FIRST DIVISION

PEDRO T. SANTOS, JR., G.R. No. 170943

Petitioner,

Present:

PUNO, C.J., Chairperson,

CARPIO,

- v e r s u s - CORONA,

AZCUNA and

LEONARDO-DE CASTRO, JJ.

PNOC EXPLORATION

CORPORATION,

Respondent. Promulgated:

September 23, 2008

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D E C I S I O N

CORONA, J.:

This is a petition for review[1] of the September 22, 2005 decision[2] and December 29, 2005 resolution[3] of the Court of Appeals in CA-G.R. SP No. 82482.

On December 23, 2002, respondent PNOC Exploration Corporation filed a complaint for a sum of money against petitioner Pedro T. Santos, Jr. in the Regional Trial Court of Pasig City, Branch 167. The complaint, docketed as Civil Case No. 69262, sought to collect the amount of P698,502.10 representing petitioner’s unpaid balance of the car loan[4] advanced to him by respondent when he was still a member of its board of directors.

Personal service of summons to petitioner failed because he could not be located in his last known address despite earnest efforts to do so. Subsequently, on respondent’s motion, the trial court allowed service of summons by publication.

Respondent caused the publication of the summons in Remate, a newspaper of general circulation in the Philippines, on May 20, 2003. Thereafter, respondent submitted the affidavit of publication of the advertising manager of Remate[5] and an affidavit of service of respondent’s employee[6] to the effect that he sent a copy of the summons by registered mail to petitioner’s last known address.

When petitioner failed to file his answer within the prescribed period, respondent moved that the case be set for the reception of its evidence ex parte. The trial court granted the motion in an order dated September 11, 2003.

Respondent proceeded with the ex parte presentation and formal offer of its evidence. Thereafter, the case was deemed submitted for decision on October 15, 2003.

On October 28, 2003, petitioner filed an “Omnibus Motion for Reconsideration and to Admit Attached Answer.” He sought reconsideration of the September 11, 2003 order, alleging that the affidavit of service submitted by respondent failed to comply with Section 19, Rule 14 of the Rules of Court as it was not executed by the clerk of court. He also claimed that he was denied due process as he was not notified of the September 11, 2003 order. He prayed that respondent’s evidence ex parte be stricken off the records and that his answer be admitted.

Respondent naturally opposed the motion. It insisted that it complied with the rules on service by publication. Moreover, pursuant to the September 11, 2003 order, petitioner was already deemed in default for failure to file an answer within the prescribed period.

In an order dated February 6, 2004, the trial court denied petitioner’s motion for reconsideration of the September 11, 2003 order. It held that the rules did not require the affidavit of complementary service by registered mail to be executed by the clerk of court. It also ruled that due process was observed as a copy of the September 11, 2003 order was actually mailed to petitioner at his last known address. It also denied the motion to admit petitioner’s answer because the same was filed way beyond the reglementary period.

Aggrieved, petitioner assailed the September 11, 2003 and February 6, 2004 orders of the trial court in the Court of Appeals via a petition for certiorari. He contended that the orders were issued with grave abuse of discretion. He imputed the following errors to the trial court: taking cognizance of the case despite lack of jurisdiction due to improper service of summons; failing to furnish him with copies of its orders and processes, particularly the September 11, 2003 order, and upholding technicality over equity and justice.

During the pendency of the petition in the Court of Appeals, the trial court rendered its decision in Civil Case No. 69262. It ordered petitioner to pay P698,502.10 plus legal interest and costs of suit.[7]

Meanwhile, on September 22, 2005, the Court of Appeals rendered its decision[8] sustaining the September 11, 2003 and February 6, 2004 orders of the trial court and dismissing the petition. It denied reconsideration.[9] Thus, this petition.

Petitioner essentially reiterates the grounds he raised in the Court of Appeals, namely, lack of jurisdiction over his person due to improper service of summons, failure of the trial court to furnish him with copies of its orders and processes including the September 11, 2003 order and preference for technicality rather than justice and equity. In particular, he claims that the rule on service by publication under Section 14, Rule 14 of the Rules of Court applies only to actions in rem, not actions in personam like a complaint for a sum of money. He also contends that the affidavit of service of a copy of the summons should have been prepared by the clerk of court, not respondent’s messenger.

