GR L 3443; (May, 1950) (Digest)
G.R. No. L-3443. May 26, 1950.
FELIPE LUNA, petitioner, vs. GAVINO S. ABAYA, Judge of the Court of First Instance of Rizal (Caloocan Branch), and HORTENSIO A. DOMINGO, respondents.
FACTS
Eustaquio C. Olvina filed a complaint against Felipe Luna, alleging that a document he signed as a mortgage was actually a pacto de retro sale, and sought recovery of a house and lot. Luna answered, claiming the contract was a valid conditional sale. Hortensio A. Domingo filed a complaint in intervention, asserting he was the true owner by virtue of a prior sale with right to repurchase from Olvina, which was not exercised. The court admitted the intervention. Domingo then moved to declare both Olvina and Luna in default for failing to answer his complaint in intervention within ten days under Rule 13, Section 5. The court granted the motion, declared them in default, and later rendered judgment in favor of Domingo. Luna moved to set aside the judgment and the default order, but his motions were denied. He then filed this petition for certiorari, arguing the default order was illegal.
ISSUE
Whether the trial court acted without jurisdiction or with grave abuse of discretion in declaring Felipe Luna in default for his failure to answer the complaint in intervention.
RULING
Yes. The Supreme Court annulled the order of default and all subsequent proceedings. The trial court patently erred in applying Rule 13, Section 5, which sets a ten-day period for the intervenor to file the complaint in intervention, not for the original parties to answer it. While an answer to a complaint in intervention may be filed under Section 4, the use of the word “may” indicates it is permissive, not mandatory. Furthermore, even assuming it was mandatory, the motion for default was filed prematurely, before the expiration of any applicable period to answer. The default order deprived Luna of his day in court based on an erroneous interpretation of the rules, which constitutes a lack of authority to render the judgment. A default judgment entered where the defendant was not in default may be vacated.
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