Valiant Notes

7/25/2019 Valiant Notes

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PRUDENTIAL BANK VS. MAGDAMIT, JR.G.R. NO. 183795 NOVEMBER 12, 2014

In Manotoc v. Court of Appeals,22we have succinctly discussed a validresort to substituted service of summons:

We can break down this section into the followin re!uirements toeffect a valid substituted service:

"#$ Impossibility of %rompt %ersonal &ervice'he party relyin on substituted service or the sheriff must show thatdefendant cannot be served promptly or there is impossibility ofprompt service. &ection (, )ule #* provides that the plaintiff or thesheriff is iven a +reasonable time+ to serve the summons to the

defendant in person, but no specific time frame is mentioned.+)easonable time+ is defined as +so much time as is necessary underthe circumstances for a reasonably prudent and dilient man to do,conveniently, what the contract or duty re!uires that should be done,havin a reard for the rihts and possibility of loss, if any, to theother party.+ nder the )ules, the service of summons has no setperiod.-owever, when the court, clerk of court,or the plaintiff asks the sheriffto make the return of the summons and the latter submits the return

of summons, then the validity of the summons lapses. 'he plaintiffmay then ask for an alias summons if the service of summons hasfailed. What then is a reasonable time for the sheriff to effect apersonal service in order to demonstrate impossibility of promptservice 'o the plaintiff, +reasonable time+ means no more thanseven "/$ days since an e0peditious processin of a complaint iswhat a plaintiff wants. 'o the sheriff, +reasonable time+ means #1 to3 days because at the end of the month, it is a practice for thebranch clerk of court to re!uire the sheriff to submit a return of thesummons assined to the sheriff for service. 'he &heriff4s )eturn

provides data to the Clerk of Court, which the clerk uses in theMonthly )eport of Cases to be submitted to the 5ffice of the Court

Administrator within the first ten "#3$ days of the succeedin month.'hus, one month from the issuance of summons can be considered+reasonable time+ with reard to personal service on the defendant.&heriffs are asked to dischare their duties on the service ofsummons with due care, utmost dilience, and reasonablepromptness and speed so as not to pre6udice the e0peditiousdispensation of 6ustice. 'hus, they are en6oined to try their best efforts

to accomplish personal service on defendant. 5n the other hand,since the defendant is e0pected to try to avoid and evade service ofsummons, the sheriff must be resourceful, perseverin, canny, anddilient in servin the process on the defendant. 7or substitutedservice of summons to be available, there must be several attemptsby the sheriff to personally serve the summons within a reasonableperiod 8of one month9 which eventually resulted in failure to prove
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impossibility of prompt service. +&everal attempts+ means at leastthree "$ tries, preferably on at least two different dates. In addition,the sheriff must cite why such efforts were unsuccessful. It is onlythen that impossibility of service can be confirmed or accepted."2$ &pecific etails in the )eturn'he sheriff must describe in the )eturn of &ummons the facts andcircumstances surroundin the attempted personal service. 'heefforts made to find the defendant and the reasons behind the failuremust be clearly narrated in detail in the )eturn.'he date and time ofthe attempts on personal service, the in!uiries made to locate thedefendant, the name;s of the occupants of the alleed residence orhouse of defendant and all other acts done, thouh futile, to serve thesummons on defendant must be specified in the )eturn to 6ustifysubstituted service. 'he form on &heriff4s )eturn of &ummons on

&ubstituted &ervice prescribed in the -andbook for &heriffs publishedby the %hilippine ,#>(> re!uires that +impossibility of prompt service should be shownby statin the efforts made to find the defendant personallyand thefailure of such efforts,+ which should be made in the proof of service."$ A %erson of &uitable Ae and iscretionIf the substituted service will be effected at defendant4s house or

residence, it should be left with a person of +suitable ae anddiscretion then residin therein.+ A person of suitable ae anddiscretion is one who has attained the ae of full leal capacity "#(years old$ and is considered to have enouh discernment tounderstand the importance of a summons. +iscretion+ isdefined as+the ability to make decisions which represent a responsible choiceand for which an understandin of what is lawful, riht or wise may bepresupposed+. 'hus, to be of sufficient discretion, suchperson mustknow how to read and understand ?nlish to comprehend the importof the summons, and fully reali@e the need to deliver the

summonsand complaint to the defendant at the earliest possible timefor the person to take appropriate action. 'hus, the person must havethe +relation of confidence+ to the defendant, ensurin that the latterwould receive orat least be notified of the receipt of the summons.'he sheriff must therefore determine if the person found in thealleed dwellin or residence of defendant is of leal ae, what therecipient4s relationship with the defendant is, and whether said personcomprehends the sinificance of the receipt of the summons and hisduty to immediately deliver it to the defendant or at least notify the

defendant of said receipt of summons. 'hese matters must be clearlyand specifically described in the )eturn of &ummons."*$ A Competent %erson in ChareIf the substituted service will be done at defendant4s office or reularplace of business, then it should be served on a competent person inchare of the place. 'hus, the person on whom the substitutedservice will be made must be the one manain the office or business


