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SECOND DIVISION

G.R. No. L-45270 February 28, 1979

LUIS T. PEGGY, RESTITUTA TUDTUD, and LUZVIMINDA T. PEGGY, Petitioners, vs. HON. LAURO L. TAPUCAR, as the Presiding Judge of the Court of First Instance of Agusan del Norte and Butuan City, Branch I,. CITY SHERIFF OF BUTUAN CITY, PROVINCIAL SHERIFF OF CEBU, and PURITA TORRALBA PEGGY, Respondents.

CONCEPCION JR., J.:

Petition for certiorari to annul and set aside the order of the respondent judge declaring the petitioners in default in Civil Case No. 1712 of the Court of First Instance of Agusan del Norte, as well as all the proceedings made subsequent thereto, with a prayer for the issuance of a writ of preliminary injunction to restrain the respondents from enforcing the writ of execution issued therein.chanroblesvirtualawlibrary chanrobles virtual law library

The petitioners are the defendants in said Civil Case No. 1712, an action for separation of property, dissolution of conjugal partnership, reconveyance of properties, etc., initiated by the private respondent Purita Peggy, the estranged spouse of the petitioner Luis T. Peggy, on December 9, 1974. ¹chanrobles virtual law library

Instead of filing a responsive pleading, the defendants filed a motion to dismiss the complaint on January 16, 1975 upon the grounds that: (1) the venue is improperly laid; (2) the action is barred by prior judgment or that the same has prescribed; (3) the plaintiff is estopped from prosecuting the case; (4) the claims or demands set forth in the complaint have already been waived, abandoned or otherwise extinguished; and (5) no earnest efforts towards a compromise or amicable settlement had been made prior to the filing of the complaint. ²chanrobles virtual law library

On January 31, 1976, the plaintiff, Purita T. Peggy, filed an amended complaint ³and her opposition to the motion to dismiss the complaint. ⁴chanrobles virtual law library

The respondent court denied the motion to dismiss on July 7, 1975 and set the pre-trial conference on August 8, 1975. ⁵Pursuant thereto, a notice of pre-trial conference was sent to the parties and their respective attorneys on July 8, 1975. ⁶chanrobles virtual law library

On August 8, 1975, the respondent court issued an order which reads, as follows:

ORDER chanrobles virtual law library

APPEARANCES: plaintiff Purita Torralba Peggy and her counsel, Atty. Romeo Gonzaga; defendant Luis T. Peggy thru a special power of attorney in favor of Atty. George P. Bragat who also appeared as counsel; defendants Restituta Tudtud and Luzviminda T. Peggy with special powers of attorney in favor of Atty. Fil C. Veloso who also appeared as their counsel.chanroblesvirtualawlibrary chanrobles virtual law library

The defendants thru counsel manifested that at their initiative they cause xerox copies to be made of plaintiff's amended complaint and that it was not necessary for the plaintiff to furnish them a copy thereof. The defendants asked that they be given fifteen days to filed their amended answers.chanroblesvirtualawlibrarychanrobles virtual law library

The plaintiff thru counsel manifested that she had six witnesses, some of whom are residing in Cebu City.chanroblesvirtualawlibrarychanrobles virtual law library

1. That the pre-trial conference is reset on 15 October 1975 at 4 p.m. and the trial shall proceed on 16 and 17 October 1975 at 9 a.m. to 12 noon and 3 to 5 p.m., it being understood that NO POSTPONEMENT WILL BE GRANTED;chanrobles virtual law library

2. That the parties and counsels comply with paragraph 4 of the notice of pre-trial conference, copy of which were furnished the respective counsel; andchanrobles virtual law library

3. That within fifteen days from today the defendants file their amended answers furnishing the plaintiff a copy thereof.chanroblesvirtualawlibrarychanrobles virtual law library

Let the special powers of attorney be attached to the record. ⁷chanrobles virtual law library

In due time the defendants filed their respective answers to the amended complaint. ⁸The plaintiff likewise filed her answer to the counterclaim interposed by Luis T. Peggy. ⁹chanrobles virtual law library

On October 13, 1975, counsel for the defendant Luis T. Peggy filed an urgent ex-parte motion for the postponement of the pre-trial set for October 15, 1975 upon the ground that he was taken ill and could not be present on said date. ¹⁰So, the respondent court re-set the pre-trial conference to December 17, 1975, and trial of the case on December 18 and 19, 1975. The court decreed that the counsels should serve notice of the pre-trial conference upon the parties represented by them in accordance with the case of Lim, et al. vs. Animas, et al., 63 SCRA 408. ¹¹chanrobles virtual law library

