NEMESIO MONTEVERDE, SANTIAGO MATUTE, IN HIS CAPACITY AS GUARDIAN OF THE MINOR CANDELARIA MONTEVERDE, THE SPOUSES MILAGROS MONTEVERDE AND LEON A. GARCIA, AND THE SPOUSES VICENTA …

Monteverde versus Jaranilla

The Case

This is a pair of original actions in the Supreme Court of the Philippines, decided in August 1934: one petition for mandamus and one petition for certiorari with preliminary injunction. The petitioners are Nemesio Monteverde and his co-defendants in a collection suit; the respondents are two judges of the Court of First Instance of Manila, Delfin Jaranilla and Sabino Padilla, together with the plaintiff in that collection suit, Lourdes Catala. The petitioners ask the Court, first, to compel Judge Jaranilla to act upon and approve their bill of exceptions so that their appeal may proceed, and second, to annul the judgment by default entered against them and the writs of execution issued to enforce it. The case matters because it fixes several procedural rules a reviewee must know: when a special appearance becomes a general appearance, what a defendant declared in default is and is not entitled to be notified of, when an order denying relief from a judgment by default is final and appealable, and when a court abuses its discretion by ordering execution pending appeal.

Procedural History

The action began in the Court of First Instance of Manila, where Lourdes Catala sued the Monteverde defendants for the recovery of a sum of money. Judge Jaranilla issued a writ of attachment, later granted the defendants' motion to dissolve it upon a bond, then declared the defendants in default and, on the same day, entered judgment by default against them. The defendants moved to be relieved from the judgment, and that motion was denied. They moved for reconsideration; Judge Padilla denied it. They excepted, announced their intention to appeal, and filed a bill of exceptions for approval. Judge Padilla then granted a motion for execution, and later issued a second writ of execution in substitution. The defendants filed in the Supreme Court an original petition for mandamus to compel action on the bill of exceptions, and an original petition for certiorari with preliminary injunction to annul the judgment by default and the writs of execution. The Supreme Court allowed the petition and issued a preliminary injunction restraining execution of the judgment.

Facts

On December 5, 1933, Lourdes Catala brought an action in the Court of First Instance of Manila against Nemesio Monteverde and others for the recovery of 20,000 pesos plus damages. On December 8, 1933, upon an ex parte motion and the filing of a bond, the court issued a writ of attachment against the defendants' property.

On December 23, 1933, the defendants filed a pleading entitled Special Appearance and Motion to Dissolve Writ of Attachment. In it, without waiving their right to enter a general appearance and answer, they made a special appearance for the purpose of praying for dissolution of the attachment, without expressly impugning the court's jurisdiction over their persons, and offered to file a bond. On December 29, 1933, Judge Jaranilla granted the motion and fixed the bond at 20,000 pesos. On January 3, 1934, the plaintiff filed an ex parte motion to declare the defendants in default for failure to file a demurrer or answer within the reglementary period of ten days from their appearance. On January 5, 1934, Judge Jaranilla granted the motion and declared the defendants in default.

On January 6, 1934, the defendants filed a verified motion to be relieved from the order of default and to be allowed to answer, alleging among other grounds that their appearance was special and that they had a good defense. On that same day, without previous notice to the defendants, Judge Jaranilla proceeded to trial and entered judgment by default sentencing the defendants to pay jointly and severally 20,000 pesos with legal interest and costs. The defendants were notified on January 10, 1934, and on January 11 moved to be relieved from the judgment. On January 25, 1934, before the expiration of forty days from the date they were summoned in Davao, two defendants filed an answer and counterclaim and the others interposed a demurrer. On April 21, 1934, Judge Jaranilla denied the motion to vacate the judgment by default. Reconsideration was denied on May 12, 1934. The defendants excepted and announced an appeal on May 16, 1934, and filed their bill of exceptions on May 24, 1934. On May 17, 1934, without previous notice, Judge Padilla granted a motion for execution that had earlier been denied, and on June 6, 1934, another writ of execution issued in substitution.

