Cases-where-declaration-order-of-default-cannot-be-made-grande.docx

Aberca v. Ver Gr. No. 166216; March 14, 2012 Facts: Plaintiff- appellees filed a complaint for damages with theRTC of Quezon City againg Gen. Ver, then AFP Chief of Staff along with his several subordinates. It was alleged that they were arrested and detained by the AFP intelligence unit known as Task Force Makabansa (TFM) as ordered by General Ver. A motion to dismiss was filed by the defendants, through their counsel, then Sol-Gen Mendoza, which was granted. The decision became final, however plaintiffs-appellees filed a petition for review on certiorari seeking to annul and set aside the decision. SC rendered a decision annulling and remanding the case to trial court for further proceeding. The petition for reconstitution commensed but it was not showed whether the defendants-appellant or their counsel was notified. Plaintiffs-appellees filed a motion praying the defendants-appellants be required to file their answer. However, the record did not show who the lawyer of the latter are. Plaintiffsappellees were directed to report to the trial court the addresses and whereabouts of defendants-appellants so that they could be properly notified, nut instead they filed a motion to declare defendants-appellants in default. The trial court denied plaintiffs-appellees motion to declare defendants-appellants in default, emphatically pointing out that defendants-appellants were not duly notified of the decision of the Supreme Court. In compliance with the court’s decision, notice was published in the Tagalog newspaper . RTC ruled in favor of the plaintiffs-appellees, declaring the defendants in default. Issue: Whether or not the respondents were completely deprived of due process when they were declared in default Held: the respondents were completely deprived of due process when they were declared in default based on a defective mode of service service of notice to file answer by publication. The rules on service of pleadings, motions, notices, orders, judgments, and other papers were not strictly followed in declaring the respondents in default. The Court agrees with the CA that the RTC committed procedural lapses in declaring the respondents in default and in allowing the petitioners to present evidence ex-parte. the RTC should have instead directed the petitioners to exert diligent efforts to notify the respondents either personally or by registered mail. In case the preferred modes were impractical, the Court should have required the petitioners to at least report in writing why efforts exerted towards personal service or service by mail failed. In other words, a convincing proof of an impossibility of personal service or service by mail to the respondents should have been shown first. The RTC, thus, erred when it ruled that the publication of a notice to file answer to the respondents substantially cured the procedural defect equivalent to lack of due process. The RTC cannot just abandon the basic requirement of personal service and/or service by mail.To stress, the only modes of service of pleadings, motions, notices, orders, judgments and other papers allowed by the rules are personal service, service by mail and substituted service if either personal service or service by mail cannot be made, as stated in Sections 6, 7 and 8 of

Rule 13 of the Rules of Court. Nowhere under this rule is service of notice to file answer by publication is mentioned, much less recognized. Furthermore, the Court would like to point out that service by publication only applies to service of summons stated under Rule 14 of the Rules of Court where the methods of service of summons in civil cases are: (1) personal service; (2) substituted service; and (3) service by publication.

Sablas v. Sablas G.R. No. 144568; July 3, 2007 Facts: A complaint for judicial partition, inventory and accounting was filed by the respondents Esterlita Sablas and Rodulfo Sablas against the petitioner spouses Pascual Sablas. Petitioners were served with summons and coply of complaint. They filed a motion for extension of time but they were still able to file their answer beyond the period. It was still admitted because no motion to declare the petitioner spouses in default was filed. The following day, respondents filed a motion to declare petitioner in default but it was denied by the trial court. They further moved for reconsidetation but it was also denied. Thereafter, the challenged the order in CA alleging that the admission of the answer was contrary to law. CA ruled that the trial court committed grave abuse of discretion because pursuant to section 3 of rule 9 of the Rules of Court, the court should have declared the petitioner in default when they failed to file their answer timely. Aggrieved, petitioner spouses now assail the decision of the CA Issue: Whether or not CA erred in declaring the spouses in default Held: Yes. CA erred in declaring the spouses in default. Where there is no motion, there can be no declaration of default. An order of default can be made only upon motion of the claiming party. It can be properly issued against the defending party who failed to file the answer within the prescribed period only if the claiming party files a motion to that effect with notice to the defending party. Three requirements must be complied with before the court can declare the defending party in default: (1) the claiming party must file a motion asking the court to declare the defending party in default; (2) the defending party must be notified of the motion to declare him in default and (3) the claiming party must prove that the defending party has failed to answer within the period provided by the Rules of Court. The rule on default requires the filing of a motion and notice of such motion to the defending party. It is not enough that the defendant fails to answer the complaint within the reglementary period. The trial court cannot motu proprio declare a defendant in default as the rules leave it up to the claiming party to protect his or its interests. The trial court should not under any circumstances act as counsel of the claiming party.

