FIRST DIVISION

[G.R. No. 19295. November 20, 1923.]

EMILIO G. MAPUA , plaintiff-appellee, vs . FELIX MENDOZA,

PRUDENCIO NOVOA, and ISABEL PELAYO , defendants-appellants.

Hipolito de Jesus for appellants.

Ramon Sotelo for appellee.

SYLLABUS

1. PLEADING AND PRACTICE; COUNTERCLAIMS. — A joint debt may not be

set up against a separate demand.
2. ID.; JUDGMENT BY DEFAULT. — Judgment by default is properly rendered,
when the defendant fails to appear at the time required in the summons, or to le his
demurrer or answer to the complaint within the time xed by the Code Procedure and
the Rules of Court.
3. ID.; MOTIONS TO SET ASIDE DEFAULT JUDGMENTS. — For a motion to set
aside a default judgment to proper, the moving party must show by an a davit of
merits that if then default is set aside, he has a just and valid defense to present.
Motions to set aside judgments by default are addressed to the sound discretion of the
court.
4. ID.; ID.; PENDING MOTIONS. — It is generally irregular to enter judgment by
default while a motion remains pending and undisposed of.
5. ID.; ID.; ID.; MOTIONS FOR BILLS OF PARTICULARS. — Application for a bill
of particulars must be seasonably made.
6. ID., ID., ID., ID. — Whether the application for a bill of particulars extends the
time for the defendant to demur or answer quarry.
7. GAMBLING LOSSES, RECOVERY. — Our Gambling Law permits any person
who loses any money or valuable consideration or thing in any gambling house, or at
any prohibited game, such as Monte, or his heirs, executors, administrators, or
judgment creditors to recover within three years thereafter the money, consideration, or
thing, together with an additional sum equal to the value thereof from the persons in
charge of the game, or in control of the gambling house.
8. ID.; LIABILITY OF WIFE. — Articles 1406 and 1411 of the Civil Code in
relation with the Gambling Law make the wife jointly and severally liable with her
husband when action is brought against them to recover losses in a prohibited
gambling game. (Manresa, Comentarios al Codigo Civil, vol. 9, p. 645.)

