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ABERCA vs VER

FACTS: Several suspected subversives (plaintiffs/petitioners) who were arrested and detained by the
military filed a complaint for damages with the RTC of Quezon City against General Ver, then AFP
Chief of Staff, and some of his subordinate officers (defendants/respondents). They alleged in their
complaint that they were detained by Task Force Makabansa (group of various intelligence units of the
AFP) on the strength of defective search warrants, and that while they were detained, they were
subjected to physical and psychological harm, torture and other brutalities to extort confessions and
other information that would incriminate them.

Gen. Ver et.al, represented by then SolGen Estelito Mendoza, filed a motion to dismiss on the ff.
grounds: (1) since the privilege of the writ of habeas corpus was then suspended, the RTC can't inquire
into the circumstances surrounding the arrests; (2) defendants are immune from liability becuase they
were performing official duties; and (3) the complaint states no cause of action. This motion to dismiss
was granted. Plaintiffs thus filed a motion to reconsider and set aside the dismissal, but the TC declared
the order final. Plaintiffs filed a motion for reconsideration but it was denied.

Plaintiffs went to the Supreme Court on a petition for review on certiorari seeking to annul the TC's
order to dismiss the case. While this was pending, the EDSA Revolution took place. As a result,
defendants were removed from their respective positions and their respective office addresses were no
longer the ones appearing on record. Also, the case was re-raffled to another RTC branch.

The SC rendered a decission anulling the previous order to dismiss and remanded the case to the TC.
However, the TC could not proceed immediately since the record of the case was destroyed when fire
razed Quezon City Hall. It was more than a year later when plaintiffs sought to reconstitute the record
of the case. There was no showing that defendants or their counsel were notified, but for lack of
opposition, the case was reconstituted.

Plaintiffs filed a motion praying for the defendants to file their answer, but the records no longer had
their addresses or the names of their counsel. Plaintiffs were directed to report to the TC the addresses
and whereabouts of the defendants so they could be properly notified. Instead of complying with the
order, plaintiffs filed a motion to declare the defendants in default. The TC deferred the resolution of
this motion and issued an order directing that a copy of the order to locate defendants be furnished to
the new SolGen Francisco Chaves (so that he could take action on it) and former SolGen Mendoza (to
ask if he'll continue to represent defendants in his personal capacity).

Former SolGen Mendoza informed the court that he would no longer appear as counsel, and SolGen
Chavez also said he would not represent the defendants, citing Urbano vs Go. There is still no record of
the defendants being informed of any of this. The TC denied the motion to declare defendants in
default becuase of this lack of notification. They also directed plaintiffs to comply with the order to
locate the defendants warning them that the case would be dismissed if they did not give the court the
defendants' addresses. They plaintiffs filed a motion for reconsideration, but this was denied.

The plaintiffs failed to comply with the order, so the trial court dismissed the case, but then set aside
this dismissal 6 months later and approved plaintiff's motion to serve the notice to file an
answer/responsive pleading by publication. No answer was filed by the defendants within the period of
the notice published and they were declared in default. The RTC then ruled in favor of the plaintiffs
holding the defendants liable to pay damages.
Respondents Singson, Lacson and Abadilla filed their Omnibus Motion praying that the order of
default be reversed and set aside and the decision be declared null and void. They also requested to be
given 15 days to file an answer to the complaint and present their evidence. Respondent Aguinaldo
failed to file a timely notice of appeal, so he filed a Petition for Relief from Judgement praying that the
RTC set aside its decision as it was in violation of due process, the records of the case were effected to
fraud, and his failure to move for trial/appeal was due to mistake/excusable negligence. These were
both denied so they elevated their case to the CA.

The CA reversed and set aside the RTC decision and ordered that the case be remanded to the RTC for
further proceedings. The CA stated that the RTC committed the following errors: (1) it abandoned the
proper modes of service of notices, orders, resolutions or judgments; (2) it failed to avail of substituted
service after failing to effect personal service or service by mail; (3) it authorized service by publication
after dismissing the case for failure of the petitioners to furnish the current addresses of the
respondents; (4) it declared the respondents in default though they were not duly notified and thus
denied due process.

Thus this petition.

[Summary of Petitioner's Argument: They were under no obligation to track down the respondents
since under the Rules of Court, once a litigant is represented by counsel, all notices, motions and
pleadings must be send to him as counsel of record. The OSG was furnished copies of all court orders,
the negligence of the OSG is binding on the respondents. Further, substituted service was an exercise in
futility because the respondents were no longer holding the positions they were holding at the time the
petition was filed, and therefore, could not be reached at the addresses indicated on the complaint, thus
the only remaining option was publication.]

[Summary of Respondent's Argument: Petitioners didn't actually addresses the four errors the CA
pointed out[

ISSUE: Whether the respondents were deprived of due process through the order declaring them in
default

HELD: YES, they were deprived of due process. Rule 13 of the Rules of Court prescribes the modes of
service of pleadings, motions, notices, orders, judgments, and other papers namely: (1) personal
service; (2) service by mail; and (3) substituted service, in case service cannot be effected either
personally or by mail. The basic rule on the modes of service under Rule 13 have been made mandatory
and thus should be strictly followed.

Section 11 of the said Rule states: Whenever practicable, the service and filing of pleadings and other
papers shall be done personally. Except with respect to papers emanating from the court, a resort to
other modes must be accompanied by a written explanation why the service or filing was not done
personally. A violation of this Rule may be cause to consider the paper as not filed. This is mandatory.
Under this rule, personal service and filing is the general rule, and resort to other modes of service and
filing is the exception. Only when personal service or filing is not practicable may the court then resort
to other modes, which must then be accompanied by a written explanation as to why personal service
or filing was not practicable.

In this case, 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. 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. Similarly, service by publication can apply to judgments, final orders and
resolutions following Sec.9, Rule 13 which states: When a party summoned by publication has failed
to appear in the action, judgments, final orders or resolutions against him shall be served upon him also
by publication at the expense of the prevailing party. Obvious from this is that even granting that the
notice to file answer can be served by publication, it is explicit in the Rule that publication is allowed
only if the defendant was summoned by publication.

The records do not show that the RTC initiated extra efforts to notify the respondents about the
reconstitution of the proceedings. The entire records of this case tend to show that the respondents were
completely out of the picture until after the promulgation of the RTC decisions. On countless
occasions, the Court ruled that, generally, judgments by default are looked upon with disfavor and are
frowned upon as contrary to public policy. The issuance of orders of default should be the exception
rather than the rule, to be allowed only in clear cases of obstinate refusal by the defendant to comply
with the orders of the trial court.