NELSIE B. CAETE et. Al. vs.

GENUINO ICE COMPANY, INC

Facts: Petitioner filed a complaint for cancellation of title to
property covered by several TCTs on the cause of the same are
spurious and fictitious. Further, petitioners filed a second
amended complaint which sought to annul certain TCTs on the
same ground. Respondent filed a motion to dismiss the
complaint however denied. RTC ruled in favor of petitioner.
Respondent appealed to CA, the latter reversed the decision of
RTC on the ground that the 2nd amended complaint failed to
state a cause of action (Not real party in interest). Hence the
appeal.
ISSUE: WON CA erred in ruling in favor of the respondent.
RULE: NO. The basic rules of proper pleading and procedure
require that every pleading shall contain in a methodical and
logical form, a plain, concise and direct statement of the
ultimate facts on which the party pleading relies for his claim
or defense, as the case may be, omitting the statement of mere
evidentiary facts.22 And in all averments of fraud or mistake,
the circumstances constituting fraud or mistake must be stated
with particularity. It is axiomatic that the averments of the
complaint determine the nature of the action, and
consequently, the jurisdiction of the courts. This is because the
complaint must contain a concise statement of the ultimate
facts constituting the plaintiff's cause of action and must
specify the relief sought. No rule is better established than that
which requires the complaint to contain a statement of all the
facts constituting the plaintiff's cause of action. Additionally,
Section 5, Rule 8 of the Rules of Court provides that in all
averments of fraud or mistake, the circumstances constituting
fraud or mistake must be stated with particularity. In the case
at bar, while there are allegations of fraud in the above quoted
complaints, the same are not particular enough to bring the
controversy within the SEC's jurisdiction. The said allegations
are not statements of ultimate facts but are mere conclusions
of law.
A pleading should state the ultimate facts essential to the
rights of action or defense asserted, as distinguished from
mere conclusions of fact, or conclusions of law. General
allegations that a contract is valid or legal, or is just, fair and
reasonable, are mere conclusions of law. Likewise, allegations
that a contract is void, voidable, invalid, illegal, ultra vires, or
against public policy, without stating facts showing its
invalidity, are mere conclusions of law. "Ultimate facts" means
the essential facts constituting the plaintiff's cause of action, or
such facts as are so essential that they cannot be stricken out
without leaving the statement of the cause of action inadequate
LA
MALLORCA,
petitioner,
vs.
HONORABLE COURT OF APPEALS, MARIANO
BELTRAN, ET AL., respondents.
FACTS: Plaintiffs in this case boarded a bus operated by
herein petitioner. While disembarking the said bus on a
station, it suddenly moves and killed the daughter of the
plaintiff. Hence, the plaintiff filed against the petitioner for

breach of contract and damages. RTC ruled in favor of the

plaintiff. Petitioner appealed before the CA but the same was
denied. Petitioner contend that the CA erred in holding it liable
for quasi-delict, considering that respondents complaint was
one for breach of contracteven assuming arguendo that the
contract of carriage has already terminated, herein petitioner
can be held liable for the negligence of its driver, as ruled by
the Court of Appeals, pursuant to Article 2180 of the Civil
Code. Paragraph 7 of the complaint, which reads
That aside from the aforesaid breach of contract, the
death of Raquel Beltran, plaintiffs' daughter, was
caused by the negligence and want of exercise of the
utmost diligence of a very cautious person on the part
of the defendants and their agent, necessary to
transport plaintiffs and their daughter safely as far as
human care and foresight can provide in the
operation of their vehicle.
is clearly an allegation for quasi-delict. The inclusion of this
averment for quasi-delict, while incompatible with the other
claim under the contract of carriage, is permissible under
Section 2 of Rule 8 of the New Rules of Court, which allows a
plaintiff to allege causes of action in the alternative, be they
compatible with each other or not, to the end that the real
matter in controversy may be resolved and determined.
TORIBIO et. al. vs.
THE HON. JUDGE ABDULWAHID A. BIDIN
Facts: Petitioners in this case are successors of interest over
an undivided parcel of land. Dioniso toribio, petitioner,
allegedly sold some part of the said land to herein respondent.
Petitioners then, filed a case against herein private respondents
for recovery of hereditary rights. Respondents in their reply
erected that the sale were evidenced by deeds of sale, xerox
copies of which were appended to and made an integral part of
the respondents' partition agreement between the respondents
and also a xerox copy of the respondents' transfer certificates
of title.
While testifying during the trial, Eusebia Toribio was asked
whether she executed any sale of her share in the parcel of
land in litigation. The counsel for private respondents
objected, raising the proper mode of contesting the
genuineness of an actionable document pursuant to Sections 7
and 8, Rule 8 of the Revised Rules of Court. The trial court
sustained the objection
Petitioner contends that the documents submitted by the
respondents were merely evidentiary in nature, not a cause of
action or defense, the due execution and genuineness of which
they had to prove. They alleged that the subject of litigation
was the hereditary shares of plaintiffs-petitioners, not any
document.
ISSUE: WON Petitioners contention are meritorious.

RULE: NO. The records show that the deeds of sale are
actionable documents. The Rule, however, covers both an
action or a defense based on documents.
The proper procedure was for the petitioners to specifically
deny under oath the genuineness and due execution of the
questioned deeds of sale and to set forth what they claim to be
the facts.
From the foregoing, it is clear that the respondents anchor
their defense on the deeds of sale by virtue of which the
hereditary rights of all the petitioners over Lot 1943-B were
sold, transferred, and conveyed in favor of their brother,
Dionisio Toribio, who in turn sold the same to herein
respondents. The deed of sale executed by the petitioners in
favor of their brother Dionisio is an essential and
indispensable part of their defense to the allegation that the
petitioners had never disposed of their property.
IMPERIAL TEXTILE MILLS, INC., petitioner,
vs.
COURT OF APPEALS and THE INTERNATIONAL
CORPORATE BANK, INC., respondents.
FACTS: Private respondent in this case filed an action for the
collection of a sum of money against herein petitioner
evidence by promissory note before the RTC. While defendant
specifically denied the aforestated promissory note alleged in
the complaint, the answer was not verified. RTC ruled in favor
of the private respondent. CA denied the appeal. Hence the
instant case.
Petitioner contend that The petitioner denied liability and
alleged that one Julio Tan had no authority to negotiate and
obtain a loan on its behalf.
ISSUE: WON the contention of petitioner is meritorious.
RULE: No. No rule is more settled than that in an action based
on a written instrument attached to the complaint, if the
defendant fails to specifically deny under oath the genuineness
and due execution of the instrument, the same is deemed
admitted. 5
Section 7, Rule 8 of the Rules of Court is explicit in that there
are two ways of pleading an actionable document, namely:
(a) by alleging the substance of such written
instrument in the pleading and attaching a
copy thereof to the pleading; and
(b) by copying the instrument in the
pleading.
The complaint in the present case complied with the first
situation under paragraph (a). The complaint alleged the
substance of the promissory note subject of the litigation and a
copy of the promissory note was attached.

