Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-30353 September 30, 1982
PATRICIO BELLO, plaintiff-appellee,
vs.
EUGENIA UBO and PORFERIO REGIS, defendants-appellants.

ABAD SANTOS, J.:

Defendants-appellants Eugenia Ubo and Porferio Regis pray in this appeal that the following be declared null and void for
having been issued without jurisdiction by the Court of First Instance of Leyte, Branch II, in Civil Case No. 4031 which is
an action for recovery of real property with damages, namely: (1) the order dated July 22, 1967, declaring defendantsappellants in default; (2) the judgment by default dated July 31, 1967; (3) the order dated September 16, 1967, denying
defendants- appellants' motion for relief from judgment; and (4) the order dated January 8, 1968, denying their motion for
reconsideration. Defendants-appellants further pray that the case be remanded to the court of origin for further
proceedings.
The records of the case bear out the following antecedents:
On April 29, 1967, the plaintiff, thru counsel, filed with the Court of First instance of leyte a complaint for recovery of real
property with damages against the defendants praying, among other things, 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, and that
the defendants be ordered to pay him the sums representing the value of the coconuts harvested from the land since
1962; moral damages in an amount the court may find reasonable; P260.00 for expenses of relocation survey; P300.00
attorney's fees and the incidental expenses and costs of the proceeding.
Summons were issued on May 4, 1967, requiring the defendants 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 on May 15, 1967.
As no answer was filed by the defendants, plaintiff's counsel, on July 17, 1967, filed a motion to declare defendants in
default. Acting upon said motion, the Court of First Instance of Leyte issued an order dated July 22, 1967, declaring the
defendants in default and directing the plaintiff to present ex-parte his evidence on the 24th day of the same month.
Thereafter a judgment by default dated July 31, 1967, was rendered by said court, the dispositive portion of which reads
as follows:
WHEREFORE, and in view of all the foregoing, the Court renders decision declaring the plaintiff the
owner of the western portion of the land covered by Original Certificate of Title No. P-225 containing an
area of 16,41 0 square meters as shown in Exhibit "C- 1 "; ordering the defendants to vacate the said
portion occupied by them; to pay the sum of P900.00 a year from July, 1962, up to the time the said
defendant will deliver the land in question to the plaintiff; to pay the amount of P300.00 as attorney's
fees; and to pay the costs.

The order of default and the judgment by default were received by the defendants on August 2, 1967, and August 11,
1967, respectively.
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.
On August 17, 1967, defendants' counsel filed a motion for relief from judgment charging irregularity in the service of the
summons and praying that the order of default dated July 22, 1967, and the judgment by default dated July 31, 1967, be
set aside and that defendants' answer, which was attached to said motion, be admitted. The defendants alleged in said
motion that the subject land was inherited by them so that they have a good and valid right thereto. They further alleged
that they had been paying taxes on the land that the complaint was filed merely to compel them to settle a criminal case
for frustrated homicide which they had filed against the plaintiff's son.
On September 16, 1967, the Court of First Instance of Leyte issued an order denying the motion for relief from judgment
on the ground that the same was not accompanied by an affidavit of merit. A copy of said order was received by the
defendants on September 28, 1967.
On October 4, 1967, defendants' counsel filed a motion for reconsideration contending that 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. However, before the court could act on the motion for reconsideration, the defendants' counsel
amended the same and attached thereto, their affidavit of merit which reads as follows:
WE, EUGENIA UBO and PORFERIO REGIS, the mother and son, respectively, the former-widow, and the
latter married, both of age, Filipinos and residents of Barrio Tuba, Jaro, Leyte, Philippines, after being
duly sworn to in accordance with law, hereby depose and say:
1. That 1, Eugenia Ubo, am the defendant in Civil Case No. 4031, entitled Patricio Bello vs. Eugenia Ubo,
et al.,; that although it appears that in the summons I received a copy of the complaint and served with
the summons, the truth of the matter is that I did not receive a copy of the complaint, nor my son,
Porferio Regis. Said complaint was served instead to the plaintiff, Patricio Bello, as appearing in the said
summons, and that the signature appearing in the said summons is actually not mine, not knowing how
to read or write myself;
2. That 1, Porferio Regis, am a co-defendant in the aforementioned civil case; that the signature in the
summons now attached to the record of the case is mine, but although it appears that I was served with
summons together with the complaint, the truth about it is that I did not receive the complaint supposed
to be delivered to me or my mother; instead, the summons was withdrawn after I had signed it;
3. That sometime on August 2, 1967, through the aid of our lawyer, Atty. Generoso Casimpan, it was then
that we received a copy of the complaint from the serving policeman, Castulo Yobia, in the presence of
Attys. Marcelo Caoelin and Alfredo Lastrilla;
4. That because of our own ignorance and the mistake of the serving policeman, it was perhaps the
reason why the Hon. Judge Lorenzo Garlitos declared us in default and the default judgment rendered
copy of which we received on August 11, 1967. "
On November 16, 1967, the plaintiff's counsel filed an opposition to the amended motion for reconsideration attaching
thereto a counter-affidavit executed before said counsel by Pat. Castulo Yobia, to wit:

I CASTULO YOBIA, of age, Filipino, married and a resident of Jaro, Leyte, Philippines, after having been
duly sworn to according to law, depose and say:
1. That I am presently a member of the Police Force of the Municipality of Jaro, Leyte; and that sometime
in the month of May, 1967, 1 was ordered by our Chief of Police to serve summons to which was attached
a copy of the complaint upon the persons of Eugenia Ubo and Porferio Regis, mother and son,
respectively, in the outskirts of Bo. Tuba, Jaro, Leyte, which is three kilometers away from the national
road and only accessible on foot as there is no regular trip of passenger vehicle to that place;
2. That definitely on May 15, 1967, taking the opportunity that there was a cargo truck which passed by
the Municipal Hall going to the aforementioned barrio to get copra, I hurriedly went inside the Office of
the Police Department to get the summons and the office clerk readily gave the same to me and to which
was attached a copy of the complaint;
3. Upon reaching the said barrio I immediately went to the house of Eugenia Ubo, whom I know
personally and was also able to contact at the same place Porferio Regis. At first they refused to receive
the summons and complaint. However, after explaining to them the nature of the summons and the case
against them, both of them signed the summons in my presence reluctantly and I detached the complaint
and handed the same to them although refusing. I further advised them to look for a lawyer at once to
handle their case;
4. That when I returned back to our office in Jaro I was told by the office clerk that there was another
copy of the summons and complaint intended for the other defendant;
5. That in the afternoon of the same day, I incidentally met plaintiff Patricio Bello and his son Juan Bello
in the poblacion of Jaro, Leyte, whom I informed that their complaint was already served on defendants
that morning and requested Patricio Bello to sign the summons, but was instead signed by the son Juan
Bello to show that they were already informed about the service upon defendants and so that they can
inform their lawyer. I then requested the said Patricio Bello to give the other copy of the complaint to the
other defendant thru anybody in the barrio, as they are the ones that use to frequent the said barrio
Tuba of Jaro;
6. That almost a month after, the son of Patricio Bello came to my house handing me the copy of the
complaint I gave to Patricio Bello to be delivered to the other defendant thru anybody in barrio Tuba,
telling me that the same copy of the complaint was not delivered because his father was afflicted with
rheumatism the past weeks.
On January 8, 1968, the Court of First Instance of Leyte issued an order denying defendants' motion for reconsideration,
to wit:
After a consideration of the ground of the Opposition to the Motion for Reconsideration, particularly the
affidavit of Pat. Castulo Yobia, the serving officer of the summons who had, upon the service of summons,
explained to both defendants the nature of the summons and the complaint which should have warned
the defendants of the existence of a case against them, especially because a copy of the complaint was
delivered to both of them at the time of service, 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 by such explanation
made by the policeman to them. It was, therefore incumbent upon the defendants to have checked up
their case. Their failure to do so does not constitute excusable negligence, nor could it be said to be one of
accident or excusable mistake. For lack of merit of the Motion for Reconsideration therefore, the same is
hereby denied.
A copy of said order was received by the defendants on January 9, 1968.

On January 23, 1968, the defendants, thru counsel, filed a notice of appeal and a motion to appeal as pauper and
submitted to the court for approval their record on appeal. The plaintiff, on the other hand, filed on January 31, 1968, a
motion for execution pending appeal.
On February 10, 1968, the Court of First Instance of Leyte issued an omnibus order approving defendants' record on
appeal and directing that the appeal be given due course; granting defendants' motion to appeal as pauper; and denying
plaintiff's motion for execution pending appeal.
The main thrust of the appeal is that there was no valid and effective service of summons on the defendants and that,
consequently, the Court of First Instance of leyte did not acquire jurisdiction over their person.
The appellants contend that Pat. Castulo Yobia of the Police Department of Jaro, Leyte, was not a proper person to serve
the summons under Sec. 5, Rule 14 of the Rules of Court since he was not a sheriff or a court officer of the province
where service was made; and neither was he a person who, for special reasons, was specially authorized to serve the
summons by the judge who issued the same. Furthermore, appellants contend that even assuming that said policeman
could be considers as a proper, person to serve the summond, still there was no valid and effective service since he
brought back the summons with. him together with the copy of 'the complaint.
The appellee, on the other hand, admits that the person who served the summons - Pat. Castulo Yobia of the Police
Department of Jaro, Leyte - is not one of those enumerated by Sec. 5, Rule 14 of the Rules of Court as the proper person
to serve the summons but contends that said provision of the rules is merely directory and its specification of persons
who are to serve summons is not exclusive. He claims that Pat. Yobia had duly served the summons upon the defendants
and had even explained to them the nature of the summons and advised them to look for a lawyer. He contends that said
policeman did equally if not more effectively what a sheriff or his deputy or a court officer was expected to have done and,
therefore, said service of summons had the same force and effect as though summons had been served by any of the
regular officers mentioned by the Rules.
After consideration of the material antecedents of this case and the pertinent jurisprudence on the matter, We hold that
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. Contrary to appellee's contention, this enumeration is exclusive. Thus, in Sequito vs.
Letrondo, G.R. No. L-11588, July 20,1959,105 Phil. 1139, 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. And in
the more recent case of Spouses Olar vs. Cuna, G.R. No. L-47935, May 5, 1979, 90 SCRA 114, We ruled that the
postmaster of Bato, Leyte, not being a sheriff or court officer, or a person authorized by the court to serve the summons
cannot validly serve the summons. There, as in the case at bar where summons was served by one who is not included in
the specification of Sec. 5, Rule 14 of the Rules of Court, this Court had to rule that the court which issued the summons
did not acquire jurisdiction over the person of the defendants.
Furthermore, the appellants point to other irregularities which attended the service of summons by Pat. Yobia. Thus, it is
alleged that said policeman merely tendered the summons to them and did not give then a copy of the same and of the
complaint. While it is true that Pat. Yobia had denied such allegation in his counter-affidavit which We have heretofore
quoted, nevertheless, We find appellants' version to be more credible. For, the records of the case are replete with
indications that the serving policeman was grossly ignorant of the rules concerning summons. Thus, the return of service
shows that the summons was first served on the plaintiff (back of p. 3, records). Besides, such 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." And even if We were to give
credence to Pat. Yobia's counter-affidavit, We would still find the service of the summons to be irregular since it is
expressly admitted therein that only one copy of the summons and of the complaint was served on the two defendants.

