Summons Notes

8/3/2019 Summons Notes

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SummonsDefinition and purposeDuty to issue, Rule 14, Secs 1, 5Section 1. Clerk to issue summons. Upon the filing of the complaint and

the payment of the requisite legal fees, the clerk of court shall

forthwith issue the corresponding summons to the defendants.

Sec. 5. Issuance of alias summons. If a summons is returned without

being served on any or all of the defendants, the server shall also

serve a copy of the return on the plaintiff's counsel, stating the

reasons for the failure of service, within five (5) days therefrom. In

such a case, or if the summons has been lost, the clerk, on demand of

the plaintiff, may issue an alias summons.

FormContent, Rule 14, Sec. 2Sec. 2. Contents. The summons shall be directed to the defendant,

signed by the clerk of court under seal, and contain:

(a) the name of the court and the names of the parties to the action;

(b) a direction that the defendant answer within the time fixed by

these Rules;

(c) a notice that unless the defendant so answers, plaintiff will take

judgment by default and may be granted the relief applied for.

A copy of the complaint and order for appointment of guardian ad litem,

if any, shall be attached to the original and each copy of the summons.

If with leave of court, Rule 14, Sec. 17Sec. 17. Leave of court. Any application to the court under this Rule

for leave to effect service in any manner for which leave of court isnecessary shall be made by motion in writing, supported by affidavit of

the plaintiff or some person on his behalf, setting forth the grounds

for the application .

Who serves, Rule 14, Sec. 3Sec. 3. By whom served. The summons may be served by the sheriff, his

deputy, or other proper court officer, or for justifiable reasons by

any suitable person authorized by the court issuing the summons.

On whom,In general, Rule 14, Sec 1, 6Section 1. to the defendants.

Sec. 6. Service in person on defendant. Whenever practicable, the

summons shall be served by handing a copy thereof to the defendant in

person, or, if he refuses to receive and sign for it, by tendering itto him.

Entity without juridical personality, Rule 14, Sec. 8Sec. 8. Service upon entity without juridical personality. When

persons associated in an entity without juridical personality are

sued under the name by which they are generally or commonly known,

service may be effected upon all the defendants by serving upon any

one of them, or upon the person in charge of the office or place of

business maintained in such name. But such service shall not bind

individually any person whose connection with the entity has, upon

due notice, been severed before the action was brought.

Associations, Rule 14, Sec. 9 (?)Sec. 9. Service upon prisoners. When the defendant is a prisoner

confined in a jail or institution, service shall be effected upon him

by the officer having the management of such jail or institution who is

deemed deputized as a special sheriff for said purpose.

Domestic, Rule 14, Sec. 11Sec. 11. Service upon domestic private juridical entity. When the

defendant is a corporation, partnership or association organized under

the laws of the Philippines with a juridical personality, service may

be made on the president, managing partner, general manager, corporate

secretary, treasurer, or in-house counsel.

Rebollido v. CA, 170 SCRA 800 (1989)REBOLLIDO VS CA (PEPSICO)

170 SCRA 800GUTIERREZ, J.; February 28, 1989

NATUREPetition for certiorari to review CA decision

FACTS- Petitioners were involved in a vehicular accident involving a truck trailer owned byPepsi Cola Bottling Company on March 1, 1984.- Rebollido and Valencia, owner and driver, respectively, of the school bus which gotinto the accident, filed an action for quasi delict and damages on August 7, 1984.- On September 21, 1984, the sheriff served summons to the defendants. Saidsummons was received by Nanette Sison who represented herself as authorized toreceive the court process being a secretary at the legal department of Pepsi Cola.- Pepsi Cola failed to file an answer and was later declared in default. The lowercourt heard the case ex-parte and adjudged the defendants jointly and severallyliable for damages in a decision rendered on June 24, 1985.- On August 5, 1985, when the default judgment became final and executory, thepetitioners filed a motion for execution, a copy of which was received no longer bythe defendant Pepsi Cola but by private respondent PEPSICO, Inc., on August 6,1985.- As it turned out, Pepsi Cola was dissolved on March 2, 1984 and PEPSICO assumedin a written undertaking to settle Pepsi Cola’s debts, liabilities and obligations. (Itshould noted that the accident occurred one day before the dissolution of thecorporation.)- Realizing that the judgment of the lower court would eventually be executed against it, respondent PEPSICO, Inc., opposed the motion for execution and moved to vacate the judgment on the ground of lack of jurisdiction. The private respondent questioned the validity of the service of summons to a mere clerk. It invoked Section 13, Rule 14 of the Rules of Court on the manner of service upon a privatedomestic corporation and Section 14 of the same rule on service upon a privateforeign corporation. The motion was denied by the lower court ratiocinating that that

under Section 122 of the Corporation Code, the defendant continued its corporateexistence for three (3) years from the date of dissolution.- PEPSICO filed a special civil action for certiorari and prohibition with the CA toannul and set aside the judgment of the lower court, and its order denying themotion to vacate judgment, for having been issued without jurisdiction. CA grantedthe petition ruling that there was no valid service of summons. The Appelate Courthowever stated that the judgment tendered by the lower court after Pepsi’sdissolution is a liability of PEPSICO within the contemplation of the undertakingearlier mentioned. The CA remanded the case to the lower court and ordered thatPEPSICO be summoned and be given its day in court.- Petioners filed this petition with the SC.

ISSUES1. WON Pepsi Cola, the dissolved corporation, is the real party in interest to whom

summons should be served in the civil case for damages1



2. WON there was valid service of summons through Nenette Sison, allegedly thesecretary of the legal department of Pepsi Cola. If there was valid service of summons upon Pepsi Cola, the issue arises as to whether or not such service -validlyvested jurisdiction on the lower court over the person of the respondent corporation.

HELD1. Yes. In the case at bar, the right of action of the petitioners against Pepsi Cola andits driver arose not at the time when the complaint was filed but when the acts oromission constituting the cause of action accrued, i.e. on March 1, 1984, which is

the date of the accident and when Pepsi Cola allegedly committed the wrong.2. Yes.- At the time of the issuance and receipt of the summons, Pepsi Cola was alreadydissolved. The Court is of the opinion that service is allowed in such a situation. Inthe American case of Crawford v. Refiners Co-operative Association, Incorporation(71 NM 1, 375 p 2d 212 [1962]), it was held that a "defendant corporation is subjectto suit and service of process even though dissolved." Nowhere in the CorporationCode is there any special provision on how process shall be served upon a dissolveddefendant corporation. The absence of any such provision, however, should notleave petitioners without any remedy, unable to pursue recovery for wrongscommitted by the corporation before its dissolution. Since our law recognizes theliability of a dissolved corporation to an aggrieved creditor, it is but logical for thelaw to allow service of process upon a dissolved corporation. Otherwise, substantiverights would be lost by the mere lack of explicit technical rules. (Please note that

under the Corporation Code, Section 122, a dissolved corporation shall neverthelessbe continued as a body corporate for three (3) years after the time when it wouldhave been so dissolved, for the purpose of prosecuting and defending suits by oragainst it and enabling it to settle and close its affairs, to dispose of and convey itsproperty and to distribute its assets, but not for the purpose of continuing thebusiness for which it was established.)- The Rules of Court on service of summons upon a private domestic corporation isalso applicable to a corporation which is no longer a going concern.Section 13, Rule 14, mandates:"Service upon private domestic corporation or partnershjp.-If the defendant is a

corporation organized under the laws Of the Philippines or a partnership duly registered, service may be made on the president, manager, secretary, cashier,agent or any of its directors."Therefore, service upon a dissolved corporation may be made through any of the

persons enumerated in Section 13, Rule 14.

To be sure, this Court has ruled that service on a mere employee or clerk of acorporation is not sufficient. The persons who should receive the summons should be those named in the statute; otherwise, those who have charge or control of theoperations of the company or who may be relied upon to deliver the papers served upon them.- The fact that the summons was received through Miss Sison is not disputed by the

parties. For which corporation was she acting? After the dissolution and during the pendency of the case below, private respondent PEPSICO held office at the sameaddress of Pepsi Cola where Miss Sison was working. The petitioners argue that summons was served through the secretary of the legal department who acted asagent of Pepsi Cola. On the other hand, it is contended by private respondent PEPSICO that Miss Sison works for its legal department and not of Pepsi Cola. Sothat, private respondent avers, there was no valid service upon Pepsi Cola sinceMiss Sison acted in PEPSICO's behalf. (p. 64, Rollo) Even assuming this contention tobe true, the private respondent had the obligation to act upon the summons

received and to defend Pepsi Cola pursuant to the undertaking it executed on June11, 1983.Whomsoever Miss Sison was acting for in receiving the summons there is noquestion that the notice of the action was promptly delivered either to Pepsi Cola or PEPSICO with whom she is admittedly connected.- It is clear that private respondent is aware that the liabilities of Pepsi Cola areenforceable against it upon the dissolution of Pepsi Cola. As correctly stated by theCourt of Appeals, by virtue of the assumption of the debts, liabilities and obligationsof Pepsi Cola, "any judgment rendered against Pepsi Cola after its dissolution is a'liability' of PEPSICO, Inc., within the contemplation of the undertaking." Hence it

was incumbent upon respondent PEPSICO, Inc., to have defended the civil suit against the corporation whose liabilities it had assumed. Failure to do so after it received the notice by way of summons amounts to gross negligence and bad faith.The private respondent cannot now invoke a technical defect involving improper service upon Pepsi Cola and alleged absence of service of summons upon it. Thereis the substantive right of the petitioners to be considered over and above theattempt of the private respondent to avoid the jurisdiction of the lower court. DISPOSITIVE

The petition is hereby GRANTED. The decision of the Court of Appeals is REVERSEDand SET ASIDE. The judgment of the lower court and its order denying the motion tovacate judgment are REINSTATED.

Summa Trading v. Avendano, 146 SCRA 197 (1986)Dapat Summit Trading and Development Corporation vs. Avendaño, 135 SCRA 397 [1985]

SUMMIT TRADING AND DEVELOPMENT CORPORATION, petitioner,vs. JUDGE HERMINIO A. AVENDANO, Court of First Instance of Laguna, BinanBranch I, SEGUNDO PILIPINIA and EDGARDO MINDO, represented byERNESTO PILIPINIA, respondents. AQUINO, J.:

This case is about the summons intended for defendant Summit Trading andDevelopment Corporation. As background, it should be stated that Segundo Pilipiniaand Edgardo Mindo in 1973 acquired under Land Authority Administrative Order No.4 two registered lots with a total area of 2 hectares located at Barrio San Vicente,San Pedro, Laguna.

The titles of the lots contain the annotation that should Pilipinia and Mindo sell thesame, they have the right to redeem the lots within five years from the date of the

sale (Exh. H and I).Pilipinia and Mindo sold the lots for P16,000 and P12,000 to Gavino Ortega onFebruary 14 and April 19, 1977. They have retained possession of the lots which arericelands. They became tenants thereof.At the instance of Ortega, the said annotation was cancelled by Judge Avendaño inhis order of September 24, 1979 ostensibly because the lots would be convertedinto commercial, industrial or residential sites (Exh. M). That conversion has nottaken place. At present the two lots are still ricelands.In a letter dated October 16, 1979, Ortega advised Ernesto Pilipinia (attorney-in-factof Segundo and Mindo) that he and his father would have the right of first refusal incase the lots were sold (Exh. E and O).Ortega resold the two lots on November 14, 1979 for P16,000 and P11,000 toSummit Trading through its president, Virgilio P. Balaguer (Exh. N and N-1).On August 10, 1981, or within the five-year period, Pilipinia and Mindo filed acomplaint against Ortega and Summit Trading for the redemption or repurchase of

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the two lots. They deposited P100,000 with the Royal Savings and Loan Associationfor that purpose.Ortega was duly summoned. He failed to answer the complaint. He was declared indefault. Summit Trading was also declared in default. In his judgment by defaultdated October 29, 1981, Judge Avendano (the same judge who ordered thecancellation of the annotation) gave plaintiffs Pilipinia and Mindo 15 days fromnotice within which to redeem the lots for P16,000 and P12,000 and ordered Summit

Trading to execute the corresponding deeds of sale and surrender the Torrens titles.If it failed to do so, the clerk of court was directed to perform that task. The registerof deeds was ordered to issue new titles to Pilipinia and Mindo.

The default judgment was rendered on the assumption that Summit Trading wasduly summoned through Marina Saquilayan as secretary of Summit Trading. Shereceived the summons on August 28, 1981. A copy of the judgment was also servedon her on November 13, 1981 (Exh. B, pp. 31-32, 64, Record).Actually, Saquilayan received the summons as secretary of Balaguer, alreadymentioned as the president of Summit Trading which purchased the lots fromOrtega. Bonifacio Tiongson was the corporate secretary.Nineteen days after Saquilayan received a copy of the decision, Summit Tradingfiled a motion for reconsideration on the ground that the trial court did notacquire jurisdiction over it because summons was not served upon it inaccordance with Rule 14 of the Rules of Court which provides:SEC. 13. Service upon private domestic corporation or partnership.-If the defendantis a corporation organized under the laws of the Philippines or a partnership dulyregistered, service may be made on the president, manager, secretary, cashier,agent, or any of its d irectors.

It is true that Saquilayan is not among the persons mentioned in section 13.However, she, being under the control of Summit Trading, has not explained what she has done with the summons and complaint. The logical assumption is that shedelivered it to her boss, the president of Summit Trading. As already stated, shereceived a copy of the decision and Summit Trading became aware of it. Summit Trading's motion for reconsideration was denied.While Summit Trading is technically correct in contending that there was no strict compliance with section 13, we cannot close our eyes to the realities of thesituation. Under the facts of this case, Saquilayan, being the secretary of the

president (whose contact with the outside world is normally through his secretary),may be regarded as an "agent" within the meaning of section 13.(See Villa Rey Transit, Inc. vs. Far East Motor Corporation, L-31339, January 31, 1978, 81 SCRA298; Filoil Marketing Corporation vs. Marine Development Corporation of the Phil., L-29636, September 30, 1982, 117 SCRA 86.)Hence summons was validly served upon Summit Trading. Its negligence in not

answering the complaint was inexcusable. In fact, up to this time, Summit Tradinghas not bothered to state its defenses to the action nor stated whether it has ameritorious case warranting the setting aside of the default judgment.

The cases of Delta Motor Sales Corporation vs. Mangosing, L-41667, April 30,1976,70 SCRA 598 and ATM Trucking Inc. vs. Buencamino, G.R. No. 62445, August 31,1983, 124 SCRA 434 are not in point because the summons in the two cases wasserved upon mere clerks or employees of the corporations who cannot be reliedupon to know what to do with the legal papers served upon them.In the instant case, service was made on the president's secretary who could haveeasily notified the president that an action was filed against the corporation just asshe had apprised him of the judgment in this case.

The instant petition for certiorari, treated as an appeal under Republic Act No. 5440,was filed out of time. Considered as a special civil action under Rule 65 of the Rulesof Court, it is baseless because the trial court had acquired jurisdiction over Summit

Trading. As already shown, summons was properly served on the president's

secretary.

We are not saying that service on such a secretary is always proper. Generally, it isimproper. The president himself must be served personally with the summons if it isdesired to effect the service on that particular officer. But, as already stated, underthe facts of this case, the president's secretary may be regarded as the "agent"within the meaning of section 13 since service upon her of the judgment itself cameto the notice of Summit Trading.WHEREFORE, the petition is dismissed. The trial court's judgment is affirmed. Itsimplementation is now in order. The restraining order is dissolved. Costs against thepetitioner.SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Abad Santos, Escolin and Cuevas, JJ., concur.

Foreign, Rule 14, Sec. 12Sec. 12. Service upon foreign private juridical entity. When the

defendant is a foreign private juridical entity which has transacted

business in the Philippines, service may be made on its resident agent

designated in accordance with law for that purpose, or, if there be no

such agent, on the government official designated by law to that

effect, or on any of its officers or agents within the Philippines.

Public Corporation, Rule 14, Sec. 13Sec. 13. Service upon public corporations.When the defendant is the

Republic of the Philippines, service may be effected on the Solicitor

General; in case of a province, city or municipality, or like public

corporations, service may be effected on its executive head , or on such

other officer or officers as the law or the court may direct.

Minors, Rule 14, Sec. 10Insane, incompetents, Rule 14, Sec. 10Sec. 10. Service upon minors and incompetents.When the defendant is a

minor, insane or otherwise an incompetent, service shall be made upon

him personally and on his legal guardian if he has one, or if none,

upon his guardian ad litem whose appointment shall be applied for by

the plaintiff. In the case of a minor, service may also be made on his

father or mother.

Prisoners, Rule 14, Sec. 9Sec. 9. Service upon prisoners.When the defendant is a prisoner

confined in a jail or institution, service shall be effected upon him

by the officer having the management of such jail or institution who is

deemed deputized as a special sheriff for said purpose.

Unknown defendant, Rule 14, Sec. 14Sec. 14. Service upon defendant whose identity or whereabouts are

unknown. In any action where the defendant is designated as an unknown

owner, or the like, or whenever his whereabouts are unknown and cannotbe ascertained by diligent inquiry, service may, by leave of court, be

effected upon him by publication in a newspaper of general circulation

and in such places and for such time as the court may order.

