AURELIA T. DE PINEDA, PLAINTIFF AND APPELLEE, VS. FELINO V. VELOIRA, DEFENDANT AND APPELLANT.

This is an appeal from an order of the Court of First Instance of Rizal
(Quezon City , Branch IV) in Civil Case No. Q-2896, denying defendant’s motion
to set aside the order of default entered against him.

Said Civil Case No. 2896 is an action for forcible entry and illegal detainer
originally filed in the Municipal Court of Quezon City and appealed to the court
below by defendant Felino V. Veloira. The complaint therein filed by plaintiff
Aurelia T. Pineda, as reproduced on appeal, alleges, among other things, that
defendant on or about May 12, 1957 by means of force, stealth and strategy,
unlawfully entered into and took possession of a parcel of land belonging to
plaintiff situated in Barrio Tatalon, Quezon City, and that, despite repeated
demands, said defendant refused to vacate the same and remove his constructions
thereon.

Instead of filing an answer, defendant, on March 27, 1958, or two days after
he received the notice of the receipt of the record by the court below and
docketing therein of the cause under appeal, filed a motion to dismiss the
complaint on the ground of lack of cause of action, alleging in substance that
the question of ownership and title over the land in controversy is involved,
and that the action is premature since the said question of title and ownership
is still pending determination in an action before another court.

After plaintiff had filed her opposition, the motion to dismiss was, on May
17, 1958, called for hearing. On that same date, the lower court, acting upon
the motion, denied the same, holding that the grounds alleged therein do not
appear to be indubitable. The parties were notified of the denial in open court,
but copy of the order of denial was sent to defendant by registered mail only on
June 25, 1958 and was received by the latter on June 27, 1958.

Three days later, or on June 30, 1958, defendant filed his answer to the
complaint containing a counter-claim for moral and actual damages. On that same
day, however, the court, upon plaintiff’s motion, handed down an order declaring
him in default, it being of the opinion that the running of the period within
which to file the answer was resumed on May 17, 1958, when the parties were
notified in open court of the denial of the motion to dismiss, so that the time
to plead had already expired. A copy of the order of default was received by
defendant on July 11, 1958.

Alleging that the period within which to file his answer started to run again
only on June 27, 1958, when he was actually served with a copy of the order
denying his motion to dismiss, defendant, on July 14, 1958, filed a motion to
set aside the order of default. The motion was opposed by plaintiff, and on
January 2, 1959, the lower court denied the same for lack of merit.
Reconsideration of this last mentioned order having been also denied, defendant
took the present appeal.

The decisive question for determination is whether the running of the period
within which to file defendant’s answer was resumed on May 17, 1958, when, thru
his counsel, he was verbally notified in open court of the order denying the
motion to dismiss, or on June 27, 1958, when he actually received a copy of said
order of denial.

This Court has already held that notice given orally in open court as to the
denial of a motion is not sufficient and does not constitute service under Rule
27 of the Rules of Court. (Melgar vs. Delgado, 53 Phil., 223; Moran’s
Comments on the Rules of Court, Vol. 1, 1957 ed., p. 411; De la Peña, et al.
vs. Teodoro, Sr., etc., G. R. No. L-10603, December 23, 1959; Centenera
vs. Yatco, etc., 106 Phil., 1064; 57 Off. Gaz., [27] 4923). The
provisions of said Rule 27 prescribing the modes of service are “mandatorily
intended to provide a uniform procedure affecting a matter of public interest
which may not be changed by the parties.” (De la Peña, et al. vs.
Teodoro, Sr., etc., supra.) To be effective, therefore, service of the
denial of a motion should be made either personally or by mail. (Sec. 3, Rule
27, Rules of Court.)

Under section 7 of Rule 40, in appeals from a judgment rendered by an
inferior court to the Court of First Instance, a defendant is required to file
an answer within the reglementary period of 15 days from the date of the receipt
of the notice that the cause on appeal has already been docketed in the latter
court. (Pimentel vs. Gomez, et al., 109 Phil., 1040; 60 Off. Gaz., [47]
7754). In this case defendant received such notice from the clerk of the court
below on March 25, 1958 and filed a motion to dismiss two (2) days later, or on
March 27, 1958. Since his motion interrupted the time to plead (sec. 4, Rule 8),
he had thirteen (13) days from the denial of his motion within which to file his
answer. He was served with notice of the order of denial only on June 27, 1958,
when he actually received a copy thereof, so that he still had up to July 10,
1958 within which to file his pleading. As he submitted his answer on June 30,
1958, it is obvious that said answer was filed within the prescribed
reglementary period. Consequently, his motion to lift the order of default
entered against him should have been granted.

Wherefore, the order appealed from is set aside, and the case remanded to the
court below for further proceedings. So ordered without costs.

Bengzon,
C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes,
Dizon, and Natividad, JJ., concur.