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.
WHEREFORE the trial court's order of default and judgment by default are set aside and said court is directed to accept
defendants-appellants' answer to the complaint and to conduct further proceedings on the case. Costs against plaintiffappellee.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 101256. March 8, 1993.

SPOUSES PEPITO AND LORETO LAUS, petitioners, vs. HON. COURT OF APPEALS, HON. SALVADOR C. CEGUERA, in
his capacity as Presiding Judge of the Regional Trial Court of Quezon City, Branch 82; NILO SM. CABANG, in his capacity
as Deputy Sheriff of Quezon City and CONSUELO P. TORRES, respondents.
Alberto E. Venturanza for petitioners.
Leonardo Byron R. Perez, Jr. for private respondent.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; JURISDICTION; HOW JURISDICTION OVER PERSON OF DEFENDANT
ACQUIRED; EFFECT OF INVALID SERVICE OF SUMMONS; CASE AT BAR. The focal issue is whether or not the trial
court acquired jurisdiction over the persons of the petitioners by virtue of the substituted service of summons effected by
Deputy Sheriff Cruz. Since the petitioners did not voluntarily submit to the jurisdiction of the trial court, proper service of
summons became imperative. If the service effected in the case at bar was, as claimed by the petitioners, invalid, the trial
court acquired no jurisdiction over their persons. In such an instance, the order of default, judgment by default and writ
of execution issued by the trial court would be null and void. . . . Since the substituted service of summons in this case
was not validly effected, the trial court did not acquire jurisdiction over the persons of the petitioners. The order of default,
the judgment by default, the writ of execution issued by it, as well as the auction sale of the petitioners' properties levied
on execution are, therefore, all null and void.
2. ID.; ID.; SUMMONS; PERSONAL SERVICE; GENERAL RULE; SUBSTITUTED SERVICE NATURE THEREOF; PHRASE
"WITHIN A REASONABLE TIME" CONSTRUED. 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 provides: "SEC. 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." This
provision is a reproduction of Section 8, Rule 7 of the 1940 Rules of Court except that inter alia, "promptly" in the latter
was changed to "within a reasonable time" in the former. "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.
3. ID.; ID.; ID.; HOW IMPOSSIBILITY OF PROMPT PERSONAL SERVICE SHOWN; CASE AT BAR. 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 (I Moran, Comments on the Rules of Court, 1970 Ed., p. 444). 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.' . . . (72 C.J.S. 1053)." A perusal of the sheriff's return in the case at bar
readily reveals that it does not (a) indicate the impossibility of service of summons within a reasonable time, (b) specify the
efforts exerted to locate the petitioners and (c) state that it was served on a person of sufficient age and discretion residing
therein. 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. 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 Josephine Areola, a
person whose age he did not even know or attempt to discover. He did not even inquire about the whereabouts of the
petitioners, the time 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.
4. ID.; ID.; ID.; SERVICE OF SUMMONS MAY BE MADE AT NIGHT, DURING THE DAY, ON A SUNDAY OR A HOLIDAY;
REASON THEREFOR; CASE AT BAR. It is all too obvious that no earnest efforts were exerted by Deputy Sheriff Cruz to
effect the personal service of summons. His testimony thus attests to an undue, if not indecent, haste to serve the
summons at the first attempt without making sure that personal service was, by then and even thereafter, an
impossibility because either the petitioners had left for a foreign country or an unknown destination with not definite date
of returning within a reasonable period or had gone into hiding to avoid service of any process from the courts. If he had
only made the inquiries suggested above, he could have returned in the evening of 10 October 1989 or on any of the
succeeding days including the following Saturday and Sunday. Service of summons may be made at night as well as
during the day, or even on a Sunday or holiday because of its ministerial character.
5. ID.; ID.; MOTION TO DISMISS ON GROUND OF LACK OF JURISDICTION OVER DEFENDANT'S PERSON; PERIOD FOR
FILING DOES NOT COMMENCE TO RUN UNTIL DEFENDANT VOLUNTARILY SUBMITS TO COURT'S JURISDICTION;
REASON THEREFOR; CASE AT BAR. Some further comments, en passant, on the ratiocination of the respondent
Court are in order. It is not accurate for the latter to have said that the petitioners' motion to dismiss was not filed
seasonably because it was filed beyond the reglementary period provided in the Revised Rules of Court. Such a conclusion
would doubtless be correct if there was a valid service of summons. If, however, a defendant has not been properly
summoned, the period to file a motion to dismiss for lack of jurisdiction over his person does not commence to run until
he voluntarily submits to the jurisdiction of the court, since the court has no jurisdiction to adjudicate the controversy as
to him until such time. In this case, petitioners did not voluntarily submit to the jurisdiction of the trial court.
Consequently, the period to file a responsive pleading did not even commence to run.
6. ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; WHEN INTERLOCUTORY ORDER MAY BE THE SUBJECT THEREOF;
CASE AT BAR. Nor are We persuaded by the respondent Court's declaration that even if the motion to dismiss had been
filed on time, the trial court's order denying the same, being interlocutory, still cannot be the subject of a petition for
certiorari. To be sure, this rule admits of an exception, as when the trial court clearly acted outside of its jurisdiction or
with grave abuse of discretion in denying the motion to dismiss. This is exactly what happened in the case while it was
pending before the trial court; the denial of the motion to dismiss was based solely on the ground that a judgment by
default had already been entered. Certainly, this does not constitute a valid ground for the denial because the motion
raises a fundamental and prejudicial issue affecting the validity of the decision by default.
7. ID.; EVIDENCE DISPUTABLE PRESUMPTIONS; PRESUMPTION OF REGULARITY IN PERFORMANCE OF OFFICIAL
FUNCTIONS; DOES NOT APPLY WHERE SHERIFF'S RETURN IS PATENTLY DEFECTIVE. Finally, respondent Court's
reliance on the presumption of regularity in the performance of official functions is misplaced. We have held that such a
presumption does not apply where it is patent that the sheriff's return is defective.
8. ID.; VOID JUDGMENT CAN NEVER BECOME FINAL AND EXECUTORY; ACTION TO DECLARE NULLITY OF VOID
JUDGMENT IMPRESCRIPTIBLE; CASE AT BAR. Equally unmeritorious is the respondent Court's statement that the
failure of the petitioners to appeal from the judgment by default rendered such judgment final and unassailable. In the
first place, it is axiomatic that a void judgment can never become final and executory and may even be assailed or
impugned at any time. An action to declare the nullity of a void judgment does not prescribe. Secondly, the motion to
dismiss in this case was filed before the petitioners received a copy of the decision by default. Since the said motion is
based on the lack of jurisdiction over the persons of the petitioners which, if true in fact, We have found it to be so
would result in the nullification not only of the default order but of the decision as well, then for all legal intents and
purposes, the latter was covered by the motion. This was precisely the orientation of the trial court when it allowed the
parties to submit evidence to support the motion to reconsider the Order of 5 March 1990 denying the motion to dismiss.
It would certainly not have gone that far if it thought otherwise for by then, the decision had already become final.

