Date: Hidar 03, 2003 E.C.
Summary of the Case:
A decision was rendered in the absence of the applicants to cancel a house sale contract and to hand over the house. The applicants filed a petition to set aside the default judgment (Civ. Proc. Code Art. 78). The main argument is that the summons did not properly reach them in the sequence established by law (specifically, summons by newspaper and posting at the residence). The lower courts rejected it, stating that the summons had been served.
Key Legal Interpretation:
The procedure for requesting the setting aside of a default judgment (Civ. Proc. Code Art. 78). The necessity of proper service of summons (Civ. Proc. Code Art. 70(a)). Alternative methods of serving summons are executed only when it is properly confirmed that the defendant cannot be found.
It is well-established that one of the primary objectives of the section of the Civil Procedure Code concerning the method and sequence of service of summons, as well as the person to whom the summons is to be delivered, is to ensure that litigants have an equal right to be heard, thereby enabling a just resolution of the case. Consequently, the court must verify the appropriate method of service and ensure it is delivered to the proper recipient.
The procedure to be followed by the court in instances where a party, having been properly served, fails to appear or refuses to accept the summons, is explicitly provided by law. Among these provisions are those stipulated under Articles 70(a), 103, 104, 105, 106, and 107 of the Civil Procedure Code. According to these provisions, a case may be heard and decided *ex-parte* (in the absence of the defendant) only when it is verified that the summons was duly served, or that the defendant refused to accept service, or could not be found. These provisions emphasize that if it is confirmed that the summons was not properly served, the court shall not order the case to proceed *ex-parte*.
The inclusion of the phrase “duly served” under Article 70(a) of the Civil Procedure Code signifies that the conditions for the issuance and service of summons, as set forth under Articles 94 through 110, must be properly fulfilled. Furthermore, it is provided that where an *ex-parte* judgment is rendered against a defendant, they may seek a remedy pursuant to Article 78 of the Civil Procedure Code. Under this provision, such remedy may be sought if the applicant can demonstrate in their petition that the summons was “not duly served.”
From the collective reading of these provisions, it is understood that a person is deemed to have waived their right to be heard only when they fail to appear despite having received the summons in accordance with the legally established procedure and sequence, while being aware of the litigation. The essence and spirit of the aforementioned provisions indicate that if the court executes a substituted service of summons following the legally prescribed procedure, the summons shall be deemed served upon the defendant, and the defendant shall only be permitted to join the proceedings upon showing sufficient and legal cause.
Reasoning:
As confirmed in the main file of the lower court, the procedure taken to summon the 1st applicant via newspaper was done without fulfilling the procedures that should have been executed first. For the second applicant, what was posted was an execution of judgment summons, not a summons relevant to the main case. When the court executes an alternative method of serving summons following the procedure established by law, the summons is considered served only when it is properly confirmed that the defendant cannot be found. Therefore, since it was confirmed that the summons did not properly reach them, the rejection by the lower courts is a fundamental error of law that violated the right to be heard.
Ruling:
1. The orders given by the Federal First Instance Court and the Federal High Court are quashed in accordance with Civ. Proc. Code Art. 348(1).
2. It is decided that the default judgment rendered in their absence is set aside in accordance with Civ. Proc. Code Art. 78(2), and the case shall be heard in their presence.
3. The case is remanded to the Federal First Instance Court with an order to hear the case in the presence of the applicants and render a decision.