HERMANA R. CEREZO, petitioner, vs.

DAVID petition for certiorari to declare the nullity of a judgment by

TUAZON, respondent. default is also available if the trial court improperly declared
a party in default, or even if the trial court properly declared
Remedial Law; Default; Remedies available to a party a party in default, if grave abuse of discretion attended such
declared in default.—Lina v. Court of Appeals enumerates declaration.
the remedies available to a party declared in default: (a) The Same; Annulment of Judgments; Annulment is
defendant in default may, at any time after discovery thereof available only on the grounds of extrinsic fraud and lack of
and before judgment, file a motion under oath to set aside the jurisdiction.—After our resolution denying Mrs. Cerezo’s
order of default on the ground that his failure to answer was petition for relief became final and executory, Mrs. Cerezo,
due to fraud, accident, mistake or excusable negligence, and in her last ditch attempt to evade liability, filed before the
that he has a meritorious defense (Sec. 3, Rule 18 [now Sec. Court of Appeals a petition for annulment of the judgment of
3(b), Rule 9]); (b) If the judgment has already been rendered the trial court. Annulment is available only on the grounds
when the defendant discovered the of extrinsic fraud and lack of jurisdiction. If based on
_______________
extrinsic fraud, a party must file the petition within four
* FIRST DIVISION.
years from its discovery, and if based on lack of jurisdiction,
before laches or estoppel bars the petition. Extrinsic fraud is
168 not a valid ground if such fraud was used as a ground, or
could have been used as a ground, in a motion for new trial
168 SUPREME COURT
or petition for relief from judgment.
REPORTS ANNOTATED Same; Same; Same; A party may avail of the remedy of
Cerezo vs. Tuazon annulment of judgment under Rule 47 only if the ordinary
default, but before the same has become final and remedies of new trial, appeal, petition for relief from
executory, he may file a motion for new trial under Section 1 judgment or other appropriate remedies are no longer
(a) of Rule 37; (c) If the defendant discovered the default after available through no fault of the party.—Mrs. Cerezo insists
the judgment has become final and executory, he may file that lack of jurisdiction, not extrinsic fraud, was her ground
a petition for relief under Section 2 [now Section 1] of Rule for filing the petition for annulment of judgment. However, a
38; and (d) He may also appealfrom the judgment rendered party may avail of the remedy of annulment of judgment
against him as contrary to the evidence or to the law, even if under Rule 47 only if the ordinary remedies of new trial,
no petition to set aside the order of default has been appeal, petition for relief from judgment, or other
presented by him (Sec. 2, Rule 41). appropriate remedies are no longer available through no
Same; Same; A petition for certiorari to declare the fault of the party. Mrs. Cerezo could have availed of a new
nullity of a judgment by default is also available if the trial trial or appeal but through her own fault she erroneously
court improperly declared a party in default or even if the availed of the remedy of a petition for relief, which was
trial court properly declared a party in default if grave abuse denied with finality. Thus, Mrs. Cerezo may no longer avail
of discretion attended such declaration.—Moreover, a of the remedy of annulment.
 Criminal Law; Quasi-Delict; Civil Liability; An action responsibility of two or more persons who are liable for a
based on a quasi-delict may proceed independently from the quasi-delict is solidary. Where there is a solidary obligation
criminal action.—The on the part of debtors, as in this case, each debtor is liable for
169 the entire obligation. Hence, each debtor is liable to pay for
the entire obligation in full. There is no merger or
VOL. 426, MARCH 23, 169 renunciation of rights, but only mutual representation.
2004 Where the obligation of the parties is solidary, either of the
Cerezo vs. Tuazon parties is indispensable, and the other is not even a
same negligent act may produce civil liability arising necessary party because complete relief is available from
from a delict under Article 103 of the Revised Penal Code, or either. Therefore, jurisdiction over Foronda is not even
may give rise to an action for a quasi-delict under Article necessary as Tuazon may collect damages from Mrs. Cerezo
2180 of the Civil Code. An aggrieved party may choose alone.
between the two remedies. An action based on a quasi-delict Same; Same; Same; Same; An employer’s liability based
may proceed independently from the criminal action. There on a quasi-delict is primary and direct while the employer’s
is, however, a distinction between civil liability arising from liability based on a delict is merely subsidiary.—Moreover,
a delict and civil liability arising from a quasi-delict. The an employer’s liability based on a quasi-delict is primary and
choice of remedy, whether to sue for a delict or a quasi-delict, direct, while the employer’s liability based on a delict is
affects the procedural and jurisdictional issues of the action. merely subsidiary. The words “primary and direct,” as
Same; Same; Same; Labor Law; Employer’s contrasted with “subsidiary,” refer to the remedy provided by
Liability; An employer’s liability in an action for a quasi- law for enforcing the obligation rather than to the character
delict is not only solidary, it is also primary and direct.— and limits of the obligation. Although liability under Article
Contrary to Mrs. Cerezo’s assertion, Foronda is not an 2180 originates from the negligent act of the employee, the
indispensable party to the case. An indispensable party is aggrieved party may sue the employer directly. When an
one whose interest is affected by the court’s action in the employee causes damage, the law presumes that the
litigation, and without whom no final resolution of the case employer has himself committed an act of negligence in not
is possible. However, Mrs. Cerezo’s liability as an employer preventing or avoiding the damage. This is the fault that the
in an action for a quasi-delict is not only solidary, it is also law condemns. While the employer is civilly
primary and direct. Foronda is not an indispensable party to 170
the final resolution of Tuazon’s action for damages against
Mrs. Cerezo. 170 SUPREME COURT
Same; Same; Same; Same; The responsibility of two or REPORTS ANNOTATED
more persons who are liable for a quasi-delict is solidary; Cerezo vs. Tuazon
Where the obligation of the parties is solidary, either of the liable in a subsidiary capacity for the employee’s
parties is indispensable and the other is not even a necessary criminal negligence, the employer is also civilly liable
party because complete relief is available from either.— The directly and separately for his own civil negligence in failing
to exercise due diligence in selecting and supervising his petition for annulment of the Decision dated 30 May
3

