G.R. No. L-3027; October 3, 1950
MARIA L. HERNANDEZ, ET AL., plaintiffs-appellees, vs. HILARION CLAPIS, ET AL., defendants-appellants.

FACTS

The defendants-appellants lost an unlawful detainer case in the Justice of the Peace Court of Tagum, Davao, and appealed to the Court of First Instance. Their counsel from the lower court, Attys. Parreño and Flores, filed the notice of appeal. The clerk of the Court of First Instance sent notice of the receipt of the record to these attorneys, as required by the Rules, starting the period to file an answer. No answer was filed within the 15-day period. Instead, a new attorney for the defendants filed a motion to dismiss beyond the period. The plaintiffs moved for postponement to oppose the motion, which was granted. After the court denied the motion to dismiss, the plaintiffs moved to declare the defendants in default for failure to answer, which the court granted. The defendants appealed the default order, arguing that notice should have been sent to them personally, not their attorneys, and that the pending motion to dismiss suspended the period to answer.

ISSUE

Whether the Court of First Instance correctly declared the defendants in default.

RULING

Yes, the order of default was proper. Notice to the defendants’ attorneys of record was valid. The attorneys who handled the case and filed the appeal in the Justice of the Peace Court were presumed to continue as counsel in the Court of First Instance; their entry of appeal constituted an appearance. The notice sent to them complied with Section 7, Rule 40 of the Rules of Court. The motion to dismiss, filed out of time, did not suspend the running of the period to answer. The plaintiffs’ opposition to the motion to dismiss did not waive their right to seek a default judgment. The defendants’ failure to answer was due to the negligence of their counsel. The order of default is affirmed, with double costs imposed on Attys. Parreño and Flores for their inconsistent and careless conduct.

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