On  June  9, 1953, Vicente Dy  Sun, Sr. and Gloria  R. Dy Sun, spouses, filed an  action in the Court of  First Instance of Manila against Primitivo A. Macaraig and Francisco A. Quisurabing to recover the sum of P23,000 as damages, ,P2,000 as attorney's fees,  and costs,  which were sustained as a result of a collision which occurred on June 4, 1953 between their car driven by Victoriano Narzabal  and a  taxicab driven by Macaraig belonging to Quisumbing.   Summons was served on Quisumbing,  but not on Macaraig who could not be found, and so upon plaintiffs' petition, the court ordered that Macaraig be summoned by publication in a local newspaper giving him up to September 15, 1953 to answer the complaint.

On July 9, 1953,  Quisumbing answered the  complaint alleging that the collision occurred because  of  the negligence and imprudence and disregard  of traffic regulations on the part of plaintiffs'  driver.  Macaraig having failed to appear within the period set in the notice  was declared in default and the case  was set for hearing on November 5, 1953.  On said date,  plaintiffs presented their evidence but the case was reset on February 25, 1954 for  the reception of the rest of  the  evidence.

On February 24,  Macaraig came to Manila from Pangasinan and having been informed of the order of default entered against him, he  hired a lawyer who, on the following day,  filed in court a verified motion asking that the order be set aside and Macaraig be given ten days within which  to answer.  He also  explained therein the  reasons why Macaraig was not able to appear  and answer the complaint  on time.  Notice of said motion was served on counsel for plaintiffs and defendant Quisumbing  who were then present in court for the continuation  of the  trial of the case.  When the case was called  for hearing, counsel for Macaraig invited the court's attention to his motion for the setting aside of the order  of default, but  the court refused to act thereon  adverting that  the  same should first be set for hearing  as required by the rules.

On April 20, 1954, the court  rendered judgment ordering defendant  Macaraig to pay plaintiffs  the aggregate sum of P22,251.51 by way of medical expenses,  repair of plaintiffs' car, attorney's fees and moral  damages,  and making Quisumbing liable thereof in case of Macaraig's insolvency.  In due time, Quisumbing  perfected his appeal. Macaraig, on his part filed a motion reiterating his prayer that the  order of default be set aside, at the same time. asking for the reconsideration of the decision. This motion was denied and Macaraig also perfected his appeal.  On June 14,  1954, the  record  was  elevated  to  the  Court of Appeals.

On April 26, 1956,  Quisumbing filed a petition for new trial based on the ground that on February 28, 1955 the Municipal Court of Manila, in Criminal Case No. U-36972, wherein Macaraig was accused of serious and slight physical  injuries through  reckless imprudence  arising out of the same collision which is the subject matter of the civil case, rendered judgment acquitting Macaraig on reasonable doubt, Macaraig made his own this motion for new trial. The Court of Appeals deferred action on this motion until the case is decided on the merits.  And on April 27, said court rendered judgment setting aside the  decision of the lower court as against Quisumbing and ordering that the case be remanded to the court of origin with instructions to permit Quisumbing (a) to present evidence to prove his defense of  diligence of good father of a family to prevent damage and (b) to present in evidence a certified copy of the decision of the Municipal Court of Manila in Criminal Case No. U-36972 wherein Macaraig was acquitted, at the same time  allowing plaintiffs  to submit  such  evidence in rebuttal as they may offer under  the Rules of Court.   With respect however  to defendant Macaraig,  the  decision of the lower court was  affirmed, the court holding that his failure to appear cannot be ascribed  to accident, mistake or excusable negligence but rather "it was the result of a deliberate attempt to  stay away from the long arm of the law."   It is against this ruling that Macaraig has  interposed the present petition for review.

This appeal  merely hinges on  whether  the  Court of Appeals was justified  in denying Macaraig's petition to set aside the order of default entered against him to enable him to present his evidence in support of his defense for his failure  to appear  at the  hearing set by the trial court when he was ordered summoned by publication.