employee. The idea that the employer’s liability is solely 1995 rendered by the Regional Trial Court of Angeles
subsidiary is wrong. City, Branch 56 (“trial court”), in Civil Case No. 7415.
Same; Same; Same; Same; To hold the employer liable The trial court ordered petitioner Hermana R. Cerezo
in a subsidiary capacity under a delict, the aggrieved party
(“Mrs. Cerezo”) to pay respondent David
must initiate a criminal action where the employee’s delict _______________
and corresponding primary liability are established.—In
contrast, an action based on a delict seeks to enforce the 1 Under Rule 45 of the Rules of Court.
subsidiary liability of the employer for the criminal 2 Penned by Associate Justice Elvi John S. Asuncion, with
negligence of the employee as provided in Article 103 of the Associate Justices Eubulo G. Verzola and Artemio G. Tuquero,
Revised Penal Code. To hold the employer liable in a concurring.
3 Penned by Judge Carlos D. Rustia.
subsidiary capacity under a delict, the aggrieved party must
initiate a criminal action where the employee’s delict and 171
corresponding primary liability are established. If the VOL. 426, MARCH 23, 2004 171
present action proceeds from a delict, then the trial court’s Cerezo vs. Tuazon
jurisdiction over Foronda is necessary. However, the present
Tuazon (“Tuazon”) actual damages, loss of earnings,
action is clearly for the quasi-delict of Mrs. Cerezo and not
for the delict of Foronda.
moral damages, and costs of suit.
Antecedent Facts
PETITION for review on certiorari of the resolutions of Around noontime of 26 June 1993, a Country Bus Lines
the Court of Appeals. passenger bus with plate number NYA 241 collided with
a tricycle bearing plate number TC RV 126 along
The facts are stated in the opinion of the Court. Captain M. Palo Street, Sta. Ines, Mabalacat,
Dionisio S. Daga for petitioner. Pampanga. On 1 October 1993, tricycle driver Tuazon
Oscar Malinis for private respondent D. Tuazon. filed a complaint for damages against Mrs. Cerezo, as
owner of the bus line, her husband Attorney Juan
CARPIO, J.: Cerezo (“Atty. Cerezo”), and bus driver Danilo A.
Foronda (“Foronda”). The complaint alleged that:
The Case 7. At the time of the incident, plaintiff [Tuazon] was in his
This is a petition for review on certiorari to annul the
1
proper lane when the second-named defendant [Foronda],
Resolution dated 21 October 1999 of the Court of
2
being then the driver and person in charge of the Country
Appeals in CA-G.R. SP No. 53572, as well as its Bus with plate number NYA 241, did then and there
Resolution dated 20 January 2000 denying the motion willfully, unlawfully, and feloniously operate the said motor
for reconsideration. The Court of Appeals denied the vehicle in a negligent, careless, and imprudent manner
without due regard to traffic rules and regulations, there mong hindi ka makalabas ng buhay dito? Teritoryo ko
being a “Slow Down” sign near the scene of the incident, and ito. Wala ka sa teritoryo mo. 5

without taking the necessary precaution to prevent loss of The records show that the Cerezo spouses
lives or injuries, his negligence, carelessness and imprudence participated in the proceedings before the trial court.
resulted to severe damage to the tricycle and serious physical
The Cerezo spouses filed a comment with motion for bill
injuries to plaintiff thus making him unable to walk and
of particulars dated 29 April 1994 and a reply to
becoming disabled, with his thumb and middle finger on the
left hand being cut[.] 4
opposition to comment with motion dated 13 June
1994. On 1 August 1994, the trial court issued an order
6

On 1 October 1993, Tuazon filed a motion to litigate as directing the Cerezo spouses to file a comment to the
a pauper. Subsequently, the trial court issued summons opposition to the bill of particulars. Atty. Elpidio B.
against Atty. Cerezo and Mrs. Cerezo (“the Cerezo Valera (“Atty. Valera”) of Valera and Valera Law
spouses”) at the Makati address stated in the complaint. Offices appeared on behalf of the Cerezo spouses. On 29
However, the summons was returned unserved on 10 August 1994, Atty. Valera filed an urgent ex-
November 1993 as the Cerezo spouses no longer held partemotion praying for the resolution of Tuazon’s
office nor resided in Makati. On 18 April 1994, the trial motion to litigate as a pauper and for the issuance of
court issued alias summons against the Cerezo spouses new summons on the Cerezo spouses to satisfy proper
at their address in Barangay Sta. Maria, Camiling, service in accordance with the Rules of Court. 7

Tarlac. The alias summons and a copy of the complaint On 30 August 1994, the trial court issued an order
were finally served on 20 April 1994 at the office of Atty. resolving Tuazon’s motion to litigate as a pauper and
Cerezo, who was then working as Tarlac Provincial the Cerezo spouses’ urgent ex-parte motion. The order
Prosecutor. Atty. Cerezo reacted angrily on learning of reads:
the service of summons upon his person. Atty. Cerezo At the hearing on August 30, 1994, the plaintiff [Tuazon]
allegedly told Sheriff William Canlas: “Punyeta, ano testified that he is presently jobless; that at the time of the
ang gusto mong mangyari? Gusto filing of this case, his son who is working in Malaysia helps
_______________ him and sends him once in a while P300.00 a month, and that
he does not have any real property. Attached to the Motion
4 CA Rollo, p. 8. to Litigate as Pauper are his Affidavit that he is unemployed;
172 a Certification by the Barangay Captain of his poblacion that
172 SUPREME COURT REPORTS his income is not enough for his family’s subsistence; and a
Certification by the Office of the Municipal Assessor that he
ANNOTATED
has no landholding in the Municipality of Mabalacat,
Cerezo vs. Tuazon Province of Pampanga.
 The Court is satisfied from the unrebutted testimony of order declaring the Cerezo spouses in default and
the plaintiff that he is entitled to prosecute his complaint in authorizing Tuazon to present his evidence. 9

