What Happens After an Answer to an Amended Complaint Is Filed?
Republic of the Philippines
SUPREME Courtroom
ManilaEN BANC
G.R. No. L-14911 March 25, 1961
ONG PENG, plaintiff-appellee,
vs.
JOSE CUSTODIO, defendant-appellant.Almacen and Almacen for plaintiff-appellee.
D.J. Garin and B.M. Moreno for defendant-appellant.LABRADOR, J.:
Appeal against various guild of the Court of First Example of Iloilo, peculiarly against that declaring accused in default.
The nowadays conform was instituted by Ong Peng against Jose Custodio to recover the sum of P2,527.xxx, with interest, representing the value of goods and materials obtained by accused from plaintiff, plus the amount of P500 as attorney's fees. The complaint was filed on Apr 15, 1958, and on Apr 30 defendant moved to dismiss the complaint on the basis that plaintiff'southward cause of action had already prescribed. Plaintiff answered defendant'south motion and attached to his respond an amended complaint, which set forth the promissory note supporting the merits. No answer to the amended complaint was presented and no objection to its admission was also interposed. On May 21, 1958, the court admitted the amended complaint on the ground that no objection thereto had been filed, and on May 28, information technology denied the motion to dismiss. Copy of the order of the courtroom admitting the amended complaint was furnished attorney for the defendant by ordinary mail on May 31, 1958, and copy of the order denying the movement to dismiss was sent past registered post and received by the accused on June sixteen, 1958.
On June 27, 1958, as the defendant had not filed an reply to the amended complaint, which had already been admitted in an society dated May 21, 1958, plaintiff moved that the defendant be declared in default. On June 28, the court granted the motion, declaring accused in default, and set up the case for hearing on July 17, for the reception of the plaintiff's show. Prior to this hearing, that is, on July five, 1958, accused presented a motion to prepare aside the order of default and to permit him to file his answer. This was set for hearing on July 12, 1958. Objection to this motility was filed by the plaintiff. On the date of the hearing the courtroom denied the motility to lift the order of default.
On July 17, 1958, afterwards presentation of plaintiff's evidence, the courtroom entered judgment ordering accused to pay plaintiff the sum of P2,527.30, with legal interest, and costs. Upon receipt of this judgment the defendant filed a motion for reconsideration under oath, alleging that defendant has a strong and valid defense force, that the promissory note is fake and spurious, and that the defendant is an intelligent and respectable member of the community. Fastened to the motion is an affidavit of the accused stating that he has a good defense and that if only allowed to present his testify he would prove that the said document is forged. Objection to this move was presented by the plaintiff, and attached to the objection is the affidavit of Ong Peng stating that the promissory was delivered to him by his clerk Ah Chiao. Another affidavit past Marcos Gotera is also fastened to the objection, stating that he was nowadays at the time that defendant Jose Custodio signed the promissory note in the presence of Ong Peng and Wong Tap, some other Chinese clerk. The courtroom denied the petition and subsequently the denial of another motility for reconsideration, the nowadays appeal was presented.
In his brief the accused-appellant argues that defendant never came nether the jurisdiction of the court for the purposes of the amended complaint because the aforementioned was non served upon him with summons and in accordance with Section 10, Rule 27 of the Rules of Court, invoking the case of Atkins, Kroll and Co. vs. Domingo, 44 Phil. 680. We have examined this case and we find that the ruling independent therein is not applicative to the case at bar. In that case summons under the original complaint was properly served the defendant. Before defendant appeared another amended complaint was served past registered post. Of grade we held that "the service of the amended complaint upon his xvi-year sometime son by the attorney for the plaintiff was not sufficient to give the courtroom jurisdiction over the defendant as to any new matter alleged in the amended complaint. "In the case at bar, the amended complaint contained no new matter; it only sets along the promissory note upon which the cause of activeness is based. In the case at bar also the defendant had already appeared when the amended complaint was served-defendant had, in fact, presented a movement to dismiss. We dominion that afterwards the defendant has appeared by virtue of a summons, as in this case, and presented a motion to dismiss, he may be served with the amended complaint, without need of another summons, and in the same form and style ordinary motions or papers are served, thus:
If he (accused) had not however appeared, a new summons must be served upon him as regards the amended complaint, otherwise the court would have no ability to try the new causes of activeness alleged therein, unless be had lodged an reply thereto. Simply sending a copy of the amended complaint to the defendant by registered mail is not equivalent to service of summons in such case. Withal, if the defendant had already appeared in response to the first summons, then that he was already in court when the amended complaint was filed, then ordinary service of that pleading upon him, personally or by mail service, would be sufficient, and no new summons need be served upon him. (I Moran, 1957 ed., p. 116, citing the instance Atkins five. Domingo, 44 Phil. 680.) (Emphasis Supplied.)
