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UMANDAP V. SABIO G.R. No. 140244 (August 29, 2000)

DOCTRINE: Service of summons upon defendant is necessary in order that a court may acquire

jurisdiction over his person. Any judgment without such service in the absence of a valid waiver is null and void.

General Rule: Summons must be served to the defendant personally. Exception: Substituted service is allowed when the defendant cannot be served

personally within a reasonable time after efforts to locate him have failed Requirements for substituted service:

o indicate the impossibility of service of summons within a reasonable time, o specify the efforts exerted to locate the petitioners and o state that it was served on a person of sufficient age and discretion residing

therein. The statutory requirements of substitued service must be followed strictly, faithfully

and any substituted service other than that authorized by the statute is considered ineffective.

Sheriff's act enjoys the presumption of regularity.

EMERGENCY RECIT:Domingo Estomo filed a case for damages based on breach of contract against Joel Umandap. (no explanation as to what the contract is about) When summons were supposed to be issued to Umandap, the process server could not locate him in the address indicated (one address for both office and residence) hence the server opted to go for substituted service. Umandap, however, still failed to file an answer prompting the court to declare him in default. The trial court later ruled against him. A writ of execution was issued and Umandap's deposit and receivables were garnished. Objecting to the order, he filed for certiorari under rule 65 alleging that the trial court never acquired jurisdiction over his person because there has been no valid service of summons; that the substituted service of summons was improper and invalid since the process server's return failed to show on its face the impossibility of personal service. The CA, however, found that he was not able to substantiate his claim, hence, the presumption of regularity in the performance of official functions prevails. Upon appeal to the SC, the court held based on the proof of return, the substituted service was duly performed as efforts made to find the defendant personally and the failure of such efforts were stated. The Court also found that indeed, he received the orders of trial court and he is now guilty of laches for failure to seasonably act on those lawful Orders.

FACTS: Domingo Estomo filed against Joel Umandap an action for damages based on breach

of contract Process Server Marmolejo effected substituted service of the summons and copy of

the Complaint upon Umandap, by leaving a copy thereof at his home and office address to a certain Joseph David, his nephew, who refused to receive and acknowledge the same

Umandap failed to file his answer, hence, he was declared in default and Estomo was allowed to present his evidence ex parte

Trial court later ruled against Umandap for the following:304,393.25 representing the unremitted collections from MORESCO/NEA received by Umandap, 200,000.00 as reimbursement of interest incurred and paid Estomo to finish the contracted project, moral damages, attys fees and costs of suit (no explanation as regards the amounts)

A writ of execution was issued and Umandap's deposit and receivables were garnished

Umandap later filed a motion to Set Aside Judgment by Default and Quash Writ of Execution but was denied; his MR was likewise denied

Hence, he filed for certiorari under Rule 65 with the CA alleging that the trial court never acquired jurisdiction over his person because there has been no valid service of summons; that the substituted service of summons was improper and invalid since the process server's return failed to show on its face the impossibility of personal service, more particularly the following:

o it does not state the efforts exerted or the alleged occasions on which attempts were made to personally serve the summons upon petitioner;

o it does not state that Joseph David, to whom the process server left or tendered the summons and a copy of the complaint was a person of suitable age and discretion then residing therein or a competent person in charge of petitioner's residence or office; and,

o it is not entitled to the presumption of regularity since there is no compliance with the rules on substituted service.

CA ruled that the process server's Return is "valid and regular on its face, and readily reveals that earnest efforts were exerted to find the defendant personally but such efforts failed;" that Umandap was not able to overcome the presumption of regularity by his unsubstantiated and self-serving assertion that the process server went to his home and office address only once."

ISSUE:1. WON substituted service of summons through Joseph David was valid and regular

HELD/RATIO: General Rule: service of summons upon the defendant is necessary in order that a

court may acquire jurisdiction over his person. Any judgment without such service in the absence of a valid waiver is null and void.

Section 6, Rule 14 of the Revised Rules of Court, the general rule in this jurisdiction is that summons must be served personally on the defendant, it reads:

o "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 it to him."

However, when the defendant cannot be served personally within a reasonable time after efforts to locate him have failed, substituted service may be made. Section 7, Rule 14 of the Revised Rules of Court reads:

o "SEC. 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."

The impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts. The statement should be made in the proof of service. This is necessary because substituted service is in derogation of the usual method of service. Substituted service is a method extraordinary in character, and hence may be used only as prescribed in the circumstances authorized by statute. Thus, the statutory requirements of substituted service must be followed strictly, faithfully, and any substituted service other than that authorized by the statute is considered ineffective."

Proof of service alluded to is the return required by Section 4 of Rule 14 which reads:o "SEC. 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."

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Now the officer’s return reads as follows:"THIS IS TO CERTIFY, that on the 3rd day of February 1998, undersigned served copy of the summon with the copy of the complaint and its annexes, upon the defendant Joel R. Umandap Joel Construction, at No. 14-3rd St., New Manila, Quezon City by leaving/tendering the copy to Joseph David receiving of said office, but he refused to sign in receipt of the copy.

That despite efforts exerted to serve said process personally upon the defendant on several occasions the same proved futile, for the reason that herein defendant was not around, thus substituted service was made in accordance with the provision of Section 8, Rule 14 of the Revised Rules of Court, and that this return is now being submitted to the Court of origin with the information DULY SERVED.xxx

CA correctly ruled that the presumption of regularity in the performance of official functions prevails. In the absence of contrary evidence, a presumption exists that a sheriff has regularly performed his official duty. To overcome the presumption arising from the sheriff’s certificate, the evidence must be clear and convincing and mere allegations of irregularity are insufficient.

The proof of return squarely complies with the requirements of substituted service as enumerated in Laus vs CA:

o indicate the impossibility of service of summons within a reasonable time, o specify the efforts exerted to locate the petitioners and o state that it was served on a person of sufficient age and discretion residing

therein. Gleaning from the proof of return; it indicates the location or address of the defendant

where the summons was served, the efforts and/or prior attempts at personal service made by the process server and that such attempts had proved futile, and lastly; it indicates that summons was left or tendered to Joseph David "receiving of said office."

More importantly, Umandap could hardly feign ignorance of the existence of this instant case considering the fact that he received a copy of the default order as evidenced by the Return and attached to the records of this case dated March 27, 1998. He also received a copy of the judgment of this Court as evidenced by Registry Return Slip attached to the records of this case.

Considering that petitioner received both orders, he could have protected his rights by availing himself of several avenues of redress, including, filing a motion to set aside the order of default in accordance with Sec. 3 (b), Rule 9 of the Rules of Court ; or he could have taken an ordinary appeal to the Court of Appeals in accordance with Sec. 2 (a), Rule 41 of the Rules of Court questioning the judgment of the trial court. Sleeping on his rights, he is now barred by laches.

BIACO V. PHILIPPINE COUNTRYSIDE RURAL BANKG.R. No. 161417 (February 8, 2007)

EMERGENCY RECIT: Petitioner’s husband applied for a loan with the bank secured by a real estate mortgage over a parcel of land. When her husband failed to pay the REM was foreclosed and a complaint initiated. The summons were served on the husband only and not personally to the petitioner. She contends that the trial court has not acquired jurisdiction over her because the summons were not given personally. The SC held that the summons that cannot be given personally within a reasonable time may be given through substitute service following sec. 7 of rule 14.

FACTS: Ernesto Biaco is the husband of petitioner Teresa Biaco. While employed in

Philippine Countryside Rural Bank (Bank) as branch manager, Ernesto obtained several loans amounting to P820k from the bank evidenced by promissory notes.

o As security, Ernesto executed a real estate mortgage over a parcel of land, the REM contained the signature of the spouses.

Ernesto failed to pay the loans, the bank through counsel sent him written demands with the amount due P1,080,676.50 but he still failed to pay. Respondent bank filed a complaint and foreclosure of the REM before the RTC of Misamis Oriental

o Summons was served to the spouses through Ernesto at his office Export and Industry Bank at Jofelmor Bldg., Mortola st., CDO. Ernesto received the summons but for unknown reasons failed to answer. Hence, the spouses were declared in default upon motion of the bank. The bank was allowed to present evidence ex parte.

Petitioner seeks to annul the RTC and CA decision contending that extrinsic fraud prevented her from participating in the foreclosure proceedings. According to her, she came to know about the judgment only after 6 months of finality. She asserts that the court failed to acquire jurisdiction because summons were served on her through her husband without any explanation as to why personal service should not be made.

o She asserts that even if the action is quasi in rem personal service of summons is essential in order to afford her due process

ISSUE: 1. WON the trial court acquired jurisdiction over her – YES

HELD/RATIO: 1. YES. In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try the case. In a proceeding rem or quasi in rem jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. Jurisdiction over the res is acquired thru (1) seizure of the property under legal process (2) as a result of the institution of legal proceedings.

The judicial foreclosure instituted by the bank undoubtedly vested trial court with the jurisdiction over the res. A judicial foreclosure is a proceeding quasi in rem. As such, jurisdiction over the person of the petitioner is not required, it being sufficient that the trial court is vested with jurisdiction over the subject matter.

A resident defendant who does not voluntarily appear in court (such as petitioner in this case) must be personally served with summons under sec. 6 rule 14. If she cannot be personally served with summons within a reasonable time, substituted service may be effected (1) by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein (2) by leaving copies at defendant’s office or regular place of business with some competent person in charge thereof in accordance with sec. 7 rule 14.

TOYOTA CUBAO INC. V. CA

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G.R. NO. 126321 (October 23, 1997)

DOCTRINE: Rule 14 Section 7 Substituted Service of Summons The RETURN on the SERVICE presents a disputable presumption on the facts and

particulars of the service of summons.o For a SUBSTITUTED service of summons

the facts or needed particulars must be stated in the RETURN on the Service to justify the substituted service.

FAILURE TO STATE IS NOT FATAL, sheriff or process server may have just failed to disclose such facts, doesn’t mean that the officer didn’t have justifiable causes to do substituted service.

o HOWEVER evidence must be duly presented to prove proper compliance

with the rules on substituted service OR proof that the defendant has actually been delivered copies of the

summons and complaint.

EMERGENCY RECIT Guevarra had his car repaired in Toyota Cubao. He paid with a check which was

dishonored for insufficiency of funds. Toyota demanded payment, Guevarra still failed to pay. Toyota thus filed a collection case.

The summons was done through substituted service of summons. The Return failed to state the justifying/ requisites for a valid substituted service, it simply stated that it was given to Guevarra’s sister-in-law (verbatim quoted below). By the motion of Toyota, Guevarra was declared in default and obtained a favorable judgment after presenting evidence ex-parte.

Guevarra’s car was levied and auctioned; he turned over his car willingly but showed surprise as he did not know of a case against him.

He files a petition for certiorari with the CA arguing there was no jurisdiction over his person. CA found merit, nullifies the judgment in default, the order of execution, and the auction. Toyota files an appeal with the SC arguing failureto state in the Return of the service the impossibility of service is not conclusive that the substituted service is invalid.

SC affirms CA, Toyota’s appeal no merit. There was no valid substituted service. SC says that Toyota is correct in saying failure to state is not conclusive, however evidence must be shown that the requisite have been complied with or proof that the defendant has actually received the summons and complaint.

FACTS: Toyota Cubao (Toyota) repaired Danilo Guevarra’s (Guevarra) car at the cost of 76

thousand. Guevarra paid with a check which was dishonored due to insufficient funds. Toyota, demanded payment, Danilo failed to pay. Toyota files a CIVIL case for collection.

Trial Court Issued the SUMMONS to Guevarra at his address in Calamba, Laguna. o The PROCESS SERVER of the RTC of Calamba, submitted to the RTC the

RETURN ON THE SERVICE. The return stated VERBATIM: “Respectfully returned to the Branch Clerk of Court,

Regional Trial Court, National Capital Judicial Region, Branch 92, Quezon City, the herein attached original summon in the above entitled case with the information that it was duly served to the defendant DANILO A. GUEVARRA, thru her sister-in-law, GLORIA CABALLES, by leaving a copy of the summons and complaint but refused to sign.”

Guevarra failed to answer, Toyota moved to declare him in default. A copy of the motion was served through registered mail to Guevarra. Trial court granted the

motion and allowed Toyota to present evidence ex parte. The Trial Court the rendered decision in-favor of Toyota.

A writ of execution was issued. The Deputy sheriff levied on the Guevarra’s Toyota Corolla (plate # PRW-329).

o Notice of levy sent to Guevarra, he refused to sign, said not aware of any case.

Sheriff then sent notice of an auction sale. At the auction, it was sold at 150 thousand to Sillano.

Guevarra turned over the car on demand. However he filed a petition for certiorari with the CA to NULLIFY the EX-PARTE judgment. Arguing the trial court did not obtain jurisdiction over his person because of the defective summons.

o CA finding merit annulled the default judgment, writ of execution, and sale at public auction. The substituted service of summons was NOT VALID

Toyota now assails the Decision of the CAo Toyota argues that in Mapa vs. Court of Appeals, the absence in the

sheriff's return of a statement about the impossibility of personal service cannot be conclusive proof that the substituted service resorted to is invalid.

ISSUE: 1. WON there is a valid substituted service of summons.

HELD/RATIO: 1. No valid substituted service of summons.

CA correct in annulling the default judgement, writ of execution, and sale at public auction.

SC agrees with Toyota that in Mapa vs CA, the courts should not jump into conclusion of an invalid substituted service of summons based on the absence of the sheriff’s return on the statement of the impossibility of service, HOWEVER, evidence must be duly presented to prove proper compliance with the rules on substituted service.

The SERVER”S RETURN FAILED to state the facts or the needed particulars that could justify the substituted service.

Although Moran, on the Rules of Court, has said that "Irregularities of this kind (substituted service) (might) be cured by proof that the copies (have) actually been delivered to the defendant," in the case at bar, however, Guevarra appears to have been notified of the case for the first time only at the time the levy on execution of judgment was effected by the sheriff.

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PCIBANK V. ALEJANDROG.R. 175587 (Sept. 21, 2007)

DOCTRINE: In case the defendant DOES NOT RESIDE and is NOT FOUND IN THE

PHILIPPINES (and hence personal service and substituted service cannot be effected), the remedy of the plaintiff in order for the court to acquire jurisdiction to try the case is to CONVERT THE ACTION INTO A PROCEEDING IN REM or QUASI IN REM by attaching the property of the defendant.

Attach defendant’s property The service of summons in this case (which may be by publication coupled with the

sending by registered mail of the copy of the summons and the court order to the last known address of the defendant), is no longer for the purpose of acquiring jurisdiction but for compliance with the requirements of due process.

Substituted service of summons is the normal mode of service of summons that will confer jurisdiction on the court over the person of residents temporarily out of the Philippines.

Court may acquire jurisdiction over an action in personam by mere substituted service without need of attaching the property of the defendant.

EMERGENCY RECIT:There was a suit for collection of money instituted by PCIB against Alejandro. In this case PCIB lied in order for the court to attach Alejandro’s property. PCIB said that Alejandro does not reside in the country. The rule is that if the defendant is not in the country (thus, service of summons is impossible) then the court cannot acquire jurisdiction over the defendant’s person. What the court does is to transform the action from in personam to in rem. It is done by attaching the property of the defendant. However, when this was done, it was found later to be invalid because in reality, Alejandro resides in the Philippines. Personal service of summons could have been served against him (or even substituted). Therefore, garnishment is not warranted.

FACTS: Alejandro was a lawyer of Romula Mabanta (yes, that one) He was a client of PCIB and he wrote a promissory note obligating himself to pay the

amount of around 249+ million representing loans. Because of fluctuations in the exchange rate, PCIB alleges that there was a

deficiency on the amount of money assigned by Alejandro to PCIB. So PCIB asked to Alejandro to put additional bond to cover the loans. Instead, Alejandro did not give additional bond and he alleged that PCIB mishandled

his money in that it failed to close the account when the Yen exchange rate was still good.

So PCIB files a case for a collection of sum of money against Alejandro. PCIB wanted to obtain a writ of attachment against certain properties of Alejandro. PCIB alleged that Alejandro is not a resident of this country and has left to defraud his

creditors. This, the trial court believed so it issued the writ/garnishment However, Alejandro questioned this through an MR and voluntarily submitted himself

to the jurisdiction of the court. Alejandro alleges that he is a resident of his country; that PCIB knows his address

and it knows of his office address in Makati (Romulo Mabanta, remember) The trial court ruled in favor of Alejandro. CA and SC affirms. Now Alejandro files a case against PCIB for damages. Some of his checks allegedly

bounced because of the garnishment of the court

ISSUE: 1. WON PCIB is liable for damages as it falsely accused Alejandro of not being a resident of the Philippines, allowing it to obtain a garnishment of Alejandro’s properties.

HELD/RATIO: 1. YES. It is liable

One of the ways to obtain a garnishment of the properties of a defendant is to allege that he is not a resident of the country. PCIB falsely represented such information in order to obtain garnishment. Garnishment is the remedy for a non-resident because personal summons is not

feasible since again, the defendant is not a resident. This converts the nature of the case from in personam to in rem because of the

involvement of the person’s property. This is done by the court to acquire jurisdiction over the case. PCIB lied and said that Alejandro is not a resident of the Philippines in order to obtain

garnishment of the property. If PCIB had not lied, garnishment would not be awarded by the court because jurisdiction can be acquired by it through personal/substituted service of summons.

The wrongful attachment of his property caused damage to Alejandro, thus he is entitled to damages.

PCIB cannot be said to be in good faith because it has always known of his home and work address. Therefore, it was wrong in saying that Alejandro is not a resident of this country.