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of defendant, such as the president or manaer and such individualmust have sufficient knowlede tounderstand the obliation of thedefendant in the summons, its importance, and the pre6udicial effectsarisin from inaction on the summons. Aain, these details must becontained in the )eturn.2"?mphasis and underscorin suppliedcitations omitted$'he service of summons on Madamit, &r. failed to comply with therule laid down in Manotoc. 'he resort to substituted service after 6usttwo "2$ attempts to personally serve the summons on Madamit, &r.,is premature under our pronouncement that:What then is a reasonable time for the sheriff to effect a personalservice in order to demonstrate impossibility of prompt service 'othe plaintiff, +reasonable time+means no more than seven "/$ dayssince an e0peditious processin of a complaint is what a plaintiff

wants. 'o the sheriff, +reasonable time+ means #1 to 3 days becauseat the end of the month, it is a practice for the branch clerk of court tore!uire the sheriff to submit a return of the summons assined to thesheriff for service. 'he &heriff4s )eturn provides data to the Clerk ofCourt, which the clerk uses in the Monthly )eport of Cases to besubmitted to the 5ffice of the Court Administrator within the first ten"#3$ days of the succeedin month. 'hus, one month from theissuance of summons can be considered +reasonable time+ withreard to personal service on the defendant.2*

'hen too, the proof of service failed to specify the details of theattendant circumstances. 'he )eturn merely e0pressed a eneralstatement that because the &heriff failed to reachMadamit, &r., heelected substituted service of summons. 'he )eturn failed to statethe impossibility to serve summons within a reasonable time. And thefurther defect in the service was that the summons was served on aperson not of sufficient discretion, an incompetent person, MadelMaalona, a housemaid of Madamit &r.4s dauhter, Arleen MarieCabu.&imilar to the case of Madamit, &r., the service of summons on

Madamit,


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processes personally to defendant;s herein the same proved futile,+without any statement on the impossibility of service of summonswithin a reasonable time. 7urther, the summons was served on acertain araCabu, a person not of suitable ae and discretion, whois unauthori@ed to receive the same.=otably, the re!uirement additionally is that'hus, to be of sufficient discretion, such person must know how toread and understand ?nlish to comprehend the import of thesummons, and fully reali@e the need to deliver the summons andcomplaint to the defendant at the earliest possible timefor the personto take appropriate action. 'hus, the person must have the +relationof confidence+ to the defendant, ensurin that the latter would receiveor at least be notified of the receipt of the summons. 'he sheriff musttherefore determine if the person found in the alleed dwellin or

residence of defendant is of leal ae, what the recipient4srelationship with the defendant is, and whether said personcomprehends the sinificance of the receipt of the summons and hisduty to immediately deliver it tothe defendant or at least notify thedefendant of said receipt of summons. 'hese matters must be clearlyand specifically described in the )eturn of &ummons. 2/

'he readily acceptable conclusion inthis case is that the processserver at once resorted to substituted service of summons withoute0ertin enouh effort to personally serve summons on respondents.

In &ps.


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&ection ##, )ule #* of the )ules ofCourt provides the rule on serviceof summons upon a 6uridical entity. It provides that summons may beserved upon a 6uridical entity only throuh its officers. 'hus:&ec. ##. &ervice upon domestic private 6uridical entity. G When thedefendant is a corporation, partnership or association orani@edunder the laws of the %hilippines with a 6uridical personality, servicemay be made on the president, manain partner, eneral manaer,corporate secretary, treasurer, or inHhouse counsel.We have already established that the enumeration in &ection ## of)ule #* is e0clusive.#32&ervice of summons upon persons other thanthose officers enumerated in &ection ## is invalid.#3?ven substantialcompliance is not sufficient service of summons.#3*

'his provision of the rule does not limit service to the officers4 placesof residence or offices. If summons may not be served upon these

persons personally at their residences or offices, summons may beserved upon any of the officers wherever they may be found.-ence, petitioner cannot use respondentFs failure to amend its

Articles of Incorporation to reflect its new address as an e0cuse fromsendin or attemptin to send to respondent copies of the petitionand the summons. 'he )ules of Court provides that noticesshould besent to the enumerated officers. %etitioner failed to do this. =onoticewas ever sent to any of the enumerated officers.%etitioner insists that it should not be made to in!uire further as to the

whereabouts of respondent after the attempt to serve the summonsby reistered mail to respondent4s address as alleedly indicated inits Articles of Incorporation. 'he )ules does not provide that it needsto do so. -owever, it provides for service by publication. &ervice bypublication is available when the whereabouts of the defendant isunknown. &ection #*, )ule #* of the )ules of Court provides:&ec. #*. &ervice upon defendant whose identity or whereabouts areunknown. G In any action where the defendant is desinated as anunknown owner, or the like, or whenever his whereabouts areunknown and cannot be ascertained by dilient in!uiry, service may,

by leave of court, be effected upon him by publication in a newspaperof eneral circulation and in such places and for such time as thecourt may order. "?mphasis supplied$'his is not a matter of ac!uirin6urisdiction over the person ofrespondent since this is an action in rem. In an action in rem,

6urisdiction over the person is not re!uired as lon asthere is6urisdiction over the res. 'his case involves the issue of fair play andensurin that parties are accorded due process.In this case, petitioner served summons upon respondent by

reistered mail and, alleedly, by personal service at the officeaddress indicated in respondent4s Certificate of )eistration.&ummons was not served upon respondent4s officers. It was also notpublished in accordance with the )ules of Court. As a result,respondent was not iven an opportunity to present evidence, andpetitioner was able to obtain from the )eional 'rial Court an ordercancellin respondent4s annotations of adverse claims.
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)espondent was, therefore, not validly served with summons.II

)espondent4s alleed nonHoperation does not bar it fromauthori@in a person to act on

its behalf in courtproceedins

%etitioner arues that failure to serve the summons upon respondentwas due to respondentFs nonHoperation and failure to amend its

