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Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 76351 October 29, 1993

VIRGILIO B. GUILR, petitioner,vs.COURT O! PPELS "#$ SENEN B. GUILR, respondents.

Jose F. Manacop for petitioner.

Siruello, Muyco & Associates Law Office for private respondent.

BELLOSILLO, J.:

This is a petition for revie on certiorarisee!in" to reverse and set aside the Decisionof the #ourt of $ppeals in #$%&R #V No. '()(( declarin" null and void the orders of*( and *+ $pril, )-), the ud"/ent b0 default of *+ 1ul0 )-), and the order of **October )-) of the then #ourt of First Instance of Ri2al, Pasa0 #it0, 3ranch (', anddirectin" the trial court to set the case for pre%trial conference.

Petitioner Vir"ilio and respondent Senen are brothers4 Vir"ilio is the 0oun"est of seven5-6 children of the late Ma7i/iano $"uilar, hile Senen is the fifth. On *8 October)+), the to brothers purchased a house and lot in Para9a:ue here their fathercould spend and eno0 his re/ainin" 0ears in a peaceful nei"hborhood. Initiall0, thebrothers a"reed that Vir"ilio;s share in the co%onership as to%thirds hile that of

Senen as one%third. 30 virtue of a ritten /e/orandu/ dated *( Februar0 )-',Vir"ilio and Senen a"reed that henceforth their interests in the house and lot should bee:ual, ith Senen assu/in" the re/ainin" /ort"a"e obli"ation of the ori"inal onersith the Social Securit0 S0ste/ 5SSS6 in e7chan"e for his possession and eno0/entof the house to"ether ith their father.

Since Vir"ilio as then dis:ualified fro/ obtainin" a loan fro/ SSS, the brothersa"reed that the deed of sale ould be e7ecuted and the title re"istered in the/eanti/e in the na/e of Senen. It as further a"reed that Senen ould ta!e care oftheir father and his needs since Vir"ilio and his fa/il0 ere sta0in" in #ebu.

$fter Ma7i/iano $"uilar died in )-pon issues bein" oined, the case as set for pre%trial on *+ $pril )-) ith thela0ers of both parties notified of the pre%trial, and served ith the pre%trial order, ithprivate respondent e7ecutin" a special poer of attorne0 to his la0er to appear at thepre%trial and enter into an0 a/icable settle/ent in his behalf.1

On *' $pril )-), $tt0. Manuel S. Tono"banua, counsel for respondent, filed a /otionto cancel pre%trial on the "round that he ould be acco/pan0in" his ife toDu/a"uete #it0 here she ould be a principal sponsor in a eddin".

On *( $pril )-), findin" the reasons of counsel to be ithout /erit, the trial courtdenied the /otion and directed that the pre%trial should continue as scheduled.

?hen the case as called for pre%trial as scheduled on *+ $pril )-), plaintiff and hiscounsel appeared. Defendant did not appear4 neither his counsel in hose favor hee7ecuted a special poer of attorne0 to represent hi/ at the pre%trial. #onse:uentl0,the trial court, on /otion of plaintiff, declared defendant as in default and ordered

reception of plaintiff;s evidence ex parte.

On - Ma0 )-), defendant throu"h counsel filed an o/nibus /otion to reconsider theorder of default and to defer reception of evidence. The trial court denied the /otionand plaintiff presented his evidence.

On *+ 1ul0 )-), renderin" ud"/ent b0 default a"ainst defendant, the trial court foundhi/ and plaintiff to be co%oners of the house and lot, in e:ual shares on the basis oftheir ritten a"ree/ent. @oever, it ruled that plaintiff has been deprived of hisparticipation in the propert0 b0 defendant;s continued eno0/ent of the house and lot,free of rent, despite de/ands for rentals and continued /aneuvers of defendants, todela0 partition. The trial court also upheld the ri"ht of plaintiff as co%oner to de/and

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partition. Since plaintiff could not a"ree to the a/ount offered b0 defendant for thefor/er;s share, the trial court held that this propert0 should be sold to a third personand the proceeds divided e:uall0 beteen the parties.

The trial court li!eise ordered defendant to vacate the propert0 and pa0 plaintiffP,*''.'' as rentals2fro/ 1anuar0 )-A up to the date of decision plus interest fro/the ti/e the action as filed.

On - Septe/ber )-), defendant filed an o/nibus /otion for ne trial but on **

October )-) the trial court denied the /otion.