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VLASON ENTERPRISES V. CAGR No. 121662-64 (July 6, 1999)

DOCTRINE: A corporation may be served summons through its agents or officers who under the Rules are designated to accept service of process. 

The secretary of the president may receive summons for the corporation.  This rule requires, however, that the secretary should be an employee of the corporation sought to be summoned (not just the secretary of an officer).  Only in this manner can there be an assurance that the secretary will “bring home to the corporation the notice of the filing of the action” against it.Used previous digest made by Harvey for the facts, and edited them and the rest to fit the issue on summons. The case has too much facts, issues and parties impleaded!! Only the relevant part on summons is included here.

FACTS: Poro Point Shipping Services is the agent of Omega in the Philippines. Its ship, MV Star

Ace, had engine troubles so it asked the Philippine Ports Authority to unload its cargo here in the country while waiting transshipment to Hong Kong.

They were granted permission. However, despite said permission, the Bureau of Customs still seized the vessel and confiscated its cargo on the ground that it might be the hijacked MV Silver Med.

The ship was placed in La Union. While it was there, La Union was rocked by three typhoons, which destroyed the ship.

Poro Point entered into a salvage agreement to restore the ship with Duraproof. Bureau of Customs initially released the ship, but subsequently changed its mind when

it changed directors. It moved for the sale of the cargo of the ship. Duraproof files a case to enforce its salvor’s initially just against the officials of Bureau

of Customs Duraproof amended its complaint, including a lot of other persons and entities. Summonses for the amended Petition were served on Atty. Joseph Capuyan for Med

Line Philippines:  Angliongto (through his secretary, Betty Bebero), Atty. Tamondong and Commissioner Mison. Upon motion of the private respondent, the trial court allowed summons by publication to be served upon the alien defendants who were not residents and had no direct representatives in the country

Relevant part on service of summons on a corporation: The sheriff’s return shows that Angliongto who was president of petitioner corporation, through his secretary Betty Bebero, was served summons on January 18, 1990. Petitioner claims that this service was defective because Bebero was an employee of Vlasons Shipping, Inc., which was an entity separate and distinct from Petitioner Vlason Enterprises Corporation (VEC)

ISSUE: 1. WON there was a proper service of summons to the corporation?

HELD/RATIO: 1. NO.

A corporation may be served summons through its agents or officers who under the Rules are designated to accept service of process.  A summons addressed to a corporation and served on the secretary of its president binds that corporation. This is based on the rationale that service must be made on a representative so integrated with the corporation sued, that it is safe to assume that said representative had sufficient responsibility and discretion to realize the importance of the legal papers served and to relay the same to the president or other responsible officer of the corporation being sued. The secretary of the president satisfies this criterion.  This rule requires, however, that the secretary should be an employee of the corporation sought to be summoned.  Only in this manner can there be an

assurance that the secretary will “bring home to the corporation [the] notice of the filing of the action” against it.

In the present case, Bebero was the secretary of Angliongto, who was president of both VSI and petitioner, but she was an employee of VSI, not of petitioner.  The piercing of the corporate veil cannot be resorted to when serving summons.

Doctrinally, a corporation is a legal entity distinct and separate from the members and stockholders who compose it.  However, when the corporate fiction is used as a means of perpetrating a fraud, evading an existing obligation, circumventing a statute, achieving or perfecting a monopoly or, in generally perpetrating a crime, the veil will be lifted to expose the individuals composing it.  None of the foregoing exceptions has been shown to exist in the present case. 

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PAGALARAN V. BAL-LATAN G.R. No. L-4119 (March 11, 1909)

DOCTRINE: An acknowledgment on the back of the summons by the defendant shall be

equivalent to service. After judgment in default had been entered, the remedy open to the appellant was to

ask that the judgment be vacated and that she be heard but only if her nonappearance in the action was due to fraud, accident, or mistake.

EMERGENCY RECITPetitioner Eusebia Pagalaran filed a complaint against Valentin Bal-laten and Maria Bidayanes for the recovery of her two female carabaos (called a caraballa). It was alleged that the two defendants unlawfully took the two carabaos from petitioner. Summonses were served against defendants. Defendant Bidayanes acknowledged and even signed at the back of the summons. However, defendant Bidayanes failed to appear on trial. Decision was rendered against defendants. On a bill of exception to the SC, the SC ruled that summons was properly served and that defendant Bidayanes failed to appear; and even if there wasn’t proper summons, the remedy is to appeal the decision of the trial court.

FACTS: The Summons are worded as follows:

o “Eugenia Pagalaran, plaintiff, vs. Valentin Bal-latan and Maria Bidayanes, defendants. — Demand for the return of one caraballa with calves. — Civil cause No. 69. – To Maria Bidayanes, Aparri. — You are hereby notified that the Hon. Albert E. McCabe, judge of the First Instance of this judicial district has been pleased to set Friday, the 21st day of September, 1906, for the hearing of the above-entitled cause to the end that you may appear before this court with your lawyer and such evidence as you may intend to adduce in your favor. — Given by the Hon. Albert E. Mc Cabe, judge of First Instance, this 17th day of September, 1906, In Aparri, Province of Cagayan.”

At its back is the following:o “By virtue of the foregoing summons I, the sheriff for the Province of

Cagayan de Luzon, First Judicial District of the Philippine Islands, called at the house of Maria Bidayanes in the barrio of Talungan, within the limits of this town, and personally notified her of the contents of said order to appear before the court; thereupon she acknowledged service, and I delivered to her a duplicate hereof, the receipt for which she signed together with myself. (Signed) Antonio Soriano, provincial sheriff. (Signed) Maria Bidayanes.”

Defendant Bidayanes was held to be in default. She did not appeal, but instead asked the trial court to vacate its judgement since she was allegedly not formally summoned. Trial court denied her motion, and so she elevated the matter to the Supreme Court.

ISSUE:1. WON there was a valid and formal summons.

HELD/RATIO:1. YES. The Summons was validly served against defendant Bidayanes.

As appears from the order which defendant-appellant herself has presented, defendant Bidayanes was formally summoned on the 17th of September, 1906, to appear on the 21st of said month and year. Section 397 [of the old Code of Procedure] provides that "an acknowledgment on the back of the summons by the defendant shall be equivalent to service."

If the summons was not accompanied by a new complaint, section 112 of the [old] Code of Procedure authorizes the plaintiff to simply refer to the complaint that she had filed with justice of the peace.

Even if there had been no complaint or formal summons, no law or reason whatever justifies the nonappearance of the defendant after having been summoned. She ought to have appeared and not have abandoned the action, either to challenge the jurisdiction of the court or the validity of the summons.

Lastly, after judgment in default had been entered, the remedy open to the appellant was to ask that the judgment be vacated and that she be heard. She should have appeared and stated that her nonappearance in the action was due to fraud, accident, or mistake.

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ONG PENG V. CUSTODIO(March 25, 1961)

DOCTRINE:The defendant had already appeared when the amended complaint was served-defendant had, in fact, presented a motion to dismiss. We rule that after the defendant has appeared by virtue of a summons, as in this case, and presented a motion to dismiss, he may be served with the amended complaint, without need of another summons, and in the same form and manner ordinary motions or papers are served

FACTS: (super short case) Ong Peng (Plaintiff) sued Jose Custodio (Defendant) to recover the sum of

P2,527.30, representing the value of goods and materials obtained by defendant from plaintiff.

The complaint was filed on April 15, 1958, and on April 30 ,Jose (defendant) moved to dismiss the complaint on the ground that plaintiff's (Ong Peng) cause of action had already prescribed

Plaintiff ( Ong Peng) answered defendant's (Jose Custodio) motion and attached to his answer an amended complaint which set forth the promissory note supporting the claim. (which was only a formal amendment)

No answer to the amended complaint was presented and no objection to its admission was also interposed. 

the court admitted the amended complaint on the ground that no objection thereto had been filed, and on May 28, it denied the motion to dismiss.

The LC decided in favor of Ong, thus Jose was required to pay the amount of 2,527.30 pesos

ISSUE:1. WON the defendant came under the jurisdiction of the court for the purposes of the amended complaint because the same was not served upon him with summons and in accordance with the ROC

HELD/RATIO: "In the case at bar the defendant had already appeared when the amended complaint was served-defendant had, in fact, presented a motion to dismiss. We rule that after the defendant has appeared by virtue of a summons, as in this case, and presented a motion to dismiss, he may be served with the amended complaint, without need of another summons, and in the same form and manner ordinary motions or papers are served"Unlike in the case of Atkins, Kroll and Co. vs. Domingo, where the defendant was served properly the original summons, but before the trial started the amended complaint was handed to his 16 years old son. The SC held that there was a improper summon."Also In the case at bar, the amended complaint contained no new matter; it only sets forth the promissory note upon which the cause of action is based (only a formal amendment)"

Side CivPro IssueWON the judge should have heard the case for dismissal of the complaint before allowing the amendment.The court held that it is upon the discretion of the judge to  defer the hearing and determination thereof until the trial if the ground alleged therein does not appear to be indubitable and that the amendment was only a formal one.

ATKINS, KROLL, AND CO. V. DOMINGO

GR L-19565 (March 24, 1963)

DOCTRINE: Where a judgment was rendered based on the amended complaint, the amended complaint and summons should have been served upon defendant with same formalities as the original complaint and summos.

EMERGENCY RECIT: case is short

FACTS Atkins, Kroll & Co (Atkins) filed a complaint against Santiago Domingo (Domingo) for

partition of parcels of land in Zamboanga Later in the case, Atkins filed a motion to amend the complaint

o That a certain lot (Lot No. 36) was not included in the original complaint o And that since the filing of the original complaint, differences have arisen

regarding the accounting for the rental of the properties Upon motion by Atkins, Santiago was declared in default. Court rendered judgment on the basis of the amended complaint and divided the land

accordingly Santiago then filed a motion to set aside the judgment and prays for new trial on the

ground that he had neither never received summons nor did he have knowledge of the pending case

Court denied Santiago’s motion

ISSUE: 1. WON summons was properly served

HELD/RATIO: 1. NO. Judgment is set aside Upon review, the facts show that original complaint and summons (for the original

complaint) was made by the deputy of the sheriff to Maximo Domingo (Maximo), son of Santiago Domingo, over the age of 16, in their residence

Facts also show that copy of the amended complaint which had been sent to Santaigo by registered mail had been returned undelivered thus compelling Atkin’s counsel to personally deliver the same to Maximo

If only Santiago appeared in the action, service of the amended complaint in such manner would have been sufficient

However, since Santiago failed to appear in the action, the service of the amended complaint upon the 16yo son could not be deemed sufficient

The amended complaint and summons should have been served upon Santiago with the same formalities as the original complaint and summons

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BELLO V. UBOG.R. No. L-30353 (September 30, 1982)

DOCTRINE: Sec. 5, Rule 14Summons may be served by the sheriff or other proper court officer of the province or, for special reasons, by a person especially authorized to serve the summons by the judge of the court which issued the same. This enumeration is exclusive.

EMERGENCY RECIT: Bello filed a complaint for recovery of real property with damages against the defendants Ubo. Summons were issued to the Defendants by Patrolman Yobia of the Police Dept. of Leyte. No answer was filed by defendants so they were declared in default and Bello was declared owner. Ubo hired a lawyer who found out that the copy of the complaint was still with Pat. Yobia. Defendants filed motion for relief from judgment charging irregularity of the service of summons and praying that they be said aside and that their motion be admitted. CFI denies motion and MR because of Yobia’s counteraffidavit saying that he explained the nature of the summons and the complaint to the defendants. Defendants file appeal, and eventually won because there was no valid service of summons and consequently the CFI of Leyte did not acquire jurisdiction over them.

FACTS: Plaintiff Bello filed with the Court of First instance of Leyte a complaint for recovery of

real property with damages against the defendantso Prays that he be declared the true and lawful owner of the parcel of land

which had been forcibly occupied by the defendants since 1962 under claim of ownership

o Sums of coconuts harvested + moral damages + expenses of relocation survey + attorney’s fees and costs

Summons were issued, required defendants Ubo to file their answer to the complaint within 15 days from service thereof. A certain Patrolman Castulo Yobia of the Police Department of Jaro, Leyte served the summons on the defendants.

No answer was filed by defendants. Plaintiff’s counsel filed a motion to declare defendants in default. CFI of Leyte declared so and directed plaintiff to present ex-parte evidence. Judgment in default declared Bello as the owner of the western portion of the land, and ordered defendants to vacate that portion, and pay attorney’s fees + costs.

Upon receipt of the order of default, the defendants contracted the services of Atty. Generoso Casimpan who immediately inquired from Pat. Castulo Yobia about the service of the summons. Pat. Yobia then showed him a copy of the complaint which he failed to deliver to the defendants.

Defendants’ counsel filed a motion for relief from judgment charging irregularity in the service of the summons and praying that the order of default and the judgment by default be set aside and that defendants' answer, which was attached to said motion, be admitted.

o Defendants alleged in said motion that the subject land was inherited by them, and that they have been paying taxes so that they have a good and valid right thereto.

o Plaintiff’s complaint was filed merely to compel them to settle a criminal case for frustrated homicide which they had filed against the plaintiff's son.

CFI denies motion for relief from judgment on the ground that the same was not accompanied by an affidavit of merit.

Defendants filed MR - since the motion for relief from judgment was predicated on lack of jurisdiction over the person of the defendants, the same need not be accompanied by an affidavit of merit. But they amended the complaint before the court could decide on it.

Plaintiff Bello filed opposition to the amended MR with counteraffidavit by Pat. Yobia saying that:

o He went to where Ubo and her son was residing. Ubo and Regis initially refused to accept the summons. But Yobia explained the nature of the Summons; that there is a civil case filed against them; that they need to find a lawyer to assist them. Ubo and Regis then reluctantly signed the summons. Thereafter, he detached the copy of the complaint and handed it to Ubo and Regis. He however took back the same afterwards; he also held on to the copy of the summons and afterwards returned to his police station.

CFI denies defendant Ubo’s MR: Yobia’s explanation of the nature of the summons and the complaint should have warned the defendants of the existence of a case against them; and the irregularity consisting in the failure of the serving officer to deliver to each one of them a copy of the complaint is, therefore, neutralized. It was incumbent upon the defendants to have checked up their case.

Defendants file notice and motion to appeal as pauper. The plaintiff, on the other hand, filed a motion for execution pending appeal. CFI later grants defendant’s appeal.

ISSUE: 1. WON there is a proper service of summons in the case at bar, and consequently, did the CFI of Leyte acquire jurisdiction over their person

HELD/RATIO:1. No. There was no valid service of summons on the defendants and, consequently, the Court of First Instance of Leyte did not acquire jurisdiction over their person.

Sec. 5, Rule 14 of the Rules of Court, expressly provides that summons may be served by the sheriff or other proper court officer of the province or, for special reasons, by a person especially authorized to serve the summons by the judge of the court which issued the same. This enumeration is exclusive.

We considered as irregular the service of summons by a police sergeant who was not a sheriff or a court officer and who was not authorized by the court to deliver the summons. Despite the counteraffidavit, the records of the case are replete with indications that the serving policeman was grossly ignorant of the rules concerning summons. The return of service was not made under oath in violation of Sec. 20, Rule 14 of the Rules of Court - which requires that "the proof of service of a summons ... shall be sworn to when made by a person other than the sheriff or his deputy." Furthermore, even assuming that Yobia could be considered as a proper person to serve the summons, still there was no valid and effective service since he brought back the summons with him together with the copy of the complaint.

Since a court acquires jurisdiction over the person of the defendant only by means of a valid service of summons, trial and judgment without such valid service are, therefore, null and void.

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FILMERCO COMMERCIAL CO. INC. V. IACGR no. 70661 (April 9 1987)

DOCTRINE: The terms "dwelling house" or "residence" are generally held to refer to the time of

service, hence it is not sufficient "to leave the copy at defendant's former dwelling house, residence, or place of abode, as the case may be, after his removal therefrom."

The doctrine of piercing the veil of corporate fiction refers to determination of liability and not to determination of jurisdiction. This is so because said doctrine comes to play only during the trial of the case after the court has already acquired jurisdiction over the corporation. Hence, before this doctrine can be applied, based on the evidence to be presented, it is imperative that the court must first have jurisdiction over the corporation.

EMERGENCY RECIT: Filmerco obtained loans from BPI where Spouses Miguel signed a deed of continuing

surety agreement to secure the said loans. When Filmerco defaulted BPI filed an action to recover the sum of money from both Filmerco and Spouses Miguel. Also, the defendants failed to answer within the reglementary period so they were judicially declared in default. Several motions, on the ground that there was no valid summons served, were filed by the defendants but these were all denied by the lower courts. The SC held, citing various jurisprudence, that there was no valid service of summons as it was served at the past residence of Filmerco. Likewise there was no valid service of summons as to the spouses as summons were served to one Angle Moger who was the owner of the house (which was subsequently leased to the spouses) and who refused to receive the said summons.

FACTS: Filmerco Commercial Co., Inc., (Filmerco) obtained two separate loans BPI on

November 26, 1982 and December 26, 1982 respectively. As security for the payment of the obligation, spouses Jaime and Ana Maria Miguel executed a deed of continuing suretyship wherein the Miguels bound themselves jointly and solidarily with Filmerco for the payment of the latter's obligation under the loan-accounts.The loans remained outstanding so on May 5,1983, BPI filed a complaint for recovery of a sum of money against Filmerco and spouses Jaime and Ana Maria Miguel before the Makati RTC.