Articles of Incorporation to reflectits new address. %etitionerFsconclusion that respondent was no loner operatin was based onlyon the postmasterFs certification. Accordin to the postmaster4scertification, it failed to serve the petition for cancellation of annotationto respondent4s official address becauseof respondent4s none0istence

or closure. %etitioner failed to consider that the postmaster was not inthe position to make a reliable statement as to the e0istence orclosure of an entity.Moreover, the Cooperative evelopment AuthorityFs certificationstatin that respondent was not submittin any financial report since#>>2, which was proof of its nonHoperation, was a mere statement ofwhat was indicative of nonHoperation. It was not yet a conclusivestatement that respondent was not in operation.In any case, even assumin that respondent was not operatin, it

miht still e0ercise its powers as a cooperative until it would etdissolved. &ection > of )epublic Act =o. B>( provides the powersand capacities of reistered cooperatives.&ection >. Cooperative %owers and Capacities.H A cooperativereistered under this Code shall have the followin powers andcapacities:

"#$ 'o sue and be sued in its cooperative name"2$ 5f succession"$ 'o amend its articles of cooperation in accordance with theprovisions of this code

"*$ 'o adopt byHlaws not contrary to law, morals or public policy,and to amend and repeal the same in accordance with thisCode"1$ 'o purchase, receive, take orrant, hold, convey, sell, lease,plede, mortae, and otherwise deal with such real andpersonal property as the transaction of the lawful affairs of thecooperative may reasonably and necessarily re!uire, sub6ect tothe limitations prescribed by law and the Constitution"B$ 'o enter into division, mereror consolidation, as provided in

this Code"/$ 'o 6oin federations or unions, as provided in this Code"($ 'o accept and receive rants, donations and assistancefrom forein and domestic sources and">$ 'o e0ercise such other powers ranted in this Code ornecessary to carry out its purpose or purposes as stated in itsarticles of cooperation.


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%rior to dissolution, a cooperative isentitled to the e0ercise of thesepowers. It may enae indeals involvin its properties or rihts. Itmay cause the annotation of claims it deems to have in order toprotect such claim. Contrary to petitioner4s claim, respondent is notprevented from authori@in persons to act on its behalf.In any case, even if petitioner alleed that respondent was alreadydissolved by virtue of a =ovember/, 2332 resolution of Cooperativeevelopment Authority, the relevant acts of respondent had occurredbefore such resolution.'he resolution of the issue of representation could have facilitated theresolution of the case on the merits.

SAAGUN VS. COURT O( APPEALSG.R. N$. 78328 J%)* 3, 1991

'here is no !uestion that the facts of the present case warrante0traterritorial service of summons as authori@ed by &ection #/, )ule#* of the )ules of Court. Admittedly, one of the defendants, Abel&ahaun, has left the %hilippines and has been residin somewherein the nited &tates. %er the certification of the Commission onImmiration and eportation dated (, Abel &ahaun lefton April 2, #>/(2*hence he was a nonresident defendant at the timeprivate respondent brouht suit in the court below. Also, since the suit

involves real property wherein said defendant ostensibly has aninterest and which property has in fact been attached at the instanceof private respondent, the courta quocorrectly ordered service ofsummons on said defendant out of the %hilippines, adoptin for suchservice one of the modes authori@ed by the aforecited provision of the)ules, that is, +by publication in a newspaper of eneral circulation insuch places and for such time as the court may order.+It was posited durin the deliberations on this case that suchpublication of summons in a local newspaper, as sanctioned by thetrial court, was wron and that the publication should have been

made in a newspaper published in the state and county of the nited&tates where Abel &ahaun now alleedly resides. &uch publicationin a forein newspaper, it is claimed, would most likely ive notice tothe person to be served, althouh it is also conceded that suchcondition has not been incorporated in &ection #/ of )ule #*. Webelieve, however, that such a sweepim doctrine would virtuallyunsettle a lon standin interpretation of the aforesaid rule one0traterritorial service of summons by publication, as well as itsimplementation sanctioned by the practice followed in this

6urisdiction.1wphi1

'rue it is that there is no specific proscription aainst resortin topublication of summons in a forein publication circulatin in theplace where the defendant resides. 'o illustrate, in Tolaram Menghravs. Bulchand Tarachand, et al.21it is reported that the summonstherein was served by publication in the territory of -awaii where thedefendant resided. -owever, as early as the case of El Banco
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Espaol-Filipino vs. alanca, etc.2Bwhere the defendant mortaorhad returned to the City of Amoy, China and was residin thereinwhen the foreclosure suit was instituted aainst him, the lower courtordered the publication of summons in a newspaper in the City ofManila, and the service of a copy thereof to the last known address ofdefendant in accordance with the provisions of &ections >( and >>of the Code of Civil %rocedure, which provisions have beenreproduced in the aforestated &ection #/, )ule #* of the #>B* )ulesof Court.While what was involved in the aforesaid case was a foreclosureproceedin and the present case is based on the attachment ofdefendantFs property here, the difference is inconse!uential. In bothcases, the actions are quasi in rem2/since, in the lanuae of ElBanco Espaol-Filipino,there is an instructive analoy between

foreclosure and attachment proceedins. In both instances, summonsby publication is allowed and the rationale for that is e0plained in saidcase thus:

%assin at once to the re!uisite that the defendant shall havean opportunity to be heard, we observe that in a foreclosure,case some notification of the proceedins to the nonHresidentowner, prescribin the time within which appearance must bemade, is everywhere reconi@ed as essential. 'o answer thisnecessity the statutes enerally provide for publication, and

usually in addition thereto, for the mailin of notice to thedefendant, if his residence is known. 'houh commonly calledconstructive, or substituted service, such notification does notconstitute a service of process in any true sense. It is merely ameans provided by law whereby the owner may be admonishedthat his property is the sub6ect of 6udicial proceedins and that itis incumbent upon him to take such steps as he sees fit toprotect it. . . .

