[No. 2995. March 27, 1907.

VICTORIANO SALAZAR, plaintiff, vs. CAYETANA

SALAZAR, defendant.

PLEADING AND PRACTICE; COMPROMISE;

JUDGMENT BY DEFAULT; MISTAKE.—In view of the
evidence showing a compromise between the parties, it was
natural and logical that the plaintiff herein believed that the
action brought against him by the defendant herein had been
ended by the aforesaid compromise and that he was relieved,
therefore, from the duty of filing his answer. Such belief being.
excusable and having prevented the plaintiff herein from
making a defense that would have been good and efficacious,
this case comes within the provisions of section 513 of the Code
of Civil Procedure, and the judgment by default must be set
aside and a new trial ordered.

ORIGINAL ACTION in the Supreme Court.

The facts are stated in the opinion of the court.
Agoncillo & Ilustre, for plaintiff.
C. H. Gest, for defendant
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184 PHILIPPINE REPORTS ANNOTATED

Salazar vs. Salazar

MAPA, J.:

In an action instituted in the Court of First Instance of

Mindoro, in the matter of losses and damages, between
Cayetana Salazar as plaintiff and Victoriano Salazar as
defendant, on October 2, 1905, the court rendered
judgment against the defendant by default, ordering him to
pay to the plaintiff the sum of 0,000 pesos, together with
the costs of the action. On November 10 of the same year
Victoriano Salazar filed a complaint in this court alleging
that he had been unjustly deprived of the right of defense
in the said case and asking that the said judgment be
anulled and that this court order a new trial by virtue of1
the provisions of section 513 of the Code of Civil Procedure.
The record together with such proofs as the parties have
found it proper to present herein, show as proven the
following facts:
First. That on March 11, 1905, the court below ordered
cited by subpœna, among other persons, Victoriano Salazar
as the defendant in the cause above mentioned, to appear
in said cause together with his witnesses at 8 o'clock on the
morning of the 13th day of the same month and year; and
that said citation could not be served for the reason that
Salazar could not be found. This fact is sufficiently shown
in the return on said order as made by the sheriff at the
foot of said citation. The literal wording of this return of
the 13th of March, is as follows: "On this date I made all
efforts and used all possible ways and means to obtain
personal service on the persons mentioned in the preceding
citation, and I have been. informed that the said persons
can not be found in this the town of Calapan, nor in any
other accessible locality of this province; I have made the
necessary investigations personally for the purpose of
ascertaining the actual whereabouts of the same and
according to information received by me, said persons or
individuals can not be found within the Province of
Mindoro nor in this, the town of Calapan, but in the town

___________

11 Pub. Laws, 466.

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VOL. 8, MARCH 27, 1907 185

Salazar vs. Salazar

of Bauan of the Province of Batangas where they have been

for some time." (Plaintiff's Exhibit B.)
Second. That on March 14, 1905, the court below entered
an order finding Victoriano Salazar in default in the
following terms: "In this case the defendants after having
been served in due form with the complaint and summons
and not having appeared nor answered to the complaint,
and the time fixed by the law having expired, the court
finds the defendants in default, and due entry and note will
be made of this finding in accordance with law." (Plaintiff's
Exhibit C.)
Third. That on October 2, 1905, judgment in default was
rendered against Victoriano Salazar ordering him to pay
the sum of 6,000 pesos to Cayetana Salazar, together with
the costs of the action. (Plaintiff's Exhibit A.)
The record in this case does not show the date of the
filing of the complaint by Cayetana Salazar in the Case
referred to, neither is there shown the date of the citation
and service of the same upon Victoriano Salazar wherein
he could answer to such complaint. It appears to this court,
however, that this defendant, Victoriano Salazar, was
undoubtedly cited and served with the complaint in
accordance with law and that this was long before the 11th
of March, 1905. This fact is proven and evidenced by
Exhibit G of the plaintiff, which exhibit is a copy of the
pleading filed herein by Attorney F. E. Dominguez,
representing Victoriano Salazar, and which pleading reads
as follows: "Now comes the defendant and asks the court to
allow and permit him to file his answer to the complaint
filed against him by the plaintiff * * *." Victoriano Salazar
could not have said this if he had not been notified or
served with the complaint that he was to answer, as he
said on the 29th of March, 1904, the date of the filing of his
said pleading. He was allowed the permission asked for the
purpose of answering such complaint, and the time fixed
for the filing of such answer was five days, yet he never at
any time filed his said answer referred to, all of which is
shown by plaintiff's Exhibit H. And notwithstanding it was
not until March 11, 1905, a year after that
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186 PHILIPPINE REPORTS ANNOTATED

