
being understood that NO POSTPONEMENT WILL BE GRANTED;
“2. That the parties and counsels comply with
paragraph 4 of the notice of pretrial conference, copy of which were furnished
the respective counsel and
“3. That within fifteen days from today the
defendants file their amended answers furnishing the plaintiff a copy thereof.
“Let the
special powers of attorney be attached to the record.”[7]
In due time the defendants filed their respective answers to the
amended complaint.[8]
The plaintiff likewise filed her answer to the counterclaim interposed by Luis
T. Peggy.[9]
On October 13, 1975, counsel for the defendant Luis T. Peggy
filed an urgent ex–parte motion for the
postponement of the pre-trial set for October 15, 1975 upon the ground that he
was taken ill and could not be present on said date.[10]
So, the respondent court re-set the pre-trial conference to December 17, 1975, and trial of the
case on December 18 and 19, 1975. The
court decreed that the counsels should serve notice of the pre-trial conference
upon the parties represented by them in accordance with the case of Lim,
et al. vs. Animas, et al., 63 SCRA 408.[11]
On November 19 and 20, 1975, counsels for the defendants
received telegrams from the clerk of the respondent court advising them that all
hearings scheduled for the months of November and December, 1975 were cancelled
for the reason the presiding judge, Hon. Vicente B. Echaves,
Jr., has been transferred to another judicial district.[12]
Then, on March 1, 1976, the
court, now presided by the respondent Judge Lauro L. Tapucar caused a notice to be sent that the pre-trial
conference on the case has been set for March
29, 1976. Only the attorneys
for the parties however were notified thereof.[13]
On March 22, 1976, counsel for the plaintiff, Purita
T. Peggy, filed a motion for the postponement of the pretrial set for March
29, 1976 upon the ground that he had previous commitments on that day which
cannot be deferred.[14]
Accordingly, the pre-trial conference was re-set to May 10, 1976, with a warning that no postponement
will be granted.[15]
But, on May 9, 1976, the
plaintiff Purita T. Peggy sent a telegram to the
respondent court that her counsel was bedridden and physically incapable of
attending the pre-trial conference set for May 10, 1976.[16]
The postponement of the pre-trial conference was similarly prayed for by the
defendants in their motion dated May 6,
1976.[17]
As a result, the pre-trial conference was re-set for July 12, 1976.[18]
On July 6, 1976, counsel for the defendants Restituta
Tudtud and Luzviminda T.
Peggy sent a telegram to the clerk of court inquiring whether or not their case
will be heard on July 12, 1976, as scheduled, since he had been reliably
informed that the presiding judge of the court was in Tagaytay
City attending the DAP conference for CFI judges.[19]
The clerk of court replied that there is no advice when the judge will be back.[20]
On July 9, 1976, counsel for
the defendant Luis T. Peggy filed an urgent motion for the postponement of the
pre-trial conference set for July 12,
1976 upon the ground that his client Luis T. Peggy was gravely ill
and cannot attend the pre-trial conference as he had hoped to.[21]
A telegram was sent to the trial court informing the clerk of court of the
mailing of said motion.[22] The
defendants Restituta Tudud
and Luzviminda T. Peggy sent a confirmatory telegram
and interposed no objection to the postponement of the pre trial conference.[23]
On July 12, 1976, case was
heard, as previously set, with only the plaintiff and her counsel in
attendance. Upon motion of counsel for
the plaintiff, the defendants were declared in default and the case was set for
hearing on July 23, 1976
for the reception of the plaintiff’s evidence.[24]
Upon learning that the respondent court had issued an order declaring
them in default, the defendants filed a motion to set aside the order of
default and the proceedings made subsequent thereto for the reason that the
aforesaid order of default was illegally and prematurely issued.[25]
The court, however, denied said motion for lack of merit.[26]
On December 2, 1976, the respondent court rendered judgment in
said Civil Case No. 1712 in favor of the plaintiff and against the defendants,
ordering, among others, the dissolution of the conjugal partnership and the
separation of the properties of Luis T. Peggy and Purita
Torralba Peggy and awarding to plaintiff half of the
conjugal properties; condemning the defendants Luis T. Peggy and Restituta Tudtud to pay the
plaintiff the amount of P100,000.00 as nominal, exemplary, and moral damages
and P10,000.00 as attorney’s fees; and to pay the costs.[27]