0 0 0 0 0 0 0 0 0It will be observed that this mode of notification does not involve

any absolute assurance that the absent owner shall therebyreceive actual notice. 'he periodical containin the publicationmay never come to his hands, and the chances that he shoulddiscover the notice may often be very sliht. ?ven where noticeis sent by mail the probability of his receivin it, thouh muchincreased, is dependent upon the correctness of the address towhich it is forwarded as well as upon the reularity and securityof the mail service. It will be noted, furthermore, that theprovision of our law relative to the mailin of notice does not

absolutely re!uire the mailin of notice unconditionally and inevery event, but only in the case where the defendantFsresidence is known. In the liht of all these facts, it is evidentthat actual notice to the defendant in cases of this kind is not,under the law, to be considered absolutely necessary.

In !e Midgel" vs. Ferandos, etc., et al.,2(we adverted to thedis!uisition in er#ins vs. !i$on, etc., et al.2>in this wise:
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'his Court clarified that in aquasi in remaction 6urisdiction overthe person of a nonresident defendant is not essential. 'heservice of summons by publication is re!uired +merely to satisfythe constitutional re!uirement of due process+. 'he 6udment ofthe court in the case would settle the title to the shares of stockand to that e0tent it partakes of the nature of a 6udment in rem.Conse!uently, the lower court had 6urisdiction to try the caseeven if it had not ac!uired 6urisdiction over the person of Idonah&lade %erkins. 'he 6udment would be confined to the res. =opersonal 6udment could be rendered aainst the nonHresident.

What further compounds the difficulty in the proposed re!uirement forforein publication of the summons in the case at bar is the fact that itdoes not appear in what state or county of the nited &tates thedefendant Abel &ahaun presently resides. =ecessarily, if the trial

court should be re!uired to resort to publication in a foreinnewspaper it must have at hand not only the name and availability ofsuch newspaper or periodical but also the laws and rules overninthe publication of 6udicial processes and notices in said place. -ere,we only have a defendant in the nited &tates to contend with, butwe can very well anticipate the plethora of problems that would ariseif the same !uestion on nonresident defendants is replicated in theother countries of the world. In this 6urisdiction, at least, we have thecorrespondin reulatory uidelines in %residential ecree =o. #3/>.

In fine. while there is no prohibition aainst availin of a foreinnewspaper in e0traterritorial service of summons, neither should suchpublication in a local newspaper of eneral circulation be altoetherinterdicted since, after all, the rule specifically authori@es the same tobe made in such places and for such time as the court concernedmay order. If it is felt that ad6ective policy would be better served bydenyin such discretion to the trial court, then the correspondinamendment of the present rule would be indicated but sub6ect toempirical proof of the necessity for and the wisdom of such a chane.

Accordinly, for the nonce,the matter should continue to be

addressed to the sound discretion of the trial court in each particularcase since it has the facts before it, and we should interfere only inthe e0ercise of our corrective power over an error or abuse in itsactuations in a specific case. ndeniably, some controversies maypresent factual features which would 6ustify resort to local publicationof summons. 'here is the possibility of debtors escapin the

6urisdiction of our courts throuh the simple e0pedient of seekin aforein refue, probably with their subse!uent whereabouts unknownor unascertainable. 7or that matter, it is on that very rationale that

summons by publication is authori@ed whenever the address of adefendant is unknown and cannot be ascertained by dilient even ifhe is in the %hilippines.We repeat, service of summons on a nonresident defendant who isnot found in the country is re!uired, not for purposes of physicallyac!uirin 6urisdiction over his person but simply in pursuance of there!uirements of fair play, so that he may be informed of the pendency


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of the action aainst him and the possibility that property in the%hilippines belonin to him or in which he has an interest may besub6ected to a 6udment in favor of a resident, and that he maythereby be accorded an opportunity to defend in the action, if he beso minded. 'he only relief that may be ranted in such an actionaainst such a nonresident defendant, who does not choose tosubmit himself to the 6urisdiction of the %hilippine court, is limited tothe res.-owever, despite our holdin that publication in the %hilippines issufficient, the service of summons in this case is still defective, therebein no showin that copies of the summons and the amendedcomplaint were duly served at the defendantFs last known correctaddress by reistered mail, as a complement to the publication 3andin compliance with the order of the lower court dated (B,#as hereinbefore noted. 'he failure to strictly comply correctlywith the re!uirements of the rules reardin the mailin of copies ofthe summons and the order for its publication is a fatal defect in theservice of summons.2As held by to Court:

It is the duty of the court to re!uire the fullest compliance withall the re!uirements of the statute permittin service bypublication. Where service is obtained by publication, the entireproceedin should be closely scrutini@ed by the courts and astrict compliance with every condition of law should be e0acted.

5therwise reat abuses may occur, and the rihts of personsand property may be made to depend upon the elasticconscience of interested parties rather than enlihtened

6udment of the court or 6ude.

