Sharuf vs bubia

FACTS:
ssThis is a verified petition for certiorari, with a
prayer for a preliminary injunction filed by Samuel S.
Sharruf against Frank Bubla and the Hon. Arsenio
Solidum, Judge of the Court of First Instance of
Manila, Branch XVII, to set aside the latter's orders of
March 14 and April 11, 1960 in Civil Case No. 33461
denying petitioner's motion for new trial, for lack of
merit, and his motion for reconsideration thereof,
respectively, and his order of June 3, 1960
disallowing petitioner's appeal from the order of
denial of March 14, 1960 on the ground that the
order aforesaid was already final and executory, and
ordering its execution.
On August 15, 1957 respondent Bubla, a nonresident alien, through his counsel and legal
representative, William Quasha & Associates, filed a
complaint with the respondent court to compel
petitioner to render an accounting in connection with
a written contract entered into between them (Civil
Case No. 33461). Petitioner filed an answer denying
the material allegations of the complaint and setting
forth therein a counterclaim for damages, but on
September 17, 1958 his counsel filed a motion to
withdraw his appearance for the reason that he had
been unable to get in touch with him. The court
granted the motion.
When the case called for pre-trial on September 27,
1958, petitioner failed to appear, and the court set
the case for trial on the judgments an December 1,
1958. Notice thereof was sent to petitioner at his
address of record. After several postponements, the
hearing of the case was reset for March 6, 1959, but
petitioner again failed to appear either personally or
thru counsel, despite notice sent to him at his
address of record. Instead of proceeding with the trial
of the case as His Honor could have done he
directed respondent Bubla's counsel to exert efforts
to notify petitioner of the trial of the case on April 23,
1959. Upon petitioner's failure to appear when the
case was finally called for trial on that date, the court
received Bubla's evidence which consisted of Bubla's
deposition taken before the Philippine Consul,
Philippine Embassy at Sydney, Australia, and
documentary evidence relative to their contract,

management and operation of the theatrical venture

and stipulation as to accounting. On the basis
thereof, the respondent court found that the
following facts had been established:
From the evidence in the record, it appears that the
plaintiff, Frank Bubla, is a resident of 11 Shipley
Street, South Yarra Melbourne, State of Victoria,
Commonwealth of Australia, and was an
entrepreneur managing a theatrical troupe under the
name of "Bubla Continental Revue" in 1954, while
the defendant, Samuel S. Sharruf was then the
operator and manager of the "Riviera Night Club" at
Dewey Boulevard, Manila. Exhibits "A" to "K" of
plaintiff's deposition show that plaintiff and
defendant entered into a series of agreement by
correspondence whereby the former undertook to
provide the latter with the so-called "Bubla
Continental Revue" for the purpose of presenting two
nightly floor shows in said night club for a
consideration of P2,500.00 monthly, "net and free
income tax", as well as three daily stage shows at
the Manila Grand Opera House (Exhibits "E", "A-3",
and "A-46"), for another P2,500.00 a month.
Subsequently, plaintiff and defendant reduced the
terms of their agreement to a formal contract
(Exhibit "P").
The "Bubla Continental Revue", comprising of six
members excluding the plaintiff, who was unable to
enter this country because his visa was not
approved, arrived in Manila sometime in September,
1954, and from September 29, 1954 to January 15,
1955, it performed floor shows at the "Riviera Night
Club" twice nightly, and three or four stage shows
daily at the Manila Grand Opera House under the
management and sponsorship of herein defendant
(Exhibits "A-28", "A-36", "A-42", "A-43" and "A-46").
In the meantime plaintiff authorized defendant to pay
the salaries of the members of said theatrical troupe
and requested an accounting of the expenditures
incurred as well as payment of whatever amount was
due plaintiff by virtue of their contract (Exhibit "P").
However, despite such demands (Annex "A", Exhibits
"II", "III", "IV" and "V"), defendant failed to render any
accounting and to pay to plaintiff such amount as
was due him, thereby compelling the latter to
engage the services of his lawyers for P5,000.00 for
the purpose of instituting this action.

ISSUE: Whether or not the petition for certiorari

should be granted
RULING: The granting or denial of a motion for new
trial is a matter addressed to the sound discretion of
the trial court. In this case where petitioner's motion
was based on mistake and/or excusable negligence,
the lower court found that the same was not
supported by any affidavit of merit. Even if we were
to agree with petitioner that, in this connection, his
answer to the complaint may be taken into account,
the allegations made therein do not appear to satisfy
the rule as to proof of mistake or excusable
negligence. Consequently, the respondent court
committed no error in denying said motion.
Petitioner insists that the respondent court acquired
no jurisdiction over the person of respondent Bubla.
We find this to be without merit. It is settled law in
this jurisdiction that a court may acquire jurisdiction
over the person of a party either by his voluntary
appearance in court demanding affirmative relief or
by having him served. With summons within the
territorial jurisdiction of the Philippines. Bubla was
the plaintiff in Civil Case No. 33461 filed against the
herein petitioner. By filing his complaint, therefore,
Bubla submitted voluntarily to the jurisdiction of the
respondent court and the latter acquired such
jurisdiction even if, as a matter of fact, Bubla had
never been able to enter the Philippines.
Petitioner's claim that the decision of the respondent
court in Civil Case No. 33461 is void because of lack
of notice of trial served on him is likewise untenable.
The record shows that petitioner had a registered
address in the record of said case at which repeated
notices of trial were addressed to him. Aside from
this, it also appears that the respondent court,
instead of proceeding to receive the evidence of the
plaintiff on March 6, went out of its way and deemed
it wise to reset the trial for April 23 of the same year,
directing Bubla's counsel to exert efforts to notify
petitioner. But this notwithstanding, the latter failed
to appear on the aforesaid date, for which reason the
respondent court received Bubla's evidence and
subsequently rendered judgment in his favor.
WHEREFORE, the petition for certiorari under
consideration is dismissed, with costs.