DECISION
DAVIDE, JR., J p:
Petitioners seek the review and reversal of the 30 May 1991 Decision 1 of respondent Court of Appeals in CA-G.R. SP No.
22232 2 and the 30 July 1991 Resolution denying their motion to reconsider the said decision. The challenged decision
dismissed, for lack of merit, their petition for certiorari, prohibition and injunction to annul the Orders dated 5 March
1990 and 9 July 1990 of Branch 82 of the Regional Trial Court (RTC) of Quezon City in Civil Case No. Q-89-3327 which,
respectively, declared them in default and denied their motion to reconsider such declaration.
The antecedents of this case are not controverted.
On 24 August 1989, private respondent Consuelo P. Torres filed against "Loredo (sic) Alfaro-Laus and John Doe" a
complaint, docketed as Civil Case No. Q-89-3327, for the collection of a sum of money. The defendants in the said case are
the petitioners in the instant petition. The complaint alleges that petitioner Loreto Alfaro-Laus executed a promissory note
in favor of the private respondent under which the former undertook to pay the latter the amount of Sixty-Six Thousand
Pesos (P66,000.00) after three (3) months from the date thereof. Upon maturity of the said promissory note, however, only
Eleven Thousand Pesos (P11,000.00) was paid; despite the receipt of a demand letter from the private respondent,
petitioners made no further payments. Thus, the former filed the aforementioned complaint praying for the payment of the
unpaid balance of P55,000.00 "plus interest at the rate of ten per cent (10%), compounded monthly beginning February
21, 1989, and twenty-five per cent (25%) of the entire amount due for and as attorney's fees, such being in accordance
with the terms and conditions set forth in the promissory note." 3
On 10 October 1989, Deputy Sheriff Romero S. Cruz proceeded to the petitioners' address at 122 Molave Park
Subdivision, Paraaque, Metro Manila to serve the summons and a copy of the complaint. Failing to serve the summons
personally upon the petitioners after waiting for ten (10) minutes, he resorted to a substituted service through one
Josephine Areola, who purportedly represented herself to be the maid of the said petitioners. 4 On the same date, Deputy
Sheriff Cruz executed and filed a return 5 which reads:
"Respectfully returned to the REGIONAL TRIAL COURT Branch 82, QUEZON CITY, the attached original copy of the
summons issued in connection with Civil Case No. 89-3327 entitled CONSUELO P. TORRES versus LOREDO (sic) LAUS &
JOHN DOE with the information that duplicate copy of the same together with the complaint and its annexes was duly
served upon defendant Loredo (sic) Laus of 122 Molave Park Subd. Paraaque M. M. thru JOSEPHINE AREOLA, maid of
Loredo Daus (sic) of same address, received as evidenced by her signature appearing thereon."
The petitioners did not file any answer. Consequently, upon motion of the private respondent, the trial court 6 issued on
29 December 1989 an order declaring the former in default and setting the ex parte presentation of the private
respondent's evidence for 16 January 1990. 7 The petitioners claim that they received this 29 December 1989 Order only
on 22 January 1990.
On 24 January 1990, the trial court rendered a judgment by default against the petitioners; it ordered the latter "[T]o pay
the plaintiff (private respondent) the amount of FIFTY-FIVE Thousand Pesos (P55,000.00) at the rate of ten per cent
(10%), compounded monthly beginning February 21, 1989 up to the present; and . . . [T]o pay attorney's fees equivalent to
twenty-five percent (25%) of the entire amount due" to the private respondent. 8
On 2 February 1990, before receiving a copy of the 22 January 1990 decision, petitioners, by way of a special appearance,
filed a motion to dismiss the case 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. 9
In its Order of 5 March 1990, the trial court denied the motion to dismiss for lack of merit on the ground that it had
already rendered a judgment by default on 24 January 1990. 10 Petitioners received a copy of this order on 24 March
1990. In the meantime, the trial court issued a writ of execution.
On 30 March 1990, public respondent Deputy Sheriff Nilo Cabang, pursuant to a writ of execution issued by the trial
court, levied upon petitioners' properties consisting of a 1983 Mitsubishi Galant Sedan and a men's ring.

On 3 April 1990, petitioners filed a motion to reconsider the Order of 5 March 1990; 11 they reiterated therein the
contention that the trial court did not acquire jurisdiction over their persons because of the defective service of summons,
and further aver that:
"Josephine Areola, the person who supposedly received the summons is not even known to the defendants. It turned out
from their investigation that said Josephine Areola was just a guest of one of their maid (sic) who stayed for only about a
week. Furthermore Josephine Areola was just a child of about ten to eleven years old and would not be expected to know
what to do with the documents handed to her. With all due respect it would not be fair for the defendant if the summons
would be served upon the defendants through a person who is not of sufficient age and discretion at the time the
summons was served, and a transcient (sic) at that." 12
A hearing on the motion for reconsideration was held and the parties presented evidence on the issue of service of
summons. Petitioner Loreto Alfaro-Laus testified that Josephine Areola, who was 11 to 12 years old at that time, was just
a guest of her maid and thus stayed in the house for a week. Private respondent, on the other hand, presented evidence to
show that Josephine had been staying in the petitioners' house since July 1990 for she was the person who received the
demand letter sent to the petitioners on 3 July 1989. 13 Deputy Sheriff Cruz also took the witness stand, identified the
affidavit he executed on 27 April 1990 14 and further asserted that he found no one in the house of the petitioners when
he arrived on 10 October 1989; he claimed that he waited for ten (10) minutes. Thereupon, two (2) women arrived; the
said women told him, upon his inquiry, that the petitioners were not around. He then served the summons through one of
them, Josephine Areola. 15
In its Order of 9 July 1990, 16 the trial court denied the petitioners' motion for reconsideration and held that there was a
proper service of summons because contrary to Loreto Alfaro-Laus' statement that Areola was a guest of their maid for a
week, it was proven that Areola was in fact the very person who, on 3 July 1989, received the demand letter sent by the
private respondent.
On 17 July 1990, petitioners filed with the Court of Appeals a petition for certiorari, prohibition and injunction with
application for a restraining order 17 to set aside the trial court's Orders of 5 March 1990 and 9 July 1990, and to dismiss
Civil Case No. Q-89-3327. The petition was docketed as CA-G.R. SP No. 22232. Petitioners insisted therein that the trial
court committed grave abuse of discretion and a grave error in denying their motion to dismiss and the motion to
reconsider said denial despite the lack of jurisdiction over their persons. They likewise challenged the denial of such
motion to dismiss which was based solely on the ground that a judgment by default had already been rendered. 18
On 30 May 1991, the respondent Court of Appeals promulgated its decision 19 denying the petition for lack of merit. It
made the following disqualifications:
" . . . it was the defendants-petitioners who erred in filing a motion to dismiss at that late stage of the proceedings. A
motion to dismiss on the ground that the Court has no jurisdiction over the person of the defendants is proper only when
made within the reglementary period for filing a responsive pleading and before such responsive pleading is filed (Rule 16,
Sec. 1[a]). In this case, the defendants-petitioners' motion to dismiss was filed five (5) months after the complaint was filed
and only after a default judgment had already been rendered by the respondent Court. Thus, it was rather too late in the
day for the defendants-petitioners' motion to dismiss to be considered by the respondent Court. In the proper exercise of
its sound judicial discretion, the respondent Court did not err in denying the motion to dismiss on the ground that a
judgment by default had already been rendered.
Besides, even if the motion to dismiss was filed on time, and yet, was still denied by the respondent Court, the order of the
court denying the motion to dismiss is interlocutory and cannot be the subject of a petition for certiorari, such as this
instant petition (National Investment and Development Corp. vs. Aquino, 163 SCRA 153). The denial of a motion to
dismiss cannot be questioned in a petition for certiorari, which is an extra-ordinary writ that is not allowed as a substitute
for ordinary appeal (Tan vs. Intermediate Appellate Court, 164 SCRA 130).
Be that as it may, the defendants-petitioners had other remedies available to them, but which they failed to avail of. In a
long line of cases decided by the Supreme Court, it has been repeatedly provided that the remedies of a defaulted
defendant are:
(a) The defendant in default may, at any time after discovery thereof and before judgment, file a motion, under oath, to set
aside the order of default on the ground that his failure to answer was due to fraud, accident, mistake, excusable
negligence, and that he has a meritorious defense;

(b) If the judgment has already been rendered when the defendant discovered the default, but before the same has become
final and executory, he may file a Motion for New Trial under Section 1[a] of Rule 37;
(c) If the defendant discovered the default after the judgment has become final and executory, he may file a petition for
relief under Sec. 2 of Rule 38; and
(d) He may also appeal from the judgment rendered against him as contrary to the evidence or to law, even if no petition to
set aside the order of default has been presented by him (Sec. 2, Rule 41). (Lina vs. Court of Appeals, 135 SCRA 637;
Tiburcio vs. Castro, 161 SCRA 583).
As it is, the defendants-petitioners failed, after they received notice of the order declaring them in default and before the
default judgment was rendered, to file a motion, under oath, to set aside the order of default on the ground that they
failed to file a timely answer due to fraud, accident, mistake, or excusable negligence, and showing (sic) that they had a
meritorious defense.
The other applicable remedy which they failed to employ is the remedy of appeal from the judgment rendered against them
as contrary to the evidence or the law, even in the absence of a motion/petition to set aside the order of default. This
instant petition for certiorari cannot be a substitute for the remedy of appeal, which the defendants-petitioners did not
pursue, as they must first exhaust the remedies available to them (Lina vs. Court of Appeals, supra.). That the judgment
by default had already become final and is about to be executed is the result of the defendants-petitioners' failure to file a
timely appeal. As such, the default judgment may no longer be challenged (Tiburcio vs. Castro, supra.)
Lastly, We find that the respondent Court was liberal enough in hearing the defendants-petitioners' motion for
reconsideration of the denial of their motion to dismiss. As the pivotal issue therein, the defendant-petitioners were given
their day in court to prove that the service of summons to them was both improper and invalid. After weighing the
evidence and testimonies of the parties and other persons involved, the respondent Court ruled that there was valid
service of summons. We find no compelling reason to rule otherwise.
There is such a presumption of regularity in the performance of official functions by the sheriff, and it was up to the
defendants-petitioners to convince the respondent Court that there was, indeed, invalid service of summons. This they
failed to do. They could not substantiate their claim that Josephine Areola was a child of 10 to 11 years who would not
know what to do with the court documents received by her. The defendants-petitioners' contention that Josephine Areola
stayed with them for only a few days backfired when the private respondent presented documentary evidence to show that
Josephine Areola was already residing in the defendants-petitioners' house at least three (3) months before the summons
was served. No other proof was presented by the defendants-petitioners to bolster their allegations apart from their selfserving, and sometimes conflicting, testimonies. Thus, We find no error or grave abuse of discretion on the part of the
respondent Court in denying the defendants-petitioners' motion for reconsideration." 20
Meanwhile, on 13 June 1991, respondent sheriff Nilo Cabang sold at a public auction the levied men's ring - on oval
diamond set in yellow gold to the private respondent for P140,000.00, and the Galant car to Atty. Leonardo Perez, Jr.,
counsel for the latter, for P180,000.00. Both were the highest bidders. 21
Their motion for the reconsideration of the aforesaid decision having been denied in the respondent Court's Resolution of
30 July 1991, 22 petitioners availed of this recourse under Rule 45 of the Revised Rules of Court and raise the following
issues:
"1. WHETHER OR NOT THE COURT A QUO ACQUIRED JURISDICTION OVER THE REASONS OF THE PETITIONERS BY
VIRTUE OF THE SUBSTITUTED SERVICE OF SUMMONS EFFECTED BY DEPUTY SHERIFF ROMEO CRUZ;
2. WHETHER OR NOT THE REMEDY OF CERTIORARI CAN BE AVAILED OF BY A PARTY IMPROVIDENTLY DECLARED
IN DEFAULT TO CHALLENGE THE ORDER OF DEFAULT AND THE SUBSEQUENT JUDGMENT BY DEFAULT." 23
On 10 February 1992, after the filing of the private respondent's comment and the petitioners' reply thereto, We resolved
to give due course to the petition and required the parties to file their respective memoranda which they subsequently
complied with.
We find merit in this petition.