this case as a pauper under existing rules. On 30 May 1995, after considering Tuazon’s
On the other hand, the Court denies the prayer in the testimonial and documentary evidence, the trial court
Appearance and Urgent Ex-Parte Motion requiring new
ruled in Tuazon’s favor. The trial court made no
summons to be served to the defendants. The Court is of the
pronouncement on Foronda’s liability because there
opinion that any infirmity in the service of the summons to
the defendant before plaintiff was allowed to prosecute his was no service of summons on him. The trial court did
complaint in this case as a pauper has been cured by this not hold Atty. Cerezo liable as Tuazon failed to show
Order. that Mrs. Cerezo’s business benefited the family,
pursuant to Article 121(3) of the Family Code. The trial
_______________
court held Mrs. Cerezo solely liable for the damages
5 Ibid, pp. 13-17. sustained by Tuazon arising from the negligence of Mrs.
6 Rollo, p. 66. Cerezo’s employee, pursuant to Article 2180 of the Civil
7 CA Rollo, pp. 18-20.
Code. The dispositive portion of the trial court’s decision
173 reads:
VOL. 426, MARCH 23, 2004 173 “WHEREFORE, judgment is hereby rendered ordering the
Cerezo vs. Tuazon defendant Hermana Cerezo to pay the plaintiff:
If within 15 days from receipt of this Order, the defendants
do not question on appeal this Order of this Court, the Court 1. ‘a)For Actual Damages
shall proceed to resolve the Motion for Bill of Particulars.
8

1. 1)Expenses for operation and medical treatment—

On 27 September 1994, the Cerezo spouses filed an P69,485.35
urgent ex-parte motion for reconsideration. The trial 2. 2)Cost of repair of the tricycle—39,921.00
court denied the motion for reconsideration.
1. ‘b)For loss of earnings—43,300.00
2. ‘c)For moral damages—20,000.00
On 14 November 1994, the trial court issued an order
3. ‘d)And to pay the cost of the suit.
directing the Cerezo spouses to file their answer within
fifteen days from receipt of the order. The Cerezo “The docket fees and other expenses in the filing of this
spouses did not file an answer. On 27 January 1995, suit shall be lien on whatever judgment may be rendered in
Tuazon filed a motion to declare the Cerezo spouses in favor of the plaintiff.
default. On 6 February 1995, the trial court issued an
_______________
 8 Ibid, p. 21. Exhibit —Signature of defendant’s
9 Rollo, p. 4.
“3-A” counsel;
174 Exhibit —Minutes of the hearing
174 SUPREME COURT REPORTS “4” held on August 30, 1994;
ANNOTATED Exhibit —Signature of the
Cerezo vs. Tuazon “4-A” defendant’s counsel;
“SO ORDERED.” 10
Exhibit —Appearance and
Mrs. Cerezo received a copy of the decision on 25 June “5” Urgent Ex-Parte Motion;
1995. On 10 July 1995, Mrs. Cerezo filed before the trial Exhibit —Order dated November
court a petition for relief from judgment on the grounds “6” 14, 1994;
of “fraud, mistake or excusable negligence.” Testifying Exhibit —Postal certification dated
before the trial court, both Mrs. Cerezo and Atty. Valera “6-A” January 13, 1995;
denied receipt of notices of hearings and of orders of the Exhibit —Order dated February
court. Atty. Valera added that he received no notice “7” [illegible];
before or during the 8 May 1995 elections, “when he was Exhibit —Court’s return slip
a senatorial candidate for the KBL Party, and very “7-A” addressed to Atty. Elpidio
busy, using his office and residence as Party National Valera;
Headquarters.” Atty. Valera claimed that he was able Exhibit —Court’s return slip
to read the decision of the trial court only after Mrs. “7-B” addressed to Spouses Juan
Cerezo sent him a copy. Tuazon did not testify but
11
and Hermana Cerezo;
presented documentary evidence to prove the Exhibit —Decision dated May [30],
participation of the Cerezo spouses in the case. Tuazon “8” 1995;
presented the following exhibits: Exhibit —Court’s return slip
Exhibit —Sheriff ’s return and “8-A” addressed to defendant
“1” summons; Hermana Cerezo;
Exhibit —Alias summons dated Exhibit —Court’s return slip
“1-A” April 20, 1994; “8-B” addressed to defendant’s
Exhibit —Comment with Motion; counsel,
“2” Atty. Elpidio Valera;
Exhibit —Minutes of the hearing _______________
“3” held on August 1, 1994;
 10 CA Rollo, p. 23. Cerezo spouses not only failed to prove fraud, accident,
Ibid., pp. 24-33.
mistake or excusable negligence by conclusive evidence,
11

175 they also failed to prove that they had a good and
VOL. 426, 175 substantial defense. The trial court noted that the
MARCH 23, Cerezo spouses failed to appeal because they relied on
2004 an expected settlement of the case.
Cerezo vs. Tuazon The Cerezo spouses subsequently filed before the
Exhibit “9” —Order dated Court of Appeals a petition for certiorari under Section
September 21, 1995; 1 of Rule 65. The petition was docketed as CA-G.R. SP
Exhibit “9-A” —Second Page of No. 48132. The petition questioned whether the trial
14

Exhibit 9; court acquired jurisdiction over the case considering

Exhibit “9-B” —Third page of there was no service of summons on Foronda, whom the
Exhibit 9; Cerezo spouses claimed was an indispensable party. In
a resolution dated 21 January 1999, the Court of
15
Exhibit “9-C” —Fourth page of
Appeals denied the petition for certiorari and affirmed
Exhibit 9;
the trial court’s order denying the petition for relief
Exhibit “9-D” —Court’s return slip
from judgment. The Court of Appeals declared that the
addressed to Atty.
Cerezo spouses’ failure to file an answer was due to
Elpidio Valera; and their own negligence, considering that they continued
Exhibit “9-E” —Court’s return slip to participate in the proceedings without filing an
addressed to plaintiff ’s answer. There was also
counsel, _______________
Atty. Norman Dick de
Guzman. 12
12 Ibid, pp. 35-36.
13 Penned by Judge Lourdes F. Gatbalite.
On 4 March 1998, the trial court issued an 14 Captioned “Hermana R. Cerezo and Juan D. Cerezo, as husband,

order denying the petition for relief from judgment.