ABAN VS ENAGE
FACTS:
This is a petition for certiorari and prohibition with
preliminary injunction filed by petitioners against
private respondents and Honorable Judge Manuel L.
Enage, District Judge of the Court of First Instance of
Agusan, to declare null and void the order of the
court dated July 29, 1968, issued in Civil Case No.
1005, ordering the cancellation of TCT No. RT 1693 in
the names of herein petitioners covering Lot No. 427
C-I (Subdivision Plan LRC-Psd-40107), on the ground
that the same was issued without or in excess of
jurisdiction.
The antecedent facts are as follows:
On August 21, 1964, a complaint was filed in the
Court of First Instance of Agusan, Branch 11, then
presided by the late Judge Montano Ortiz, docketed
as Civil Case No. 1005, entitled "Maria Balaga Severo
Malvar, Ariston Blanco, Domingo Macuno plaintiffs,
versus Pedro Cuenca, Moises Burdeos, Nestor
Burdeos, Deodoro Burdeos, Leonila Burdeos,
Remedios Burdeos, Leonardo Campana, Aprodito
Campana, Cleofe Campana, Lilia Campana, Alberto
Banjao, for himself and on behalf of the MinorsLuzminda, Clemencia, and Isabel, all surnamed
Banjao, Felix Arriola Sr., Leonardo Villafuerte, Lope C.
Jonco, Butuan City Rural Bank, Register of Deeds of
Butuan City, Land Registration Commissioner, Sixto
Martinez, Aurora C. Martinez, Celestino Udarbe and
Andres Aban, defendants," for Nullification and
Cancellation of Subdivision Plan LRC- Psd 37270 on
Lot No. 427 Cad. 84, Butuan City, TCT-RT 1584, TCTRT 1585 and Various Documents and for Damages
with Injunction (pp. 12- 17, rec.).
The complaint states that Celestino Udarbe and
Andres Aban are sued as parties-defendants "since
their consent to have them joined as partiesplaintiffs could not be secured. "
Andres Aban, as a defendant in the above-entitled
case, through counsel, filed a motion dated
September 1, 1964 to drop him from the complaint
as a misjoined party and, at the same time, moved
for the dismissal of the complaint (pp. 57-58, rec.).

On September 17, 1964, the CFI of Butuan City

issued an order (p. 59, rec.) dropping Andres Aban as
party- defendant and dismissing the complaint
against him.
On May 26, 1965, an amended complaint was filed
wherein the names of Severo Malvar as plaintiff and
petitioner herein Andres Aban and Celestino Udarbe
as defendants in Civil Case No. 1005 were dropped
as parties therein.
Meanwhile, the heirs of Eleuterio Cuenca filed a
petition for correction, etc. dated November 1, 1965
and docketed as Civil Case No. 1126, this time before
the CFI of Agusan, Branch 1, presided by Judge
Simeon Ferrer, praying, inter alia, for the cancellation
of TCT No. RT- 1693 issued to herein petitioner Andre
Aban. This case, however, was dismissed at the
instance of the heirs in an order of the court dated
June 4, 1968 (pp. 68-69, rec.).
On April 15, 1968, defendants-heirs of Eleuterio
Cuenca in Civil Case No. 1005, through Atty. Timoteo
D. Naldoza, counsel and attorney-in-fact of the
Cuenca heirs, filed a motion in the aforesaid case for
the cancellation of TCT No. RT-1693 issued in the
name of Andres Aban, as well as all the annotations
at the back thereof, alleging that herein petitioner
Aban's claim over a portion of Lot No. 427,
particularly Lot No. 427-C-1 is "now abandoned,
waived or relinquished" (pp. 12-17, rec.).
Subsequently, herein petitioner Andres Aban filed an
opposition to the motion to cancel TCT No. RT-1693
filed by the heirs of Eleuterio Cuenca.
On August 20, 1968, herein petitioner Andres Aban
filed a motion for reconsideration, but the same was
denied in an order (p. 26, rec.) of the court dated
January 11, 1969.
A second motion for reconsideration dated January
22, 1969 was filed but was denied in an order (pp.
27-30, rec.) dated May 10,1969.
A third motion for reconsideration dated May 15,
1969 was filed but was again denied in an order (p.
31, rec.) dated June 6, 1969.
Hence, the instant appeal.

