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[ G.R. No. 143129. July 3, 2000]
JOCELYN TAYAG vs. SPS. ORLANDO & NANCY LEGARDA
FIRST DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated JUL 3 2000.
G.R. No. 143129 (Jocelyn Tayag vs. Sps. Orlando & Nancy Legarda.)
Petitioner raises the sole issue of whether or not (a) upon granting the Petition for Relief from Judgment per Order dated May 29, 1998 of the Honorable Regional Trial Court, Branch 48, San Fernando, Pampanga and (b) upon the filing of an Answer with Special and Affirmative Defenses of the petitioner, it is still legally proper for the Honorable Court of Appeals, Tenth Division, to promulgate its Decision dated April 27, 2000 directing the Honorable Regional Trial Court to issue an order of default against the petitioner.
Petitioner submits that the Honorable Court of Appeals committed a reversible error in rendering the questioned decision.
The facts as found by the appellate court, are as follows: herein respondent spouses Legarda were the plaintiffs in a civil case for collection of mortgage debts before the RTC of San Fernando, Pampanga, Branch 48, against spouses Vergel Hipolito and Mariquita Hipolito. On January 20, 1997, the trial court rendered a decision ordering said spouses Hipolito to pay the spouses Legarda the amount of the mortgage debts plus attorney's fees and costs of the suit. In default of such payment, a parcel of land covered by TCT No. 213656-R was ordered sold to answer for the money judgment.
On December 5, 1997, herein petitioner Tayag filed a petition for relief from the trial court's judgment alleging that she was the absolute owner of the property ordered to be foreclosed; that she had bought said property from the Hipolito spouses for the sum of P400,000.00; that she was never notified of the proceedings in the aforesaid civil case against her predecessors-in-interest; and, that she only came to know of the impending foreclosure of the subject property upon receipt of a "Notice of Sheriff's Sale."
Finding that neither personal nor substituted service of summons was validly effected upon petitioner Tayag, the trial court granted her petition for relief from judgment, directing that service of summons be made upon her and giving her 15 days from receipt thereof to file her answer to the spouses Legarda's complaint. When petitioner failed to file her answer, the spouses Legarda petitioned the trial court to declare her in default. Noting however, that the summons was personally served upon petitioner, the court ordered that new summons be served, and gave petitioner another 15 days to file her answer. Subsequently, petitioner filed a total of 3 motions praying for extension of time to file her answer. On April 23, 1999, or more than 2 months from the expiration of the period granted by the trial court, petitioner Tayag finally filed her answer which was met with the spouses Legarda's "Manifestation/Opposition to Answer" objecting to the admission of the belatedly filed answer and urging the trial court to declare Tayag in default.
On May 12, 1999, the trial court issued an Order, denying the aforesaid Manifestation for lack of merit. The spouses Legarda then filed a petition for certiorari before the Court of Appeals. On April 27, 2000, the appellate court rendered the assailed decision, granting the aforesaid petition for certiorari; setting aside the trial court's order dated May 12, 1999; and, directing it to issue an order declaring petitioner Tayag in default. Hence, the instant petition.
A perusal of the assailed decision will reveal that it is in accord with law. We note with approval the appellate court's finding that notwithstanding the opportunities given to petitioner to file her answer, it took her 2 months from the expiration of the period granted her, or a total of 4 months from her receipt of the summons to file it. Noteworthy also is the fact that petitioner did not give any reason to justify her delay.
We agree with the appellate court's ruling on the issues raised therein, to quote:
On the issue of absence of notice of hearing in spouses Legarda's motion to declare Tayag in default, it must be stated that such requirement of notice of hearing is required only in litigated motions, that is, motions where the party against which they are filed has a right to resist the relief sought. The true test as to the necessity of the notice is as follows: If upon the particular facts presented the applicant is entitled to the precise order applied for as a matter of right and the adverse party is powerless to oppose it, the order may be granted ex parte. In the case at bar, we are of the considered view that the unexplained and unjustified delay in the filing of Tayag's answer to spouses Legarda's complaint entitled the latter to the issuance of an order of default against Tayag, without the necessity of a notice of hearing in her favor.
IN VIEW OF THE FOREGOING, the instant petition for review is hereby DENIED for failure of the petitioner to show that the appellate court committed any reversible error of law.
Very truly yours,
(Sgd.) VIRGINIA ANCHETA-SORIANO
Clerk of Court
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