Republic of the Philippines

SUPREME 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 certiorari see!in" to reverse and set aside the Decision
of 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 (', and
directin" 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 seven
5-6 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 father
could spend and en.o0 his re/ainin" 0ears in a peaceful nei"hborhood. Initiall0, the
brothers 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 be
e:ual, ith Senen assu/in" the re/ainin" /ort"a"e obli"ation of the ori"inal oners
ith the Social Securit0 S0ste/ 5SSS6 in e7chan"e for his possession and en.o0/ent
of the house to"ether ith their father.
Since Vir"ilio as then dis:ualified fro/ obtainin" a loan fro/ SSS, the brothers
a"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 of
their father and his needs since Vir"ilio and his fa/il0 ere sta0in" in #ebu.
$fter Ma7i/iano $"uilar died in ,)-<, petitioner de/anded fro/ private respondent
that the latter vacate the house and that the propert0 be sold and proceeds thereof
divided a/on" the/.
3ecause of the refusal of respondent to "ive in to petitioner;s de/ands, the latter filed
on ,* 1anuar0 ,)-) an action to co/pel the sale of the house and lot so that the the0
could divide the proceeds beteen the/.
In his co/plaint, petitioner pra0ed that the proceeds of the sale, be divided on the
basis of to%thirds 5*=(6 in his favor and one%third 5,=(6 to respondent. Petitioner also
pra0ed for /onthl0 rentals for the use of the house b0 respondent after their father
died.
In his anser ith counterclai/, respondent alle"ed that he had no ob.ection to the
sale as lon" as the best sellin" price could be obtained4 that if the sale ould be
effected, the proceeds thereof should be divided e:uall04 and, that bein" a co%oner,
he as entitled to the use and en.o0/ent of the propert0.
>pon issues bein" .oined, the case as set for pre%trial on *+ $pril ,)-) ith the
la0ers of both parties notified of the pre%trial, and served ith the pre%trial order, ith
private respondent e7ecutin" a special poer of attorne0 to his la0er to appear at the
pre%trial and enter into an0 a/icable settle/ent in his behalf.
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On *' $pril ,)-), $tt0. Manuel S. Tono"banua, counsel for respondent, filed a /otion
to cancel pre%trial on the "round that he ould be acco/pan0in" his ife to
Du/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 court
denied 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 his
counsel appeared. Defendant did not appear4 neither his counsel in hose favor he
e7ecuted 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 the
order of default and to defer reception of evidence. The trial court denied the /otion
and plaintiff presented his evidence.
On *+ 1ul0 ,)-), renderin" .ud"/ent b0 default a"ainst defendant, the trial court found
hi/ and plaintiff to be co%oners of the house and lot, in e:ual shares on the basis of
their ritten a"ree/ent. @oever, it ruled that plaintiff has been deprived of his
participation in the propert0 b0 defendant;s continued en.o0/ent of the house and lot,
free of rent, despite de/ands for rentals and continued /aneuvers of defendants, to
dela0 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 the
for/er;s share, the trial court held that this propert0 should be sold to a third person
and the proceeds divided e:uall0 beteen the parties.
The trial court li!eise ordered defendant to vacate the propert0 and pa0 plaintiff
P,,*''.'' as rentals
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fro/ 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 and
decision 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 order
of *+ $pril ,)-) declarin" hi/ in default and authori2in" plaintiff to present his
evidence ex-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 court
found the e7planation of counsel for defendant in his /otion to cancel pre%trial as
satisfactor0 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 b0
counsel for defendant ho should not have been declared as in default for the
absence of his counsel.
Petitioner no co/es to us alle"in" that the #ourt of $ppeals erred 5,6 in not holdin"
that the /otion of defendant throu"h counsel to cancel the pre%trial as dilator0 in
character 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 as
in default for his failure to appear at the pre%trial and in alloin" petitioner to present
his evidence ex-parte, and hether the trial court correctl0 rendered the default
.ud"/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%trial
is /andator0.
3
$ part0 ho fails to appear at a pre%trial conference /a0 be non%suited
or considered as in default.
%
In the case at bar, here private respondent and counsel
failed to appear at the scheduled pre%trial, the trial, court has authorit0 to declare
respondent in default.
5
$lthou"h respondent;s counsel filed a /otion to postpone pre%trial hearin", the "rant or
denial 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 the
reason for the postpone/ent and 5b6 the /erits of the case of /ovant.
6
In the instant case, the trial court found the reason stated in the /otion of counsel for
respondent to cancel the pre%trial to be ithout /erit. #ounsel;s e7planation that he
had to "o to b0 boat as earl0 as *A March ,)-) to fetch his ife and acco/pan0 her to
a eddin" in Du/a"uete #it0 on *- $pril ,)-) here she as one of the principal
sponsors, 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 sustain
the trial court and rule that it did not abuse its discretion in den0in" the postpone/ent
for 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/e
indeed e e/phasi2e that there should be /uch /ore than /ere perfunctor0
treat/ent of the pre%trial procedure. Its observance /ust be ta!en seriousl0 if it is to
attain its ob.ective, i.e., the speed0 and ine7pensive disposition of cases.
Moreover, the trial court denied the /otion for postpone/ent three 5(6 da0s before the
scheduled pre%trial. If indeed, counsel for respondent could not attend the pre%trial on
the scheduled date, respondent at least should have personall0 appeared in order not
to be declared as in default. 3ut, since nobod0 appeared for hi/, the order of the trial
court declarin" hi/ as in default and directin" the presentation of petitioner;s evidence
ex parte as proper.