The focal issue is whether or not the trial court acquired jurisdiction over the persons of the petitioners by virtue of the
substituted service of summons effected by Deputy Sheriff Cruz. Since the petitioners did not voluntarily submit to the
jurisdiction of the trial court, proper service of summons became imperative. If the service effected in the case at bar was,
as claimed by the petitioners, invalid, the trial court acquired no jurisdiction over their persons. 24 In such an instance,
the order of default, judgment by default and writ of execution issued by the trial court would be null and void. 25
The general rule in this jurisdiction is that summons must be personally served; pursuant to Section 7, Rule 14 of the
Revised Rules of Court, such personal service is to be accomplished by "handing a copy thereof to the defendant in
person, or, if he refuses to receive it, by tendering it to him." However, if this mode of service cannot be effected within a
reasonable time, substituted service may be resorted to under Section 8 of the same Rule. Section 8 provides:
"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."
This provision is a reproduction of Section 8, Rule 7 of the 1940 Rules of Court except that inter alia, "promptly" in the
latter was changed to "within a reasonable time" in the former. "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. 26
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. 27 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. 28
In Keister vs. Navarro, 29 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 (I Moran, Comments on the Rules of Court,
1970 Ed., p. 444). 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.' . . . (72 C.J.S. 1053)."
Emphasizing the need for strict compliance with the requirements of substituted service, this Court issued Administrative
Circular No. 59, the pertinent portions of which read as follows:
"SUBJECT: Service of Summons.
Delays in court proceedings have been caused by faulty and erroneous implementation of Section 8, Rule 14, Rules of
Court on Substituted Service of Summons.
The Trial Judges of all lower courts, as well as the Clerks of Court in their capacity as Ex-Officio Sheriffs together with the
Deputy Sheriffs are reminded of the provision of Section 8, Rule 14, Rules of Court on substituted service as follows:
xxx xxx xxx
The manner of effecting substituted service as prescribed in Venturanza v. Court of Appeals, 156 SCRA 305, must be
strictly complied with, thus:
'The substituted service should be availed only when the defendant cannot be served promptly in person. Impossibility of
prompt service should be shown 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.'

For immediate compliance."

A perusal of the sheriff's return in the case at bar readily reveals that it does not (a) indicate the impossibility of service of
summons within a reasonable time, (b) specify the efforts exerted to locate the petitioners and (c) state that it was served
on a person of sufficient age and discretion residing therein. 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.
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
Josephine Areola, a person whose age he did not even know or attempt to discover. He did not even inquire about the
whereabouts of the petitioners, the time 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. Thus, he declared and admitted:
"Q In this case, you went to the residence of the defendant once as you stated on paragraph 3 30 on October 10, 1989?
A Yes, sir.
Q And you did not wait the (sic) defendant to come because according to you in paragraph 4, you were informed that the
defendant was not around, is that correct?
A According to the maid.
Q So upon being informed that the defendant was not around you served the summons, according to paragraph 4 to one
Josephine Ariola, is that correct?
A Yes, sir.
Q In other words, you relied on the information given to you by somebody that the defendant was not around?
A: I waited there for around ten (10) minutes and then two (2) women arrived in the tricycle and I waited them (sic) to get
inside and I asked them if Mr. and Mrs. Laus will be coming.
Q And they answered they were not around at that time?
A Yes, sir.
Q So, you immediately served the summons upon the persons arriving (sic)?
A Yes, sir.
Q And who were these persons who arrived?
A Josephine Ariola.
Q And who is her companion?
A I did not ask anymore?
xxx xxx xxx
Q Who is older, is this Josephine Ariola or her companion?
A Josephine Ariola, she was the one who signed the summons.
Q Did you ask her age?

A I did not ask anymore because she look already (sic) of sufficient age.
Q That's your conclusion?
A Yes because she was the maid there and she was the older one." 31
As it turns out, the unrebutted evidence for the petitioners establishes that Areola (or Ariola) was only 11 to 12 years old
at the time substituted service was attempted. 32
It is all too obvious that no earnest efforts were exerted by Deputy Sheriff Cruz to effect the personal service of summons.
His testimony thus attests to an undue, if not indecent, haste to serve the summons at the first attempt without making
sure that personal service was, by then and even thereafter, an impossibility because either the petitioners had left for a
foreign country or an unknown destination with not definite date of returning within a reasonable period or had gone into
hiding to avoid service of any process from the courts. If he had only made the inquiries suggested above, he could have
returned in the evening of 10 October 1989 or on any of the succeeding days including the following Saturday and
Sunday. Service of summons may be made at night as well as during the day, or even on a Sunday or holiday because of
its ministerial character. 33
Since the substituted service of summons in this case was not validly effected, the trial court did not acquire jurisdiction
over the persons of the petitioners. The order of default, the judgment by default, the writ of execution issued by it, as well
as the auction sale of the petitioners' properties levied on execution are, therefore, all null and void.
There is more in this case which further unmasks the nullity of the decision of the trial court. Both parties agree that the
petitioners were the defendants in Civil Case No. Q-89-3327. However, petitioner Loreto Alfaro-Laus is erroneously
mentioned in the complaint as Loredo. On the other hand, petitioner Pepito Laus, the husband of Loreto, is merely
designated as JOHN DOE. The latter was impleaded as a co-defendant presumably on the theory that the liability sought
to be enforced is a conjugal partnership liability. In short, Loreto's husband was sued as an indispensable party; it is clear
that the trial court treated him as such when in its decision, ordered the defendants, not just Loreto, to pay the adjudged
amounts.
The sheriff's return of service indisputably discloses that no summons was even attempted to be served on petitioner
Pepito Laus. Sheriff Cruz unequivocally states therein that the "duplicate copy of the same together with the complaint
and its annexes was duly served upon defendant Loredo (sic) Laus of 122 Molave Park Subd. Paraaque M. M. thru
JOSEPHINE AREOLA, maid of Loredo Daus (sic) of same address, . . . ." 34
Neither Deputy Sheriff Cruz nor the private respondent had volunteered additional information to the effect that at some
other time, summons was in fact served on Pepito Laus. Accordingly, the trial court never acquired jurisdiction over his
person. And yet, while it concedes in its 29 December 1989 Order that the substituted service of summons was valid only
for Loreto, it declared the defendants and not only her in default. The court could have easily avoided this misdoing if
it only examined the records before issuing the order. On this score alone, the judgment by default is fatally flawed.
There is still another fact which betrays the trial court's unusual haste in rendering the judgment by default. In the
dispositive portion of the decision, the defendants were ordered, inter alia:
"1. To pay the plaintiff the amount of FIFTY-FIVE Thousand Pesos (P55,000.00) at the rate of ten per cent (10%),
compounded monthly beginning February 21, 1989 up to the present;" 35
While this rate of ten per cent (10%) could only refer to the imposable interest, the court failed to state whether its
application shall be on a monthly or yearly basis. The body of the decision, however, speaks of ten per cent (10%) interest
PER MONTH; 36 this seems to have been the basis relied on by respondent sheriff Cabang in computing for the
petitioners' alleged liability for purposes of execution. 37 This award of interest in effect amounting to one hundred
twenty per cent (120%) per annum and the additional twenty-five per cent (25%) of the total amount due ordered paid
as attorney's fees, are unreasonable and unconscionable.
Since the trial court's default order and judgment by default are null and void, the respondent Court gravely erred in
affirming them.