Residents temporarily out, Rule 14, Secs. 18, 16Sec. 16. Residents temporarily out of the Philippines. When any action

is commenced against a defendant who ordinarily resides within the

Philippines, but who is temporarily out of it, service may, by leave of

court, be also effected out of the Philippines, as under the preceding

section.

Sec. 18. Proof of service. The proof of service of a summons shall be

made in writing by the server and shall set forth the manner, place,

and date of service; shall specify any papers which have been served

with the process and the name of the person who received the same; and

shall be sworn to when made by a person other than a sheriff or his

deputy.

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Venturanza v. CA, 156 SCRA 305 (1987)VENTURANZA V CA

156 SCRA 305PADILLA; December 11, 1987

NATUREPetition for review on certiorari of the decision of the Court of Appeals

FACTS- May 22, 1985 – Senoran (now respondent) filed a complaint against spouses

Venturanza with the MTC Manila for collection of sums of money in the aggragateamount of P9,711.50, representing several loans evidenced by promissory noteswhich had become due and demandable but unpaid despite repeated demands.- June 10, 1985 - Summons was issued against the petitioners on Augusto Soan,father of petitioner Violeta S. Venturanza at 3412 B.A. Tan Street. Barrio Obrero

Tondo, Manila, the address of petitioners stated in the complaint. A sheriff’s returnwas issued which stated that Augusto was capable of being served the summons interms of age and discretion but he refused to sign the receipt.- August 12, 1985 - For failure of the petitioners to file their Answer, a decision washanded down against the Venturanza spouses. Considering that, as per sheriff'sReturn, dated 17 August 1985, said decision could not be served upon thepetitioners at 3412 B.A. Tan St., Barrio Obrero Tondo, Manila, on the ground thatthey were no longer at said address, the same was served on 16 September 1985upon Violeta S. Venturanza in her office at Asian Development Bank, Roxas Blvd.,Pasay City.

- September 22, 1985 – Sps. Venturanza filed a "Motion to Set Aside Decision and toDeclare Past Proceedings Null and Void for Lack of Jurisdiction," alleging that therehad been no proper and valid service of summons upon them and that the court aquo never acquired jurisdiction over the person of the petitioners, considering thatthe address where the summons was served is the residence of Violeta S.Venturanza's father, Augusto Soan, and not the residence or dwelling house of thepetitioners. Since April 1985, petitioners had been already residing at AuroraStreet, Pasay City.- The motion was denied for lack of merit for the following reasons:- According to the affidavit of the sheriff Cruz, upon his service at defendants'abovementioned given address, he inquired from one Augusto Soan, who identifiedhimself to be defendant's father whether defendants were residents of the place.Upon confirming that defendants were in fact residents Cruz handed to said AugustoSoan the summons together with a copy of the complaint requesting the latter toserve the same upon defendants.

- The Telephone Directory of Asian Development Bank for February 1984 along withthe PLDT Directoru 1985-86 indicate that defendant Violeta S. Venturanza is aresident of 3412 B.A. Tan, Bo. Obrero Tondo, Manila.- On appeal to the Manila RTC, the MTC decision was affirmed. A petition for reviewlodged with the CA gave the same results.

ISSUEWON jurisdiction had been acquired over the sps. Venturanza

HELDNORatio Reasoning- It is the general rule that findings of fact of the Court of Appeals when supportedby substantial evidence, are beyond this Court's power of review. 13 However, in

the instant case, we cannot but consider that the address of defendant Violeta S.

Venturanza found in the 1984 Asian Development Bank Directory and the PLDT Telephone Directory for 1985- 86, together with the affidavit of the branch sheriff,are not sufficient to substantiate the findings of the court a quo that petitioners werebona fide residents of 3412 B.A. Tan St., Barrio Obrero Tondo, Manila at the timesummons was served on Augusto Soan.- There is no question, and in fact it was admitted by the petitioners, that in 1984they were actual residents of 3412 B.A. Tan St., Barrio Obrero Tondo, Manila and, ascorrectly reflected in the 1984 Asian Development Bank Directory. However, thechange of their address, upon their transfer to Pasay City in April 1985, could not bereflected in the 1985-86 PLDT Telephone Directory, because this directory had

already been printed and circulated to the public before their transfer in April 1985to Aurora St. in Pasay City.- Moreover, the copy of the contract of lease dated April 1985 between petitionerRomualdo Venturanza as lessee and Linda Galvez as lessor over an apartment unitlocated at 2511 Aurora St., Pasay City and the affidavit of Augusto Soan dated 29April 1986 stating that he never told the sheriff that the defendants were residing inhis house at 3412 B.A. Tan St., Barrio Obrero Tondo, Manila, sufficiently negate theconclusion of the court a quo.- Under Rule 14 of the Rules of Court, there are three (3) methods of service of summons in civil actions, namely: 1) personal service (See. 7); 2) substituted service(Sec. 8); and 3) service by publication. Strict compliance with these modes of service is required in order that the court may require jurisdiction over the person of the defendant. Service of summons upon the defendant is the means by which thecourt acquires jurisdiction over his person. This process is for the benefit of thedefendant, and is intended to afford the latter an opportunity to be heard on the

claim against him. In the absence of valid waiver trial and judgment, without suchservice, are null and void.- The case at bar which is an action for collection of sum of money is an action inpersonam thereby requiring personal service of summons on the defendants. It isonly when a defendant can not be personally served with summons withina reasonable time that a substituted service may be availed of, the sameto be effected in the following manner: a) by leaving copies of thesummons at the defendants' dwelling house or residence, with someperson of suitable age and discretion then residing therein, or b) byleaving the copies at defendant's office or regular place of business, withsome competent person in charge thereof. For a substituted service to bevalid, summons served at the defendant's residence must be served at hisresidence at the time of such service and not at his former place of residence.- In Keister vs. Navarro, it was held that “the terms "dwelling house" or "residence"

are generally held to refer to the time of service, hence it is not sufficient "to leavethe copy at defendant's former dwelling house, residence, or place of abode, as thecase may be, after his removal therefrom." They refer to the place where the personnamed in the summons is living at the time when the service is made, even thoughhe may be temporarily out of the country at the time.”- It is further required by law that an effort or attempt should first be made topersonally serve the summons and after this has failed, a substitutedservice may be caused upon the defendant, and the same must bereflected in the proof of service. Upon careful examination of the sheriff 'sReturn in this case, dated 10 June 1985, which purports to serve as proof that summons had been served upon the defendants, together with a copyof the complaint, through Augusto Soan, no statement is made that aneffort or attempt was exerted to personally serve the summons on thedefendants and that the same had failed. In fact, said Return does noteven indicate the address of the defendants to whom summons was

supposed to have been served. The presumption of regularity in the

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performance of official functions by the sheriff is not applicable in thiscase where it is patent that the sheriff's return is defective.DISPOSITIVE Decision reversed and set aside.

Non-resident, Rule 14, Sec. 15Sec. 15. Extraterritorial service. When the defendant does not

reside and is not found in the Philippines, and the action affects

the personal status of the plaintiff or relates to, or the subject

of which is, property within the Philippines, in which the

defendant has or claims a lien or interest, actual or contingent,

or in which the relief demanded consists, wholly or in part, in

excluding the defendant from any interest therein, or the property

of the defendant has been attached within the Philippines, service

may, by leave of court, be effected out of the Philippines by

personal service as under section 6; or by publication in a

newspaper of general circulation in such places and for such time

as the court may order, in which case a copy of the summons and

order of the court shall be sent by registered mail to the last

known address of the defendant, or in any other manner the court

may deem sufficient. Any order granting such leave shall specify a

reasonable time, which shall not be less than sixty (60) days after

notice, within which the defendant must answer.

Modes of servicepersonal, Rule 14, Sec. 6Sec. 6. Service in person on defendant. Whenever practicable, the

summons shall be served by handing a copy thereof to the defendant inperson, or, if he refuses to receive and sign for it, by tendering it

to him.

substituted, Rule 14, Sec. 7Sec. 7. Substituted service. If, for justifiable causes, the defendant

cannot be served within a reasonable time as provided in the preceding

section, service may be effected (a) by leaving copies of the summons

at the defendant's residence with some person of suitable age and

discretion then residing therein, or (b) by leaving the copies at

defendant's office or regular place of business with some competent

person in charge thereof.

[1993V212] SPOUSES PEPITO AND LORETO LAUS, petitioners, vs. HON. COURT OFAPPEALS, HON. SALVADOR C. CEGUERA, in his capacity as Presiding Judge of theRegional Trial Court of Quezon City, Branch 82; NILO SM. CABANG, in his capacity as

Deputy Sheriff of Quezon City and CONSUELO P. TORRES, respondents.1993 Mar83rd DivisionG.R. No. 101256D E C I S I O N

DAVIDE, JR., J p:

Petitioners seek the review and reversal of the 30 May 1991 Decision 1 of respondent Court of Appeals in CA-G.R. SP No. 22232 2 and the 30 July 1991Resolution denying their motion to reconsider the said decision. The challengeddecision dismissed, for lack of merit, their petition for certiorari, prohibition andinjunction to annul the Orders dated 5 March 1990 and 9 July 1990 of Branch 82 of the Regional Trial Court (RTC) of Quezon City in Civil Case No. Q-89-3327 which,respectively, declared them in default and denied their motion to reconsider suchdeclaration.

The antecedents of this case are not controverted.

On 24 August 1989, private respondent Consuelo P. Torres filed against "Loredo (sic)Alfaro-Laus and John Doe" a complaint, docketed as Civil Case No. Q-89-3327, forthe collection of a sum of money. The defendants in the said case are the petitionersin the instant petition. The complaint alleges that petitioner Loreto Alfaro-Lausexecuted a promissory note in favor of the private respondent under which theformer undertook to pay the latter the amount of Sixty-Six Thousand Pesos(P66,000.00) after three (3) months from the date thereof. Upon maturity of the saidpromissory note, however, only Eleven Thousand Pesos (P11,000.00) was paid;despite the receipt of a demand letter from the private respondent, petitioners

made no further payments. Thus, the former filed the aforementioned complaintpraying for the payment of the unpaid balance of P55,000.00 "plus interest at therate of ten per cent (10%), compounded monthly beginning February 21, 1989, andtwenty-five per cent (25%) of the entire amount due for and as attorney's fees, suchbeing in accordance with the terms and conditions set forth in the promissory note."3

On 10 October 1989, Deputy Sheriff Romero S. Cruz proceeded to the petitioners'address at 122 Molave Park Subdivision, Parañaque, Metro Manila to serve thesummons and a copy of the complaint. Failing to serve the summons personallyupon the petitioners after waiting for ten (10) minutes, he resorted to a substitutedservice through one Josephine Areola, who purportedly represented herself to be themaid of the said petitioners. 4 On the same date, Deputy Sheriff Cruz executed andfiled a return 5 which reads:

"Respectfully returned to the REGIONAL TRIAL COURT Branch 82, QUEZON CITY, theattached original copy of the summons issued in connection with Civil Case No. 89-3327 entitled CONSUELO P. TORRES versus LOREDO (sic) LAUS & JOHN DOE with theinformation that duplicate copy of the same together with the complaint and itsannexes was duly served upon defendant Loredo (sic) Laus of 122 Molave ParkSubd. Parañaque M. M. thru JOSEPHINE AREOLA, maid of Loredo Daus (sic) of sameaddress, received as evidenced by her signature appearing thereon."

The petitioners did not file any answer. Consequently, upon motion of the privaterespondent, the trial court 6 issued on 29 December 1989 an order declaring theformer in default and setting the ex parte presentation of the private respondent'sevidence for 16 January 1990. 7 The petitioners claim that they received this 29December 1989 Order only on 22 January 1990.

On 24 January 1990, the trial court rendered a judgment by default against the

petitioners; it ordered the latter "[T]o pay the plaintiff (private respondent) theamount of FIFTY-FIVE Thousand Pesos (P55,000.00) at the rate of ten per cent(10%), compounded monthly beginning February 21, 1989 up to the present;and . . . [T]o pay attorney's fees equivalent to twenty-five percent (25%) of theentire amount due" to the private respondent. 8

On 2 February 1990, before receiving a copy of the 22 January 1990 decision,petitioners, by way of a special appearance, filed a motion to dismiss the case forlack of jurisdiction over their persons. They allege that the service of summons wasineffective because it was not indicated in the return that the sheriff had firstexerted efforts to serve the same personally before resorting to substituted service.9

In its Order of 5 March 1990, the trial court denied the motion to dismiss for lack of merit on the ground that it had already rendered a judgment by default on 24

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January 1990. 10 Petitioners received a copy of this order on 24 March 1990. In themeantime, the trial court issued a writ of execution.

On 30 March 1990, public respondent Deputy Sheriff Nilo Cabang, pursuant to a writof execution issued by the trial court, levied upon petitioners' properties consistingof a 1983 Mitsubishi Galant Sedan and a men's ring.

On 3 April 1990, petitioners filed a motion to reconsider the Order of 5 March 1990;11 they reiterated therein the contention that the trial court did not acquire

jurisdiction over their persons because of the defective service of summons, andfurther aver that:

"Josephine Areola, the person who supposedly received the summons is not evenknown to the defendants. It turned out from their investigation that said JosephineAreola was just a guest of one of their maid (sic) who stayed for only about a week.Furthermore Josephine Areola was just a child of about ten to eleven years old andwould not be expected to know what to do with the documents handed to her. Withall due respect it would not be fair for the defendant if the summons would beserved upon the defendants through a person who is not of sufficient age anddiscretion at the time the summons was served, and a transcient (sic) at that." 12

A hearing on the motion for reconsideration was held and the parties presentedevidence on the issue of service of summons. Petitioner Loreto Alfaro-Laus testifiedthat Josephine Areola, who was 11 to 12 years old at that time, was just a guest of her maid and thus stayed in the house for a week. Private respondent, on the other

hand, presented evidence to show that Josephine had been staying in thepetitioners' house since July 1990 for she was the person who received the demandletter sent to the petitioners on 3 July 1989. 13 Deputy Sheriff Cruz also took thewitness stand, identified the affidavit he executed on 27 April 1990 14 and furtherasserted that he found no one in the house of the petitioners when he arrived on 10October 1989; he claimed that he waited for ten (10) minutes. Thereupon, two (2)women arrived; the said women told him, upon his inquiry, that the petitioners werenot around. He then served the summons through one of them, Josephine Areola.15

In its Order of 9 July 1990, 16 the trial court denied the petitioners' motion forreconsideration and held that there was a proper service of summons becausecontrary to Loreto Alfaro-Laus' statement that Areola was a guest of their maid for aweek, it was proven that Areola was in fact the very person who, on 3 July 1989,received the demand letter sent by the private respondent.

On 17 July 1990, petitioners filed with the Court of Appeals a petition for certiorari,prohibition and injunction with application for a restraining order 17 to set aside thetrial court's Orders of 5 March 1990 and 9 July 1990, and to dismiss Civil Case No. Q-89-3327. The petition was docketed as CA-G.R. SP No. 22232. Petitioners insistedtherein that the trial court committed grave abuse of discretion and a grave error indenying their motion to dismiss and the motion to reconsider said denial despite thelack of jurisdiction over their persons. They likewise challenged the denial of suchmotion to dismiss which was based solely on the ground that a judgment by defaulthad already been rendered. 18

On 30 May 1991, the respondent Court of Appeals promulgated its decision 19denying the petition for lack of merit. It made the following disqualifications:

" . . . it was the defendants-petitioners who erred in filing a motion to dismiss at that

late stage of the proceedings. A motion to dismiss on the ground that the Court has

no jurisdiction over the person of the defendants is proper only when made withinthe reglementary period for filing a responsive pleading and before such responsivepleading is filed (Rule 16, Sec. 1[a]). In this case, the defendants-petitioners' motionto dismiss was filed five (5) months after the complaint was filed and only after adefault judgment had already been rendered by the respondent Court. Thus, it wasrather too late in the day for the defendants-petitioners' motion to dismiss to beconsidered by the respondent Court. In the proper exercise of its sound judicialdiscretion, the respondent Court did not err in denying the motion to dismiss on theground that a judgment by default had already been rendered.

Besides, even if the motion to dismiss was filed on time, and yet, was still denied bythe respondent Court, the order of the court denying the motion to dismiss isinterlocutory and cannot be the subject of a petition for certiorari, such as thisinstant petition (National Investment and Development Corp. vs. Aquino, 163 SCRA153). The denial of a motion to dismiss cannot be questioned in a petition forcertiorari, which is an extra-ordinary writ that is not allowed as a substitute forordinary appeal (Tan vs. Intermediate Appellate Court, 164 SCRA 130).