The defendants were declared in default for failure to file an answer within the reglementary period. The plaintiff then presented evidence ex-parte after which the lower court on June 11, 1984 rendered a decision awarding the ff.: a) the sum of P308,525.17 plus 10% interest per annum and 12% penalty fee per annum from May 21, 1984 until the amount is fully paid;b) the sum equivalent to 20% of the total amount due as and for attorney's fees; c) to pay the costs of suit. (p.52, Rollo)

Various appeals and MR’s were filed by the defendants on the ground that there was no valid service of summons therefore the court’s decision is a nullity as the court never acquired jurisdiction over them.

According to the sheriff's return dated September 7, 1983, summons and copy of the complaint were not served on the petitioners at 31 Sta. Escolastica Street, Pasay City, their given principal place of business and had to be returned to the court unserved for the reason that the "defendants have already vacated the premises and/or addresses more than a year ago and no definite information could be had regarding their present whereabouts." Three separate summons for each of the defendants were addressed to 31 Sta. Scholastics Street, Pasay City, Metro Manila.

Upon motion of the private respondent (plaintiff in the case) the lower court issued alias summons.

According to the sheriff's return, summons were duly served upon "defendant-spouses Jaime and Ana Maria Miguel at No. 18, Yuchengco Drive, Pacific Malayan Village, Alabang, Muntinlupa, Metro Manila, thru Mrs. Angle Morger, a person residing therein of suitable age and discretion to receive service of that nature and who received the said court processes for and in behalf of the defendants but refused to sign." It was noted therein that the defendant spouses are "duly served" but that the other defendant Filmerco was "not and could not be served" and the summons pertaining to it was " returned unserved."

Petitioner spouses, Jaime and Ana Maria Miguel contend that the substituted service of summons upon their persons thru Mrs. Angle Morger at No. 18 Yuchengco Drive, Pacific Malayan Village, Alabang, Muntinlupa, Metro Manila was in- valid for the following reasons: (1) at the time of the service they were not residents of the said address, and (2) Mrs. Angle Morger was not authorized to receive papers or documents for them. They submitted affidavits of Angle Morger to prove their point.

ISSUE: 1. WON there was a valid service of summons

HELD/RATIO:1. NO. This is so because the doctrine of piercing the veil of corporate fiction comes to play only during the trial of the case after the court has already acquired jurisdiction over the corporation. Hence, before this doctrine can be applied, based on the evidence to be presented, it is imperative that the court must first have jurisdiction over the corporation. For the court to acquire jurisdiction over a domestic corporation such as the petitionercorporation, summons must be served upon it through the officers of the corporation enumerated in Section 13, Rule 14 of the Revised Rules of Court. There is not even a semblance of any effort to serve summons upon an officer as such Since, the summons intended for the petitioner-corporation was "not and could not be served" as certified in the sheriff's return, the lower court never acquired jurisdiction over the petitioner-corporation. It follows that the judgment against the petitioner-corporation is null and voidThe allegations that the petitioners deliberately concealed their whereabouts to escape the payment of just and valid obligations appear to have some basis. However, allegations such as these do not justify the appellate court's upholding a judgment wherein the trial court has not acquired jurisdiction over the persons of the defendants.

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LAUS V. CAG.R. No. 101256 (March 8, 1993)

DOCTRINE: 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 service cannot be effected within a reasonable time, substituted service may be resorted to under Section 8 of the same Rule.

The substituted service should be availed only when the defendant cannot be served promptly in person. Impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts. The statement should be made in the proof of service. This is necessary because substituted service is in derogation of the usual method of service.

EMERGENCY RECIT:Laus executed a promissory note in favour of Torres. He failed to pay the same so Torres filed for a complaint for the collection of sum of money. Sheriff Cruz went to the address of to serve summoins. Laus was not at home. Sheriff within 10 minutes resorted to substituted service to Areola who was at Laus’ residence. Investigations later show that Areola was merely a friend of their maid who stayed there for 1 week and was only 10-11 years old. Issue: Whether or not the trial court acquired jurisdiction over Laus by virtue of the substituted service of summons effected by Deputy Sheriff Cruz. Held: NO. Substitued service of summons was not validly effected. TC did not acquire jurisdiction over Laus. Sheriff in his return/ proof of service failed to indicate the impossibility of service of summons within a reasonable time, specify the efforts exerted to locate Laus, and state that it was served on a person of sufficient age and discretion residing therein.

FACTS: Loreto Alfaro-Laus (LAUS) executed a promissory note (P66K) in favor of Consuelo

P. Torres (TORRES). Upon maturity of the PN, only P11K was paid. Laus made no further payments.

Torres filed against and Laus and John Doe a complaint for the collection of a sum of money.

Deputy Sheriff Cruz proceeded to the Laus’ to serve the summons and a copy of the complaint.

o Failing to serve the summons personally upon Laus after waiting for 10 minutes, he resorted to a substituted service through one Josephine Areola, who purportedly represented herself to be the maid of Laus. Sheriff Cruz executed and filed a return stating said substituted service.

Sheriff in his RETURN/proof of service indicated the substituted service of summons. Laus did not file any answer. Trial Court declared Laus in default. Trial Court

rendered a judgment by default ordering Laus to pay Torres. Laus filed a motion to dismiss the case for lack of jurisdiction over their persons.

They allege that the service of summons was ineffective because it was not indicated in the return that the sheriff had first exerted efforts to serve the same personally before resorting to substituted service.

Trial Court denied MTD on the ground that it had already rendered a judgment by default.

Laus filed a motion to reconsider. He reiterated the contention that the trial court did not acquire jurisdiction over their persons because of the defective service of summons, and that they do not even know Areola, who received the summons. It turned out from their investigation that said Areola was just a guest of one of their maid who stayed for 1 week. Also, Areola was just a child of about 10-11 years old and would not be expected to know what to do with the documents handed to her. It

would not be fair for Laus if the summons would be served upon through a person who is not of sufficient age and discretion and a transcient at that.

Trial court denied the motion for reconsideration and held that there was a proper service of summons.

Court of Appeals denied Laus’ petition for certiorari for lack of merit (improper remedy, remedy should be appeal).

ISSUE:1. WON the trial court acquired jurisdiction over Laus by virtue of the substituted service of summons effected by Deputy Sheriff Cruz (focal issue)

HELD/RATIO: Since Laus did not voluntarily submit to the jurisdiction of the trial court, proper

service of summons became imperative. The substituted service of summons in this case was not validly effected. The trial

court did not acquire jurisdiction over the Laus. The order of default, the judgment by default, the writ of execution issued by it, the auction sale of the petitioners' properties levied on execution are, therefore, all null and void.

A perusal of the sheriff's return in the case at bar readily reveals that it does not o (a) indicate the impossibility of service of summons within a reasonable

timeo (b) specify the efforts exerted to locate the petitionerso and (c) state that it was served on a person of sufficient age and discretion

residing therein. o The fact of the matter is that as disclosed in his testimony taken in

connection with the motion for reconsideration, and the affidavit he prepared in conjunction with such hearing.

o Deputy Sheriff Cruz resorted to a substituted service on his first — and only — attempt to effect a personal service. Upon being informed that the petitioners were not around at that time, he immediately resorted to a substituted service through 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 they were expected to return home, the hours of the day they could be contacted at their house or the location of their offices, if any, in order that he could faithfully comply with the requirement of personal service.

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 service cannot be effected within a reasonable time, substituted service may be resorted to under Section 8 of the same Rule.

"SECTION 8. Substituted Service. — If 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 dwelling house or 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."

o "Within a reasonable time" contemplates a period of time longer than that demarcated by the word "prompt," and presupposes that a prior attempt at personal service, within a justifiable time frame as would be necessary to bring the defendant within the jurisdiction of the court, had failed. Since substituted service is in derogation of the common law and is extraordinary in character, it must be used only as prescribed and in the circumstances authorized by statute. Statutes prescribing modes other than personal service of summons must be strictly complied with to give the court jurisdiction, and such compliance must appear affirmatively in the return.

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In Keister vs. Navarro, this Court described how the impossibility of personal service should be shown: "Impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the fact that such efforts failed. This statement should be made in the proof of service. This is necessary because substituted service is in derogation 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 in character, and hence may be used only as prescribed and in the circumstances authorized by statute.'

Emphasizing the need for strict compliance with the requirements of substituted service, this Court issued Administrative Circular No. 59, which read: The manner of effecting substituted service as prescribed in Venturanza v. Court of Appeals, must be strictly complied with, thus:

o 'The substituted service should be availed only when the defendant cannot be served promptly in person. Impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts. The statement should be made in the proof of service. This is necessary because substituted service is in derogation of the usual method of service.

o Substituted service is a method extraordinary in character, and hence may be used only as prescribed in the circumstances authorized by statute. Thus, the statutory requirements of substituted service must be followed strictly, faithfully.

DE LEON V. HONTANOSASG.R. No. L-40377 (October 29, 1975)

DOCTRINE:If a party, after receiving summons fails to answer the same, such party shall be declared in default. Regarding summons served on one spouse, such is binding on the other spouse if the spouse receiving the summons informs the other spouse of such fact.

FACTS: Juan de Leon filed a complaint against spouses de Leon for the collection of a sum of

money. Juan caused the attachment of the spouses’ conjugal home in Dumaguete. The summons for the spouses were served on the husband in Cebu who wired his wife in Dumaguete informing her about the case.

The wife filed a motion to dissolve the writ of attachment claiming that the real owner of the conjugal home was her father and alleged that it has her husband who contracted the loan and the same did not redound to the benefit of the family. The TC did not resolve the matter immediately.

TC granted Juan’s motion to declare the spouses in default for not filing an answer after summons were served upon the husband. Judgment was rendered ordering the spouses de Leon to pay Juan the claimed amount. However, the execution of judgment was stayed.

TC proceeded to hear the motion to dissolve despite its promulgation of judgment. TC decided against the spouses because the wife failed to ask the TC to set aside the order of default. The execution proceeded and the property was sold to Juan.

The wife filed an MR reasoning that the subject property was sold by the wife’s father to her. TC granted the MR and set aside the order of default and set the case for pre-trial. This caused the filing of the present case for certiorari against the TC judge.

ISSUE:1. WON TC committed GAD in setting aside the order of default (and not its judgment of default) and for setting the case for pre-trial.

HELD/RATIO:1. Yes. TC committed GAD.

Although the wife was not personally served with summons, she was properly declared in default because the service of summons upon her husband was binding on her. On receiving the summons and copies of the complaint, the husband lost no time in apprising her of that fact by means of a telegram.

Thus, she was made aware of the complaint but instead of answering it, she resisted the writ of attachment. Thus, the order and judgment of default were proper and the TC committed GAD by setting aside as it did.

CASE RESULT: TC order setting aside the order of default was reversed. Since the property was already sold to Juan, its period of redemptions begins after the promulgation of the decision of the Court in this case.

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CARRIAGA V. MALAYAG.R. No. L-48375 (August 13, 1986)

DOCTRINE: (Sec 7)The service of summons may, with leave of court, be effected out of the Philippines through any other manner which the court may deem sufficient. This also contemplates service through registered mail

FACTS: Herein respondent Ana Almonte Cariaga Soon, filed in her behalf and in behalf of her

minor daughter an action for (1) Annulment of a Deed of Extra-Judicial Partition of Real Property, (2) Cancellation of Transfer Certificate of Title (TCT), (3) Recovery of Real Property with damages

All herein petitioners filed an answer with counterclaim except Jose C. Cariaga Jr. and Marieta Cariaga-Celis who were both residing abroad and were not served summons

Upon motion Almonte, the lower court granted them leave to effect extra-territorial service of summons

o These summons were served through registered mail abroad Herein petitioners, who are resident of the Philippines filed a motion to set aside the

summons as null and void, it being irregular and unauthorized Lower Court: Motion to set aside summonses was denied since there was

substantial compliance with Sec 17 in relation to Sec 7 Rule 14 of the ROC.

ISSUE:1. WON the service of summons by registered mail upon defendants in the case at bar

is one which is contemplated within the principles laid down in the provisions of Secs. 17, 7 and 22, Rule 14 of the New Rules of Court

HELD/RATIO:1. YES. The service of summons is proper.

Extraterritorial service of summons is proper:o when the action affects the personal status of the plaintiff;o when the action 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;

o when the relief demanded in such an action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and

o when defendant non-resident's property has been attached within the Philippines

In any of such four cases, the service of summons may, with leave of court, be effected out of the Philippines in three ways:

o by personal service;o 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 should be sent by registered mail to the last known address of the defendant; and

o in any other manner which the court may deem sufficient. In this case, the third mode of extraterritorial service of summons was

substantially complied with The requirement of due process has been met as shown by the fact that

defendants actually received the summonses and copies of the complaint

ABLAZA V. CIRG.R. No. L-33906 (December 21, 1983)

DOCTRINE: Persons associated in business are sued under a common name, service may be effected upon all by serving upon any one of them or upon the person in charge of the office or place of business maintained in the common name.Emergency Recit:ADLO filed a complaint before the CIR against CBT for salary differentials. CBT was served summons, a copy of the complaint, and a required notice of hearing. CBT failed to file its answer or any responsive pleading in time. CBT was declared in default and ADLO, et al., were allowed to present their evidence ex-parte. An amount of the salary differentials demanded was computed. A writ of execution was issued by the CIR againt CBT and Ablaza, the operator. Abalaza's personal properties were levied upon. Ablaza sought relief but CIR denied. Hence this petition for certiorari which the SC dismissed for lack of merit. The contention that Ablaza was not impleaded, thus, not making her a party, is incorrect. Persons associated in business are sued under a common name, service may be effected upon all by serving upon any one of them or upon the person in charge of the office or place of business maintained in the common name. there were irregularities in the summons of Ablaza is incorrect. Similarly, Ablza actively avoided the service of summons and even said outright that she does not care abut the summons. Similarly, there was no new cause of action included because the petition for salary differentials necessarily include "payment for services rendered on Sundays or on legal holidays."

FACTS: This is a petition for certiorari to declare null and void the decision of the respondent

Court of Industrial Relations The Association of Democratic Labor Organizations (ADLO) et al. filed a complaint

before the CIR against Cerisco Blackcat Trading (CBT) for salary differentials (minimum wage, overtime pay, and reinstatement with backwages.

CBT was served summons with a copy of the complaint attached thereto. CIR also had the required notice of hearing served to CBT.

CBT failed to file its answer or any responsive pleading within the reglementary period provided by law. Hence, CIR declared CBT in default and private respondents ADLO, et al., were allowed to present their evidence ex-parte.

After trial, CIR rendered its decision ordering the Chief of the Examining Division of the Court to make a computation of the amount of salary differentials and to submit a report to the Court immediately for further disposition.

The Chief of the Examining Division reported that there is a P223,098.04 salary difference.

CIR issued an order which approves the Report of Examiner there being no objection filed thereto by respondents.

ADLO moved for the issuance of a writ of execution which the CIR granted against a corporation CBT owned but Ablaza (petitioner in the case at hand) operated.

After an authorized deputy sheriff of the CIR levied upon Ablaza's personal properties, the latter filed an urgent petition for relief. CIR denied both the petition for relief and the subsequent motion for reconsideration.

ISSUE: 1. WON there was fraud or fatal irregulatiries in service of summons, court processes and orders which deprive a party of due notice and right to be heard constitute a violation of due process.2. WON the complaint was amended to include new causes of action without any formal amended complaint being filed and new summons being issued on the amended complaint.

HELD/RATIO:

[ ] 13

1. NO, there was none. The complaint filed with the CIR was against Cerisco Blackcat Trading as sole respondent and the body of the complaint makes no mention whatsoever of Ablaza, to whom no summons was not duly served. While it is absolutely indispensable for the maintenance of a contentious action in the courts of justice to have as defendant some natural or juridical person, this is not the case today.

Ablaza argues that the name "CERISCO TRADING" is a mere business name while "BLACKCAT" is a mere trademark, the combination CERISCO BLACKCAT TRADING is neither a natural or a juridical person, and as such, can neither sue nor be sued. She is incorrect.

Section 9, Rule 14 of the Revised Rules of Court provides that when persons associated in business are sued under a common name, service may be effected upon all by serving upon any one of them or upon the person in charge of the office or place of business maintained in the common name. Ablaza was doing business under the common name Cerisco Blackcat Trading and always transacted business under that name, the service of summons made upon the person in charge of the office or place of business maintained in the common name was adequate.

This is specially true in this case where the plaintiffs are poor laborers. When the rules are applied to labor cases, the interpretation must proceed in accordance with the liberal spirit of the labor laws. nroblesvirtualawlibrary chanrobles virtual law library

The records indicate beyond doubt that the respondent in the case before the CIR was adequately given the necessary notice and that the owners of Cerisco Blackcat Trading deliberately avoided acknowledgment of the service of summons. No less than seven returns of the Sheriff clearly show that there was service of the necessary processes. At no time did petitioner Ablaza, owner of Cerisco, condescend to honor or respect the summons. At one instance, she verbally told the bailiff that "they don't care about this," after throwing the court process outside the gate 'of the compound. Since personal service of summons was made impossible, substituted service was availed of by the bailiff by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof.

2. The other issue with regard the alleged inclusion of new causes of action, this argument has no merit.

The prayer asked for wage differentials pursuant to the statutory minimum wage law, overtime pay, reinstatement, and backwages. The payment for services rendered on Sundays or on legal holidays is necessarily included in the prayer for overtime pay beyond the eight hours. Likewise, payment for maternity leave may be deemed included in the abovecited prayer. In fact, there was no amendment to speak of in the case at bar. All that private respondents did was to introduce evidence tending to prove claims which were necessarily included in their prayer.c

WHEREFORE, the instant petition for certiorari is hereby DISMISSED for lack of merit. The decision appealed from is AFFIRMED. Costs against the petitioner.chanroblesvirtualawlibrary chanrobles virtual law librarySO ORDERED.

