G.R. No.

87917 August 7, 1990

SPS. JUAN B. DULOS and MARIA C. DULOS petitioners,
vs.
COUR O! APP"ALS, SPS. MARIANO NOCOM and ANACOR"A NOCOM and SPS.
LOR"N#O ONG "NG C$ONG and CARM"N SOCO, and D"PU% S$"RI!! $ONORIO
SANOS o& t'( O&&)*( o& t'( S'(+)&& o& Ma,at), M(t+o Man)-a, respondents.
Santiago, Acosta, Arevalo & Associates for petitioners.
Melecio Virgilio Emata Law Office collaborating counsel for petitioners.
Arturo S. Santos for private respondents.

CRU#, J.:
By this special civil action of certiorari and prohibition, the spouses Juan and Maria Dulos
would have this Court nullify the resolution of the respondent court dated April 27, 1!,
denyin" their application for a writ of preli#inary in$unction a"ainst the enforce#ent of the
decision of the Metropolitan %rial Court of &as 'i(as dated )ctober *, 1!!.
)n June 2*, 1!!, the spouses Dulos were sued for forcible entry by the spouses Mariano
and Anacoreta +oco#, private respondents herein, in the Metropolitan %rial Court of &as
'i(as. %he case was set for a pre,trial conference on Au"ust 1!, 1!!, with due notice to both
parties.
-arlier, on Au"ust 1., 1!!, the petitioners had filed a co#plaint a"ainst the private
respondents for annul#ent of sale, reconveyance of title, and various other reliefs plus a writ
of preli#inary in$unction. %his was doc/eted as Civil Case +o. !!1..0 in the 1e"ional %rial
Court of Ma/ati. )n Au"ust 17, 1!!, the petitioners filed a #otion for the suspension of the
proceedin"s in the forcible entry case on the "round that there was a pre$udicial 2uestion of
ownership involved in the annul#ent case. %he petitioners3 counsel, Atty. 'edro 4. 1avelo, set
Au"ust 1!, 1!!, for the hearin" of the #otion at the pre,trial conference scheduled on the
sa#e date.
+either petitioners nor their counsel appeared on that date. 5owever, one Ananita 1ectra
#anifested at the hearin" that she was duly authori6ed by virtue of a special power of
attorney to represent petitioner Juan Dulos, her brother, who was then confined at the Manila
Doctors 5ospital after havin" under"one a fe#ur operation. %he petitioners were nonetheless
declared in default. Jud"e Alfredo 1. -nri2ue6 denied the #otion for the suspension of the
proceedin"s, holdin" that the issue of ownership was not a pre$udicial 2uestion in the
e$ect#ent case. %he evidence of the private respondents was subse2uently received in the
absence of the petitioners.
)n )ctober *, 1!!, $ud"#ent was rendered in favor of the private respondents, the
dispositive portion readin" as follows7
85-1-9)1-, the Court finds the eviction of defendants to be warranted and accordin"ly
hereby renders $ud"#ent in favor of the plaintiffs, orderin" defendants as follows7
1. and all persons clai#in" ri"ht under the# to vacate the portion of plaintiffs3 property covered
by %C% +o. 4,::;1: situated at Bo. <bayo &as 'i(as MM, and to re#ove structures and
i#prove#ents thereon and to restore to plaintiff peaceful possession thereof=
2. orderin" defendants to pay the su# of '2;,;;;.;; as reasonable co#pensation for the use of
property be"innin" April 1!! and every #onth thereafter until defendants shall have co#pletely
vacated the property=
0. orderin" defendants to pay the plaintiffs the su# of '1;,;;;.;;= and
*. orderin" defendants to pay the cost of the suit.
%he petitioners received a copy of this decision on )ctober 1;, 1!!. %hey filed a #otion for
reconsideration on )ctober 1!, 1!!, which was denied in an order dated +ove#ber 17,
1!!.
<nstead of ta/in" an appeal, the petitioners filed on Dece#ber , 1!!, a special civil action
for certiorari and prohibition with preli#inary in$unction with the 1e"ional %rial Court of Ma/ati
prayin" for the nullification of the said $ud"#ent and the earlier order declarin" the# in
default.
