G.R. No. L-7887; January 31, 1913
INCHAUSTI & CO., plaintiff-appellee, vs. BENITO DE LEON, defendant-appellant.

FACTS

Inchausti & Co. filed a suit to foreclose a mortgage on real estate. The defendant, Benito de Leon, demurred to the complaint. The court overruled the demurrer. The defendant failed to answer within the time prescribed by court rules. Consequently, upon the plaintiff’s motion, the court declared the defendant in default and, after hearing the plaintiff’s evidence, rendered a judgment of foreclosure. The defendant later appeared, excepted to the decision, and moved for a new trial, which was denied.

ISSUE

Whether the trial court erred in ordering judgment by default because (a) the order overruling the demurrer did not state that the defendant would be in default if he failed to answer, and (b) no notice was given to the defendant of the plaintiff’s motion for default judgment.

RULING

No. The judgment is affirmed. (1) The law (Section 392 of Act No. 190 ) requires the summons, not the order overruling a demurrer, to contain a notice that default judgment may be taken. Court rules (Rule 9 of the Courts of First Instance) only require the defendant to answer within five days after service of notice of the order overruling the demurrer. No law or rule requires the default warning in the demurrer order itself. (2) Following precedent (Duran vs. Arboleda), a defendant who fails to answer after a demurrer is overruled is not entitled to notice of the motion to declare him in default.