Be that as it may, the defendants-petitioners had other remedies available to them,but which they failed to avail of. In a long line of cases decided by the SupremeCourt, it has been repeatedly provided that the remedies of a defaulted defendantare:

(a) The defendant in default may, at any time after discovery thereof and before judgment, file a motion, under oath, to set aside the order of default on the ground

that his failure to answer was due to fraud, accident, mistake, excusable negligence,and that he has a meritorious defense;

(b) If the judgment has already been rendered when the defendant discovered thedefault, but before the same has become final and executory, he may file a Motionfor New Trial under Section 1[a] of Rule 37;

(c) If the defendant discovered the default after the judgment has become final andexecutory, he may file a petition for relief under Sec. 2 of Rule 38; and

(d) He may also appeal from the judgment rendered against him as contrary to theevidence or to law, even if no petition to set aside the order of default has beenpresented by him (Sec. 2, Rule 41). (Lina vs. Court of Appeals, 135 SCRA 637;

Tiburcio vs. Castro, 161 SCRA 583).

As it is, the defendants-petitioners failed, after they received notice of the orderdeclaring them in default and before the default judgment was rendered, to file amotion, under oath, to set aside the order of default on the ground that they failedto file a timely answer due to fraud, accident, mistake, or excusable negligence, andshowing (sic) that they had a meritorious defense.

The other applicable remedy which they failed to employ is the remedy of appealfrom the judgment rendered against them as contrary to the evidence or the law,even in the absence of a motion/petition to set aside the order of default. Thisinstant petition for certiorari cannot be a substitute for the remedy of appeal, whichthe defendants-petitioners did not pursue, as they must first exhaust the remediesavailable to them (Lina vs. Court of Appeals, supra.). That the judgment by defaulthad already become final and is about to be executed is the result of thedefendants-petitioners' failure to file a timely appeal. As such, the default judgmentmay no longer be challenged (Tiburcio vs. Castro, supra.)

6



Lastly, We find that the respondent Court was liberal enough in hearing thedefendants-petitioners' motion for reconsideration of the denial of their motion todismiss. As the pivotal issue therein, the defendant-petitioners were given their dayin court to prove that the service of summons to them was both improper andinvalid. After weighing the evidence and testimonies of the parties and otherpersons involved, the respondent Court ruled that there was valid service of summons. We find no compelling reason to rule otherwise.

There is such a presumption of regularity in the performance of official functions bythe sheriff, and it was up to the defendants-petitioners to convince the respondentCourt that there was, indeed, invalid service of summons. This they failed to do.

They could not substantiate their claim that Josephine Areola was a child of 10 to 11years who would not know what to do with the court documents received by her.

The defendants-petitioners' contention that Josephine Areola stayed with them foronly a few days backfired when the private respondent presented documentaryevidence to show that Josephine Areola was already residing in the defendants-petitioners' house at least three (3) months before the summons was served. Noother proof was presented by the defendants-petitioners to bolster their allegationsapart from their self-serving, and sometimes conflicting, testimonies. Thus, We findno error or grave abuse of discretion on the part of the respondent Court in denyingthe defendants-petitioners' motion for reconsideration." 20

Meanwhile, on 13 June 1991, respondent sheriff Nilo Cabang sold at a public auctionthe levied men's ring - on oval diamond set in yellow gold - to the privaterespondent for P140,000.00, and the Galant car to Atty. Leonardo Perez, Jr., counsel

for the latter, for P180,000.00. Both were the highest bidders. 21 Their motion for the reconsideration of the aforesaid decision having been denied inthe respondent Court's Resolution of 30 July 1991, 22 petitioners availed of thisrecourse under Rule 45 of the Revised Rules of Court and raise the following issues:

"1. WHETHER OR NOT THE COURT A QUO ACQUIRED JURISDICTION OVER THEREASONS OF THE PETITIONERS BY VIRTUE OF THE SUBSTITUTED SERVICE OFSUMMONS EFFECTED BY DEPUTY SHERIFF ROMEO CRUZ;

2. WHETHER OR NOT THE REMEDY OF CERTIORARI CAN BE AVAILED OF BY A PARTYIMPROVIDENTLY DECLARED IN DEFAULT TO CHALLENGE THE ORDER OF DEFAULTAND THE SUBSEQUENT JUDGMENT BY DEFAULT." 23

On 10 February 1992, after the filing of the private respondent's comment and the

petitioners' reply thereto, We resolved to give due course to the petition andrequired the parties to file their respective memoranda which they subsequentlycomplied with.We find merit in this petition.

The focal issue is whether or not the trial court acquired jurisdiction over thepersons of the petitioners by virtue of the substituted service of summons effectedby Deputy Sheriff Cruz. Since the petitioners did not voluntarily submit to the

jurisdiction of the trial court, proper service of summons became imperative. If theservice effected in the case at bar was, as claimed by the petitioners, invalid, thetrial court acquired no jurisdiction over their persons. 24 In such an instance, theorder of default, judgment by default and writ of execution issued by the trial courtwould be null and void. 25

The general rule in this jurisdiction is that summons must be personally served;pursuant to Section 7, Rule 14 of the Revised Rules of Court, such personal service

is to be accomplished by "handing a copy thereof to the defendant in person, or, if

he refuses to receive it, by tendering it to him." However, if this mode of servicecannot be effected within a reasonable time, substituted service may be resorted tounder Section 8 of the same Rule. Section 8 provides:

"SEC. 8. Substituted Service. - If the defendant cannot be served within areasonable time as provided in the preceding section, service may be effected (a) byleaving copies of the summons at the defendant's dwelling house or residence withsome person of suitable age and discretion then residing therein, or (b) by leavingthe copies at defendant's office or regular place of business with some competentperson in charge thereof."

This provision is a reproduction of Section 8, Rule 7 of the 1940 Rules of Courtexcept that inter alia, "promptly" in the latter was changed to "within a reasonabletime" in the former. "Within a reasonable time" contemplates a period of time longerthan that demarcated by the word "prompt," and presupposes that a prior attemptat personal service, within a justifiable time frame as would be necessary to bringthe defendant within the jurisdiction of the court, had failed. 26 Since substitutedservice is in derogation of the common law and is extraordinary in character, it mustbe used only as prescribed and in the circumstances authorized by statute. 27Statutes prescribing modes other than personal service of summons must be strictlycomplied with to give the court jurisdiction, and such compliance must appearaffirmatively in the return. 28

In Keister vs. Navarro, 29 this Court described how the impossibility of personalservice should be shown:

"Impossibility of prompt service should be shown by stating the efforts made to findthe defendant personally and the fact that such efforts failed. This statement shouldbe made in the proof of service (I Moran, Comments on the Rules of Court, 1970 Ed.,p. 444). This is necessary because substituted service is in derogation of the usualmethod of service. It has been held that this method of service is `in derogation of the common law; it is a method extraordinary in character, and hence may be usedonly as prescribed and in the circumstances authorized by statute.' . . . (72 C.J.S.1053)."

Emphasizing the need for strict compliance with the requirements of substitutedservice, this Court issued Administrative Circular No. 59, the pertinent portions of which read as follows:

"SUBJECT: Service of Summons.

Delays in court proceedings have been caused by faulty and erroneousimplementation of Section 8, Rule 14, Rules of Court on Substituted Service of Summons.

The Trial Judges of all lower courts, as well as the Clerks of Court in their capacity asEx-Officio Sheriffs together with the Deputy Sheriffs are reminded of the provision of Section 8, Rule 14, Rules of Court on substituted service as follows:

xxx xxx xxx

The manner of effecting substituted service as prescribed in Venturanza v. Court of Appeals, 156 SCRA 305, must be strictly complied with, thus:

'The substituted service should be availed only when the defendant cannot be

served promptly in person. Impossibility of prompt service should be shown by7



stating the efforts made to find the defendant personally and the failure of suchefforts. The statement should be made in the proof of service. This is necessarybecause substituted service is in derogation of the usual method of service.

Substituted service is a method extraordinary in character, and hence may be usedonly as prescribed in the circumstances authorized by statute. Thus, the statutoryrequirements of substituted service must be followed strictly, faithfully, and anysubstituted service other than that authorized by the statute is consideredineffective.'

For immediate compliance."

A perusal of the sheriff's return in the case at bar readily reveals that it does not (a)indicate the impossibility of service of summons within a reasonable time, (b)specify the efforts exerted to locate the petitioners and (c) state that it was servedon a person of sufficient age and discretion residing therein. The fact of the matteris that as disclosed in his testimony taken in connection with the motion forreconsideration, and the affidavit he prepared in conjunction with such hearing.Deputy Sheriff Cruz resorted to a substituted service on his first - and only - attemptto effect a personal service. Upon being informed that the petitioners were notaround at that time, he immediately resorted to a substituted service through

Josephine Areola, a person whose age he did not even know or attempt to discover.He did not even inquire about the whereabouts of the petitioners, the time theywere expected to return home, the hours of the day they could be contacted at theirhouse or the location of their offices, if any, in order that he could faithfully comply

with the requirement of personal service. Thus, he declared and admitted:"Q. In this case, you went to the residence of the defendant once as you stated onparagraph 3 30 on October 10, 1989?

A. Yes, sir.

Q. And you did not wait the (sic) defendant to come because according to you inparagraph 4, you were informed that the defendant was not around, is that correct?

A. According to the maid.

Q. So upon being informed that the defendant was not around you served thesummons, according to paragraph 4 to one Josephine Ariola, is that correct?

A. Yes, sir.Q. In other words, you relied on the information given to you by somebody that thedefendant was not around?

A: I waited there for around ten (10) minutes and then two (2) women arrived in thetricycle and I waited them (sic) to get inside and I asked them if Mr. and Mrs. Lauswill be coming.

Q. And they answered they were not around at that time?

A.Yes, sir.

Q. So, you immediately served the summons upon the persons arriving (sic)?

A. Yes, sir.

Q. And who were these persons who arrived?

A. Josephine Ariola.

Q. And who is her companion?

A. I did not ask anymore?

xxx xxx xxx

Q. Who is older, is this Josephine Ariola or her companion?

A. Josephine Ariola, she was the one who signed the summons.

Q. Did you ask her age?

A. I did not ask anymore because she look already (sic) of sufficient age.

Q. That's your conclusion?

A. Yes because she was the maid there and she was the older one." 31

As it turns out, the unrebutted evidence for the petitioners establishes that Areola(or Ariola) was only 11 to 12 years old at the time substituted service was

attempted. 32It is all too obvious that no earnest efforts were exerted by Deputy Sheriff Cruz toeffect the personal service of summons. His testimony thus attests to an undue, if not indecent, haste to serve the summons at the first attempt without making surethat personal service was, by then and even thereafter, an impossibility becauseeither the petitioners had left for a foreign country or an unknown destination withnot definite date of returning within a reasonable period or had gone into hiding toavoid service of any process from the courts. If he had only made the inquiriessuggested above, he could have returned in the evening of 10 October 1989 or onany of the succeeding days - including the following Saturday and Sunday. Serviceof summons may be made at night as well as during the day, or even on a Sundayor holiday because of its ministerial character. 33

Since the substituted service of summons in this case was not validly effected, the

trial court did not acquire jurisdiction over the persons of the petitioners. The orderof default, the judgment by default, the writ of execution issued by it, as well as theauction sale of the petitioners' properties levied on execution are, therefore, all nulland void.

There is more in this case which further unmasks the nullity of the decision of thetrial court. Both parties agree that the petitioners were the defendants in Civil CaseNo. Q-89-3327. However, petitioner Loreto Alfaro-Laus is erroneously mentioned inthe complaint as Loredo. On the other hand, petitioner Pepito Laus, the husband of Loreto, is merely designated as JOHN DOE. The latter was impleaded as a co-defendant presumably on the theory that the liability sought to be enforced is aconjugal partnership liability. In short, Loreto's husband was sued as anindispensable party; it is clear that the trial court treated him as such when in itsdecision, ordered the defendants, not just Loreto, to pay the adjudged amounts.

8



The sheriff's return of service indisputably discloses that no summons was evenattempted to be served on petitioner Pepito Laus. Sheriff Cruz unequivocally statestherein that the "duplicate copy of the same together with the complaint and itsannexes was duly served upon defendant Loredo (sic) Laus of 122 Molave ParkSubd. Parañaque M. M. thru JOSEPHINE AREOLA, maid of Loredo Daus (sic) of sameaddress, . . . ." 34

Neither Deputy Sheriff Cruz nor the private respondent had volunteered additionalinformation to the effect that at some other time, summons was in fact served onPepito Laus. Accordingly, the trial court never acquired jurisdiction over h is person.And yet, while it concedes in its 29 December 1989 Order that the substitutedservice of summons was valid only for Loreto, it declared the defendants - and notonly her - in default. The court could have easily avoided this misdoing if it onlyexamined the records before issuing the order. On this score alone, the judgment bydefault is fatally flawed.

There is still another fact which betrays the trial court's unusual haste in renderingthe judgment by default. In the dispositive portion of the decision, the defendantswere ordered, inter alia:

"1. To pay the plaintiff the amount of FIFTY-FIVE Thousand Pesos (P55,000.00) at therate of ten per cent (10%), compounded monthly beginning February 21, 1989 up tothe present;" 35

While this rate of ten per cent (10%) could only refer to the imposable interest, thecourt failed to state whether its application shall be on a monthly or yearly basis.

The body of the decision, however, speaks of ten per cent (10%) interest PERMONTH; 36 this seems to have been the basis relied on by respondent sheriff Cabang in computing for the petitioners' alleged liability for purposes of execution.37 This award of interest - in effect amounting to one hundred twenty per cent(120%) per annum - and the additional twenty-five per cent (25%) of the totalamount due ordered paid as attorney's fees, are unreasonable and unconscionable.

Since the trial court's default order and judgment by default are null and void, therespondent Court gravely erred in affirming them.

Some further comments, en passant, on the ratiocination of the respondent Courtare in order. It is not accurate for the latter to have said that the petitioners' motionto dismiss was not filed seasonably because it was filed beyond the reglementaryperiod provided in the Revised Rules of Court. Such a conclusion would doubtless be

correct if there was a valid service of summons. If, however, a defendant has notbeen properly summoned, the period to file a motion to dismiss for lack of jurisdiction over his person does not commence to run until he voluntarily submits tothe jurisdiction of the court, since the court has no jurisdiction to adjudicate thecontroversy as to him until such time. 38 In this case, petitioners did not voluntarilysubmit to the jurisdiction of the trial court. Consequently, the period to file aresponsive pleading did not even commence to run.

Nor are We persuaded by the respondent Court's declaration that even if the motionto dismiss had been filed on time, the trial court's order denying the same, beinginterlocutory, still cannot be the subject of a petition for certiorari. To be sure, thisrule admits of an exception, as when the trial court clearly acted outside of its

jurisdiction or with grave abuse of discretion in denying the motion to dismiss. 39 This is exactly what happened in the case while it was pending before the trial court;the denial of the motion to dismiss was based solely on the ground that a judgment

by default had already been entered. Certainly, this does not constitute a valid

ground for the denial because the motion raises a fundamental and prejudicial issueaffecting the validity of the decision by default.

Equally unmeritorious is the respondent Court's statement that the failure of thepetitioners to appeal from the judgment by default rendered such judgment finaland unassailable. In the first place, it is axiomatic that a void judgment can neverbecome final and executory and may even be assailed or impugned at any time. 40An action to declare the nullity of a void judgment does not prescribe. 41 Secondly,the motion to dismiss in this case was filed before the petitioners received a copy of the decision by default. Since the said motion is based on the lack of jurisdictionover the persons of the petitioners which, if true - in fact, We have found it to be so -would result in the nullification not only of the default order but of the decision aswell, then for all legal intents and purposes, the latter was covered by the motion.

This was precisely the orientation of the trial court when it allowed the parties tosubmit evidence to support the motion to reconsider the Order of 5 March 1990denying the motion to dismiss. It would certainly not have gone that far if it thoughtotherwise for by then, the decision had already become final.

Its suggestion that the petitioners should have filed a motion to set aside the orderof default on the ground that they had failed to file the answer on grounds of fraud,accident, mistake or excusable negligence or a motion for new trial or a petition forrelief from judgment, is untenable for it begs the question. Besides, as shown above,petitioners' failure to file the answer was not based on any of these grounds, butstood on the void service of summons.

Finally, respondent Court's reliance on the presumption of regularity in theperformance of official functions is misplaced. We have held that such apresumption does not apply where it is patent that the sheriff's return is defective.42

WHEREFORE, the Decision of the respondent Court of Appeals of 30 May 1991 andthe Resolution dated 30 July 1991 in CA-G.R. SP No. 22232 are hereby REVERSEDand SET ASIDE. The Order of Branch 82 of the Regional Trial Court of Quezon City of 29 December 1989 (Civil Case No. Q-89-3327) declaring petitioners in default, itsDecision of 24 January 1990, Orders of 5 March 1990 and 9 July 1990 and the writ of execution issued therein, as well as all proceedings had pursuant to the writ of execution, are declared NULL and VOID. The case is hereby remanded to the courtof origin for further proceedings which shall include the valid service of summons.

SO ORDERED.