Issues

• Whether or not the bill of exceptions filed by the petitioners was filed within the period allowed, so that mandamus lies to compel the judge to act upon and approve it.
• Whether or not a special appearance in which the court's jurisdiction over the person is not expressly impugned, and in which dissolution of an attachment is sought upon a bond, is equivalent to a general appearance.
• Whether or not a defendant who, after entering his appearance, fails to file a demurrer or answer within the reglementary period and is declared in default is entitled to notice of the motion to declare him in default and of the trial upon the merits after default.
• Whether or not the court acts in excess of jurisdiction, or abuses its discretion, in ordering execution of a judgment by default pending appeal from the order denying the motion to annul that judgment, without previous notice and without any special ground.
• Whether or not an order denying a motion for the annulment of a judgment by default is final and appealable.

Applicable Provisions

Section 128 of the Code of Civil Procedure governs the declaration of default and the consequences that follow from it. It provides:

Section 128 of the Code of Civil Procedure governs the default of a defendant who fails to appear or answer within the time fixed by law.

This provision is the basis for the Court's holding that a defendant declared in default is not entitled to notice of the motion for default or of the trial upon the merits.

Section 144 of the Code of Civil Procedure governs execution of judgments pending appeal. It provides:

Section 144 of the Code of Civil Procedure governs the execution of a judgment before the expiration of the time to appeal or during the pendency of an appeal.

This provision is the basis for the Court's holding that execution may not issue pending appeal without notice and without a showing of special grounds.

Section 113 of the Code of Civil Procedure governs relief from a judgment by default. It provides:

Section 113 of the Code of Civil Procedure governs the relief of a defendant from a judgment by default.

This provision is the basis for the Court's holding that an order denying relief from a judgment by default is final and appealable.

Ruling

On the first issue, the Court held that the bill of exceptions was timely. The order denying relief from the judgment by default was final and appealable, so the defendants had thirty days from notice to seek a new trial. Their motion for reconsideration did not suspend that period because it was not based on any ground in Section 145 of Act Number 190. But their exception and notice of appeal, filed twenty-one days after notice, fell within the thirty days and supplied the motion for new trial on the ground that the judgment was against the law, and the bill of exceptions filed eight days later was within the ten-day period. Mandamus therefore lies to compel the judge to act upon it.

On the second issue, the Court held that the special appearance was in fact a general appearance, because the defendants did not expressly impugn the court's jurisdiction over their persons and instead asked for dissolution of the attachment upon a bond.

On the third issue, the Court held that the defendants, having been declared in default for failure to answer, had no right to be notified of the motion for default or of the trial on default. The rule in De Castro versus Director of Lands, that a defendant who has appeared and answered has a right to notice of subsequent proceedings, applies only to a defendant who has appeared and answered; these defendants had not answered.

On the fourth issue, the Court held that the judge acted in excess of jurisdiction in ordering execution pending the perfecting of the appeal, and abused his discretion in ordering execution without previous notice and without any showing of a special reason, in conformity with Section 144. Certiorari was the proper remedy because no other speedy and effective remedy, not even an appeal, could prevent the immediate execution of the judgment sought to be annulled.

On the fifth issue, the Court held that an order denying a motion for the annulment of a judgment by default under Section 113 is final and appealable.

Doctrine

A special appearance in which the court's jurisdiction over the person is not expressly impugned, and in which dissolution of an attachment is sought upon a bond, is equivalent to a general appearance. A defendant who, after entering his appearance, fails to file a demurrer or answer within the reglementary period and is declared in default is not entitled to notice of the motion to declare him in default, nor of the trial upon the merits after default. The right to notice of subsequent proceedings belongs to a defendant who has both appeared and answered. A court that orders execution of a judgment by default while an appeal from the order denying annulment of that judgment is pending acts in excess of jurisdiction, and abuses its discretion if it does so without previous notice and without a special ground. An order denying a motion for the annulment of a judgment by default is final and appealable.

Disposition

Both petitions were granted: the respondent judges were ordered to act upon the bill of exceptions, and the orders of May 17 and June 6, 1934, ordering execution of the judgment by default, were declared null and void, with costs against the respondent Lourdes Catala.

Remember This

The single line worth memorizing: a defendant declared in default is not entitled to notice of the motion for default or of the trial on default, but execution pending appeal without notice and without special grounds is an abuse of discretion correctable by certiorari. Examiners use this case to test the distinction between special and general appearance, the notice rights of a defaulted defendant, and the availability of certiorari to restrain execution pending appeal.