There is no question likewise that the petitioner failed to

specifically deny under oath the genuineness and due
execution of the promissory note subject of the complaint. By
its omission, petitioner clearly admitted the genuineness and
due execution of the document and that the party whose
signature appears thereon had indeed signed the same and that
he has the authority to sign the same and that the agreement
between the parties is what was in words and figures in the
document. Defenses which are inconsistent with the due
execution and genuineness of the written instrument are cutoff by such admission.

Hibberd vs. Rohde

Facts:
D.J. McMillian was in the retail liquor business and secured a
stock of merchandise valued at P1,200 from Brand & Hibberd.
Later Brand & Hibberd filed a complaint of estafa against
McMillian. The defendant Rohde was a practicing attorney
and undertook McMillian's defense in the estafa case. Rohde
testified that he was well acquainted with the nature of the
transaction between the firm of Brand & Hibberd and
McMillian.
Later on Rohde agreed to sign the following note if Brand &
Hibberd would withdraw the estafa complaint:
Baguio, Benget, April 27th, 1911
For value received, we the undersigned parties, jointly and
severally agree to pay to the firm of Brand & Hibberd, of the
city of Baguio, P.J., tewelve hundred pesos Philipine currenct
in monthly installments of one hundred pesos per month,
beginning with the first day of June 1911.
W.M.J. Rohde
D.J. McMillian
Rohde did this because he did not want his client to remain in
confinement pending his trial in the Courts of First Instance.
However the CFI found as a fact that the consideration of the
note was the compromise of a public offense. Now because
Rohdes have not entered a verified specific denial of the
genuiness and due execution of the note, the plaintiff claims
that his special defense of illegality of consideration is cut off.
Issue:
Whether Rohde was barred from questioning the legality of
the note due to not having verified specific denial of the
genuiness and due execution of the note.
Held:

By the admission of the genuiness and due execution of an

instrument is meant that the party whose signature it bears
admits that he signed it or that it was signed by another for
him with his authority; that at the time it was signed it was in
words and figures exactly as set out in the pleadings of the
party relying upon it; that the documents was delivered; and
that any formal requisites required by law, such as a seal, an
acknowledgment, or revenue stamp, which it lacks, are waved
by him. Hence such defense as that the signature is a forgery
or that it was unauthorized as in the case of an agent signing
for his principal, or one signing in behalf of a partnership or of
a corporation; or that, in that in the case of the latter, that the
corporation was not authorized under its charted to sign the
instrument; or that the party charged signed the instrument in
some other capacity that that alleged in the pleading setting it
out; or that it was never delviered are cut off by the admission
of its genuiness and due execution.

... where a case has been tried in complete disregard of the rule
and the plaintiff having pleaded a document by copy, presents
oral evidence to prove the due execution of the document as
well as the agent's authority and no objections are made to the
defendant's evidence in refutation, the rule will be considered
waived.

Undoubtedly when a plaintiff produces in court an instrument

corresponding to the one set forth he is exempted from
proving its execution.

Ferrer v. Ericta

To so interpret section 103 of the Code of Civil Procedure,

according to the plaintiff as to prohibit such a defense as
illegality of consideration, which is clearly a defense of new
mattter, would pro tanto repeal the second paragraph of Sec.94
which permits a defendant to answer by A statement of any
new matter constituting a defense or counterclaim.
CENTRAL SURETY and INSURANCE COMPANY,
petitioner,
vs.
C. N. HODGES and THE COURT OF APPEALS,
respondents
FACTS: Respondent in this case filed an action to recover a
sum of money arising from surety bond against herein
petitioner being jointly and severally liable with the private
respondent. Petitioner contend that the same is null and void,
it having been issued by Mrs. Rosita Mesa after her authority
therefor had been withdrawn. Trial ensued and rendered
decision in favor of the respondent. Petitioner filed for MR
and later granted. Respondent appealed before the CA and
ruled in favor of the respondent. Petitioner contends, among
others, CA erred in applying the rule on implied admission by
reason of failure to deny under oath the authenticity of a
pleaded document.
ISSUE: WON Petitioner contentions are meritorious.
RULE: YES. When an action or defense is founded upon a
written instrument, copied in or attached to the corresponding
pleading as provided in the preceding section, the genuineness
and due execution of the instrument shall be deemed admitted
unless the adverse party, under oath, specifically denies them,
and sets forth what he claims to be the facts; but this provision
does not apply when the adverse party does not appear to be a
party to the instrument or when compliance with an order for
an inspection of the original instrument is refused.

In the case at bar, the parties acted in complete disregard of or

wholly overlooked the rule above-quoted. Hodges had neither
objected to the evidence introduced by petitioner herein in
order to prove that Mrs. Mesa had no authority to issue a
surety bond, much less one in excess of P8,000.00, and took
no exception to the admission of said evidence. Hence,
Hodges must be deemed to have waived the benefits of said
rule and petitioner herein cannot be held liable in excess of the
sum of P8,000.00.

Facts:
Mr. And Mrs. Franis Pfleider were the owners or operators of
a Ford pick-up car. At about 5pm of December 31, 1970, their
son, defendant Dennis, who was only 16 at the time, without
proper official authority, drove the ford, without due regard to
traffic rules and regulations, and without taking the necessary
precaution to prevent injury to persons or damage to property.
The pick up car was overturned, causing physical injuries to
plaintiff Annette Ferrer, who was then a passenger, which
injuries paralyzed her and require medical treatment an
confinement at different hospitals for more than two year. As a
result of the physical injuries sustained by P, she suffered
unimaginable physical pain, mental anguish, and her parents
also suffered mental anguish, moral shock, and spent a
considerable sum of money for her treatment.
Complaint was only filed on January 5, 1975
Pretrial (May 12, 1975), only Ferrer and counsel were present.
As such, the Pfleiders were declared in default and the court
rendered judgment against them.
Upon filing a motion for reconsideration, respondent Judge,
without setting aside the order of default, issued an order
absolving defendants from any liability on the grounds that:
Complaint states no cause of action because it does
not allege that Dennis Pfleider was living with his
parents at the time of the vehicular accident.
Considering that under 2180, the father, and in case
of his death or incapacity, the mother, is only
responsible for the damages caused by their minor
children who live in their company
That the defense of prescription is meritorious, since the
complaint was filed more than 4 years after the date of the
accident and the action to recover damages based on quasidelict prescribes in 4 years
o Instant petition for mandamus

Issue/s: WON the defense of prescription had been deemed

waived by PRs failure to allege the same in their answer.