Mapa v. CA, 214 SCRA 417 (1993)[1992V806] TOMAS G. MAPA, petitioner, vs. COURT OF APPEALS, JUDGE MAXIMO A.SAVELLANO, JR., REGIONAL TRIAL COURT OF MANILA BRANCH LIII, and LAND BANK OF THE PHILIPPINES, respondents.1992 Oct 23rd DivisionG.R. No. 79374D E C I S I ON

DAVIDE, JR., J.:

The validity of a substituted service of summons upon the petitioner is raised as thecommon issue in these two (2) cases. Since identical parties are involved in both,this Court ordered their consolidation. 1

9



G.R. No. 79374 involves a petition filed under Rule 45 of the Rules of Court to reviewthe 3 June 1987 Decision of public respondent Court of Appeals in C.A.-G.R. SP No.08535 2 denying, for lack of merit, the petition therein which sought to set aside thedecision of Branch 53 of the Regional Trial Court (RTC) of Manila.

A similar petition under Rule 45 of the Rules of Court was filed in G.R. No. 82986 toreview the decision of public respondent Court of Appeals, dated 20 January 1988, inC.A.-G.R. SP No. 13252. 3 The said decision set aside (a) the 4 May 1987 Order of Branch 10 of the Regional Trial Court of Manila in Civil Case No. 82-13465 reversingits earlier decision of 18 September 1983 on the ground that the herein petitionerwas not validity served with summons and (b) the 16 October 1987 Order denyingthe motion for reconsideration of the latter.

The antecedent facts as disclosed by the records in these cases are not disputed.

High Peak Mining Exploration Corporation (hereinafter referred to as High Peak),through its duly authorized corporate officers Encarnation C. Tittel and Juergen

Tittel, borrowed various sums of money from the private respondent Land Bank of the Philippines (LBP), the latter acting as trustee of Trust Account No. 01-139. Theloans are evidenced by the following Promissory Notes executed on different dates,signed by the said officers and made payable to the Trust Account:

(1) On 23 June 1980, the sum of Five Million Pesos (P5,000,000.00) for a term of 360 days, with interest at 16% per annum and with a maturity value of P5,800,000.00, under Promissory Note (SER No. 0001);

(2) On 14 August 1980, the sum of Three Million Pesos (P3,000,000.00) for aterm of 360 days, with interest at 17% per annum and with a maturity value of P3,510,000.00, under Promissory Note (SER No. 0002); and

(3) On 9 September 1980, the sum of Three Million Pesos (P3,000,000.00) for aterm of 360 days, with interest at 17% per annum and with a maturity value of P3,510,000.00, under Promissory Note (SER No. 0003).

No security being required, none was put up by High Peak for the faithfulperformance of its obligations under the Promissory Notes.

These three (3) Promissory Notes expressly provide that demand and dishonor arewaived by High Peak and its officers.

High Peak failed to pay the said loans. Despite the waiver of notice of demand, theLBP nevertheless sent demand letters to the former which ignored the same. TheLBP was thus constrained to take legal action based on the three (3) PromissoryNotes.

The first note became the subject matter of a complaint for the recovery of a sum of money with an application for a writ of preliminary attachment filed solely againstHigh Peak. The complainant was filed on 14 July 1981 with the then Court of F irstInstance (now Regional Trial Court) of Manila. It was docketed therein as Civil CaseNo. 82-6235 and was assigned to Branch 26 thereof. The case was later renumberedas Civil Case No. 142400 when Branch 26 became Branch 53 of the Regional TrialCourt of Manila. The complaint was thereafter amended to implead as additionaldefendants the petitioner herein, in his personal capacity and as Chairman of HighPeak's Board of Directors, and the abovenamed signatories to the promissory notes.

The amended complaint was admitted by the court in its Order of 16 September

1982. This is the case involved in G.R. No. 79374.

The second and third Promissory Notes, on the other hand, became the subjectmatter of a complaint for the recovery of a sum of money filed against High Peak,the herein petitioner in his personal capacity and as Chairman of High Peak's Boardof Directors and the aforementioned signatories to the three (3) Promissory Notes.

This complaint was likewise filed on 29 October 1982 with the Court of First Instanceof Manila. It was docketed as Civil Case No. 82-13465 and was assigned to Branch10 thereof. This is the case involved in G.R. No. 82986.

The amended complaint in Civil Case No. 142400 and the complaint in Civil Case No.82-13465 both allege that the defendants could be served with summons at theSecond Floor, First Midland Condominium Bldg., Gamboa St., Legaspi Village Makati,Metro Manila.

The subsequent procedural antecedents in each case are hereunder summarized.

G.R. No. 79374(re Civil Case No. 142400)

On 2 December 1982, Deputy Sheriff Romulo A. Flores of the Office of the ProvincialSheriff filed a return of service of summons in Civil Case No. 142400, reading asfollows:.

"SHERIFF'S RETURN

THIS IS TO CERTIFY that on the 10th day of November, 1982 I have served copies of herein summons with complaint and annexes attached thereto issued by the Courtin the above entitled case upon the defendants High Peak Mining ExplorationCorporation, Tomas G. Mapa, Encarnacion C. Tittel and Juergen Tittel, thru SUSAN O.DELA TORRE, a person of suitable age and discretion working therein, who claims tobe the person authorized to receive processess (sic) of this nature and whoacknowledged the receipt thereof at second (sic) floor, F irst Midland CondominiumBldg., Gamboa Street, Legaspi Village, Makati, Metro-Manila.

WHEREFORE, said summons is hereby returned to the Honorable Court of originDULY SERVED, for its record and information.

Pasig, Metro-Manila, November 15, 1982." 4

No answer having been filed by the defendants, the trial court, upon motion of the

LBP, issued an order on 15 April 1983 declaring the defendants in default andordering the LBP to present its evidence ex-parte. On 20 September 1983, saidcourt, per Judge Maximo Savellano, JR., rendered a decision against the defendants;the latter's liability for the amount adjudged was made joint and several. Hereinpetitioner, as one of the defendants below, received a copy of the decision in hisresidence at No. 625 N.S. Amoranto Ave., Sta. Mesa Heights, Quezon City on 10December 1984.

On 21 December 1984, petitioner filed a Motion to Dismiss and Set Aside Judgment5 on the ground that service of summons upon him and High Peak was fatallydefective because it was not made in accordance with law. As to him, the sheriff'sreturn did not show that the sheriff exerted efforts to personally serve the summons;thus, substituted service pursuant to Sections 7 and 8, Rule 14 of the Rules of Courtwas not warranted. Petitioner additionally postulates that even granting that thesubstituted service was proper, the actual service upon Susan O. dela Torre cannot

be considered valid because "(a) it was left not at defendant Mapa's residence and10



dela Torre was not residing therein, and (b) that he (Mapa) was not holding office orregular place of business at the second floor, First Midland Condominium Bldg.,Gamboa St., Legaspi Village, Makati, Metro Manila;" he holds office in his residence.

The motion was denied by the trial court in its Order of 10 May 1985. A motion toreconsider the same was likewise denied in the Order of 31 January 1986.

Petitioner then sought redress from the respondent Court of Appeals through apetition for certiorari against Judge Savellano and the LBP. The case was docketedas C.A.-G.R. SP No. 08535. In its decision promulgated on 3 June 1987, 6 respondentCourt of Appeals denied the petition on the ground that ". . . respondent Court wasright in assuming jurisdiction over the defendants Tomas G. Mapa, Encarnacion C.

Tittel and Juergen Tittel who were being sued in their personal capacities, on thebasis of its finding that the substituted service of summons pursuant to Section 8,Rule 14 of the Rules of Court was properly affected (sic) by Deputy Sheriff Romulo A.Flores." Respondent Court further that the service of summons upon Susan O. dela

Torre, an employee of the corporation, may be regarded as service upon an agent of a corporation within the meaning of Section 13 of Rule 14. Finally, it took note of thetrial court's observation in the latter's Order of 10 May 1985 that since petitionerMapa has not even assailed the merits of the court's 30 September 1983 decision,

justice and equity demanded that "the same should be left undisturbed."

His motion to reconsider the adverse decision having been denied in the respondentCourt's resolution of 29 July 1987, petitioner filed the instant petition on 16September 1987.

G.R. No. 82986(re Civil Case No. 82-13465)

The duty to serve the summons in Civil Case No. 82-13465 also fell on the shouldersof Deputy Sheriff Romulo A. Flores. On 15 November 1982, he filed his return of service which reads:

"SHERIFF'S RETURN

THIS IS TO CERTIFY that on the 10th day of November, 1982, I have served copies of herein summons with complaint and annexes attached thereto issued by the Courtin the above-entitled case upon defendants High Peak Mining ExplorationCorporation, Tomas G. Mapa, Encarnacion C. Tittel and Juegen (sic) Tittle, thruSUSAN O. DELA TORRE, a person of suitable age and discretion working with saiddefendants, who claims to be the person authorized (sic) to receive process (sic) of this nature and who acknowledged the receipt thereof at 2nd Floor, First MidlandCondominium Bldg., Gamboa St., Legaspi Vill., Makati, Metro-Manila.

WHEREFORE, said summons is hereby returned to the Honorable Court of originDULY SERVED, for its record and information.

Pasig, Metro-Manila, November 15, 1982." 7

No answer having been filed by the defendants therein, the LBP filed a motion todeclare them in default, which the trial court granted. On 18 September 1983, saidcourt, per then Judge Eduardo R. Bengzon, handed down a decision against thedefendants. The latter were adjudged joint and severally liable for the amounts to bepaid. 8

On 14 October 1986, petitioner filed a Motion to Dismiss and Set Aside Judgment 9

on the ground that service of summons to him and the corporation was fatally

defective; he reiterated the same arguments he raised in the similar motion he filedin Civil Case No. 142400. Over the LBP's opposition, the trial court, this time per

Judge Josefina Cruz Rodil, issued an Order on 4 May 1987 10 partly granting thesaid motion by setting aside the decision because no jurisdiction was acquired overboth the petitioner and High Peak. The court held that there is no showing thatefforts were exerted by the sheriff to serve the summons personally upon thepetitioner; the former immediately resorted to substituted service upon Susan O.dela Torre who cannot be considered a competent person in charge of the office.With respect to High Peak, Miss dela Torre, a mere employee thereof, is not one of those explicitly authorized to receive summons in behalf of a corporation underSection 13, Rule 14 of the Rules of Court. It denied, however, the motion to dismiss;instead, it allowed the petitioner "to file his answer or responsive pleading withinfifteen (15) days from receipt of this Order," and directed the issuance of summonson the other defendants. 11 On 15 June 1987, the LBP filed a motion to reconsiderthis Order 12 alleging therein that there was substantial compliance with the ruleon service of summons. The LBP further invited the trial court's attention to the 3

June 1987 decision of the Court of Appeals in the aforementioned C.A.-G.R. SP No.08535. Petitioner consequently filed his opposition 13 thereto; he reiterates thearguments raised in his motion to dismiss and, with respect to the aforesaid decisionof the Court of Appeals, contends that since the same is not final, it does not yetcontrol. The trial court denied the motion in its Order of 16 October 1987. 14

Unable to accept the above orders of the trial court, the LBP filed with the Court of Appeals a special civil action for certiorari, prohibition and mandamus which wasdocketed therein as C.A.-G.R. SP No. 13252.

On 20 January 1988, the Court of Appeals promulgated its decision in said C.A.-G.R.SP No. 13252 15 finding the trial court to have committed grave abuse of discretionamounting to lack of jurisdiction in issuing the challenged orders, and resolving asfollows:

"WHEREFORE, the petition for certiorari is hereby GRANTED and the decision 16 of the respondent court dated May 4, 1987 and October 16, 1987 are hereby set asidefor being contrary to law. The restraining order issued on November 16, 1987 islikewise made permanent. . . ." 17

His motion to reconsider the said decision having been denied on 13 April 1988, 18the petitioner filed the instant petition.

On 20 May 1988, this Court gave due course to G.R. No. 79374. 19 After thepetitioner filed his reply to the private respondent's comment in G.R. No. 82986, thisCourt, in the Resolution of 6 March 1989, ordered the latter's consolidation with theformer. 20

The parties in these cases, particularly the private respondent, as plaintiff below,should have striven to consolidate Civil Case No. 142400 and Civil Case No. 82-13465 while they were still pending before the trial court. Both involve identicalparties, similar transactions made one after the other and the same trust account of the LBP. As a matter of fact, if the filing of Civil Case No. 142400 had only beendelayed by just three (3) months, there would have been no need to file more thanone (1) case. Moreover, summonses upon defendants in both cases were served onthe same occasion. Valuable time of the parties, the two (2) branches of the trialcourt and eventually even of the Court of Appeals would have been saved had thesaid cases been consolidated pursuant to Section 1, Rule 31 of the Rules of Court.Parties should avail of this rule both for their own and the court's advantage and

benefit. The purpose or object of consolidation is precisely to avoid multiplicity of 11



suits, guard against oppression or abuse, prevent delay, declog congested dockets,simplify the work of the trial court and save unnecessary costs or expenses; in short,the aim is to attain justice with the least expense and vexation to the partieslitigants. 21

As stated in the exordium of this ponencia, the basic issue raised in these petitionsis whether or not there was a valid substituted service of summons in both CivilCase No. 142400 and Civil Case No. 82-13465. Both cases are unquestionablyactions in personam. Jurisdiction over the petitioner, as defendant therein, cantherefore be acquired either by his voluntary submission to such jurisdiction, aswhen he appears in court, or by service of summons upon him. Voluntaryappearance is equivalent to service of summons; 22 in fact, it even cures the defectof summons. 23 Since petitioner did not voluntarily submit to the jurisdiction of thetrial court in both cases, personal service became imperative.

Section 7, Rule 14 of the Rules of Court explicitly requires personal service of summons which is accomplished "by handing a copy thereof to the defendant inperson, or, if he refuses to receive it, by tendering it to him." However, if personalservice cannot be effected within a reasonable time, substituted service, as providedfor in Section 8 of the abovementioned Rule 14, may suffice:

"SEC. 8. Substituted service. If the defendant cannot be served within areasonable time as provided in the preceding section, service may be effected (a) byleaving copies of the summons at the defendant's dwelling house or residence withsome person of suitable age and d iscretion then residing therein, or (b) by leavingthe copies at defendant's office or regular place of business with some competentperson in charge thereof."

This provision is a reproduction of Section 8, Rule 7 of the 1940 Rules of Courtexcept that, inter alia, the word "promptly" in the latter was changed to "within areasonable time" in the former. Of course, "within a reasonable time" in the former.Of course, "within a reasonable time" contemplates a period of time longer than thatdemarcated by the word "prompt", and presupposes that a prior attempt at personalservice, within a justifiable time frame as would be necessary to bring the defendantwithin the jurisdiction of the court, had failed.

It is not shown when the summons in Civil Cases Nos. 142400 and 82-13465 wereactually issued; what is clear to this Court is that the amended complaint in the firstcase was admitted by the trial court on 16 September 1982, while the complaint inCivil Case No. 82-13465 was filed on 29 October 1982. While the separate Sheriff'sreturns indicate that the summonses in both cases were served on 10 November1982, these returns do not show that prior attempts at personal service were madeby the Sheriff and that such attempts had failed, prompting the latter to resort tosubstituted service.

In Keister vs. Navarro, 24 this Court described how the impossibility of personalservice should be shown:

"Impossibility of prompt service should be shown by stating the efforts failed. Thisstatement should be made in the proof of service (I Moran, Comments on the Rulesof Court, 1970 Ed., p. 444). This is necessary because substituted service is inderogation of the usual method of service. It has been held that this method of service is 'in derogation of the common law'; it is a method extraordinary incharacter, and hence may be 'used only as prescribed and in the circumstancesauthorized by statute.' . . . (72 C.J.S. 1053)."

The proof of service alluded to is the return required by Section 6 of Rule 14 whichreads:

"SEC. 6. Return. When the service has been completed, the server shall givenotice thereof, by registered mail, to the plaintiff or his counsel, and shall return thesummons to the clerk who issued it, accompanied with the proof of service."

In Busuego vs. Court of Appeals, 25 this Court also succinctly expressed how suchimpossibility is to be shown. Thus:

". . . Perusal, however, of the sheriff's return reveals that the sheriff failed to specifytherein what prior efforts, if any, had been exerted to serve summons upon theother defendants personally within a reasonable period of time, and the lack of success of such efforts, before proceeding to substituted service. . . ."

As earlier adverted to, the sheriff's returns in Civil Cases Nos. 142400 and 82-13465are patently wanting in particulars that would justify the substituted service.Accordingly, it is fatally flawed and defective; on that basis alone, therefore, the trialcourt acquired no jurisdiction over the person of the petitioner.