13
petitioners, v. Hon. Lourdes Gatbalite and David Tuazon,
The trial court stated that having received the decision respondents.”
15 Penned by Associate Justice Romeo A. Brawner, with Associate
on 25 June 1995, the Cerezo spouses should have filed
Justices Angelina Sandoval-Gutierrez and Martin S. Villarama, Jr.,
a notice of appeal instead of resorting to a petition for concurring.
relief from judgment. The trial court refused to grant
176
relief from judgment because the Cerezo spouses could
have availed of the remedy of appeal. Moreover, the
176 SUPREME COURT REPORTS
ANNOTATED
 Cerezo vs. Tuazon In this case, records show that the petitioner previously filed
nothing in the records to show that the Cerezo spouses with the lower court a Petition for Relief from Judgment on
actually offered a reasonable settlement to Tuazon. The the ground that they were wrongfully declared in default
while waiting for an amicable settlement of the complaint for
Court of Appeals also denied Cerezo spouses’ motion for
damages. The court a quo correctly ruled that such petition
reconsideration for lack of merit.
is without merit. The defendant spouses admit that during
The Cerezo spouses filed before this Court a petition the initial hearing they appeared before the court and even
for review on certiorari under Rule 45. Atty. Cerezo mentioned the need for an amicable settlement. Thus, the
himself signed the petition, docketed as G.R. No. lower court acquired jurisdiction over the defendant spouses.
137593. On 13 April 1999, this Court rendered a
_______________
resolution denying the petition for review
on certiorari for failure to attach an affidavit of service 16 Rollo, pp. 60-61.
of copies of the petition to the Court of Appeals and to 17 Captioned “Hermana R. Cerezo and Juan D. Cerezo, as husband,
the adverse parties. Even if the petition complied with petitioners, v. Lourdes Gatbalite, Presiding Judge (incumbent), RTC
Branch 56, Angeles City, and David Tuazon, respondents.”
this requirement, the Court would still have denied the
petition as the Cerezo spouses failed to show that the 177
Court of Appeals committed a reversible error. The VOL. 426, MARCH 23, 2004 177
Court’s resolution was entered in the Book of Entries Cerezo vs. Tuazon
and Judgments when it became final and executory on “Therefore, petitioner having availed of a petition for relief,
28 June 1999. 16 the remedy of an annulment of judgment is no longer
Undaunted, the Cerezo spouses filed before the available. The proper action for the petitioner is to appeal the
Court of Appeals on 6 July 1999 a petition for order of the lower court denying the petition for relief.
annulment of judgment under Rule 47 with prayer for “Wherefore, the instant petition could not be given due
course and should accordingly be dismissed.
restraining order. Atty. Valera and Atty. Dionisio S.
“SO ORDERED.” 18

Daga (“Atty. Daga”) represented Mrs. Cerezo in the

petition, docketed as CA-G.R. SP No. 53572. The 17 On 20 January 2000, the Court of Appeals denied the
petition prayed for the annulment of the 30 May 1995 Cerezo spouses’ motion for reconsideration. The Court
19

decision of the trial court and for the issuance of a writ of Appeals stated:
of preliminary injunction enjoining execution of the “A distinction should be made between a court’s jurisdiction
trial court’s decision pending resolution of the petition. over a person and its jurisdiction over the subject matter of
The Court of Appeals denied the petition for a case. The former is acquired by the proper service of
annulment of judgment in a resolution dated 21 October summons or by the parties’ voluntary appearance; while the
latter is conferred by law.
1999. The resolution reads in part:
 Resolving the matter of jurisdiction over the subject 178
matter, Section 19(1) of B[atas] P[ambansa] 129 provides 178 SUPREME COURT REPORTS
that Regional Trial Courts shall exercise exclusive original ANNOTATED
jurisdiction in all civil actions in which the subject of the Cerezo vs. Tuazon
litigation is incapable of pecuniary estimation. Thus, it was voluntarily appearing in the civil case for damages.
proper for the lower court to decide the instant case for Therefore, the findings and the decision of the lower court
damages. may bind them.
Unlike jurisdiction over the subject matter of a case which Records show that the petitioner previously filed with the
is absolute and conferred by law; any defects [sic] in the lower court a Petition for Relief from Judgment on the
acquisition of jurisdiction over a person (i.e., improper filing ground that they were wrongfully declared in default while
of civil complaint or improper service of summons) may be waiting for an amicable settlement of the complaint for
waived by the voluntary appearance of parties. The lower damages. The court a quo correctly ruled that such petition
court admits the fact that no summons was served on is without merit, jurisdiction having been acquired by the
defendant Foronda. Thus, jurisdiction over the person of voluntary appearance of defendant spouses.
defendant Foronda was not acquired, for which reason he Once again, it bears stressing that having availed of a
was not held liable in this case. However, it has been proven petition for relief, the remedy of annulment of judgment is no
that jurisdiction over the other defendants was validly longer available. Based on the foregoing, the motion for
acquired by the court a quo. reconsideration could not be given due course and is hereby
The defendant spouses admit to having appeared in the DENIED.
initial hearings and in the hearing for plaintiffs motion to “SO ORDERED.” 20

litigate as a pauper. They even mentioned conferences where

attempts were made to reach an amicable settlement with The Issues
plaintiff. However, the possibility of amicable settlement is On 7 February 2000, Mrs. Cerezo, this time with Atty.
not a good and substantial defense which will warrant the Daga alone representing her, filed the present petition
granting of said petition. for review on certioraribefore this Court. Mrs. Cerezo
xxx
claims that:
Assuming arguendo that private respondent failed to
reserve his right to institute a separate action for damages
in the criminal action, the petitioner cannot now raise such
1. 1.In dismissing the Petition for Annulment of
issue and question the lower court’s jurisdiction because Judgment, the Court of Appeals assumes that
petitioner and her husband have waived such right by the issues raised in the petition for annulment
_______________ is based on extrinsic fraud related to the denied
petition for relief notwithstanding that the
Rollo, pp. 36-37.
grounds relied upon involves questions of lack of
18