'he foreoin notwithstandin, we are not inclined to order thedismissal of the case below for nonHcompliance by private respondentof the trial courtFs order of (B. 'he attachment ofproperty reistered in the name of defendant Abel &ahaun 6ustifiessummons by publication and, althouh that ownership appears to bedisputed and should precisely be a priority concern of the trial court to

resolve, nonetheless aprima %acie6ustification for e0traterritorialservice of summons on said nonresident defendant clearly e0ists.'he erroneous transmission of copies of the summons and thecomplaint to what appears as an incorrect last known address of saiddefendant is a matter which the trial court can more readily ascertainand remedy.It also bears mention that even if said nonresident defendant shouldultimately be declared in default, his interest can be duly representedby the nonHdefaultin defendant since a common cause of action

appears to be involved, which fact may be more ade!uatelydetermined at the trial, and the success of the latter in the suit shallinure to the benefit of the former.*

SPOUSES JOSE VS. SPOUSES BO!ONG.R. N$. 1473+9 O-$*/ 23, 2003
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&alidit" o% the 'ervice o% 'ummons%etitioners aver that the CA erred in rulin that the service ofsummons on respondents was invalid. 'hey submit that althouh thecase filed before the trial court was denominated as an action forspecific performance, it was actually an action !uasi in rem, becauseit involved a piece of real property located in the %hilippines. 'heyfurther arue that in actions !uasi in rem involvin ownership of aparcel of land, it is sufficient that the trial court ac!uire 6urisdictionover the res. 'hus, the summons by publication, which they effectedsubse!uent to the substituted service of summons, was alleedlysufficient.5n the other hand, respondents maintain that the proceedins in thetrial court were null and void because of the invalid and defectiveservice of summons. Accordin to them, the )eturn of &ummons

issued by the process server of the )'C failed to state that he hade0erted earnest efforts to effect the service of summons. -e alleedlytried to serve it personally on them on >( at =o. 2 Ari@arive, Camella -omes, Alaban. -e, however, resorted to substitutedservice on that same day, supposedly because he could not findrespondents in the above address. 'hey further allee that theperson to whom he ave the summons was not even a resident ofthat address.)espondents contend that when summons is served by substituted

service, the return must show that it was impossible to serve thesummons personally, and that efforts had been e0erted toward thatend. 'hey add that noncompliance with the rule on substitutedservice renders invalid all proceedins relative thereto.

As to the summons by publication subse!uently effected bypetitioners, respondents arue that the case filed before the trial courtwas an action for specific performance and, therefore, an action in

personam.As such, the summons by publication was insufficient toenable the trial court to ac!uire 6urisdiction over the persons ofrespondents.

)espondents conclude that even rantin that the service ofsummons by publication was permissible under the circumstances, itwould still be defective and invalid because of the failure ofpetitioners to observe the re!uirements of law, like an Affidavitattestin that the latter deposited in the post office a copy of thesummons and of the order of publication, paid the postae, and sentthe documents by reistered mail to the former4s last knownaddress. 1awphi1.n(tWe aree with respondents. In eneral, trial courts ac!uire

6urisdiction over the person of the defendant by the service ofsummons. Where the action is in personam and the defendant is inthe %hilippines, such service may be done by personal or substitutedservice, followin the procedures laid out in &ections B and / of )ule#* of the )evised )ules of Court, which read:+&ection B. &ervice in person on defendant. H Whenever practicable,the summons shall be served by handin a copy thereof to the


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defendant in person, or, if he refuses to receive and sin for it, bytenderin it to him.+&ection /. &ubstituted service. H If, for 6ustifiable causes, thedefendant cannot be served within a reasonable time as provided inthe precedin section, service may be effected "a$ by leavin copiesof the summons at the defendantFs residence with some person ofsuitable ae and discretion then residin therein, or "b$ by leavin thecopies at defendant4s office or reular place of business with somecompetent person in chare thereof.+

As can be leaned from the aboveH!uoted &ections, personal serviceof summons is preferred to substituted service. 5nly if the formercannot be made promptly can the process server resort to the latter.Moreover, the proof of service of summons must "a$ indicate theimpossibility of service of summons within a reasonable time "b$

specify the efforts e0erted to locate the defendant and "c$ state thatthe summons was served upon a person of sufficient ae anddiscretion who is residin in the address, or who is in chare of theoffice or reular place of business, of the defendant. /It is likewisere!uired that the pertinent facts provin these circumstances bestated in the proof of service or in the officer4s return. 'he failure tocomply faithfully, strictly and fully with all the foreoin re!uirementsof substituted service renders the service of summons ineffective.(

efective %ersonal &ervice of &ummons

In the instant case, it appears that the process server hastily andcapriciously resorted to substituted service of summons withoutactually e0ertin any enuine effort to locate respondents. A review ofthe records>reveals that the only effort he e0erted was to o to =o.2 Ari@a rive, Camella -omes, Alaban on >(, to try toserve the summons personally on respondents. While the )eturn of&ummons states that efforts to do so were ineffectual and unavailinbecause -elen Doyon was in the nited &tates and )omeo Doyonwas in Dicol, it did not mention e0actly what efforts HH if any HH wereundertaken to find respondents. 7urthermore, it did not specify where

or from whom the process server obtained the information on theirwhereabouts. 'he pertinent portion of the )eturn of &ummons isreproduced as follows:+'hat efforts to serve the said &ummons personally upon defendants&ps. -elen and )omeo Doyon were made but the same wereineffectual and unavailin for the reason that defendant -elen Doyonis somewhere in the nited &tates of America and defendant )omeoDoyon is in Dicol thus substituted service was made in accordancewith &ection /, )ule #*, of the )evised )ules of Court.+#3