It must nevertheless be emphasized that the absence in the sheriff's return of astatement about the impossibility of personal service does not conclusively provethat the service is invalid. Proof of prior attempts at personal service may besubmitted by the plaintiff during the hearing of any incident assailing the validity of the substituted service. While the sheriff's return carries with it the presumption,albeit disputable, of regularity in the sense that inter alia, the entries therein aredeemed correct, it does not necessarily follow that an act done in relation to theofficial duty for which the return is made was not done simply because it is notdisclosed therein. Besides, the sheriff's neglect in making such a disclosure shouldnot unduly prejudice the plaintiff if what was undisclosed was in fact done.Unfortunately in these instant cases, the private respondent failed to presentevidence during the hearings of the petitioner's separate motions to dismiss and setaside judgment to prove that substituted service of summons was indeed effected instrict compliance with Section 8, Rule 14 of the Rules of Court. During such hearings,the private respondent could also have presented evidence to show that thepetitioner did in fact receive from Susan O. dela Torre the summonses, together withcopies of the complaints, in both cases. If indeed the petitioner received the same,the requirement of due process would have been complied with. Thus, in Boticanovs. Chu, 26 this Court had the occasion to state:

"In the case at bar, there is no question that summons was timely issued andreceived by private respondent. In fact, he never denied actual receipt of suchsummons but confined himself to the argument that the Sheriff should prove thatpersonal service was first made before resorting to substituted service.

This brings to the fore the question of procedural due process. In Montalban vs.Maximo (22 SCRA 1077 [1968]) the Court ruled that 'The constitutional requirementof due process exacts that the service be such as may be reasonably expected togive the notice desired. Once the service provided by the rules reasonablyaccomplishes that end, the requirement of justice is answered; the traditionalnotions of fair play are satisfied; due process is served.'

Indeed, such construction is but fair, and in accord with substantial justice. Theburden on a plaintiff is not to be enlarged with a restrictive construction desired bythe defendant (Ibid., p. 1078)."

12



On the same matter, Moran 27 has this to say:

"Irregularities of this kind may, however, be cured by proof that the copies haveactually been delivered to the defendant, which is equivalent to personal service."

While in his separate motions to dismiss and set aside judgment in the two (2) casesfiled before the trial court and annexed to his pleadings in these petitions, petitionernever alleged that he did not in fact receive the summonses, such circumstance byitself cannot warrant the conclusion that he actually received from Susan dela Torrethe said summonses and copies of the complaints. In the absence of a categoricaladmission similar to that made in Boticano vs. Chu, no such inference to thecontrary could be drawn. It was thus incumbent upon the private respondent toprove that Susan dela Torre delivered to the petitioner copies of both thesummonses and the complaints.

The conclusion then is inevitable that neither a valid personal nor substitutedservice of summons in Civil Cases Nos. 142400 and 82-13465 had been effected onthe petitioner.

However, Branch 10 of the RTC of Manila gravely erred when, in its Order of 4 May1987, it set aside the decision of 18 September 1983 because it was also of theopinion that there was no valid service of summons on High Peak and the otherdefendants. It entirely forgot that it was only the petitioner herein who filed a motionto dismiss and set aside the judgment. For reasons which remain undisclosed,petitioner did not include his co-defendants in the said motion. In any event, thevalidity of the service of summonses on Encarnacion Tittel and Juergen Tittel has notbeen raised in issue; moreover, based on the sheriff's return of service in said case,this Court is satisfied that there was a valid service of summons on High PeakSection 13, Rule 14 of the Rules of Court provides for the manner in which service of summons upon a private domestic corporation shall be made. It reads:

"SEC. 13. Service upon private domestic corporation or partnership. If thedefendant is a corporation organized under the laws of the Philippines or apartnership duly registered, service may be made on the president, manager,secretary, cashier, agent, or any of its directors."

The rationale for the above rule is to render it reasonably certain that thecorporation will receive prompt and proper notice in an action against it or to insurethat the summons be served on a representative so integrated with the corporationthat such a person will know what to do with the legal papers served on him. Inother words, the rule is meant to bring home to the corporation notice of the filing of the action. 28

The summonses for High Peak in Civil Cases Nos. 142400 and 82-13465 werereceived by Susan O. dela Torre who is described in the separate sheriff's returns as"a person of suitable age and discretion working therein, who claims to be theperson authorized to receive processess (sic) of this nature and who acknowledgedthe receipt thereof at second (sic) floor, First Midland Condominium Bldg., GamboaStreet, Legaspi Village, Makati, Metro Manila." In his separate motions to dismiss,while petitioner categorically admits that this Susan O. dela Torre is an employee of the corporation, he does not disclose her specific duties and responsibilities. Hedoes not even deny the statement, made in the said returns, that Susan is"authorized to receive processess (sic) of this nature." Until rebutted by competentevidence, these returns would have to stand in the meantime for they enjoy thepresumption of regularity. Susan O. dela Torre may thus be deemed an agent of High Peak for purposes of the aforesaid Section 13 of Rule 14. It is then logical to

presume that she delivered the copies of the summonses and complaints to thecorporation, considering especially the fact that she was working in the office of thesaid corporation as indicated in the complaints. This latter presumption has notlikewise been rebutted Accordingly, even if Miss dela Torre may not strictly beconsidered as the proper agent for purposes of the aforecited Section 13, there was,nonetheless, substantial compliance therewith In G & G Trading Corporation vs.Court of Appeals, 29 this Court stated:

"Although it may be true that the service of summons was made on a person notauthorized to receive the same in behalf of the petitioner, nevertheless since itappears that the summons and complaint were in fact received by the corporation,through its said clerk, the Court finds that there was substantial compliance with therule on service of summons. Indeed the purpose of said rule as above stated toassure service of summons on the corporation had thereby been attained. The needfor speedy justice must prevail over a technicality."

One final word. As stated earlier, the three (3) promissory notes involving theoriginal amounts of P5,000,000.00, P3,000,000.00 and P3,000,000.00, or a total of P11,000,000.00, were to be released as loans from a Trust Account of the LBPunsecured by mortgage or any other security. This Court is unable to understandhow Eleven Million Pesos an enormous amount can be so easily released withoutany form of security. Unless allowed by the Trust Account itself or the rules andregulations of the LBP, the transactions appear to be highly questionable. In thisregard, since private respondent LBP is a government-owned institution, an inquiryby appropriate agencies of the government is in order to determine who wereresponsible for the approval of said loans.

WHEREFORE, subject to the modifications as above indicated the instant petitionsare hereby partly GRANTED.

The decision of respondent Court of Appeals of 3 June 1987 in C.A.-G.R. SP No.08535, subject of G.R. No. 79374, is AFFIRMED in all respects except insofar as itsustains the ruling of the trial court in Civil Case No. 142400 that the petitioner wasvalidly served with summons in said case; the Decision of 20 September 1983 of Branch 53 of the Regional Trial Court of Manila in Civil Case No. 142400 (formerly R-82-6235) stands as to the other defendants but is hereby SET ASIDE as against thepetitioner, and its Orders of 10 May 1985 and 31 January 1986 are accordinglyMODIFIED. Said court shall cause alias summons to be served on the petitioner.

The Decision of respondent Court of Appeals of 20 January 1988 in C.A.-G.R. SP No.13252, subject of G.R. No. 82986, is AFFIRMED in all respects except insofar as thepetitioner is concerned. The Decision of 18 September 1983 of Branch 10 of theRegional Trial Court of Manila in said Civil Case No. 82-13465 stands as against theother defendants therein but is hereby SET ASIDE as against the petitioner, and theOrders therein of 4 May 1987 and 16 October 1987 are thus MODIFIED accordingly.

A separate trial is hereby ordered against the petitioner in Civil Case No. 142400and Civil Case No. 82-13465, for which purpose the latter shall be consolidated withthe former.

No pronouncement as to costs.

SO ORDERED.

Northwest v. CA, 241 SCRA 192, (1995)

NORTHWEST ORIENT AIRLINES, INC. V CA (SHARP)13



241 SCRA 192DAVIDE; February 9, 1995

NATUREPetition on certiorari to set aside the decision of the CA.

FACTS- Petitioner Northwest Orient Airlines, Inc. (NORTHWEST), a corporation organizedunder the laws of the State of Minnesota, U.S.A., sought to enforce in the RTC Manilaa judgment rendered in its favor by a Japanese court against private respondent C.F.Sharp & Company, Inc., (SHARP), a corporation incorporated under Philippine laws.

- NORTHWEST and SHARP (through its Japan branch) entered into an InternationalPassenger Sales Agency Agreement, whereby NORTHWEST authorized SHARP to sellits air transportation tickets. Unable to remit the proceeds of the ticket sales madeby SHARP under the said agreement, NORTHWEST on March 25, 1980 sueddefendant in Tokyo, Japan, for collection of the unremitted proceeds of the ticketsales, with claim for damages.- April 11, 1980: a writ of summons was issued by the 36th Civil Department,Tokyo District Court of Japan against SHARP at its office at the TaiheiyoBuilding, 3rd floor, 132, Yamashita-cho, Naka-ku, Yokohoma, KanagawaPrefecture. The attempt to serve the summons was unsuccessful because thebailiff was advised by a person in the office that Mr. Dinozo (the person believedto be authorized to receive court processes) was in Manila and would be backon April 24, 1980.- April 24, 1980: bailiff returned to the defendant's office to serve the summons. Dr.Dinozo refused to accept the same claiming that he was no longer an

employee of the defendant.- March 24, 1981: SHARP received from Deputy Sheriff Balingit copy of the

judgment. Defendant not having appealed the judgment, the same became final andexecutory.RTC- NORTHWEST was unable to execute the decision in Japan, hence a suit forenforcement of the judgment was filed before the Manila RTC.- SHARP filed its answer averring that the judgment of the Japanese Court sought tobe enforced is null and void and unenforceable in this jurisdiction having beenrendered without due and proper notice to the defendant and/or with collusion orfraud and/or upon a clear mistake of law and fact- Unable to settle the case amicably, the case was tried on the merits. AfterNORTHWEST rested its case, SHARP filed a Motion for Judgment on a Demurrer toEvidence based on two grounds: (1) the foreign judgment sought to beenforced is null and void for want of jurisdiction and (2) the said judgment iscontrary to Philippine law and public policy and rendered without due process of law.NORTHWEST filed its opposition after which the court a quo rendered the nowassailed decision granting the demurrer motion and dismissing the complaint. RTCheld:

“The foreign judgment in the Japanese Court sought in this action is null andvoid for want of jurisdiction over the person of the defendant considering thatthis is an action in personam; the Japanese Court did not acquire jurisdictionover the person of the defendant because jurisprudence requires that thedefendant be served with summons in Japan in order for the Japanese Court toacquire jurisdiction over it, the process of the Court in Japan sent to thePhilippines which is outside Japanese jurisdiction cannot confer jurisdiction overthe defendant in the case before the Japanese court of the case at bar.”

- NORTHWEST moved for reconsideration of the decision, filing at the same time aconditional Notice of Appeal, asking the court to treat the said notice of appeal as

“in effect after and upon issuance of the court's denial of the motion forreconsideration." SHARP opposed the MFR to which NORTHWEST filed a reply.CA- Following the notice of appeal, CA sustained the RTC and held “the process of thecourt has no extraterritorial effect and no jurisdiction is acquired over the person of the defendant by serving him beyond the boundaries of the state."

Plaintiff’s Claim- While the collection suit filed is an action in personam, a distinction must be madebetween an action in personam against a resident defendant and an action inpersonam against a non-resident defendant. Jurisdiction is acquired over a non-

resident defendant only if he is served personally within the jurisdiction of the court, and over a resident defendant if by personal, substituted orconstructive service conformably to statutory authorization.

ISSUE(S)1. WON a Japanese court can acquire jurisdiction over a Philippine corporation

doing business in Japan by serving summons through diplomatic channels onthe Philippine corporation at its principal office in Manila after prior attempts toserve summons in Japan had failed.

HELD YESRatio The extraterritorial service of summons on it by the Japanese Court was validnot only under the processual presumption but also because of the presumption of regularity of performance of official duty.Reasoning

GENERAL RULE: The processes of the court cannot lawfully be served outside theterritorial limits of the jurisdiction of the court from which it issues and this isregardless of the residence or citizenship of the party thus served (Iowa-Rahr).

There must be actual service within the proper territorial limits on defendant orsomeone authorized to accept service for him. Thus, a defendant, whether aresident or not in the forum where the action is filed, must be served with summonswithin the forum.

- Even assuming a distinction between a resident defendant and non-residentdefendant were to be adopted, such distinction applies only to natural persons andnot to corporations. This finds support in the concept that "a corporation has nohome or residence in the sense in which those terms are applied to natural persons.- A corporation is a "resident" and an inhabitant of the state in which it isincorporated and no other (where its charter was granted and not by the locationof its business activities).- SHARP is a Philippine Corporation duly organized under the Philippine laws. Clearly,its residence is the Philippines, the place of its incorporation, and not Japan. WhileSHARP maintains branches in Japan, this will not make it a resident of Japan. Acorporation does not become a resident of another by engaging in business thereeven though licensed by that state and in terms given all the rights and privileges of a domestic corporation. In this regard, SHARP is a non-resident corporation.As such, court processes must be served upon it at a place within the statein which the action is brought and not elsewhere- The service of summons effected in Manila or beyond the territorialboundaries of Japan was null and did not confer jurisdiction upon theTokyo District Court over the person of SHARP; hence, its decision wasvoid.

14



- A foreign judgment is presumed to be valid and binding in the country from whichit comes, until the contrary is shown. It is also proper to presume the regularity of the proceedings and the giving of due notice therein.- Section 50, Rule ROC: a judgment in an action in personam of a tribunal of aforeign country having jurisdiction to pronounce the same is presumptive evidenceof a right as between the parties and their successors-in-interest by a subsequenttitle. The judgment may, however, be assailed by evidence of want of jurisdiction,want of notice to the party, collusion, fraud, or clear mistake of law or fact. Also,under Section 3 of Rule 131, a court, whether of the Philippines or elsewhere,enjoins the presumption that it was acting in the lawful exercise of jurisdiction andhas regularly performed its official duty.

- The party attacking a foreign judgment has the burden of overcoming thepresumption of its validity. Being the party challenging the judgment rendered bythe Japanese court, SHARP had the duty to demonstrate the invalidity of such

judgment. In attempt to discharge that burden, it contends that the extraterritorialwas not only ineffectual but also void, and the Japanese Court did not, therefore,acquire jurisdiction over it. It was then incumbent upon SHARP to present evidenceas to what that Japanese procedural law is and to show that under it, the assailedextraterritorial service is invalid. It did not.- Alternatively, in the light of the absence of proof regarding Japanese law, thepresumption of identity or similarity or the so-called processual presumption may beinvoked. Applying it, the Japanese law on the matter is presumed to be similar withthe Philippine law on service of summons on a private foreign corporation doingbusiness in the Philippines. Section 14, Rule 14 of the rules of Court provides that if the defendant is a foreign corporation doing business in the Philippines, service maybe made: (1) on its resident agent designated in accordance with law for that

purpose, or, (2) if there is no such resident agent, on the government officialdesignated by law to that effect, or (3) on any of its officers or agents within thePhilippines.- If the foreign corporation has designated an agent to receive summons, thedesignation is exclusive, and service of summons is without force and gives thecourt no jurisdiction unless made upon him.- Where the corporation has no such agent, service shall be made on thegovernment official designated by law, to wit:

(a) the Insurance Commissioner, in the case of a foreign insurance company;(b) the Superintendent of Banks, in the case of a foreign banking corporation; and(c) the Securities and Exchange Commission, in the case of other foreign

corporations duly licensed to do business in the Philippines. Whenever serviceof process is so made, the government office or official served shall transmit bymail a copy of the summons or other legal process to the corporation at itshome or principal office. The sending of such copy is a necessary part of theservice.

- Nowhere in its pleadings did SHARP profess to having had a resident agentauthorized to receive court processes in Japan. This silence could only mean, or atleast create an impression, that it had none. Hence, service on the designatedgovernment official or on any of SHARP's officers or agents in Japan could be availedof. While it may be true that service could have been made upon any of the officersor agents of SHARP at its three other branches in Japan, the availability of such arecourse would not preclude service upon the proper government official, as statedabove.- As found by the CA, it was the Tokyo District Court which ordered that summonsfor SHARP be served at its head office in the Philippines after the two attempts of service had failed. The Tokyo District Court requested the Supreme Court of Japan tocause the delivery of the summons and other legal documents to the Philippines.Acting on that request, the Supreme Court of Japan sent the summons together withthe other legal documents to the Ministry of Foreign Affairs of Japan which, in turn

forwarded the same to the Japanese Embassy in Manila. Thereafter, the courtprocesses were delivered to the Ministry of Foreign Affairs (DFA) of the Philippines,then to the executive Judge of the CFI of Manila, who forthwith ordered DeputySheriff Rolando Balingit to serve the same on SHARP at its principal office in Manila.

This service is equivalent to service on the proper government official under Section14, Rule 14 of the Rules of Court, in relation to Section 128 of the Corporation Code.Hence, SHARP's contention that such manner of service is not valid under Philippinelaws holds no water

DISPOSITIVESHARP is ordered to pay the NORTHWEST the amount adjudged in the foreign

judgment subject of the case.

