WEEK 4

Rule 11. When to File Responsive Pleadings

CONTINENTAL CEMENT CORPORATION V. COURT OF APPEALS AND MUNICIPALITY OF NORZAGARAY, G.R.

FACTS:
 On February 1, 1985, the Municipality of Norzagaray filed a complaint for recovery of taxes against the
Continental Cement Corp in the Regional Trial Court of Malolos, Bulacan.
 Before the expiration of the 15-day reglementary period to answer, Continental Cement filed two
successive motions for extension of time to file responsive pleadings, which were both granted.
 The last day of the second extension was May 28, 1985. On May 25, 1985, the Continental Cement
filed a motion to dismiss the complaint on the ground of the Mun of Norzagaray lack of capacity to sue
and lack of a cause of action.
 The motion was denied on July 16, 1985, "both for lack of merit and for having been improperly filed."
 On July 25, 1985, the Mun of Norzagaray moved to declare the Continental Cement in default for
having filed only the motion to dismiss and not a responsive pleading during the extension granted.
 This declaration was made on August 2, 1985, (MTDDID) and evidence for the Municipality of
Norzagaray was thereafter received ex parte resulting in a judgment in its favor on February 4, 1986.
 The judgment was affirmed by the CA in its decision dated April 7, 1989, which is the subject of the
present petition.

ISSUE: WON the Motion to Dismiss was seasonably filed

HELD:
 There is no question that the motion to dismiss was filed seasonably, within the period of the second
extension granted by the trial court. It is true that such a motion could not be considered a responsive
pleading as SC have held in many cases.
 Nevertheless, it is also true that in Section 1 of Rule 16 of the Rules of Court, it is provided that
"within the time for pleading, a motion to dismiss the action may be made" on the grounds therein
enumerated, including the grounds invoked by the petitioner.
 Moreover, it is clearly provided in Section 4 of the same Rule that:
o Sec. 4. Time to plead. — If the motion to dismiss is denied or if determination thereof is
deferred, the movant shall file his answer within the period prescribed by Rule 11, computed
from the time he received notice of denial or deferment, unless the court provides a different
period.
 The motion to dismiss was filed on May 25, 1985, three days before the expiration of the second
extension. Notice of its denial was served on the petitioner on July 29, 1985. From that date, the
petitioner had 15 days within which to file its answer, or until August 13, 1985. It was unable to do so,
however, because of the default order issued by the trial court on August 2, 1985. On that date, the
petitioner still had eleven days before the expiration of the 15-day reglementary period during which
the petitioner was supposed to file his answer. The Court recapitulates the rules as to the filing of a
Motion to dismiss by the defendant as follows:
1. The trial court may in its discretion and on proper motion extend the 15-day reglementary
period for the filing of responsive pleadings.
2. During the original reglementary 15-day period, or any extension of such period, the
defendant may file a motion to dismiss the complaint.
 3. If the motion to dismiss is denied, the defendant is allowed another fifteen days from notice
of the denial to file the responsive pleading. The full 15-day reglementary period starts all
over again.

DISPOSITIVE:

WHEREFORE, the decision of the respondent court dated April 7, 1989, the default order of the trial court
dated August 2, 1985, and the judgment by default dated February 4, 1986, are SET ASIDE. Civil Case No.
7971-M is REMANDED to the Regional Trial Court of Malolos, Bulacan, for further proceedings in accordance
with the rules laid down in this decision. Costs against respondent Municipality of Norzagaray.
GELACIO E. TUMAMBING V. MAURO GANZON, ET AL, MAURO GANZON, G.R. NO. L-17456

FACTS:
 Summons was served on defendant Ganzon on January 30, 1959.
 On February 12, 1959, Ganzon filed an urgent ex parte motion for an extension of ten days within
which to file a responsive pleading on the ground that his counsel has just been retained and needed a
few days more to study the case and prepare such responsive pleadings as might be necessary. It
should be noted that the original period for answering was to expire on February 14, 1959.
 Lower court denied the urgent ex parte motion for extension of time to file responsive pleading filed
individually by defendants Mauro Ganzon and Filomeno Niza and at the same time declared them in
default.
 This order of denial and declaring them in default was received by Ganzon and Niza on February 25,
1959 and on the same day a verified motion to set aside the order of default was filed together with
their answers, but said motion was again denied by the trial court on February 28, 1959.
 Ganzon filed a motion for reconsideration of the order of February 28, 1959 and for the suspension
of the trial scheduled for March 5, 1959 in order to be able to file a petition for certiorari; yet, on
March 5, 1959 the trial court rendered a decision, based on the findings of a commissioner appointed
by it, imposing upon the herein appellant a total liability of more than P47,000.00.
 Ganzon, having been notified of the decision, filed his verified petition for reconsideration or relief,
with the corresponding affidavit of merits.
 the trial court issued an order denying Ganzon's motion for reconsideration or relief.

ISSUE: WON

HELD:
 It is contended that the trial court erred in exercising its discretion to deprive the defendant-appellant
of his day in court and in motu proprio ordering trial before a commissioner.
 It appears that the motion to set aside the default order was filed, without delay, before trial, and on
the same day the said order was received.
 When a motion to set aside the order of default is made without any loss of time and before a date is
set for the hearing of the case on its merits, and is accompanied by a sworn statement of merits and
copies of the documents which constitute prima facie a just and valid defense, the refusal to set aside
the order of default constitutes an abuse of discretion.
 A default judgment does not pretend to be based upon the merits of the controversy. Its existence is
justified on the ground that it is the one final expedient to induce the defendant to joint issue upon
the allegations tendered by the plaintiff, and to do so without unnecessary delay
 Applications of this character are addressed to the discretion — the legal discretion — of the court in
which the default has occurred, and should be disposed of by it as substantial justice may seem to
require. Each case must be determined upon its own peculiar facts, for perhaps no two cases will be
found to present the same circumstances for consideration.
 As a general rule, however, in cases where, as here, the application is made so immediately after
default entered as that no considerable delay to the plaintiff is to be occasioned by permitting a
defense on the merits, the courts ought to incline to relieve.

 The exercise of the mere discretion of the court ought to tend in a reasonable degree, at least, to bring
about a judgment on the very merits of the case; and when the circumstances are such as to lead the
 court to hesitate upon the motion to open the default, it is better, as a general rule, that the doubt
should be resolved in favor of the application."
 The granting of a motion to set aside an order of default rests in the discretion of the court, but "It
must be remembered that the only discretion conferred upon officers is a legal discretion, and when
anything is left to any officer to be done according to his discretion the law intends it to be done with
a sound discretion and according to law.
 Further, Section 7, Rule 11 of the Rules of Court, which gives the court the discretion to allow the
filing of an answer even after the expiration of time to do so provides:

Extension of time to plead.—Upon motion and on such terms as may be just the court may extend
the time to plead provided in these rules.

The court may also, upon like terms, allow an answer or other pleading to be filed after the time
fixed by these rules.

 And the discretion of the court in allowing an extension of time should be exercised to subserve the
ends of justice, and its proper exercise tends toward giving defendant his day in court. Where a
defendant's default appears to have resulted from no neglect or fault on his part, the court will
exercise its discretion in relieving against it.

DISPOSITIVE:
WHEREFORE, the orders appealed from are hereby set aside and the case remanded to the court of origin to
allow the defendant to answer the complaint and present evidence in support of his defense. Costs at this
instance against the plaintiff-appellee.