)n Dece#ber 1, 1!!, while that case was pendin", the private respondents #oved for the
i##ediate e>ecution of the $ud"#ent of the Metropolitan %rial Court on the "round that no
appeal had been filed with the proper court and the decision had beco#e final and e>ecutory.
%he #otion was "ranted, and the writ of e>ecution was issued on 9ebruary !, 1!.
)n 9ebruary 1., 1!, the petition for certiorari, etc. was dis#issed on the "rounds that7 ?1@
the petitioners had been properly declared in default for failure to appear at the scheduled
hearin"= ?2@ the filin" of the action for nullification in the 1e"ional %rial Court was not a valid
reason for the suspension of the hearin" in the Metropolitan %rial Court= ?0@ the #otion for
reconsideration was fatally defective because it was not verified and acco#panied by an
affidavit of #erit= and ?*@ the "rant of the #otion for suspension or postpone#ent was
discretionary upon the court.
1
)n March 2;, 1!, on #otion of the private respondents, the Metropolitan %rial Court issued
a writ of de#olition.
%he petitioners then elevated the #atter to the Court of Appeals in a petition for certiorari and
prohibition with preli#inary in$unction. <n its order dated April 27, 1!, the respondent court
denied the application for preli#inary in$unction,
.
pro#ptin" the petitioners to co#e to this
Court on certiorari.
'rayin" for a nullification of the said order and the proceedin"s held before the M%C, they
ar"ue that7
?a@ %he pre,trial conference of Au"ust 1!, 1!!, was the first hearin" set for the purpose and
with the appearance of the representative in the person of Mrs. 1ectra, duly ar#ed with a
notari6ed hospital certification attestin" to the confine#ent of petitioner Juan Dulos and a special
power,of,attorney authori6in" her to appear as representative of petitioner Juan Dulos durin" the
conference, Jud"e -nri2ue6 should not have outri"htly declared petitioners in default.
?b@ An affidavit of #erit under the circu#stances was no lon"er necessary since the default order
was anchored upon petitioners3 failure to appear durin" the pre,trial ?citing the case of &ucero v.
Dacayo, 22 4C1A 1;;*@.
?c@ 'etitioners have been in actual physical possession of the sub$ect land fro# the ti#e the said
property was ac2uired in 17 by petitioner Maria Dulos fro# her co,heirs by virtue of the sale of
hereditary ri"hts until the sa#e was assi"ned to Dulos 1ealty in 170 lon" before the e>ecution
of the si#ulated sale in favor of private respondents in 177.
?d@ As the Au"ust 1!, 1!! )rder was issued without or in e>cess of $urisdiction, the sa#e is null
and void and all proceedin"s subse2uent thereto were also a nullity, there is no $ud"#ent to
spea/ of, hence there is nothin" to appeal.
9or their part, the private respondents assert that7 ?1@ 1ectra did not file her special power of
attorney with the Metropolitan %rial Court= ?2@ the petitioners did not do anythin" to have the
order of default set aside= ?0@ the deed of sale sou"ht to be nullified was e>ecuted way bac/
on July 1, 177, and the co#plaint for nullification was filed only eleven years and nine
#onths later= ?*@ petitioner Maria Dulos could have appeared at the pre,trial hearin" but failed
to do so without any e>planation whatsoever= and ?:@ certiorari cannot be a substitute for the
lost ri"ht of appeal.
%he Court "ave due course to the petition and re2uired the parties to sub#it si#ultaneous
#e#oranda. After considerin" the issues and their ar"u#ents in their respective #e#oranda,
we find the petition to be without #erit.
9irst of all, it is clear that a case #ay be dis#issed for failure of a party to appear at the pre,
trial conference, as authori6ed by 1ule 2;, 4ection 2, of the 1ules of Court, thus7
4ec. 2. A party who fails to appear at a pre,trial conference #ay be non,suited or considered as
in default.