Extraterritorial, Rule 14, Sec. 15Sec. 15. Extraterritorial service. When the defendant does not reside

and is not found in the Philippines, and the action affects the

personal status of the plaintiff or relates to, or the subject of which

is, property within the Philippines, in which the defendant has or

claims a lien or interest, actual or contingent, or in which the relief

demanded consists, wholly or in part, in excluding the defendant from

any interest therein, or the property of the defendant has been

attached within the Philippines, service may, by leave of court, be

effected out of the Philippines by personal service as under section 6;

or by publication in a newspaper of general circulation in such places

and for such time as the court may order, in which case a copy of the

summons and order of the court shall be sent by registered mail to the

last known address of the defendant, or in any other manner the courtmay deem sufficient. Any order granting such leave shall specify a

reasonable time, which shall not be less than sixty (60) days after

notice, within which the defendant must answer.

Dial Co. v. Soriano, 161 SCRA 737 (1988)DIAL CORP v SORIANO

161 SCRA 737GRINO-AQUINO; May 31, 1988

FACTS:-The petitioners are foreign corporations. . The respondent Imperial Vegetable OilCompany, Inc(IVO) is a Philippine corporation which through its president,Dominador Monteverde, had entered into several contracts for the delivery of coconut oil to the petitioners

-Contracts contained arbitration clause. Because IVO defaulted under the contracts,the petitioners and 15 others, initiated arbitration proceedings abroad, and somehave already obtained arbitration awards against IVO.-IVO filed in Manila RTC a complaint for injunction and damages against 19 foreigncoconut oil buyers (including petitioners) with whom its president DominadorMonteverde had contracts. They claim that these were mere “paper trail” and thatthese were illegal and fraudulent acts by Dominador. They had a board meetingwhich in effect relieved Dominador of his duties as president.-they also claimed that the defendants have allegedly "harassed" IVO to complywith Dominador's contracts and to come to a settlement with them. IVO prayed forthe issuance of a TRO or writ of preliminary injunction to stop the defendants fromharassing IVO with their insistent demands to recognize the contracts entered intoby Dominador-they also prayed for moral, exemplary and actual damages and attorney’s fees.

15



-On motion of IVO, respondent Judge authorized it to effect extraterritorial service of summons to all the defendants through DHL Philippines corporation. Pursuant tothat order, the petitioners were served with summons and copy of the complaint byDHL courier service-without submitting to the court's jurisdiction and only for the purpose of objectingto said jurisdiction over their persons, petitioners filed motions to dismiss thecomplaint against them on the ground that the extraterritorial service of summonsto them was improper and that hence the court did not acquire jurisdiction overthem.-the court denied their motions to dismiss and upheld the validity of theextraterritorial service of summons to them on the ground that "the present actionrelates to property rights which lie in contracts within the Philippines, or whichdefendants claim liens or interests, actual or inchoate, legal or equitable. And one of the reliefs demanded consists, wholly or in part, in excluding the defendants fromany interest in such property for the reason that their transactions with plaintiff'sformer president are ultra vires." Furthermore, "as foreign corporations doingbusiness in the Philippines without a license, they opened themselves to suit beforePhilippine courts, pursuant to Sec. 133 of the Corporation Code of the Philippines."

ISSUE: WON the extraterritorial service of summons proper

HELD: NO-Only in 4 instances is extraterritorial service of summons proper, namely: "(1) whenthe action affects the personal status of the plaintiffs; (2) when the action relates to,or the subject of which is, property within the Philippines, in which the defendanthas or claims a lien or interest, actual or contingent; (3) when the relief demandedin such action consists, wholly or in part, in excluding the defendant from anyinterest in property located in the Philippines; and (4) when the defendant non-resident's property has been attached within the Philippines-The complaint in this case does not involve any of the 4 instances. The action ispurely an action for injunction to restrain the defendants from enforcing against IVO("abusing and harassing") its contracts for the delivery of coconut oil to thedefendants, and to recover from the defendants P21 million in damages for such"harassment."*additional info lang-- *It is clearly a personal action as well as an action in

personam, not an action in rem or quasi in rem.action in personam is an action against a person on the basis of his personal

liability action in remedies is an action against the thing itself, instead of against the

person." A personal action is one brought for the recovery of personal property, forthe enforcement of some contract or recovery of damages for its breach, or for therecovery of damages for the commission of an injury to the person or property

-As this a personal action, personal or substituted service of summons on thedefendants, not extraterritorial service, is necessary to confer jurisdiction on thecourt:“As a general rule, when the defendant is not residing and is not found in thePhilippines, the Philippine courts cannot try any case against him because of theimpossibility of acquiring jurisdiction over his person unless he voluntarily appears incourt. But, when the action affects the personal status of the plaintiff residing in thePhilippines, or is intended to seize or dispose of any property, real or personal, of thedefendant located in the Philippines, it may be validly tried by the Philippine courts,for then, they have jurisdiction over the res, i.e., the personal status of the plaintiff or the property of the defendant and their jurisdiction over the person of the non-resident defendant is not essential

- In an action for injunction, extraterritorial service of summons and complaint uponthe non-resident defendants cannot subject them to the processes of the regionaltrial courts which are powerless to reach them outside the region over which theyexercise their authority- Neither may the court by extraterritorial service of summons acquire jurisdiction torender and enforce a money judgment against a non-resident defendant who has noproperty in the Philippines for "the fundamental rule is that jurisdiction in personamover non-residents, so as to sustain a money judgment, must be based upon

personal service within the state which renders the judgment "Sievert v. CA, 168 SCRA 692 (1988)

ALBERTO SIEVERT v. CA [J. LUNA,CAMPOSANO]G.R. No. 84034FELICIANO; December 22, 1988

Nature: Certiorari

FACTS- Alberto Sievert a citizen and resident of the Philippines received by mail a Petitionfor Issuance of a Preliminary Attachment filed with the Manila RTC Branch 32 in CivilCase No. 88-44346. He had not previously received any summons and any copy of acomplaint against him in said case.-On the day set for hearing of the Petition for a Preliminary Writ of Attachment,Sievert's counsel went before the RTC and entered a special appearance for thelimited purpose of objecting to the jurisdiction of the court. He simultaneously filed awritten objection to the jurisdiction of the RTC to hear or act upon the Petition forIssuance of a Preliminary Writ of Attachment. In this written objection, Sievert

prayed for denial of that Petition for lack of jurisdiction over the person of thepetitioner (defendant therein) upon the ground that since no summons had beenserved upon him in the main case, no jurisdiction over the person of the petitionerhad been acquired by the trial court.-RTC denied the petitioner's objection and issued in open court an order which, inrelevant part, read as follows:Under Section 1, Rule 57, Rules of Court, it is clear that a plaintiff or any properparty may "... at the commencement of the action or at any time thereafter, havethe property of the adverse party attached as the security for the satisfaction of any

judgment ..." This rule would overrule the contention that this Court has no jurisdiction to act on the application, although if counsel for defendant so desire, sheis given five (5) days from today within which to submit her further position why thewrit should not be issued, upon the receipt of which or expiration of the period, thepending incident shall be considered submitted for resolution. (Underscoring in theoriginal) 1

-Thereupon, on the same day, Sievert filed a Petition for certiorari with the CA.-CA dismissed the petition saying that the Judge may issue a writ of preliminaryattachment against petitioner before summons is served based on R57.1 anddefined what is meant by the “commencement of the action” citing Moran: action iscommenced by filing of the complaint even though summons is not issued until alater date.

ISSUE: WON a W of PA may bind a defendant or his property before summons isserved upon him (or before the court has acquired jurisdiction over the person of thedefendant in the main case). HELD: No. Jurisdiction must first be vested over the person of the defendant in themain case before attachment may bind the defendant or his property. The want of

jurisdiction of the trial court to proceed in the main case against the defendant isquite clear. It is not disputed that neither service of summons with a copy of the

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complaint nor voluntary appearance of Sievert was had in this case. Yet, the trialcourt proceeded to hear the petition for issuance of the writ.

Reasoning:-The issue posed in this case, however, is not to be resolved by determining whenan action may be regarded as having been commenced, a point in time which, inany case, is not necessarily fixed and Identical regardless of the specific purpose forwhich the determination is to be made. The critical time which must be Identified is,rather, when the trial court acquires authority under law to act coercively againstthe defendant or his property in a proceeding in attachment. We believe and so holdthat critical time is the time of the vesting of jurisdiction in the court over the personof the defendant in the main case.-Attachment is an ancillary remedy. It is not sought for its own sake butrather to enable the attaching party to realize upon relief sought andexpected to be granted in the main or principal action . A court which hasnot acquired jurisdiction over the person of defendant, cannot bind thatdefendant whether in the main case or in any ancillary proceeding such asattachment proceedings. The service of a petition for preliminaryattachment without the prior or simultaneous service of summons and acopy of the complaint in the main case and that is what happened in thiscase does not of course confer jurisdiction upon the issuing court over theperson of the defendant.-Ordinarily, the prayer in a petition for a writ of preliminary attachment is embodiedor incorporated in the main complaint itself as one of the forms of relief sought insuch complaint. Thus, valid service of summons and a copy of the complaint will insuch case vest jurisdiction in the court over the defendant both for purposes of themain case and for purposes of the ancillary remedy of attachment. In such case,notice of the main case is at the same time notice of the auxiliary proceeding inattachment. Where, however, the petition for a writ of preliminary attachment isembodied in a discrete pleading, such petition must be served either simultaneously with service of summons and a copy of the main complaint, or after jurisdiction over the defendant has already been acquired by such service of summons. Notice of theseparate attachment petition is not notice of the main action. Put a little differently,

jurisdiction whether ratione personae or ratione materiae in an attachmentproceeding is ancillary to jurisdiction ratione personae or ratione materiae in themain action against the defendant. If a court has no jurisdiction over the subjectmatter or over the person of the defendant in the principal action, it simply has no

jurisdiction to issue a writ of preliminary attachment against the defendant or hisproperty.- Salas v. Adil: this Court described preliminary attachment as a rigorous remedy which exposes the debtor to humiliation and annoyance, such [that] it should not beabused as to cause unnecessary prejudice. It is, therefore; the duty of the court,before issuing the writ, to ensure that all the requisites of the law have beencomplied with; otherwise the judge acts in excess of his jurisdiction and the writ soissued shall be null and void.

DISPOSITIVE: Petition for Certiorari is GRANTED due course; the Order of the RTCand the CA’s decision are SET ASIDE and ANNULLED.

Citizens' Surety v. Herrera, 38 SCRA 369 (1972)CITIZEN’S SURETY V HERRERA

38 SCRA 369 (1972)RACH

CITIZENS' SURETY & INSURANCE CO. INC. V MELENCIO-HERRERAG.R. No. L-32170

REYES, J.B.L.; March 31, 1971

FACTS-Petitioner Citizens' Surety & Insurance Company, Inc. seeks review of an order of respondent Judge in Civil Case No. 77134 of the CFI Manila, Branch XVII, entitled"Citizens' Surety & Insurance Co., Inc. vs. Santiago Dacanay and Josefina Dacanay,"dismissing the complaint for lack of proper service of summons upon defendants.-Petitioner had filed its complaint in the CFI Mla, alleging that at request of defendant Santiago Dacanay, the plaintiff had issued its Surety Bonds Nos. 4942and 4944, the first, in favor of Gregorio Fajardo to guarantee payment of a P5,000-promissory note executed by said Dacanay, and the second, in favor of Manufacturers Bank & Trust Co., to guarantee payment of another promissory note.-In consideration of said bonds, Santiago and Josefina Dacanay executed IndemnityAgreements, binding themselves jointly and severally to indemnify plaintiff for anylosses, costs and expenses which it might sustain in connection with the issuance of the bonds aforesaid, with interest at 12% per annum. As additional security, theDacanays mortgaged to plaintiff a parcel of land in Baguio City, the mortgagehaving been duly recorded.-The promissory notes were not paid and as a result, plaintiff Surety was compelledto pay P5,000.00 to Gregorio Fajardo and P4,081.69 to the Manufacturers' Bank. TheDacanays failed to reimburse the Surety for such payments, whereupon the Suretycaused the extrajudicial foreclosure of the mortgage to pay its claim of P12,941.69representing its payments, interest and stipulated liquidated damages.-At the foreclosure sale, the land mortgaged was sold to plaintiff, as highest bidder,for the sum of P2,000.00 leaving an unsatisfied balance of P10,491.69. Plaintiff thussought to recover from defendants Dacanay, plus 10% thereof as attorneys' fees,and the costs.- At petitioner's request, respondent Judge caused summons to be made bypublication in the newspaper Philippines Herald. But despite the publication anddeposit of a prepaid copy of the complaint at the Manila post office,defendants did not appear within the period of 60 days from lastpublication, as required by the summons.-Plaintiff then asked that defendants be declared in default; but instead, the Judge,by order of May 16, 1970, asked it to show cause why the action should not bedismissed, the suit being in personam and defendants not having appeared. Then,on May 29, 1970, respondent Judge dismissed the case, despite plaintiff Surety'sargument that the summons by publication was sufficient and valid under section 16of Rule 14 of the Revised Rules of Court.

ISSUE1. WON summons by publication was sufficient for the court to validly acquire

jurisdiction on a non-appearing defendant2. WON dismissal of the case by the respondent Judge should be set aside

HELD1. NO-The action of plaintiff petitioner, being in personam, the Court could not validlyacquire jurisdiction on a non-appearing defendant, absent a personal service of summons within the forum.- Without such personal service, any judgment on a non-appearing defendant wouldbe violative of due process. (Pantaleon vs. Asunción)'Due process of law requires personal service to support a personal judgment, andwhen the proceeding is strictly in personam brought to determine the personalrights and obligations of the parties, personal service within the state or a voluntary

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appearance in the case is essential to the acquisition of jurisdiction so as toconstitute compliance with the constitutional requirement of due process.’-The proper recourse for a creditor in the same situation as petitioner is to locateproperties, real or personal, of the resident defendant debtor withunknown address and cause them to be attached under Rule 57, section1(f), in which case, the attachment converts the action into a proceeding in rem orquasi in rem and the summons by publication may then accordingly be deemedvalid and effective.

2. YES-Because debtors who abscond and conceal themselves are also quite adept atconcealing their properties, the dismissal of the case below by respondent Judgeshould be set aside and the case held pending in the court's archives, untilpetitioner as plaintiff succeeds in determining the whereabouts of the defendants'person or properties and causes valid summons to be served personally or bypublication as the case may be. In this manner, the tolling of the period of prescription for as long as the debtor remains in hiding would properly bea matter of court records and he cannot emerge after a sufficient lapse of timefrom the dismissal of the case to profit from his own misdeed and claim prescriptionof his just debt.DISPOSITIVE Order of dismissal of the case issued by the Court below is hereby setaside, and in the interest of justice, the proceedings are ordered SUSPENDED, to beheld pending until the plaintiff petitioner succeeds in ascertaining the whereaboutsof the defendants and/or locating properties of the same, to enable proper summonsto be issued conformably to this Opinion.

Consolidated Plywood v. Breve, 166 SCRA 589 (1988)CONSOLIDATED PLYWOOD V HON. BREVA

166 SCRA 589NARVASA, October 18, 1988

NATUREPetition for review of TC deci

FACTS-Consolidated Plywood (Consolidated Plywood - Co-owner 1) purchased ½ of property form Consolidated Bank and Trust Company, which, in turn, had acquiredthat share at a foreclosure sale. Mindanao Hemp Export Corporation (MindanaoHemp – Co-owner 2) was the other registered co-owner.-Consolidated Plywood occupied property, using the warehouse on it to store its

products and the nearby building to quarter its personnel. It also employed guards.It also made repairs and improvements on the property amounting to P239,837,21.It sought to collect extrajudicially from Mindanao Hemp but since it produced noresult, it filed action for collection before RTC Davao.-Summons was issued to Mindanao Hemp at the address stated in the complaint(413 Jaboneros St., Binondo, Manila). It went unserved, Mindanao Hemp was said tobe no longer doing business at the said address and nobody around knew thepresent whereabouts of the defendant. When TC ascertained from SEC the businessaddress of Mindanao Hemp, SEC gave same address-Consolidated Plywood moved for service of summons by publication, which wasgranted by TC. Publication was effected in PDI on May 18, and 15, 1987 then on June1. Copy of the alias summons also sent by registered mail addressed to MindanaoHemp at the Binondo address

-no answer filed w/n the 60d period so Mindanao Hemp declared in default.Consolidated Plywood presented its evidence ex parte. TC did ocular inspection andfound out that Consolidated Plywood was using the entire property!TC:dismiss complaint for lack of merit: Did incur expenses but Consolidated Plywoodwas using the entire property so it had no right to compel Mindanao Hemp toreimburse it. Co-owner cannot put property to his sole use and benefit gratis withoutthe express agreement of the other co-owner.Consolidated Plywood’s Contention: a co-owner has the right to use the wholeof the property owned in common without obligation for rentals and, hand-in-handwith such right of use, the right to reimbursement from the other co-owners of theirproportionate share in necessary expenses incurred by him for the preservation of the property.

