G.R. No. L-40377 October 29, 1975
JUAN DE LEON, petitioner, vs. HON. JUDGE AGAPITO HONTANOSAS, Presiding Judge, Court of First Instance of Cebu, Branch IX; WILLIAM DE LEON and ROSE MARIE DE LEON, respondents.

FACTS

Juan de Leon filed a collection suit against spouses William and Rose Marie de Leon. Summons was served on William at the conjugal residence. William promptly telegraphed Rose Marie, who was in Dumaguete City, informing her of the suit. Instead of filing an answer, Rose Marie, through counsel, moved to dissolve the writ of preliminary attachment issued in the case, arguing the attached property belonged to her father. The lower court declared both spouses in default for failure to answer and subsequently rendered a judgment by default against them. A writ of execution was issued, and the attached property was levied upon and sold at auction to Juan de Leon.
After the judgment was rendered and execution had begun, Rose Marie filed an answer and, with her father, moved for reconsideration of the order of default. The lower court, in a subsequent order, reconsidered its earlier ruling, set aside the order of default and the writ of execution, and allowed Rose Marie to present evidence, scheduling the case for pre-trial. It did not, however, formally set aside the judgment by default. Juan de Leon filed this petition for certiorari and prohibition, assailing the lower court’s order as a grave abuse of discretion.

ISSUE

Whether the Court of First Instance of Cebu committed a grave abuse of discretion in setting aside the order of default against respondent Rose Marie de Leon after a judgment by default had already been rendered and partially executed.

RULING

Yes, the lower court committed a grave abuse of discretion. The service of summons upon the husband, William, at the conjugal dwelling was binding upon his wife, Rose Marie, pursuant to the rules on summons. Her actual knowledge of the suit was confirmed by the telegram from her husband and the personal service upon her of the writ of attachment. Her choice to contest the attachment instead of filing an answer constituted a deliberate waiver of her right to oppose the complaint itself. A default order, once a judgment by default has been validly rendered, cannot be set aside independently of the judgment.
The legal logic is clear: a motion to lift an order of default must be filed before a judgment by default is rendered. The lower court’s act of setting aside only the order of default while leaving the judgment intact created an absurd and untenable situation—a case scheduled for pre-trial and presentation of evidence despite an existing final and executory judgment. This procedural inconsistency constitutes a capricious and whimsical exercise of judgment equivalent to grave abuse of discretion. The proper remedy for Rose Marie, after the judgment, was a petition for relief from judgment under Rule 38, not a mere motion for reconsideration of the default order. The Supreme Court granted the petition, annulling the lower court’s orders that set aside the default and execution.