Defendant sou"ht relief fro/ the #ourt of $ppeals pra0in" that the folloin" orders anddecision of the trial court be set asideB 5a6 the order of *( $pril )-' den0in"defendants /otion for postpone/ent of the pre%trial set on *+ $pril )-)4 5b6 the orderof *+ $pril )-) declarin" hi/ in default and authori2in" plaintiff to present hisevidenceex-parte4 5e6 the default ud"/ent of *+ 1ul0 )-)4 and, 5d6 the order dated** October )-) den0in" his o/nibus /otion for ne trial.

On + October )8+, the #ourt of $ppeals set aside the order of the trial court of *+$pril )-) as ell as the assailed ud"/ent rendered b0 default., The appellate courtfound the e7planation of counsel for defendant in his /otion to cancel pre%trial assatisfactor0 and devoid of a /anifest intention to dela0 the disposition of the case. It

also ruled that the trial court should have "ranted the /otion for postpone/ent filed b0counsel for defendant ho should not have been declared as in default for theabsence of his counsel.

Petitioner no co/es to us alle"in" that the #ourt of $ppeals erred 56 in not holdin"that the /otion of defendant throu"h counsel to cancel the pre%trial as dilator0 incharacter and 5*6 in re/andin" the case to the trial court for pre%trial and trial.

The issues to be resolved are hether the trial court correctl0 declared respondent asin default for his failure to appear at the pre%trial and in alloin" petitioner to presenthis evidence ex-parte, and hether the trial court correctl0 rendered the defaultud"/ent a"ainst respondent.

?e find /erit in the petition.

$s re"ards the first issue, the la is clear that the appearance of parties at the pre%trialis /andator0.3$ part0 ho fails to appear at a pre%trial conference /a0 be non%suitedor considered as in default.%In the case at bar, here private respondent and counselfailed to appear at the scheduled pre%trial, the trial, court has authorit0 to declarerespondent in default.5

$lthou"h respondent;s counsel filed a /otion to postpone pre%trial hearin", the "rant ordenial thereof is ithin the sound discretion of the trial court, hich should ta!e into

account to factors in the "rant or denial of /otions for postpone/ent, na/el0B 5a6 thereason for the postpone/ent and 5b6 the /erits of the case of /ovant.6

In the instant case, the t rial court found the reason stated in the /otion of counsel forrespondent to cancel the pre%trial to be ithout /erit. #ounsel;s e7planation that hehad to "o to b0 boat as earl0 as *A March )-) to fetch his ife and acco/pan0 her toa eddin" in Du/a"uete #it0 on *- $pril )-) here she as one of the principalsponsors, cannot be accepted. ?e find it insufficient to ustif0 postpone/ent of the pre%trial, and the #ourt of $ppeals did not act isel0 in overrulin" the denial. ?e sustainthe trial court and rule that it did not abuse its discretion in den0in" the postpone/entfor lac! of /erit. #ertainl0, to arrant a postpone/ent of a /andator0 process as pre%trial ould re:uire /uch /ore than /ere attendance in a social function. It is ti/eindeed e e/phasi2e that there should be /uch /ore than /ere perfunctor0treat/ent of the pre%trial procedure. Its observance /ust be ta!en seriousl0 if it is toattain its obective, i.e., the speed0 and ine7pensive disposition of cases.

Moreover, the trial court denied the /otion for postpone/ent three 5(6 da0s before thescheduled pre%trial. If indeed, counsel for respondent could not attend the pre%trial onthe scheduled date, respondent at least should have personall0 appeared in order notto be declared as in default. 3ut, since nobod0 appeared for hi/, the order of the trialcourt declarin" hi/ as in default and directin" the presentation of petitioner;s evidenceex parteas proper.7

?ith re"ard to the /erits of the ud"/ent of the trial court b0 default, hich respondentappellate court did not touch upon in resolvin" the appeal, the #ourt holds that on thebasis of the pleadin"s of the parties and the evidence presented ex parte, petitionerand respondents are co%oners of subect house and lot in e:ual shares4 either one ofthe/ /a0 de/and the sale of the house and lot at an0 ti/e and the other cannotobect to such de/and4 thereafter the proceeds of the sale shall be divided e:uall0accordin" to their respective interests.

Private respondent and his fa/il0 refuse to pa0 /onthl0 rentals to petitioner fro/ theti/e their father died in )-A and to vacate the house so that it can be sold to thirdpersons. Petitioner alle"es that respondent;s continued sta0 in the propert0 hinders itsdisposal to the preudice of petitioner. On the part of petitioner, he clai/s that he

should be paid to%thirds 5*=(6 of a /onthl0 rental of P*,

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