'he )eturn of &ummons shows that no effort was actually e0ertedand no positive step taken by either the process server or petitionersto locate and serve the summons personally on respondents. At best,the )eturn merely states the alleed whereabouts of respondentswithout indicatin that such information was verified from a personwho had knowlede thereof. Certainly, without specifyin the detailsof the attendant circumstances or of the efforts e0erted to serve the
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summons, a eneral statement that such efforts were made will notsuffice for purposes of complyin with the rules of substituted serviceof summons.'he necessity of statin in the process server4s )eturn or %roof of&ervice the material facts and circumstances sustainin the validity ofsubstituted service was e0plained by this Court in )amilton v.*ev",##from which we !uote:+0 0 0 'he pertinent facts and circumstances attendant to the serviceof summons must be stated in the proof of service or 5fficer4s )eturnotherwise, any substituted service made in lieu of personal servicecannot be upheld. 'his is necessary because substituted service is inderoation of the usual method of service. It is a methode0traordinary in character and hence may be used only as prescribedand in the circumstances authori@ed by statute. -ere, no such

e0planation was made. 7ailure to faithfully, strictly, and fully complywith the re!uirements of substituted service renders said serviceineffective.+#2

Moreover, the re!uirements of substituted service of summons andthe effect of noncompliance with the subse!uent proceedins thereforwere discussed in Madrigal v. +ourt o% ppeals#as follows:+In a lon line of cases, this Court held that the impossibility ofpersonal service 6ustifyin availment of substituted service should bee0plained in the proof of service why efforts e0erted towards

personal service failed. 'he pertinent facts and circumstancesattendant to the service of summons must be stated in the proof ofservice or 5fficer4s )eturn otherwise, the substituted service cannotbe upheld. It bears stressin that since service of summons,especially for actions in personam, is essential for the ac!uisition of

6urisdiction over the person of the defendant, the resort to asubstituted service must be duly 6ustified. 7ailure to do so wouldinvalidate all subse!uent proceedins on 6urisdictional rounds.+#*

&ummons by %ublication ImproperIt must be noted that e0traterritorial service of summons or summons

by publication applies only when the action is in rem or quasi inrem.'he first is an action aainst the thin itself instead of aainstthe defendant4s person in the latter, an individual is named asdefendant, and the purpose is to sub6ect that individual4s interest in apiece of property to the obliation or loan burdenin it.#1

In the instant case, what was filed before the trial court was an actionfor specific performance directed aainst respondents. While the suitincidentally involved a piece of land, the ownership or possessionthereof was not put in issue, since they did not assert any interest or

riht over it. Moreover, this Court has consistently declared that anaction for specific performance is an action in personam.#B

-avin failed to serve the summons on respondents properly, the)'C did not validly ac!uire 6urisdiction over their persons.Conse!uently, due process demands that all the proceedinsconducted subse!uent thereto should be deemed null and void.#/
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GONALES VS. COURT O( APPEALS

G.R. N$. 150908 J)%/' 21, 2005

Dy the present assailed decision, the Court of Appeals ruled in %hua4sfavor in this wise:(/-. a careful scrutiny of the pleadins showed that the motion forleave to serve summons to %hua by publication was ranted by thecourt "Memorandum for )espondents, p. *, )ollo, p. *3B$ althouh itwas not supported by an affidavit settin forth the rounds reliedupon by plaintiffs to effect such service. "Anne0 /, Memorandum for)espondents, p. *($)espondents, on their part, arued that %hua was not an unknown

defendant under the contemplation of &ection #B, )ule #*, whichprovides:+Whenever the defendant is desinated as an unknown owner, or thelike, or whenever the address of a defendant is unknown and cannotbe ascertained by dilient in!uiry, service may, by leave of court, beeffected upon him by publication in a newspaper of eneralcirculation and such places and for such time as the court may order.+'he respondents further asserted that the foreoincircumstances un#nown owner, de%endant whose address isun#nown and cannot e ascertained " diligent inquir"/were absent.

Certainly, %hua was a known buyer of ot //*B but he indicated anerroneous address in a public document. =o less than the branchclerk of court and the process server e0erted dilient efforts to servethe summons by personal service and postal service. 'hey reardedthese as substantial compliance with the rules.We are not convinced.&ection #>, )ule #* is cateorical in re!uirin the said 6-.

Admittedly, there was failure to comply with the e0plicit submission ofthe same. Ineludible, this Court has no authority to dispense with

such mandatory re!uirement. 'he law is unambiuous and itsrationale clear. 'ime and aain, this Court has declared that wherethe law speaks in clear and cateorical lanuae, there is no room forinterpretation, vacillation or e!uivocation there is room only forapplication. 'here is no alternative. 'he respondents cannot proffere0cuse and rely on the efforts e0erted by the personnel of the courtwho were not remised in their duties.S*$). The Visayan Herald )$- )**/ $ *)*/&/%&-$).In the case V&:$)-* *- &. 6. C$%/- $ A*&, *- &., 303 SCRA

278, 28+ -) S) ) L; 6. G$6*/):*)- S*/6*I)%/)* S'-*:, 18 SCRA 491, 494, the &upreme Court ruledthat the %-$:/' 6- $ -;* *-$/ of


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e0ecuted by the publisher, business;advertisin manaer of theu@on Weekly Courier, which states that it is a newspaper of eneralcirculation in )i@al, as sufficient to consider the newspaper one ofeneral circulation. "Donnevie et al. v. Court of Appeals, et al., #21&C)A #22$In the instant suit, there was not even the %-$:/' 6-ofeditor