Issue: Whether or not dismissal of original complaint affects

that of the compulsory counter claims?
Ruling:

Held-Ratio:
No. Defense of prescription (DP) not deemed waived.
Where the answer does not take issue with the complaint as to
dates involved in the defendants claim of prescription, his
failure to specifically plead prescription in the answer does not
constitute a waiver of the defense of prescription.
Defense of prescription, even if not raised in a motion to
dismiss or in the answer, is not deemed waived unless such
defense raises issues of fact appearing upon the preceding
pleading.
It is true that the DP can only be considered if it is invoked as
such in the answer of the defendant and that in this particular
instance, no such defense was invoked because the defendants
had been declared in default. But such rule does not obtain
when the evidence shows that the cause of action upon which
plaintiffs complaint us based is already barred by the statute
of limitations.
In the present case, there is no issue of fact involved in
connection with the question of prescription. Action for
damages arising from physical injuries because of a tort must
be filed within four years. The four-year period begins from
the day the quasi-delict is committed or the date of the
accident.
EDGARDO PINGA, Petitioner vs. THE HEIRS OF
GERMAN, SANTIAGO, Respondents
G.R. No. 170354
June 30, 2006
Facts:
The Heirs of Santiago filed an injunction against Pinga
alleging that Pinga had been unlawfully entering the coco
lands of the respondent cutting wood and bamboos and
harvesting the fruits of the coconut trees. As a counterclaim,
Pinga contests the ownership of the lands to which Pinga was
harvesting the fruits. However, due to failures of Heirs of
Santiago to attend the hearings, the court ordered the dismissal
of said case.
Respondents thus filed an MR not to reinstate the case but to
ask for the entire action to be dismissed and not to allow
petitioner to present evidence ex parte.
RTC granted the MR, hence the counterclaim was dismissed.
RTC ruled that compulsory counterclaims cannot be
adjudicated independently of plaintiffs cause of action vis a
vis the dismissal of the complaint carries with it the dismissal
of the counterclaim.
Petitioner then elevates it to the SC by way of Rule 45 on pure
questions of law. (Santiagos motive: They just asked for the
dismissal of their entire case so that their ownership wouldnt
be put in controversy in the counterclaim)

NO the counterclaims, in this case, can stand on its own.

Rule 17 Sec 3 provides: If for any cause, the plaintiff fails to
appear on the date of his presentation of his evidence x x x the
complaint may be dismissed upon motion of the defendant or
upon the courts own motion, without prejudice to the right of
the defendant to prosecute his counterclaim in the same or in a
separate action
The dismissal of the complaint does not carry with the
dismissal of the counterclaim, compulsory or otherwise. In
fact, the dismissal of the complaint is without prejudice to the
right of defendants to prosecute his counterclaim. Section 3
contemplates a dismissal not procured by plaintiff, albeit
justified by causes imputable to him and which, in the present
case, was petitioner's failure to appear at the pre-trial.
This situation is also covered by Section 3, as extended by
judicial interpretation, and is ordered upon motion of
defendant or motu proprio by the court. Here, the issue of
whether defendant has a pending counterclaim, permissive or
compulsory, is not of determinative significance. The
dismissal of plaintiff's complaint is evidently a confirmation of
the failure of evidence to prove his cause of action outlined
therein, hence the dismissal is considered, as a matter of
evidence, an adjudication on the merits.
This does not, however, mean that there is likewise such
absence of evidence to prove defendant's counterclaim
although the same arises out of the subject matter of the
complaint which was merely terminated for lack of proof. To
hold otherwise would not only work injustice to defendant but
would be reading a further provision into Section 3 and
wresting a meaning therefrom although neither exists even by
mere implication.
Thus understood, the complaint can accordingly be dismissed,
but relief can nevertheless be granted as a matter of course to
defendant on his counterclaim as alleged and proved, with or
without any reservation therefor on his part, unless from his
conduct, express or implied, he has virtually consented to the
concomitant dismissal of his counterclaim. The present rule
embodied in Sections 2 and 3 of Rule 17 ordains a more
equitable disposition of the counterclaims by ensuring that any
judgment thereon is based on the merit of the counterclaim
itself and not on the survival of the main complaint.
Certainly, if the counterclaim is palpably without merit or
suffers jurisdictional flaws which stand independent of the
complaint, the trial court is not precluded from dismissing it
under the amended rules, provided that the judgment or order
dismissing the counterclaim is premised on those defects. At
the same time, if the counterclaim is justified, the amended
rules now unequivocally protect such counterclaim from
peremptory dismissal by reason of the dismissal of the
complaint.

GOJO V GOYALA
FACTS
-Appellee Segundo Goyala, with his now deceased wife
Antonina sold to Gojo a 2.5 hectare parcel of agricultural land
for P750 by a Deed of Pacto de Retro Sale, the repurchase to
be made within one year, as stated in the deed. The deed also
indicates that the vendee paid another P100 in addition to the
purchase price. 10 years after the execution of said document,
Gojo filed a case with the CFI against Goyala by way of a
petition for consolidation of ownership of said land. Gojo
alleged that the period for repurchasing had expired and
ownership had become consolidated in him and that for
purposes of recording the consolidation in the Registry of
Property, it was necessary that a judicial order be issued to that
effect.
-Goyala filed an answer to the petition, alleging that they had
obtained a cash loan of P810 from Gojo payable w/in one year
w/o interest and that to guarantee payment, Goyala executed a
mortgage in favor of the petitioner on the parcel of land in
question. Hence, although the deed was executed in the form
of a pacto de retro sale, the true intention of the parties was for
it to be a mere mortgage to secure payment. Goyala further
claimed that he and his wife attempted to pay the debt but
petitioner refused to receive the sum and cancel the mortgage.
By way of counterclaim, Goyala prayed that petitioner receive
the P810 and that the document of mortgage be declared so,
and not a pacto de retro sale. He further prayed for P1800 per
annum until the final termination of the case for the fruits of
said property and in the case that the instrument be deemed a
true pacto de retro sale, that petitioner be ordered to execute a
deed of resale in favor of respondents in accordance with
A1606CC.
-Counsel for Goyala filed a manifestation informing the TC
that the named defendant, Antonina, had died, prompting the
TC to issue an order requiring counsel for the plaintiff to
submit an amended Complaint substituting Antonina with one
of her successors in interest as party defendants. Goyala filed a
motion to dismiss the petition on the ground that
notwithstanding the lapse of 43 days after appellants receipt
of a copy of the said TC order, said appellant failed and
neglected to submit the amended complaint required of him.
Appellant opposed the motion but the TC dismissed the
complaint.
-Appellee filed a motion to declare appellant in default in
respect of said appellees counterclaim, which was granted by
the TC, which further required Goyala to submit his evidence
before the Clerk of Court. TC rendered favorable judgment on
appellees counterclaim, declaring the Deed of Pacto de Retro
Sale an equitable mortgage and ordering Gojo to receive the

