DONATO BAÑARES, PETITIONER, VS. TOMAS FLORDELIZA, JUDGE OF FIRST INSTANCE OF SORSOGON, AND JULIAN GAVITO, RESPONDENTS.

This petition for the writ of mandamus prays that an order be
issued by this court to the Honorable Tomas Flordeliza, Judge of the Court of
First Instance of Sorsogon, commanding him to set aside the order of default
against the herein petitioner Donato Bañares, defendant in civil case No. 2191
of the Court of First Instance of Sorsogon, to admit the answer filed by said
defendant in said case, and to give him his day in court.

From the instruments of record it appears that the necessary
facts pertinent to the solution of the present proceeding, are as follows:

In the month of November, 1916, by virtue of a writ of
execution issued by the justice of the peace of Barcelona, Province of Sorsogon,
in the suit filed by Eugenio Fortuno against Julian Gavito covering a sum of
money, a piece of rice, hemp, and coconut land belonging to the defendant was
levied upon on October 16, 1916. On November 4, 1916, the municipal sheriff of
Barcelona, in compliance with said order, sold the said land at public auction,
the highest bidder being the herein petitioner, Donato Bañares. The one-year
period for redemption having expired, the municipal deputy sheriff, Isaac
Camposano, executed the proper deed of sale in favor of said purchaser.

On October 18, 1927, Julian Gavito, whose property had been
levied upon in said case, filed a complaint in the Court of First Instance of
Sorsogon against Donato Bañares, the purchaser of the land which was the subject
matter of the execution, praying that said defendant be ordered to permit the
plaintiff to redeem the land in question, to restore the ownership and
possession of the same to the latter, and to pay damages at the rate of P100 a
year, plus the , costs of the action.

On November 15, 1927, and within the regulation period, the
defendant filed an answer to the complaint. Because a copy of said answer was
not furnished the plaintiff, the latter, on December 12, 1927 filed a motion for
default of said defendant, Donato Bañares.

On December 17, 1927, the Honorable Tomas Flordeliza, Judge of
the Court of First Instance of Sorsogon, passing on said motion, issued an order
declaring the defendant in default and authorizing the plaintiff to present his
evidence in the absence of the former.

On February 9, 1928, and before the assignment of a date for
the hearing of the case on its merits, the plaintiff, Donato Bañares, filed a
miotion, duly sworn to, for setting aside the order of default, wherein it
appears that he has a just and valid defense; and attached to said motion as
integral parts thereof, were copies of documents alleging that the fai}ure to
furnish the plaintiff with a copy of his answer was due to the fact that he
believed that the doctrine laid down in the case of Gochangco vs. Dean (47
Phil., 687), which held that the mere failure of the defendant to furnish the
plaintiff with a copy of his appearance and answer, cannot, in itself,
constitute sufficient ground for a declaration of default, was still in
force.

The court, passing upon said motion, issued an order denying
the same, considering the defendant’s failure an inexcusable error, there
existing later jurisprudence in the case of Gonzalez and Mauricio vs. Francisco
(49 Phil., 747), to the effect that:

“As far as the record shows, no copies neither of the
appearance nor of the answer, were served upon the plaintiffs; the documents
were therefore not filed in accordance with the rules of the court and the
defendant was in default when the case was tried and the judgment
rendered.”

The only question to decide in the present appeal is whether
the respondent judge abused his discretion in refusing to set aside the order of
default and in not permitting the petitioner to take part in the trial.

As we have seen, the only ground for the order of default was
the petitioner’s failure to furnish the other respondent, Julian Gavito, with a
copy of his answer. There can be no doubt that such a failure is sufficient for
a court to declare the defendant in default, and to refuse to set it aside when
a motion to that effect is presented without a sworn statement of merit and
evidence to establish them, as has been held in the last cited case. But when
the motion to set aside the order of default was made without any loss of time
and before a date was set for the hearing of the case on its merits,and is
accompanied by a sworn statement of merit and copies of documents which
constitute prima facie a just and valid defense, such failure is
insufficient to deprive a defendant of his rights, as in the present case, and
the refusal to set aside the order of default constitutes an abuse of
discretion, and especially when such setting aside of the order of default will
in no way prejudice the plaintiff.

In conclusion, we are of the opinion, and so hold, that under
the circumstances of the case the respondent judge committed an abuse of
discretion in refusing to set aside the order of default here in question.

In virtue whereof, the remedy sought is hereby granted, and it
is ordered that the respondent judge, the Honorable Tomas Plordeliza, set aside
his order of default of December 17,1927, against the herein petitioner, Donato
Bañares, as defendant in civil case No. 2191 of the Court of First Instance of
Sorsogon, wherein Julian Gavito, one of the herein respondents, was plaintiff;
to admit the answer filed by said petitioner, and to permit him to be heard at
the trial, with the costs against said respondent Julian Gavito. So ordered.

Avanceña, C. J., Street, Malcolm, Villamor, Ostrand,
and Romualdez, JJ., concur.