EN BANC
[G.R. No. L-12732. April 29, 1959. ]
PABLO SOTTO, Plaintiff-Appellant, v. ABELARDO VALENZUELA, Defendant-Appellee.
Adolfo A Scheerer for Appellant.
Bonifacio Q. Manansala for Appellee.
SYLLABUS
1. PLEADING AND PRACTICE; TRIAL THIRD PARTY COMPLAINT; HEARING CAN NOT BE HELD BEFORE ANSWER IS FILED. — Where a third party complaint had been filed, the hearing of the case cannot be held unless the answer thereto has been filed and if the Court dismisses the case due to the failure of the parties to appear in the hearing set before the answer is filed such dismissal is ill advised.
D E C I S I O N
LABRADOR, J.:
Appeal from an order of dismissal issued by the Court of First Instance of Rizal, Hon. Nicasio Yatco presiding, and a subsequent order denying the motion for its (the first order) reconsideration.
Complaint in this case was filed on May 16, 1956 and the answer on June 1, 1956. On June 11, 1956, plaintiff moved the court to set the case for hearing and on the following day, June 12, 1956, the case was set for hearing on July 5, 1956. On June 25, defendant filed a motion for leave to file a third-party complaint, which third-party complaint accompanied the motion. No objection was registered against this petition, and the court on June 30, 1956 granted the petition and admitted the third-party complaint.
When on July 5, 1956, the case was called for hearing as previously ordered by the court, none of the parties appeared; whereupon, the court dismissed it, without costs. The following day plaintiff filed a motion for the reconsideration of the order on the ground that his failure to appear was caused by his belief that inasmuch as the third-party complaint had been admitted on June 30, and the summons to the third-party defendant had not yet been issued, the hearing could not be held. The court denied this motion; hence, this appeal.
Even if the summons to the third-party defendant has actually been issued, it does not appear that he has already filed his answer as he has fifteen days to do so from the time of the receipts of summons.
It is apparent that in view of the admission of the third-party complaint on June 30, 1956 and the fact that the defendant thereto must be summoned and be allowed to answer, the case was not yet ready for trial at the time previously set for hearing, i. e., July 5, 1956. If the court was not aware of the existence of the third-party complaint on July 5, 1956, its attention was called to it by the motion for reconsideration.
The order of dismissal was therefore ill-advised and it is hereby set aside, and the case returned to the court a quo for further proceedings. Without costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo and Concepcion, JJ., concur.
Complaint in this case was filed on May 16, 1956 and the answer on June 1, 1956. On June 11, 1956, plaintiff moved the court to set the case for hearing and on the following day, June 12, 1956, the case was set for hearing on July 5, 1956. On June 25, defendant filed a motion for leave to file a third-party complaint, which third-party complaint accompanied the motion. No objection was registered against this petition, and the court on June 30, 1956 granted the petition and admitted the third-party complaint.
When on July 5, 1956, the case was called for hearing as previously ordered by the court, none of the parties appeared; whereupon, the court dismissed it, without costs. The following day plaintiff filed a motion for the reconsideration of the order on the ground that his failure to appear was caused by his belief that inasmuch as the third-party complaint had been admitted on June 30, and the summons to the third-party defendant had not yet been issued, the hearing could not be held. The court denied this motion; hence, this appeal.
Even if the summons to the third-party defendant has actually been issued, it does not appear that he has already filed his answer as he has fifteen days to do so from the time of the receipts of summons.
It is apparent that in view of the admission of the third-party complaint on June 30, 1956 and the fact that the defendant thereto must be summoned and be allowed to answer, the case was not yet ready for trial at the time previously set for hearing, i. e., July 5, 1956. If the court was not aware of the existence of the third-party complaint on July 5, 1956, its attention was called to it by the motion for reconsideration.
The order of dismissal was therefore ill-advised and it is hereby set aside, and the case returned to the court a quo for further proceedings. Without costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo and Concepcion, JJ., concur.