P810 and to restore possession to the defendants and allowing

them to redeem the same.
-Appellant appealed to the CA, which upon finding that the
said appeal involves purely questions of law, certified the
same to the SC.
ISSUES
Parties: Re contractual money claims / Dismissal by
claimant / Compulsory counterclaim/ Answer: Defenses
WON TC erred in declaring plaintiff in default with respect to
defendants counterclaim
HELD
YES. The appellant contends that there is no occasion for the
TC to declare him in default in respect of appellees
counterclaim as said counterclaim falls within the category of
compulsory counterclaim which does not call for an
independent answer as the complaint already denies its
material allegations. It is now settled that a plaintiff who fails
or chooses not to answer a compulsory counterclaim may not
be declared in default, principally because the issues raised in
the counterclaim are deemed automatically joined by the
allegations of the complaint.
-While it is true that under Sec. 3 of Rule 17, a complaint may
be dismissed for failure to prosecute if the plaintiff fails to
comply with an order of the court, said provision cannot apply
when the order ignored is a void one, as in this case. (As in
Sec 20 of Rule 3, the death of the defendant in a contractual
money claim does dismiss such action for recovery, but will be
allowed to continue until final judgment is entered. Favorable
judgment obtained by the plaintiff shall be enforced in the
manner provided in these Rules for prosecuting claims against
the estate of a deceased person. In Barrameda vs Barbara, the
SC held that an order to amend the complaint, before the
proper substitution of parties as directed by Sec. 17, Rule 3
(Sec. 16, new law), is void and imposes upon the plaintiff no
duty to comply therewith to the end that an order dismissing
the said complaint, for such non-compliance, would similarly
be void. It was further held in Ferriera vs Gonzales that the
continuance of a proceeding during the pendency of which a
party thereto dies, without such party having been validly
substituted in accordance with the rules, amounts to lack of
jurisdiction.
WHEREFORE, the decision appealed from is set aside

Meliton vs. Court of Appeals

FACTS:
1. Nelia Ziga filed a complaint against Lydia Meliton for
rescission of a contract of lease over a parcel of land with RTC
of Naga City.
2. In her answer, Lydia Meliton denied the material
avernments of the complaint and setting up 3 counterclaims
for the recovery of the value of her demolished kitchenette in
leased land, and for the improvements, and damages.
3. The court dismissed the complaint based on the motion of
Ziga contending that the cause of action had already been
moot and academic by the expiration of the leased contract.
4.Melitons counterclaim s were also dismissed for nonpayment of docket fees. The trial court said that it had not
acquired jurisdiction because of the non-payment of the
docket fees.
5. Spouses Lydia Meliton and Virgilio Meliton filed a
complaint against Ziga for recovery of the same amounts
involved and alleged in their counterclaims in the previous
case and assigned to Branch 27 of the same trial court.
6.Ziga filed a motion to dismiss the complaint on the ground
that the cause of action was barred by a prior judgment in the
previous case. But the court denied her motion to dismiss on
the ground that the dismissal of the Meliton's counterclaims in
the previous case is not an adjudication on the merits because
the court did not acquire jurisdiction over the counterclaims
for failure of Meliton to pay the docket fees, and for this
reason, the said dismissal does not constitute a bar to the filing
of the later complaint. She also filed a motion for
reconsideration but the same was subsequently denied.
7. Aggrieved, Ziga filed a petition for certiorari filed a petition
for certiorari with the SC. Then, the higher court, in its
resolution, referred the case to the Court of Appeals for proper
determination and disposition pursuant to Section 9, paragraph
1, of B.P. Blg. 129.
8. The CA found that Melitons counterclaim The Melitons'
counterclaim against the Ziga is a compulsory counterclaim, it
having arisen out of or being necessarily connected with the
transaction or occurrence subject matter of Zigas complaint.
The failure of the Melitons to seek a reconsideration of the
dismissal of their counterclaim or to take an appeal rendered
the dismissal final; and such dismissal barred the prosecution
of their counterclaim by another action.
9. The Melitons challenged the judgment of the CA and
praying for its annulment.
ISSUES:

1. WON the counterclaims of the petitioners are compulsory in

nature.
2. WON the petioners are barred from asserting their
counterclaims having failed to seek reconsideration or to take
an appeal from the order of dismissal of the same.
RULING:
1. YES. The counterclaims of the petitioners are compulsory
in nature.
Section 4 of Rule 9 of the Rules of Court enumerates the
requisites compulsory counterclaim, to wit;(a) it arises out of,
or is necessarily connected with, the transaction or occurrence
which is the subject matter of the opposing party's claim; (b) it
does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction; and (c)
the court has jurisdiction to entertain the claim.
It has been postulated that while a number of criteria have
been advanced for the determination of whether the
counterclaim is compulsory or permissive, the one compelling
test of compulsoriness is the logical relationship between the
claim alleged in the complaint and that in the counterclaim,
e.i., where conducting separate trials of the respective claims
of the parties would entail a substantial duplication of effort
and time, as where they involve many of the same factual
and/or legal issues.
In the case at bar, all the requisites of a compulsory
counterclaim are present. The counterclaimsare logically
related to the complaint. Private respondent Zigas complaint
was for rescission of the contract of lease due to petitioner
Lydia Meliton's breach of her obligations under the said
contract. On the other hand, petitioner's counterclaims were
for damages for unlawful demolition of the improvements.
Both the claims of petitioners and private respondent arose
from the same contract of lease. To state it diffently, They are
offshoots of the same basic controversy between the parties,
e.i., the right of either to the possession of the property.
2. NO. The petitioners are not barred from asserting claims in
a separate suit.
While it is true,as stated in Section 4, Rule 9 of the Rules of
Court, that a counterclaim not set up shall be barred if it arises
out of or is necessarily connected with the transaction or
occurrence that is the subject matter of the opposing party's
claim and does not require for its adjudication the presence of
third parties of whom the court cannot acquire jurisdiction,
cannot be applied to the case at bar.
Firstly, where a compulsory counterclaim is made the subject
of a separate suit, it may be abated upon a plea of auter action
pendant or litis pendentia and/or dismissed on the ground