Separate Opinion:MELENCIO-HERRERA, J., concurring:chanrobles virtual law libraryThe summons directed to CBT was defective in that it did not include Ablaza. The defect, however, could have been cured by "Victoria Ablaza, doing business under the name and trademark Cerisco Blackcat Trading," since the intention was to sue the owner of the business enterprise. Amendment is allowed in cases where it appears that the plaintiff intended, in fact, to act against the individual doing business rather than against the business entity which the individual was operating Nonetheless, under Section 9, Rule 14, service of summons upon the person in charge of the place of business in the common name, as was done in this case, was adequate.

DELTA MOTOR SALES CORP. V. MANGOSING(G.R. No. L-41667, April 30, 1976)

DOCTRINE:A strict compliance with the mode of service is necessary to confer jurisdiction of the court over a corporation. The officer upon whom service is made be one who is named in the statute; otherwise the service is insufficient. 

EMERGENCY RECIT:Pamintuan filed a cased against Delta Motor for breach of warranty and recovery of damages. The summons for Delta Motor was served on Miranda, a mere employee. Delta Motor was declared in default for not answering the complaint and was found by the court to be liable for breach and damages. Delta Motor filed a petition contending that Miranda was not a corporate secretary and the service on Miranda was a mistake. The lower court denied the motion. Hence, the petition. The issue is whether the service of summons was proper. The court held that the service of summons was NOT proper because Miranda, a mere employee, is not one of those mentioned in Rule 14, Sec 13 to whom service upon private domestic corporation or partnership should be served. The court did not acquire jurisdiction over Delta Motor.

FACTS: Pamintuan (Respondent) sued Delta Motor (petitioner) for the recovery of the sum of

P58,000 as damages and attorney's fees for allegedly selling a defective Toyota car to Pamintuan and for failing to fulfill its warranty obligation by not properly repairing the car (leaks emanating from its windshield, doors and windows).

The summons for Delta Motor was served on its employee, Miranda, who acknowledged its receipt by signing on the lower portion of the original summons.

Delta Motor did not answer the complaint within the reglementary period and consequently, Pamintuan filed a motion to declare Delta Motor in default.

The lower court in its decision granted the motion and found Delta liable for breach of warranty and damages.

That decision was served on Delta Motor which prompted Delta’s lawyers to file a petition to lift the order of default, to set aside the judgment and for new trial.

Delta Motor alleged that Miranda was not the corporate secretary but the secretary of a certain Ramos of the personnel department and that service upon her was a mistake.

The lower court denied Delta Motor’s motion. Delta Motor appealed. Pamintuan countered the appeal with a motion for execution. The lower court granted Pamintuan’s motion for execution and refused Delta Motor’s appeal.

Hence, the petition.

ISSUE:1. WON Delta Motor was properly served with summons 2. WON the court had jurisdiction to render the judgment by default against it and to execute

that judgment.

HELD/RATIO:1. NO.

Rule 14 of the Revised Rules of Court provides:

SEC. 13. Service upoin private domestic corporation or partnership. — If 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.

For the purpose of receiving service of summons and being bound by it, a corporation is Identified with its agent or officer who under the rule is designated to accept service of process. Service of summons must be made to the person named in the Rules. The

14 [ ]

secretary to whom the summons was served was not one of those mentioned in the Rules, thus, the service was insufficient.

2. NO.Courts acquire jurisdiction over the person of a party defendant and of the subject-matter of the action by virtue of the service of summons in the manner required by law. Where there is no service of summons or a voluntary general appearance by the defendant, the court acquires no jurisdiction to pronounce a judgment in the case.

In the instant case the Manila court did not acquire jurisdiction over Delta Motor because it was not properly served with summons. The service of summons on Miranda, who is not among the persons mentioned in section 13 of Rule 14, was insufficient. It did not bind Delta Motor. Consequently, the order of default, the judgment by default and the execution are void and should be set aside.

MARCOPPER MINING CORPORATION V. MIGUEL GARCIA G.R. No. L-55935 (July 30, 1986)

DOCTRINE:The can properly dismiss a complaint on a motion to dismiss due to lack of cause of action even without a hearing. The trial court can consider all the pleadings filed, including answers, motions and evidence then on record for purposes of resolving a motion to dismiss based on lack of cause of action.

EMERGENCY RECIT:Petitioner Marcopper filed a complaint for quieting of title/reconveyance against Respondent Garcia to declare the latter’s free patent over the subject land void. Respondent Garcia filed his answer with counterclaim alleging that he is the sole and exclusive owner of the land. Petitioner then filed its answer to the respondent's counterclaim and filed a request for admission admitting that admitted that it was not able to file any opposition against the issuance of a Free Patent to the respondent because it had no knowledge of such issuance. Respondent then filed a motion to dismiss. The lower court dismissed the petitioner's complaint for having no cause of action and for being moot and academic. Hence, the petition. Petitioner raised the issue that the motion to dismiss was not proper because no hearing on the merits of the case was conducted. The SC held that the lower court had the opportunity to examine the merits of the pleadings submitted by the parties. The order of dismissal was in the nature of a summary judgment. The trial court can properly dismiss a complaint on a motion to dismiss due to lack of cause of action even without a hearing

FACTS: Petitioner Marcopper Mining Corporation filed a complaint for quieting of

title/reconveyance and damages against private respondent Miguel Garcia praying that Garcia's Free Patent No. 542586 and OCT No. P-2186 of the Register of Deeds of Marinduque be declared void and asked that a transfer certificate of title be issued in its favor for having acquired it in good faith and for value from Buenaventura Paez who had been in open, continuous, exclusive, adverse and notorious possession, occupation, cultivation and enjoyment thereof since about 1921.

The respondent alleged in his answer with counterclaim that he is the sole owner of the land in question as the holder of a free patent and for which, a corresponding certificate of title was issued by the Registrar of Deeds; that Paez was just residing in a small portion of the land by mere tolerance of the respondent. Respondent further alleged that Paez had executed an affidavit of quitclaim over the land.

Petitioner then filed its answer to the respondent's counterclaim and filed a request for admission. The petitioner admitted that it was not able to file any opposition against the issuance of a Free Patent to the respondent because it had no knowledge of such issuance but it did file an action for the cancellation of such certificate of title upon its discovery.

The respondent filed a motion to dismiss arguing that that the OCT of the respondent had already become indefeasible; that petitioner's action for reconveyance has prescribed; that even if the action had not yet prescribed, the petitioner could not avail of the same since the land before the issuance of the OCT is public and therefore, cannot be the subject of reconveyance; and that the petitioner is guilty of laches and inexcusable negligence in not protecting and asserting its rights, if any, over the disputed land.

The lower court dismissed the petitioner's complaint for having no cause of action and for being moot and academic

Hence, the petition. The petitioner contends that it is a well-settled rule that when the motion to dismiss is based on the ground that the complaint states no cause of action, no evidence may be allowed and the issue should only be determined in the light of the allegations of the complaint and the judge may not inquire into the truth of the allegations, and find them to be false without a hearing

ISSUE:

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1. WON the Motion to dismiss was proper

HELD:1. YES.

The rule on a motion to dismiss cited by the petitioner, while correct as a general rule is not without exceptions. In the present case, before the trial court issued the questioned order dismissing petitioner's complaint, it had the opportunity to examine the merits of the complaint, the answer with counterclaim, the petitioner's answer to the counterclaim and its answer to the request for admission. It was but logical for said court to consider all of these pleadings in determining whether or not there was a sufficient cause of action in the petitioner's complaint. The order of dismissal was in the nature of a summary judgment. The trial court can properly dismiss a complaint on a motion to dismiss due to lack of cause of action even without a hearing, by taking into consideration the discussion in said motion and the opposition thereto. Furthermore, even if the complaint stated a valid cause of action, a motion to dismiss for insufficiency of cause of action will be granted if documentary evidence admitted facts sufficient to defeat the claim. Moreover, petitioner-appellant cannot invoke the rule that, when the ground for asking dismissal is that the complaint states no cause of action, its sufficiency must be determined only from the allegations in the complaint. The rules of procedure are not to be applied in a very rigid, technical sense; rules of procedure are used only to help secure substantial justice. If a technical and rigid enforcement of the rules is made, their aim would be defeated. Where the rules merely secondary in importance are made to override the ends of justice and had been misapplied to the prejudice of the substantial right of a party, said rigid application cannot be countenanced.

EB VILLAROSA V. BENITOG.R. No. 136426. (August 6, 1999)

DOCTRINE:Summons; Jurisdiction; The designation of persons or officers who are authorized to accept summons for a domestic corporation or partnership is now limited and more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil Procedure. The rule now states “general manager– instead of only “manager–; “corporate secretary– instead of “secretary–; and “treasurer– instead of “cashier.– The phrase “agent, or any of its directors– is conspicuously deleted in the new rule.The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. Section 20, Rule 14 now provides that “the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. The emplacement of this rule clearly underscores the purpose to enforce strict enforcement of the rules on summons.

FACTS: Petitioner E. B. Villarosa & Partner Co., Ltd. is a limited partnership with principal

office address at 102 Juan Luna St., Davao City and with branch offices at 2492 Bay View Drive, Tambo, Parañaque, Metro Manila and Kolambog, Lapasan, Cagayan de Oro City. Petitioner and private respondent executed a Deed of Sale with Development Agreement wherein the former agreed to develop certain parcels of land located at Barrio Carmen, Cagayan de Oro belonging to the latter into a housing subdivision for the construction of low cost housing units. They further agreed that in case of litigation regarding any dispute arising therefrom, the venue shall be in the proper courts of Makati.

On April 3, 1998, private respondent, as plaintiff, filed a Complaint for Breach of Contract and Damages against petitioner, as defendant, before the Regional Trial Court of Makati allegedly for failure of the latter to comply with its contractual obligation in that, other than a few unfinished low cost houses, there were no substantial developments therein.

Summons, together with the complaint, were served upon the defendant, through its Branch Manager Engr. Wendell Sabulbero at the stated address at Kolambog, Lapasan, Cagayan de Oro City but the Sheriff’s Return of Service stated that the summons was duly served “upon defendant E. B. Villarosa & Partner Co., Ltd. thru its Branch Manager Engr. WENDELL SALBULBERO on May 5, 1998 at their new office Villa Gonzalo, Nazareth, Cagayan de Oro City, and evidenced by the signature on the face of the original copy of the summons.–

On June 9, 1998, defendant filed a Special Appearance with Motion to Dismiss alleging that on May 6, 1998, “summons intended for defendant– was served upon Engr. Wendell Sabulbero, an employee of defendant at its branch office at Cagayan de Oro City. Defendant prayed for the dismissal of the complaint on the ground of improper service of summons and for lack of jurisdiction over the person of the defendant. Defendant contends that the trial court did not acquire jurisdiction over its person since the summons was improperly served upon its employee in its branch office at Cagayan de Oro City who is not one of those persons named in Section 11, Rule 14 of the 1997 Rules of Civil Procedure upon whom service of summons may be made.

Private Respondent cites earlier cases where the SC upheld service of summons upon a construction project manager; a corporation’s assistant manager; ordinary clerk of a corporation; private secretary of corporate executives; retained counsel; officials who had charge or control of the operations of the corporation, like the assistant general manager; or the corporation’s Chief Finance and Administrative Officer. In these cases, these persons were considered as “agent– within the contemplation of the old rule.

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ISSUE: 1. WON an agent of a domestic private corporation can receive summons in behalf of

their corporation?2. WON the filing of a motion to dismiss can be deemed voluntary submission to the

jurisdiction of the court.

HELD: 1. NO. The service of summons upon the branch manager of petitioner at its branch

office at Cagayan de Oro, instead of upon the general manager at its principal office at Davao City is improper. There being no proper service of summons, the trial court cannot take cognizance of a case for lack of jurisdiction over the person of the defendant. Any proceeding undertaken by the trial court will consequently be null and void.

o Section 11, Rule 14 of the 1997 Rules of Civil Procedure provides the enumeration of persons to whom summons may be served. The list is “restricted, limited and exclusive– following the rule on statutory construction expressio unios est exclusio alterius.

o Delta Motor Sales Corporation vs. Mangosing: “A strict compliance with the mode of service is necessary to confer jurisdiction of the court over a corporation. The officer upon whom service is made must be one who is named in the statute; otherwise the service is insufficient. x x x. The purpose is to render it reasonably certain that the corporation will receive prompt and proper notice in an action against it or to insure that the summons be served on a representative so integrated with the corporation that such person will know what to do with the legal papers served on him. In other words, ‘to bring home to the corporation notice of the filing of the action.’ x x x. The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal requirements as to the manner in which summons should be served on a domestic corporation. x x x.– (italics supplied).

o The particular revision under Section 11 of Rule 14 was explained by retired Supreme Court Justice Florenz Regalado, thus: “x x x the then Sec. 13 of this Rule allowed service upon a defendant corporation to ‘be made on the president, manager, secretary, cashier, agent or any of its directors.’ The aforesaid terms were obviously ambiguous and susceptible of broad and sometimes illogical interpretations, especially the word ‘agent’ of the corporation. The Filoil case, involving the litigation lawyer of the corporation who precisely appeared to challenge the validity of service of summons but whose very appearance for that purpose was seized upon to validate the defective service, is an illustration of the need for this revised section with limited scope and specific terminology. Thus the absurd result in the Filoil case necessitated the amendment permitting service only on the in-house counsel of the corporation who is in effect an employee of the corporation, as distinguished from an independent practitioner.– (italics supplied)

2. NO. The filing of a motion to dismiss, whether or not belatedly filed by the defendant, his authorized agent or attorney, precisely objecting to the jurisdiction of the court over the person of the defendant can by no means be deemed a submission to the jurisdiction of the court.

Before, the rule was that a party may challenge the jurisdiction of the court over his person by making a special appearance through a motion to dismiss and if in the same motion, the movant raised other grounds or invoked affirmative relief which necessarily involves the exercise of the jurisdiction of the court, the party is deemed to have submitted himself to the jurisdiction of the court. This doctrine has been abandoned in the case of La Naval Drug Corporation vs. Court of Appeals, et al., which became the basis of the adoption of a new provision in the former Section 23, which is now Section 20 of Rule 14 of the 1997 Rules.

PARAMOUNT INSURANCE CORP. V. AC ORDONEZ CORPG.R. No. 175109 (August 6, 2008)

DOCTRINE:SEC. 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.

ER:

FACTS:  Petitioner Paramount Insurance Corp. is the subrogee of Maximo Mata, the registered

owner of a Honda City sedan involved in a vehicular accident with a truck mixer owned by respondent corporation and driven by respondent Franklin A. Suspine on September 10, 1997, at Brgy. Panungyanan, Gen. Trias, Cavite.

February 22, 2000: petitioner filed before the Metropolitan Trial Court of Makati City, a complaint for damages against respondents. 

Based on the Sheriff’s Return of Service, summons remained unserved on respondent Suspine, while it was served on respondent corporation and received by Samuel D. Marcoleta of its Receiving Section on April 3, 2000.

May 19, 2000: petitioner filed a Motion to Declare Defendants in Default June 28, 2000: respondent corporation filed an Omnibus Motion (And Opposition to

Plaintiff’s Motion to Declare Defendant in Default) alleging that summons was improperly served upon it because it was made to a secretarial staff who was unfamiliar with court processes; and that the summons was received by Mr. Armando C. Ordoñez, President and General Manager of respondent corporation only on June 24, 2000.  Respondent corporation asked for an extension of 15 days within which to file an Answer.

June 30, 2000: Pending resolution of its first motion to declare respondents in default, petitioner filed a Second Motion to Declare Defendants in Default.

July 26, 2000: respondent corporation filed a Motion to Admit Answer alleging honest mistake and business reverses that prevented them from hiring a lawyer until July 10, 2000, as well as justice and equity.  The Answer with Counterclaim specifically denied liability, averred competency on the part of respondent Suspine, and due selection and supervision of employees on the part of respondent corporation, and argued that it was Maximo Mata who was at fault.

August 25, 2000: the MTC of Makati City issued an Order admitting the answer and setting the case for pre-trial on Oct. 17, 2000

Petitioner moved for reconsideration but it was denied.  Thus, it filed a petition for certiorari and mandamus with prayer for preliminary injunction and temporary restraining order before the RTC of Makati City. 

October 16, 2000: the RTC of Makati City issued a temporary restraining order May 22, 2001: RTC issued a writ of preliminary injunction.  September 21, 2005: the RTC granted the petition, set aside MTC decision dated

August 25, 2000, making permanent the May 22 decision. July 17, 2006: CA reverses Sept. 21 decision and reinstates Aug. 25 decision

  ISSUE:1. WON THERE WAS VALID SERVICE OF SUMMONS ON DEFENDANT AC ORDONEZ CONSTRUCTION CORPORATION.

HELD:1. NO

Section 11, Rule 14 sets out an exclusive enumeration of the officers who can receive summons on behalf of a corporation.  Service of summons to someone other than the

[ ] 17

corporation’s president, managing partner, general manager, corporate secretary, treasurer, and in-house counsel, is not valid.

The designation of persons or officers who are authorized to receive summons for a domestic corporation or partnership is limited and more clearly specified in the new rule.  The phrase ‘agent, or any of its directors’ has been conspicuously deleted.  Moreover, the argument of substantial compliance is no longer compelling.  We have ruled that the new rule, as opposed to Section 13, Rule 14 of the 1964 Rules of Court, is restricted, limited and exclusive, following the rule in statutory construction that expressio unios est exclusio alterius.  Thus, the service of summons to respondent corporation’s Receiving Section through Samuel D. Marcoleta is defective and not binding to said corporation.