Two days thereafter, or on December 4,
1976, the plaintiff filed a motion for the immediate execution of
the judgment.[28]
On December 13, 1976, the defendants filed an omnibus motion for
the reconsideration of the order denying their motion to set aside order of
default, as well as of the decision rendered on December 2, 1976, and their opposition-to
the motion for the immediate execution of the said decision of December 2,
1976,[29]
but the motion was denied on December 15, 1976.[30]
On that same day, an order was issued granting the motion for the immediate
execution of the judgment rendered on December
2, 1976 and directing the issuance of a writ of execution.[31]
Pursuant thereto, a writ of execution was issued on December 16, 1976.[32]
Whereupon, the defendants filed the instant recourse. As prayed for, a temporary restraining order
was issued by the Court restraining the respondents from enforcing the writ of
execution issued.[33]
The defendants contend that the order declaring them in default
for failure to attend and be present at the scheduled pre-trial conference on July 12, 1976 is illegal for the
reason that they were not served with the notice of the said pre-trial
conference, and premature, in view of the unresolved motion for postponement
filed by them.
The plaintiff, upon the other hand, maintains that the order
declaring the defendants in default was properly issued in view of the
defendants’ non-appearance at the pre-trial scheduled on July 12, 1976, despite
notice, and while the petitioners may not have been summoned separately,
personal notice to them is not necessary in view of the special powers of
attorney executed by them in favor of the respective attorneys who have been
duly notified of the said pre- trial conference.
We find merit in the petition.
Section 1, Rule 20 of the Revised Rules of Court provides:
“Section 1. Pre-trial mandatory. – In any action, after
the last pleading has been filed, the court shall direct the parties and their
attorneys to appear before it for a conference to consider:
“(a) the possibility of an amicable settlement or of
a submission to arbitration;
“(b) the simplification of the issues;
“(c) the necessity or desirability of amendments to
the pleadings;
“(d) the possibility of obtaining stipulations or
admissions of fact and of documents to avoid unnecessary proof;
“(e) the limitation of the number of witnesses;
“(f) the advisability of a preliminary reference of
issues to a commissioner;
“(g) such other matters as may aid in the prompt
disposition of the action.”
As will be seen, pre-trial is mandatory and the Court has
uniformly ruled that the parties, as well as their counsel, who are required
to appear thereat, must be notified of the same.[34]
The records of this case, however, show that the defendants were not properly
notified of the pretrial conference since the notices of pre-trial were sent
to their counsel and not upon them so that the order declaring them in default
for non-appearance at the pre-trial conference is null and void. The only instance wherein the parties were
notified separately of the holding of a pre-trial conference was on July 8, 1975. This notice, however, cannot be considered to
have fully satisfied the requirements of the law because the said notice of
pre-trial conference was issued before the last pleading has been filed. Construing the term “last
pleading”, the Court, in a case,[35]
said:
“Under the rules of pleading and practice, the answer
ordinarily is the last pleading, but when the defendant’s answer contains a
counterclaim, plaintiff’s answer to it is the last pleading. When the defendant’s answer has a cross
claim, the answer of the cross-defendant to it is the last pleading. Where the plaintiff’s answer to a
counterclaim contains a counterclaim against the opposing party or a
cross-claim against a co-defendant, the answer of the codefendant to the
cross-claim is the last pleading. And
where the plaintiff files a reply alleging facts in denial or avoidance of new
matter by way of defense in the answer, such reply constitutes the last
pleading. (Francisco, The Revised Rules
of Court, Vol. II, p. 2-3)”
Following this rule, the “last
pleading” is the answer of the plaintiff to the counterclaim of the defendant
Luis T. Peggy, filed on September 16,
1975.[36]
Obviously, the calling of a pre-trial conference on August 8, 1975 was premature. The fact that the defendants have filed with
the court special powers of attorney in favor of the respective attorneys cannot
cure the jurisdictional defect since the same were filed before the filing of
the last pleading and no valid notice of pre-trial conference had been sent to
the defendants.
