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[SEVERO JOSUE v. FAUSTO DIAZ](https://lawyerly.ph/juris/view/c1c83?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 41697, Oct 30, 1936 ]

SEVERO JOSUE v. FAUSTO DIAZ +

DECISION

63 Phil. 652

[ G. R. No. 41697, October 30, 1936 ]

SEVERO JOSUE, PLAINTIFF AND APPELLEE, VS. FAUSTO DIAZ, DEFENDANT AND APPELLANT.

D E C I S I O N

ABAD SANTOS, J.:

Plaintiff and appellee brought an action against the defendant and appellant in the Court  of First Instance of Ilocos Norte for the recovery of certain  parcels of land and of the sum of P1,680 by  way  of  damages.   Defendant filed his  answer containing a general denial and praying for the dismissal of the suit.  When the  case was  called for trial plaintiff appeared with his  counsel, but the defendant failed to appear  personally,  and in view thereof his counsel prayed for the postponement  of the hearing. Upon objection of counsel for the opposite  party, the court denied the petition and  proceeded to hear the plaintiff's evidence.   Upon the evidence thus presented a judgment was  rendered declaring the plaintiff to be the owner  of the parcels of  land described in the  complaint.  The  decision was  rendered  on  December 27, 1933, and  on January 24, 1934, the defendant filed a motion praying that the judgment by default be set aside on the ground that his failure to appear at the trial was due to illness. With his motion there were filed  a  medical  certificate  showing that the defendant  was under treatment  for  acute gastritis on the date that the case was called for trial,  and an affidavit showing that he had a meritorious defense.

Under section 113 of the  Code of Civil Procedure the court may  relieve a party from a judgment taken against him  through mistake, inadvertence, surprise, or excusable neglect, provided that application therefor  be made within a reasonable time,  but in no case exceeding six months after such  judgment was taken., In  construing this section  this court  has held that where  it  appears that a judgment was rendered against a person through mistake, inadvertence, surprise or excusable neglect, and it further appears on the record that he has a meritorious defense, the judgment should be set aside with leave to answer and defend on  the merit.   (Bank  of  the  Philippine Islands vs. De Coster, 47 Phil.,  594.)

In the case at bar, the record shows that the failure of the defendant to appear at  the  trial was not due to any negligence on  his part, but to a circumstance over  which he had no  control.  There is also  sufficient showing that he has a meritorious defense.  His  motion to set aside the judgment by default should  have been granted.

It results that the judgment appealed from must be set aside,  and the case remanded to the court below for further  proceedings  in accordance with  this  opinion.  So ordered.

Avanceña, C.  J.,  Villa-Real, Imperial, Diaz, and Laurel, JJ., concur.

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