of res judicata, depending on the stage or status of the other

suit. The action in the case at bar cannot be dismissed either
on the ground of litis pendentia since there is no other pending
action between the same parties and for the same cause, nor on
the ground of res judicata. Also, the dismissal of the
counterclaims of the petitioners because of failure to pay
docket fees does not constitute does not constitute res
judicata, there having been no consideration and adjudication
of the case on the merits.
Secondly, a reading of the order of dismissal will show that
the trial court, in dismissing the complaint of private
respondent, did not intend to prejudice the claims of
petitioners by barring the subsequent judicial enforcement
thereof.
The failure of petitioners to seek reconsideration of or to take
an appeal from the order of dismissal of the counterclaim
should not prejudice their right to file their claims in a separate
action because they were thereby made to understand and
believe that their counterclaims were merely permissive and
could be the subject of a separate and independent action. Had
the trial court correctly specified that petitioners'
counterclaims were compulsory, petitioners could have
objected to the dismissal sought by private respondent on the
ground that said counterclaims could not remain pending for
independent adjudication.
Korea Technologies Co., Ltd. Vs. Hon. Albert A. Lerma,
et al.
FACTS: Petitioner KOGIES and respondent PGSMC
executed a Contract whereby KOGIES would set up an LPG
Cylinder Manufacturing Plant for respondent. Respondent
unilaterally cancelled the contract on the ground that petitioner
had altered the quantity and lowered the quality of the
machineries and equipment it delivered. Petitioner opposed
informing the latter that PGSMC could not unilaterally rescind
their contract nor dismantle and transfer the machineries and
equipment on mere imagined violations by petitioner.
Petitioner then filed a Complaint for Specific Performance
against respondent before the RTC. Respondent filed its
Answer with Compulsory Counterclaim asserting that it had
the full right to dismantle and transfer the machineries and
equipment because it had paid for them in full as stipulated in
the contract. KOGIES filed a motion to dismiss respondents
counterclaims arguing that when PGSMC filed the
counterclaims, it should have paid docket fees and filed a
certificate of non-forum shopping, and that its failure to do so
was a fatal defect. The RTC dismissed the petitioners motion
to dismiss respondents counterclaims as these counterclaims
fell within the requisites of compulsory counterclaims.
ISSUE: WON payment of docket fees and certificate of nonforum shopping were required in the respondents Answer
with counterclaim?

HELD: NO. The counterclaims of PGSMC were incorporated

in its Answer with Compulsory Counterclaim in accordance
with Section 8 of Rule 11, 1997 Revised Rules of Civil
Procedure, the rule that was effective at the time the Answer
with Counterclaim was filed. Sec. 8 on existing counterclaim
or cross-claim states, A compulsory counterclaim or a crossclaim that a defending party has at the time he files his answer
shall be contained therein. As to the failure to submit a
certificate of forum shopping, PGSMCs Answer is not an
initiatory pleading which requires a certification against forum
shopping under Sec. 524 of Rule 7, 1997 Revised Rules of
Civil Procedure. It is a responsive pleading, hence, the courts a
quo did not commit reversible error in denying KOGIES
motion to dismiss PGSMCs compulsory counterclaims. At the
time PGSMC filed its Answer incorporating its counterclaims
against KOGIES, it was not liable to pay filing fees for said
counterclaims being compulsory in nature. We stress,
however, that effective August 16, 2004 under Sec. 7, Rule
141, as amended by A.M. No. 04-2-04-SC, docket fees are
now required to be paid in compulsory counterclaim or crossclaims.
CAVILI VS FLORENDO
FACTS:

Private respondents filed a civil case with the CFI of

Negros Oriental against petitioners for Partition,
Accounting, and Damages. The case was raffled to
Branch I presided over by Judge Augusto S. Villarinsummons was issued to the 3 petitioners, all at Bayawan
Negros Oriental which was the address indicated in the
complaint.
After trying to effect service, the process server went back
to the court with the following return of service to Quirino
and Primitivo Cavili not contacted, according to Perfecta
Cavili, subject persons is staying in Kabangkalan, Negros
Occidental
Atty. Jose P. Alamino filed a motion for extension to
answer in behalf of the defendants, manifesting the
representation of his client Perfecta Cavili that she will
inform her brothers Primitivo and Quirino about the case.
Defendants, failed to file their answer within the request
period and upon motion of the plaintiffs, the defendants
were declared in default on October 5, 1979.
Records however show that a Manifestation was filed by
Atty. Jose P. Alamino informing the court that since he
never met Primitivo and Quirino Cavili, who are residents
of another province, he desisted from further appearing in
the case in their behalf.
December 1979 - Atty. Alamillo filed a motion for new
trial in behalf of the defendants on grounds of lack of
jurisdiction and, with a meritorious defense that the
properties sought to be partitioned have already been the
subject of a written partition agreement between the direct
heirs of the late Bernardo Cavili who are the predecessors
of the parties in this case.
July 1981 after a re-raffle of the case, Judge Cipriano
Vamenta whom the case had been assigned, directed the
execution of the October 5, 1979 (declaration of default)
decision without qualification ruling that the petitioners'
remedy should have been appeal rather than new trial.
Their motion for reconsideration having been denied. The

defendants, now petitioners, brought the case to this Court

through a petition for certiorari.

