Omico Mining Vs VAllejos

Facts
 On June 1, 1973, Alfredo Catolico, filed against Omico Mining and Industrial Corporation
and Frederick G. Webber, the latter in his personal capacity and as President and
Chairman of the Board of Directors of said corporation, alleging:
 first, for the return of ten (10) certificates of stock of the corporation borrowed
from him by the defendants,
 second, for the payment of his services as legal counsel for the corporation.
 Defendants filed a motion to dismiss the complaint on two grounds:
 (1) improper venue, in that the case was filed in Cavite where plaintiff is not a
resident, the truth being that he is a resident of Quezon City where he has his
permanent family home; and, as to the second cause of action, the contract of
personal and professional services between plaintiff and defendants was entered
into in the City of Manila, and, therefore, the case should have been filed in
Manila in accordance with Section I of Rule 4 of the Revised Rules of Court; and
 (2) lack of cause of action, in that with regard to the stock certificates the same
are in the name of Vicente Resonda; and, with respect to the contract of
personal and professional services wherein it was agreed that the plaintiff shall
head the legal department of defendant Omico Mining & Industrial Corporation.
 On June 16, 1973, the date set for the hearing of the motion to dismiss, neither the
parties nor their respective counsels appeared in court.
 While the motion to dismiss was pending resolution by the court because defendants
had not yet presented to the court the required proof of service, plaintiff, on January
11, 1974, filed a petition to declare the defendants in default that defendants had been
served with summons and copies of the complaint on June 8, 1973;
 that as of January 11, 1974, or after a lapse of seven (7) months from the service of
summons, defendants had not filed their answer to the complaint.
 The court granted the petition and, consequently, it received ex parte the evidence of
the plaintiff and rendered judgment in favor of Catolico.
 Defendants filed a motion for reconsideration but Catolico file a motion to postpone
hearing of motion for reconsideration.
 On May 31, 1974, while defendants' motion for reconsideration was still pending before
the court because the defendants had not filed yet their reply to the opposition as they
had not received a copy, Catolico filed a motion for immediate execution of judgment,
alleging:
 that said judgment had already become final and executory because the
defendants failed to have the order of default lifted;
 that the motion for reconsideration was filed out of time;
 that there was a "manifest attempt on the part of the defendants to delay the
proceedings to afford them an opportunity to have all their assets and shares
dissipated by continuous sale of the same to the prejudice".
 Thence, the court denied the defendants’ motion for reconsideration.
 Defendants’ filed their notice of appeal.
 On July 22, Pio R. Marcos, as President and Chairman of the Board of Directors of
defendant Omico Mining and Industrial Corporation, wrote a letter to respondent Sheriff
asking that the defendants be given a little chance to exhaust the legal remedies
available to hold in abeyance the execution and garnishment for the reasons that
defendants were not given a chance to have their day in court in the motion for
immediate execution of judgment and that they have already appealed from the lower
court's decision and order of immediate execution.
Issue
Whether respondent Judge acted without or in excess of jurisdiction or with grave

abuse of discretion in declaring the defendants in default, in receiving plaintiff's evidence ex
parte and in rendering judgment.
Held
 The Supreme Court ruled that the respondent Judge acted with grave abuse of
discretion when he declared the petitioners in default.
 The motion to dismiss was pending before the court when such declaration was
made, and it is generally irregular to enter an order of default while a motion to
dismiss remains pending and undisposed of
 There may be cases where the attendance of certain circumstances "may be
considered substantive enough to truncate the adverse literal application of the
pertinent rules violated." Inasmuch as petitioners were declared in default while their
motion to dismiss was still pending resolution, they were, therefore, incorrectly
declared in default, and the holding of the trial of the case on the merits, in their
absence, without due notice to them of the date of hearing, was a denial of due
process. Consequently, the order of default, the judgment and the order of
execution are patent nullities.

Omico Mining Vs VAllejos

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Facts

Whether respondent Judge acted without or in excess of jurisdiction or with grave

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