The  facts  relative  to this  incident are:  Immediately after the accident, Macaraig transferred his residence to Pangasinan for which reason  summons could not be personally served on him.  On plaintiffs' motion, the court ordered that  summons be served  on him by publication wherein he was required to appear on September 16, 1953. Upon his failure to appear as required, the court declared him in  default.  On February 25,  1954,; the last day of the hearing, Macaraig appeared accompanied by counsel asking that the  order  of  default be set aside on the basis  of a written motion he filed on the very same day serving copies thereof on counsel of both parties, but the court refused to act thereon holding that the same should first be set  for  hearing.   Trial  then  proceeded.  Thereafter, counsel for Quisumbing moved for postponement pending action on Macaraig's  motion on the ground  that if said motion  is granted there would be duplicity of evidence for both defendants.  This  motion was  however denied and on April 27, 1957, the Court of Appeals rendered judgment granting Quisumbing's motion for new trial but  affirming the decision with respect to  Macaraig.

The Court  of  Appeals,  in denying Macaraig's motion to set aside the order of default, made the following comment "On the foregoing facts, appellant (Macaraig)  cannot rightfully  complain that he was deprived of his day in court.   If judgment was rendered against  him, it  was through his own fault.  His failure to appear  in court on time certainly cannot be ascribed to accident, mistake or excusable  negligence.  Bather,  it  was  the result of a deliberate attempt to stay away from the long arm of the law.  He did not as much as diligently pursue his remedy thereafter."

While Macaraig may be blamed for having gone to the province right after the accident in disregard of the consequences that may follow from the collision of which he was a direct participant, he however appeared in court as soon as he came to know of the filing of the case against  him and of the order declaring him in  default and filed in no time a  verified motion explaining his failure to  appear and stating that he had a good and valid defense that may relieve him from  the complaint.   In fact, he came to court accompanied by counsel when the trial was still going on and before plaintiffs had completed the presentation of their  evidence.  The only mistake he committed  was in not giving plaintiffs' counsel three-days notice as required by the rules.   But this  shortcoming would appear to be insubstantial considering the fact that there was  no objection to  the motion and  the court  acted on it only motu proprio in spite of the fact that the merits of the motion were argued by counsel of both parties in connection with the motion for postponement filed by Quisumbing's counsel on the ground that if  said motion  is granted there might be duplicity of evidence on the  part of both defendants.

That  Macaraig has  a good  and valid  defense  as stated in his verified  motion cannot  be  gainsaid for  in truth and in fact he was acquitted by the Municipal  Court of the City of Manila in Criminal Case No. U-36972 wherein he was accused  of serious and slight  physical  injuries through reckless imprudence  arising out of of the same accident which is the subject matter of the  present action. On the other hand, no prejudice can be caused to plaintiffs. If Macaraig's order of default be  set aside for the case against his co-defendant Quisumbing has not  yet been finally terminated  for, as already stated, the  Court of Appeals has granted his motion for new trial to enable him not only to present evidence to prove his  defense  of diligence of a good father of a family but likewise to present in evidence a certified copy of the decision of the Municipal Court of Manila in the criminal  case already adverted to. In other words, Quisumbing still has every chance to prove that the collision took place not necessarily through the negligence of his driver Macaraig  but a result of an unavoidable  accident.   At any rate, the case is merely being remanded to the Court of origin for a  new trial  and no prejudice can be caused to plaintiffs if Macaraig is allowed to prevent his evidence  in order  that  the truth may be established.

The granting of a motion to set aside an order  of default  rests in  the  discretion of the court, but "It must be remembered that the only discretion conferred upon officers is a legal discretion, and when anything is left to any officer to be done according to  his discretion  the law intends it to be  done with a sound  discretion and  according to law; and if a given case falls  within both the letter and spirit of section 113, supra, (Rule 38, Rules of Court)  a denial of the relief sought will  amount to an  abuse of such discretion"  (Coombs  vs. Santos, 24 Phil., 446).  Considering the circumstances  of this case, equity demands that Macaraig be given an opportunity to present evidence in support of his defense as  stated in his verified motion  in order that the truth may come out.

Wherefore,  the  decision  appealed from  with respect to Macaraig is  hereby set aside.  The  case is remanded to the court of origin to allow him to answer the complaint and present evidence in support of his defense.   No costs.

Paras, C. J., Bengzon, Montemayor, Reyes, A., Labrador, Reyes, J. B. L., and Endencia,  JJ.,  concur.