G.R. No. L-7887 - JANUARY 1913 - PHILIPPINE JURISPRUDENCE CASE NUMBERCASE TITLE G.R. No. L-7887January 31, 1913 Inchausti & Co. vs. Benito de Leon G.R. No. L-8404January 29, 1913 Agustin J. de Montilla vs. La Coporacion de PP. Agustinos Calzados G.R. No. L-8187January 29, 1913 United States vs. Panglima Indanan G.R. No. L-7832January 29, 1913 Florentina Ancajas vs. Dionisio Jakosalem, Sheriff et al. G.R. No. L-6996January 29, 1913 Municipality of Luzuriaga vs. Director of Lands, et al. G.R. No. L-7206January 27, 1913 Sixto Pantoja vs. Claro Palencia G.R. No. L-8142January 25, 1913 United States vs. Enrique Clemente G.R. No. L-7671January 25, 1913 Juana Villanueva, et al vs. Hugo Chavez G.R. No. L-7830January 24, 1913 United States vs. Gregorio Abendan G.R. No. L-7318January 24, 1913 Uy Kai Hu vs. H.B. McCoy G.R. No. L-7298January 24, 1913 Francisca Lim Cumpao, et al vs. Honorata Rodriguez, et al. G.R. No. L-6672January 24, 1913 Severino P. Cid, et al vs. Abraham Peralta, et al. G.R. No. L-8447January 22, 1913 Rafael Reyes vs. Manuel V. Ciria, et al. G.R. No. L-7054January 20, 1913 Municipality of Hinunangan vs. Director of Lands G.R. No. L-8252January 18, 1913 Adriano Trono Felipe, et al vs. Director of Prisons G.R. No. L-7332January 18, 1913 Trinidad Bautista vs. Acisclo Jimenez G.R. No. L-7725January 17, 1913 in re: Poter Hamilton G.R. No. L-7301January 17, 1913 Julian Enriquez vs. Isabelo Olaguer G.R. No. L-7065January 17, 1913 Government of the Philippine Islands, et al vs. Herbert D. Gale, et al. G.R. No. L-7802January 16, 1913 United States vs. Andres Jayme G.R. No. L-7071January 15, 1913 Victorino Lim Teco vs. Insular Collector of Customs G.R. No. L-7870January 10, 1913 United States vs. Felipe Bañagale G.R. No. L-7308January 9, 1913 Rafael S. Molina vs. Enrique F. Somes, et al. G.R. No. L-1179January 8, 1913 in re: Mario Guariña for Admission to the Bar. G.R. No. L-7038January 7, 1913 United States vs. Antonio Parrone G.R. No. L-7685January 2, 1913 Francisco Pascua vs. Crispulo Sideco G.R. No. L-7447January 2, 1913 United States vs. Nicasio Capule The Lawphil Project - Arellano Law Foundation, Inc. Inchausti & Co. vs. Benito de Leon Agustin J. de Montilla vs. La Coporacion de PP. Agustinos Calzados United States vs. Panglima Indanan Florentina Ancajas vs. Dionisio Jakosalem, Sheriff et al. Municipality of Luzuriaga vs. Director of Lands, et al. Sixto Pantoja vs. Claro Palencia United States vs. Enrique Clemente Juana Villanueva, et al vs. Hugo Chavez United States vs. Gregorio Abendan Uy Kai Hu vs. H.B. McCoy Francisca Lim Cumpao, et al vs. Honorata Rodriguez, et al. Severino P. Cid, et al vs. Abraham Peralta, et al. Rafael Reyes vs. Manuel V. Ciria, et al. Municipality of Hinunangan vs. Director of Lands Adriano Trono Felipe, et al vs. Director of Prisons Trinidad Bautista vs. Acisclo Jimenez in re: Poter Hamilton Julian Enriquez vs. Isabelo Olaguer Government of the Philippine Islands, et al vs. Herbert D. Gale, et al. United States vs. Andres Jayme Victorino Lim Teco vs. Insular Collector of Customs United States vs. Felipe Bañagale Rafael S. Molina vs. Enrique F. Somes, et al. in re: Mario Guariña for Admission to the Bar. United States vs. Antonio Parrone Francisco Pascua vs. Crispulo Sideco United States vs. Nicasio Capule The Lawphil Project - Arellano Law Foundation, Inc.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7887 January 31, 1913
INCHAUSTI & CO.,plaintiff-appellee,
vs.
BENITO DE LEON,defendant-appellant.
Federico Olbes, for appellant.
Haussermann, Cohn and Fisher, for appellee.
TRENT,J.:
This is a suit for the foreclosure of a mortgage on real estate in the Province of Sorsogon. The defendant appeared and demurred to the complaint. The demurrer was overruled, the defendant failed to answer within the time specified by the rules of the court, and was, on motion, declared in default. Upon the evidence presented by the plaintiff after the entry of the default, judgment was rendered decreeing a foreclosure of the mortgage in the event of the failure of the defendant to satisfy the judgment before the first day of the next succeeding term of the court. This judgment is dated March 15, 1911. On April 6, the defendant appeared by the counsel and excepted to the decision of the court, and moved for a new trial. On the 5th of June the motion for a new trial was denied. The defendant then presented his bill of exceptions.
It is contented on behalf of the appellant that the court below erred in ordering judgment by default (a) because it was not stated in the order overruling the demurrer that the defendant would be in default in the event of his failure to answer within the period prescribed by the rules of the court; and (b) because no notice was given the defendant of plaintiff's motion for default judgment.
In support of the first point, counsel cites Wardvs.Ward (59 Cal., 139), a case to the effect that where it is not stated in the summons that judgment will be given in default if defendant fails to appear within the prescribed time, no judgement by default can be taken. The validity of orders overruling demurrers was in no way involved in that case and for this reason it is obvious that the doctrine therein announced is not applicable to the case at bar. If thesummonsin the case under consideration had failed to contain a notice that unless the defendant appeared and answered, the plaintiff would take judgment by default, the result might have been different; as section 392 of Act No. 190 provides that the summons must contain:
3. A notice that unless the defendant so appears and answers, plaintiff will take judgment by default, and demand from the court the relief applied for in the complaint.
Rule 9 of the Courts of First Instance, and which is applicable to the question under consideration, provides:
When a demurrer to the complaint is overruled the defendant shall answer within five days after the service on him of written notice of the order which notice the plaintiff shall give.
Rules of court promulgated by authority of law and not in conflict with law have the force and effect of law. The law requires that summons must contain the notice as provided in the above section. No provisions of law, no rule of court, or approved practice requires such a notice to be inserted in the order overruling a demurrer. Such being the case, the appellant's first alleged error is not well taken.
With reference to the second alleged error, it is sufficient to say that this court has held that a defendant whose demurrer to the complaint has been overruled and who fails to answer within the time prescribed by the rules of the court is not entitled to a notice of the motion to declare him in default. (Duranvs.Arboleda, 20 Phil. Rep., 253.) For the foregoing reasons the judgment appealed from is affirmed, with costs against the appellant.
Arellano, C.J., Torres, Johnson , and Moreland, JJ.,concur.