19 Ibid., pp. 33-34.

jurisdiction.
 2. 2.In dismissing the Petition for Annulment, the 1. appearing in the civil case for damages
Court of Appeals disregarded the allegation that notwithstanding that lack of jurisdiction cannot
the lower court[‘s] findings of negligence against be waived.21

defendant-driver Danilo Foronda [whom] the

lower court did not summon is null and void for The Court’s Ruling
want of due process and consequently, such The petition has no merit. As the issues are
findings of negligence which is [sic] null and interrelated, we shall discuss them jointly.
void cannot become the basis of the lower court Remedies Available to a Party Declared in Default
to adjudge petitioner-employer liable for civil An examination of the records of the entire proceedings
damages. shows that three lawyers filed and signed pleadings on
3. 3.In dismissing the Petition for Annulment, the behalf of Mrs. Cerezo, namely, Atty. Daga, Atty. Valera,
Court of Appeals ignored the allegation that and Atty. Cerezo. Despite their number, Mrs. Cerezo’s
defendant-driver Danilo A. Foronda whose counsels failed to avail of the proper remedies. It is
negligence is the main issue is an indispensable either by sheer ignorance or by malicious manipulation
party whose presence is compulsory but [whom] of legal technicalities that they have managed to delay
the lower court did not summon. the disposition of the present case, to the detriment of
4. 4.In dismissing the Petition for Annulment, the pauper litigant Tuazon.
Court of Appeals ruled that Mrs. Cerezo claims she did not receive any copy of
assuming arguendo that private respondent the order declaring the Cerezo spouses in default. Mrs.
failed to reserve his right to institute a separate Cerezo asserts that she only came to know of the default
action for damages in the criminal action, the order on 25 June 1995, when she received a copy of the
petitioner cannot now raise such issue and decision. On 10 July 1995, Mrs. Cerezo filed before the
question the lower court’s jurisdiction because trial court a petition for relief from judgment under
petitioner [has] waived such right by voluntarily Rule 38, alleging “fraud, mistake, or excusable
negligence” as grounds. On 4 March 1998, the trial court
_______________ denied Mrs. Cerezo’s petition for relief from judgment.
The trial court stated that Mrs. Cerezo could have
20 Ibid., pp. 18-19.
availed of appeal as a remedy and that she failed to
179 prove that the judgment was entered through fraud,
VOL. 426, MARCH 23, 2004 179 accident, mistake, or excusable negligence. Mrs. Cerezo
Cerezo vs. Tuazon then filed before the Court of Appeals a petition
for certiorari under Section 1 of Rule 65 assailing the
denial of the petition for relief from judgment. On 21 1. a)The defendant in default may, at any time after
January 1999, the Court of Appeals dismissed Mrs. discovery thereof and before judgment, file
Cerezo’s petition. On 24 February 1999, the appellate a motion under oath to set aside the order of
court denied Mrs. Cerezo’s motion for reconsideration. default on the ground that his failure to answer
On 11 March 1999, Mrs. Cerezo filed before this Court was due to fraud, accident, mistake or excusable
a petition for review on certiorari under Rule 45, negligence, and that he has a meritorious
questioning the denial of the petition for relief from defense (Sec. 3, Rule 18 [now Sec. 3(b), Rule 9]);
judgment. We denied the petition and our resolution 2. b)If the judgment has already been rendered
became final and executory on 28 June 1999. when the defendant discovered the default, but
_______________ before the same has become final and executory,
he may file a motion for new trial under Section
21 Ibid., pp. 6-7.
1 (a) of Rule 37;
180 3. c)If the defendant discovered the default after the
180 SUPREME COURT REPORTS judgment has become final and executory, he
ANNOTATED may file a petition for relief under Section 2
Cerezo vs. Tuazon [now Section 1] of Rule 38; and
On 6 July 1999, a mere eight days after our resolution 4. d)He may also appeal from the judgment
became final and executory, Mrs. Cerezo filed before the rendered against him as contrary to the
Court of Appeals a petition for annulment of the evidence or to the law, even if no petition to set
judgment of the trial court under Rule 47. Meanwhile, aside the order of default has been presented by
on 25 August 1999, the trial court issued over the him (Sec. 2, Rule 41). (Emphasis added)
objection of Mrs. Cerezo an order of execution of the
judgment in Civil Case No. 7415. On 21 October 1999, Moreover, a petition for certiorari to declare the nullity
the Court of Appeals dismissed the petition for of a judgment by default is also available if the trial
annulment of judgment. On 20 January 2000, the Court court improperly declared a party in default, or even if
of Appeals denied Mrs. Cerezo’s motion for the trial court properly declared a party in default, if
reconsideration. On 7 February 2000, Mrs. Cerezo filed grave abuse of discretion attended such declaration. 23