Oct. 1982 Petition for certionari was granted

At the pre-trial & trial - defendants, (now petitioners),

presented Perfecta Cavili dela Cruz as their 1st witness.
The respondents moved for her disqualification as a
witness on the ground that having been declared in
default, Perfecta Cavili has lost her standing in court and
she cannot be allowed to participate in all premise the
even as a witness. The court, through the respondent
judge, sustained the respondents' contention and
disqualified her from testifying.
ISSUE/RATIO:
1. WHETHER OR NOT PERFECTA CAVILI IS
DISQUALIFIED AS A WITNESS NO. Section 18 of Rule
130 . Witnesses; their qualifications. Except as provided in
the next succeeding section, all persons who, having organs of
sense, can perceive, and perceiving, can make known their
perception to others, may be witnesses. Neither parties nor
other persons interested in the outcome of a case shall be
excluded; nor those who have been convicted of crime; nor
any person on account of his opinion on matters of religious
belief.
There is no provision of the Rules disqualifying parties
declared in default from taking the witness stand for nondisqualified parties. The law does not provide default as an
exception. The specific enumeration of disqualified witnesses
excludes the operation of causes of disability other than those
mentioned in the Rules.
General Rule: where there are express exceptions, these
comprise the only limitations on the operation of a statute and
no other exception will be implied. The Rules should not be
interpreted to include an exception not embodied therein.
2. WHETHER OR NOT PETITIONERS (PRIMITIVO &
QUIRINO) ARE IN DEFAULT AND HAVE LOST
STANDING IN COURT.
NO. Section 2 of Rule 18 - Effect of order of default.
Except as provided in section 9 of Rule 13, a party declared in
default shall not be entitled to notice of subsequent
proceedings nor to take part in the trial.They advance the
argument that to allow Perfecta Cavili to stand as witness
would be to permit a party in default "to take part in the trial."
An explanation of the Rule is in order.
Loss of standing in court is the consequence of an order of
default. Thus, a party declared in default is considered out of
court and cannot appear therein, adduce evidence, and be
heard and for that reason he is not entitled to notice.
However, "loss of pending" must be understood to mean only
the forfeiture of one's rights as a party litigant, contestant or
legal adversary. A party in default loses his right to present his
defense, control the proceedings, and examine or crossexamine witnesses. He has no right to expect that his

pleadings would be acted upon by the court nor may he object

to or refute evidence or motions filed against him. There is
nothing in the rule, however, which contemplates a
disqualification to be a witness or a opponent in a case.
Default does not make him an incompetent.
A party in default may thus be cited as a witness by his codefendants who have the standing and the right to present
evidence which the former may provide. The incidental
benefit giving the party in default the opportunity to present
evidence which may eventually redound to his advantage or
bring about a desired result, through his co-defendants, is of
minor consequence.
Of greater concern or importance in allowing the presence of
Perfecta Cavili as a witness in the case at bar, is the
preservation of the right of petitioners Quirino and Primitivo
Cavili to secure the attendance of witnesses and the production
of evidence in their behalf. To reject Perfecta Cavili's
presentation of testimonial evidence would be to treat
Primitivo and Quirino, as if they too were in default.
There is no reason why the latter should also be made to bear
the consequences of Perfecta's omission. Moreover, we cannot
deprive Quirino and Primitivo of the only instrument of proof
available to them, as Perfecta alone has been in possession and
administration of the claim.
Petition is hereby GRANTED.
SPOUSES OCTAVIO and EPIFANIA
LORBES, petitioners,
vs.
COURT OF APPEALS, RICARDO DELOS REYES and
JOSEFINA CRUZ, respondents.
FACTS: Petitioners in this case obtained a loan amounting to
P150,000 from private respondents and secured by a mortgage
of their property. A year later, the amount owed by the
petitioners ballooned to P500,000, fearing foreclosure of the
property they asked help from herein respondents to redeem
the property. It was agreed that the petitioner will execute a
deed of sale in favor of the respondent in order to discharge
the said mortgage. However, when the petitioners notified the
respondents that they are ready to redeem the property was
rejected by the latter. Hence, petitioner filed a complaint for
reformation of instrument before the RTC, alleging among
others, that the deed of sale did not reflect the true intention of
the parties, and that the transaction was not an absolute sale
but an equitable mortgage. Respondents failed to file an
answer within the reglamentary period hence declared default.
Trial ensued, in favor of the petitioners. Respondents filed a
motion to lift order of default and to strike out evidence
presented ex parte, which the court denied. Respondents
appealed before the CA, the latter ruled in favor of the
respondents on the ground that respondents were denied due
process by the refusal of the trial court to lift the order of
default against them. Hence this case.
ISSUE: WON respondent court erred in ruling that by
declaring private respondents in default they were denied due
process of law.

RULE: YES. Well-settled is the rule that courts should be

liberal in setting aside orders of default for judgments of
default are frowned upon, unless in cases where it clearly
appears that the reopening of the case is intended for
delay.8 The issuance of orders of default should be the
exception rather than the rule, to be allowed only in clear
cases of obstinate refusal by the defendant to comply with the
orders of the trial court.9
Under the factual milieu of this case, the RTC was indeed
remiss in denying private respondents motion to lift the order
of default and to strike out the evidence presented by
petitioners ex parte, especially considering that an answer was
filed, though out of time. We thus sustain the holding of the
Court of Appeals that the default order of the RTC was
immoderate and in violation of private respondents due
process rights. However, we do not think that the violation
was of a degree as to justify a remand of the proceedings to
the trial court, first, because such relief was not prayed for by
private respondents, and second, because the affirmative
defenses and evidence that private respondents would have
presented before the RTC were capably ventilated before
respondent court, and were taken into account by the latter in
reviewing the correctness of the evaluation of petitioners
evidence by the RTC and ultimately, in reversing the decision
of the RTC. This is evident from the discussions in the
decision of the Court of Appeals, which cited with approval a
number of private respondents arguments and evidence,
including the documents annexed to their opposition to the
issuance of a writ of preliminary injunction filed with the
RTC.10 To emphasize, the reversal of respondent court was not
simply on due process grounds but on the merits, going into
the issue of whether the transaction was one of equitable
mortgage or of sale, and so we find that we can properly take
cognizance of the substantive issue in this case, while of
course bearing in mind the inordinate manner by which the
RTC issued its default order.
GARCIA V MATHIS
FACTS: Petitioner in this case sued herein respondent when
he was allegedly dismissed on 1956 for alleged bribery and
collusion. Respondent filed a motion to dismiss on the ground
of jurisdiction. However, the RTC dismissed the case on the
ground of prescription since the action only take place on
1977. A lapse of more than 21 years.
ISSUE: WON the RTC erred in dismissing the case on the
ground of prescription although the same was not raised by the
defendant.
RULE: t is true that an action will not be held to have
prescribed if prescription is not expressly invoked. However
there are exceptions to this rule and one of them is when the
plaintiff's own allegations in his complaint show clearly that
the action has prescribed. (Philippine National Bank vs.
Pacific Commission House, G.R. No. L-22675, March 28,
1969, 27 SCRA 766). In this case the complaint shows clearly
that the plaintiff's action had prescribed for he alleged that he
was removed on August 23, 1956 (par. 5) but the case was
filed only on November 18, 1977, after a lapse of more than

