Appeal from the order of the Court of First Instance of Iloilo denying appellant’s motion to set aside the order of default.

Cadastral proceedings were opened for the Municipality of Lambunao, Iloilo, in the Court of First Instance of Iloilo and on January 18, 1962, said court, through Judge Nañawa, issued an order of general default. On March 21, 1962, herein claimants heirs of Juan Gonzales, through Conrada Gonzales Lira, filed a motion to lift the order of default with respect to Lot No. 3170, to wit:jgc:chanrobles.com.ph

"1. That the said claimant Conrada G. Lira is representing herein the heirs of Juan Gonzales in Lot No. 3170, Lambunao Cadastre.

"2. That the heirs of Juan Gonzales are the only claimants on record in the Bureau of Lands of the above-mentioned Lot No. 3170.

"3. That said lot is uncontested, the heirs of Juan Gonzales being the only claimants on record.

"4. That not any of the heirs of Juan Gonzales has received any sketch card from the government surveyor regarding said Lot No. 3170.

"5. That said claimant Conrada G. Lira has not filed any answer because she has no card and she believed in good faith that the land covered by said Lot No. 3170 is included among the sketch cards which she received and filed.

"6. That said Lot No. 3170 has been in actual physical possession of the heirs of Juan Gonzales and their predecessors from time immemorial.

"WHEREFORE, foregoing premises considered, it is hereby prayed that this Honorable Court order the lifting of the default order in the instant case as regards Lot No. 3170."cralaw virtua1aw library

On March 27, 1962, the trial court, through Justice of the Peace Felipe L. Vacante of Lambunao (designated to hear cadastral cases) rendered a decision adjudicating Lot No. 3170 to Hilarion Castigador married to Jesusa Losañez.

On April 6, 1962, the trial court issued an order denying the motion of claimant Lira to lift the order of default, of this tenor:jgc:chanrobles.com.ph

"On March 30, 1962, claimant Conrada G. Lira filed a motion praying for the lifting of the previous order of general default stating further that there are no other claimants on record.

"Records show that this lot was heard on March 12, 1962 and a decision thereto rendered on March 27, 1962 in favor of the only claimant Hilarion Castigador.

"Considering the status of the case at this juncture, a motion to lift order of default unaccompanied by other prober remedies, may land nowhere."cralaw virtua1aw library

"In view of the foregoing, this Court cannot give due course to the aforesaid motion, without prejudice to the proper remedy or remedies available in the premises."cralaw virtua1aw library

On April 11, 1962, the herein claimants heirs of Juan Gonzales filed a motion to set aside the decision of March 27, 1962, attaching thereto an affidavit of merit.

On May 28, 1962, the trial court denied said motion in an order which reads:jgc:chanrobles.com.ph

"This Court finds no basis to set aside its judgment dated March 27, 1962, the default order dated January 18, 1962 having not been lifted.

"In view hereof, the motion to set aside the judgment dated April 11, 1962 is denied."cralaw virtua1aw library

Hence, this appeal.

Appellants claim that the trial court erred in not setting aside the order of and judgment by default and in not granting a new trial.

The claim is meritorious. It is not disputed that after the trial court had issued a general order of default on January 18, 1962, herein appellants on March 21, 1962 rendered judgment adjudicating the lot in question (Lot No. 3170) to Castigador. Again, on April 11, 1962, appellants filed a motion to set aside said decision, attaching thereto an affidavit of merit, stating the reasons relied upon for the reopening of the case. Despite said motion, the court denied it.

Not that the motion (dated April 11, 1962) to set aside the judgment of March 27, 1962 alleges not only excusable negligence or mistake on appellants part, namely, that they failed to file their answer over Lot No. 3170 because they did not receive a sketch card from the government surveyor the lot, but is accompanied by an affidavit of merit alleging with particularly said excusable neglect. Furthermore, appellants also interposed a meritorious defense or claim not only in said motion, but also in the affidavit of merit, stating:jgc:chanrobles.com.ph

"2. That in spite of the fact that during the survey, the said lot is listed as claimed by the heirs of Juan Gonzales and so listed also in the cadastral plan and in the numerical and alphabetical list of claimants in the Bureau of Lands, yet neither I nor any of my co- heirs Jose, Preciosa, Aurora, Celerina, Loreto, Purificacion and Elvira were given personal notice of the hearing of this lot, for which reason, we were not able to file hearing of this lot, which reason, we were not able to file an answer to the same in due time which at most constitute excusable negligence or mistake.

"3. That we have a meritorious claim over said lot as in fact the same is actually possessed by us and we have been in possession of the same together with our predecessor, Juan Gonzales for more than thirty (30) years which possession has been continuous, adverse, and in concept of owner, evidenced by our physical possession of the same together with our paying the land taxes thereof, declaring it in the name of our predecessor, Juan Gonzales and getting the products therefrom for said period."cralaw virtua1aw library

The court below should have, therefore, granted new trial of the case, it appearing that the provisions of Sections 1 and 2, Rule 37 of the Rules of Court were duly complied with. For refusing to reopen the case, the trial court gravely abused its discretion.

WHEREFORE, the order complained of are hereby set aside and the case is remanded to the trial court of further proceedings. No costs.

Concepcion, C.J., J.B.L. Reyes, Dizon, Regala, Makalintal, J.P. Bengzon, Zaldivar and Sanchez, JJ., concur.