On November 19 and 20, 1975, counsels for the defendants received telegrams from the clerk of the respondent court advising them that all hearings scheduled for the months of November and December, 1975 were cancelled for the reason the presiding judge, Hon. Vicente B. Echaves, Jr., has been transferred to another judicial district. ¹²Then, on March 1, 1976, the court, now presided by the respondent Judge Lauro L. Tapucar caused a notice to be sent that the pre-trial conference on the case has been set for March 29, 1976. Only the attorneys for the parties however were noticed thereof. ¹³chanrobles virtual law library

On March 22, 1976, counsel for the plaintiff, Purita T. Peggy, filed a motion for the postponement of the pre-trial set for March 29, 1976 upon the ground that he had previous commitments on that day which cannot be deferred. ¹⁴Accordingly, the pre-trial conference was re-set to May 10, 1976, with a warning that no postponement will be granted. ¹⁵But, on May 9, 1976, the plaintiff Purita T. Peggy sent a telegram to the respondent court that he counsel was bed-ridden and physically incapable of attending the pre-trial conference set for May 10, 1976. ¹⁶The postponement of the pre-trial conference was similarly prayed for by the defendants in their motion dated May 6, 1976. ¹⁷As a result, the pre-trial conference was re-set for July 12, 1976. ¹⁸chanrobles virtual law library

On July 6, 1976, counsel for the defendants Restituta Tudtud and Luzviminda T. Peggy sent a telegram to the clerk of court inquiring whether or not their case will be heard on July 12, 1976, as scheduled, since he had been reliably informed that the presiding judge of the court was in Tagaytay City attending the DAP conference for CFI judges. ¹⁹The clerk of court replied that there is no advice when the judge will be back. ²⁰On July 9, 1976, counsel for the defendant Luis T. Peggy filed an urgent motion for the postponement of the pre-trial conference set for July 12, 1976 upon the ground that his client Luis T. Peggy was gravely ill and cannot attend the pretrial conference as he had hoped to. ²¹A telegram was sent to the trial court informing the clerk of court of the mailing of said motion. ²²The defendants Restituta Tudtud and Luzviminda T. Peggy sent a confirmatory telegram and interposed no objection to the postponement of the pre-trial conference. ²³On July 1976, case was heard, as previously set, with only the plaintiff and her counsel in attendance Upon motion of Counsel for the plaintiff, the defendants were declared in default and the case was set for hearing oil July 23, 1976 for reception of the plaintiff's evidence. ²⁴chanrobles virtual law library

Upon learning that the respondent court has issued an order declaring them in default, the defendants filed a motion to set aside the order of default and the proceedings made subsequent thereto for tile reason that the aforesaid order of default was illegally and prematurely issued. ²⁵The court, however, denied said motion for lack of merit. ²⁶chanrobles virtual law library

On December 2, 1976, the respondent court rendered judgment in said Civil Case No. 1712 in favor of the plaintiff and against the ordering, among others, the dissolution of the conjugal partnership and the separation of the properties of Luis T. Peggy and Purita Torralba Peggy and awarding to plaintiff half of the conjugal properties; condemning the defendants Luis T. Peggy and Restituta Tudtud to pay the plaintiff the amount of P100,000.00 as nominal, exemplary, and moral damages and P10,000.00 as attorney's fees; and to pay the Costs. ²⁷Two days thereafter, or on December 4, 1976, the plaintiff filed a motion for the immediate execution of the judgment. ²⁸chanrobles virtual law library

On December 13, 1976, the defendants filed an omnibus motion for the reconsideration of the order denying their motion to set aside order of default, as well as of the decision rendered on December 2, 1976, and their opposition to the motion for the immediate execution of the said decision of December 2, 1976, ²⁹but the motion was denied on December 15, 1976. ³⁰On that same day, an order was issued granting the motion for the immediate execution of the judgment rendered on December 2, 1976 and directing the issuance of a writ of execution. ³¹Pursuant thereto, a writ of execution was issued on December 16, 1976. ³²Whereupon, the defendants filed the instant recourse. As prayed for, a temporary restraining order was issued by the Court restraining the respondent from enforcing the writ of execution issued. ³³chanrobles virtual law library

The defendants contend that the order declaring them in default for failure to attend and be present at the scheduled pre-trial conference on July 12, 1976 is illegal for the reason that they were not served with the notice of the said pre-trial conference, and premature, in view of the unresolved motion for postponement filed by them.chanroblesvirtualawlibrarychanrobles virtual law library

