● There is nothing in the Rules which authorizes the trial court to order the arrest of the party in default. A party declared in default merely loses the right to be notified of subsequent proceedings and the right to take part in the trial, until the order of default is lifted.

 ● Where the failure to appear at the pre-trial hearing was uncontrovertedly due to illness, the default order may be set aside on the ground of accident over which petitioner had no control. 
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Facts: 

Petitioner was personally served in his office a notice of hearing on the pre-trial set on October 9, 1978 at 8:30 A.M. However, at around 8:10 A.M. of October 9, 1978, petitioner felt chilly and went to see his doctor who ordered him to stay in bed for a couple of days as he had just been released from Mother Seton Hospital where he was confined from September 30, 1978 to October 3, 1978. Thereafter, petitioner immediately sent a letter to the respondent judge requesting for the deferment of his appearance on the scheduled hearing but said letter was only filed at 10:05 A.M. of that same morning due to the stormy weather. Consequently, upon petitioner's failure to appear at the hearing, he was declared in default and ordered arrested.

In the afternoon of the same day, petitioner's counsel filed a motion to lift the Order of Arrest which was denied.

On October 18, 1978, petitioner was airlifted and confined at the Veterans Memorial Medical Center at Quezon City where he was operated for a gall bladder dysfunction on November 13, 1978.

On November 17, 1978, petitioner filed an Omnibus Motion to Lift his Order of Arrest, to set aside the order of default and to reset the hearing of November 27, 1978 and December 1, 1978 on account of his illness and subsequent surgical operation.

Respondent judge lifted the Order of Arrest of the petitioner but denied his motion to set aside the order of default and the resetting of the scheduled hearing. MR was likewise denied.


Issues: 

1. May the court order the arrest of the party in default?

2. May the default order be set aside when the failure to appear at the pre-trial hearing was due to illness?


Held: 

1. No. The respondent court's act of ordering petitioner's arrest is patently illegal. There is nothing in the Rules which authorizes the trial court to order the arrest of the party in default. A party declared in default merely loses the right to be notified of subsequent proceedings and the right to take part in the trial, until the order of default is lifted.


2. Section 3, Rule 18 of the Revised Rules of Court provides that:

A party declared in default may at any time after discovery thereof and before judgement filed a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable neglect and that he has a meritorious defense. In such case the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice.

Where the failure to appear at the pre-trial hearing was uncontrovertedly due to illness, the default order may be set aside on the ground of accident over which petitioner had no control as in the case at bar. Inasmuch as the respondent judge had already lifted the order of arrest after finding petitioner's absence excusable, it therefore follows that said judge should have also set aside the order of default. Thus, the basis for lifting petitioner's order of arrest should also apply to the order of default since both orders were issued on petitioner's non-appearance on October 9, 1978. (Malanyaon vs. Sunga, G.R. No. 49463, May 7, 1992)