the present petition for review on certiorari under Rule _______________

45 challenging the dismissal of her petition for 22No. L-63397, 9 April 1985, 135 SCRA 637.
annulment of judgment. 23Pacete v. Cariaga, Jr., G.R. No. 53880, 17 March 1994, 231 SCRA
Lina v. Court of Appeals enumerates the remedies
22 321. See also Matute v. Court of Appeals, 136 Phil. 162; 26 SCRA
available to a party declared in default:
768(1969); Omico Mining and Industrial Corporation v. Vallejos, No. 26 Section 1. Grounds of and period for filing motion for new trial or
L-38974, 25 March 1976, 63 SCRA 285. reconsideration.—Within the period for taking an appeal, the
aggrieved party may move the trial court to set aside the judgment or
181 final order and grant a new trial for one or more of the following causes
VOL. 426, MARCH 23, 2004 181 materially affecting the substantial rights of said party:
(a) Fraud, accident, mistake or excusable negligence which ordinary prudence
Cerezo vs. Tuazon could not have guarded against and by reason of which such aggrieved party
Mrs. Cerezo admitted that she received a copy of the has probably been impaired in his rights; or
trial court’s decision on 25 June 1995. Based on this (b) Newly discovered evidence, which he could not, with reasonable
diligence, have discovered and produced at the trial, and which if presented
admission, Mrs. Cerezo had at least three remedies at would probably alter the result.
her disposal: an appeal, a motion for new trial, or a xxx
petition for certiorari. 27 Sections 1 and 6, Rule 37.
Mrs. Cerezo could have appealed under Rule 28 Section 1. Petition for certiorari.—When any tribunal, board, or
41 from the default judgment within 15 days from
24 officer exercising judicial or quasi-judicial functions has acted without
or in excess of its or his jurisdiction, or with grave abuse of discretion
notice of the judgment. She could have availed of the amounting to lack or excess of jurisdiction, and there is no appeal, or
power of the Court of Appeals to try cases and conduct any plain, speedy, and adequate remedy in the ordinary course of law,
hearings, receive evidence, and perform all acts a person
necessary to resolve factual issues raised in cases 182
falling within its appellate jurisdiction. 25
182 SUPREME COURT REPORTS
Mrs. Cerezo also had the option to file under Rule ANNOTATED
37 a motion for new trial within the period for taking
26
Cerezo vs. Tuazon
an appeal. If the trial court grants a new trial, the
from notice of the judgment. An order of default is
original judgment is vacated, and the action will stand
interlocutory, and an aggrieved party may file an
for trial de novo. The recorded evidence taken in the
appropriate special civil action under Rule 65. In a 29

former trial, as far as the same is material and

petition for certiorari,the appellate court may declare
competent to establish the issues, shall be used at the
void both the order of default and the judgment of
new trial without retaking the same. 27

default.
Mrs. Cerezo also had the alternative of filing under
Clearly, Mrs. Cerezo had every opportunity to avail
Rule 65 a petition for certiorari assailing the order of
28

of these remedies within the reglementary periods

default within 60 days
_______________
provided under the Rules of Court. However, Mrs.
Cerezo opted to file a petition for relief from judgment,
24 Section 3, Rule 41. which is available only in exceptional cases. A petition
25 Section 9(3), Batas Pambansa Blg. 129, as amended. for relief from judgment should be filed within the
reglementary period of 60 days from knowledge of Appeals explained the nature of a petition for relief
31

judgment and six months from entry of judgment, from judgment:

pursuant to Rule 38 of the Rules of Civil When a party has another remedy available to him, which
Procedure. Tuason v. Court of
30 may either be a motion for new trial or appeal from an
_______________ adverse decision of the trial court, and he was not prevented
by fraud, accident, mistake or excusable negligence from
aggrieved thereby may file a verified petition in the proper court, allegingthe filing such motion or taking such appeal, he cannot avail
facts with certainty and praying that judgment be rendered annullingor
modifying the proceedings of such tribunal, board or officer, and granting such himself of this petition. Indeed, relief will not be granted to
incidental reliefs as law and justice may require. a party who seeks avoidance from the effects of the judgment
xxx when the loss of the remedy at law was due to his own
Section 4. Where petition filed.—The petition may be filed not later than sixty negligence; otherwise the petition for relief can be used to
(60) days from notice of judgment, order or resolution sought to be assailed in revive the right to appeal which has been lost thru
the Supreme Court; or, if it relates to the acts or omissions of a lower court or inexcusable negligence.
of a corporation, board, officer or person, in the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the Supreme Court. It may
also be filed in the Court of Appeals whether or not the same is in aid of its
Evidently, there was no fraud, accident, mistake, or
appellate jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. excusable negligence that prevented Mrs. Cerezo from
If it involves acts or omissions of a quasi-judicial agency, and unless otherwise filing an appeal, a motion for new trial or a petition
provided by law or these Rules, the petition shall be filed in and cognizable
only by the Court of Appeals. for certiorari. It was error for her to avail of a petition
for relief from judgment.
29Section 1, Rule 41.
30Section 1. Petition for relief from judgment, order, or other pro-
After our resolution denying Mrs. Cerezo’s petition
ceedings.—When a judgment or final order is entered, or any other for relief became final and executory, Mrs. Cerezo, in
proceeding is thereafter taken against a party in any court through her last ditch attempt to evade liability, filed before the
fraud, accident, mistake, or excusable negligence, he may file a Court of Appeals a petition for annulment of the
petition in such court and in the same case praying that the judgment,
order or proceeding be set aside. judgment of the trial court. Annulment is available only
Section 3. Time for filing petition; contents and verification.—A petition on the grounds of extrinsic fraud and lack of
provided for in either of the preceding sections of this Rule must be verified, jurisdiction. If based on extrinsic fraud, a party must
filed within sixty (60) days after the petitioner learns of the judgment, final
order, or other proceeding to be set aside, and not more than six (6) months file the petition within four years from its discovery, and
after such judgment or final order was entered, or such proceeding was taken; if based on lack of jurisdiction, before laches or estoppel
x x x.
bars the petition. Extrinsic fraud is not a valid ground
183 if such fraud was used as a ground, or could have been
VOL. 426, MARCH 23, 2004 183 used as a ground, in a motion for new trial or petition
Cerezo vs. Tuazon for relief from judgment. 32
 Mrs. Cerezo insists that lack of jurisdiction, not active participation in the trial court proceedings.
extrinsic fraud, was her ground for filing the petition for Estoppel or laches may also bar lack of jurisdiction as a
annulment of judgment. However, a party may avail of ground for nullity especially if raised for the first time
the remedy of annulment of judgment under Rule 47 on appeal by a party who participated in the
only if the ordinary remedies of new trial, appeal, proceedings before the trial court, as what happened in
petition for relief from judgment, or other appropriate this case.34