1ectra did appear at the scheduled hearin" but did not present to the court her power of
attorney to represent Juan Dulos or even the #edical certificate of his operation. <n their
#e#orandu#, the petitioners say Maria Dulos did not appear for herself because the
spouses Dulos had lon" been separated. 5owever, the Dulos lawyer did not show up either
althou"h it was he who had as/ed that his #otion to suspend proceedin"s be set on the date
of the pre,trial conference. %he aver#ent that Atty. 1avelo was already 70 years old at the
ti#e is a fli#sy e>cuse for carelessness nor do we accept the e>planation that he was then
attendin" to several detention prisoners. At any rate, the petitioners could have availed
the#selves of other counsel if their counsel then was unable to represent the# at the
conference.
4econdly, the denial of the application for preli#inary in$unction was $ustified because the
petitioners did not e#ploy the proper re#edy prescribed by the 1ules of Court. As
enu#erated in Lina v. Court of Appeals,
/
the re#edies available to a defendant declared in
default are7
1. %he defendant in default #ay, at any ti#e after discovery thereof and before $ud"#ent, file
a #otion under oath to set aside the order of default on the "round that was failure to answer
or appear on the date set for pre,trial was due to fraud, accident, #ista/e or e>cusable
ne"li"ence, and that he has a #eritorious defense=
2. <f the $ud"#ent has already been rendered when the defendant discovered the default, but
before the sa#e has beco#e final and e>ecutory, he #ay file a petition for new trial under
4ec. 1?a@ of 1ule 07=
0. <f the defendant discovered the default after the $ud"#ent has beco#e final and e>ecutory,
he #ay file a petition for relief under 4ec. 2, 1ule 0!= and
*. 5e #ay also appeal fro# the $ud"#ent rendered a"ainst hi# as contrary to the evidence or
the law, even if no petition to set aside the order of default has been presented by hi#.
%he petitioners did not avail the#selves of any of the above re#edies. <nstead, after ta/in" no
action whatsoever for all of sit! da!s, they filed a #otion for reconsideration of the decision
dated )ctober *, 1!!, and, when this was denied, went to the 1e"ional %rial Court on
certiorari and prohibition. As we held in the &ina case7
... where the $ud"#ent rendered by the respondent court is the one sou"ht to be annulled, a
petition for relief, under 1ule 0!, which is a re#edy in the ordinary course of law, could have
been $ust as plain, ade2uate and speedy as certiorari ...
+o less si"nificant is the fact that the $ud"#ent of the #etropolitan trial court had already
beco#e final and e>ecutory because of the petitioners3 failure to appeal therefro# on ti#e.
%hey were served with notice of the $ud"#ent on )ctober 1;, 1!!, and filed a #otion for
reconsideration on )ctober 1!, 1!!, which was denied on +ove#ber 17, 1!!. %hey
therefore had until Dece#ber 1;, 1!!, within which to perfect their appeal. %hey did not.
<nstead, they filed the petition for certiorari in the 1e"ional %rial Court, which correctly
dis#issed it. <t is settled that the special civil action of certiorari is not and cannot be #ade a
substitute for an appeal, where the latter re#edy is available,
0
as in this case. %he filin" of
the petition for certiorari did not therefore suspend the period for appeal or prevent the
$ud"#ent fro# beco#in" final.
<t is also noteworthy that the petitioners #ade no #ove to set aside the order of default
rendered by the Metropolitan %rial Court althou"h they were aware of it. 1ectra was present
when the said order was dictated in open court on Au"ust 1!, 1!!. <t is reasonable to
assu#e she i##ediately infor#ed her brother, who had sent her there precisely to represent
hi# at the proceedin"s. -ven so, the petitioners did nothin" until the $ud"#ent by default was
rendered a"ainst the# by Jud"e -nri2ue6 on )ctober *, 1!!. All of fort!"si da!s had
elapsed fro# the order of default when the $ud"#ent of default was rendered.
