ONG PENG, PLAINTIFF AND APPELLEE, VS. JOSE CUSTODIO, DEFENDANT AND APPELLANT.

Appeal against various orders of the Court of First Instance of Iloilo, especially against that declaring defendant in default.

The present suit was instituted by Ong Peng against Jose Custodio to
recover the sum of P2,527.30, with interest, representing the value of
goods and materials obtained by defendant from plaintiff, plus the
amount of P500 as attorney’s fees. The complaint was filed on April 15,
1958, and on April 30 defendants moved to dismiss the complaint on the
ground that plaintiff’s cause of action had already prescribed.
Plaintiff answered defendant’s motion and attached to his answer an
amended complaint, which set forth the promissory note supporting the
claim. No answer to the amended, complaint was presented and no
objection to its admission was also interposed. On May 21, 1958, the
court admitted the amended complaint on the ground that no objection
thereto had been filed, and on May 28, it denied the motion to dismiss.
Copy of the order of the court admitting the amended complaint was
furnished attorney for the defendant by ordinary mail on May 31, 1958,
and copy of the order denying the motion to dismiss was sent by
registered mail and received by the defendant on June 16, 1958.

On June 27, 1958, as the defendant had not filed an answer to the
amended complaint, which had already been admitted in an order dated
May 21, 1958, plaintiff moved that the defendant be declared in
default. On June 28 the court granted the motion, declaring defendant
in default, and set the case for hearing on July 17, for the reception
of the plaintiff’s evidence. Prior to this hearing, that is, on July 5,
1958, defendant presented a motion to set aside the order of default
and to allow him to file his answer. This was set for hearing on July
12, 1958. Objection to this motion was filed by the plaintiff. On the
date of the hearing the court denied the motion to lift the order of
default.

On July 17, 1958, after presentation of plaintiff’s
evidence, the court entered judgment ordering defendant to pay
plaintiff the sum of P2,527.30, with legal interest and costs. Upon
receipt of this judgment the defendant filed a motion for
reconsideration under oath, alleging that defendant has a strong and
valid defense, that the promissory note is false and spurious, and that
the defendant is an intelligent and respectable member of the
community. Attached to the motion is an affidavit of the defendant
stating that he has a good defense and that if only allowed to present
his evidence he would prove that the said document is forged. Objection
to this motion was presented by the plaintiff, and attached to the
objection is the affidavit of Ong Peng stating that the promissory note
was delivered to him by his clerk Ah Chiao. Another affidavit by Marcos
Gotera is also attached to the objection, stating that he was present
at the time that defendant Jose Custodio signed the promissory note in
the presence of Ong Peng and Wong Tap, another Chinese clerk. The court
denied the petition and after the denial of another motion for
reconsideration the present appeal was presented.

In his
brief the defendant-appellant argues that defendant never came under
the jurisdiction of the court for the purposes of the amended complaint
because the same was not served upon him with summons and in accordance
with Section 10, Rule 27, of the Rules of Court, invoicing the case of
Atkins, Kroll and Co. vs. Domingo, 44 Phil., 680. We have
examined this case and we find that the ruling contained therein is not
applicable to the case at bar. In that case summons under the original
complaint was properly served the defendant. Before defendant appeared
another amended complaint was served by registered mail. Of course we
held that “the service of the amended complaint upon his sixteen-year
old son by the attorney for the plaintiff was not sufficient to give
the court jurisdiction over the defendant as to any new matter alleged
in the amended complaint.” In the case at bar, the amended complaint
contained no new matter; it only sets forth the promissory note upon
which the cause of action is based. In the case at bar also the
defendant had already appeared when the amended complaint was
served—defendant had, in fact, presented a motion to dismiss. We rule
that after the defendant has appeared by virtue of a summons, as in
this case, and presented a motion to dismiss, he may be served with the
amended complaint, without need of another summons, and in the same
form and manner ordinary motion or papers are served, thus:

“If
he (defendant) had not yet appeared, a new summons must be served upon
him as regards the amended complaint, otherwise the court would have no
power to try the new causes of action alleged therein, unless lie had
lodged an answer thereto. Simply sending a copy of the amended
complaint to the defendant by registered mail is not equivalent to
service of summons in such case. However, if the defendant had
already appeared in response to the first summons, so that he was
already in court when the amended complaint was filed, then ordinary
service of that pleading upon him, personally or by mail, would be
sufficient, and no new summons heed be served upon him. (I Moran, 1957 ed., p. 116, citing the case Atkins vs. Domingo, 44 Phil., 680.) (Italics supplied.)

