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Case Title:

GONZALO MAKABENTA, petitioner, vs. JUAN L. BOCAR, Judge of First Instance of Leyte, and FILOMENO R.
NEGADO, respondents.

Citation: 95 Phil. 634

Less...

Docket Number: No. L-6450

Counsel: Alberto T. Aguja, Mateo Canonoy

Ponente/Other Opinion: REYES

Dispositive Portion: Wherefore, the petition for certiorari is granted, the order of the court a quo
dismissing petitioner's appeal is annulled, and the respondent judge is hereby directed to reinstate said
appeal and proceed with the trial of the case on the merits. Costs to be taxed against the respondent
Filomeno R. Negado.

Citation Ref: 42 Phil. 557 |90 Phil. 644 |

[No. L-6450. August 11, 1954]


GONZALO MAKABENTA, petitioner, vs.JUAN L. BOCAR, Judge of First Instance
of Leyte, and FILOMENO R. NEGADO, respondents.

1. 1.PLEADING AND PRACTICE; JUDGMENT BY DEFAULT; FAILURE OF


DEFENDANT TO APPEAR, SOME GROUND FOR DEFAULT IN INFERIOR
COURTS; FILING OF ANSWER WITHIN THE REGLEMENTARY PERIOD
EQUIVALENT TO APPEARANCE.—The sole ground ex or def ault in the inferior
court is failure of the defendant to appear before it. Although the defendant has
failed to appear during the trial of his case in the Justice of the Peace Court, yet if
he has filed his answer to the complaint within the prescribed period, he is deemed
to have put in his appearance and submitted to its jurisdiction. Hence, he was not,
and should not have been declared, in default.

_______________

* 93 Phil. 68.
635

VOL. 95, AUGUST 11, 1954 6


35
Makabenta vs. Bocar, etc. and Negado
1. 2.ID.; ID.; ID.; ID.; COURT MAY PROCEED WITH TRIAL IN THE ABSENCE OF
DEFENDANT; JUDGMENT OF THE MERITS, NOT BY DEFAULT; JUDGMENT
APPEALABLE.—While it was discretionary for the court to proceed with the trial
of the case in the absence of defendant or his counsel, and render judgment on the
basis of the evidence presented by the plaintiff, such judgment was not one by
default, and defendant could, under the law, appeal to the Court of First Instance.

1. 3.CERTIORARI IN THE NATURE OF MANDAMUS, NOT BARRED, ALTHOUGH


ORDER COMPLAINED OF is APPEALABLE.—A petition for certiorari to annul
the order of dismissal of the appeal in such case is in the nature of a petition for
mandamus to order the Court of First Instance to proceed with the hearing of the
case, and it is not barred by the ex act that the order complained of was appealable
(Quizan vs.Arellano, 90 Phil., 644).

ORIGINAL ACTION in the Supreme Court. Certiorari.


The facts are stated in the opinion of the Court.
Alberto T. Aguja for petitioner.
Mateo Canonoy for respondents.

REYES, J. B. L., J.:

On September 30, 1950, Filomeno R. Negadofiled a complaint in the Justice of the


Peace Court of Carigara, Leyte, against Gonzalo Makabenta for the recovery of a
sum of money. Within the prescribed period, the defendant
Gonzalo Makabenta filed his answer with counterclaim. After issues had been
joined, the case was set for trial on September 18, 1951. At the trial, defendant
failed to appear; plaintiff moved that the former be declared in default, and
accordingly, the Justice of the Peace Court declared him in default and ordered the
plaintiff to present his evidence. Judgment was rendered for the plaintiff on
November 24, 1951, copy of which defendant Makabenta received on December 8,
1951, and it was only then that he learned for the first time that he was declared in
default and that judgment by default had been taken against him. Whereupon,
defendant Gonzalo Makabenta appealed to the Court of First Instance of Leyte
(Civil Case No. 1453), where both parties filed their respective
636
636 PHILIPPINE REPORTS ANNOTATED
Makabenta vs. Bocar, etc. and Negado
pleadings. When the case was ready for trial, the plaintiffappellee Filomeno
R. Negado filed on July 20, 1952 a motion for the dismissal of the appeal on the
ground that the appellant had been declared in default in the Justice of the Peace
Court and had, therefore, no standing in court. The Court of First Instance
considered the motion well-taken and dismissed the appeal, holding
that Makabenta had no right to appeal unless the order declaring him in default is
first set aside. A motion for the reconsideration of the order of dismissal was denied,
and defendant-appellant Gonzalo Makabenta came to this court with a petition ex
or certiorari, asking that after due hearing, the order of the respondent Judge
dismissing his appeal be annulled, and the case set for trial on the merits.
The petition must be granted. The order of default taken against the petitioner
Gonzalo Makabenta in the Justice of the Peace Court of Carigara, Leyte is clearly
illegal and without effect; for although petitioner failed to appear during the trial of
the case therein, he filed his answer to the complaint, and as we have consistently
held, the sole ground for default in the inferior courts is failure to appear
(Veluz vs. Justice of the Peace of Sariaya, 42 Phil., 557; Quizan vs. Arellano, 90
Phil., 644, Carballo vs. Hon. Demetrio B. Encarnacion, et al, 92 Phil., 974). By filing
his answer in the Justice of the Peace Court, petitioner put in his apperance and
submitted to its jurisdiction; hence, he was not, and should not have been declared,
in default. While it was discretionary for the court to proceed with the trial of the
case in the absence of petitioner or his counsel, and render judgment on the basis of
the evidence presented by the plaintiff, such judgment was not by default, and
petitioner could, under the law, appeal, as he in fact did appeal, to the Court of First
Instance (Carballo vs. Hon. Demetrio B. Encarnacion, supra).Consequently, in
dismissing petitioner's appeal on the ground that he had no standing in court unless
the order of default is first set aside, the respond-
637
VOL. 95, AUGUST 18, 1954 637
Del Rosario vs. Nava, et al.
ent Court committed a grave abuse of discretion amounting to lack of jurisdiction.
This petition for certiorari to annul the order of dismissal of the appeal is in the
nature of a petition for mandamus to order the Court of First Instance to proceed
with the hearing of the case, and it is not barred by the fact that the order
complained of was appealable (Quizan vs. Arellano, Supra).
Wherefore, the petition for certiorari is granted, the order of the court a
quo dismissing petitioner's appeal is annulled, and the respondent judge is hereby
directed to reinstate said appeal and proceed with the trial of the case on the
merits. Costs to be taxed against the respondent Filomeno R. Negado.
Parás, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista
Angelo, Labrador and Concepción, JJ., concur.

Petition granted.

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