The petition lacks merit.

P r o p r i e t y O f

Service By Publication

Section 14, Rule 14 (on Summons) of the Rules of Court provides:

SEC. 14. Service upon defendant whose identity or whereabouts are unknown. – In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such times as the court may order. (emphasis supplied)

Since petitioner could not be personally served with summons despite diligent efforts to locate his whereabouts, respondent sought and was granted leave of court to effect service of summons upon him by publication in a newspaper of general circulation. Thus, petitioner was properly served with summons by publication.

Petitioner invokes the distinction between an action in rem and an action in personam and claims that substituted service may be availed of only in an action in rem. Petitioner is wrong. The in rem/in personam distinction was significant under the old rule because it was silent as to the kind of action to which the rule was applicable.[10] Because of this silence, the Court limited the application of the old rule to in rem actions only.[11]

This has been changed. The present rule expressly states that it applies “[i]n any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry.” Thus, it now applies to any action, whether in personam, in rem or quasi in rem.[12]

Regarding the matter of the affidavit of service, the relevant portion of Section 19,[13] Rule 14 of the Rules of Court simply speaks of the following:

… an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address.

Service of summons by publication is proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager of the newspaper which published the summons. The service of summons by publication is complemented by service of summons by registered mail to the defendant’s last known address. This complementary service is evidenced by an affidavit “showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address.”

The rules, however, do not require that the affidavit of complementary service be executed by the clerk of court. While the trial court ordinarily does the mailing of copies of its orders and processes, the duty to make the complementary service by registered mail is imposed on the party who resorts to service by publication.

Moreover, even assuming that the service of summons was defective, the trial court acquired jurisdiction over the person of petitioner by his own voluntary appearance in the action against him. In this connection, Section 20, Rule 14 of the Rules of Court states:

SEC. 20. Voluntary appearance. – The defendant’s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (emphasis supplied)

Petitioner voluntarily appeared in the action when he filed the “Omnibus Motion for Reconsideration and to Admit Attached Answer.”[14] This was equivalent to service of summons and vested the trial court with jurisdiction over the person of petitioner.

E n t i t l e m e n t T o

Notice Of Proceedings

The trial court allowed respondent to present its evidence ex parte on account of petitioner’s failure to file his answer within the prescribed period. Petitioner assails this action on the part of the trial court as well as the said court’s failure to furnish him with copies of orders and processes issued in the course of the proceedings.

The effects of a defendant’s failure to file an answer within the time allowed therefor are governed by Sections 3 and 4, Rule 9 (on Effect of Failure to Plead) of the Rules of Court:

SEC. 3. Default; declaration of. – If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court.

SEC. 4. Effect of order of default. – A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. (emphasis supplied)

If the defendant fails to file his answer on time, he may be declared in default upon motion of the plaintiff with notice to the said defendant. In case he is declared in default, the court shall proceed to render judgment granting the plaintiff such relief as his pleading may warrant, unless the court in its discretion requires the plaintiff to submit evidence. The defaulting defendant may not take part in the trial but shall be entitled to notice of subsequent proceedings.

In this case, even petitioner himself does not dispute that he failed to file his answer on time. That was in fact why he had to file an “Omnibus Motion for Reconsideration and to Admit Attached Answer.” But respondent moved only for the ex parte presentation of evidence, not for the declaration of petitioner in default. In its February 6, 2004 order, the trial court stated:

The disputed Order of September 11, 2003 allowing the presentation of evidence ex-parte precisely ordered that “despite and notwithstanding service of summons by publication, no answer has been filed with the Court within the required period and/or forthcoming.[“] Effectively[,] that was a finding that the defendant [that is, herein petitioner] was in default for failure to file an answer or any responsive pleading within the period fixed in the publication as precisely the defendant [could not] be found and for which reason, service of summons by publication was ordered. It is simply illogical to notify the defendant of the Order of September 11, 2003 simply on account of the reality that he was no longer residing and/or found on his last known address and his whereabouts unknown – thus the publication of the summons. In other words, it was reasonable to expect that the defendant will not receive any notice or order in his last known address. Hence, [it was] impractical to send any notice or order to him. Nonetheless, the record[s] will bear out that a copy of the order of September 11, 2003 was mailed to the defendant at his last known address but it was not claimed. (emphasis supplied)

As is readily apparent, the September 11, 2003 order did not limit itself to permitting respondent to present its evidence ex parte but in effect issued an order of default. But the trial court could not validly do that as an order of default can be made only upon motion of the claiming party.[15] Since no motion to declare petitioner in default was filed, no default order should have been issued.

