Spouses Jose vs Spouses Boyon

8/18/2019 Spouses Jose vs Spouses Boyon

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G.R. No. 147369 October 23, 2003

Spouses PATRICK OS! "#$ RA%A!&A OS!, petitioners,vs.Spouses '!&!N (O)ON "#$ RO*!O (O)ON, respondents.

D E C I S I O N

PANGANI(AN, J.:

In general, substituted service can be availed of only after a clear showing thatpersonal service of summons was not legally possible. lso, service by publication isapplicable in actions in rem and !uasi in rem, but not in personal suits such as thepresent one which is for specific performance.

"he Case

#efore the Court is a $etition for %eview on Certiorari& under %ule '( of the %ules of

Court, assailing the )ebruary *+, *& Decision*

of the Court of ppeals -C in C/0% S$ No. +111. "he dispositive portion of the C Decision is worded as follows2

345E%E)O%E, on the basis of what prescinds, the assailed resolution and ordersissued by the public respondent are perforce NN677ED and SE" SIDE. "hispronouncement is nonetheless rendered without pre8udice to the refiling of the samecase by the private respondents with the court a !uo.39

"he )acts

"he factual antecedents of the case are narrated by the C in this wise2

3On :uly *, &;;1, and %afaela :ose lodged a complaint forspecific performance against of Court of #ranch *@+ of the%"C of ?untinlupa City, issued summons to the


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3On :anuary (, *,


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court was denominated as an action for specific performance, it was actually anaction !uasi in rem, because it involved a piece of real property located in the$hilippines. "hey further argue that in actions !uasi in rem involving ownership of aparcel of land, it is sufficient that the trial court ac!uire 8urisdiction over the res. "hus,the summons by publication, which they effected subse!uent to the substitutedservice of summons, was allegedly sufficient.

On the other hand, respondents maintain that the proceedings in the trial court werenull and void because of the invalid and defective service of summons. ccording tothem, the %eturn of Summons issued by the process server of the %"C failed tostate that he had eAerted earnest efforts to effect the service of summons. 5eallegedly tried to serve it personally on them on :uly **, &;;1 at No. 9* ria Drive,Camella 5omes, labang. 5e, however, resorted to substituted service on that sameday, supposedly because he could not find respondents in the above address. "heyfurther allege that the person to whom he gave the summons was not even aresident of that address.

%espondents contend that when summons is served by substituted service, thereturn must show that it was impossible to serve the summons personally, and thatefforts had been eAerted toward that end. "hey add that noncompliance with the ruleon substituted service renders invalid all proceedings relative thereto.

s to the summons by publication subse!uently effected by petitioners, respondentsargue that the case filed before the trial court was an action for specific performanceand, therefore, an action in personam. s such, the summons by publication wasinsufficient to enable the trial court to ac!uire 8urisdiction over the persons of

respondents.%espondents conclude that even granting that the service of summons by publicationwas permissible under the circumstances, it would still be defective and invalidbecause of the failure of petitioners to observe the re!uirements of law, li>e an

ffidavit attesting that the latter deposited in the post office a copy of the summonsand of the order of publication, paid the postage, and sent the documents byregistered mail to the formers last >nown address.1awphi1.nét

4e agree with respondents. In general, trial courts ac!uire 8urisdiction over theperson of the defendant by the service of summons. 4here the action is in personam

and the defendant is in the $hilippines, such service may be done by personal orsubstituted service, following the procedures laid out in Sections + and @ of %ule &'of the %evised %ules of Court, which read2

3Section +. Service in person on defendant. / 4henever practicable, the summonsshall be served by handing a copy thereof to the defendant in person, or, if herefuses to receive and sign for it, by tendering it to him.

3Section @. Substituted service. / If, for 8ustifiable causes, the defendant cannot beserved within a reasonable time as provided in the preceding section, service may be

effected -a by leaving copies of the summons at the defendants residence withsome person of suitable age and discretion then residing therein, or -b by leavingthe copies at defendants office or regular place of business with some competentperson in charge thereof.3

s can be gleaned from the above/!uoted Sections, personal service of summons ispreferred to substituted service. Only if the former cannot be made promptly can theprocess server resort to the latter. ?oreover, the proof of service of summons must-a indicate the impossibility of service of summons within a reasonable timeF -bspecify the efforts eAerted to locate the defendantF and -c state that the summons

was served upon a person of sufficient age and discretion who is residing in theaddress, or who is in charge of the office or regular place of business, of thedefendant.@ It is li>ewise re!uired that the pertinent facts proving these