Some further comments, en passant, on the ratiocination of the respondent Court are in order. It is not accurate for the
latter to have said that the petitioners' motion to dismiss was not filed seasonably because it was filed beyond the
reglementary period provided in the Revised Rules of Court. Such a conclusion would doubtless be correct if there was a
valid service of summons. If, however, a defendant has not been properly summoned, the period to file a motion to dismiss
for lack of jurisdiction over his person does not commence to run until he voluntarily submits to the jurisdiction of the
court, since the court has no jurisdiction to adjudicate the controversy as to him until such time. 38 In this case,
petitioners did not voluntarily submit to the jurisdiction of the trial court. Consequently, the period to file a responsive
pleading did not even commence to run.
Nor are We persuaded by the respondent Court's declaration that even if the motion to dismiss had been filed on time, the
trial court's order denying the same, being interlocutory, still cannot be the subject of a petition for certiorari. To be sure,
this rule admits of an exception, as when the trial court clearly acted outside of its jurisdiction or with grave abuse of
discretion in denying the motion to dismiss. 39 This is exactly what happened in the case while it was pending before the
trial court; the denial of the motion to dismiss was based solely on the ground that a judgment by default had already
been entered. Certainly, this does not constitute a valid ground for the denial because the motion raises a fundamental
and prejudicial issue affecting the validity of the decision by default.
Equally unmeritorious is the respondent Court's statement that the failure of the petitioners to appeal from the judgment
by default rendered such judgment final and unassailable. In the first place, it is axiomatic that a void judgment can never
become final and executory and may even be assailed or impugned at any time. 40 An action to declare the nullity of a
void judgment does not prescribe. 41 Secondly, the motion to dismiss in this case was filed before the petitioners received
a copy of the decision by default. Since the said motion is based on the lack of jurisdiction over the persons of the
petitioners which, if true in fact, We have found it to be so would result in the nullification not only of the default
order but of the decision as well, then for all legal intents and purposes, the latter was covered by the motion. This was
precisely the orientation of the trial court when it allowed the parties to submit evidence to support the motion to
reconsider the Order of 5 March 1990 denying the motion to dismiss. It would certainly not have gone that far if it thought
otherwise for by then, the decision had already become final.
Its suggestion that the petitioners should have filed a motion to set aside the order of default on the ground that they had
failed to file the answer on grounds of fraud, accident, mistake or excusable negligence or a motion for new trial or a
petition for relief from judgment, is untenable for it begs the question. Besides, as shown above, petitioners' failure to file
the answer was not based on any of these grounds, but stood on the void service of summons.
Finally, respondent Court's reliance on the presumption of regularity in the performance of official functions is misplaced.
We have held that such a presumption does not apply where it is patent that the sheriff's return is defective. 42
WHEREFORE, the Decision of the respondent Court of Appeals of 30 May 1991 and the Resolution dated 30 July 1991 in
CA-G.R. SP No. 22232 are hereby REVERSED and SET ASIDE. The Order of Branch 82 of the Regional Trial Court of
Quezon City of 29 December 1989 (Civil Case No. Q-89-3327) declaring petitioners in default, its Decision of 24 January
1990, Orders of 5 March 1990 and 9 July 1990 and the writ of execution issued therein, as well as all proceedings had
pursuant to the writ of execution, are declared NULL and VOID. The case is hereby remanded to the court of origin for
further proceedings which shall include the valid service of summons.
SO ORDERED.

[G.R. No. 108538. January 22, 1996]

LOURDES A. VALMONTE and ALFREDO D. VALMONTE, petitioners, vs. THE HONORABLE COURT OF APPEALS,
THIRD DIVISION and ROSITA DIMALANTA,respondents.
DECISION
MENDOZA, J.:
Petitioner Lourdes A. Valmonte is a foreign resident. The question is whether in an action for partition filed against
her and her husband, who is also her attorney, summons intended for her may be served on her husband, who has a law
office in the Philippines. The Regional Trial Court of Manila, Branch 48, said no and refused to declare Lourdes A.
Valmonte in default, but the Court of Appeals said yes. Hence this petition for review on certiorari.
The facts of the case are as follows:
Petitioners Lourdes A. Valmonte and Alfredo D. Valmonte are husband and wife. They are both residents of 90222
Carkeek Drive South Seattle, Washington, U.S.A. Petitioner Alfredo D. Valmonte, who is a member of the Philippine bar,
however, practices his profession in the Philippines, commuting for this purpose between his residence in the state of
Washington and Manila, where he holds office at S-304 Gedisco Centre, 1564 A. Mabini, Ermita, Manila.
On March 9, 1992, private respondent Rosita Dimalanta, who is the sister of petitioner Lourdes A. Valmonte, filed a
complaint for partition of real property and accounting of rentals against petitioners Lourdes A. Valmonte and Alfredo D.
Valmonte before the Regional Trial Court of Manila, Branch 48. The subject of the action is a three-door apartment located
in Paco, Manila.
In her Complaint, private respondent alleged:
The plaintiff is of legal age, a widow and is at present a resident of 14823 Conway Road, Chesterfield, Missouri,
U.S.A., while the defendants are spouses, of legal age and at present residents of 90222 Carkeek Drive, South Seattle,
Washington, U.S.A., but, for purposes of this complaint may be served with summons at Gedisco Center, Unit 304, 1564
A. Mabini St., Ermita, Manila where defendant Alfredo D. Valmonte as defendant Lourdes Arreola Valmontes spouse holds
office and where he can be found.
Apparently, the foregoing averments were made on the basis of a letter previously sent by petitioner Lourdes A.
Valmonte to private respondents counsel
in which, in regard to the partition of the property in question, she referred private respondents counsel to her
husband as the party to whom all communications intended for her should be sent. The letter reads:
July 4, 1991
Dear Atty. Balgos:
This is in response to your letter, dated 20 June 1991, which I received on 3 July 1991. Please address all
communications to my lawyer, Atty. Alfredo D. Valmonte, whose address, telephone and fax numbers appear below.
c/o Prime Marine
Gedisco Center, Unit 304

1564 A. Mabini, Ermita

Metro Manila
Telephone:
Fax:

521-1736

21-2095

Service of summons was then made upon petitioner Alfredo D. Valmonte, who at the time, was at his office in Manila.
Petitioner Alfredo D. Valmonte accepted the summons, insofar as he was concerned, but refused to accept the summons
for his wife, Lourdes A. Valmonte, on the ground that he was not authorized to accept the process on her behalf.
Accordingly the process server left without leaving a copy of the summons and complaint for petitioner Lourdes A.
Valmonte.
Petitioner Alfredo D. Valmonte thereafter filed his Answer with Counterclaim. Petitioner Lourdes A. Valmonte,
however, did not file her Answer. For this reason private respondent moved to declare her in default. Petitioner Alfredo D.
Valmonte entered a special appearance in behalf of his wife and opposed the private respondents motion.
In its Order dated July 3, 1992, the trial court, denied private respondents motion to declare petitioner Lourdes A.
Valmonte in default. A motion for reconsideration was similarly denied on September 23, 1992. Whereupon, private
respondent filed a petition for certiorari, prohibition and mandamus with the Court of Appeals.
On December 29, 1992, the Court of Appeals rendered a decision granting the petition and declaring Lourdes A.
Valmonte in default. A copy of the appellate courts decision was received by petitioner Alfredo D. Valmonte
on January 15, 1993 at his Manila office and on January 21, 1993 in Seattle, Washington. Hence, this petition.
The issue at bar is whether in light of the facts set forth above, petitioner Lourdes A. Valmonte was validly served
with summons. In holding that she had been, the Court of Appeals stated: [1]
[I]n her above-quoted reply, Mrs. Valmonte clearly and unequivocally directed the aforementioned counsel of Dimalanta to
address all communications (evidently referring to her controversy with her sister Mrs. Dimalanta over the Paco property,
now the subject of the instant case) to her lawyer who happens also to be her husband. Such directive was made without
any qualification just as was her choice/designation of her husband Atty. Valmonte as her lawyer likewise made without
any qualification or reservation. Any disclaimer therefore on the part of Atty. Valmonte as to his being his wifes attorney
(at least with regard to the dispute vis-a-vis [sic] the Paco property) would appear to be feeble or trifling, if not incredible.
This view is bolstered by Atty. Valmontes subsequent alleged special appearance made on behalf of his wife. Whereas Mrs.
Valmonte had manifestly authorized her husband to serve as her lawyer relative to her dispute with her sister over the
Paco property and to receive all communications regarding the same and subsequently to appear on her behalf by way of a
so-called special appearance, she would nonetheless now insist that the same husband would nonetheless had absolutely
no authority to receive summons on her behalf. In effect, she is asserting that representation by her lawyer (who is also
her husband) as far as the Paco property controversy is concerned, should only be made by him when such
representation would be favorable to her but not otherwise. It would obviously be inequitable for this Court to allow
private respondent Lourdes A. Valmonte to hold that her husband has the authority to represent her when an advantage
is to be obtained by her and to deny such authority when it would turn out to be her disadvantage. If this be allowed, Our
Rules of Court, instead of being an instrument to promote justice would be made use of to thwart or frustrate the same.
xxx

xxx

xxx

Turning to another point, it would not do for Us to overlook the fact that the disputed summons was served not upon just
an ordinary lawyer of private respondent Lourdes A. Valmonte, but upon her lawyer husband. But that is not all, the same

lawyer/husband happens to be also her co-defendant in the instant case which involves real property which, according to
her lawyer/husband/ co-defendant, belongs to the conjugal partnership of the defendants (the spouses Valmonte). It is
highly inconceivable and certainly it would be contrary to human nature for the lawyer/husband/co-defendant to keep to
himself the fact that they (the spouses Valmonte) had been sued with regard to a property which he claims to be conjugal.
Parenthetically, there is nothing in the records of the case before Us regarding any manifestation by private respondent
Lourdes A. Valmonte about her lack of knowledge about the case instituted against her and her lawyer/husband/codefendant by her sister Rosita.
PREMISES CONSIDERED, the instant petition for certiorari, prohibition and mandamus is given due course. This Court
hereby Resolves to nullify the orders of the court a quo dated July 3, 1992 and September 23, 1992 and further declares
private respondent Lourdes Arreola Valmonte as having been properly served with summons.
Petitioners assail the aforequoted decision, alleging that the Court of Appeals erred (1) in refusing to apply the
provisions of Rule 14, 17 of the Revised Rules of Court and applying instead Rule 14, 8 when the fact is that petitioner
Lourdes A. Valmonte is a nonresident defendant; and (2) because even if Rule 14, 8 is the applicable provision, there was
no valid substituted service as there was no strict compliance with the requirement by leaving a copy of the summons and
complaint with petitioner Alfredo D. Valmonte. Private respondent, upon the other hand, asserts that petitioners are
invoking a technicality and that strict adherence to the rules would only result in a useless ceremony.
We hold that there was no valid service of process on Lourdes A. Valmonte.
To provide perspective, it will be helpful to determine first the nature of the action filed against petitioners Lourdes A.
Valmonte and Alfredo D. Valmonte by private respondent, whether it is an action in personam, in rem or quasi in rem. This
is because the rules on service of summons embodied in Rule 14 apply according to whether an action is one or the other
of these actions.
In an action in personam, personal service of summons or, if this is not possible and he cannot be personally served,
substituted service, as provided in Rule 14, 7-8 [2] is essential for the acquisition by the court of jurisdiction over the
person of a defendant who does not voluntarily submit himself to the authority of the court. [3] If defendant cannot be
served with summons because he is temporarily abroad, but otherwise he is a Philippine resident, service of summons
may, by leave of court, be made by publication. [4] Otherwise stated, a resident defendant in an action in personam, who
cannot be personally served with summons, may be summoned either by means of substituted service in accordance with
Rule 14, 8 or by publication as provided in 17 and 18 of the same Rule. [5]
In all of these cases, it should be noted, defendant must be a resident of the Philippines, otherwise an action in
personam cannot be brought because jurisdiction over his person is essential to make a binding decision.
On the other hand, if the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not essential
for giving the court jurisdiction so long as the court acquires jurisdiction over the res. If the defendant is a nonresident
and he is not found in the country, summons may be served extraterritorially in accordance with Rule 14, 17, which
provides:
17. Extraterritorial service. - When the defendant does not reside and is not found in the Philippines and the action
affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in
which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly
or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within
the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under Section 7; or
by publication in a newspaper of general circulation in such places and for such time as the court may order, in which
case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the
defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable
time, which shall not be less than sixty (60) days after notice, within which the defendant must answer.

