Carballo vs Encarnacion
92 Phil 974 [GR No. L-5675 April 27, 1953]
Facts: In the Municipal Court of Manila, Mariano Ang filed a complaint (civil case No. 8769) against Antonio Carballo for the collection of P1,860.84. The corresponding summons was served upon defendant Carballo for appearance and trial on October 10, 1949. As counsel for him Atty. J. Gonzales entered his written appearance on October 12, 1949. On the same day said counsel filed a motion for postponement of the hearing for one month on the ground that he was sick, attaching a medical certificate to prove his illness. Hearing was postponed to October 14, 1949 at which time defendant asked for another postponement on the ground that his counsel was still sick. The hearing was again postponed to October 24, 1949. Inn said last two postponement of the hearing, the municipal court warned the defendant that the hearing could not wait until his counsel recovered from his illness, and that if said counsel could not attend the trial he should obtain the services of another lawyer. On the day set for hearing, namely, October 24, 1949, neither defendant nor his counsel appeared although there was a written manifestation of defendant’s counsel requesting further postponement because he was still sick. At the request of plaintiff’s counsel, defendant was declared in default.
Issue: Whether or not the declaration of default is proper.
Held: No. We agree that a decision by default rendered by an inferior court is not appealable. The question now is whether defendant (now petitioner 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 vs. 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 Quinzan vs. Arellano,2 G.R. No. 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 tho 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.