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circumstances be stated in the proof of service or in the officers return. "he failure tocomply faithfully, strictly and fully with all the foregoing re!uirements of substitutedservice renders the service of summons ineffective.1

Defective $ersonal Service of Summons

In the instant case, it appears that the process server hastily and capriciously

resorted to substituted service of summons without actually eAerting any genuineeffort to locate respondents. review of the records; reveals that the only effort heeAerted was to go to No. 9* ria Drive, Camella 5omes, labang on :uly **, &;;1,to try to serve the summons personally on respondents. 4hile the %eturn ofSummons states that efforts to do so were ineffectual and unavailing because 5elen#oyon was in the 6nited States and %omeo #oyon was in #icol, it did not mentioneAactly what efforts // if any // were underta>en to find respondents. )urthermore, itdid not specify where or from whom the process server obtained the information ontheir whereabouts. "he pertinent portion of the %eturn of Summons is reproduced asfollows2

3"hat efforts to serve the said Summons personally upon defendants Sps. 5elen and%omeo #oyon were made but the same were ineffectual and unavailing for thereason that defendant 5elen #oyon is somewhere in the 6nited States of mericaand defendant %omeo #oyon is in #icol thus substituted service was made inaccordance with Section @, %ule &', of the %evised %ules of Court.3&

"he %eturn of Summons shows that no effort was actually eAerted and no positivestep ta>en by either the process server or petitioners to locate and serve thesummons personally on respondents. t best, the %eturn merely states the alleged

whereabouts of respondents without indicating that such information was verifiedfrom a person who had >nowledge thereof. Certainly, without specifying the details of the attendant circumstances or of the efforts eAerted to serve the summons, ageneral statement that such efforts were made will not suffice for purposes ofcomplying with the rules of substituted service of summons.

"he necessity of stating in the process servers %eturn or $roof of Service thematerial facts and circumstances sustaining the validity of substituted service waseAplained by this Court in Hamilton v. Levy ,&&from which we !uote2

3A A A "he pertinent facts and circumstances attendant to the service of summonsmust be stated in the proof of service or Officers %eturnF otherwise, any substitutedservice made in lieu of personal service cannot be upheld. "his is necessarybecause

substituted service is in derogation of the usual method of service. It is amethod eAtraordinary in character and hence may be used only as prescribed and inthe circumstances authoried by statute. 5ere, no such eAplanation was made.)ailure to faithfully, strictly, and fully comply with the re!uirements of substitutedservice renders said service ineffective.3&*

?oreover, the re!uirements of substituted service of summons and the effect of

noncompliance with the subse!uent proceedings therefor were discussedin adri!al v. Court of Appeals&9 as follows2

3In a long line of cases, this Court held that the

impossibility of personal service 8ustifying availment of substituted service should be eAplained in the proof of serviceFwhy efforts eAerted towards personal service failed. "he pertinent facts andcircumstances attendant to the service of summons must be stated in the proof ofservice or Officers %eturnF otherwise, the substituted service cannot be upheld. Itbears stressing that since service of summons, especially for actions in personam, isessential for the ac!uisition of 8urisdiction over the person of the defendant, the

resort to a substituted service must be duly 8ustified. )ailure to do so would invalidateall subse!uent proceedings on 8urisdictional grounds.3&'

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Summons by $ublication Improper

It must be noted that

eAtraterritorial service of summons or summons by publicationapplies only when the action is in rem or quasi in rem. "he first is an action againstthe thing itself instead of against the defendants personF in the latter, an individual isnamed as defendant, and the purpose is to sub8ect that individuals interest in apiece of property to the obligation or loan burdening it.&(

In the instant case, what was filed before the trial court was an action for specificperformance directed against respondents. 4hile the suit incidentally involved apiece of land, the ownership or possession thereof was not put in issue, since theydid not assert any interest or right over it. ?oreover, this Court has consistentlydeclared that an action for specific performance is an action in personam.&+

5aving failed to serve the summons on respondents properly, the %"C did not validlyac!uire 8urisdiction over their persons. Conse!uently, due process demands that allthe proceedings conducted subse!uent thereto should be deemed null and void.&@

+'!R!%OR!, the $etition is DENIED and the assailed Decision and%esolution A""#$%&. Costs against petitioners.
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Spouses Jose vs Spouses Boyon