SARMIENTO  

vs. HON. JUAN and BELFAST SURETY &

INSURANCE CO.
G.R. No. L-56605, January 28, 1983.

1. REMEDIAL LAW; CIVIL PROCEDURE; PRE-TRIAL; HEARING

SCHEDULED AFTER THE FILING OF THE LAST PLEADING; PURPOSE AND
APPROPRIATE CONSTRUCTION OF THE REQUIREMENT. — The requirement
that the pre-trial shall be scheduled "after the last pleading has been filed" (Section 1,
Rule 20, Rules of Court) is intended to fully apprise the court and the parties of all the
issues in the case before the pre-trial is conducted. It must be remembered that the
issues may only be ascertained from the allegations contained in the pleadings filed
by the parties. The last permissible pleading that a party may file would be the reply
to the answer to the last pleading of claim that had been filed in the case, which may
either be the complaint, a cross-claim, a counter-claim or a third party complaint, etc.
(Secs. 2 and 11, Rule 6, Rules of Court.) The requirement that the last pleading must
have been filed before a pre-trial may be scheduled should more appropriately be
construed to mean not only if the last pleading had been actually filed, but also if the
period for filing the same had expired.
2. ID.; ID.; PLEADING ASSERTING A CLAIM; NOT ANSWERED BY
ADVERSE PARTY; RENDERS THE LATTER IN DEFAULT; EXCEPTIONS. —
Any pleading asserting a claim must be answered, and the failure to do so by the party
against whom the claim is asserted renders him liable to be declared in default in
respect of such claim. (Sec. 10, ibid.) There are, however, recognized exceptions to
the rule, making the failure to answer a pleading of claim as a ground for a default
declaration, such as the failure to answer a complaint in intervention (Sec. 2[c], Rule
12, Rules of Court), or a compulsory counterclaim so intimately related to the
complaint such that to answer the same would merely require a repetition of the
allegations contained in the complaint. (Zamboanga Colleges, Inc. vs. Court of
Appeals, 1 SCRA 870; Ballecer vs. Bernardo, 18 SCRA 291; Agaton vs. Perez, 18
SCRA 1165).
3. ID.; ID.; COMPULSORY COUNTER CLAIM; ANSWER NOT
NECESSARY; FAILURE TO DO SO NOT A GROUND FOR DEFAULT. — In the
case presently considered, the nature of the counter-claim in the petitioner's answer
has not been made clear, except to categorize it as a compulsory counterclaim. Such
being the case, it is likely to be one where the answering thereof is not necessary, and
the failure to do so would not be a ground to be declared in default. In any event, the
private respondent's failure to answer the petitioner's counterclaim after the period to
file the answer had lapsed is no obstacle to holding a pre-trial.
 4. ID.; ID.; DEFAULT JUDGMENT; MOTION FOR RECONSIDERATION;
PRONOUNCEMENT OF THE COURT AGAINST LAYING MORE EMPHASIS
ON PROCEDURAL NICETIES. — We, however, find merit in the petitioner's two
other contentions. The denial by Judge Juan of the petitioner's motion to postpone the
pre-trial scheduled on February 5, 1980 may have appeared valid at the outset,
considering that it was filed at the last minute and was not accompanied by a medical
certificate although the ground alleged was illness on the part of the petitioner.
Nonetheless, a different appraisal of the petitioner's plea should have been made after
the petitioner filed a motion for reconsideration which was made under oath. Due
regard should have been given to the repeated pronouncements by this Court against
default judgments and proceedings that lay more emphasis on procedural niceties to
the sacrifice of substantial justice. After all, the ex-parte presentation of evidence had
not yet been conducted nor had a decision been rendered in the case. It appeared to be
a simple matter of giving the petitioner a chance to have his day in court in order to
defend himself against the claim filed by the private respondent. As it turned out, the
procedure adopted by the trial court proved unprofitable and disadvantageous to all
parties concerned, including the courts. The case would have been disposed of in a
much easier and more expeditious manner if the trial court had heeded the petitioner's
simple plea for a chance to be heard. Thereby, all the proceedings taken subsequent to
the disputed orders of the trial court could have been avoided, and the Court of
Appeals and the Supreme Court spared from the trouble of resolving the petitions
filed before them.
5. ID.; ID.; ID.; IMPROPER WHERE ONLY ONE OF THE COUNSELS
APPEARED; CASE AT BAR. — The declaration of default on the part of the
petitioner may not be considered as entirely proper under the circumstances
surrounding the same. It is undenied that nobody appeared at the pre-trial except the
counsel for the private respondent. Under settled doctrines, not even the private
respondent may be considered as having appeared at the said pre-trial, it not having
made appearance thereat through a duly authorized representative. In such a situation,
the trial court would have acted more properly if it dismissed the case, or declared the
private respondent as plaintiff therein as non-suited, instead of declaring the petitioner
as in default (erroneously stated by it as "non-suited.'') This is because while the court
may declare the plaintiff non-suited for non-appearance at the pre-trial or dismiss the
case for his non-appearance at the trial without motion on the part of the defendant
(Sec. 3, Rule 17), the latter may not be declared in default without such motion on the
part of the plaintiff. (Sec. 1, Rule 18; Trajano vs. Cruz, 80 SCRA 712.) A plaintiff
who makes no valid appearance at pre-trial may not ask that the defendant be
punished for the same shortcoming it was equally guilty of.

