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[ G.R. No. 138459. August 16, 1999]

SPOUSES HUGO CANICULA, et al. vs. SPOUSES CELSO MENDOZA, et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated AUG 16, 1999.

G.R. No. 138459 (Spouses Hugo and Josefa Canicula,. vs. Spouses Celso and Rosalina Mendoza and Court of Appeals.)

This is a petition for review on certiorari of the decision, dated August 14, 1998, of the Court of Appeals. It appears that petitioners, as defendants in an action for damages in the Regional Trial Court, Branch 12, Malolos, Bulacan, were declared in default for their failure to file in an answer to the complainant, as a consequence of which private respondents, as plaintiffs below, were allowed to present their evidence ex-parte and, on April 11, 1994, judgment by default was rendered against petitioners. Petitioners filed a petition for relief from judgment, but the same was denied. Petitioners filed a motion for reconsideration, but this, too, was denied. They then appealed to the Court of Appeals, which, on August 14, 1998, affirmed the resolution of the trial court denying the petition for relief from judgment of petitioners. Hence, this petition.

After due consideration of the petition for review, the Court RESOLVED to deny the same for lack of showing of any reversible error committed by the Court of Appeals. Said the appellate court:

In brief, the appellants argue that the testimony of Process Server Bayani G. Maclid, that he had gone several times to the residence of the defendants to serve the summons but the latter were always out, so that he finally served the summons and a copy of the complaint on Melchor Canicula, who refused to sign a receipt for the same, should not be believed. They find it suspicious that Maclid inquired from the neighbors about the names of the children of the defendants even before meeting Melchor Canicula. They also point out that the children of the defendants were no longer residing at their residence at that time.

However, when he testified, Melchor Canicula himself admitted that he did meet the Process Server who tried to serve summons and a copy of the Complaint on him, only that he did not receive them (p. 7, t.s.n., June 39, 1995).

It all boils down to a question of credibility, and the time-tested rule is that the findings and conclusions of the trial court on the credibility of witnesses enjoy a badge of respect for the reason that trial court have the advantage of observing the demeanor of the witnesses as they (People v. Gamiao, 240 SCRS 254). The trial court has observed that "the testimony of Melchor Canicula, as observed by this Court, deserves scant weight for being self-serving." The appellants have not pointed to any fact which the trial court may have overlooked and which, if considered, might affect the conclusion.

It also is hardly plausible that, after knowing that the Process Server was trying to serve a Summons involving his parents, although he allegedly refused to accept it, Melchor Canicula did not even try to notify his mother (his father was then in Libya) about it.

Petitioners Hugo and Josefa Canicula claim that while a copy of the summons in Civil Case No. 742-M-93 was delivered to No. 193 Dulong Tangos, Navotas, Metro Manila, their residence is at No. 51 Dulong Tangos, Navotas, Metro Manila. Furthermore, they claim that their son Melchor Canicula, who received the same, was no longer living at their residence at that time. Hence, they contend, there was no effective service of summons on them under Rule 14, �8 of the 1964 Rules of Court, which requires that summons be served by leaving a copy of the same at the residence of the defendant with a person of suitable and discretion who is residing therein.

However, it should be pointed out that petitioners Hugo and Josefa Canicula did not present any evidence that their residence indeed is at No. 51 Dulong Tangos, Navotas, Metro Manila and not at 193 Dulong Tangos, Navotas, Metro Manila and that their son Melchor Canicula, on whom summons was served, was no longer living with them at that time. As correctly pointed out by the trial court, in absence of any evidence to the contrary, the presumption is that official duty was regularly performed. Indeed, petitioners have not explained why at the time of service on their son, the latter was no longer living them.

Very truly yours,

(Sgd.) TOMASITA M. DRIS
Clerk of Court

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