DECISION

MALCOLM , J : p

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 Emilio G. Mapua, the plaintiff in this case, recovered in the lower court on a
default judgment, from the defendants jointly and severally, the sum of P38,200,
representing double the amount which he had lost in a game of monte, with legal
interest from January 30, 1922, and with costs. The defendants appeal and assign six
errors.
The record before us and ancillary records in other cases are perfect examples
of professional carelessness, closely akin to gross negligence in pleading and practice.
This will partially explain why the court has had the case under advisement for so long a
period of time, and why it is now necessary to pick our way as best we may through an
accumulation of uncertain data to as just a conclusion as is possible.
Records Nos. 19413 1 and 18133 2 , the rst a civil action brought by Felix
Mendoza, one of the instant defendants, against Emilio G. Mapua, the instant plaintiff,
and the second, an original action in mandamus brought by Emilio G. Mapua, the
present plaintiff, against Felix Mendoza, one of the instant defendants, and Judge of
First Instance Harvey, disclose that in these proceedings, Mapua set up a counterclaim
for P38,200. But this was denied by the trial court and this denial was sustained here on
the ground that a joint debt may not be set up against a separate demand. Encouraged,
nevertheless, by this intimation, Mapua instituted the present action in the Court of First
Instance of Manila against Felix Mendoza, and Prudencio Navoa and his wife Isabel
Pelayo (No. 19295).
The situation can best be visualized by making rst a statement of the case
which will disclose the outstanding proceedings and dates. Then our next task will be
to apply the procedural law to the facts; after which, we shall be in a position to give
attention to the merits of the controversy.
Turning directly to the record and the bill of exceptions, the following is noted:
Plaintiff's complaint was led in the Court of First Instance of Manila on January
30, 1922. Summons were issued and served on the defendants that same day. As is
customary, the latter were required to enter their appearance in the office of the clerk of
the Court of First Instance of Manila within twenty days after the service of the
summons, and to answer the complaint of the plaintiff within the time xed by the rules
of the court, which is ten days after appearance. The attorneys for the defendants,
however, waited until February 21st of the same year to enter their appearance. On the
supposition that this appearance was in time, and this point is not questioned, the
defendants then had ten days within which to demur or answer.
No action having been taken by the attorneys for the defendants up to and
including the she last day permitted by the law and the rules, on March 6, 1922, the
attorney for the plaintiff moved for a default judgment, and on this motion the trial
judge noted as of March 8, 1922, "Como sepide." The proper orders for default were
made on March 9 and March 11, 1922.
It appears that the attorneys for the defendants had presented in court on March
7, 1922, a motion for a bill of particulars, without, however, proving service on the
attorney for the plaintiff. On March 13, 1922, the attorneys for the defendants renewed
their motion for a bill of particulars and asked that the declaration of default be set
aside. Copy of this unveri ed motion was received by the attorney for the plaintiff. Said
motion was amended and ampli ed on March 17, 1922, in another motion which was
subscribed to by counsel before a notary public.
In the meantime, however, trial was had on March 14, 1922, without the presence
of the defendants, and the case for the plaintiff was submitted. The trial court
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 thereupon rendered judgment and handed down an appropriate order on the motions
to raise the default against the defendants. The decision set out the complaint and the
various steps in the proceedings, made ndings of fact based on the testimony for the
plaintiff, and, in conformity with the Gambling Law, Act No. 1757, gave sentence in favor
of the plaintiff and against the defendants for P38,200, with legal interest and costs, as
above indicated. The subsequent order on the motions to set aside the default against
defendants stated various reasons leading to the conclusion that there was no ground
for allowing said motions.
On appeal in this court, after the passage of considerable time, the bill of
exceptions and the briefs were nally presented and the case was placed on the
December, 1922, calendar. It then came to the knowledge of the court, through a
motion led by attorneys for the appellants after the case was submitted for decision,
that the stenographic notes had not yet been written up and elevated to the appellate
court. The evidence, however, is now before us.
The law applicable to the foregoing incidents in this case is full and clear.
Abridging its provisions somewhat for the appropriate sections of the Code of Civil
Procedure and the Rules of Court are, of course, familiar to the profession; the Code
provides, in part, that the only pleadings allowed on the part of the defendant are (1) the
demurrer to the complaint, and (2) the answer. (Sec. 89) The defendants had ten days
after they had entered their appearance to swerve and le their demurrer or answer to
the complaint. (Rules of the Court of First Instance of the Philippine Islands, No. 5.) the
court could, however, in its discretion, have allowed an answer or other pleading to be
made after the time limited by the Rules of the court for ling the same. (Code of Civil
Procedure, secs. 2, 110; Unson vs. Abrera [1909], 14 Phil., 146.) But if a defendant fails
to appear at the time required in the summons or to answer at the time provided by the
Rules of the Court, the court shall, upon motion of the plaintiff, order judgment for the
plaintiff by default and shall proceed to hear the plaintiff and his witnesses, and to
render final judgment. (Code of Civil Procedure, sec 128.)
It is perfectly obvious that the defendants did not le their demurrer or answer to
the complaint within the period xed by the Code and the Rules. Nor did they make
proper representations to secure additional time within which to present an answer or
other pleading. Judgment by default was thus properly rendered, unless there was
some special reason for taking the case our of the general rule.
For a motion to set aside a default judgment to prosper, the moving party must
show by an a davit of merits that if the default is set aside, he has a just and valid
defense to present. Motions to set aside judgments by default are addressed to the
sound discretion of the court. (Coombs vs. Santos [1913], 24 Phil., 446; Daipan vs.
Sigabu [1913], 25 Phil., 184.)
The situation here is somewhat complicated by the action of counsel for the
defendants in ling a motion for a bill of particulars instead of presenting either a
demurrer or an answer. They assert that as this motion was pending when the order of
the default was made, it should be construed as tolling the time for them to demur or
answer. It is, However, not incumbent upon us to settle the interesting question of
whether the pendency of a motion to make the plaintiffs plead more de nitely, or to le
speci cations, so as to furnish the adverse party with complete information as to the
claims which he is required to meet, in conformity with section 108 of the Code of Civil
Procedure, extends the time to demur or answer. While it is generally irregular to enter
judgment by default while a motion remains pending and undisposed of, yet, where
such motion is led out of time, it would not be reversible error to enter a judgment by
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 default. (There can be noted the cases of Naderhoff vs. Geo. Benz & Sons [1913], 25 N.
Dak., 165; 47 L. R. A., 853; D. S. Register & Co. vs. Pringle Brothers [1909], 58 Fla., 355;
Shinn vs. Cummins [1884], 65 Cal., 97; Higley and Higley vs. Pollock [1891], 21 Nev.,
198; Plummer vs. Weil [1896], 15 Wash., 427, holding that the motion led by the
defendant for a bill of particulars, is su cient ipso facto to extend the time for
answering.)
Without deciding, therefore, if the application for a bill of particulars extends the
time for the defendants to demur or answer, it is su cient to say that the application
for such an order must be seasonably made. Here, as the defendants neither demurred
nor answered, or led their motion for a bill of particulars in time, and as their motion to
set aside the default judgment showed no meritorious defense and was in itself
defective, we reach the conclusion that there was no abuse of discretion on the part of
the trial judge in proceeding as he did and in refusing to set aside hid order of default
against the defendants.
On the merits, little need be said. The complaint alleged, and the plaintiff proved
to the satisfaction of the court, that in a game of monte conducted by Felix Mendoza,
Prudencio Navoa and Isabel Pelayo, the plaintiff was the loser to the extent of P19,100
as disclosed by the checks of record. Our Gambling Law permits any person who loses
any money or valuable consideration or thing in any gambling house, or at any
prohibited game such as monte, or his heirs, executors, administrators, or judgment
creditors to recover within three years thereafter the money, consideration, or thing,
together with an additional sum equal to the value thereof from the persons in charge
of the game, or in control of the gambling house. The only doubtful point is as to the
liability of Isabel Pelayo; but as to her, construing the provisions of articles 1406 and
1411 of the Civil Code in relation with sections 6, 7, 8, and 11 of the Gambling Law, we
decide that she is jointly and severally liable with her codefendants. (See Manresa,
Comentarios al Codigo Civil, vol. 9, p. 645.) Moreover, no speci c assignment of error is
made on argued to this end.
While the records under consideration disclose that the Plaintiff Emilio G. Mapua
is a gambler who, not content to accept hi losses without murmur, has seen t to take
advantage of the law to recoup himself, and while his action engenders no sympathy,
we have, nevertheless, to apply the law, and in so doing nd present no reversible error
which would warrant us in disturbing the appreciation of the case as made by Judge
Harvey.
Judgment is affirmed with costs against the appellants. So ordered.
Araullo, C. J., Johnson, Street, Avanceña, Villamor, Ostrand, Johns, and
Romualdez, JJ., concur.
Footnotes

1. Promulgated February 8, 1923, not reported.

2. Decided January 9, 1992, by resolution.

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