On its face, the return shows that the summons was received by an employee who is not among the responsible officers enumerated by law.  Such being invalid, petitioner should have sought the issuance and proper service of new summons instead of moving for a declaration of default.

Consequently, the motions for declaration of default filed on May 19, 2000 and June 30, 2000 were both premature. Thus, there was no grave abuse of discretion when the Metropolitan Trial Court admitted respondent corporation’s Answer.  Although it was filed beyond the extension period requested by respondent corporation, however, Sec. 11, Rule 11 grants discretion to the trial court to allow an answer or other pleading to be filed after the reglementary period, upon motion and on such terms as may be just.  An answer should be admitted where it had been filed before the defendant was declared in default and no prejudice is caused to plaintiff.  The hornbook rule is that default judgments are generally disfavored.

WHEREFORE, the petition is DENIED.  The assailed Decision of the Court of Appeals dated July 17, 2006 reinstating the August 25, 2000 and September 26, 2000 Orders of the Metropolitan Trial Court of Makati City, Branch 66 which admitted respondent corporation’s Answer and set the case for pre-trial, as well as the Resolution dated October 12, 2006 denying the motion for reconsideration, are AFFIRMED.

         

LITTON MILLS, INC. V. CAG.R. No. 94980 (May 15, 1996)

DOCTRINE: (Topic- Rule 14, Sec 14)A court need not go beyond the allegations in the complaint to determine whether or not a defendant foreign corporation is doing business for the purpose of Rule 14, Sec 14 (service upon defendant whose identity or whereabouts are unknown)Service upon foreign corporations could be made in 3 ways: (1) by serving upon the agent designated in accordance with law to accept service of summons; (2) if there is no resident agent, by service on the government official designated by law to that effect; and (3) by serving on any officer or agent of said corporation within the Philippines

EMERGENCY RECIT:Litton supplied Empire (the local agent of Gelhaar) soccer jerseys. To be able to collect from the bank, a certificate of inspection from Empire is required, but the latter refused to issue such. Litton filed a complaint for specific performance with RTC Pasig. The law firm of Sycip, Salazar, Feliciano and Hernandez objected to the jurisdiction of the court over Gelhaar contending: (1) the latter is a foreign corporation and beyond the reach of the local courts, and (2) Litton failed to prove that Gelhaar was doing business in the Philiipines which is required before summons could be served. HELD: Petition dismissed. The fact of doing business must be established by appropriate allegations in the complaint. A court need not go beyond the allegations in the complaint to determine whether or not a defendant foreign corporation is doing business. The allegation that Empire, for and in behalf of Gelhaar, ordered dozens of soccer jerseys from Litton and for this purpose Gelhaar caused the opening of an irrevocable letter of credit in favor of Litton is a sufficient allegation that Gelhaar was doing business in the Philippines.

FACTS: Petitioner Litton Mills, Inc. (Litton) agreed to supply Empire Sales Philippines

Corporation (Empire), the local agent of private respondent Gelhaar Uniform Company (Gelhaar), a US corporation, 7,770 dozens of soccer jerseys

Litton sent four shipments totalling 4,770 dozens of the soccer jerseys between December 2 and December 30, 1983. A fifth shipment, consisting of 2,110 dozens of the jerseys, was inspected by Empire from January 9 to January 19, 1984, but Empire refused to issue the required certificate of inspection which is required for Litton’s collection from the bank

Litton filed a complaint with the Regional Trial Court of Pasig for specific performance and sought the issuance of a writ of preliminary mandatory injunction to compel Empire to issue the inspection certificate covering the 2,110 dozen jerseys and the recovery damages

The trial court issued the writ on January 25, 1984. The next day, Empire issued the inspection certificate, so that the cargo was shipped on time.

On February 8, 1984, Atty. Remie Noval filed in behalf of the defendants a “Motion For Extension of Time To File An Answer/Responsive Pleading.” He filed ten other motions for extension, which were all granted except for the last. On his motion, the court later reconsidered its order of denial and admitted the answer of the defendants.

The law firm of Sycip, Salazar, Feliciano and Hernandez entered a special appearance for the purpose of objecting to the jurisdiction of the court over Gelhaar based on the ff grounds:

o as a foreign corporation not doing business in the Philippines, it is beyond the reach of the local courts

o Litton failed to allege and prove that Gelhaar was doing business in the Philippines, which is required, before summons could be served under Rule 14, §14.

It also denied the authority of Atty. Noval to appear for Gelhaar

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ISSUE: 1. WON jurisdiction over Gelhaar was acquired2. WON the contract with Litton constitutes “doing business.”3. WON the appearance of Atty. Noval in behalf of Gelhaar was binding on the latter

HELD/RATIO: 1. YES

The petitioner opines that the phrase, “(the) fact (of doing business in the Philippines) must first be established in order that summons be made and jurisdiction acquired,” indicates that a mere allegation to that effect in the complaint is not enough — there must instead be proof of doing business

Jurisdiction and venue of actions are initially determined by the allegations of the complaint. Jurisdiction cannot be made to depend on independent pleas set up in a mere motion to dismiss, otherwise jurisdiction would become dependent almost entirely upon the defendant.

The fact of doing business must be established by appropriate allegations in the complaint. A court need not go beyond the allegations in the complaint to determine whether or not a defendant foreign corporation is doing business for the purpose of Rule 14, § 14

In the case at bar, the allegation that Empire, for and in behalf of Gelhaar, ordered 7,770 dozens of soccer jerseys from Litton and for this purpose Gelhaar caused the opening of an irrevocable letter of credit in favor of Litton is a sufficient allegation that Gelhaar was doing business in the Philippines.

2. YES Gelhaar contends that the contract with Litton was a single, isolated transaction and

that it did not constitute “doing business.” It is not really the fact that there is only a single act done that is material. The other

circumstances of the case must be considered. In the case at bar, the trial court was certainly correct in holding that Gelhaar’s act in purchasing soccer jerseys to be within the ordinary course of business of the company considering that it was engaged in the manufacture of uniforms. The acts noted above are of such a character as to indicate a purpose to do business.

In accordance with Rule 14, § 14, service upon Gelhaar could be made in three ways: (1) by serving upon the agent designated in accordance with law to accept service of summons; (2) if there is no resident agent, by service on the government official designated by law to that effect; and (3) by serving on any officer or agent of said corporation within the Philippines. Here, service was made through Gelhaar’s agent, the Empire Sales Philippines Corp. There was, therefore, a valid service of summons on Gelhaar, sufficient to confer on the trial court jurisdiction over the person of Gelhaar.

3. NO Atty. Noval admits that he was not appointed by Gelhaar as its counsel. What he

claims is simply that Gelhaar knew of the filing of the case in the trial court and of his representation

No voluntary appearance by Gelhaar can, therefore, be inferred from the acts of Atty. Noval.

WANG LABORATORIES V. MENDOZA

SAHAGUN V. CA G.R. No. 78328 (June 3, 1991) DOCTRINE: Service of summons on a nonresident defendant who is not found in the country is required, not for purposes of physically acquiring jurisdiction over his person but simply in pursuance of the requirements of fair play (due process), so that he may be informed of the pendency of the action against him and the possibility that property in the Philippines belonging to him or in which he has an interest may be subjected to a judgment in favor of a resident, and that he may thereby be accorded an opportunity to defend in the action, if he be so minded. For this purpose, publication in a local newspaper of general circulation (or in any other locality the judge may order, as provided in Sec 15, Rule 14) suffices.  EMERGENCY RECIT:Abel Sahagun was sued by Filinvest for the payment of a promissory note. Because Abel was in the US at the time, ordinary service of summons could not be done; so, the court ordered notice to be published in a newspaper, Manila Evening Post. However, there was a variance in the address of Abel as provided in the order of the court, versus that in the published notice. The SC ruled that notice of summons by publication was proper, even if not published in the US, because the notice still complied with the Rules. The Rules: (a) allow the court discretion to determine where and when the publication will be made; (b)in addition, require a copy of the summons be served at the defendant's last known address. However, since (b) was never proven, there was no proper service of summons to Abel in this case.  FACTS:(1)

Abel Sahagun, the husband of herein petitioner Carmelita Sahagun, was the manager of Rallye Motor Co., Inc.

Allegedly, Abel made it appear that Rallye Motor had sold a vehicle to Ernesto Salazar, who issued a promissory note in payment, secured by a chattel mortgage on the vehicle itself.

Rallye, through Abel, assigned the note to Filinvest. Upon maturity, Salazar failed to pay the amount of the note to Filinvest. Initially, Filinvest

sued Salazar, but it discovered later on that the mortgaged car had never been delivered to Abel.

Therefore, Filinvest sued Abel. A write of attachment was issued on the house and lot of Abel where he and his family live; his wife also claims to own the house exclusively, having paid for it with her own earnings.

Since at the time of the suit, Abel was in the US and his whereabouts were unknown, Filinvest moved to declare Abel in default. But the trial court instead directed Filinvest to effect service of summons on Abel. When Filinvest failed to do so, the trial court dismissed the complaint.

Carmelita, wife of Abel, moved to intervene in the case and was granted by the court some time to file her complaint in intervention. However, for her failure to show up at the pre-trial, she and Abel were declared in default.

Subsequently, the court decided against the Sahagun spouses, ordering them to pay Filinvest.

CA: set aside trial court's ruling, saying that Carmelita was deprived of the opportunity to present evidence

(2)

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Later on, Filinvest filed ANOTHER complaint, and asked for leave of court to serve summons by publication ("in a newspaper of general circulation in the Philippines, to which this matter may be assigned after due raffle in accordance with existing law, for three successive days") on Abel in the US. After at least 60 days after notice, Abel was supposed to file his answer in Court

In this case, Carmelita and Rallye Motors were properly impleaded as defendants

The court ordered that the address of Abel to be included in the published notice was "1228-A Antipolo Street, Makati, Metro Manila." However, the entry in the Manila Evening Post itself was his last known address was "No. 16 Mangga Chupoy, Pilar Village Subdivision, Las Piñas, Metro Manila," directly contradicting the order of the court.

Abel was declared in default. This was assailed by Carmelita on certiorari to the CA. The CA ruled against Carmelita. Hence, she brought this petition.

 ISSUE: Did the trial court acquire jurisdiction over Abel by the publication of summons in the Manila Evening Post, thereby giving the court power to declare him in default? (Was the summons by publication proper?) HELD/RATIO: YES

Section 17, Rule 14 (note: this is now Sec 15) applies here because: (1) the defendant is outside of the country; (2) the case concerns real property

The trial court correctly ordered service of summons on Abel, adopting for such service one of the modes authorized by the above provision of the Rules, that is, "by publication in a newspaper of general circulation in such places and for such time as the court may order."

On the issue of whether or not the publications should have been made in the US: It is evident that the law itself does not consider actual notice to the defendant in

cases of this kind as absolutely necessary. (El Banco Español-Filipino vs. Palanca, etc.)

"This Court clarified that in a quasi in rem action jurisdiction over the person of a nonresident defendant is not essential. The service of summons by publication is required "merely to satisfy the constitutional requirement of due process". --> in the nature of a judgment in rem (De Midgely vs. Ferandos, etc., et al.)

Also, it is not even known in what state Abel is; hence, publication in the US is not feasible.

However, just because it is difficult to serve summons to a nonresident in this way, this is no reason to set aside the rule of publication by summons wherever the court may order.

Service of summons on a nonresident defendant who is not found in the country is required, not for purposes of physically acquiring jurisdiction over his person, but simply for fair play, so that he may be informed of the pendency of the action against him and the possibility that property in the Philippines belonging to him or in which he has an interest may be subjected to a judgment in favor of a resident, and that he may thereby be accorded an opportunity to defend in the action.

HOWEVER: despite our holding that publication in the Philippines is sufficient, the service of summons in this case is still defective, because there was no showing that copies of the summons and the amended complaint were duly served at the defendant's last known correct (remember the confusion in the address published and address ordered by the court to be written) address by registered mail.

The failure to strictly comply correctly with the requirements of the rules regarding the mailing of copies its publication is a fatal defect in the service of summons.

 

VELAYO-FONG V. SPOUSES VELAYOGR No. 155488 (December 6, 2006)

DOCTRINE: Rule 14EXTRAJUDICIAL SERVICE applies only when the action is in rem or quasi rem. In such actions, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided, the court acquires jurisdiction over the res. Process servers enjoy the presumption of regularity in the performance of their duties. To overcome this, the evidence must be clear and convincing.

EMERGENCY RECITSpouses Raymond and Maria sued Erlinda and her father Rodolfo for damages for maliciously instituting a criminal complaint (estafa and kidnapping) against Raymond. Erlinda is a non-resident of the Philippines but the Process Server certified she was served the copy of summons and complaint when found in the lobby of Intercon Hotel, Makati but refused to sign receipt thereof. RTC declared Erlinda and Rodolfo in default. Erlinda argued she was not validly served summons relying on the rule of extraterritorial service. SC held extraterritorial service is only proper when the action is in rem or in quasi rem. The action in this case is in personam. The Process Server’s certification that summons was served to Erlinda to acquire jurisdiction over her person enjoys the presumption of regularity since Erlinda was not able to show clear and convincing proof to the contrary. Petition denied.

FACTS (quite long, very technical) Spouses Raymond and Maria Velayo filed a complaint for sum of money and

damages against Erlinda Velayo-Fong et al. Raymond and Erlinda are half-brothers. Spouses alleged that Erlinda and their father Rodolfo:- filed a complaint against Raymond for estafa and kidnapping a minor- caused Spouses to be included in the Hold Departure List of the Bureau of

Immigration and Deportation (BID), preventing them from leaving the country to their damage and prejudice.

- filed a complaint before the SEC which caused Spouses’ funds to be frozen and paralyzed their business transactions and operations

Erlinda Velayo-Fong is a resident of U.S.A and not found in the Philippines- Spouses prayed for a writ of preliminary attachment against her properties in the

Philippines- Spouses filed an Urgent Motion praying that the summons upon Velayo-Fong be

served to her Condos in Pasay and Makati. Granted. The Process Server submitted the Officer’s Return certifying that a copy of the summons and complaint was personally served upon Erlinda at the lobby of the Intercon Hotel, Makati in the presence of lobby personnel Ms. Zulueta but Erlinda refused to sign receipt thereof.

- Process Server also certified that a copy of the same was served personally upon Rodolfo in Las Pinas but also refused to sign receipt.

Upon ex-parte motions of Spouses, RTC declared Erlinda and Rodolfo in default for failure to file an answer and ordered ex-parte presentation of evidence.

Erlinda filed a Motion to Set Aside Order of Default claiming fraud, accident or mistake prevented her from filing a responsive pleading, that no copy of the summons was served upon her, and that she has valid and meritorious defenses to refute Spouses’ material allegations. Spouses opposed.

RTC denied Erlinda’s Motion: the presumption of regularity in the Process Server’s discharge of function was not sufficiently overcome and no evident reason for the Process Server to make a false narration regarding service of summons.

Spouses filed a Motion for Execution. Erlinda filed an Opposition contending she has not yet received the Decision and it is not yet final and executory as against her.

RTC denied the Motion for Execution finding the Decision and Order not furnished upon Erlinda

Erlinda, through her counsel, finally received the Decision and Order.

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Erlinda appealed to the CA questioning the propriety and validity of the service of summons made upon her. Spouses opposed arguing that the appeal should be dismissed for Erlinda’s reliance on the rule of extraterritorial service is misplaced.

CA affirmed RTC: Erlinda was not furnished a copy of the decision but she was validly served with summons since the complaint for damages is an action in personam and only personal service of summons, not extraterritorial service, is essential to acquire jurisdiction over her person. Erlinda’s Motion for Reconsideration was denied.

ISSUE:1. How may service of summons be effected on a non-resident?2. Was there a valid service of summons made upon Erlinda? YES

HELD: Petition DENIED. CA decision affirmed.

RATIO Sec. 17, Rule 14 on Extraterritorial Service provides that when the defendant is a

non-resident and he is not found in the country, summons may be served extraterritorially. There are only four instances when extraterritorial service of summons is proper:

(a) when the action affects the personal status of the plaintiffs; (b) when the action relates to, or the subject of which is property, within the

Philippines, in which the defendant claims a lien or interest, actual or contingent; (c) when the relief demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and (d) when the defendant's property has been attached within the Philippines.

In these instances, service of summons may be effected by(a) personal service out of the country, with leave of court;(b) publication, also with leave of court; or (c) any other manner the court may deem sufficient.

Thus, extrajudicial service of summons apply only where the action is   in rem , that is, an action against the thing itself instead of against the person, or in an action   quasi in rem, where an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or loan burdening the property. The rationale for this is that in in rem   and   quasi in rem   actions , jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res.

Where the action is in personam, that is, one brought against a person on the basis of her personal liability, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case.

When the defendant is a non-resident, personal service of summons within the state is essential to the acquisition of jurisdiction over the person. Summons on the defendant must be served by handing a copy thereof to the defendant in person, or, if he refuses to receive it, by tendering it to him. This cannot be done, however, if the defendant is not physically present in the country, and thus, the court cannot acquire jurisdiction over his person and therefore cannot validly try and decide the case against him.

In this case, Spouses cause of action is Erlinda et al maliciously instituted a criminal complaint before the NBI and a petition before the SEC which prevented the respondents from leaving the country. The action instituted by the Spouses affect the parties alone, not the whole world. Any judgment therein is binding only upon the parties properly impleaded. Thus, it is an action in personam. As such, personal service of summons upon the defendants is essential in order for the court to acquire jurisdiction over their persons, which was effected upon Erlinda.