Paredes v. Verano G.R. No. 164375; October 12, 2006 Facts: Complaint for the establishment of a right of wau was filed by the petitioners against the respondents. During the pre-trial, counsel of the petitioner Baybays was not present but still the trial commenced. The RTC allowed the respondents to present their evidence ex parte, “for failure of the defendant’s counsel to appear before the RTC. When the petitioners assailed the order, CA dismissed it ourtright. Issue: Whether or not the presentation of evidence ex parte was valid Held: No. The absence of the counsel for defendants at pretrial does not ipso facto authorize the judge to declare the defendants in default and order the presentation of evidence ex part. Nothing in the rules of court sanctions the presentation of evidence ex parte upoln instances when counsel for defendant is absent during pretrial. The Rules do not countenance stringent construction at the expense of justice and equality.

San Pedro Cineplex Properties, Inc. v. Heirs of Manuel Enaňo G.R. No. 190754; November 17, 2010 Facts: Respondents filed a complaint for quieting of title with damages against petitioner before the RTC of San Pedro, Laguna. Petitioner filed a Motion to Dismiss on the ground that the court did not validly acquired jurisdiction over it due to imporper service of summons. Respondents, however, showed that summons was served upon. They moved to declare petitioner in default for failure to file an answer within the reglementary period. Petioner then filed a motion to withdraw its motion to dismiss and to admit answer but the trial court denied such on the same day decalring the petitioner in default. Issue: Whether or not the declaration of default is proper Held: Petitioner correctly points out that the rule is that a defendant's answer should be admitted where it is filed before a declaration of default and no prejudice is caused to the plaintiff. Indeed, where the answer is filed beyond the reglementary period but before the defendant is declared in default and there is no showing that defendant intends to delay the case, the answer should be admitted In the case at bar, it is inconsequential that the trial court declared petitioner in default on the same day that petitioner filed its Answer. As reflected above, the trial court slept on petitioners Motion to Dismiss for almost a year, just as it also slept on respondents Motion to Declare petitioner in Default. It was only when petitioner filed a Motion to Withdraw Motion to Dismiss and to Admit Answer that it denied the Motion to Dismiss, and acted on/granted respondents Motion to Declare petitioner in Default. This is procedurally unsound.

Narciso v. Garcia G.R. No. 196877; Noovember 21, 2012 Facts: Rspondent filed a complaint for damages against petitioner before the RTC San Fernando, Pampanga. Narciso filed a motion to dismiss alleging that the RTC had no jurisdiction over the subject matter.Respondent opposed the motion and at the same time sought to have the petitioner declared in default sice the time to file an answer already elapsed. RTC denied the petitioner’s motion to dismiss and declared the latter in default for failing to file an answer. Issue: Whether or not the court erred in declaring the petitioner in default Held: As a consequence of the motion to dismiss that the petitioner filed, the running of the period during which the rules required her to file her answer was deemed suspended. When the trial court denied her motion to dismiss, therefore, she had the balance of her period for filing an answer under Section 4, Rule 16 within which to file the same but in no case less than five days, computed from her receipt of the notice of denial of her motion to dismiss.