To pursue the matter to its logical conclusion, if a party declared in default is entitled to notice of subsequent proceedings, all the more should a party who has not been declared in default be entitled to such notice. But what happens if the residence or whereabouts of the defending party is not known or he cannot be located? In such a case, there is obviously no way notice can be sent to him and the notice requirement cannot apply to him. The law does not require that the impossible be done.[16] Nemo tenetur ad impossibile. The law obliges no one to perform an impossibility.[17] Laws and rules must be interpreted in a way that they are in accordance with logic, common sense, reason and practicality.[18]

Hence, even if petitioner was not validly declared in default, he could not reasonably demand that copies of orders and processes be furnished him. Be that as it may, a copy of the September 11, 2003 order was nonetheless still mailed to petitioner at his last known address but it was unclaimed.

C o r r e c t n e s s O f

Non-Admission Of Answer

Petitioner failed to file his answer within the required period. Indeed, he would not have moved for the admission of his answer had he filed it on time. Considering that the answer was belatedly filed, the trial court did not abuse its discretion in denying its admission.

Petitioner’s plea for equity must fail in the face of the clear and express language of the rules of procedure and of the September 11, 2003 order regarding the period for filing the answer. Equity is available only in the absence of law, not as its replacement.[19] Equity may be applied only in the absence of rules of procedure, never in contravention thereof.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

RENATO C. CORONA

Associate Justice

W E C O N C U R:

REYNATO S. PUNO

Chief Justice

Chairperson

ANTONIO T. CARPIO ADOLFO S. AZCUNA

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO

Chief Justice

[1] Under Rule 45 of the Rules of Court.

[2] Penned by Associate Justice Santiago Javier Ranada (retired) and concurred by Associate Justices Roberto A. Barrios (deceased) and Mario L. Guariña III of the Eighth Division of the Court of Appeals. Rollo, pp. 20-25.

[4] The car loan was originally for P966,000 which was used to procure a Honda CRV for petitioner. The said loan was evidenced by a promissory note and further secured by a chattel mortgage on the vehicle. One of the conditions of the promissory note was that, in case of separation from the service, any unpaid balance shall immediately be paid in full. (See May 19, 2004 Regional Trial Court decision, rollo, pp. 82-83.)

[5] Allan Paul A. Plaza.

[6] Vincent Panganiban.

[7] See May 19, 2004 Regional Trial Court decision, rollo, pp. 82-83. Petitioner’s motion for reconsideration of the said decision remains pending.

[10] The predecessor of this provision was Section 16, Rule 14 of the 1964 Rules of Procedure which provided:

SEC. 16. Service upon an unknown defendant. – Whenever the defendant is designated as an unknown owner, or the like, or whenever the address of a defendant is unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order.

[11] Consolidated Plywood Industries, Inc. v. Breva, G.R. No. L-82811, 18 October 1988, 166 SCRA 519; Asiavest Limited v. Court of Appeals, 357 Phil. 536 (1998); Valmonte v. Court of Appeals, 322 Phil. 96 (1996).

[12] See Herrera, Oscar M., Remedial Law, vol. I, pp. 699 and 702.

[13] The provision states:

SEC. 19. Proof of service by publication. – If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address.

[14] Herrera, supra note 12 citing Europa v. Intermediate Appellate Court, G.R. No. 72827, 18 July 1989, 175 SCRA 394.

[15] Mediserv, Inc. v. China Banking Corporation, 408 Phil. 745 (2001).

[16] Akbayan-Youth v. Commission on Elections, 407 Phil. 618 (2001).

[19] Heirs of Spouses de la Cruz v. Heirs of Quintos, Sr., 434 Phil. 708 (2002) citing Tupas v. Court of Appeals, G.R. No. 89571, 06 February 1991, 193 SCRA 597.