JOSE G. CAMUS, PLAINTIFF AND APPELLEE, VS. LEONOR PAULINO, DEFENDANT AND APPELLANT.

This is an appeal taken by the defendant to
set aside the judgment rendered by the Court of First Instance of Rizal
whereby the marriage she had contracted with the plaintiff, as well as
the marriage certificate issued to that effect, was declared null and
void.

The plaintiff brought this action for the annulment of the
marriage in question, which was celebrated before Paulino D. Enriquez,
minister of the “Iglesia Cristiana Trinitaria” at Caloocan, Province of
Rizal, on March 21, 1931. In his complaint, he alleged as his cause of
action that on or about the 18th day of March, 1931, the defendant and
her relatives, who were in connivance with the aforesaid minister, by
means of deceit, fraud and intimidation, forced him to sign various
papers the contents of which were unknown to him, but which he
discovered later to be a marriage certificate and an application for a
license to contract the same. He alleged further that neither before
nor after the alleged marriage did he and the defendant live together
as husband and wife.

The complaint was filed on December 8, 1932, and a summons was
served upon the defendant at Malabon, Rizal, on the following day. On
the 29th of the same month, on which date the period allowed for the
appearance of the defendant was to expire, the plaintiff prepared a
motion to declare the defendant in default, which was filed with the
clerk’s office on December 31st. On this latter date the court entered
an order of default against the defendant for not having appeared nor
filed a demurrer or an answer to the complaint. On January 3, 1933,
that is, three days after she was declared in default, the defendant
filed her answer. In the said order of default the case was set for
hearing on any day of the first week of January. On January 6th, the
case was heard in the absence of the defendant and her counsel, during
which the plaintiff, his father and another witness named Tomas
Lasmarifias testified. A certified copy of the alleged marriage
certificate and a simple copy of the defendant’s application for
enrollment at the National University were presented as documentary
evidence therein.

On January 10, 1933, before judgment was rendered therein, the
defendant filed a petition to set aside the order of default alleging
as her grounds that her answer to the complaint had not been received
at the clerk’s office on time for the reason that December 30th and
January 1st and 2d were legal holidays; that said answer was dated
December 29th, the day on which the period allowed for her appearance
expired, and that it was mailed on that same date. Furthermore, to
justify her petition she stated that she had a meritorious defense and
that she would prove that the marriage had been contracted with the
plaintiff’s full knowledge. The petition in question was duly sworn to,
and reference made therein to the affidavits of the minister, who
solemnized the marriage, and of one of the witnesses who signed the
marriage certificate. The affidavit of the aforesaid minister, wherein
he stated that he solemnized the marriage at the instance of the
plaintiff himself, was likewise attached thereto. Said plaintiff filed
his opposition to the petition in question, which petition was denied
on January 16th.

On the 17th of the same month, the court entered judgment therein
holding that the marriage certificate in question, and consequently the
marriage itself, which was contracted by the parties, were null and
void. The defendant excepted to the order of default as well as to the
judgment thus rendered and filed a motion for a new trial wherein she
reiterated that she had a good and meritorious defense, A copy of the
affidavit of the minister Enriquez and an affidavit of the witness
Cecilio Martin, were attached thereto. She also attached thereto as
Appendix A, a copy of the application filed by the plaintiff for a
license to contract marriage with her, which application was dated
February 19, 1931, and was ratified before notary public Jose
Advincula. Said motion for a new trial was denied, whereupon the
defendant excepted to the order entered therein and filed her bill of
exceptions.

The appellant assigns four alleged errors all of which relate to
the denial by the trial court of her motions to set aside the order of
default and for a new trial.

It has already been held in various decisions that the setting
aside of an order of default rests entirely in the sound discretion of
the court and, as a general rule, such order should not be vacated or
set aside unless the defendant shows that she has a good and
meritorious defense. Therefore, it is necessary to determine in the
case at bar whether or not the defendant had a valid defense, otherwise
it would not be worth even the trouble to review the same. An
examination of the record shows the undisputed fact that the marriage
certificate in question was signed by the plaintiff and that on
February 19,1931, that is, about thirty-two days before the celebration
of the marriage in question, he had signed the application for a
marriage license before a notary public. Aside from this, there are the
affidavits of the minister, who solemnized the marriage, and of the
witness who signed the marriage certificate. With such evidence, we
doubt very much that the court would have arrived at the same
conclusion if the defendant had been given the opportunity to present
it. We are of the opinion that the defendant has shown sufficiently in
her motions that she had a meritorious defense and that, after the
decision had been rendered, the order of default should have been set
aside or a new hearing held in order to give the defendant an
opportunity to present the evidence which she claimed to have in her
possession. We reiterate that an exception to the rule of discretionary
power of the courts in such cases is when the defendant has a good
defense, and this is the doctrine laid down in the case of Larrobis vs.
Wislizenus and Smith, Bell & Co. (42 Phil., 401, 404), to wit:

“The ordinary interlocutory order declaring default
against a party for failure to appear or answer is precisely the same
sort of order as that known to the practice of courts of equity as the
taking of a bill pro confesso. Such an order is grantable as
of course upon any of the contingencies justifying the taking of a bill
as confessed; and when taken, such order becomes the foundation for the
subsequent final decree. It is the uniform practice of courts of equity
to allow pro confesso orders to be set aside upon timely
application and any reasonable showing that the defendant probably has
a meritorious defense and that he was not culpably negligent in failing
to put in his defense sooner.”

Under the circumstances
surrounding the late filing of the answer to the complaint and taking
into consideration the fact that it was delayed only five days, we are
of the opinion and so hold that the defendant’s negligence in this case
was excusable.

Wherefore, the judgment appealed from is hereby set aside and it is
hereby ordered that the record of the case be remanded to the trial
court so that, upon admission of the answer to the complaint, it may
proceed to hold a new hearing thereof at which the defendant shall be
permitted to present her evidence and the plaintiff, his additional
evidence and evidence in rebuttal, without the necessity of retaking
what has already been presented by him, with the costs of this instance
against the plaintiff-appellee. So ordered.

Malcolm, Villa-Real, Hull, and Goddard, JJ., concur.