G.R. No. L-10564; April 25, 1958
MANDIAN (MANOBA), plaintiff-appellee, vs. DIONISIO LEONG, defendant-appellant. CELESTINO LEONG, defendant-intervenor-appellee.

FACTS

Plaintiff Mandian (Manoba), the widow and second wife of the late Leon Lung, sued defendant Dionisio Leong (her stepson) in the Court of First Instance of Davao. She alleged he usurped a parcel of land and coconut plantation registered in her name under Transfer Certificate of Title No. 561, and sought an accounting of fruits, damages, and attorney’s fees. Dionisio denied usurpation, claiming he possessed and administered the property as part of his father’s estate by agreement with the plaintiff. Celestino Leong, another son of Leon Lung, was permitted to intervene as a defendant. In his answer in intervention, Celestino pleaded that the lot was acquired during his father’s second marriage to Mandian but titled in her name alone because the husband was not a Filipino citizen. Celestino’s answer included a cross-claim against his brother Dionisio, alleging Dionisio’s exclusive possession of their father’s estate and failure to share its fruits with the co-heirs, and prayed for an accounting, distribution, and attorney’s fees. Copy of this answer was served on Dionisio’s counsel on June 6, 1955. The court admitted the answer in intervention on June 27, 1955. On July 1, 1955, Celestino’s counsel filed an ex-parte motion, alleging Dionisio had not answered the cross-claim within 26 days from service, and prayed that Dionisio be declared in default. The court granted the motion and declared Dionisio in default on July 2, 1955. On July 11, Dionisio sought reconsideration, arguing his period to answer should be counted from the court’s admission of the answer on June 27, not from the June 6 service. The trial court denied reconsideration, and Dionisio appealed.

ISSUE

Whether the appeal from the order declaring defendant-appellant Dionisio Leong in default on the cross-claim is proper and timely at that stage of the proceedings.

RULING

The appeal is dismissed. The order declaring appellant in default is an interlocutory order, preliminary to the hearing on the merits, and remains under the control of the court, subject to modification or rescission at any time before final judgment. An appeal from such an order is premature and improper. The Supreme Court ruled that it is a prerequisite for a defendant to file a motion under Rule 38 (for relief from judgment, order, or proceeding) to set aside the order of default before acquiring the right to appeal. Appellant Dionisio Leong did not file such a motion; his petition for reconsideration did not aver surprise, fraud, mistake, or excusable neglect as required under Rule 38. Even assuming his petition could be treated as one under Rule 38, he should await a judgment on the merits of the cross-claim. Only if a judgment is rendered against him may he then appeal, both from the order of default and the final judgment based thereon. The trial court is ordered to proceed with the hearing of the case, including the cross-claim against appellant. Costs against appellant.