Inchausti Vs de Leon

"When a demurrer to the complaint is overruled the defendant shall answer
[No. 7887. January 31, 1913.] within five days after the service on him of written notice .of the order, which
INCHAUSTI & CO., plaintiff and appellee, vs. BENITO DE LEON, notice the plaintiff shall give."
defendant and appellant.
Rules of court promulgated by authority of law and not in conflict
1. 1.PLEADING AND PRACTICE; RULES OF COURT.—Rules of with law have the force and effect of law. The law requires that
court promulgated by authority of law and not in conflict with summonses must contain the notice as provided in the above section.
law, have the force and effect of law. No provision of law, no rule of court, or approved practice requires
such a notice to be inserted in the order overruling a demurrer. Such
1. 2.ID. ; JUDGMENT BY DEFAULT.—Defendant cannot be being the case, the appellant's first alleged error is not well taken.
excused from failure to answer within the prescribed time after With reference to the second alleged error, it is sufficient to say
the overruling of his demurrer on the ground that the order that this court has held that a defendant whose demurrer to the
overruling the demurrer did not contain a notice of the time complaint has been overruled and who fails to answer within the time
within which he was required to answer. There is no authority
prescribed by the rules of the court is not entitled to a notice of the
requiring such a notice to be given.
motion to declare him in default. (Duran vs. Arboleda, 20 Phil. Rep.,
253.) For the foregoing reasons the judgment appealed from is
1. 3.ID.; DEMURRER OVERRULED; ANSWER WITHIN TIME affirmed, with costs against the appellant.
LIMIT.—A defendant whose demurrer has been overruled, and Arellano, C. J., Torres, Johnson, and Moreland, JJ., concur.
who fails to
Judgment affirmed.
225
VOL. 24, JANUARY 31,

1913. 25
Inchausti & Co. vs. De Leon.
1. answer within the time required by the rules of court, is not entitled
to notice of a motion to declare him in default.
(Duran vs. Arboleda, 20 Phil. Rep., 253.)
APPEAL from a judgment of the Court of First Instance of Sorsogon.

Abreu, J.
The facts are stated in the opinion of the court.
Federico Olbes, for appellant.
Haussermann, Cohn & Fisher, for appellee.
TRENT, J.:
This is a suit for the foreclosure of a mortgage on real estate in the

Province of Sorsogon. The defendant appeared and demurred to the
complaint. The demurrer was overruled, the defendant failed to
answer within the time specified by the rules of the court, and was,
on motion, declared in default. Upon the evidence presented by the
plaintiff after the entry of the default, judgment was rendered
decreeing a f oreclosure of the mortgage in the event of the failure of
the defendant to satisfy the judgment before the first day of the next
succeeding term of the court. This judgment is dated March 15, 1911.
On April 6, the defendant appeared by counsel and excepted to the
decision of the court, and moved for a new trial. On the 5th of June
the motion for a new trial was denied. The defendant then presented
his bill of exceptions.
It is contended on behalf of the appellant that the court below
erred in ordering judgment by default (a) because it was not stated in
the order overruling the demurrer that the defendant would be in
default in the event of his failure to answer within the period
prescribed by the rules of the court; and (b) because no notice was
given the defendant of plaintiff's motion for default judgment.
In support of the first point, counsel cites Ward vs. Ward (59
Cal., 139), a case to the effect that where it is not stated in
the summons that judgment will be given in default if defendant fails
to appear within the prescribed time, no
226
22 PHILIPPINE REPORTS
6 ANNOTATED
Inchausti & Co. vs. De Leon.
judgment by default can be taken. The validity of orders overruling
demurrers was in no way involved in that case, and for this reason it
is obvious that the doctrine therein announced is not applicable to the
case at bar. If the summons in the case under consideration had failed
to contain a notice that unless the defendant appeared and answered,
the plaintiff would take judgment by default, the result might have
been different; as section 392 of Act No. 190 provides that the
summons must contain:
"3. A notice that unless the defendant so appears and answers, plaintiff will
take judgment by default, and demand f from the court the relief applied for in
the compliant."
Rule 9 of the Courts of First Instance, and which is applicable to the

question under consideration, provides:

Inchausti Vs de Leon

Uploaded by

Copyright:

Available Formats

Inchausti Vs de Leon

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Inchausti Vs de Leon

Uploaded by

Copyright:

Available Formats

"When a demurrer to the complaint is overruled the defendant shall answer

VOL. 24, JANUARY 31,

APPEAL from a judgment of the Court of First Instance of Sorsogon.

This is a suit for the foreclosure of a mortgage on real estate in the

Rule 9 of the Courts of First Instance, and which is applicable to the

You might also like

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.