1999 Bar: For failure to seasonably file his Answer despite due notice. A was declared in default in a case instituted against him by B. the following day, A‘s mistress who is working as a clerk in the sala of the Judge before whom his case is pending, informed him of the declaration of default. On the same day, A presented a motion under oath to set aside the order of default on the ground that his failure to answer was due to fraud and he has a meritorious defense. Thereafter he went abroad. After his return a week later, with the case still undecided, he received the order declaring him in default. The motion to set aside the default was opposed by B on the ground that it was filed before A received notice of his having been declared in default, citing the rule that the motion to set aside may be made at any time after notice but before judgment.
Resolve the Motion. (2%)
The proper resolution depends on certain procedural factors. If the motion to set aside complies with the other requirements of the rule, it should be granted. Although such a motion may be made after notice but before judgment (Sec. 3[b], Rule 9), it is with more reason that it may be filed after discovery even before receipt of the order of default.