A process server's certificate of service is prima facie evidence of the facts as set out in the certificate. Between the claim of non-receipt of summons by a party against the

assertion of an official whose duty is to send notices, the latter assertion is fortified by the presumption that official duty has been regularly performed. To overcome the presumption of regularity of performance of official functions in favor of such Officer's Return, the evidence against it must be clear and convincing. Erlinda was unable to come forward with the requisite quantum of proof to the contrary, the presumption of regularity of performance on the part of the process server stands.

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JOSE V. BOYONGR. NO. 147369 (October 23, 2003)

DOCTRINE:1. Substituted service can be availed of only after a clear showing that personal service

of summons was not legally possible.2. Service by publication is applicable in actions in rem and quasi in rem, but NOT in

personal suits such as actions for specific performance.

EMERGENCY RECIT:Petitioners Jose filed a complaint for specific performance against Respondents Boyon to compel them to facilitate the transfer of ownership of a parcel of land subject of a controverted sale. The summons was issued by the judge but the process server resorted to substituted service because allegedly, his efforts to serve it personally to the Respondents failed. The Petitioners then filed a motion to effect summons by publication which was granted and the Respondents were declared in default for failure to file their answers. The judge then rendered a decision in favor of the Petitioners and when the Respondents found out about this, they assailed the jurisdiction of the court on the ground that the service of summons was not validly effected. The SC agreed with Respondents. The service of summons was not valid because the process server did not comply with the rules of substituted service of summons as he did not exert any genuine effort to locate the Respondents and he merely indicated in the Return of Summons their alleged whereabouts. The summons not having been validly effected, the court did not acquire jurisdiction over the Respondents and the decision of the lower court is null and void.

FACTS: Petitioners Patrick and Rafaela JOSE (P) lodged a complaint for specific performance

against Respondents Helen and Romeo BOYON (R) to compel them to facilitate the transfer of ownership of a parcel of land subject of a controverted sale

The judge issued summons to the (R) As per return of the summons, substituted service was resorted to by the process

server allegedly because efforts to serve it personally to the (R) failed (P) filed an Ex-parte Motion for Leave of Court to Effect Summons by Publication

The judge granted such and issued an Order declaring the (R) in default for failure to file their respective answers

(P) were allowed to submit their evidence ex-parte The judge issued a Resolution ordering (R) to execute the necessary document

with the effect of withdrawing the Affidavit of Loss they filed and annotated with the Register of Deeds of Makati

Helen Boyon, who was then residing in the US, was surprised to learn from her sister of the Resolution

(R) then filed an Ad Cautelam motion questioning the validity of the service of summons effected by the court a quo--DENIED

(R) raised the issue of jurisdiction of the trial court via a motion for reconsideration--DENIED

(P) moved for the execution of the controverted judgment--GRANTED (R) now filed a petition for certiorari questioning the jurisdiction of the trial court

ISSUE:1. WON the service of summons was valid2. WON summons by publication was proper

HELD/RATIO:1. NO

In general, trial courts acquire jurisdiction over the person of the defendant by the service of summons

Where the action is in personam and the defendant is in the Philippines, such service may be done by personal or substituted service, following the procedures laid out in SEC 6 and 7 of RULE 14

Personal service of summons is preferred to substituted service; only if the former cannot be promptly made can the process server resort to the latter

Proof of service of summons must:a. Indicate the impossibility of service of summons within a reasonable timeb. Specify the efforts exerted to locate the defendantc. State that the summons was served upon a person of sufficient age and

discretion who is residing in the address, or who is in charge of the office or regular place of business of the defendant

DEFECTIVE PERSONAL SERVICE OF SUMMONS• In the instant case, the process server hastily and capriciously resorted to

substituted service without actually exerting any genuine effort to locate respondents

o He only went to their home in Alabango The Return of Summons states that efforts to do so were ineffectual and

unavailing because Helen Boyon was in the US and Romeo Boyon was in Bicol, BUT it did not mention exactly what efforts, if any, were undertaken to find them

o At best, the Return merely states the alleged whereabouts of (R) o Without specifying the details of the attendant circumstances or of the

efforts exerted to serve the summons, a general statement that such efforts were made will not suffice for purposes of complying with the rules of substituted service of summons

Hamilton v. Levy: The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service or Officer’s Return; otherwise, any substituted service made in lieu of personal service cannot be upheld. This is necessary because substituted service is in derogation of the usual method of service.  It is a method extraordinary in character and hence may be used only as prescribed and in the circumstances authorized by statute.

Madrigal v. CA: Service of summons, especially for actions in personam, is essential for acquisition of jurisdiction over the person of the defendant, the resort to a substituted service must be duly justified. Failure to do so would invalidate all subsequent proceedings on jurisdictional grounds.

2. NO Extraterritorial service of summons or summons by publication applies only when

the action is in rem or quasi in rem In the instant case, the action filed was an action for specific performance. While

the suit incidentally involved a piece of land, the ownership or possession thereof was NOT put in issue since they did not assert any right or interest over it

Having failed to serve the summons on (R) properly, the RTC did not validly acquire jurisdiction over their persons. All proceedings conducted subsequent thereto should be deemed null and void.

22 [ ]

LA NAVAL DRUG CORP. V. CAGR 103200, (August 31, 1994)

This case is weirdly categorized under Summons when it is mainly about special jurisdiction and filing of a motion to dismiss. Anyway, sunod na lang ako sa syllabus but I still placed the ratio on filing a motion to dismiss just in case.

DOCTRINE: For Jurisdiction1. As a general rule: Jurisdiction over the person must be immediately raised. For example, it must be pleaded in a motion to dismiss or by way of an affirmative defense in an answer. Voluntary appearance before the ccourt shall be deemed a waiver of this defense. The assertion, however, of affirmative defenses shall not be constructed as an estoppel or as a waiver of such defense.2. By way of exception to the above doctrine: Where the court itself clearly has no jurisdiction over the subject matter or the nature of the action, the invocation of this defense may be done at any time. It is the law and note the courts nor the parties which confer jurisdiction over the subject matter or nature of the action.

For Motion to Dismiss:Any ground for dismissal in a motion to dismiss, except improper venue, may be pleaded as an affirmative defense and a preliminary hearing may be had thereon as if a motion to dismiss had been filed

EMERGENCY RECIT:Yao filed a complaint against La Naval because it allegedly violated the terms of its arbitration agreement. Yao accuses La Naval of delaying the appointment of their 3 rd arbitrator. Soon after Yao filed an amended complaints which was a summary case for the enforcement of the arbitration agreement with damages. La Naval countered by arguing that Yao failed to notify first their two arbitrators which was the reason which delayed the appointment of the third. He also filed a motion to dismiss the summary case. The trial court denied La Naval’s petition. The CA confirmed arguing that La Naval was estopped. The SC set aside the trila court order and CA decision arguing that the court should not go beyond its jurisdiction over the nature of the case which was summary in nature. La Naval was also not estopped because filing a motion to dismiss the complaint is not barred if the court has indeed no jurisdiction over the nature of the case

FACTS: Wilson Yao filed is the owner of a commercial building which it leased to La Naval.

After the expiration of their initial contract, La Naval exercised his option to lease the building again but it and Yao failed to agree on the rental rates.

The original lease contract contained a provision that they can settle disputes via arbitration in accordance with RA 876.

o They both agreed, in writing, to resolve the matter through arbitration.o Their contract provides that in case of failure to agree on rental rates, the

issue will be submitted to a group of Arbitrators composed of 3 members. One to be appoint by the lessor. The second to be appointed by the lessee and the third to be appointed by the appointees of the lessor and lessee.

Both parties were able to appoint their respective arbitrators. However, the appointment of the third arbitrator was postponed because La Naval wanted it Board of Directors to approved the approval of the third arbitrator. Yao suspected that this was a delaying tactic of La Naval and a violation of their agreement and the Arbitration Law

Yao sought court remedy by invoking Sec 6 of the Arbitration Law which provides that an aggrieved party may petition the court for an order directing that such arbitration proceed in the manner provided for in such agreement. Yao filed the petition and prayed that the court summarily direct the already appointed arbitrators to appoint and confirm the third arbitrator and resolve the issue on rental rates

La Naval denied all the allegations of Yao arguing he has no cause of action because the petition was premature because Yao has not yet notified the two arbitrators to appoint and confirm and that lack of notice by Yao is the reason for the delay

Yao filed an amended petition for the enforcement of the arbitration agreement with damages. The trial court admitted the amended petition despite opposition from La Naval

La Naval answered the amended petition arguing that it should be dismissed because: Yao did not pay filing fees and it is in the nature of an ordinary civil action therefore it is necessary to have a full blown and regular trial. La Naval also filed a motion to set a preliminary hearing

The RTC of Angeles City order the for the parties to submit their position papers on the issue as to whether or not respondent Yao's claim for damages may be litigated upon in the summary proceeding for enforcement of arbitration agreement. It likewise informed the parties that petitioner's Motion to Set Case for Preliminary Hearing" of Special and Affirmative Defenses would be resolved together with the question of damages.

La Naval argued that in Special Case No. 6024, the CA sits as a special court exercising limited jurisdiction and is not competent to act on respondent Yao's claim for damages, which poses an issue litigable in an ordinary civil action. But the CA was not persuaded by La Naval's submission so it denied the motion for reconsideration

The Court of Appeals also denied the motion because La Naval was estopped from questioning the jurisdiction of the court

ISSUE: 1. WON the court has jurisdiction? – No2. WON La Naval was estopped? - NO

HELD/RATIO:On the jurisdiction of the court:

It is clear from the arbitration law the it explicitly confines the court's authority only to pass upon the issue of whether there is or there is no agreement in writing providing for arbitration. 

o If the court finds there is an agreement, it will direct the parties to proceed based on their agreement

o If the court finds there is NO agreement it will immediately dismiss the case because the proceedings is summary in nature

The court cannot stray to matters outside the area of its declared authority or beyond what has been expressly invested by law, particularly, such as in this instance, where the proceedings are summary in nature.

On estoppels: The Court sees it propitious to re-examine specifically the question of whether or not

the submission of other issues in a motion to dismiss, or of an affirmative defense (as distinguished from an affirmative relief) in an answer, would necessarily foreclose, and have the effect of a waiver of, the right of a defendant to set up the court's lack of jurisdiction over the person of the defendant.

o Not inevitably. Section 1, Rule 16, of the Rules of Court, provides that a motion to dismiss may be

made on the following grounds:o (a) That the court has no jurisdiction over the person of the defendant or

over the subject of the action or suit;o (b) That the court has no jurisdiction over the nature of the action or suit;o (c) The venue is improperly laid;o (d) That the plaintiff has no legal capacity to sue;o (e) That there is another action pending between the same parties for the

same cause;

[ ] 23

o (f) That the cause of action is barred by a prior judgment or by statute of limitations;

o (g) That the complaint states no cause of action;o (h) That the claim or demand set forth in the plaintiff's pleading has been

paid, waived, abandoned, or otherwise extinguished;o ( i ) That the claim on which the action or suit is founded is unenforceable

under the provisions of the statute of frauds;o ( j ) That the suit is between members of the same family and no earnest

efforts towards a compromise have been made. Any ground for dismissal in a motion to dismiss, except improper venue, may be

pleaded as an affirmative defense and a preliminary hearing may be had thereon as if a motion to dismiss had been filed. An answer itself contains the negative, as well as affirmative, defenses upon which the defendant may rely.

A negative defense denies the material facts averred in the complaint essential to establish the plaintiff's cause of action, while an affirmative defense in an allegation of a new matter which, while admitting the material allegations of the complaint, would, nevertheless, prevent or bar recovery by the plaintiff. Inclusive of these defenses are those mentioned in Rule 16 of the Rules of Court which would permit the filing of a motion to dismiss.

In the same manner that the plaintiff may assert two or more causes of action in a court suit, a defendant is likewise expressly allowed, under Section 2, Rule 8, of the Rules of Court, to put up his own defenses alternatively or even hypothetically. Indeed, under Section 2, Rule 9, of the Rules of Court, defenses and objections not pleaded either in a motion to dismiss or in an answer, except for the failure to state a cause of action, are deemed waived. We take this to mean that a defendant may, in fact, feel enjoined to set up, along with his objection to the court's jurisdiction over his person, all other possible defenses. It thus appears that it is not the invocation of any of such defenses, but the failure to so raise them, that can result in waiver or estoppel. By defenses, of course, we refer to the groun ds provided for in Rule 16 of the Rules of Court that must be asserted in a motion to dismiss or by way of affirmative defenses in an answer

Whenever it appears that the court has no jurisdiction over the subject matter, the action shall be dismissed. This defense may be interposed at any time, during appeal or even after final judgment

Jurisdiction over the nature of the action, in concept, differs from jurisdiction over the subject matter. Illustrated, lack of jurisdiction over the nature of the action is the situation that arises when a court, which ordinarily would have the authority and competence to take a case, is rendered without it either because a special law has limited the exercise of its normal jurisdiction on a particular matter or because the type of action has been reposed by law in certain other courts or quasi-judicial agencies for determination. Rules on lack of jurisdiction over subject matter applies with lack of jurisdiction over nature of the case.

In summary, it is our considered view, as we now so hereby express,that —

o (1) Jurisdiction over the person must be seasonably raised, i.e., that it is pleaded in a motion to dismiss or by way of an affirmative defense in an answer. Voluntary appearance shall be deemed a waiver of this defense. The assertion, however, of affirmative defenses shall not be constructed as an estoppel or as a waiver of such defense.

o (2) Where the court itself clearly has no jurisdiction over the subject matter or the nature of the action, the invocation of this defense may be done at any time. It is neither for the courts nor the parties to violate or disregard that rule, let alone to confer that jurisdiction, this matter being legislative in character. Barring highly meritorious and exceptional circumstances, such as hereinbefore exemplified, neither estoppel nor waiver shall apply.

All considered, the court a quo must then refrain from taking up the claims of the contending parties for damages, which, upon the other hand, may be ventilated in separate regular proceedings at an opportune time and venue. The circumstances obtaining in this case are far, we hold, from justifying the application of estoppel against either party.

24 [ ]

BOTICANO V. CHUG.R. No. L-58036 (March 16, 1987)

DOCTRINE:1. Defect of summons is cured by the voluntary appearance of the defendant.2. Distinction must be made as to the effects of the appeal:

If appeal is made without first asking the RTC to set aside the declaration of default, the appellate court set aside and all he can get is a review of the RTC’s default judgment without the opportunity of having the higher court consider defense evidence

If defendant first asks the RTC to set aside the declaration of default and he is able to prevail, the declaration will be set aside and he will not have the opportunity to present his evidence in the RTC. Even if he lost in the RTC, his defense can be considered when appeal is made to the appellate tribunal

PARTIES:Petitioners – Eliseo Boticano (owner of the car who was hit by another truck)Respondent – Manuel Chu (owner of the car who bumped the car of petitioner)

EMERGENCY RECIT:The driver of Manuel Chu hit and bumped the truck owned by Eliseo Boticano while it was parked at the national highway. Manuel acknowledge his liability and made an agreement to pay Eliseo for the damages. This agreement didn’t materialized hence, eliseo sued manuel in court. Service of summons were given to manuel and to the drive of manuel. The summon for manuel was received by his wife while the summon given to the driver remain unserved. Manuel was declared to be in default. TC ruled in favor of Eliseo. Manuel then filed a notice of appeal to the judgment of the TC and he also submitted different kinds of motion and pleadings. He even appeared in court. ISSUE: WON the court acquired jurisdiction over Manuel Chu. HELD: YES. Defect in summons can be cured thru voluntary appearance in court. Through filing the different motions and pleadings in court, the court already acquired jurisdiction over Manuel.

FACTS: Eliseo Boticano is the registered of owner of a Bedford truck which he was using in

hauling logs for a certain fee While the truck owned by Eliseo Boticano is parked at the National Highway in Nueva

Ecija, it was hit and bumped at the rear portion by another Bedford truck owned by Manuel Chu Jr. driven by Jaime Sigua

Manuel Chua acknowledge his ownership over the truck and agreed with Eliseo to shoulder the expenses of the repair of the damaged truck

Manuel Chua failed to comply with the aforesaid agreement as well as to pay damages for lost income despite demands by eliseo

Summons were issued to:o Jaime Sigue – returned unserved since he was no longer connected with

the partnership of Manuel Chu (San Pedro Saw Mill)o Manuel Chu – returned duly served on him thru his wife Veronica Chu at

his dwelling house Eliseo moved to dismiss the case against Jaime Sigua and declare Manuel in default

for failure to file the answer motion grated by the lower court TC ruled in favor of Eliseo Boticano based on the evidence he adduced on during the

trial Manuel Chua filed for a notice of appeal granted by the TC Eliseo filed with the TC a motion to dimiss the appel denined by the TC Case was brought to the CA judgment by TC is set aside since manuel chu was

not properly served with summons and a copy of the complaint

ISSUE:1. WON the voluntary appearance by manuel chu is equivalent to service – YES

2. If the defendant in the RTC has been declared in default, may he appeal the default judgement that may subsequently rendered even if he has not asked the RTC to set aside the declaration of default – YES3. WON the jurisdiction over mauel was acquired - YES

HELD/RATIO: 1. YES

Manuel chu voluntary appeared thru counsel in the trial court thru filing a notice of appeal filed a Notice of Appeal, Appeal Bond, Motion for Extension of Time to File Record on Appeal, Record on Appeal, Motion for Withdrawal of Appearance, Notice of Appearance and Opposition to Plaintiff s Motion to Dismiss Appeal and for Issuance of a Writ of Execution

Not only did he submit pleadings and motions, he likewise appeared in person thru counsel in the hearing on May 14, 1979 and orally argued in open court on the pending incident

Under Sec 23 of Rule 14, the defendant’s voluntary appearance in the action shall be equivalent to service. Hence, this principle has been consistently held by the SC that the defect of summons is cured by the voluntary appearance of the defendant

2. YES Distinction must be made as to the effects of the appeal:

o If appeal is made without first asking the RTC to set aside the declaration of default, the appellate court set aside and all he can get is a review of the RTC’s default judgment without the opportunity of having the higher court consider defense evidence

o If defendant first asks the RTC to set aside the declaration of default and he is able to prevail, the declaration will be set aside and he will not have the opportunity to present his evidence in the RTC. Even if he lost in the RTC, his defense can be considered when appeal is made to the appellate tribunal

3. YES. Contention of Manuel that there is no service of summons because Manuel’s wife is

not part of the partnership (San Pedro Sawmill) as according to Sec 13 Rule 14 Settled rule that the action must be brought by the real party in interest. – The title of

the case in the TC, CA and in the SC shows that the partnership is not the party contrary to the contention of manuel. Moreover, he acknowledge the responsibility and liability he has against Eliseo

Jurisdiction was properly acquired by the trial court over Manuel thru both service of summons and voluntary appearance in court

RESOLUTION OF THE CA IS REVERSED AND SET ASIDE

[ ] 25

CEZAR V. RICAFORT-BAUTISTAGR No. 136415 (October 31, 2006)

DOCTRINE: (R14, Sec. 7 on substituted service of summons) Courts acquire jurisdiction over the defendant either through 1) the service of

summons upon them or 2) their voluntary appearance in court The service of summons is intended to give official notice to the defendant that an

action had been commenced against it Without service of summons, or when summons are improperly made, both the trial

and the judgment, being in violation of due process, are null and void, unless the defendant waives the service of summons by voluntarily appearing and answering the suit

ROC: Whenever practicable, summons must be served personally. In case the defendant refuses to receive and sign for it, summons should be tendered to him. In the even that summons cannot be served within a reasonable time, substituted service may be resorted to:

Sec. 7. Substituted service. - (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.