21 years. Prescinding, therefore, the defense of jurisdiction

which is apparently meritorious, the complaint was properly
dismissed.
PONCIANO V PARENTELA
FACTS: private respondent filed an action for a sum of money
against herein petitioner. Petitioner then, filed their answer
with compulsory claim that he has already paid the private
respondent.. However such claim was not admitted by the trial
court for it violates A.C. 04-94 that it requires certification of
non-forum shopping. ("the complaint and other initiatory
pleadings referred to and subject of this Circular are the
original civil complaint, counterclaim, cross-claim, third
(fourth, etc.) party complaint, or complaint-in-intervention,
petition, or application wherein a party asserts his claim or
relief.)Appeal to the SC, dismissed, hence filed again for the
second time to the court a quo an answer with amended
compulsory claim. But the same was yet denied. Petitioners
assert that they should be permitted to re-file their compulsory
counterclaim provided that they comply with such circular.
ISSUE: WON the amended counter claim shall be admitted.
RULE: YES. A compulsory counterclaim is any claim for
money or other relief which a defending party may have
against an opposing party, which at the time of suit arises out
of, or is necessarily connected with, the same transaction or
occurrence that is the subject matter of plaintiff's complaint. It
is compulsory in the sense that if it is within the jurisdiction of
the court, and does not require for its adjudication the presence
of third parties over whom the court cannot acquire
jurisdiction, it must be set up therein, and will be barred in the
future if not set up. 9
In the case at bar, there is no doubt that the counterclaims
pleaded by petitioners in their answers are compulsory in
nature. The filing of a separate action by petitioners would
only result in the presentation of the same evidence as in Civil
Case No. TM-601. Proceeding from our ruling in Santo Tomas
University Hospital, petitioners need not file a certification of
non-forum shopping since their claims are not initiatory in
character, and therefore, are not covered by the provisions of
Administrative Circular No. 04-94.

LIAM LAW V. SAWMILL

FACTS: Defendants in this case obtained a loan from herein
plaintiff on the amount of P10,000. The parties executed
another loan document but the obligation was increased by
P6,000. Defendants defaulted in payment. Hence the plaintiff
filed an action for sum of money. TC ruled in favor of the
plaintiff. Defendants in their appeal allege that the sum of
P6,000 constituted usurious interest, . They insist the claim of
usury should have been deemed admitted by plaintiff as it was
"not denied specifically and under oath.
ISSUE: WON the defendants contention is meritorious.

RULE: NO. Section 9 of the Usury Law (Act 2655) provided:

SEC. 9. The person or corporation sued shall file its answer in
writing under oath to any complaint brought or filed against
said person or corporation before a competent court to recover
the money or other personal or real property, seeds or
agricultural products, charged or received in violation of the
provisions of this Act. The lack of taking an oath to an answer
to a complaint will mean the admission of the facts contained
in the latter.
The foregoing provision envisages a complaint filed against an
entity which has committed usury, for the recovery of the
usurious interest paid. In that case, if the entity sued shall not
file its answer under oath denying the allegation of usury, the
defendant shall be deemed to have admitted the usury. The
provision does not apply to a case, as in the present, where it is
the defendant, not the plaintiff, who is alleging usury
GAJUDO VS TRADERS ROYAL BANK

FACTS: Petitioner obtained a loan from the respondent

secured by a real estate mortgage. Petitioner defaulted in
payment, hence the mortgaged property was subjected for
foreclosure with an agreement of buy back with the petitioner.
A fire gutted the Q.C hall. Upon discovery, the mortgaged
property was sold to private defendants who was impleaded by
the petitioner in the case. The petitioner filed a motion to
declare the respondent in default thereunder alleging that no
answer has been filed despite the service of summons on it.
Hence, the TC declared the respondents in default. MR was
filed but also denied. Hence, the case was elevated by the
respondents before the CA. In the appellate court, the private
defendants filed a motion to discharge them as parties since
they already entered into a compromise agreement with the
petitioner this was granted by the appellate court. Hence, the
respondent bank contended that the Partial Decision had been
novated by the Compromise Agreement, whose effect of res
judicata had rendered that Decision functus officio. CA find it
meritorious.
ISSUE: WON the Respondent Court of Appeals erred in
failing to apply the provisions of Section 3, Rule 9 of the 1997
Rules of Civil Procedure[and in applying instead] the rule on
preponderance of evidence under Section 1, Rule 133 of the
Rules of Court.
No. Being declared in default does not constitute a waiver of
rights except that of being heard and of presenting evidence in
the trial court. x x x.
"In other words, a defaulted defendant is not actually thrown
out of court. While in a sense it may be said that by defaulting
he leaves himself at the mercy of the court, the rules see to it
that any judgment against him must be in accordance with law.
The evidence to support the plaintiffs cause is, of course,
presented in his absence, but the court is not supposed to
admit that which is basically incompetent. Although the
defendant would not be in a position to object, elementary
justice requires that only legal evidence should be considered

against him. If the evidence presented should not be sufficient

to justify a judgment for the plaintiff, the complaint must be
dismissed. And if an unfavorable judgment should be
justifiable, it cannot exceed in amount or be different in kind
from what is prayed for in the complaint."25
In sum, while petitioners were allowed to present evidence ex
parte under Section 3 of Rule 9, they were not excused from
establishing their claims for damages by the required quantum
of proof under Section 1 of Rule 133. Stated differently, any
advantage they may have gained from the ex parte
presentation of evidence does not lower the degree of proof
required. Clearly then, there is no incompatibility between the
two rules.
The procedure which the trial court is directed to take when a
defendant fails to file an answer. According to this provision,
the court "shall proceed to render judgment granting the
claimant such relief as his pleading may warrant," subject to
the courts discretion on whether to require the presentation of
evidence ex parte(Section 3 of Rule 9 governs ). the extent
of the relief that may be granted can only be as much as has
been alleged and proved21 with preponderant evidence
required under Section 1 of Rule 133.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-63397 April 9, 1985
ALEX
LINA,
petitioner,
vs.
THE
HONORABLE
COURT
OF
APPEALS;
HONORABLE GREGORIO PINEDA, as Presiding Judge
of the Court of First Instance of Rizal, Branch XXI at
Pasig; and NORTHERN MOTORS, INC., respondents.
Olalia, Cabrera, Aguila & Bautista Law Office for private
respondent.