Salazar vs. Salazar

date, that he was adjudged in default, and not only was

said default entered, but on the said 11th day of March he
was cited to appear with his witnesses on March 13,
judgment in default only being entered and rendered
against him on the day following, March 14, all of which
appears and indicates that that which determined
principally the allegation and judgment against him by
default was for his failure to appear in the case on the 13th
of March.
If this was the case, and such appears to have been the
reason as shown in the order and judgment of default on'
which the same is based, not only for not having answered
the complaint but also for not having appeared; if this was
really the case, then the order of the court below was
unjustified as pertains to this last part of the same, for the
reason that Victoriano Salazar could hardly appear on the
13th, not having received the citation, which under order of
date the 11th was directed to Lim for this purpose.
But this it not precisely the true point' of view under
which the question should be settled. The plaintiff herein,
Victoriano Salazar, explains in his pleading the reasons he
had for not having answered the complaint of Cayetana
Salazar. The complaint was not answered, he says, for the
following reasons:

"(a) That a transaction or compromise had been executed, before a

notary public, and between the attorney for the defendant herein
(Cayetana Salazar) with the knowledge and consent of the same,
and the now plaintiff herein, then a defendant, and Paulino
Villarosa, then also a defendant, wherein the litigation pending
between them was terminated and compromised. This -was on the
25th day of June, 1903.
"(b) That he was called upon to appear again in March, 1904:,
and employed and engaged Attorney Dominguez, of the firm of
Montagne & Dominguez, to attend to the case for the purpose of
having Dominguez show in court said transaction and
compromise and to do whatever else was required by law to have
the case brought to a happy conclusion.
"(c) That the said Dominguez obligated himself to do

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Salazar vs. Salazar

this and, on the other hand the attorney then representing the
present defendant, filed in said court in September, 1904, a
written motion asking for the dismissal of the cause based on the
compromise and transaction above mentioned; that the present
plaintiff not only believed that Dominguez had complied with his
duties but that the case had been definitely terminated. For this
reason he did not answer the complaint or pay any further
attention to the matter."

These facts have been shown in the case. The transaction

or compromise entered into between Cayetana and
Victoriano Salazar has been proven by Exhibit I of the
plaintiff, and is a certified copy executed by a notary of the
original instrument covering said transaction, which
instrument was left in the possession of Macario Adriatico,
the attorney for Cayetana Salazar. Said instrument
covering this transaction appears executed before a notary
public and was so executed for the purpose of compromise.
as is stated in the text of the same: "The civil complaint
filed against Sres. Salazar and Villarosa by Sr. Adriatico,
in the name and in representation of Doña Cayetana, so
that the said complaint remains completely terminated,
and without having the right to continue the same at any
time." Exhibit E of the plaintiff, a certified copy of the
pleading filed by Cayetana Salazar in the original case on
September 20, 1904, corroborates conclusively the certainty
of the transaction referred to, for the reason that such
compromise or transaction is expressly referred to in the
same. Cayetana Salazar says in this pleading, in effect, the
following: "The attorney, Sr. Adriatico (her attorney in that
case), filed a complaint in this court; that the complaint
being filed, the defendants (Victoriano Salazar and Paulino
Villarosa) compromised the case under agreement with my
attorney and with my consent."
The powers given to Attorney F. E. Dominguez for the
purpose of answering the complaint of Cayetana Salazar
and making a defense against the same through the
compromise above mentioned, is proven by Exhibit G, a
copy of the pleading filed by said attorney, the tenor of
which shows without doubt the truth of such commission or
duty.
And with reference to the pleading filed in September,
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188 PHILIPPINE REPORTS ANNOTATED