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?ith re"ard to the /erits of the .ud"/ent of the trial court b0 default, hich respondent
appellate court did not touch upon in resolvin" the appeal, the #ourt holds that on the
basis of the pleadin"s of the parties and the evidence presented ex parte, petitioner
and respondents are co%oners of sub.ect house and lot in e:ual shares4 either one of
the/ /a0 de/and the sale of the house and lot at an0 ti/e and the other cannot
ob.ect to such de/and4 thereafter the proceeds of the sale shall be divided e:uall0
accordin" to their respective interests.
Private respondent and his fa/il0 refuse to pa0 /onthl0 rentals to petitioner fro/ the
ti/e their father died in ,)-A and to vacate the house so that it can be sold to third
persons. Petitioner alle"es that respondent;s continued sta0 in the propert0 hinders its
disposal to the pre.udice 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*,<''.'' or the su/ of
P,,+''.''.
In resolvin" the dispute, the trial court ordered respondent to vacate the propert0 so
that it could be sold to third persons and the proceeds divided beteen the/ e:uall0,
and for respondent to pa0 petitioner one%half 5,=*6 of P*,<''.'' or the su/ of
P,,*''.'' as /onthl0 rental, confor/abl0 ith their stipulated sharin" reflected in their
ritten a"ree/ent.
?e uphold the trial court in rulin" in favor of petitioner, e7cept as to the effectivit0 of the
pa0/ent of /onthl0 rentals b0 respondent as co%oner hich e here declare to
co//ence onl0 after the trial court ordered respondent to vacate in accordance ith
its order of *+ 1ul0 ,)-).
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$rticle <)< of the #ivil #ode provides that no co%oner shall be obli"ed to re/ain in
the co%onership, and that each co%oner /a0 de/and at an0 ti/e partition of the
thin" oned in co//on insofar as his share is concerned. #orollar0 to this rule, $rt.
<)8 of the #ode states that henever the thin" is essentiall0, indivisible and the co%
oners cannot a"ree that it be, allotted to one of the/ ho shall inde/nif0 the others,
it shall be sold and its proceeds accordin"l0 distributed. This is resorted to 5,6 hen
the ri"ht to partition the propert0 is invo!ed b0 an0 of the co%oners but because of the
nature of the propert0 it cannot be subdivided or its subdivision ould pre.udice the
interests of the co%oners, and 5b6 the co%oners are not in a"ree/ent as to ho
a/on" the/ shall be allotted or assi"ned the entire propert0 upon proper
rei/burse/ent of the co%oners. In one case,
&
this #ourt upheld the order of the trial
court directin" the holdin" of a public sale of the properties oned in co//on pursuant
to $rt. <)8 of the #ivil #ode.
@oever, bein" a co%oner respondent has the ri"ht to use the house and lot ithout
pa0in" an0 co/pensation to petitioner, as he /a0 use the propert0 oned in co//on
lon" as it is in accordance ith the purpose for hich it is intended and in a /anner not
in.urious to the interest of the other co%oners.
9
Cach co%oner of propert0 held pro
indiviso e7ercises his ri"hts over the hole propert0 and /a0 use and en.o0 the sa/e
ith no other li/itation than that he shall not in.ure the interests of his co%oners, the
reason bein" that until a division is /ade, the respective share of each cannot be
deter/ined and ever0 co%oner e7ercises, to"ether ith his co%participants .oint
onership over the pro indiviso propert0, in addition to his use and en.o0/ent of the
sa/e.
1'
Since petitioner has decided to enforce his ri"ht in court to end the co%onership of the
house and lot and respondent has not refuted the alle"ation that he has been
preventin" the sale of the propert0 b0 his continued occupanc0 of the pre/ises, .ustice
and e:uit0 de/and that respondent and his fa/il0 vacate the propert0 so that the sale
can be effected i//ediatel0. In fairness to petitioner, respondent should pa0 a rental of
P,,*''.'' per /onth, ith le"al interest4 fro/ the ti/e the trial court ordered hi/ to
vacate, for the use and en.o0/ent of the other half of the propert0 appertainin" to
petitioner.
?hen petitioner filed an action to co/pel the sale of the propert0 and the trial court
"ranted the petition and ordered the e.ect/ent of respondent, the co%onership as
dee/ed ter/inated and the ri"ht to en.o0 the possession .ointl0 also ceased.
Thereafter, the continued sta0 of respondent and his fa/il0 in the house pre.udiced the
interest of petitioner as the propert0 should have been sold and the proceeds divided
e:uall0 beteen the/. To this e7tent and fro/ then on, respondent should be held
liable for /onthl0 rentals until he and his fa/il0 vacate.
?@CRCFORC, the petition is &R$NTCD. The assailed Decision of the #ourt of
$ppeals dated ,+ October ,)8+ is RCVCRSCD and SCT $SIDC. The decision of the
trial court in #ivil #ase No. +).,*%P dated ,+ 1ul0 ,)-) is RCINST$TCD, ith the
/odification that respondent Senen 3. $"uilar is ordered to vacate the pre/ises in
:uestion ithin ninet0 5)'6 da0s fro/ receipt of this and to pa0 petitioner Vir"ilio 3.
$"uilar a /onthl0 rental of P,,*''.'' ith interest at the le"al rate fro/ the ti/e he
received the decision of the trial court directin" hi/ to vacate until he effectivel0 leaves
the pre/ises.
The trial court is further directed to ta!e i//ediate steps to i/ple/ent this decision
confor/abl0 ith $rt. <)8 of the #ivil #ode and the Rules of #ourt. This decision is
final and e7ecutor0.
SO ORDCRCD.
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