In such cases, what gives the court jurisdiction in an action in rem or quasi in rem is that it has jurisdiction over
the res, i.e. the personal status of the plaintiff who is domiciled in the Philippines or the property litigated or attached.
Service of summons in the manner provided in 17 is not for the purpose of vesting it with jurisdiction but for complying
with the requirements of fair play or due process, so that he will 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 the plaintiff and he can thereby take steps to protect his interest if he is so minded. [6]
Applying the foregoing rules to the case at bar, private respondents action, which is for partition and accounting
under Rule 69, is in the nature of an action quasi in rem. Such an action is essentially for the purpose of affecting the
defendants interest in a specific property and not to render a judgment against him. As explained in the leading case
of Banco Espaol Filipino v. Palanca :[7]
[An action quasi in rem is] an action which while not strictly speaking an action in rem partakes of that nature and is
substantially such. . . . The action quasi in rem differs from the true action in rem in the circumstance that in the former
an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation
or lien burdening the property. All proceedings having for their sole object the sale or other disposition of the property of
the defendant, whether by attachment, foreclosure, or other form of remedy, are in a general way thus designated. The
judgment entered in these proceedings is conclusive only between the parties.
As petitioner Lourdes A. Valmonte is a nonresident who is not found in the Philippines, service of summons on her
must be in accordance with Rule 14, 17. Such service, to be effective outside the Philippines, must be made either (1) by
personal service; (2) 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; or (3) in any other manner which the court may deem sufficient.
Since in the case at bar, the service of summons upon petitioner Lourdes A. Valmonte was not done by means of any
of the first two modes, the question is whether the service on her attorney, petitioner Alfredo D. Valmonte, can be justified
under the third mode, namely, in any . . . manner the court may deem sufficient.
We hold it cannot. This mode of service, like the first two, must be made outside the Philippines, such as through the
Philippine Embassy in the foreign country where the defendant resides. [8] Moreover, there are several reasons why the
service of summons on Atty. Alfredo D. Valmonte cannot be considered a valid service of summons on petitioner Lourdes
A. Valmonte. In the first place, service of summons on petitioner Alfredo D. Valmonte was not made upon the order of the
court as required by Rule 14, 17 and certainly was not a mode deemed sufficient by the court which in fact refused to
consider the service to be valid and on that basis declare petitioner Lourdes A. Valmonte in default for her failure to file an
answer.
In the second place, service in the attempted manner on petitioner was not made upon prior leave of the trial court
as required also in Rule 14, 17. As provided in 19, such leave must be applied for by motion in writing, supported by
affidavit of the plaintiff or some person on his behalf and setting forth the grounds for the application.
Finally, and most importantly, because there was no order granting such leave, petitioner Lourdes A. Valmonte was
not given ample time to file her Answer which, according to the rules, shall be not less than sixty (60) days after notice. It
must be noted that the period to file an Answer in an action against a resident defendant differs from the period given in
an action filed against a nonresident defendant who is not found in the Philippines. In the former, the period is
fifteen (15) days from service of summons, while in the latter, it is at least sixty (60) days from notice.
Strict compliance with these requirements alone can assure observance of due process. That is why in one case,
[9]

although the Court considered publication in the Philippines of the summons (against the contention that it should be

made in the foreign state where defendant was residing) sufficient, nonetheless the service was considered insufficient
because no copy of the summons was sent to the last known correct address in thePhilippines.

Private respondent cites the ruling in De Leon v. Hontanosas, 67 SCRA 458,462-463 (1975), in which it was held that
service of summons upon the defendants husband was binding on her. But the ruling in that case is justified because
summons were served upon defendants husband in their conjugal home in Cebu City and the wife was only temporarily
absent, having gone to Dumaguete City for a vacation. The action was for collection of a sum of money. In accordance with
Rule 14, 8, substituted service could be made on any person of sufficient discretion in the dwelling place of the
defendant, and certainly defendants husband, who was there, was competent to receive the summons on her behalf. In
any event, it appears that defendant in that case submitted to the jurisdiction of the court by instructing her husband to
move for the dissolution of the writ of attachment issued in that case.
On the other hand, in the case of Gemperle v. Schenker,[10] it was held that service on the wife of a nonresident
defendant was found sufficient because the defendant had appointed his wife as his attorney-in-fact. It was held that
although defendant Paul Schenker was a Swiss citizen and resident of Switzerland, service of summons upon his wife
Helen Schenker who was in the Philippines was sufficient because she was her husbands representative and attorney-infact in a civil case, which he had earlier filed against William Gemperle. In fact Gemperles action was for damages arising
from allegedly derogatory statements contained in the complaint filed in the first case. As this Court said, i]n other
words, Mrs. Schenker had authority to sue, and had actually sued, on behalf of her husband, so that she was, also,
empowered to represent him in suits filed against him, particularly in a case, like the one at bar, which is a consequence
of the action brought by her on his behalf. [11] Indeed, if instead of filing an independent action Gemperle filed
a counterclaim in the action brought by Mr. Schenker against him, there would have been no doubt that the trial court
could have acquired jurisdiction over Mr. Schenker through his agent and attorney-in-fact, Mrs. Schenker.
In contrast, in the case at bar, petitioner Lourdes A. Valmonte did not appoint her husband as her attorney-in-fact.
Although she wrote private respondent s attorney that all communications intended for her should be addressed to her
husband who is also her lawyer at the latters address in Manila, no power of attorney to receive summons for her can be
inferred therefrom. In fact the letter was written seven months before the filing of this case below, and it appears that it
was written in connection with the negotiations between her and her sister, respondent Rosita Dimalanta, concerning the
partition of the property in question. As is usual in negotiations of this kind, the exchange of correspondence was carried
on by counsel for the parties. But the authority given to petitioners husband in these negotiations certainly cannot be
construed as also including an authority to represent her in any litigation.
For the foregoing reasons, we hold that there was no valid service on petitioner Lourdes A. Valmonte in this case.
WHEREFORE, the decision appealed from is REVERSED and the orders dated July 3, 1992 andSeptember 23,
1992 of the Regional Trial Court of Manila, Branch 48 are REINSTATED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. L-58340 July 16, 1991

KAWASAKI PORT SERVICE CORPORATION, NAIKAI SHIPPING CO. LTD., NAIKAI TUG BOAT SERVICE CO., THE
PORT SERVICE CORPORATION, LICENSED LAND SEA PILOTS ASSOCIATION, HAYAKOMA UNYU K.K., TOKYO
KISEN COMPANY, LTD., OMORI KAISOTEN, LTD., TOHOKU UNYU CO., LTD. AND SEITETSU UNYU CO.,
LTD., petitioners,
vs.
THE HON. AUGUSTO M. AMORES, Judge of Br. XXIV, Court of First Instance of Manila, and C.F. SHARP & CO.,
INC., respondents.
Quasha, Asperilla, Ancheta, Pea & Nolasco for petitioners.
Chuidian Law Office for private respondent.

BIDIN, J.:p
This is a petition for certiorari seeking to set aside the orders of the then Court of First Instance of Manila, *Branch XXIV
in Civil Case No. 132077: (a) dated July 13, 1981 denying the special appearances of petitioners as defendants in said
case to question the court's jurisdiction over the persons of the defendants and (b) dated September 22, 1981, denying the
motion for reconsideration of said order.
The antecedents of this case are as follows:
On May 7, 1980, the private respondent C.F. Sharp & Co., Inc. filed a complaint for injunction and/or declaratory relief in
the then Court of First Instance of Manila against seventy-nine (79) Japanese corporations as defendants, among which
are the petitioners herein. Said complaint was docketed as Civil Case No. 132077. The complaint alleges, among others,
that the plaintiff is a corporation organized and existing under the laws of the Philippines; that there is another
corporation organized under the law of Japan with the corporate name C.F. Sharp Kabushiki Kaisha; that the plaintiff
and C.F. Sharp Kabushiki Kaisha are in all respects separate and distinct from each other; that C.F. Sharp Kabushiki
Kaisha appears to have incurred obligations to several creditors amongst which are defendants, also foreign corporations
organized and existing under the laws of Japan; that due to financial difficulties, C.F. Sharp Kabushiki Kaisha failed
and/or refused to pay its creditors; and that in view of the failure and/or refusal of said C.F. Sharp Kabushiki Kaisha to
pay its alleged obligations to defendants, the latter have been demanding or have been attempting to demand from C.F.
Sharp & Co., Inc., the payment of the alleged obligations to them of C.F. Sharp Kabushiki Kaisha, notwithstanding that
C.F. Sharp & Co., Inc. is a corporation separate and distinct from that of C.F. Sharp Kabushiki Kaisha and that the
former had no participation whatsoever or liability in connection with the transactions between the latter and the
defendants.
As alleged in the complaint, the private respondent prayed for injunctive relief against the petitioners' demand from the
private respondent for the payment of C.F. Sharp Kabushiki Kaisha's liabilities to the petitioners.