FACTS:
 Civil Case No. 126113 was an action filed by private respondent Belfast Surety
& Insurance Co., Inc. against herein petitioner and his father Benjamin R. Sarmiento,
Sr. for indemnification under an Indemnity Agreement executed by them in
connection with a bail bond. The case was assigned to Branch X of the Court of First
Instance of Manila presided over by respondent Judge Celestino C. Juan who had
since retired.
After the petitioner filed an answer with compulsory counterclaim, private
respondent filed a motion to dismiss the case against defendant Benjamin
R. Sarmiento, Sr., and to schedule the case for pre-trial. This motion was granted by
Judge Juan and the pre-trial was set on February 5, 1980, at 8:30 a.m.
At the said pre-trial, nobody appeared except Atty. Federico T. Castillo, Jr.,
counsel for the private respondent. However, the petitioner sent to the Court on the
same date an urgent motion for postponement stating therein that when he was
preparing to go to the Court, he felt severe stomach pain followed by loose bowel
movements, and he accordingly prayed that the pre-trial be postponed to another date.
The urgent motion for postponement filed by the petitioner was denied in the
order of Judge Juan dated February 5, 1980. On motion of Atty. Castillo, the
petitioner was "declared nonsuited" (should have been "as in default") and the private
respondent allowed to present its evidence ex-parte on February 26, 1980, at 8:30
a.m.
On February 25, 1980, the petitioner filed a motion for reconsideration of the
order of February 5, 1980. In his order of February 26, 1980, Judge Juan denied the
said motion for reconsideration "for lack of merit," and reiterated the permission for
the private respondent to present its evidence ex-parte.
It does not appear whether the ex-parte presentation of evidence by the private
respondent had already been accomplished, nor that a decision thereon had been
rendered. That such proceedings had not taken place could, however, be gathered
from the fact that on March 19, 1980, the petitioner filed a petition for certiorari with
the Supreme Court docketed as G.R. No. 53399 to annul the aforementioned orders of
Judge Juan dated February 5, 1980 and February 26, 1980. The said petition was
remanded to the Court of Appeals, and the said petition was denied due course and
ordered dismissed for lack of merit. Said decision is the subject of the present appeal
by certiorari.

ISSUES:
The petitioner assails the refusal of the respondent Court of Appeals to disturb the
questioned orders of Judge Juan which petitioner claims to have been issued in excess
of jurisdiction and with grave abuse of discretion. He contends that:
 (a) the pre-trial was premature inasmuch as, there having been no answer filed
by the private respondent to the petitioner's counterclaim alleged in his answer,
the "last pleading" has not yet been filed so as to authorize a pre-trial to be
conducted in accordance with Section 1, Rule 20, of the Rules of Court;
(b) there being no valid pre-trial, the trial court had no authority to declare him
as "non-suited", or more correctly, as in default, for his failure to appear at the
said pre-trial;
(c) assuming that there was a valid pre-trial, the trial court could not legally
declare the petitioner as in default due to his failure to be present thereat
inasmuch as the private respondent itself made no valid appearance at said pre-
trial because only its counsel appeared without any special authority to represent
his client at the said pre-trial; and
(d) it was a grave abuse of discretion on the part of the trial court to deny the
petitioner's urgent motion for postponement despite the merit of the ground
alleged therein, and the same thing is true with the denial of his motion to set
aside or lift the order declaring him in default.