RELOVA, J.:
Appeal by certiorari from the decision of the then Court of
Appeals in CA-G.R. No. 14943-SP, dated November 29, 1982,
affirming (a) the order of default issued by respondent judge
in a collection suit instituted by private respondent Northern
Motors, Inc. against petitioner; and, (b) the judgment of
default in the same case.
On March 31, 1982, private respondent Northern Motors, Inc.
filed with the then Court of First Instance of Rizal (Pasig) a
case for sum of money with damages; docketed as Civil Case
No. 4520.

On April 22, 1982, petitioner Alex Lina was served with

summons together with a copy of the complaint.
On May 8, 1982, when no answer or motion to dismiss was
filed by petitioner, private respondent Northern Motors, Inc.
filed a motion to declare him in default. The motion was set
for hearing on May 21, 1982.
On May 19, 1982, petitioner filed his opposition to the
aforesaid motion inviting attention to the fact that he had filed
a motion for extension of time to file responsive pleading
within the reglementary period. On May 26, 1982, respondent
judge issued an order declaring defendant (herein petitioner)
in default and allowing plaintiff (herein private respondent) to
adduce its evidence ex parte.
On May 27, 1982, defendant (petitioner) filed his answer to
the complaint.
On July 28, 1982, respondent court rendered its decision in
favor of plaintiff (herein private respondent).
On August 11, 1982, petitioner filed a motion to set aside
decision dated July 28, 1982.
On August 25, 1982, respondent judge issued an order denying
petitioner's motion to set aside decision.
On October 6, 1982, petitioner filed with the then Court of
Appeals a petition for certiorari/prohibition, which was denied
in its decision dated November 29, 1982 on the ground that
... when the private respondent filed on May 8, 1982, its
motion to declare defendant in default because the last day for
him to file an answer under the summons was May 7, 1982,
the petitioner has not filed an answer. So, there was actually a
valid ground for the motion, and the respondent court could
have validly declared the defendant in default, especially
because, at that time it was still unaware of the fact that on
May 5, 1982, the herein petitioner had sent to it, by registered
mail, a motion for extension of twenty days from May 7,
1982, within which to file an answer, and which motion was
received by the respondent court only on May 19, 1982.
But, then the respondent court did not immediately act on the
motion to declare defendant in default, so that by May 19,
1982, the herein petitioner was still able to file an opposition
to the motion asking him to be declared in default. The
principal ground of the opposition of the petitioner was the
fact that he had sent, by registered mail, a motion for
extension of time to file responsive pleading, and he even
attached to his opposition a copy of the motion for extension.
On May 26, 1982, the respondent court resolved the motion to
declare defendant in default by granting the motion. Now
since on May 26, 1982, the motion for extension of time to file
responsive pleading was already before the court, as it
received the same on May 19, 1982, and aside from this, a
copy thereof was attached to the petitioner's opposition to the
private respondent's motion to declare defendant in default, it

is conclusively assumed that the respondent court, in resolving

the motion to declare defendant in default, had taken into
consideration the motion for extension, especially because the
ground of petitioner's opposition to the motion to declare
defendant in default is the fact that he had asked for extension
of time to file responsive pleading. Now, then, when the
respondent court declared the defendant in default, it is a clear
and inevitable implication, without the need of an express
statement to that effect, although it would have been more
desirable, that the motion for extension of nine to file
responsive pleading was denied. In other words, the Order of
May 26, 1982 had the necessary and logical implication that
the petitioner's opposition to the motion to declare defendant
in default, based upon the ground that he had asked for
extension of time to file responsive pleading, was disapproved
or denied by the court.(pp. 22-23, Rollo)
Coming to this Court on a petition for certiorari/prohibition,
petitioner raised the following issues, to wit:
1. Whether or not the order of default was issued in grave
abuse of discretion amounting to lack of jurisdiction.
2. Whether or not certiorari is proper in a case where judgment
by default was rendered without an order of default being
furnished petitioner and where meritorious defenses exist,
which are for the trial court to evaluate and which evaluation
was not done in this case.
We are in agreement with respondent appellate court's
affirmance of the questioned order of the trial court. The
granting of additional time within which to file an answer to a
complaint is a matter largely addressed to the sound discretion
of the trial court. "While trial courts are persuaded, as a matter
of policy, to adopt a basically flexible attitude in favor of the
defendant in this area of our adjective law, the defense should
never be lulled into the belief that whenever trial courts refuse
a second request for extension to file an answer, the appellate
courts will grant relief (Naga Development Corporation vs.
Court of Appeals, 41 SCRA 105)."
In the case at bar, it was on May 5, 1982 or two (2) days
before the expiration of the fifteen-day reglementary period
given to defendant to file his responsive pleading when
petitioner moved for an extension of twenty (20) days from
May 7 within which to file his answer. Upon motion of private
respondent and over the objection of petitioner, respondent
judge issued an order declaring petitioner in default.
Under the Rules of Court, the remedies available to a
defendant in the Court of First Instance (now Regional Trial
Court) are:
a) The defendant in default may, at any time after discovery
thereof and before judgment, file a motion, under oath, to set
aside the order of default on the ground that his failure to
answer was due to fraud, accident, mistake or excusable
neglect, and that he has a meritorious defense; (Sec. 3, Rule
18)

b) If the judgment has already been rendered when the

defendant discovered the default, but before the same has
become final and executory, he may file a motion for new trial
under Section 1 (a) of Rule 37;
c) If the defendant discovered the default after the judgment
has become final and executory, he may file a petition for
relief under Section 2 of Rule 38; and
d) He may also appeal from the judgment rendered against
him as contrary to the evidence or to the law, even if no
petition to set aside the order of default has been presented by
him. (Sec. 2, Rule 41)
Petitioner in this case did not avail himself of any of the above
remedies. Instead, he went to the appellate court on
certiorari/prohibition. On this point, respondent appellate court
aptly said:
... where the judgment rendered by the respondent court is the
one sought to be annulled, a petition for relief, under Rule 38
of the Revised Rules of Court, which is a remedy in the
ordinary course of law, could have been just as plain, adequate
and speedy as certiorari. Such a remedy could have been
granted by the respondent court. And if the respondent court
still denies the petition, then petitioner can take an appeal on
the order denying the petition, and in the course of such appeal
petitioner can also assail the judgment an the merits upon the
ground that it is supported by the evidence, or it is contrary to
law. (p. 25, Roll ACCORDINGLY, the petition is
DISMISSED. Without costs.