As an alternative to injunction, the private respondent prayed that a judicial declaration be made that, as a separate and
independent corporation, it is not liable for the obligations and liabilities of C.F. Sharp Kabushiki Kaisha.
Since the defendants are non-residents, without business addresses in the Philippines but in Japan, the private
respondent prayed for leave of court to effect extraterritorial service of summons.
On June 11, 1980, the respondent judge issued an order authorizing the private respondent to effect extraterritorial
service of summons on defendants therein.
Subsequently, private respondent filed an urgent ex-parte motion dated June 23, 1980 for Extraterritorial Service of
Summons Upon Defendants by registered mail with return cards pursuant to Section 17 of Rule 14 of the Rules of Court.
Acting on said motion, the respondent judge issued an order dated June 30, 1980 granting the motion and authorizing
extraterritorial service of summons upon defendants to be effected by registered mail with return cards.
On March 11, 1981, five of the petitioners, Kawasaki Port Service Corporation, Naikai Shipping Co., Ltd., Naikai Tug Boat
Service Co., Ltd., The Port Service Corporation and Licensed Land Sea Pilots Association filed their "Special Appearance to
Question Jurisdiction of This Honorable Court Over Persons of Defendants" contending that the lower court does not and
cannot acquire jurisdiction over the persons of defendants on the grounds that private respondent's action does not refer
to its personal status; that the action does not have for subject matter property contemplated in Section 17 of Rule 14 of
the Rules of Court, that the action does not pray that defendants be excluded from any interest or property in the
Philippines; that no property of the defendants has been attached; that the action is in personam; and that the action
does not fall within any of the four cases mentioned in Section 17, Rule 14 of the Rules of Court.
On March 17, 1981, another three of herein petitioners, Hayakoma Unyu K.K., Tokyo Kisen Company, Ltd. and Omori
Kaisoten, Ltd. also filed their special appearance adopting the same arguments as that of the first five.
On April 28, 1981, the two other petitioners, Tohoku Unyu Co., Ltd. and Seitetsu Unyu Co., Ltd., filed their "Special
Appearance to Question the Jurisdiction of the Honorable Court" over their persons adopting in toto as theirs the "Special
Appearance" dated March 11, 1981 of Kawasaki Port Service.
On July 13, 1981, the respondent Court issued its order denying said special appearances. The motion for reconsideration
of said order filed by the petitioners was also denied on September 22, 1981.
Hence, the present petition.
After the required pleadings were filed, the First Division of this Court, in the resolution of April 14, 1982, gave due course
to the petition and required both parties to submit simultaneous memoranda within thirty (30) days from notice. Both
parties complied by submitting the required memoranda.
The main issue in this case is whether or not private respondent's complaint for injunction and/or declaratory relief is
within the purview of the provisions of Section 17, Rule 14 of the Rules of Court.
The petitioners contend that the respondent judge acted contrary to the provisions of Section 17 of Rule 14 for the
following reasons: (1) private respondent's prayer for injunction, as a consequence of its alleged non-liability to the
petitioners for debts of C.F. Sharp Kabushiki Kaisha of Japan, conclusively establishes that private respondent's cause of
action does not affect its status; (2) the respondent court cannot take jurisdiction of actions against the petitioners as they
are non-residents and own no property within the state; (3) the petitioners have not as yet claimed a lien or interest in the
property within the Philippines at the time the action was filed which is a requirement under Section 17 of Rule 14; (4)
extra-territorial service on a non-resident defendant is authorized, among others, when the subject of the action is
property within the Philippines in which the relief demanded consists in excluding defendant from any interest therein;

and (5) inasmuch as the reliefs prayed for by the private respondent in the complaint are in personam, service by
registered mail cannot be availed of because Section 17 of Rule 14 authorized this mode of service only in actions in
rem or quasi in rem.
For its part, the private respondent countered that (1) the action refers to its status because the basic issue presented to
the lower court for determination is its status as a corporation which has a personality that is separate, distinct and
independent from the personality of another corporation, i.e., C.F. Sharp Kabushiki Kaisha of Japan; (2) under Section 17
of Rule 14, the subject matter or property involved in the action does not have to belong to the defendants. The provisions
of said section contemplate of a situation where the property belongs to the plaintiff but the defendant has a claim over
said property, whether that claim be actual or contingent; (3) the prayer of the plaintiff that the defendants be excluded
from any interest in the properties of the plaintiff within the Philippines has the effect of excluding the defendants from
the properties of the plaintiff in the Philippines for the purpose of answering for the debts of C.F. Sharp Kabushiki Kaisha
of Japan to the defendants in accordance with Section 17 of Rule 14; and (4) the action before the lower court is an
action quasi in rem as the remedies raised in the complaint affect the personal status of the plaintiff as a separate,
distinct and independent corporation and relates to the properties of the plaintiff in the Philippines over which the
petitioners have or claim an interest, actual or contingent.
The petition is impressed with merit.
Section 17, Rule 14 of the Rules of Court provides:
Section 17. Extraterritorial service. When the defendant does not reside and is not found in the
Philippines and the action affects the personal status of the plaintiff or relates to, or the subject of which
is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or
contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from
any interest therein, or the property of the defendant has been attached within the Philippines, service
may, by leave of court, be effected out of the Philippines by personal service as under section 7; or by
publication in a newspaper of general circulation in such places and for such times as the court may
order, in which case a copy of the summons and order of the court shall be sent by registered mail to the
last known address of the defendant, or in any other manner the court may deem sufficient. Any order
granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after
notice, within which the defendant must answer.
This Court had ruled that extraterritorial service of summons is proper only in four (4) instances, namely: "(1) when the
action affects the personal status of the plaintiffs: (2) when the action relates to, or the subject of which is, property
within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; (3) 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 (4) when the defendant non-resident's property has been attached within the Philippines." (De
Midgely v. Ferandos, 64 SCRA 23 [1975]; The Dial Corporation v. Soriano, 161 SCRA 737 [1988]).
In the case at bar, private respondent has two (2) alternative principal causes of action, to wit: either for declaratory relief
or for injunction. Allegedly, in both cases, the status of the plaintiff is not only affected but is the main issue at hand.
As defined, "Status means a legal personal relationship, not temporary in nature nor terminable at the mere will of the
parties, with which third persons and the state are concerned" (Holzer v. Deutsche Reichsbahn Gesellschaft, 290 NYS
181; cited in 40 Words and Phrases, 129, Permanent Edition).
It is easy to see in the instant case, that what is sought is a declaration not only that private respondent is a corporation
for there is no dispute on that matter but also that it is separate and distinct from C.F. Sharp Kabushiki Kaisha and
therefore, not liable for the latter's indebtedness. It is evident that monetary obligations does not, in any way, refer to
status, lights and obligations. Obligations are more or less temporary, but status is relatively permanent. But more

importantly, as cited in the case of (Dy Poco v. Commissioner of Immigration, et al., 16 SCRA 618 [1966]), the prevailing
rule is that "where a declaratory judgment as to a disputed fact would be determinative of issues rather than a
construction of definite stated rights, status and other relations, commonly expressed in written instrument, the case is
not one for declaratory judgment." Thus, considering the nature of a proceeding for declaratory judgment, wherein relief
may be sought only to declare rights and not to determine or try issues, there is more valid reason to adhere to the
principle that a declaratory relief proceeding is unavailable where judgment would have to be made, only after a judicial
investigation of disputed issues (ibid). In fact, private respondent itself perceives that petitioners may even seek to pierce
the veil of corporate identity (Rollo, p. 63).
Private respondent alleges that most if not all, of the petitioners have merely demanded or have attempted to demand from
the former the payment of the obligations of C.F. Sharp K.K., (Rollo, p. 63). Otherwise stated, there is no action relating to
or the subject of which are the properties of the defendants in the Philippines for it is beyond dispute that they have none
in this jurisdiction nor can it be said that they have claimed any lien or interest, actual or contingent over any property
herein, for as above stated, they merely demanded or attempted to demand from private respondent payment of the
monetary obligations of C.F. Sharp K.K., No action in court has as yet ensued. Verily, the fact that C.F. Sharp Philippines
is an entity separate and distinct from C.F. Sharp K.K., is a matter of defense that can be raised by the former at the
proper time.
Finally, the alternative relief sought is injunction, that is to enjoin petitioners from demanding from private respondent
the payment of the obligations of C.F. Sharp K.K., It was not prayed that petitioners be excluded from any property located
in the Philippines, nor was it alleged, much less shown, that the properties of the defendants, if any, have been attached.
Hence, as ruled by this Court, where the complaint does not involve the personal status of plaintiff, nor any property in
the Philippines in which defendants have or claim an interest, or which the plaintiff has attached, but purely an action for
injunction, it is a personal action as well as an action in personam, not an action in rem orquasi in rem. As a personal
action, personal or substituted service of summons on the defendants, not extraterritorial service, is necessary to confer
jurisdiction on the court. In an action for injunction, extra-territorial service of summons and complaint upon the nonresident defendants cannot subject them to the processes of the regional trial courts which are powerless to reach them
outside the region over which they exercise their authority. Extra-territorial service of summons will not confer on the
court jurisdiction or Power to compel them to obey its orders (Dial Corporation v. Soriano, 161 SCRA 738
[1988] citing Section 3-a Interim Rules of Court, Section 21, subpar. 1, BP Blg. 129).
Considering that extra-territorial service of summons on the petitioners was improper, the same was null and void.
WHEREFORE, the petition is Granted and the questioned orders dated July 13, 1981 and September 22, 1981 of the
respondent Judge, are Reversed and Set Aside.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-82330 May 31, 1988
THE DIAL CORPORATION, C & T REFINERY INC., NALIN Sdn. Bhb. BERISFORD COMMODITIES, LTD., and PACIFIC
MOLASSES COMPANY, petitioners,
vs.
THE HON. CLEMENTE M. SORIANO, Presiding Judge, Regional Trial Court, Branch 3, MANILA PUBLIC
RESPONDENT and IMPERIAL VEGETABLE OIL COMPANY, INC., respondents.
Guerrero & Torres Law Office for petitioners.
Abad & Associates for respondents.

