1. TRIAL; ORDER OF DEFAULT; REQUEST FOR HEARING MADE BEFORE RENDITION OF JUDGMENT. — Where on the date set by the Justice of the Peace Court for the hearing of the case, defendant appeared and requested that the hearing be deferred to another date which was granted, but on the date newly set he failed to appear for which reason he was declared in default, and barely 1 hour and 15 minutes thereafter he showed up and requested that he be given an opportunity to be heard, the court, in declaring defendant in default and in deciding the case on the merits without giving him a chance to be heard, abused its discretion. Fairness and justice demand that a hearing be held considering that when defendant’s request was made the court had not yet rendered its decision on the merits (Section 14, Rule 4, Rules of Court). Under the circumstances the petition for certiorari filed by defendant was the proper remedy.

On April 15, 1958, Cornelio O. Tan filed an action against Guillermo Comeda for recovery of a sum of money before the justice of the Peace Court of Lopez Jaena, Misamis Occidental. Summons was issued requiring Comeda to appear before said court on April 28, 1958. On said date, Comeda appeared and requested the court for time to file his answer and there being no objection thereto the hearing was reset on May 5, 1958. On this date, Comeda having failed to appear, the justice of the peace court declared him in default and received plaintiff’s evidence.

Barely 1 hour and 15 minutes after his declaration of default, Comeda appeared and presented his written answer asking at the same time that he be given a new trial, to which the court merely stated that the request will be considered. However, on May 12, 1958, Comeda received a copy of the decision on the merits, whereupon he filed a motion for new trial which was forthwith denied. His motion for reconsideration having also been denied and believing that the justice of the peace court committed a grave abuse of discretion in depriving him of his right to be heard, Comeda filed a petition for certiorari with the Court of First Instance of Misamis Occidental seeking to annul not only the order declaring him in default but also the decision on the merits.

Instead of filing an answer, respondent Tan moved to dismiss the petition based on the ground that the relief prayed for cannot be granted by certiorari but by appeal, and finding the motion well- taken, the court a quo dismissed the petition. Comeda interposed the present appeal.

The appeal is well-taken. It appears that on the date set by the Justice of the Peace Court of Lopez Jaena for the hearing of this case, defendant Guillermo Comeda appeared and requested that the hearing be deferred to another date which was granted, but on the date newly set he failed to appear for which reason he was declared in default. However, barely 1 hour and 15 minutes after his declaration of default, he showed up and requested that he be given an opportunity to be heard. This plea however was disregarded and the court decided the case on the merits.

We believe that the justice of the peace court abused its discretion not only in declaring Comeda in default because he actually appeared on the date originally set for hearing but also because on the second hearing he only was late for barely one hour and immediately requested that he be given an opportunity to present his evidence. Fairness and justice demand that such hearing be given Comeda considering that when the request was made the court had not yet rendered its decision on the merits (Section 14, Rule 4, Rules of Court). In the circumstances, the step he took for the redress of his grievance is justified.

The case of Carballo v. Encarnacion, Et Al., G.R. No. L-5675, April 27, 1953, is in point. This Court said:jgc:chanrobles.com.ph

"We agree that decision by default rendered by an inferior court is not appealable (Lim Toco v. Go Fay, 45 O.G. No. 8, p. 3350). The question now is whether defendant (now petition Carballo) defaulted in the municipal court of Manila. True, he filed no answer, but his counsel filed a written appearance. In addition, said counsel filed a motion or manifestation asking for postponement of the hearing on the ground that he was ill. In the case of Flores v. Zurbito, 37 Phil. 746, this Court held that an appearance in whatever form without expressly objecting to the jurisdiction of the court over the person, is a submission to the jurisdiction of the court over the person. It is, therefore, clear that petitioner Carballo made an appearance in the municipal court. Could he then be declared in default just because he filed no answer? The answer must be in the negative. In the case of Quisan v. Arellano, G.R. No. L- 4461, December 28, 1951, the Supreme Court said that in the justice of the peace court failure to appear, not failure to answer is the sole ground for default. What really happened in the municipal court was that the defendant though he filed no answer to the complaint, nevertheless, he made his appearance, and in writing at that, but because of his failure and that of his counsel to appear on the date of the trial, a hearing ex-parte was held and judgment was rendered thereafter. The judgment, therefore, was not by default. So defendant Antonio Carballo had a right to appeal as in fact he appealed, and the Court of First Instance should not have declared the decision appealed from final and executory under the theory that it was not appealable.

"The present petition is granted and the respondent judge is hereby directed to proceed with the trial of the case. Respondent Mariano Ang will pay the costs."cralaw virtua1aw library

WHEREFORE, the order appealed from is set aside. The case is remanded to the court a quo for further proceedings. Costs against Appellee Cornelio O. Tan.

Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.