DEOMEDES S. ROJAS, IN HIS CAPACITY AS LEGAL ADMINISTRATOR OF THE ESTATE OF THE DECEASED MARIA SIPRIASO, PLAINTIFF AND APPELLEE, VS. ROSA PAPA, AS PRINCIPAL, CONSUELO PAPA VILLAN…

In the Court of First Instance of Cavite, Deomedes S. Rojas, legal
administrator of the estate of the deceased Maria Sipriaso, sued Rosa
Papa, Consuelo Papa Villanueva, and the latter’s husband, Mariano B.
Villanueva, to collect the unpaid balance of a promissory note in favor
of Maria Sipriaso, made by Consuelo Papa Villanueva as attorney-in-fact
of Rosa Papa, the note being secured by a real estate mortgage on two
parcels of land belonging to Rosa Papa. Upon petition of defendants,
the court granted them a first extension of fifteen days and a second
extension of twenty days within which to file their answer. Defendants
having failed to file their answer, plaintiff, on April 21, 1956, moved
to have them declared in default. This was opposed by defendants, but
the court issued an order declaring them in default. Defendants’ two
motions for reconsideration of this order were both denied by the
court. On September 4, 1956, plaintiff presented his evidence. Two days
later, defendants filed another motion for reconsideration, asking that
they be given the chance to answer the complaint and to be present at
the trial. This was likewise denied by the court. On September 7, 1956,
the court rendered a decision in favor of plaintiff and against
defendants. On February 3, 1956, defendants asked for a fifteen day
extension to answer which was duly granted by the court. On February
22, 1956, they filed another motion asking that their period to answer
be extended up to April 15, 1956. Acting on this motion, the court
issued an order The latter asked for reconsideration of the decision on
the ground that it was violative of Section 2, Rule 1 of the Rules of
Court and the constitutional provision against deprivation of property
without due process of law. Opposition thereto was filed by plaintiff.
On November 2, 1956, the court denied defendants’ motion.

So defendants appealed from the lower court’s decision of September
7, 1956 and from the order of November 2, 1956 denying their motion for
reconsideration. They claim that the trial court erred (1) in declaring
them in default; (2) in depriving them of their right to due process of
law by denying them their day in court; and (3) in rendering a decision
not supported by preponderant evidence arid without considering
appellants’ defense.

The principal issue herein is whether appellants were declared in
default before the expiration of the period within which to file their
answer. Resolution of the two other assigned errors are dependent on a
determination of this main issue.

Within fifteen days after service of summons the defendant shall
file his answer and serve a copy thereof to the plaintiff (Section 1,
Rule 9, Rules of Court). But, upon motion and upon such terms as may be
just, the court may extend the time to plead (Section 16, Rule 15,
Rules of Court). If the defendant fails to answer within the original
period, or if he had been so granted, within the period of extension,
then the court shall, upon motion of the plaintiff, order judgment
against the defendant by default (Section 6, Rule 35, Rules of Court).

The complaint was filed on January 17, 1956 and summons was duly
served on defendants on January 19, 1956. On February 3, 1956,
defendants asked for a fifteen day extension to answer which was duly
granted by the court On February 22, 1956, they filed another motion
asking that their period to answer be extended up to April 15, 1956.
Acting on this motion, the court issued an order on February 24, 1956
granting them an extension of only twenty days. The controversy centers
on the time from which this extension of twenty days should be counted.
The court’s order explicitly states that said period should run “from
receipt of a copy of this order”.

The record discloses that a copy of the court’s order was sent by
ordinary mail to appellants on February 26, 1956. But appellants claim
that they never received said copy and that it was only on April 28,
1956 that their counsel accidentally learned of the court’s order
giving them an extension of 20 days from receipt thereof. According to
appellants, on April 28, 1956, while their counsel was attending to his
other cases in the lower court, he incidentally asked for information
respecting his second motion for extension in this case, so he was
furnished with a, copy of the court’s order dated February 22, 1956;
and that upon investigation, said counsel found out that a certain Mr.
Madrid, court employee who was in charge of sending the copy of the
order, could not state with any degree of positiveness whether he
delivered the copy personally or he had mailed it, although it appears
in the record book that it was sent by ordinary mail, but this notation
had been crossed out. There is no proof to substantiate their
contention that the copy of the order had not been mailed to them and
that they were apprised of the court’s action only on April 28, 1956.
If their contention were true, then they would have attached proof
thereof to their motion for reconsideration of the court’s order
declaring them in default. They would have insisted that said Mr.
Marquez make an affidavit that he failed to mail said copy. Or they
could have annexed to their motion proof that there had been a deletion
of the notation in the lower court’s record book. This they failed to
do, so we cannot give credence to their allegation that they did not
receive the copy mailed to them.

The rule is that service by mail is complete upon expiration of five
days after mailing, unless the court otherwise provides (Section 8,
Rule 27, Rules of Court). In Perez vs. Isip (81 Phil., 218) it
was held that notice sent by ordinary mail from one town to another
town in Bulacan, was received by the addressee within 3, 4 or at the
latest, 5 days, there being no proof that notice was returned by the
post office to the court. In the present case, copy of the order was
mailed on February 26, 1956, and there is no showing that said copy was
returned to the lower court. Therefore, appellants received it at the
latest on March 2, 1956, and the twenty days extension of time should
be counted therefrom. Hence their period to file their answer expired
on March 22, 1956. Having failed to file a responsive pleading within
that period, they were properly declared in default.

Appellants insist that excusable negligence was the reason why they
failed to file their answer. They were asking for “extension of time up
to April 15, 1956, within which to file their answer, so as to give
them sufficient time to raise the amount to pay their indebtedness, so
as to have this case amicably settled.” Yet, there is no showing that
they tried to pay their indebtedness, or that they made any efforts
towards amicable settlement. And worst of all, even on April 15, 1956,
they were not yet ready to file their answer. On or before the last day
of the period of extension they were praying for, they should have
taken steps to find out what action the court had taken on their motion
for extension and should have been prepared to file their answer. This
was the least they could have done. But they neglected to do this, so
there is absolutely no ground on which to excuse their lack of
diligence.

There is nothing to appellants’ claim that they have been deprived
of their right to due process of law. As applied to judicial
proceedings, due process of law signifies that there must be a court or
tribunal clothed with power to hear and determine the matter before it;
that jurisdiction shall have been lawfully acquired; that the defendant
shall have an opportunity to be heard and that judgment shall be
rendered upon lawful hearing (Banco Español Filipino vs.
Palanca, 37 Phil., 921). The requisites of due process have been amply
satisfied. The trial court had the power to try and determine the case
and jurisdiction was lawfully acquired. Appellants were given the
chance to be heard but they did not make use of their opportunity to
present their side. They had the original fifteen days from summons
within which to answer. This was extended for a period of fifteen days.
They then again sought extension of the period, and this, too, was
granted. But even when they were granted this second extension of
twenty days they still neglected to file their answer.

The decision of the trial court was based on proof submitted by
appellee during the hearing. This is only to be expected for once the
defendant had been declared in default, the court shall proceed to
receive the plaintiff’s evidence and render judgment granting him such
relief as the complaint and the facts proven may warrant (Section 6,
Rule 35, Rules of Court). The trial court could not have considered
appellants’ defense of usury which they alleged for the first time in
their brief. Having been declared in default, they lost their right to
answer and to present evidence in support of their contentions.

For all the foregoing considerations, we find appellants’ appeal to
be frivolous. The appealed decision and order are hereby affirmed with
double costs against the appellants.

Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia, and Barrera, JJ., concur.
Padilla, J., took no part.