We note that the defendant never claimed that he did non receive the amended complaint in the ordinary class of mail and his simply objection thereto was the fact that no summons was served upon him with regard thereto. The opposition to the motion to dismiss and the amended complaint were served attorney for the defendant on May 12, 1958 past registered mail. Said counsel was also furnished copy of the court's lodge albeit the amended complaint on May 31, 1958. Assuming that the defendant received the copy of the amended complaint v days afterward May 12, or on May 17, and a copy of the order of the court nearly June 6, the court's lodge declaring him in default on June 28, is justifiable, for the reason that the time for filing an answer to the amended complaint commenced from the date of service of such amended complaint (Villegas vs. Roldan, 76 Phil. 349.)
The 2d point raised by appellant in his brief is the validity of the activeness of the lower court in allowing plaintiff to amend his original complaint fifty-fifty after a motility to dismiss has been filed. Appellant argues that Section I of Rule 17, giving plaintiff the right to amend his complaint once equally a thing of course at any fourth dimension earlier a responsive pleading is filed, does not apply where a movement to dismiss is filed by the agin party, on which the court should deport a hearing before allowing the amendment. This claim merits no consideration. Under Section 3, Rule viii of the Rules of Court, the courtroom is not obliged to immediately hold a hearing on the motion to dismiss; information technology is granted the discretion to defer the hearing and determination thereof until the trial if the ground declared therein does not appear to be indubitable. (Nico vs. Blanco, 81 Phil. 213.) On the other manus, the right of a plaintiff nether Department 1 of Dominion 17 to improve his pleading once as a thing of course before a responsive pleading (which a motion to dismiss is not i) is served, has been held to be i which the court should always grant, otherwise mandamus will prevarication against it. (Breslin, et al. vs. Luzon Stevedoring Co., et al., 47 O.G. [371 1170.) Besides, the amendment was merely 1 of form; it did not alter the crusade of action, merely only set forth the promissory annotation on which the activity was based.
We find that the points being raised on this entreatment are supposed failures to follow formal proceedings, not substantial requirements of procedure. Upon examination of the motion to gear up aside the guild of default, we detect it to exist lacking in the following substantial requirements: it does not comprise an affidavit of claim, the move to set aside the lodge of default.
We next come to the denial of the motion to gear up aside the judgment and grant relief under Dominion 38 of the Rules of Court. The motion, it is truthful, contains an affidavit of merits, but this affidavit is just a denial of the supposed actuality of accused's signature to the promissory note which is transcribed in the amended complaint. And in counter-affidavits plaintiff has presented witnesses declaring that defendant's signature to the promissory note is authentic. We believe that this is a terminal infinitesimal attempt to defend a losing case. If the defendant really had any valid defense, this should have been brought at the kickoff opportunity, that is, past the showtime motion to set aside the order of default. As well, we doubt if the aforementioned issue raised in the original motion to set aside the gild of default, may once again exist raised in a petition for relief nether Rule 38 of the Rules of Courtroom. The full general rule is that once a matter in issue has been decided by the courtroom, it may no longer be brought again in the grade of another objection, and in the guise of a move under some other provision of the rules. But even laying this objection aside, nosotros detect that the courtroom did non abuse its discretion in refusing to grant a reconsideration of the club of default and to set up aside the consequent judgment ordering the accused to pay the sum demanded in the complaint.
WHEREFORE, the appeal is hereby dismissed, with price confronting defendant-appellant.
Bengzon, Actg. C.J., Padilla, Bautista Angelo, Concepcion, Reyes, J.B.Fifty., Barrera, Paredes and Dizon, concur.
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