ISSUEWON the petition for review should be dismissed

HELD YES. TC never acquired jurisdiction over the person of the defendant so could notlawfully render valid judgment thereon. Personal Action so personal service of summons!Reasoning. Petitioner's suit is for the collection of a sum of money ---- a personalaction, as distinguished from a real action, i.e., one ". . . affecting title to, or forrecovery of possession of, or for partition or condemnation of, or foreclosure of mortgage on, real property." It is, too, an action strictly in personam, as to whichin a line of cases starting with Pantaleon vs. Asuncion, this Court laid down andconsistently hewed to the rule that ". . . personal service of summons within theforum, is essential to the acquisition of jurisdiction over the person of the defendant,who does not voluntarily submit himself to the authority of the court. In other words,summons by publication cannot consistently with the due process clause in the Billof Rights ---- confer upon the Court jurisdiction over said defendant," and that ". . .(t)he proper recourse for a creditor in the same situation as petitioner is to locateproperties, real or personal, of the resident defendant debtor with unknown addressand cause them to be attached under Rule 57, section l(fl, in which case, theattachment converts the action into a proceeding in rem or quasi in rem and thesummons by publication may then accordingly be deemed valid and effective."

Disposition. Accordingly, and service of summons by publication here not havingbeen preceeded by attachment of property of MHEC, it did not confer on the TrialCourt jurisdiction over the person of said defendant, and it is on this score thatpetitioner's action must be, as it is hereby, DISMISSED. In view of the peculiarcircumstances of this case, it is hereby directed that in the not unlikely event thatthe petitioner pursue its claim for reimbursement against its co-owner by filing asecond action therefor, efforts be exerted, prior to effecting service of summons bypublication, to cause personal service on respondent corporation on its president,manager, secretary, cashier, agent or any of its directors, at such of their individualaddresses as may become known to the petitioner from an examination of therecords of the Securities and Exchange Commission or such others as may be orbecome otherwise available, failure of this latter mode of service being hereby madea condition precedent to summons by publication. SO ORDERED.

Waiver of service, Rule 14, Sec. 20Sec. 20. Voluntary appearance. The defendant's voluntary appearance in

the action shall be equivalent to service of summons. The inclusion in

a motion to dismiss of other grounds aside from lack of jurisdiction

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over the person of the defendant shall not be deemed a voluntary

appearance.

Delos Santos v. Montesa, 221 SCRA 15 (1993)DOLORES, NICOLAS and RICARDO DELOS SANTOS VS Judge MONTESA and

JUANA DELOS SANTOSG.R. No. 73531

MELO; 1993

FACTS- Juana, who supposedly own the lot in question, a portion of which Dolores et.al.

(petitioners) entered and occupied, lodged the complaint for Petitioners’ eviction.Summons was served through the mother of petitioners when the process serverwas unable to locate Dolores, Nicolas, and Ricardo delos Santos in Bulacan. Forfailure of petitioners to submit the corresponding answer, judgment was renderedpursuant to the rules on summary procedure.- The court ordered the petitioners to vacate the lot in question and to pay P5k asrental from 1985 until possession is surrendered. Upon appeal, the RTC presidedby, respondent Judge Montesa granted Juana’s motion for execution pending appealon account of petitioners’ failure to post supersedeas bond. To set aside theproceedings in the lower court, this petition at hand was instituted anchored on thesupposition that petitioners were deprived of their day in court. Upon learning if thesaid decision, petitioners sought to reconsider on the principal thesis that:

- they were never served notice of conciliation meeting at the barangay level- they were never served with summons

- respondent was referring to a different piece of realty- Dolores’ husband should have been impleaded

ISSUEWON these arguments are meritorious

HELDNo.All these arguments are to no avail. The writ of execution was ordered due topetitioner’s failure to post supersedeas bond.

- although the proof of service of the summons upon petitioners does notindicate impossibility of personal service, a condition precedent for resorting tosubstituted service, still, any defect in form and in the manner of effectingservice thereof were nonetheless erased when petitioners' counsel moved to re-examine the impugned decision and posed a subsequent bid on appeal toimpede immediate execution. Indeed, such demeanor is tantamount tovoluntary submission to the competencia of the court within the purview of Section 23, Rule 14 of the Revised Rules of Court since any mode of appearancein court by a defendant or his lawyer is equivalent to service of summons,absent any indication that the appearance of counsel for petitioner wasprecisely to protest the jurisdiction of the court over the person of defendant.Neither can such appearance be considered as a special appearance foundedon the sole challenge on invalid service of summons since the applicationtherefor raised another ground on failure to state a cause of action whenconciliation proceedings at the barangay level were allegedly bypassed ordisregarded.- The issue as the fact that petitioners are supposedly occupying a parcel of land other than the realty claimed by Juana deserves scant consideration sincea clarification on a factual query of this nature is entertained only on the lowercourts.

- Petitioners argue that the execution pending appeal was ordered withoutany prior notice to them. This notion is also devoid of substance since iterroneously suggests that the court is duty-bound to notify petitioners of theimmediate enforcement of the appeal under Section 2, Rule 39 of the RevisedRules of Court who is obliged to serve a copy of such motion on the adverseparty's counsel, which, on the face of the subject motion, was effected bypersonal delivery.- In fine, petitioners may not press the idea that they were deprived of theirday in court amidst the implicit forms of waiver performed by their lawyer insubmitting every conceivable defense for petitioners via the two motions forreconsideration below.

DISPOSITIVEWHEREFORE, the petition is hereby DISMISSED for lack of merit

Return of service, Rule 14, Sec. 4Sec. 4. Return. When the service has been completed, the server shall,

within five (5) days therefrom, serve a copy of the return, personally

or by registered mail, to the plaintiff's counsel, and shall return the

summons to the clerk who issued it, accompanied by proof of service.

Proof of service, Rule 14, Sec. 18Sec. 18. Proof of service. The proof of service of a summons shall be

made in writing by the server and shall set forth the manner, place,

and date of service; shall specify any papers which have been served

with the process and the name of the person who received the same; and

shall be sworn to when made by a person other than a sheriff or his

deputy.

publication, Rule 14, Sec. 19Sec. 19. Proof of service by publication. If the service has been made

by publication, service may be proved by the affidavit of the printer,

his foreman or principal clerk, or of the editor, business or

advertising manager, to which affidavit a copy of the publication shall

be attached, and by an affidavit showing the deposit of a copy of the

summons and order for publication in the post office, postage prepaid,

directed to the defendant by registered mail to his last known address.

registered mail, Rule 14, Sec.

MotionsRule 15In general, Rule 15, Sec. 1Section 1. Motion defined. A motion is an application for relief other

than by a pleading.

Form, Rule 15, Sec. 2Sec. 2. Motions must be in writing. All motions shall be in writing

except those made in open court or in the course of a hearing or trial.

Generally, Rule 15, Sec. 10Sec. 10. Form. The Rules applicable to pleadings shall apply to written

motions so far as concerns caption, designation, signature, and other

matters of form.

May be oral, Rule 15, Sec. 2Sec. 2. Motions must be in writing. All motions shall be in writing

except those made in open court or in the course of a hearing or trial.

Motions for leave, Rule 15, Sec. 9Sec. 9. Motion for leave. A motion for leave to file a pleading or

motion shall be accompanied by the pleading or motion sought to be

admitted.

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Contents, Rule 15, Sec. 3Sec. 3. Contents. A motion shall state the relief sought to be obtained

and the grounds upon which it is based, and if required by these Rules

or necessary to prove facts alleged therein, shall be accompanied by

supporting affidavits and other papers.

Omnibus Motion Rule, Rule 15, Sec. 8Sec. 8. Omnibus motion. Subject to the provisions of section 1 of Rule

9, a motion attacking a pleading, order, judgment, or proceeding shall

include all objections then available, and all objections not so

included shall be deemed waived.

Notice of hearing, Rule 15, Sec. 5

Sec. 5. Notice of hearing. The notice of hearing shall be addressed toall parties concerned, and shall specify the time and date of the

hearing which must not be later than ten (10) days after the filing of

the motion.

Proof of Service, Rule 15, Sec. 6Sec. 6. Proof of service necessary. No written motion set for hearing

shall be acted upon by the court without proof of service thereof.

Provident International Resources Co. v. Court of Appeals, G.R. 119328, 259 SCRA510 (1996)[1996V456] PROVIDENT INTERNATIONAL RESOURCES INCORPORATED, petitioner,vs.COURT OF APPEALS, and MUNICIPALITY OF PARAÑAQUE, represented by MAYORPABLO R. OLIVARES, respondents.1996 Jul 263rd DivisionG.R. No. 119328DAVIDE,

JR., J.:

The pivotal issue in this petition for review under Rule 45 of the Rules of Court iswhether respondent Court of Appeals, in its Amended Decision 1 of 18 October 1994in CA-G.R. SP No. 32672, committed reversible error in annulling an order of execution of the Regional Trial Court (RTC) of Makati, Branch 133, in anexpropriation case docketed as Civil Case No. 93-1412. 2 The said RTC orderdirected the Municipality of Parañaque (hereinafter PARAÑAQUE) to vacate theproperty subject of the expropriation case and to surrender possession thereof to itsowner, defendant Provident International Resources, Inc. (PIRC), and was issuedafter the trial court had: (a) handed down an order dismissing the case for want of

jurisdiction over the subject matter; (b) given due course to the appeal of PARAÑAQUE from such dismissal; and (c) directed the transmittal of the entirerecord of the case to the Court of Appeals.

We resolved to give due course to the petition after petitioner PIRC filed its reply tothe private respondent's comment on the petition.

The factual and procedural antecedents in this case, as gathered from the originalrecord of CA-G.R. SP No. 32672, the p leadings of the parties, and the decision andamended decision of the Court of Appeals, are not complicated.

On 28 April 1993, PARAÑAQUE filed Civil Case No. 93-1412 with the RTC of Makatifor the expropriation of certain parcels of land covered by Transfer Certificate of

Title Nos. 58641, 58604, 63460, 44745, and 48033, with a total area of 68,151square meters, located at Likod Ibayo, Barangay Sto. Niño, Ninoy Aquino Avenue,Parañaque, Metro Manila. These lots belonged to PIRC and were to be used as thesite for a new municipal building. PARAÑAQUE claimed that it offered to buy theproperty for P54,520,800.00 based on the fair market value stated in the taxdeclarations, but PIRC refused to sell. The case was raffled to Branch 61 of the said

court, but on motion of PARAÑAQUE, the case was transferred to the RTC of Parañaque, then presided by Judge Octavio Astilla.

On 13 May 1993, PARAÑAQUE deposited with the Philippine National Bank (PNB) theamount of P8.1 million, or fifteen percent (15%) of P54,520,800.00, pursuant toSection 19 3 of the Local Government Code of 1991 (R.A. No. 7160, hereinafterLGC). It then filed an ex-parte motion for the issuance of a writ of possessionpursuant to said Section 19.

On 17 May 1993, the RTC of Parañaque granted the motion for a writ of possessionand ordered: (a) the Municipal Treasurer of Parañaque to hold the money in trust for

the court and to disburse it only upon a court order; and (b) the deputy sheriff of Branch 77 of the Metropolitan Trial Court (MeTC) of Parañaque to personally serve acopy of the complaint on PIRC and to place PARAÑAQUE is possession, control, anddisposition of the lots in question.

On 18 May 1993, PARAÑAQUE was placed in possession of the lots.

On 28 June 1993, Judge Astilla, on motion of PIRC, inhibited himself from the caseand ordered the return of the case to the Executive Judge for re-raffle. Although hecase was re-raffled to Branch 60, it was returned to Branch 61 of the RTC of Makati,presided by Judge Fernando V. Gorospe, Jr.

On 19 July 1993, PIRC moved for reconsideration of the 17 May 1993 order of theRTC of Parañaque and prayed that PARAÑAQUE be ordered to vacate the lots on thefollowing grounds: (1) the 17 May 1993 order violated PIRC's fundamental right todue process as it was given no notice nor opportunity to be heard before it wasdeprived of its property; (2) there was no appropriation ordinance nor certificationas to the availability of "unobligated" funds for the expropriation of the lots; (3) themandatory legal requirements for the immediate taking of possession of the lotswere not fulfilled; (4) Section 19 of the LGC 4 is unconstitutional; (5) absence of anordinance providing for the expropriation of the lots; (6) lack of a valid and definiteoffer previously made to PIRC; (7) lack of necessity for the expropriation of PIRC'slots considering the availability of other parcels of land suitable for PARAÑAQUE'spurpose; (8) the expropriation violates the national policy of encouraging privateinvestments; (9) failure to implead the Republic of the Philippines which, through thePresidential Commission of Good Government (PCGG), had sequestered the lots inquestion; and (10) lack of jurisdiction because the lots in question were also thesubject of an action pending before the Sandiganbayan.

On 10 August 1993, the RTC of Makati (Branch 61 Judge Gorospe) considered themotion for reconsideration submitted for resolution with respect to the ground of lack of jurisdiction, but deferred resolution of the other arguments.

On 17 August 1993, the RTC of Makati (Branch 61) granted PIRC's motion forreconsideration and dismissed the case for lack of jurisdiction as the lots to beexpropriated were in custodia legis, being sequestered by the PCGG and involved ina case pending before the Sandiganbayan. It also set aside the previous order of 17May 1993 granting the petitioner's ex parte motion for the issuance of a writ of possession, and ordered the Deputy Sheriff to "maintain a [sic] status quo ante sinceit appears on record that this court has not yet issued the corresponding writ of possession to implement and enforce said order of 17 May 1993."

On 23 August 1993, PARAÑAQUE moved for reconsideration of the 17 August 1993order. On the other hand, PIRC filed an urgent ex parte motion for an order directingPARAÑAQUE to vacate the lots and surrender them to PIRC.

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On 31 August 1993, Judge Gorospe, upon PARAÑAQUE's motion, inhibited himself and ordered the case re-raffled. The case was eventually assigned to Branch 133 of the RTC of Makati, presided by Judge Ruben A. Mendiola. 5

On 22 October 1993, Branch 133 of the RTC of Makati, per Judge Mendiola, issuedand order 6 denying PARAÑAQUE's motion for reconsideration and directingPARAÑAQUE and its agents to vacate the lots and surrender possession to PIRCwithin five days from notice.

On 27 October 1993, PARAÑAQUE filed its Notice of Appeal 7 from the orders of 17

August 1993 and 22 October 1993.

On 29 October 1993, Branch 133 of the RTC of Makati issued andorder 8 giving duecourse to PARAÑAQUE's appeal and ordering the transmittal of "the entire records"of Civil Case No. 93-1412 to the Court of Appeals for further proceedings.

On 4 November 1993, PIRC filed a motion for the issuance of a writ implementingthe order to vacate and the appointment of a special sheriff. 9 Forthwith, and oneven date, the RTC of Makati (Branch 133) gave PARAÑAQUE a period of five daysfrom receipt of the order within which to file its Comment/Opposition to the motion.10

On 10 November 1993, PARAÑAQUE manifested 11 that the trial court had lost jurisdiction over the case "after November 6, 1993 with the perfection of [PARAÑAQUE's] appeal by the filing of its notice of appeal on 27 October 1993before the 15-day period for appeal expired." Hence, no longer could the court acton PIRC's motion for an order to vacate, which PARAÑAQUE pointed out, was not amotion for execution pending appeal; and even assuming otherwise, no good reasonwas cited in the motion to justify its grant. Nevertheless, PARAÑAQUE asked the trialcourt "should [it] be [so] minded, before transmittal of the entire records to theCourt of Appeals, to reverse or reconsider its appealed order due to the superveningevent of a Sandiganbayan denial . . . of the PCGG motion for reconsideration of itsdecision lifting the sequestration . . . ."

On 11 November 1993, PARAÑAQUE filed a manifestation calling the trial court'sattention to the fact that up to said date, the record of the case had not beentransmitted to the Court of Appeals. 12

On 16 November 1993, Branch 133 of the RTC of Makati issued an order 13 denyingPARAÑAQUE's "prayer for reversal or second reconsideration of the August 17, 1993order," contained in its Manifestation filed on 10 November 1993, but grantingPIRC's motion for the issuance of a writ implementing the order to vacate which thecourt deemed a motion for execution pending appeal. It then ordered the issuanceof a writ of execution upon PIRC's filing of a bond of P1 million, and appointed aspecial sheriff to implement the writ by ejecting PARAÑAQUE from the subjectproperty and placing PIRC in physical possession thereof.

PARAÑAQUE then filed with this Court a special civil action for certiorari andprohibition, docketed as G.R. No. 112442, to annul the orders of the trial court of 17August 1993, 22 October 1993, and 16 November 1993. On 23 November 1993, thisCourt referred the case to the Court of Appeals, 14 which docketed it as CA-G.R. SPNo. 32672.

It was only on 4 January 1994 when the RTC transmitted to the Court of Appeals therecord of Civil Case No. 93-1412, which, nevertheless, was still undocketed with the

Court of Appeals at the time the challenged Amended Decision in CA-G.R. SP No.32672 was promulgated on 18 October 1994. 15 Parenthetically, it may be notedthat PARAÑAQUE claims in its Memorandum dated 8 December 1995 that the saidappeal remained undocketed "pending elevation by the trial court of the completerecords to the Court of Appeals notwithstanding efforts made by Parañaque toexpedite the appeal." 16

On 31 May 1994, the Court of Appeals rendered its original decision 17 in CA-G.R. SPNo. 32672, dismissing the petition on the ground of forum shopping. It stated thus:

It is evident that the subject of petitioner's appeal and this petition are basically the

same orders issued by the trial court (dated August 17, 1993 and October 22, 1993;the November 16, 1993 order is merely a consequence of the earlier orders).