remedies are no longer available through no fault of the For these reasons, the present petition should be
party. 33 dismissed for utter lack of merit. The extraordinary
_______________ action to annul a final judgment is restricted to the
grounds specified in the rules. The reason for the
See Turqueza v. Hernando, No. L-51626, 30 April 1980, 97 SCRA
483. restriction is to prevent this extraordinary action from
31 326 Phil. 169; 256 SCRA 158 (1996). being used by a losing party to make a complete farce of
32 Sections 2 and 3, Rule 47.
a duly promulgated decision that has long become final
33 Cipriano M. Lazaro v. Rural Bank of Francisco Balagtas
(Bulacan), Inc. and The Register of Deeds of Valenzuela City, G.R. No.
and executory. There would be no end to litigation if
139895, 15 August 2003; 409 SCRA 186; Teresita Villasor Manipor v. parties who have unsuccessfully availed of any of the
Spouses appropriate remedies or lost them through their fault
184
could still bring an action for annulment of
184 SUPREME COURT REPORTS judgment. Nevertheless, we shall discuss the issues
35

ANNOTATED raised in the present petition to clear any doubt about

the correctness of the decision of the trial court.
Cerezo vs. Tuazon
Mrs. Cerezo’s Liability and the Trial Court’s
Mrs. Cerezo could have availed of a new trial or appeal Acquisition of Jurisdiction
but through her own fault she erroneously availed of Mrs. Cerezo contends that the basis of the present
the remedy of a petition for relief, which was denied petition for annulment is lack of jurisdiction. Mrs.
with finality. Thus, Mrs. Cerezo may no longer avail of Cerezo asserts that the trial court could not validly
the remedy of annulment. render judgment since it failed to acquire jurisdiction
over Foronda. Mrs, Cerezo points out that there was no
In any event, the trial court clearly acquired jurisdiction service of summons on Foronda. Moreover, Tuazon
over Mrs. Cerezo’s person. Mrs. Cerezo actively failed to reserve his right to institute a separate civil
participated in the proceedings before the trial court, action for damages in the
_______________
submitting herself to the jurisdiction of the trial court.
The defense of lack of jurisdiction fails in light of her
 Pablo and Antonia Ricafort, G.R. No. 150159, 25 July 2003, 407 negligence and imprudence,” aggravated by Mrs.
SCRA 298.
Cerezo’s “lack of due care and diligence in the selection
34 Tijam v. Sibonghanoy, 181 Phil. 556; 23 SCRA 29 (1968).
35 See Ibabao v. Intermediate Appellate Court, No. L-74848, 20 May and supervision of her employees, particularly
1987, 150 SCRA 76. Foronda.” 38

185
The trial court thus found Mrs. Cerezo liable under
VOL. 426, MARCH 23, 2004 185 Article 2180 of the Civil Code. Article 2180 states in
part:
Cerezo vs. Tuazon
Employers shall be liable for the damages caused by their
criminal action. Such contention betrays a faulty employees and household helpers acting within the scope of
foundation. Mrs. Cerezo’s contention proceeds from the their assigned tasks, even though the former are not engaged
point of view of criminal law and not of civil law, while in any business or industry.
the basis of the present action of Tuazon is quasi-delict
under the Civil Code, not delict under the Revised Penal Contrary to Mrs. Cerezo’s assertion, Foronda is not an
Code. indispensable party to the case. An indispensable party
The same negligent act may produce civil liability is one whose interest is affected by the court’s action in
arising from a delict under Article 103 of the Revised the litigation, and without
_______________
Penal Code, or may give rise to an action for a quasi-
delict under Article 2180 of the Civil Code. An aggrieved 36 See Article 2177, Civil Code of the Philippines. Compare Sections

party may choose between the two remedies. An action 1 and 3, Rule 111, 1988 Rules of Criminal Procedure with Sections 1
based on a quasi-delict may proceed independently from and 3, Rule 111, 2000 Rules of Criminal Procedure.
37 See Barredo v. Garcia, 73 Phil. 607(1942).

the criminal action. There is, however, a distinction

36
38 CA Rollo, pp. 8-9.

between civil liability arising from a delict and civil

liability arising from a quasi-delict. The choice of 186
remedy, whether to sue for a delict or a quasi-delict, 186 SUPREME COURT REPORTS
affects the procedural and jurisdictional issues of the ANNOTATED
action. 37 Cerezo vs. Tuazon
Tuazon chose to file an action for damages based on whom no final resolution of the case is
a quasidelict. In his complaint, Tuazon alleged that possible. However, Mrs. Cerezo’s liability as an
39

Mrs. Cerezo, “without exercising due care and diligence employer in an action for a quasi-delict is not only
in the supervision and management of her employees solidary, it is also primary and direct. Foronda is not an
and buses,” hired Foronda as her driver. Tuazon became indispensable party to the final resolution of Tuazon’s
disabled because of Foronda’s “recklessness, gross action for damages against Mrs. Cerezo.
 The responsibility of two or more persons who are 39 Imson v. Court of Appeals, G.R. No. 106436, 8 December
1994, 239 SCRA 59.
liable for a quasi-delict is solidary. Where there is a
40
40 Article 2194, Civil Code of the Philippines.

solidary obligation on the part of debtors, as in this case, 41 Quiombing v. Court of Appeals, G.R. No. 93219, 30 August
each debtor is liable for the entire obligation. Hence, 1990, 189 SCRA 331 (citingTolentino, IV Civil Code of the
each debtor is liable to pay for the entire obligation in Philippines 218 [1985 ed.])
42 Ibid., (citing Feria, Civil Procedure 153 [1969 ed.]).
full. There is no merger or renunciation of rights, but 43 Poblete v. Fabros, No. L-29803, 14 September 1979, 93 SCRA 200.

only mutual representation. Where the obligation of

41
44 33A Words and Phrases 215 (1971 ed.)