Salazar vs. Salazar

1904, by the attorney for Cayetana Salazar asking for the

dismissal of the action by reason of the aforesaid
compromise or transaction, we have the testimony of a
witness in the original case who affirms that he saw and
read the same: "When you (meaning Attorney Ilustre) sent
me to the court to examine the record, I saw and read a
document signed by the attorney and attorney in fact of the
plaintiff Cayetana Salazar, Sr. Adriatico, in which he asked
for the dismissal in view of the compromise entered into
between himself and the defendants." The fact testified to
by this witness is the more worthy of belief and credence
inasmuch as Cayetana Salazar has admitted in court the
existence of such compromise or transaction in her
pleading referred to above. The petition asking for the
dismissal of the action was a natural and logical
consequence of the compromise and transaction entered
into precisely for the object, as is said in the same, of
completely terminating the complaint filed by Cayetana
Salazar.
 In view of these proofs we consider it natural and logical
that Victoriano Salazar believed, and that such belief was
well founded, that the action brought against him by
Cayetana Salazar had been ended in fact by virtue of the
aforesaid compromise and that he was therefore, relieved
from the duty of filing his answer. Perhaps technically such
belief would be erroneous, but it was, without doubt,
excusable and the causes were reasonable why he did not
answer; and this having been the cause that prevented
Salazar from making or utilizing a defense which would
have been good and efficacious—that is, the aforesaid
transaction or compromise—it is seen that this is a case
provided for in section 513 of the Code of Civil Procedure as
invoked by said Salazar in his complaint herein.
The attorney for Cayetana Salazar has opposed the
admission of the exhibits hereinbefore mentioned, alleging
that the best proofs are the original records referring to the
same. These said exhibits being certified copies of certain
proceedings appearing in the original records, and so
certified and issued by the clerk of the court who has in
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VOL. 8, MARCH 27, 1907 189

Salazar vs. Salazar

his custody such records, such authentic documents should

have legal consideration, and are, therefore, admissible as
proof in the case. The opposition of Cayetana Salazar to
their admission is without basis in law and should
consequently be dismissed.
All of the defense of Cayetana Salazar consists solely, it
appears, in the fact that the judgment, the annulment of
which is now in question, has been rendered in her favor
and in her name and office as administratrix of the estate
of her deceased husband, Mariano Castan, and the action
to which Victoriano Salazar refers in his complaint now
before this court had been brought by her in her own name
and not in her capacity as administratrix. It appears,
without doubt, from all the proofs before us that this is a
case brought from the first in the personal name and
capacity of Cayetana Salazar (that such is the title of the
case that appears in all of the exhibits referred to in the
same, including that exhibit containing the judgment
rendered in the case), and that judgment was finally
rendered in her favor in her capacity as said
administratrix. One' witness testifies emphatically that she
obtained her letters of administration of the estate of her
 deceased husband on the same day on which the judgment
was rendered. This being the fact she could not have begun
the action as the administratrix but in her own personal
name.
Wherefore, in view of the above considerations, we annul
the judgment rendered by the court below on October 2,
1905, and grant a new trial of the case wherein Victoriano
Salazar shall be permitted to answer the complaint of
Cayetana Salazar within the time fixed by rule, without
special mention as to costs. After the expiration of twenty
days from the notification of this decision let judgment be
entered in accordance herewith, and ten days thereafter let
the case be remanded to the court from whence it came for
proper action. So ordered.

Arellano, C. J., Torres, Willard, and Tracey, JJ.,

concur.

Judgment set aside; new trial ordered.

190

190 PHILIPPINE REPORTS ANNOTATED

Pilapil Et Al vs. Ponciano.

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