It is essential for the issuance of a writ of certiorari and prohibition that there be noappeal or any plain, speedy and adequate remedy in the ordinary course of law.(Rule 65, secs. 1 and 2)

In the case at bar, the remedy of appeal was available and in fact had been taken bypetitioner on November 22, 1993. In the language of Collado v. Hernando, 161 SCRA639, 645 (1988), where the petitioner also filed both an appeal and later a petitionfor certiorari, the Supreme Court described this "as a classic case of forum-shoppingwhich this Court definitely cannot and will not countenance."

Our conclusion that petitioner is guilty of forum-shopping and that its petitiontherefore must be dismissed makes it unnecessary for us to discuss the other issuesraised therein. 18

PARAÑAQUE seasonably moved for is reconsideration 19

On 18 October 1994, the Court of Appeals promulgated its challenged AmendedDecision 20 which disposed as follows:

WHEREFORE, the Court GRANTS petitioner's motion for reconsideration dated 27 June 1994. We RECALL and SET ASIDE Our decision promulgated on May 31, 1994.

In lieu thereof, the Court GRANTS the petition for certiorari and prohibition, herebyANNULLING the order dated 11 November 1993, in Civil Case No. 93-1412 of therespondent Court, and permanently enjoining the respondent Court from furtheracting in said case, without prejudice to the final decision in the appeal. 21

In support thereof, it rationcinated as follows:

(8) It was not until January 4, 1994, that the trial court's record was finallytransmitted to this Court.

The case is still undocketed (UDK 9504), for the reason that the appealing party hasnot yet paid the docketing and other legal fees. Moreover, the record is not yetcomplete in that certain transcripts of stenographic notes have not been submitted.

The foregoing circumstances indicate that, indeed, the filing of an appeal was aninadequate remedy, and that the continuance of the proceedings in the trial courtwould have been an oppressive exercise of authority, which this Court, as theappellate Court, could not have stopped for the reason that the case was then notyet elevated to it. In fact, it was not until about two and a half (2 1/2) months fromthe filing of the notice of appeal, and about one and a half (1 1/2) month after the

21



filing of this case on November 22, 1993, that the record of the trial court wasforwarded to this Court on appeal. Hence, the certification on non-forum shoppingshould be taken as technically correct.

Xxx xxxxxx

What is more, appeal having been perfected, the trial court should not have orderedthe execution of its order to eject the plaintiff from the subject property. Even then,there is still a question as to its jurisdiction over the subject matter of the case. Theorder dated November 11, 1993, was issued precipitately, and with grave abuse of

discretion amounting to lack or excess of jurisdiction. 22

Its motion for reconsideration 23 of the abovementioned Amended Decision havingbeen denied on 16 February 1995, 24 PIRC filed this petition wherein it contendsthat the Court of Appeals erred in: (1) failing to dismiss PARAÑAQUE's special civilaction for certiorari and prohibition on the ground of forum-shopping; (2) concludingthat PARAÑAQUE could avail itself of the extraordinary remedy of certiorari; and (3)ruling that the RTC issued the writ for the execution pending appeal of the order tovacate precipitately or with grave abuse of discretion. 25

The subject of PARAÑAQUE's petition for certiorari (CA-G.R. SP No. 32672) was theannulment of the following: (1) the order of 17 August 1993 dismissing thecomplaint for expropriation filed by it; (2) the order of 22 October 1993 denying themotion for reconsideration of the order of dismissal and directing PARAÑAQUE tovacate the premises and to peacefully surrender the possession thereof to PIRC; and

(3) the order of 16 November 1993 granting PIRC's motion for the issuance of a writof execution to implement the order to vacate.

It must be pointed out that the first two orders were the subject of the ordinaryappeal interposed by PARAÑAQUE. It would appear from the language of Section 1,Rule 65 of the Rules of Court that the availability of the right to appeal precludesrecourse to the special civil action for certiorari. 26 However, it is settled, as ageneral proposition, that the availability of an appeal does not foreclose recourse tothe extraordinary remedies, such as certiorari and prohibition, where appeal is notadequate or equally beneficial, speedy and sufficient, 27 as where the orders of thetrial court were issued in excess of or without jurisdiction; 28 or there is need topromptly relieve the aggrieved party from the injurious effects of the acts of aninferior court or tribunal, e.g., the court has authorized execution of the judgment.29

Under the peculiar, nearly bizarre circumstances obtaining in this case, the inclusionof these two orders in the special civil action for certiorari does not defeat thepropriety nor viability of the special civil action for certiorari solely on the ground of forum shopping. For one, the said special civil action primarily attacks the 16November 1993 order for having been issued without or in excess of jurisdiction orwith grave abuse of discretion. This order was not, and could not have been, thesubject of the notice of appeal, as it was issued only nineteen days after the trialcourt had given due course to the appeal and ordered the transmittal of the entirecase record to the Court of Appeals. At that time, PARAÑAQUE had no otheravailable plain, speedy, and adequate remedy in the ordinary course of law againstthe order directing execution of the order to vacate, except a special civil action forcertiorari under Section 1, Rule 65 of the Rules of Court.

In this regard, an appeal was obviously inadequate as the trial court evenunreasonably and unjustly delayed the transmittal of the case record to the Court of

Appeals in connection with the appeal interposed against the orders of 17 August1993 and 22 October 1993, despite the appellate court's 29 October 1993 order forsuch transmittal. Moreover, the RTC initially transmitted an incomplete record of 4

January 1994, hence, the case remained undocketed a fact disclosed by both thechallenged Amended Decision and PARAÑAQUE's Memorandum dated 8 December1995. 30 This delay then provided PARAÑAQUE a valid reason to likewise challenge,in the same certiorari proceeding, the orders of 17 August 1993 and 22 October1993, which are inexorably linked to the 16 November 1993 order. As we see it, thetrial court allowed itself to be privy to a scheme to obstruct the course of theordinary appeal and to deprive PARAÑAQUE of its possession of the lots which it hadobtained on 18 May 1993 after it had deposited the required amount which entitled

it to immediate possession of the properties. Under this anomalous set of circumstances which the trial court itself created, we find no cogent reason to inflictupon PARAÑAQUE the extreme penalty for forum-shopping.

There can, however, be no question as to the trial court's authority to act uponPIRC's motion, filed within the period to appeal, for the issuance of a writimplementing the order to vacate issued on 22 October 1993. Such a motion cannotbe characterized as anything but a motion for execution pending appeal, andpursuant to Section 2, Rule 39 of the Rules of Court, such may be filed before theexpiration of the period to appeal, i.e., fifteen days counted from notice of the 22October 1993 order. 31

An appeal from such order of execution of 22 October 1993 would be deemedperfected not by the filing of the notice to appeal by one party, but upon theexpiration of the last day to appeal by any party. 32

According to PARAÑAQUE, its last day to file the Notice of Appeal was on 6November 1993 as it received a copy of the 22 October 1993 order on the latterdate. 33 Assuming that PIRC likewise received a copy of the 22 October 1993 orderon the said date, its last day to appeal, if it were so minded, was also on 6November 1993. Accordingly, although PARAÑAQUE filed its notice of appeal on 27October 1993, that appeal was not yet perfected because PIRC had until 6November 1993 to file its notice of appeal if it so desired. The legal effect of PARAÑAQUE's filing its notice of appeal on 27 October 1993 was merely to renderthe clause, "upon the expiration of the last day to appeal by any party," 34inapplicable to PARAÑAQUE, but not to PIRC. 35 PIRC may then, at any time before 6November 1993, have filed a motion for a writ to implement the 22 October 1993order to vacate.

It is settled that a court may take cognizance of a motion for execution pendingappeal filed by a party within its period to appeal, 36 as the filing of an appeal by alosing party does not automatically divest the adverse party of the right to ask forexecution pending appeal. 37 Thus, the trial court's 29 October 1993 order givingdue course to PARAÑAQUE's appeal and for the transmittal of the record of the caseto the Court of Appeals was inconsequential, 38 for, despite that, PIRC had the rightto file a motion for the execution of the order to vacate on or before 6 November1993, and the trial court could validly act thereon even after the expiration of theperiod to appeal or perfection of the appeal, but before the transmittal of the recordof the case to the appellatecourt. 39

The remaining issue for resolution is whether the trial court acted in excess of jurisdiction or with grave abuse of discretion in granting the motion for a writ toimplement the order to vacate. We agree with the Court of Appeal's affirmativeconclusion thereto, but not for the reasons relied upon.

22



Section 2, Rule 39 of the Rules of Court provides:

Sec. 2 Execution pending appeal. On motion of the prevailing party with notice tothe adverse party, the court may in its discretion, order execution to issue beforethe expiration of the time to appeal, upon good reasons to be stated in a specialorder. If a record on appeal is filed thereafter, the motion and the special order shallbe included therein.

Obviously, the execution of judgment pending appeal is an exception to the generalrule and must, therefore, be strictly construed. 40 While the grant thereof isdiscretionary, the aforesaid Section 2 prescribes the following requisites for the valid

exercise of the discretion: (a) there must be a motion by the prevailing party withnotice to the adverse party; (b) there must be a good reason for execution pendingappeal; and (c) the good reason must be stated in a special order. 41

Our examination of PIRC's motion for the issuance of a writ implementing the orderto vacate and the appointment of the special sheriff 42 shows that it contained nonotice of hearing to PARAÑAQUE. The notice was a request directed to the Clerk of Court to submit the motion to the court for its consideration and approval"immediately upon receipt thereof," which reads in full as follows:

The Clerk of CourtRegional Trial CourtNational Capital Judicial RegionMakati, Branch 133

Greetings:

Please submit the foregoing motion for the consideration and approval of theHonorable Court immediately upon receipt hereof.

(Sgd.) Ma. Dolores T. Syquia

(Typ.) MA. DOLORES T. SYQUIA

A notice of hearing addressed to the Clerk of Court, and not to the parties, is notnotice at all. Accordingly, a motion that does not contain a notice of hearing to theadverse party is nothing but a mere scrap of paper. 43 The Clerk of Court did noteven have the duty to accept it, much more to bring it to the attention of thePresiding Judge. Yet, the former did. Worse, the latter not only gave it undueattention, forthwith on the date the motion was filed he issued an order givingPARAÑAQUE five days from receipt of the order within which to file itscomment/opposition to the motion, after which the motion would be deemedsubmitted for resolution, with or without such comment/opposition.

By overlooking the mandatory rule on notice to the adverse party in Section 2, Rule39 of the Rules of Court, a positive duty imposed upon the movant, and byaccording value to a mere scrap of paper by "curing" its fatal defect by means of theorder to serve as notice to PARAÑAQUE, the trial court clearly acted with graveabuse of discretion.

Since the motion in question was a mere scrap of paper for want of mandatorynotice, it must be deemed, for all legal intents and purposes, as if it were not filed;hence, it did not suspend the running of PIRC's period to appeal. As stated earlier, amotion for execution pending appeal must be filed within the period to appeal. Itfollows that none was properly filed by PIRC and the trial court had nothing to validly

act upon. When it did through its order of 16 November 1993, it was nothing short of grave abuse of discretion.

To these must be added the palpable absence of any good reason to justifyexecution pending appeal.

In the challenged order of 16 November 1993, the trial judge stated the following asthe reasons:

In the subject incident, defendant alleges and explains that "the continuedpossession of the Municipality of defendant's property has caused and will continue

to cause great damage to defendant." It is also to be mentioned that the takeover of the subject property by plaintiff was done pursuant to proceeding which was void,meaningless and ineffectual, considering that the court has not acquired jurisdictionover the subject matter thereof. These and the fact the implementation of theCourt's order to vacate will not result to the loss of the plaintiff, as it will only restorethe subject property to its status quo ante, are reasons that the court sees to begood enough to merit the granting of the relief prayed for. Nevertheless, the Courtwould impose an additional requirement that defendant should first post a bond,before the writ prayed for should issue. 44

Good reasons that allow or justify execution pending appeal must be superiorcircumstances demanding urgency which will outweigh the injury or damage shouldthe losing party secure a reversal of the judgment. 45

The above "reasons" relied upon by the trial court hardly qualify as "good." In the

first place, PIRC did not offer any evidence to prove the "great damage" it alleged inits motion. Second, the issue of whether the trial court had jurisdiction over theexpropriation case or whether the proceedings earlier had therein were "void,meaningless, and ineffectual" was the pivotal issue in the appeal interposed byPARAÑAQUE, and the trial court acted improperly in making such a sweepingpronouncement after it had already given due course to PARAÑAQUE's appeal.Moreover, the case below is an expropriation case and PARAÑAQUE was placed inpossession of the property as early as 18 May 1993 after it had deposited therequired amount pursuant to Section 19 of the LGC. Public interest was clearlyinvolved, thus prudence and utmost circumspection, instead of undue haste, shouldhave guided the trial court away from capriciousness.

The bond in the amount of P1,000,000.00 which the trial court also required forexecution of the order to vacate did not make up for the absence of any goodreason for the execution pending appeal. It is settled that the filing of a bondcannot, by itself, entitle one to execution pending appeal. 46

WHEREFORE, for want of merit, the instant petition is hereby DENIED, with costsagainst the petitioner.

SO ORDERED.

Hearing of Motions, Rule 15, Sec. 4, 7Sec. 7. Motion day. Except for motions requiring immediate action, all

motions shall be scheduled for hearing on Friday afternoons, or if

Friday is a non-working day, in the afternoon of the next working day.

Orosa V. Court of Appeals, 261 SCRA 376Orosa vs CA (Bertan Press)

261 SCRA 37623



Bellosillo, J.; September 3, 1996

NATUREReview on Certiorari

FACTSRTC Manila- Complaint for sum of money filed by Bertan Press against petitioners. Summonseswere issued but were served through the secretary of the petitioners on February 6,1993- Petitioners filed motion for additional time on February 24, 1993.

- Private respondents moved to have petitioners declared on default for failure to fileanswer within the reglementary period which motion the court granted on March 8.- Petitioners filed motion for reconsideration together with their answer on March 30,1993.- Motion for reconsideration denied and answer was expunged from the record onMarch 22, 1994.CA- Petitioners filed petiton for certiorari under Rule 65 on April 19, 1994 with the CAwhich it dismissed on October 18, 1994.- Motion for reconsideration denied on January 20, 1995SC- Petitioners filed petiton for review.- Contention is that there was no valid service of summons on petitioners as there isshowing that earnest efforts were exerted to serve summons on them personally.Hence, jurisdiction was never acquired over the petitioners by the lower court under

Sections 7 and 8 of Rule 14 which read as follows:

Sec. 7. Personal service of summons. - The summons shall be served by handing acopy thereof to the defendant in person, or, if he refuses to receive it, by tenderingit to him.

Sec 8. Substituted service. - If the defendant cannot be served within a reasonabletime as provided in the preceding section, service may be effected (a) by leavingcopies of the summons at the defendant's dwelling house or residence with someperson of suitable age and discretion then residing therein, or (b) by leaving thecopies at defendant's office or regular place of business with some competentperson in charge thereof.

ISSUE/SWON service of summons on petitioners was proper

HELDNo. The service of summons was defective as the sheriff’s return is bereft of anyparticulars on the impossibility of personal service on petitioners within a reasonabletime. However, they are deemed to have waived any flaw in the court's jurisdictionarising from a defective service of summons. For, instead of entering a specialappearance questioning the propriety of the service of summons, hence, theexercise of Jurisdiction by the trial court over petitioners, they filed a motion for additional time to file answer on 24 February 1993, which was beyond thereglementary period. In effect, they voluntarily submitted to the Jurisdiction of thecourt. Consequently, whatever defect there was in the mode of service of summonswas deemed waived and the court acquired Jurisdiction over the persons of

petitioners by their voluntary submission thereto.

Disposition Petition is denied

Dissent by Vitug:

"The summons must be served to the defendant in person. It is only when thedefendant cannot be served personally within a reasonable time that a substitutedservice may be made. Impossibility of prompt service should be shown by statingthe efforts made to find the defendant personally and the fact that such effortsfailed. This statement should be made in the proof of service. This is necessarybecause substituted service is 'in derogation of the usual method of service. It hasbeen held that this method of service is' in derogation of the common law; it is amethod extraordinary in character, and hence maybe used only as prescribed and in

the circumstances authorized by statute.' Thus, under the controlling decisions, thestatutory requirements of substituted service must be followed strictly, faithfully andfully, and any substituted service other than that authorized by the statute isconsidered ineffective."Indeed, the constitutional requirement of due process requires that the service besuch as may be reasonably expected to give the desired notice to the party of theclaim against him."

The fact that the defendants later submitted a motion for additional time withinwhich to file their answer to the complaint should not be deemed a waiver of thedefective service of summons except only from the date of such submission orvoluntary appearance since it was only then when Jurisdiction over their personscould be deemed to have been lawfully acquired by the court.

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Documents

Summons Notes