The plaintiff, upon the other hand, maintains that the order declaring the defendants in default was properly issued in view of the defendants' non-appearance at the pre-trial scheduled on July 12, 1976, despite notice, and while the petitioners may not have been summoned separately, personal notice to them is not necessary in view of the special powers of attorney executed by them in favor of the respective attorney executed by them in favor of the respective attorneys who have been duly notified of the said pre-trial conference.chanroblesvirtualawlibrarychanrobles virtual law library

We find merit in the petition. Section 1, Rule 20 of the revised Rules of Court provides:

Section 1. Pre-trial mandatory. - In any action, after the last pleading has been filed, the court shall direct the parties and their attorneys to appear before it for a conference to consider:chanrobles virtual law library

(a) the possibility of an amicable settlement or of a submission to arbitration;chanrobles virtual law library

(b) the simplification of the issues; chanrobles virtual law library

(c) the necessity or desirability of amendments to the pleadings; chanrobles virtual law library

(d) the possibility of obtaining stipulations or admissions of fact and of documents to avoid unnecessary proof; chanrobles virtual law library

(e) the limitation of the number of witnesses; chanrobles virtual law library

(f) the advisability of a preliminary reference of issues to a commissioner; chanrobles virtual law library

(g) such other matters as may aid in the prompt disposition of the action.

As win be seen, pre-trial is mandatory and the Court has uniformly ruled that the parties, as well as their counsel, who are required to appear thereat, must be notified of the same. ³⁴The records of this case, however, show that the defendants were not properly notified of the pre-trial conference since the notices of pre-trial were sent to their counsel and not upon them so that the order declaring them in default for non-appearance at the pre-trial conference is null and void. The only instance wherein the parties were notified separately of the holding of a pre-trial conference was on July 8, 1975. This notice, however, cannot be considered to have fully satisfied the requirements of the law because the said notice of pre-trial conference was issued before the last pleading been filed. Construing the term "last pleading", the Court, in a case, ³⁵said:

Under the rules of pleading and practice, the answer ordinarily is the last pleading, but when the defendant's answer contains a counterclaim plaintiff's answer to it is the last pleading. When the defendant's answer has a cross claim, the answer of the cross-defendant to it is the last pleading. Where the plaintiff's answer to a counterclaim contains a counterclaim against the opposing party or a cross-claim against a co-defendant, the answer of the co-defendant to the cross-claim is the last pleading. And where the plaintiff files a reply alleging facts in denial or avoidance of new matter by way of defense in the answer, such reply constitutes the last pleading. (Francisco, The Revised Rules of Court, Vol. 11, p. 2- 3)

Following this rule, the "last pleading" is the answer of the plaintiff to the counterclaim of the defendant Luis T. Peggy, filed on September 16, 1975. ³⁶Obviously, the calling of a pre-trial conference on August 8, 1975 was premature. The fact that the defendants have filed with the court, special powers of attorney in favor of the respective attorneys cannot cure the jurisdictional defect since the same were fried before the filing of the last pleading and no valid notice of pre-trial conference had been sent to the defendants.chanroblesvirtualawlibrarychanrobles virtual law library

At any rate, the respondent judge abused his discretion in declaring the defendants in default in view of the urgent motion for the postponement of the pre-trial conference filed by counsel for the defendant Luis T. Peggy on July 9, 1976 upon the ground that the defendant Luis T. Peggy was gravely ill and could not attend the pre-trial conference set for July 1976 as he had expected to do. The respondent judge applied the rules of procedure strictly and failed to take into serious consideration the admonition of the Court that the "rules shall be liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of every action and proceedings." ³⁷In a recent decision, ³⁸this Court reiterated its disapproval of the default before declaring a defendant in default. Since no substantial right of the plaintiff therein could have been affected and the reasons advanced by the defendant in default. Since no substantial right of the plaintiff therein could have been affected and the reasons advanced by the defendants for their failure to appear at the pre-trial conference are creditable and reasonable, the respondent judge should have granted the postponement prayed for or set aside his order declaring defendants in default.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the petitioner is granted and the order of the respondent judge, dated July 21, 1976, declaring the petitioners in default, as well as all proceedings made subsequently thereto are hereby annulled and set aside and the temporary restraining order heretofore issued is made permanent. Let this case be remanded to the lower court for further proceedings. Without costs.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

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BARREDO J., concurring:chanrobles virtual law library

Although I feel that petitioners were duly notified because of the powers of attorney they gave their counsel, as in fact, they asked for postponement, I held that the motion for postponement was well-grounded and should have been granted.

BARREDO J., concurring:

Although I feel that petitioners were duly notified because of the powers of attorney they gave their counsel, as in fact, they asked for postponement, I held that the motion for postponement was well-grounded and should have been granted.