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in the lower courts,+ technicalities not bein permitted to sway thebroader interest of 6ustice.%etitioner4s case fails.In #>((, when leave to serve summons by publication was filed, thepertinent rules which have been substantially restated in the presentrules provided:&?C. #B. 'ervice upon an un#nown de%endant. L Whenever thedefendant is desinated as an unknown owner, or the like, orwhenever the address of a defendant is unknown and cannot beascertained by dilient in!uiry, service may, by leave of court, beeffected upon him by publication in a newspaper of eneralcirculation and in such places and for such time as the court mayorder. "nderscorin supplied$&?C. #>. *eave o% court. L Any application to the court under this

rule for leave to effect service in any manner for which leave of courtis necessary shall be made by motion in writin, supported byaffidavit of the plaintiff or some person on his behalf, settin forth therounds for the application. "nderscorin supplied$&?C. 2#. roo% o% service " pulication. L If the service has beenmade by publication, service may be proved by the affidavit of theprinter, his foreman or principal clerk, or of the editor, business oradvertisin manaer, to which affidavit a copy of the publication shallbe attached, and by an affidavit showin the deposit of a copy of thesummons and order for publication in the post office, postaeprepaid, directed to the defendant by reistered mail to his last knownaddress. "nderscorin supplied$&ince %hua4s whereabouts were unknown and could not beascertained by dilient in!uiry, service of summons by publicationwas correctly availed of by the -eirs of %acaKa.7rom the aboveH!uoted &ection #>, the motion to be allowed to servesummons by publication re!uired a supportin +affidavit of the plaintiffor some person on his behalf settin forth the rounds for theapplication.+

'he +Motion for &ervice of &ummons by %ublications+ "sic$>filed bythe counsel of the -eirs of %acaKa bears no supportin affidavit,however. It did not thus comply with the )ules.7urthermore, it has not been shown that the -eirs of %acaKa hadcomplied with the rule on the presentation of proof of service bypublication which, as aboveH!uoted &ection 2# provides, may beproved by an affidavit of the printer . . . to which affidavit a copy of thepublication shall be attached and by an affidavit showin the depositof a copy of the summons and order of publication in the post office,

postae prepaid, directed to the defendant by reistered mail to hislast known address. =or that The &isa"an )eraldis a newspaper ofeneral circulation. 1a02phi1.net

%etitioner4s appeal for liberality in the application of the rules,+technicalities not bein permitted to sway the broader interest of

6ustice,+ does not lie. Modes of service of summons mustbe -/-&'followed in order that the court may ac!uire 6urisdiction
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over the person of the defendant. 'he purpose of this is to afford thedefendant an opportunity to be heard on the claim aainst him.#3'he

summons intended for %hua bein invalid, the trial court did notac!uire 6urisdiction over him and could not as it did not render a valid

6udment aainst him.

&A='5& &. %=5C

G.R. No. 170943 September 23, 2008

Section 14, Rule 14 (on Summons) of te Rules of !ourt pro"i#es$

S%!. 14. Service upon defendant whose identity or

whereabouts are unknown. In any action&ere te #efen#'nt is

#esin'te# 's 'n unno&n o&ner, or te lie, or whenever hiswhereabouts are unknown and cannot be ascertained by

diligent inquiry, service may, by leave of court, be effected

upon him by publication in a newspaper of general

circulation'n# in suc pl'ces 'n# for suc times 's te court m'*

or#er. (emp'sis supplie#)

Since petitioner coul# not be person'll* ser"e# &it summons #espite

#ilient efforts to loc'te is &ere'bouts, respon#ent sout 'n# &'s r'nte#

le'"e of court to effect ser"ice of summons upon im b* public'tion in '

ne&sp'per of ener'l circul'tion. +us, petitioner &'s properl* ser"e# &it

summons b* public'tion.

etitioner in"oes te #istinction bet&een 'n 'ction in rem'n# 'n 'ction in

personam'n# cl'ims t't substitute# ser"ice m'* be '"'ile# of onl* in 'n

'ction in rem. etitioner is &ron. +e in rem/in personam#istinction &'s

sinific'nt un#er te ol# rule bec'use it &'s silent 's to te in# of 'ction to

&ic te rule &'s 'pplic'ble.-10/ec'use of tis silence, te !ourt limite#

te 'pplic'tion of te ol# rule to in rem'ctions onl*.-11
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+is 's been c'ne#. +e present rule epressl* st'tes t't it 'pplies [i]n

any action&ere te #efen#'nt is #esin'te# 's 'n unno&n o&ner, or te

lie, or &ene"er is &ere'bouts 're unno&n 'n# c'nnot be 'scert'ine#

b* #ilient inuir*. +us, it no& 'pplies to any'ction, &eter in

personam, in remor quasi in rem.-12

Re'r#in te m'tter of te 'ffi#'"it of ser"ice, te rele"'nt portion of

Section 19,-13

Rule 14 of te Rules of !ourt simpl* spe's of te follo&in$'n 'ffi#'"it so&in te #eposit of ' cop* of te summons 'n#

or#er for public'tion in te post office, post'e prep'i#, #irecte#

to te #efen#'nt b* reistere# m'il to is l'st no&n '##ress.