We note that the defendant never claimed that he did not receive the
amended complaint in the ordinary course of mail and his only objection
thereto was the fact that no summons was served upon him with regard
thereto. The opposition to the motion to dismiss and the amended
complaint were served attorney for the defendant on May 12, 1958 by
registered mail. Said counsel was also furnished copy of the court’s
order admitting the amended complaint on May 31, 1958. Assuming that
the defendant received the copy of the amended complaint five days
after May 12, or on May 17, and a copy of the order of the court about
June 6, the court’s order declaring him in default on June 28, is
justifiable, for the reason that the time for filing an answer to the
amended complaint commenced from the date of service of such amended
complaint (Villegas vs. Roldan, 76 Phil., 349.)

The
second point raised by appellant in his brief is the validity of the
action of the lower court in allowing plaintiff to amend his original
complaint even after a motion to dismiss has been filed. Appellant
argues that Section 1 of Rule 17, giving plaintiff the right to amend
his complaint once as a matter of course at any time before a
responsive pleading is filed, does not apply where a motion to dismiss
is filed by the adverse party on which the court should conduct a
hearing before allowing the amendment. This claim merits no
consideration. Under Section 3, Rule 8 of the Rules of Court, the court
is not obliged to immediately hold a hearing on the motion to dismiss;
it is granted the discretion to defer the hearing and determination
thereof until the trial if the ground alleged therein does not appear
to be indubitable. (Nico vs. Blanco, 81 Phil., 213) On the
other hand, the right of a plaintiff under Section 1 of Rule 17 to
amend his pleading once as a matter of course before a responsive
pleading (which motion to dismiss is not one) is served, has been held
to be one which the court should always grant, otherwise mandamus will
lie against it. (Breslin, et al., vs. Luzon Stevedoring Co., et
al., 84 Phil. 618; 47 Off. Gaz. [37] 1170.) Besides, the amendment was
merely one of form; it did not change the cause of action, but only set
forth the promissory note on which the action was based.

We
find that the points being raised on this appeal are supposed failures
to follow formal proceedings, not substantial requirements of
procedure. Upon examination of the motion to set aside the order of
default, we find it to be lacking in the following substantial
requirements: it does not contain an affidavit of merits, the motion to
set aside the default order is not under oath and contains only a
promise or an assurance, not an affidavit of merits, that defendant has
a good defense. The court was, therefore, fully justified in denying
the motion to set aside the order of default.

We next come
to the denial of the motion to set aside the judgment and grant relief
under Rule 38 of the Rules of Court. The motion, it is true, contains
an affidavit of merits, but this affidavit is merely a denial of the
supposed authenticity of defendant’s signature to the promissory note
which is transcribed in the amended complaint. And in
counter-affidavits plaintiff has presented witnesses declaring that
defendant’s signature to the promissory note is authentic. We believe
that this is a last-minute attempt to defend a losing case. If the
defendant really had any valid defense, this should have been brought
at the first opportunity, that is, by the first motion to set aside the
order of default. Beside, we doubt if the same issue raised in the
original motion to set aside the order of default, may again be raised
in a petition for relief under Rule 38 of the Rules of Court. The
general rule is that once a matter in issue has been decided by the
court, it may no longer be brought again in the form of another
objection, and in the guise of a motion under another provision of the
rules. But even laying this objection aside, we find that the court did
not abuse its discretion in refusing to grant a reconsideration of the
order of default and to set aside the consequent judgment ordering the
defendant to pay the sum demanded in the complaint.

Wherefore, the appeal is hereby dismissed, with costs against defendant-appellant.

Bengzon, Acting C. J., Padilla, Bautista Angelo, Concepcion, Reyes, J. B. L., Barrera, Paredes and Dizon, JJ., concur.