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“Where the movant has been deprived of his day in court through
no fault or negligence on his part and because no notice of hearing
was furnished him in advance so as to enable him to prepare for
trial, the judgment or order is absolutely null
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and void for denying him his day in court, a constitutional right.
In such case, the judgment or order suffers from an inherent
procedural defect and is absolutely void. Under such
circumstances, no showing of merits is necessary to support an
application to have the order vacated (1 Freeman on Judgments,
p. 599).” (Valerio vs. Tan, 97 Phil. 558, 561.)
“Affidavits of merits are not necessary when the granting of the
motion for new trial iis not discretionary with the court but is
demandable as of right, as where the movant has been deprived of
his day in court, through no fault or negligence of his own (Valerio
vs. Tan, et al., G.R. No. L-6446, Sept. 19, 1955).” (Navarro vs.
Bello, L-11647, January 31, 1958; 54 O.G. 6588)
“However, affidavits of merits are not necessary if the granting
of the motion for new trial is not discretionary with the court, but
is demandable as of right, x x x as where the movant has been
deprived of his day in court through no fault or negligence on his
part because no notice of hearing was furnished him in advance so
as to enable him to prepare for trial (Moran, Rules of Court, 1957
Ed., Vol. 1, p. 515; citing Valerio vs. Tan, G.R. No. L-6446,
September 19, 1955).” (Gattoc vs Sarenas, L-11752, July 30,
1958.)
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