RULING:
We see no merit in the petitioner's contention that the pretrial was prematurely
scheduled on the supposed ground that the last pleading had not been filed. In the
petition for certiorari docketed as G.R. No. 53399, the petitioner has alleged that he
filed his answer to the complaint containing a compulsory counterclaim on December
21, 1979 which was served on the counsel for the private respondent on the same
date. The pre-trial was scheduled to be held on February 5, 1980 or a month and a half
after the petitioner had filed his answer to the complaint in Civil Case No. 126113 and
private respondent served with a copy of the same. While it may be true that the
private respondent had not filed any answer to the counterclaim contained in the
petitioner's answer, such circumstance does not prevent the trial court from
conducting the pre-trial. As was observed by the respondent Court of Appeals in its
questioned decision: "If no answer (to the counterclaim) is timely filed, the pre-trial
order may issue. Otherwise, an unscrupulous party litigant can hold court processes
by the simple expedient of failing to answer."
The requirement that the pre-trial shall be scheduled "after the last pleading has
been filed" (Section 1, Rule 20, Rules of Court) is intended to fully apprise the court
and the parties of all the issues in the case before the pre-trial is conducted. It must be
remembered that the issues may only be ascertained from the allegations contained in
the pleadings filed by the parties. The last permissible pleading that a party may file
would be the reply to the answer to the last pleading of claim that had been filed in the
case, which may either be the complaint, a cross-claim. a counterclaim or a third party
complaint, etc. (Secs. 2 and 11, Rule 6, Rules of Court.) Any pleading asserting a
claim must be answered, and the failure to do so by the party against whom the claim
is asserted renders him liable to be declared in default in respect of such claim. (Sec.
10, Ibid.) There are, however, recognized exceptions to the rule, making the failure to
answer a pleading of claim as a ground for a default declaration, such as the failure to
answer a complaint in intervention (Sec. 2(c), Rule 12, Rules of Court), or a
compulsory counterclaim so intimately related to the complaint such that to answer to
same would merely require a repetition of the allegations contained in the complaint.
(Zamboanga Colleges, Inc. vs. Court of Appeals, 1 SCRA 870; Ballecer vs.
Bernardo, 18 SCRA 291; Agaton vs. Perez, 18 SCRA 1165.)
In the case presently considered, the nature of the counterclaim in the
petitioner's answer has not been made clear, except to categorize it as a compulsory
counterclaim. Such being the case, it is likely to be one where the answering thereof is
not necessary, and the failure to do so would not be a ground to be declared in default.
In any event, the private respondent's failure to answer the petitioner's counterclaim
after the period to file the answer had lapsed is obstacle to holding a pre-trial. The
requirement that the last pleading must have been filed before a pre-trial may be
scheduled should more appropriately be construed to mean not only if the last
pleading had been actually filed, but also if the period for filing the same had
expired. cdll

We, however, find merit in the petitioner's two other contentions. The denial
by Judge Juan of the petitioner's motion to postpone the pre-trial scheduled on
February 5, 1980 may have appeared valid at the outset, considering that it was filed
at the last minute and was not accompanied by a medical certificate although the
ground alleged was illness on the part of the petitioner. Nonetheless, a different
appraisal of the petitioner's plea should have been made after the petitioner filed a
motion for reconsideration which was made under oath. Due regard should have been
given to the repeated pronouncements by this Court against default judgments and
proceedings that lay more emphasis on procedural niceties to the sacrifice of
substantial justice. After all, the ex-parte presentation of evidence had not yet been
conducted nor had a decision been rendered in the case. It appeared to be a simple
matter of giving the petitioner a chance to have his day in court in order to defend
himself against the claim filed by the private respondent. As it turned out, the
procedure adopted by the trial court proved unprofitable and disadvantageous to all
parties concerned, including the courts. The case would have been disposed of in a
much easier and more expeditious manner if the trial court had heeded the petitioner's
simple plea for a chance to be heard. Thereby, all the proceedings taken subsequent to
the disputed orders of the trial court could have been avoided, and the Court of
Appeals and the Supreme Court spared from the trouble of resolving the petitions
filed before them.
The petitioner also has valid reason to complain about the apparent over-
anxiousness of the trial court to finish the case in summary fashion. The petitioner bad
manifested to the Court that his inability to appear before the pre-trial was due to a
sudden ailment that befell him while he was preparing to go to Court. While it is true
that the motion for postponement was not accompanied by a medical certificate, it
must be considered that not every ailment is attended to by a physician, or if so, a
medical certificate under oath as required by the Rules could be secured within the
limited time available. There has been no refutation of the cause of the non-
appearance of the petitioner as claimed by the latter. Said cause had been reiterated
under oath in the petitioner's motion for reconsideration to which the trial court turned
a deaf ear. Any suspicion that the petitioner was merely suing for delay is readily
dispelled by the fact that the pre-trial was being set for the first time, and that the
petitioner took immediate steps against the refusal of the trial court to set aside the
default declaration and to pursue remedies steadfastly against the same in the higher
tribunals.
The declaration default on the part of the petitioner may not be considered as
entirely proper under the circumstances surrounding the same. It is undenied that
nobody appeared at the pre-trial except the counsel for the private respondent. Under
settled doctrines, not even the private respondent may be considered as having
appeared at the said pre-trial, it not having made appearance thereat through a duly
authorized representative. In such a situation, the trial court would have acted more
properly if it dismissed the case, or declared the private respondent as plaintiff therein
as non-suited, instead of declaring the petitioner as in default (erroneously stated by it
as "non-suited.") This is because while the court may declare the plaintiff non-suited
for non-appearance at the pre-trial or dismiss the case for his non-appearance at the
trial without motion on the part of the defendant (Sec. 3, Rule 17), the latter may not
be declared in default without such motion on the part of the plaintiff. (Sec. 1. Rule
18; Trajano vs. Cruz, 80 SCRA 712.) A plaintiff who makes no valid appearance at
pre-trial may not ask that the defendant be punished for the same shortcoming it was
equally guilty of.