the parties is solidary, either of the parties is

187
indispensable, and the other is not even a necessary
VOL. 426, MARCH 23, 2004 187
party because complete relief is available from
either. Therefore, jurisdiction over Foronda is not even
42
Cerezo vs. Tuazon
necessary as Tuazon may collect damages from Mrs. supervising his employee. The idea that the employer’s
Cerezo alone. liability is solely subsidiary is wrong. 45

The action can be brought directly against the person

Moreover, an employer’s liability based on a quasi-
responsible (for another), without including the author of the
delict is primary and direct, while the employer’s act. The action against the principal is accessory in the sense
liability based on a delict is merely subsidiary. The 43
that it implies the existence of a prejudicial act committed by
words “primary and direct,” as contrasted with the employee, but it is not subsidiary in the sense that it can
“subsidiary,” refer to the remedy provided by law for not be instituted till after the judgment against the author of
enforcing the obligation rather than to the character the act or at least, that it is subsidiary to the principal action;
and limits of the obligation. Although liability under
44 the action for responsibility (of the employer) is in itself a
Article 2180 originates from the negligent act of the principal action. 46

employee, the aggrieved party may sue the employer

Thus, there is no need in this case for the trial court to
directly. When an employee causes damage, the law
acquire jurisdiction over Foronda. The trial court’s
presumes that the employer has himself committed an
acquisition of jurisdiction over Mrs. Cerezo is sufficient
act of negligence in not preventing or avoiding the
to dispose of the present case on the merits.
damage. This is the fault that the law condemns. While
In contrast, an action based on a delict seeks to
the employer is civilly liable in a subsidiary capacity for
enforce the subsidiary liability of the employer for the
the employee’s criminal negligence, the employer is also
criminal negligence of the employee as provided in
civilly liable directly and separately for his own civil
Article 103 of the Revised Penal Code. To hold the
negligence in failing to exercise due diligence in
employer liable in a subsidiary capacity under a delict,
selecting and
_______________
the aggrieved party must initiate a criminal action
where the employee’s delict and corresponding primary Contrary to Mrs. Cerezo’s contention, Foronda is not an
liability are established. If the present action proceeds
47 indispensable party to the present case. It is not even
from a delict, then the trial court’s jurisdiction over necessary for Tuazon to reserve the filing of a separate
Foronda is necessary. However, the present action is civil action because he opted to file a civil action for
clearly for the quasi-delict of Mrs. Cerezo and not for damages against Mrs. Cerezo who is primarily and
the delict of Foronda. directly liable for her own civil negligence. The words of
The Cerezo spouses’ contention that summons be Justice Jorge Bocobo in Barredo v. Garciastill hold true
served anew on them is untenable in light of their today as much as it did in 1942:
participation in the trial court proceedings. To uphold x x x [T]o hold that there is only one way to make defendant’s
the Cerezo spouses’ contention would make a fetish of a liability effective, and that is, to sue the driver and exhaust
technicality. Moreover, any irregularity in the service
48 his (the latter’s) property first, would be tantamount to
of summons that might have vitiated the trial court’s compelling the plaintiff to follow a devious and cumbersome
method of obtaining relief. True, there is such a remedy
juris-
_______________ under our laws, but there is also a more expeditious way,
which is based on the primary and direct responsibility of the
45 See Barredo v. Garcia, supra note 37 (1942) (citing Amandi, defendant under article [2180] of the Civil Code. Our view of
4 Cuestionario del Código Civil Reformado 429, 430). the law is more likely to facilitate remedy for civil wrongs,
46 Ibid., (citing Laurent, 20 Principles of French Civil Law 734-735
because the procedure indicated by the defendant is wasteful
[Spanish translation]). and productive of delay, it being a matter of common
47 Poblete v. Fabros, supra note 43; Franco v. Intermediate
knowledge that professional drivers of taxis and other
Appellate Court, G.R. No. 71137, 5 October 1989, 178 SCRA 331.
48 Gumabay v. Baralin, No. L-30683, 77 SCRA 258, 31 May 1977;
similar public conveyances do not have sufficient means with
Rule 14, Section 20. which to pay damages. Why, then, should the plaintiff be
required in all cases to go through this roundabout,
188
unnecessary, and probably useless procedure? In construing
188 SUPREME COURT REPORTS the laws, courts have endeavored to shorten and facilitate
ANNOTATED the pathways of right and justice. 50

Cerezo vs. Tuazon

Interest at the rate of 6% per annumis due on the
diction over the persons of the Cerezo spouses was
amount of damages adjudged by the trial court. The 51

deemed waived when the Cerezo spouses filed a petition

6% per annum interest shall commence from 30 May
for relief from judgment. 49

1995, the date of the decision of the trial court. Upon

We hold that the trial court had jurisdiction and was
finality of this decision, interest at 12% per annum, in
competent to decide the case in favor of Tuazon and
lieu of 6% per annum, is due on the amount of damages
against Mrs. Cerezo even in the absence of Foronda.
adjudged by the trial court until full payment.
 WHEREFORE, we DENY the instant petition for
review. The Resolution dated 21 October 1999 of the
Court of Appeals in CA-
_______________

49 See J.M. Tuason & Co., Inc. v. Estabillo, No. L-20610, 9 January

1975, 62 SCRA 1.
50 Barredo v. Garcia, supra note 36, pp. 620-621.

51 Eastern Shipping Lines, Inc. v. Court of Appeals, G.R. No. 97412,

12 July 1994, 234 SCRA 78; Reformina v. Tomol, Jr., No. L-59096, 11
October 1985, 139 SCRA 260.

189
VOL. 426, MARCH 23, 2004 189
L.T. Datu & Co., Inc. vs. Sy
G.R. SP No. 53572, as well as its Resolution dated 20
January 2000 denying the motion for reconsideration,
is AFFIRMED with the MODIFICATION that the
amount due shall earn legal interest at 6% per
annum computed from 30 May 1995, the date of the
trial court’s decision. Upon finality of this decision, the
amount due shall earn interest at 12% per annum, in
lieu of 6% per annum, until full payment.
SO ORDERED.