Ser"ice of summons b* public'tion is pro"e# b* te 'ffi#'"it of te

printer, is forem'n or princip'l cler, or of te e#itor, business or

'#"ertisin m'n'er of te ne&sp'per &ic publise# te summons. +e

ser"ice of summons b*publication is complemente# b* ser"ice of summons

b* registered mail to te #efen#'nts l'st no&n '##ress. +is

complement'r* ser"ice is e"i#ence# b* 'n 'ffi#'"it so&in te #eposit of '

cop* of te summons 'n# or#er for public'tion in te post office, post'e

prep'i#, #irecte# to te #efen#'nt b* reistere# m'il to is l'st no&n

'##ress.

+e rules, o&e"er, #o not reuire t't te 'ffi#'"it of complement'r*

ser"ice be eecute# b* te cler of court. ile te tri'l court or#in'ril*

#oes te m'ilin of copies of its or#ers 'n# processes, te #ut* to m'e te

complement'r* ser"ice b* reistere# m'il is impose# on te p'rt* &o

resorts to ser"ice b* public'tion.
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oreo"er, e"en 'ssumin t't te ser"ice of summons &'s

#efecti"e, the trial court acquired jurisdiction over the person of

petitioner by his own voluntary appearance in the action''inst im. n

tis connection, Section 20, Rule 14 of te Rules of !ourt st'tes$

S%!. 20. Voluntary appearance. The defendants

voluntary appearance in the action shall be equivalent to

service of summons. +e inclusion in ' motion to #ismiss of

oter roun#s 'si#e from l'c of 5uris#iction o"er te person of

te #efen#'nt s'll not be #eeme# ' "olunt'r* 'ppe'r'nce.(emp'sis supplie#)

etitioner "olunt'ril* 'ppe're# in te 'ction &en e file# te 6mnibus

otion for Reconsi#er'tion 'n# to #mit tt'ce# ns&er.-14+is &'s

eui"'lent to ser"ice of summons 'n# "este# te tri'l court &it 5uris#iction

o"er te person of petitioner.

E N T I T L E E N T T !

N!TI"E !# $%!"EE&IN'(

+e tri'l court 'llo&e# respon#ent to present its e"i#ence ex parteon

'ccount of petitioners f'ilure to file is 'ns&er &itin te prescribe# perio#.

etitioner 'ss'ils tis 'ction on te p'rt of te tri'l court 's &ell 's te s'i#

courts f'ilure to furnis im &it copies of or#ers 'n# processes issue# in

te course of te procee#ins.

+e effects of ' #efen#'nts f'ilure to file 'n 'ns&er &itin te time

'llo&e# terefor 're o"erne# b* Sections 3 'n# 4, Rule 9 (on %ffect of

'ilure to le'#) of te Rules of !ourt$
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S%!. 3.Default declaration of. If the defending party

fails to answer within the time allowed therefor, the court

shall, upon motion of the claiming party with notice to the

defending party, and proof of such failure, declare the

defending party in default. +ereupon, te court s'll procee# to

ren#er 5u#ment r'ntin te cl'im'nt suc relief 's is ple'#in

m'* &'rr'nt, unless te court in its #iscretion reuires te

cl'im'nt to submit e"i#ence. Suc reception of e"i#ence m'* be

#ele'te# to te cler of court.

S%!. 4.!ffect of order of default. ) party in default shall

be entitled to notice of subsequent proceedingsbut not to t'e

p'rt in te tri'l. (emp'sis supplie#)

f te #efen#'nt f'ils to file is 'ns&er on time, e m'* be #ecl're# in

#ef'ult upon motion of te pl'intiff &it notice to te s'i# #efen#'nt. n c'se

e is #ecl're# in #ef'ult, te court s'll procee# to ren#er 5u#ment r'ntin

te pl'intiff suc relief 's is ple'#in m'* &'rr'nt, unless te court in its

#iscretion reuires te pl'intiff to submit e"i#ence. +e #ef'ultin #efen#'nt

m'* not t'e p'rt in te tri'l but s'll be entitle# to notice of subseuent

procee#ins.

n tis c'se, e"en petitioner imself #oes not #ispute t't e f'ile# to

file is 'ns&er on time. +'t &'s in f'ct &* e '# to file 'n 6mnibus

otion for Reconsi#er'tion 'n# to )dmit )ttached )nswer. /ut

respon#ent mo"e# onl* for te ex partepresent'tion of e"i#ence, not for te

#ecl'r'tion of petitioner in #ef'ult. n its ebru'r* , 2004 or#er, te tri'l

court st'te#$

+e #ispute# 6r#er of September 11, 2003 'llo&in te

present'tion of e"i#ence e:p'rte precisel* or#ere# t't #espite

'n# not&itst'n#in ser"ice of summons b* public'tion, no

'ns&er 's been file# &it te !ourt &itin te reuire# perio#

'n#;or fortcomin.- Effectively*,+ that was a finding that the

defendant *that is, herein petitioner+ was in default for failure


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to file an answer or any responsive pleading within the period

fiedin te public'tion 's precisel* te #efen#'nt -coul# not be

foun# 'n# for &ic re'son, ser"ice of summons b* public'tion

&'s or#ere#. t is simpl* illoic'l to notif* te #efen#'nt of te

6r#er of September 11, 2003 simpl* on 'ccount of te re'lit* t't

e &'s no loner resi#in 'n#;or foun# on is l'st no&n '##ress'n# is &ere'bouts unno&n tus te public'tion of te

summons. n oter &or#s, it &'s re'son'ble to epect t't te

#efen#'nt &ill not recei"e 'n* notice or or#er in is l'st no&n

'##ress.


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