%he petitioners now contend that they could not have ta/en any action prior to the rendition of
the $ud"#ent because they had never been furnis#ed with copies of the order declarin" the#
in default. %his is unacceptable. <t is obvious the petitioners have failed to ta/e into account
the followin" pertinent provisions of the 1ules of Court concernin" notices in case a party is
declared in default7
1ule 1!, 4ec. 2. Effect of order of default. $ ->cept as provided in 4ection of 1ule 10, a party
declared in default shall not be entitled to notice of subse2uent proceedin"s, nor to ta/e part in
the trial.
1ule 10, 4ec. . Service upon part! in default. A +o service of papers other than substantially
a#ended or supple#ental pleadin"s and final orders or $ud"#ents shall be necessary on a party
in default unless he files a #otion to set aside the order of default in which event he shall be
entitled to notice of all further processin"s re"ardless of whether the order of default is set aside
or not.
1ule 1!, 4ec. 0. %elief from order of default. A A party declared in default #ay at any ti#e after
discovery thereof and before $ud"#ent file a #otion under oath to set aside the order of default
upon proper showin" that his failure to answer was due to fraud, accident, #ista/e or e>cusable
ne"lect and that he has a #eritorious defense. <n such case the order of default #ay be set
aside on such ter#s and conditions as the $ud"e #ay i#pose in the interest of $ustice.
%he ter# used in the last 2uoted section is discover!, not notice. And this is so because the
defendant declared in default is not entitled to Bnotice of subse2uent proceedin"sB under the
precedin" rules.
<n Su&ara v. Caluag,
1
this Court held that a #otion for reconsideration of a $ud"#ent of
default #ay be considered a petition for relief under 4ection 2 of 1ule 0! only if the followin"
re2uisites are present7 ?1@ it #ust be verified= ?2@ it #ust be filed within .; days fro# the ti#e
petitioner learns of the decision but not #ore than . #onths fro# entry thereof, and ?0@ in
case of failure to file an answer, the #otion #ust be acco#panied by affidavits of #erit
showin" the fraud, accident, #ista/e and e>cusable ne"li"ence relied upon.
8e held in 'ap v. (a)ada
2
that a #otion for reconsideration #ay be considered a #otion for
new trial under 4ec. 2, 1ule 07, if it is acco#panied by an affidavit of #erit. 4ince petitioners
assert that their ri"hts were i#paired because they were prevented fro# presentin" evidence
of their defenses, it was a fatal o#ission for the# not to attach to their #otion an affidavit of
#erit, i.e., an affidavit showin" the facts constitutin" the valid defense which the #ovant #ay
prove in case a new trial is "ranted. %he re2uire#ent of such an affidavit is essential because
a new trial would be only a waste of the ti#e of the court if the co#plaint turns out to be
"roundless or the defense ineffective.
%he #otion for reconsideration filed by the petitioners on )ctober 1!, 1!!, with the
Metropolitan %rial Court, and which is Anne> B5B of the petition, was not verified. <t does not
appear also that it was acco#panied by an affidavit of #erit as re2uired by the 1ules.
8hile this Court did declare in Continental Leaf (obacco v. *ntermediate Appellate Court,
7
Bthat $ud"#ents by default are not loo/ed upon with favor,B the default $ud"#ent in that case
was set aside because there was e>cusable ne"lect. Besides, the petitioners had a
#eritorious defense which $ustified a rela>ation of the procedural rules to allow full hearin" on
the substantive issues raised. 4uch circu#stances have not been clearly shown in the case
before us.
A little #ore fa#iliarity with our rules of procedure could have avoided the predica#ent in
which the petitioners now find the#selves. Cnfortunately, the Court cannot "ive the# any
relief. %hey have not $ustified a rela>ation of the said rules. 8hile it is true that a liti"ation is
not a "a#e of technicalities, it is e2ually true that every case #ust be prosecuted in
accordance with the prescribed procedure, to insure an orderly ad#inistration of $ustice. <t is
this sy#biosis between for# and substance that "uarantees that desirable result.
85-1-9)1-, the petition is D<4M<44-D, with costs a"ainst the petitioner. <t is so ordered.
+arvasa ,C#airman-, .anca!co, .ri)o A/uino and Medialdea, 00., concur.