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[FRANCISCO J. GONZALEZ v. PAULINA FRANCISCO](https://lawyerly.ph/juris/view/c1399?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 25976, Dec 16, 1926 ]

FRANCISCO J. GONZALEZ v. PAULINA FRANCISCO +

DECISION

49 Phil. 747

[ G. R. No. 25976, December 16, 1926 ]

FRANCISCO J. GONZALEZ AND VICENTE MAURICIO, PLAINTIFFS AND APPELLEES, VS. PAULINA FRANCISCO, DEFENDANT AND APPELLANT.

D E C I S I O N

OSTRAND, J.:

This action is brought to foreclose a mortgage for  the sum of P40,000, with interest, on a parcel of land situated in the District of  Santa  Ana, City of  Manila.   Summons was served  upon the defendant on July 1,  1925, and  her appearance was filed on the 20th of the same month.  On July 30, counsel for  the plaintiffs moved that the defendant be declared in default on  the ground that no copy of the appearance had  been served on the plaintiffs or  the latter's counsel, and on the following day  the defendant was declared in default for not having presented her  answer.   On the  same  day, the defendant  filed an answer denying generally and specifically all the allegations of  the complaint, but as  far as the record shows, again  failed to serve  copy upon the adverse party, and upon hearing, without notice to the  defendant,  judgment was rendered on August 7, 1925 in favor of the plaintiffs  and in accordance with the prayer of the complaint.

On September 4, the defendant's counsel  filed a motion for reconsideration  in which he  alleged that he mailed copies, both of the appearance and of the answer, to  the attorney for the plaintiffs before filing the documents; that said attorney consequently must be presumed to  have  received due notice in the ordinary  course of the mails; that the defendant had no notice of the trial, and that, therefore the judgment rendered by default should be set aside and the case reopened.

The motion  for reconsideration was  not accompanied by an affidavit of merit nor was there any intimation that the defendant had a  valid defense, and for this reason  the motion was denied  by the court below.   Upon appeal by the defendant to this court, the appellant presents five assignments of error, the sum and substance  of which is that the trial court erred in denying the motion for reconsideration and in not reopening the case.

The failure of the appellant to have  her motion for the setting aside of the default accompanied by an affidavit of merit is fatal to her contentions.   The rule that a motion for the  setting aside of  a judgment by default must be accompanied by an affidavit of merit or its equivalent, is so well established as to require no discussion.   (Wahl and Wahl vs. Donaldson, Sims & Co., 2 Phil., 301; Daipan vs. Sigabu, 25 Phil., 184; Coombs  vs. Santos, 24 Phil.,  446; Real Monasterio de Santa Clara vs. Villamar, 33 Phil., 411.) There is an exception to this rule when the judgment has been rendered without jurisdiction or before the defendant was in default,  but  such is not  the case here.  As far as the record shows, no copies neither of the appearance nor of the answer, were served upon the plaintiffs;  the documents were therefore not filed in accordance with the rules of the court and the defendant was in default  when the case was tried and the judgment rendered.

The judgment of the court below and the order denying the motion for setting aside the default are affirmed with the costs against the appellant.  So ordered.

Avanceña, C. J.,  Johnson, Street,  Malcolm,  Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.

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