EMERGENCY RECIT: Cezar failed to pay SMC for construction materials he bought from SMC SMC filed a suit for collection and summons was issued to Cezar Sheriff served the summons through substituted service of summons to one alleged

employee of Cezar Cezar failed to answer and was declared in default SMC obtained favorable judgment, Judge Ricafort-Bautista ordered Cezar to pay

SMC SMC asked for motion for execution and this was set for a hearing Cezar filed an urgent ex-parte motion to re-set hearing and filed a petition with the SC

praying for the nullity of the RTC’s decision, contending that the RTC did not acquire jurisdiction over his person for defective substituted service of summons

SC held that the substituted service of summons was indeed defective, because the sheriff’s return did not contain any statement on the impossibility of personal service

However, this defect was cured by Cezar’s voluntary appearance in court, in the form of the urgent ex-parte motion to re-set hearing that he filed

SC held that the RTC validly acquired jurisdiction over the person of Cezar

FACTS: Specified Materials Co. (SMC) filed a complaint for collection of sum of money

against Virgilio Cezar (Cezar) due to his failure to pay the construction materials he bought under a credit line extended by SMC, allegedly standing at P1.86M

SMC sent 2 letters to Cezar and his brother, Perfecto, to remind them of their obligation

In reply, Cezar sent 3 letters: manifesting his willingness to settle his account with SMC, asking for an inventory of the actual items delivered and used, as well as a suspension of any judicial action on SMC’s part while they’re still settling his account

SMC’s representatives met with Cezar to reconcile their conflicting records. Cezar admitted that he failed to record some deliveries made amounting to around P648k

Cezar requested that they meet again after 2 days so he could verify his documents but he failed to show up for the subsequent mettings

SMC sent a final demand letter to Cezar SMC filed the aforementioned complaint and summons was issued to Cezar,

served by Sheriff Juan C. Marquez on January 9, 1997, evidenced by the Sheriff’s Return

o “Served through Mr. Arsenio Robles, employee of Cezar who is authorized to transact business”

Cezar failed to file his answer to the complaint and SMC moved that he be declared in default Cezar was declared in default and SMC was able to present its evidence

SMC filed a motion to admit amended complaint, because of its erroneous computation in the obligation (P1.86M when it should be P2M)

A copy of the motion and the amended complaint were personally received by Cezar Amended complaint was ordered admitted Judge Ricafort-Bautista issued the assailed decision in favor of SMC, ordering Cezar

to pay P2M amounting to his obligation, penalty and attorney’s fees Cezar, by way of special appearance, fled a motion to set aside decision, arguing that

the RTC did not acquire jurisdiction over his person denied Cezar filed a petition for annulment of judgment, preliminary injunction with prayer for

TRO with the CA dismissed. MR denied Petitioner filed a petition for review on certiorari with the SC of the resolutions of the

CA denied for failure to comply with procedural requirements (this resolution became final and executory already)

SMC filed a motion for execution with the RTC hearing was set for this motion Cezar then filed an urgent ex-parte motion to re-set hearing hearing did not

push through Hearing was rescheduled a couple of times until finally Judge Ricafort-Bautista

granted the motion for execution

ISSUE:1. WON the RTC acquired jurisdiction over the person of Cezar by virtue of the substituted

service of summons effected by the Sheriff

HELD/RATIO:Petition is unmeritorious. RTC decision affirmed. (Talo si Cezar)

Cezar’s defense: Arsenio Robles (Robles), his “employee” who received the summons, was not his really his employee; Robles was from Batangas and was merely peddling mango seedlings within the vicinity of his office when the summons was served

SC: Sheriff here employed DEFECTIVE substituted service of summons (defective because the Sheriff’s Return did not contain any statement on the impossibility of personal service, which is required if the Sheriff resorts to substituted service)

Jurisdiction was still validly acquired by the RTC. The defect in the service was CURED by his voluntary appearance

o Cezar’s urgent ex-parte motion to re-set hearing constitutes a voluntary appearance = submission to the jurisdiction of the court over the person of the defendant

Courts acquire jurisdiction over the plaintiff once the complaint is filed Courts acquire jurisdiction over the defendant either through 1) the service of

summons upon them or 2) their voluntary appearance in court The service of summons is intended to give official notice to the defendant that an

action had been commenced against it. Without service of summons, or when summons are improperly made, both the

trial and the judgment, being in violation of due process, are null and void, unless the defendant waives the service of summons by voluntarily appearing

ROC: Whenever practicable, summons must be served by handing a copy thereof to the defendant in person. In case the defendant refuses to receive and sign for it, by tendering the summons to him or her. In the even that summons cannot be served within a reasonable time, the Rules permit that substituted service may be resorted to:

Sec. 7. Substituted service. - If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding

26 [ ]

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.

UCPB V. ONGPINGR 146593 (October 26, 2001)

DOCTRINE: If a defendant is a non-resident and his property in the Philippines had been attached,

service may, by leave of court, be effected outside the Philippines or by publication in a newspaper of general circulation.

If the whereabouts of the defendant is unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, likewise be effected by publication in a newspaper of general circulation. In this case, the plaintiff must show that the address of defendant is unknown and cannot be ascertained by diligent inquiry.

EMERGENCY RECIT:PAI entered into a loan agreement with UCPB. Ongpin, then controlling stockholder of PAI, signed as surety. PAI was unable to pay its obligation, which prompted UCPB file a complaint. UCPB also sought the issuance of a writ of preliminary attachment on the ground that in fraud of creditors, Ongpin has left for Hong Kong and is now residing therein. RTC issued a writ and garnishment. Ongpin, through his counsel moved to dismiss the complaint and to quash the writ of attachment and garnishment, on the ground that the RTC had no jurisdiction over his person, the summons being without any effect. RTC denied his motion. UCPB filed a petition with the RTC a motion to serve summons through publication, but this method failed. A similar motion was filed and the RTC granted. The Sheriff and lawyer of UCPB, sought to serve summons on the person of Ongpin, but the latter could not be found. They then resorted to serving the summons on the executive secretary of the President of PILTEL. After summons was served, the Sheriff implemented the writ of attachment and garnishment. Ongpin filed a motion to dismiss and prohibition on the implementation of the writ. RTC denied. On appeal to the CA, it reversed the decision of the RTC and held that no proper summons was made on Ongpin.

FACTS: Philippine Apparel Inc. (PAI) entered into a credit arrangement with United Coconut

Planters Bank (UCPB), for a case-to-case credit line.o Roberto Ongpin (Ongpin), then controlling stockholder of PAI, signed as surety.

As PAI failed to pay its obligations, UCPB, filed a complaint against Ongpin, to enforce his obligation as surety of PAI.

UCPB sought the issuance of a writ of preliminary attachment, one of the grounds being, Ongpin has changed residence (Hong Kong), in fraud of creditors.

RTC issued an order granting UCPB’s prayer for issuance of writ of preliminary attachment.

A writ of attachment and a notice of garnishment were issued by the RTC. Ongpin, making a special appearance through counsel, moved to dismiss the complaint

and to quash the writ of attachment and garnishment on the ground that: the RTC had no jurisdiction over the person of Ongpin, the summons prepared on Oct. 1995, having been unserved as of Nov. 1995.o RTC denied the urgent motion as well as Ongpin’s motion for reconsideration.

Ongpin filed a petition for certiorari in the CA assailing the orders of the RTC. During the pendency of the petition, UCPB filed with the RTC a motion for leave to serve

summons through publication.o RTC granted the motion.o But the publication was held in abeyance on Oct. 1996.o UCPB entered into an agreement with TODAY for the publication of the summons on

Oct. 4, 11, and 18, 1996.o UCPB received the RTC’s order at the close of office hours on Oct 3, 1996.

Attempts to prevent the publication were made but the by requesting the same proved futile.

As a result, TODAY published the summons on Oct. 4, 1996.

[ ] 27

It was only on Oct. 8, 1996, that UCPB was able to inform the newspaper to hold in abeyance further publication of the summons.

Later, CA promulgated a decision stating thato The issuance of the writ of attachment together with the notice of garnishment is

valiated; UCPB filed with the RTC, another motion to serve summons through publication with leave

of court. Deputy Sheriff Glenn Para (Para), together with Atty. Rodulfo Baculi, Jr. (Baculi),

representative of UCPB, went to the PILTEL office, to serve summons on Ongpin; then the chariman of the board of PILTEL and was expected to attend a board meeting on that day.o There they found out that Ongpin was not going to attend the board meeting.o They proceeded to BA Lepanto Building where Ongpin holds office, but they were

later informed that Ongpin was not known at that place.o They returned to PILTEL where they met Anne Morallo (Morollo). She told them that

she was authorized to receive the court processes for and on behalf of Ongpin even though the latter was not holding office in building.

o Summons was then served on Morallo, who received it accordingly.o However, when Morallo tried to forward the summons to Ongpin, the latter’s lawyer

(Atty. Narvasa), refused to receive it. After serving summons, Sheriff Para then implemented the writ of attachment by serving

notices of garnishment on certain properties of Ongpin. Ongpin filed with the RTC an Urgent Omnibus motion to dismiss, prohibition of the

implementation of the writ of attachment, quashal of the notice of garnishment, and for release of the properties. RTC denied.

On appeal to the CA, it reversed and set aside the order of the RTC, on the ground that PILTEL was not the regular place of business of Ongpin, and even if it was, Morallo could not be considered a competent person in charge of Ongpin’s office, as she was the executive secretary of the PILTEL President, not Ongpin’s.

ISSUE:1. WON the substituted service of summons of Morallo was valid?

HELD/DOCTRINE:1. No. Rule 14, Sec. 7 (Rules of Civil Procedure) provides that: if, for justifiable causes, personal

service cannot be effected on defendant, service may be effected (a) by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion residing therein, or (b) by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof.o The word “office” or the phrase “regular place of business” refers to the office or place

of business of the defendant at the time of service. The rule specifically designates the persons to whom copies of the process should be left.

o It does not necessarily follow that the regular place of business of a chairman of the board of directors is the same as the address of the corporation as it is possible for him to hold office elsewhere.

o In the case at bar, PILTEL, where substituted summons was served and of which respondent was the chairman of the board, was not even a party to the present suit. Respondent was sued in his personal capacity as surety for PAI.

o As the PILTEL office is not respondent’s regular place of business, it cannot therefore be said that Anne V. Morallo, the person who received the service of summons in behalf of respondent, was authorized to receive service of process on behalf of respondent.

Under the Rules:o If a defendant is a non-resident and his property in the Philippines had been

attached, service may, by leave of court, be effected outside the Philippines or by publication in a newspaper of general circulation.

o If the whereabouts of the defendant is unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, likewise be effected by publication in a newspaper of general circulation. In this case, the plaintiff must show that the address of defendant is unknown and cannot be ascertained by diligent inquiry.

o It is clear that UCPB is not without remedy under the Revised Rules of Civil Procedure to enforce the writ of attachment through a valid service of summons.

o If, indeed, Ongpin is no longer a resident of the Philippines, UCPB still can, by leave of court, serve summons by publication, as it in fact tried to do. The records show that UCPB attempted to serve summons by publication, but later abandoned its effort and for some reason attempted personal service instead.

o If, on the other hand, Ongpin is a resident and UCPB cannot determine the correct address of Ongpin, UCPB only needs to show that Ongpin’s address is unknown and cannot be ascertained by diligent inquiry. Upon compliance with this requirement, it can validly serve summons by publication in a newspaper of general circulation

28 [ ]

HSBC V. CATALANG.R. No. 159591.  (October 18, 2004)

DOCTRINE The Court has held that the filing of motions seeking AFFIRMATIVE RELIEF such as,

to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration, are considered VOLUNTARY SUBMISSION TO THE JURISDICTION OF THE COURT.

A party who makes a SPECIAL APPEARANCE in court challenging the jurisdiction of said court, cannot be considered voluntary submission to the jurisdiction of the court.

EMERGENCY RECITCatalan filed before RTC for recovery of sum of money and damages against HSBC for the bank’s failure to pay the value of 5 checks amounting to 3.2 HK dollars. Summons were issued in the office of HSBC in Paseo De Roxas Makati. However, the court did not validly acquire jurisdiction over the case since the bank HSBC Trust ies a foreign juridical entity. The bank was also consistent in assailing the RTC’s jurisdiction as it filed a special appearance. The special appearance is not to be considered a voluntary submission to the court. Therefore, there was no proper service of summons and RTC did not acquire jurisdiction over the case.

FACTS Respondent Catalan filed before the RTC a complaint for a sum of money with

damages against petitioner HSBANK due to HSBANK’s alleged wanton refusal to pay her the value of five HSBANK checks issued by Thomson amounting to HK$3,200,000.00.

Thomson wrote a letter to a certain Ricky Sousa of HSBANK confirming the checks he issued to Catalan and requesting that all his checks be cleared. However, even with repeated demands, the bank was not able to give the money.

Thomson died and Catalan forwarded her demand to HSBC TRUSTEE.  Catalan sent photocopies of the returned checks to HSBC TRUSTEE.  Not satisfied, HSBC TRUSTEE through deceit and trickery, required Catalan, as a condition for the acceptance of the checks, to submit the original copies of the returned checks, purportedly, to hasten payment of her claim.  

Summons for HSBC TRUSTEE was tendered to the In House Counsel of HSBANK (Makati Branch) at the Enterprise Center, Tower 1, Ayala Avenue corner Paseo de Roxas, Makati. Without submitting itself to the jurisdiction of the RTC, HSBC TRUSTEE filed a Special Appearance for Motion to Dismiss Amended Complaint, questioning the jurisdiction of the RTC over it. HSBC TRUSTEE alleges that tender of summons through HSBANK Makati did not confer upon the RTC jurisdiction over it because: (a) it is a corporation separate and distinct from HSBANK; (b) it does not hold office at the HSBANK Makati or in any other place in the Philippines; (c) it has not authorized HSBANK Makati to receive summons for it; and, (d) it has no resident agent upon whom summons may be served because it does not transact business in the Philippines.

Subsequently, HSBC TRUSTEE filed a Submission, dated November 15, 2001, attaching the Affidavit executed in Hongkong by Phoenix Lam, Senior Vice-President of HSBC TRUSTEE, attesting to the fact that: 1) HSBC TRUSTEE has not done nor is it doing business in the Philippines; 2) it does not maintain any office in Makati or anywhere in the Philippines; 3) it has not appointed any agent in Philippines; and 4) HSBANK Makati has no authority to receive any summons or court processes for HSBC TRUSTEE.

ISSUE : 1. WON RTC acquired jurisdiction over it for improper service of summons

HELD/RATIO:

1. YES. The Rules of Court provides that a court generally acquires jurisdiction over a person

through either a valid service of summons in the manner required by law or the person’s voluntary appearance in court.

In holding that it acquired jurisdiction over HSBANK and HSBC TRUSTEE, the RTC held that both voluntarily submitted to the jurisdiction of the court by setting up in their Motions to Dismiss other grounds aside from lack of jurisdiction.  On the other hand, the CA ruled that HSBANK and HSBC TRUSTEE are estopped from challenging the jurisdiction of the RTC because they filed their respective answers before the RTC.

We find that both lower courts overlooked Section 20 of Rule 14 of the 1997 Rules of Civil Procedure which provides that “the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.” Nonetheless, such omission does not aid HSBANK’s case.

The filing by HSBC TRUSTEE of a motion to dismiss cannot be considered a voluntary submission to the jurisdiction of the RTC.  It was a conditional appearance, entered precisely to question the regularity of the service of summons.  It is settled that a party who makes a special appearance in court challenging the jurisdiction of said court, e.g., invalidity of the service of summons, cannot be considered to have submitted himself to the jurisdiction of the court.

