G.R. No. L-9651; May 23, 1960
POLICARPO MENDEZ, plaintiff-appellee, vs. SENG KIAM and SE NGA, defendants-appellants.

FACTS

On March 1, 1951, plaintiff Policarpo Mendez filed an ejectment suit in the Court of First Instance of Lanao against defendants Seng Kiam and Se Nga to recover possession of an 11-hectare parcel of land in Dalipuga, Iligan City, plus damages. The plaintiff sought extraterritorial service of summons on Seng Kiam in Quemoy, China. Defendant Se Nga moved to dismiss the complaint on grounds of prescription and lack of cause of action. The court ordered summons by publication for Seng Kiam. On September 1, 1951, attorney Francisco A. Obach filed an answer for the absent defendant Seng Kiam, claiming the land was sold to Seng Kiam by the plaintiff in 1932 and that the action was barred by prescription. The plaintiff moved to declare both defendants in default and to prohibit Atty. Obach from appearing for Seng Kiam for lack of authority. The court initially denied the motion for default against Seng Kiam but declared Se Nga in default on November 6, 1951. Se Nga’s default was later set aside, and he filed an answer with a counterclaim. On March 30, 1953, the court declared Seng Kiam in default for his counsel’s failure to furnish the plaintiff a copy of the answer as ordered. After the plaintiff presented evidence, the court rendered judgment on September 1, 1953, solely against Seng Kiam, ordering him to restore possession of the land to the plaintiff, pay annual damages of P2,400 until restitution, and pay attorney’s fees of P500. The plaintiff was ordered to refund a P600 loan to Seng Kiam. The case against Se Nga was dismissed on November 17, 1954, but his counterclaim was set for hearing. Seng Kiam moved to set aside the default judgment and the order of execution, which were denied. Both defendants appealed.

ISSUE

The primary issue is the propriety of the orders declaring defendant Seng Kiam in default, the judgment rendered against him based on that default, and the subsequent orders for execution, as well as the dismissal of the complaint against defendant Se Nga.

RULING

The Supreme Court set aside the order dated March 30, 1953, adjudging appellant Seng Kiam in default, the judgment dated September 1, 1953, rendered against him, the order dated June 14, 1954, granting execution, and the order dated November 17, 1954, denying his motion for reconsideration. The case was remanded to the court of origin for further proceedings. The order of November 17, 1954, dismissing the complaint against appellant Se Nga, was affirmed. The Court held that Se Nga’s appeal had no basis as the judgment was merely partial and his counterclaim was still pending hearing. Costs were imposed against the appellee, Policarpo Mendez.