Impossible requirement

The law does not require that the impossible be done. This is the principle applied in this case of Pete.

Pete was a member of the Board of Directors of an oil exploration company (PEC) which advanced to him a car loan. When he left the company, his car loan still had an outstanding balance of P698,502.10 that remained unpaid despite demands. Hence PEC filed a complaint for sum of money against Pete.

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

In compliance with the rules on the service of summons by publication (Rule 14, Section 14), PEC then caused the publication of the summons in a newspaper of general publication in the Philippines. Thereafter it submitted the affidavit of publication of the advertising manager of the newspaper. And to complement such service by publication as required by Section 19, it also submitted an affidavit of service of its employee to the effect that he sent a copy of the summons by registered mail at Pete’s last known address.

When Pete still failed to file his answer within the prescribed period, PEC moved that the case be set for the reception of its evidence ex parte. In an order dated September 11, 2003, the trial court granted not only PEC’s motion but in effect also declared Pete in default. A copy of said order was mailed to Pete at his last known address. But it was unclaimed.

PEC then 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 however, before the case could be decided, Pete filed a motion seeking reconsideration of the September 11, 2003 order and praying that his attached answer be admitted. He claimed among others that he was denied due process as he was not notified of the September 11, 2003 order. According to him, assuming that he is in default, he is still entitled to notice of subsequent proceedings. Was he correct?

No. 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 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 require 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 Pete himself does not dispute that he failed to file his answer on time by his filing of the motion to admit his answer. As is readily apparent, the September 11, 2003 order did not limit itself to permitting PEC to present its evidence ex-parte but also effectively found Pete in default. However since no motion to declare Pete in default was filed, the default order should not have been issued. Hence Pete is all the more entitled to such notice.

But since his residence or whereabouts is not known or he cannot be located, there is obviously no way notice can be sent to him. So the notice requirement cannot apply to him. Even if he was not validly declared in default, he could not reasonably demand that copies of orders and processes be furnished him. The law obliges no one to perform impossibility. Laws and rules must be interpreted in a way that they are in accordance with logic, common sense, reason and practicality. Be that as it may, a copy of the September 11, 2003 order was nonetheless mailed to him at his last known address but it was unclaimed (Santos, Jr. vs. PNOC Exploration Corp. G.R. 170943, September 23, 2008)

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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