Admittedly, HSBC TRUSTEE is a foreign corporation, organized and existing under the laws of the British Virgin Islands.  For proper service of summons on foreign corporations, Section 12 of Rule 14 of the Revised Rules of Court provides:

SEC. 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.

Besides, there is no allegation in the amended complaint that HSBANK is the domestic agent of HSBC TRUSTEE to warrant service of summons upon it. Thus, the summons tendered to the In House Counsel of HSBANK (Makati Branch) for HSBC TRUSTEE was clearly improper.

There being no proper service of summons, the RTC cannot take cognizance of the case against HSBC TRUSTEE for lack of jurisdiction over it. Any proceeding undertaken by the RTC is therefore null and void.Accordingly, the complaint against HSBC TRUSTEE should have been dismissed for lack of jurisdiction over it.

[ ] 29

SANTOS V. PNOC EXPLORATION CORPORATIONGR No. 170943, (September 23, 2008)

DOCTRINE/S: Sec 14 Rule 14  SEC. 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 cannot be 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 times as the court may order. (emphasis supplied)

The in rem/in personam distinction was significant under the old rule because it was silent as to the kind of action to which the rule was applicable. Because of this silence, the Court limited the application of the old rule to in rem actions only.

The rules do not require that the affidavit of complementary service be executed by the clerk of court. While the trial court ordinarily does the mailing of copies of its orders and processes, the duty to make the complementary service by registered mail is imposed on the party who resorts to service by publication.

EMERGENCY RECIT: PNOC Exploration filed a complaint for sum of money against Santos. Personal service of summons failed because he could not be located in his last known address. On PNOC's motion, TC allowed service by publication. PNOC published summons in Remate, a newspaper of gen circulation and submitted the required affidavits. Santos failed to file his answer within period thus PNOC moved that the case be set for reception of evidence ex parte. TC granted moton and case was submitted for decision. Santos filed an Omnibus Motion for Recon and to admit attached answer. TC denied motion. CA also ruled against him. Thus, this appeal. SC: 1. Service by publication is proper. Pursuant to Section 14, Rule 14, since petitioner cannot be personally served despite diligent efforts to locate him, Santos was granted LOC to effect service by publication in a NP of gen. circulation. 2. Rule on service by publication applies to both actions in the present rule as compared to the old rule which as silent as to the kind of action. 3. The rules do not require that the affidavit of complementary service be executed by the clerk of court.

FACTS: Respondent PNOC Exploration Corporation filed a complaint for a sum of money

against petitioner Santos in RTC Pasig to collect the amount of 698, 502. 10 which is Santos' unpaid balance of a car loan advanced to him by PNOC, when he was still a member of its board of directors.

Personal service of summons to petitioner failed because he could not be located in his last known address despite efforts to do so.

Subsequently, on PNOC's motion, the TC allowed service of summons by publication. PNOC published the summons in Remate, a newspaper of gen circulation in the Phils. After such publication, PNOC submitted the 1.) affidavit of publication of the advertising manager of Remate and 2.) an affidavit of service of PNOC's employee that he sent a copy of the summons by registered mail to the petitioner's last known address.

Santos failed to file his answer within the prescribed period this respondent moved that the case be set for reception of its evidence ex parte.

TC granted motion Case was then submitted for decision. Santos filed an Omnibus Motion for Recon and to Admit Attached answer. He sought

reconsideration alleging that the affidavit of service submitted by respondent failed to comply with Sec 19, Rule 14 of the ROC as it was not executed by the clerk of court.

TC denied the motion of Santos. Petitioner Santos appealed in CA via certiorari. CA ruled against him. Thus this appeal. Petitioner Santos contends that:

o there is lack of jurisdiction over his person due to improper service of summons,

o failure of the trial court to furnish him with copies of its orders and processes including the September 11, 2003 order and preference for technicality rather than justice and equity.

o In particular, he claims that the rule on service by publication under Section 14, Rule 14 of the Rules of Court applies only to actions in rem, not actions in personam like a complaint for a sum of money.

o He also contends that the affidavit of service of a copy of the summons should have been prepared by the clerk of court, not respondent’s messenger.

ISSUE: 1. WON the service by publication is proper? 2. WON rule on service by publication under Section 14, Rule 14 of the Rules of Court applies only to actions in rem, not actions in personam like a complaint for a sum of money. 3. WON affidavit of service of a copy of the summons should have been prepared by the clerk of court, not respondent’s messenger?

HELD/RATIO:1.) WON the service of publication is proper? Yes.

Basing from Section 14, Rule 14 (on Summons), since petitioner could not be personally served with summons despite diligent efforts to locate his whereabouts, respondent sought and was granted leave of court to effect service of summons upon him by publication in a newspaper of general circulation.

Thus, petitioner was properly served with summons by publication.2.) WON rule on service by publication under Section 14, Rule 14 of the Rules of Court applies only to actions in rem, not actions in personam like a complaint for a sum of money? No. Petitioner is wrong.

The in rem/in personam distinction was significant under the old rule because it was silent as to the kind of action to which the rule was applicable. Because of this silence, the Court limited the application of the old rule to in rem actions only.

This has been changed. The present rule expressly states that it applies “[i]n any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry.” Thus, it now applies to any action, whether in personam, in rem or quasi in rem.

3.) WON affidavit of service of a copy of the summons should have been prepared by the clerk of court, not respondent’s messenger?

the relevant portion of Section 19, Rule 14 of the Rules of Court simply speaks of the following:

o … 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.

Service of summons by publication is proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager of the newspaper which published the summons.

The rules do not require that the affidavit of complementary service be executed by the clerk of court. While the trial court ordinarily does the mailing of copies of its orders and processes, the duty to make the complementary service by registered mail is imposed on the party who resorts to service by publication.

Moreover, even assuming that the service of summons was defective, the trial court acquired jurisdiction over the person of petitioner by his own voluntary appearance in the action against him.

Petitioner voluntarily appeared in the action when he filed the “Omnibus Motion for Reconsideration and to Admit Attached Answer.” This was equivalent to service of summons and vested the trial court with jurisdiction over the person of petitioner.

30 [ ]

PCIB V. SPOUSES WILSON DY HONG PI ET AL.G.R. No. 171137 (June 5, 2009)

DOCTRINE: As a general proposition, one who seeks an affirmative relief is deemed to have

submitted to the jurisdiction of the court [no more summons needed here], the only exception being special appearance

but it must comply with the following:o objections to the jurisdiction of the court over the person of the defendant

must be explicitly made, i.e., set forth in an unequivocal manner; ando failure to do so constitutes voluntary submission to the jurisdiction of the

court, especially in instances where a pleading or motion seeking affirmative relief is filed and submitted to the court for resolution

EMERGENCY RECIT:PCIB (creditor) sued the Amadeo spouses for having “fraudulently” sold their properties to spouses Dy and spouses Chuyaco instead of using the properties to pay their debt to PCIB. Now, PCIB wanted to annul the deeds of absolute sale executed by the parties. The summons, however, were only served upon the Amadeos. PCIB initially wanted to have summons for Dys and Chuyacos published but was denied by the court as it was an action in personam. A year after, however, it filed an amended complaint praying to a writ of attachment for the properties in question. The court granted the writ but was not implemented for a long time, prompting the Dys and Chuyacos to file successively (1) Motion To Dismiss For Lack Of Jurisdiction- as no summons have been served on them yet, (2) Motion to Dismiss for Failure to Prosecute- nothing was happening with the case for a long time, and (3) Motion For Inhibition Without Submitting Themselves To The Jurisdiction Of This Honorable Court. Issue was WON there has been voluntary appearance by the Dys and Chuyacos as to confer the trial court with jurisdiction over their persons. The SC held that the designation or caption of their motion is not controlling and that their second motion was tantamount to voluntary appearance as it amounted to an affirmative relief. Jurisdiction over them was duly acquired, albeit late.

FACTS: Spouses Damian and Tessie Amadeo failed to pay the promissory notes they

executed in favor PCIB, as sureties for Streamline Cotton Development Corp Respondent PCIB, having found out that about a month before, the spouses have

disposed of their properties (3 parcels of land) to Spouses Dy and Spouses Chuyaco for grossly inadequate consideration, filed for the annulment of the deeds of absolute sale and damages, as the transfers were allegedly done in fraud of creditors

Upon service of summons, the Amadeo spouses filed a motion to dismiss but it was denied, hence they filed an answer alleging that PCIB failed to release the loans to SCDC, constraining them to incur loans from third parties at high interest rates to keep the company afloat, later prompting them to sell the properties in question so they would be able to cover the postdated checks they issued to their creditors, lest the spouses face criminal prosecution for bouncing checks [blaming PCIB]

PCIB later filed an ex parte motion for leave to serve summons by publication on spouses Dy and Chuyaco- denied, action in personam, publication not allowed

the following year, PCIB filed an amended complaint praying for a writ of attachment then presented evidence in relation thereto- granted, but not yet implemented (this technically transformed the case into an in rem proceeding?)

another 2 years passed and the writ has not yet been implemented so court asked PCIB whether it still wanted to pursue the case; for failing to heed to the order, the case was dismissed but later revived upon MR by PCIB alleging the difficulty of locating properties against which the writ could be enforced

Amadeos, Dys and Chuyacos filed an Omnibus Motion to dismiss and to Annul all the proceedings taken against them due to lack of jurisdiction

But the court treated this motion as a mere scrap of paper for failing to provide for a notice of hearing to the plaintiff

Nevertheless, the court noted that it has acquired jurisdiction over the Amadeos through the summons issued before and it likewise issued alias summonses to the Dys and Chuyacos or PCIB could now avail of publication if they wish (kasi in rem na sya?)

Dys and Chuyacos subsequently filed a Motion To Dismiss For Lack Of Jurisdiction, alleging that PCIB failed to cause issuance of summons and that it already lost interest in the case- denied

PCIB filed motion for the service of summons by publication- no action yet Dys and Chuyacos filed Motion to Dismiss for Failure to Prosecute as nothing was

really happening with the case: court has not decided on the publication request, PCIB has not "lifted a finger" to pursue the case

Dys and Chuyacos later filed personally, and not through their counsel (who later adopted the motion), filed a Motion For Inhibition Without Submitting Themselves To The Jurisdiction Of This Honorable Court, as the case was taking ages to finish-denied, 15 days to answer

RTC ruled that the fact that the heading said "without submitting themselves to the jurisdiction xxx" can not qualify the clear import of Rule 14 section 20 which states:

o 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 over the person of the defendant shall not be deemed a voluntary appearance.

Dys and Chuyacos filed certiorari 65 with CA- reversed, no voluntary appearance! PCIB appeals to SC

ISSUE:1. WON there has been voluntary appearance on the part of respondent Spouses Dy

and Chuyaco as to confer the trial court with jurisdiction over their persons

HELD/RATIO: Preliminarily, jurisdiction over the defendant in a civil case is acquired either by the

coercive power of legal processes exerted over his person, or his voluntary appearance in court.

As a general proposition, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court, the only exception being special appearance

but it must comply with the following:o objections to the jurisdiction of the court over the person of the defendant

must be explicitly made, i.e., set forth in an unequivocal manner; ando failure to do so constitutes voluntary submission to the jurisdiction of the

court, especially in instances where a pleading or motion seeking affirmative relief is filed and submitted to the court for resolution

in this case: o respondents have acquiesced to the jurisdiction of the trial court when they

filed their Motion to Dismiss for Failure to Prosecuteo their motion to inhibit did not categorically and expressly raise the

jurisdiction of the court over their persons as an issue and it failed to qualify the capacity in which respondents were appearing and seeking recourse

o it merely (i) “reminded” the court of its purportedly conflicting Orders in respect of summons by publication, (ii) alleged that because petitioner “has not lifted a finger to pursue this case against movants-defendants,” the case may be dismissed for failure to prosecute, and (iii) prayed additionally for the deletion of the Notice of Lis Pendens indicated at the back of the transfer certificates of title covering the subject properties

o their motion seeks a sole relief: inhibition of Judge Napoleon Inoturan from further hearing the case. Evidently, by seeking affirmative relief other than dismissal of the case, this is tantamount to participation in the trial, hence, voluntary appearance

[ ] 31

o allegations in a pleading or motion are determinative of its nature; the designation or caption thereof is not controlling. Also, no amount of caveat can change the fact that respondents tellingly signed the motion to inhibit in their own behalf and not through counsel, let alone through a counsel making a special appearance.

NM ROTHSCHILD & SONS V. LEPANTO CONSOLIDATED MINING COMPANY

OPTIMA REALTY CORPORATION V. HERTZ PHIL. EXCLUSIVE CARS INC. G.R. No. 183035 (January 9 2013)

DOCTRINE: Rule 14 Section 20: Voluntary Appearance Jurisdiction over the person may be acquired either by service of summons OR BY

THE DEFENDANT’S VOLUNTARY APPEARANCE IN COURT AND SUBMISSION TO ITS AUTHORITY (as in this case.)

One who seeks AFFIRMATIVE RELIEF is deemed to have submitted to the jurisdiction of the court, equivalent to voluntary submission to the court’s jurisdiction. Example: Filling motion to admit answer (as in this case), motion for additional time to file an answer, for reconsideration of a default judgment and lifting of an order of default.

o EXCEPTION: CONDITIONAL APPEARNACE TO CHALLENGE, among others, the Court’s jurisdiction over his person.

EMERGENCY RECIT Optima Realty Corporation (Optima) entered into a contract of Lease with Hertz Phil.

Exclusive Cars, Inc. (Hertz) concerning an office unit and parking slot in Optima Building. Hertz failed to pay rent and utilities as well as failed to give a notice of negotiation and extension of their contract within the stipulated 90 – days before the contract expires. Optima then informed Hertz of the expiration of their contract and requested Hertz to vacate and pay dues. Hertz failed to do so. Optima filed a case with the MeTC a complaint for Unlawful detainer and damages.

Summons were served to the Quality control supervisor only. 14 days after the service of Summons, Hertz filed a MOTION FOR LEAVE OF COURT to FILE ANSWER with counterclaim and to ADMIT ANSWER WITH COUNTERCLAIM. The MeTC ruled in-favor of Optima, the RTC Affirms.

CA reverses the decision and remands it back to the RTC because the summons were served improperly, noting section 11 of Rule 14. Therefore the court did not acquire jurisdiction over the person.

SC reverses CA, says that the MeTC already attained jurisdiction over Hertz by his voluntary appearance, done by his filing of a motion to admit his answer.

FACTS: Optima Realty Corporation (Optima) is in the businesses of leasing/renting out

commercial spaces and buildings. Optima entered into a contract of Lease with Hertz Phil. Exclusive Cars, Inc. (Hertz) over a 131 sq. meter office unit and parking slot in Optima Building for a period of 3 years, which would be later be shortened by amendment to 2 years and 5 months.

Renovation commenced in the building, Hertz alleges a drop by 50% in the sales and productivity so it requested a 50% discount on its rent for certain months. The discount was granted but Hertz still failed to pay rent and even its utility bills.

Hertz also failed to give notice to Optima of its wish to negotiate and extend the lease contract within 90 days from the expiration of the contract, as stipulated in their lease contract. Optima no longer entertained Hertz notice because it was late. Hertz filed a complaint for specific performance, injuction and damages and/or sum of money with a prayer for a TROand Writ of Preliminary Injuction.

Optima on the other hand demanded payment. Also, demanded Hertz to vacate the premises. Because Hertz failed to do so, Optima filed with the MeTC a COMPLAINT FOR UNLAWFUL DETAINER and DAMAGES

o Summons were served to Henry Bobiles, Quality control Supervisor of Hertz, who complied with the instructions of Manager Tirador.

32 [ ]

o 14 days after the service of Summons, Hertz filed a MOTION FOR LEAVE OF COURT to FILE ANSWER with counterclaim and to ADMIT ANSWER WITH COUNTERCLAIM.

MeTC ruled in-favor of Optima, that he had the right to evict and to be paid the unpaid balance of 420,967 pesos.

RTC Affirmed CA REVERSED AND REMANDED TO MeTC

o Due to improper service of summons the jurisdiction over the person was not acquired. Noted section 11 of Rule 14.

ISSUE: 1. RELATED - WON the MeTC properly acquired jurisdiction over the person of Hertz.2. Not related – WON unlawful detainer case barred by litis pendentia3. Not related – WON ejectment of Hertz and award of damages, atty, fees, and costs

are proper.

HELD/RATIO: 1. Yes, MeTC properly acquired jurisdiction over the person of Hertz.

a. jurisdiction over the defendant in a civil case is acquired either by the coercive power of legal processes exerted over his person (summons), or by his voluntary appearance in court. In this case, the MeTC acquired jurisdiction over the person of respondent Hertz by reason of the latters voluntary appearance in court

b. In this case, the records show that the following statement appeared in Hertz Motion for Leave to File Answer: In spite of the defective service of summons, the defendant opted to file the instant Answer with Counterclaim with Leave of Court, upon inquiring from the office of the clerk of court of this Honorable Court and due to its notice of hearing.

c. Furthermore, the Answer with Counterclaim filed by Hertz never raised the defense of improper service of summons. The defenses that it pleaded were limited to litis pendentia, pari delicto, performance of its obligations and lack of cause of action.

2. No, not barred by litis pendentia.(not relevant)a. There may be identity of parties but the rights asserted and reliefs prayed

for are different. The Complaint for Specific Performance] seeks to compel plaintiff-appellee Optima to: (1) renegotiate the contract of lease; (2) reconnect the utilities at the leased premises; and (3) pay damages. On the other hand, the unlawful detainer case sought the ejectment of defendant-appellant Hertz from the leased premises and to collect arrears in rentals and utility bills.

3. Yes, the eviction of respondent and the award of damages, attorney’s fees and costs were proper.