[ G. R. No.
L-15808, April 23, 1963 ] Issue: Whether or not upon denial of a defendants' motion to dismiss the
FAUSTA AGCANAS VS. BRUNO MERCADO, ET AL. reglementary period within which to file an answer resumes running even though the
motion for a bill of particulars of the same defendants is still pending and unresolved
FACTS: On November 25, 1956 plaintiffs filed this action to recover portions of a parcel
of land in Isabela, and damages. On Dec. 4, 1956, defendant filed a motion for a bill of Ruling: Both a motion to dismiss and a motion for a bill of particulars interrupt the
particulars, with notice of hearing on December 8. The motion was received by the time to file a responsive pleading. In the case of a motion to dismiss, the period starts
court only on Dec. 12 and set it for hearing on Dec. 22. On Dec 17, defendants filed a running again as soon as the movant receives a copy of the order of denial. In the
motion to dismiss the complaint, with a prayer that the motion for a bill of particulars case of a motion for a bill of particulars, the suspended period shall continue to run
be held in abeyance pending resolution of their motion to dismiss. On December 22, upon service on the movant of the bill of particulars, if the motion is granted, or of the
1956, the date set by the court for the hearing of the motion for a bill of particulars notice of its denial, but in any event he shall have not less than five days within which
and by defendants for the hearing of their motion to dismiss, the court issued an order to file his responsive pleading.
postponing consideration of both motions to December 29.
When appellants filed a motion to dismiss, they requested that resolution of their
On March 7, 1957 the court denied the motion to dismiss and ordered defendants to previous motion for a bill of particulars be held in abeyance. This was but practical,
answer the complaint within the reglementary period provided for by the Rules of because if the court had granted the motion to dismiss there would have been no
Court. Hearing of the case on the merits was set for October 29, 1957. Defendants not need for a bill of particulars. Resolution of the motion for that purpose was necessary
having filed their answer, plaintiffs, on October 17, 1957, moved to have them declared only in the event that court should deny, as it did, the motion to dismiss, in which case
in default. On the same day the court issued the order of default, together with another the period to file an answer remained suspended until the motion for a bill of
order commissioning the clerk of court to receive plaintiffs' evidence. On October 21, particulars is denied or, if it is granted, until the bill is served on the moving party.
1957 defendants moved to cancel the hearing scheduled for October 29, on two
grounds, one of which was that their motion for a bill of particulars had not yet been The lower court deemed appellants to have "tacitly waived their right to push through
resolved. The motion to cancel was set for hearing on October 26, 1957. the hearing of the motion for bill of particulars," because of their failure to set it for
hearing or to ask the clerk of court to calendar it after denial of the motion to dismiss.
When defendants arrived in court on that day they learned, that an order of default Appellants did set the motion for hearing on December 8, 1956, although it was not
had been issued, so they immediately filed a motion asking that the same be set aside, heard on that day because it arrived in court only on December 12. Thereafter they
that their pending motion for a bill of particulars be resolved and that they be given a did not have to reset it, as the clerk of court scheduled it for hearing on December 22,
reasonable period thereafter within which to file their answer to the complaint. On 1956. And on that day the court issued an order that "the consideration of the motion
December 13, 1957 the court denied the motion, and rendered its decision in favor of to dismiss, as well as the bill of particulars, is hereby postponed to December 29, 1956.
plaintiff. On January 4, 1958 it denied defendants' motion for reconsideration of the As to whether or not both motions were actually heard on December 29 does not
order of denial. On January 24, defendants filed their record on appeal (to this Court appear of record. But heard or not, the motions should be considered submitted, and
from the order of December 13, 1957), but as they subsequently filed a petition for it was the clear duty of the court to resolve the motion for a bill of particulars, as it did
relief from the judgment by default, they asked that consideration and approval of the motion to dismiss. No action having been taken thereon until the present, the
their record on appeal be held in abeyance until said petition had been resolved. The period to answer has not yet expired. The lower court, therefore, erred in declaring
request, was granted. Defendants' petition for relief, which was filed on January 28, appellants in default and in taking all the subsequent actions it did in the case.
1958, was denied on March 21, as was also, on September 20, 1958, their motion for
reconsideration of the order of denial. On October 4, 1958 the court denied likewise The order of default issued and the decision rendered by the trial court are set aside
their motion for a writ of preliminary injunction to restrain execution of the judgment and the case is remanded for further proceedings, pursuant to the Rules.
by default. Hence this appeal.