GRIO-AQUINO, J.:
The petitioners are foreign corporations organized and existing under the laws of the United States, the United Kingdom,
and Malaysia, are not domiciled in the Philippines, nor do they have officers or agents, place of business, or property in
the Philippines; they are not licensed to engage, and are not engaged, in business here. The respondent Imperial Vegetable
Oil Company, Inc. (or "IVO" for brevity) is a Philippine corporation which through its president, Dominador Monteverde,
had entered into several contracts for the delivery of coconut oil to the petitioners. Those contracts stipulate that any
dispute between the parties will be settled through arbitration under the rules of either the Federation of Oils Seeds and
Fats Association (FOSFA) or the National Institute of Oil Seed Products (NIOP). Because IVO defaulted under the contracts,
the petitioners and 15 others, initiated arbitration proceedings abroad, and some have already obtained arbitration
awards against IVO.
On April 8, 1987, IVO filed a complaint for injunction and damages against nineteen (19) foreign coconut oil buyers
including the petitioners, with whom its president, Dominador Monteverde, had entered into contracts for the delivery of
coconut oil (Civil Case No. 87-40166, RTC Manila entitled "Imperial Vegetable Oil Co., Inc. vs. Dial Corporation et al.").
IVO repudiated Monteverde's contracts on the grounds that they were mere "paper trading in futures" as no actual
delivery of the coconut oil was allegedly intended by the parties; that the Board of Directors of IVO convened in a special
meeting on March 21, 1987 and removed Dominador Monteverde from his position as president of the corporation, named
in his place, Rodrigo Monteverde, and disowned Dominador Monteverde's allegedly illegal and unauthorized acts; that the
defendants have allegedly "harassed" IVO to comply with Dominador's contracts and to come to a settlement with them.
IVO prayed for the issuance of a temporary restraining order or writ of preliminary injunction to stop the defendants from
harassing IVO with their insistent demands to recognize the contracts entered into by Dominador Monteverde and from
portraying the IVO as one that defaults on its contracts and obligations and has fallen into bad times and from interfering
with IVO's normal conduct of business. IVO also prayed that the defendants pay it moral damages of P5 million, actual
damages of P10 million, exemplary damages of P5 million, attorney's fees of P1 million, P3,000 per appearance of counsel,
and litigation expenses.
On motion of IVO, respondent Judge authorized it to effect extraterritorial service of summons to all the defendants
through DHL Philippines corporation (Annex B). Pursuant to that order, the petitioners were served with summons and
copy of the complaint by DHL courier service.

On April 25, 1987, without submitting to the court's jurisdiction and only for the purpose of objecting to said jurisdiction
over their persons, the petitioners filed motions to dismiss the complaint against them on the ground that the
extraterritorial service of summons to them was improper and that hence the court did not acquire jurisdiction over them.
On December 15, 1987, the court denied their motions to dismiss and upheld the validity of the extraterritorial service of
summons to them on the ground that "the present action relates to property rights which lie in contracts within the
Philippines, or which defendants claim liens or interests, actual or inchoate, legal or equitable (par. 2, complaint). And one
of the reliefs demanded consists, wholly or in part, in excluding the defendants from any interest in such property for the
reason that their transactions with plaintiff's former president are ultra vires." Furthermore, "as foreign corporations
doing business in the Philippines without a license, they opened themselves to suit before Philippine courts, pursuant to
Sec. 133 of the Corporation Code of the Philippines." (Annex H) The petitioners' motions for reconsideration of that order
were also denied by the court (Annex M), hence this petition for certiorari with a prayer for the issuance of a temporary
retraining order which We granted.
The petition is meritorious.
Section 17, Rule 14 of the Rules of Court provides:
Section 17. Extraterritorial service. When the defendant does not reside and is not found in the
Philippines and the action affects the personal status of the plaintiff or relates to, or the subject of which
is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or
contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from
any interest therein, or the property of the defendant has been attached within the Philippines, service
may, by leave of court, be effected out of the Philippines by personal service as under section 7; or by
publication in a newspaper of general circulation in such places and for such time as the court may order,
in which case a copy of the summons and order of the court shall be sent by registered mail to the last
known address of the defendant, or in any other manner the court may deem sufficient. Any order
granting such leave shall specify a reasonable time, which shag not be less than sixty (60) days after
notice, within which the defendant must answer.
Only in four (4) instances is extraterritorial service of summons proper, namely: "(1) when the action affects the personal
status of the plaintiffs; (2) when the action relates to, or the subject of which is, property within the Philippines, in which
the defendant has or claims a lien or interest, actual or contingent; (3) 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 (4) when the
defendant non-resident's property has been attached within the Philippines" (De Midgely vs. Fernandos, 64 SCRA 23).
The complaint in this case does not involve the personal status of the plaintiff, nor any property in the Philippines in
which the defendants have or claim an interest, or which the plaintiff has attached. The action is purely an action for
injunction to restrain the defendants from enforcing against IVO ("abusing and harassing") its contracts for the delivery of
coconut oil to the defendants, and to recover from the defendants P21 million in damages for such "harassment." It is
clearly a personal action as well as an action in personam, not an action in rem or quasi in rem. "An action in personam is
an action against a person on the basis of his personal liability, while an action in remedies is an action against the thing
itself, instead of against the person." (Hernandez vs. Rural Bank of Lucena, Inc., 76 SCRA 85). A personal action is one
brought for the recovery of personal property, for the enforcement of some contract or recovery of damages for its breach,
or for the recovery of damages for the commission of an injury to the person or property (Hernandez vs. Development
Bank of the Philippines, 71 SCRA 292).<re||an1w>
As Civil Case No. 87-40166 is a personal action, personal or substituted service of summons on the defendants, not
extraterritorial service, is necessary to confer jurisdiction on the court. The rule is explained in Moran's Comments on the
Rules of Court thus:

As a general rule, when the defendant is not residing and is not found in the Philippines, the Philippine
courts cannot try any case against him because of the impossibility of acquiring jurisdiction over his
person unless he voluntarily appears in court. But, when the action affects the personal status of the
plaintiff residing in the Philippines, or is intended to seize or dispose of any property, real or personal, of
the defendant located in the Philippines, it may be validly tried by the Philippine courts, for then, they
have jurisdiction over the res, i.e., the personal status of the plaintiff or the property of the defendant and
their jurisdiction over the person of the non-resident defendant is not essential. Venue in such cases may
be laid in the province where the property of the defendant or a part thereof involved in the litigation is
located. (5 Moran's Comments on the Rules of Court, 2nd Ed., p. 105.)
In an action for injunction, extraterritorial service of summons and complaint upon the non-resident defendants cannot
subject them to the processes of the regional trial courts which are powerless to reach them outside the region over which
they exercise their authority (Sec. 3-a, Interim Rules of Court; Sec. 21, subpar. 1, B.P. Blg. 129). Extraterritorial service of
summons will not confer on the court jurisdiction or power to compel them to obey its orders.
Neither may the court by extraterritorial service of summons acquire jurisdiction to render and enforce a money judgment
against a non-resident defendant who has no property in the Philippines for "the fundamental rule is that jurisdiction in
personam over non-residents, so as to sustain a money judgment, must be based uponpersonal service within the state
which renders the judgment "(Boudard vs. Tait, 67 Phil. 170, 174).
Respondents' contention that "the action below is related to property within the Philippines, specifically contractual rights
that petitioners are enforcing against IVO" is specious for the "contractual rights" of the petitioners are not property found
in the Philippines for the petitioners have not filed an action in the local courts to enforce said rights. They have not
submitted to the jurisdiction of our courts.
The lower court invoked Section 33 of the Corporation Code which provides that a "foreign corporation transacting
business in the Philippines without a license may be sued or proceeded against before Philippine courts or administrative
tribunal on any valid cause of action recognized under Philippine laws." It assumed that the defendants (herein
petitioners) are doing business in the Philippines, which allegation the latter denied. Even if they can be considered as
such, the Corporation Code did not repeal the rules requiring proper service of summons to such corporations as
provided in Rule 14 of the Rules of Court and Section 128 of the Corporation Code.
The respondent court's finding that, by filing motions to dismiss, the petitioners hypothetically admitted the allegations of
the complaint that they are doing business in the Philippines without any license, and that they may be served with
summons and other court processes through their agents or representatives enumerated in paragraph 2 of the complaint,
is contradicted by its order authorizing IVO to summon them by extraterritorial service, a mode of service which is
resorted to when the defendant is not found in the Philippines, does not transact business here, and has no resident
agent on whom the summons may be served.
WHEREFORE, We hold that the extraterritorial service of summons on the petitioners was improper, hence null and void.
The petition for certiorari is granted.
The orders dated April 24, 1987 (Annex B) and December 15, 1987 (Annex H) of the respondent Judge are hereby set
aside. The complaint in Civil Case No. 87-40166 is hereby dismissed as against the petitioners for failure of the court to
acquire jurisdiction over them.
SO ORDERED.