[ G.R. No. L-1853. February 27, 1948 ] 80 Phil. 397
[ G.R. No. L-1853. February 27, 1948 ]
GRACIANO SITCHON AND ANTONINO CALMA, PLAINTIFFS-APPELLANTS, VS. THE PROVINCIAL SHERIFF OF OCCIDENTAL NEGROS AND LUZON SURETY CO., INC., DEFENDANTS-APPELLEES. R E S O L U T I O N
FERIA, J.:
This is a motion for dismissal of the appeal interposed by the plaintiff-appellant on the ground that the order which declared the plaintiff in for his failure to answer the defendant’s counterclaim within the time fixed by Rules of Court, is not final and therefore not appealable. It is evident that an order declaring the plaintiff in default for his failure to answer the defendant’s counterclaim, is an interlocutory order, just like an order declaring the defendant in default for his failure to answer the plaintiff’s complaint, and therefore not subject to appeal under Sec. 2, Rule 41. Such order is interlocutory, because it does not put an end to the ordinary proceeding in the nature of judicial action therein, since the court if it still to proceed to the hearing of the evidence to be presented by the other party in support of his claim or counterclaim. The proper remedy for the plaintiff would have been to file a motion to set aside the order of default under Sec. 2, Rule 38, and if denied to appeal from the final judgment of the court on the merits of the counterclaim. Unless he has filed said motion the defaulting party can not appeal from a final judgment by default on the merits (Maxima Garcia Lim Toco v. Go Fay, G. R. No. L-1423). And on appeal, appellant may not only have the judgment revised and corrected, but he may also raise the question as to whether or not the order of default was correct or in accordance with law and facts of the case, because the reversal of the order of default will necessarily carry with it the invalidity of the subsequent final judgment on the merits. The reason of the law in permitting appeal only from a final order or judgment, and not from interlocutory or incidental one, is to avoid multiplicity of appeals in a single action, which must necessarily suspend the hearing and decision on the merits of the case during the pendency of the appeal. If such appeal were allowed the trial on the merits of the case should necessarily be delayed for a considerable length of time, and compel the adverse party to incur unnecessary expenses; for one of the parties may interpose as many appeals as incidental questions may be raised by him and interlocutory orders rendered or issued by the lower court. In view of the foregoing, appeal is dismissed with costs against the appellant. Moran, C.J., Paras, Pablo, Bengzon, Briones, Padilla, and Tuason, JJ., concur.