At any rate, the respondent judge abused his discretion in
declaring the defendants in default in view of the urgent motion for the
postponement of the pre-trial conference filed by counsel for the defendant
Luis T. Peggy on July 9, 1976 upon the ground that the defendant Luis T. Peggy
was gravely ill and could not attend the pre-trial conference set for July 12,
1976 as he had expected to do. The
respondent judge applied the rules of procedure strictly and failed to take
into serious consideration the admonition of the Court that the “rules
shall be liberally construed in order to promote their object and to assist
the parties in obtaining just, speedy, and inexpensive determination of every
action and proceedings.”[37]
In a recent decision,[38]
this Court reiterated its disapproval of default judgments and cautioned the
courts to be more circumspect before declaring a defendant in default. Since no substantial right of the plaintiff
therein could have been affected and the reasons advanced by the defendants for
their failure to appear at the pre-trial conference are creditable and reasonable,
the respondent judge should have granted the postponement prayed for or set
aside his order declaring defendants in default.
WHEREFORE, the petition is granted and the order of the
respondent judge, dated July 12, 1976,
declaring the petitioners in default, as well as all proceedings made
subsequently thereto are hereby annulled and set aside and the temporary
restraining order heretofore issued is made permanent. Let this case be remanded to the lower court
for further proceedings. Without costs.
SO ORDERED.
Fernando, (Chairman), Santos,
and Abad
Santos, JJ., concur.
Barredo, J., I concur. Although I feel that
petitioners were duly notified because of the powers of attorney they gave
their counsel, as in fact, they asked for postponement, I held that the motion
for postponement was well-grounded and should have been granted.
Antonio, J., concurs in the
result.
Aquino, J., took no part.
[1] Rollo, p. 41.
[2] Id.,
p. 55.
[3] Id.,
p. 94.
[4] Id.,
p. 108.
[5] Id.,
p. 117.
[6] Id.,
p. 120.
[7] Id.,
p. 122.
[8] Id.,
pp. 124, 129, 134.
[9] Id.,
p. 146.
[10] Id.,
p. 147.
[11] Id.,
p. 149.
[12] Id.,
p. 415.
[13] Id.,
p. 150.
[14] Id.,
p. 151.
[15] Id.,
p. 152.
[16] Id.,
p. 14.
[17] Id.,
p. 182.
[18] Id.,
p. 184.
[19] Id.,
p. 188.
[20] Id.,
p. 189.
[21] Id.,
p. 190.
[22] Id.,
p. 192.
[23] Id.,
p. 193.
[24]Id.,
p. 194.
[25] Id.,
p. 246.
[26] Id.,
p. 260.
[27] Id.,
p. 267
[28] Id.,
p. 308.
[29] Id.,
p. 316.
[30] Id.,
p. 430.
[31] Id.,
p. 431.
[32] Id.,
p. 433.
[33] Id.,
p. 442.
[34]
Peoples Realty Brokerage Corporation vs. Hon. Julian E. Lustre, etc., et al., G.R. No. L-41495, Oct. 20, 1978 and cases cited.
[35]
Pioneer Insurance & Surety Corp. vs. Hontañosas,
L-35951, August 31, 1977;
78 SCRA 447.
[36] Rollo, p. 8, par. XI of the Petition; also p. 146.
[37]
Section 7, Rule 1, Revised Rules of Court.
[38] Corsino, et al. vs. Hon. A. Savella,
et al., L-38367, November 24, 1978
and cases cited.