Acting on the petition for certiorari, this Court, on July

9, 1969, issued a resolution requiring the
respondents herein to file an answer to the petition
for certiorari and, at the same time, issued a
temporary restraining order restraining the
enforcement of the Order "cancelling Title TCT-RT1693 of petitioners herein, and from taking further
proceedings or action in Civil Case No. 1005 of the
Court of First Instance of Agusan, entitled 'Maria
Balaga et al. vs. Pedro Cuenca, et al.
While the instant case was pending before this Court,
a certain Antonio K. Caon came into the picture by
entering his appearance (p. 327, rec.) on May 29,
1973 as counsel for the respondents and, at the
same time, filing a motion for resolution (pp. 328329, rec.).
In his motion for resolution, counsel Antonio K. Caon
stated that he is appearing in collaboration with 'the
original counsel of record, Atty. Timoteo D. Naldoza. "
In a resolution dated June 5, 1973 (p. 333, rec.), this
Court "resolved to require the respondents
themselves to COMMENT on the said appearance,
and in conformity therewith, to INFORM this Court,
who between Attys. Timoteo D. Naldoza and Antonio
K. Caon shall be exclusively served with copies of all
pleadings and court processes in this case, both
within ten (10) days from notice hereof. This Court
resolved further to NOTE the motion of respondents
heirs of the late Eleuterio Cuenca praying that this
case be resolved and dismissed,"
On June 19, 1973, the petitioners, thru counsel, filed
a manifestation to motion for resolution (pp. 334335, rec.) filed by Atty. Antonio K. Caon in behalf of
herein respondents, joining said Atty. Caon in his
prayer for the resolution of the instant case.
On July 6, 1973, the respondent heirs of Eleuterio
Cuenca filed their comment in compliance with the
resolution of this Court dated June 5, 1973.
ISSUE: Whether or not there is excess of
jurisdiction
RULING:

Going back to the main case, herein petitioners

alleged that the order of the court a quo dated July
29, 1968, issued in Civil Case No. 1005, ordering the
cancellation of TCT No. RT-1693 issued in the name of
herein petitioner Andres Aban over lot No. 127-C-1
(Subdivision Plan LRC-Psd-40107' ), was issued with
grave abuse of discretion amounting to lack of
jurisdiction and/or without jurisdiction because:
(a) The motion [Annex 'A'] filed in the lower Court is
improperly filed because the Court below had no
jurisdiction over the subject matter, the same being
a separate, distinct, and independent action by itself;
(b) Your petitioners are not parties in Civil Case No.
1005 [Annex 'F'] and therefore, the Court below was
without jurisdiction over them;
(c) There is patently no basis for respondent Judge
Enage to give due course to a mere motion to cancel
the title of petitioners there being no proper
proceedings conducted, petitioners not being parties
in Civil Case No. 1005 as amended, and therefore
respondent judge had no power, jurisdiction or
authority to order the cancellation of said title No. RT
1693 of petitioners herein;
(d) According to records of Civil Case No. 1005 the
respondent heirs of Eleuterio Cuenca are represented
by their counsel, Atty. Tranquilino O. Calo, Jr., and not
respondent Atty. Timoteo Naldoza; said case is still
pending before respondent Judge Enage;
consequently, respondent, Atty. Naldoza had no
authority or power to file the motion to cancel Title
No. RT-1693; such act of respondent Atty. Naldoza
constitutes malpractice and a ground for disbarment
before this Court;
(e) Respondent Judge Enage acted without
jurisdiction and/or with grave abuse of discretion
amounting to lack of jurisdiction in issuing the order
of cancellation of TCT-R,T-1693 of Andres Aban by an
unlawful and improper motion of respondent Atty.
Naldoza, Attorney-in-fact for heirs of Eleuterio
Cuenca, filed in Civil Case No. 1005 as amended,
wherein, petitioners herein are not parties [attached
Annex 'F', amended complaint 1005];
(f) Petitioners are without any remedy of appeal nor
is there any plain, speedy and adequate remedy

under the ordinary course of law against the patently

unlawful order of the lower court to cancel Title No.
RT 1693 of herein petitioners;

evidence and exhibits, after which the court a quo

required the parties to submit their respective
memoranda, which the parties did.

(g) Respondent Judge Enage has set the execution of

his order after the lapse of the reglementary period,
which order are clearly illegal and unwarranted and
will result in irreparable damage and injury to the
petitioners herein;

Against the foregoing backdrop, this Court is not

inclined to sustain herein petitioners' contention that
the lower court was without jurisdiction or gravely
abused its discretion when it ,acted on the motion to
cancel filed by private respondents herein by issuing
an order dated July 29,1968 cancelling TCT-RT-1693
in the name of Andres Aban, petitioner herein.

(h) There is therefore an imperative need for the

issuance of an ex parte Writ of Preliminary Injunction
restraining and prohibiting the respondents, their
agents, attorneys, representatives, deputies,
servants, or any other persons acting in their behalf
from enforcing the Order of which purposes
petitioners are ready and willing to put up the
necessary bond in the minimum amount which the
Honorable Court will require" (pp. 8-10, rec.).
In fine, herein petitioners assert that the court a
quo could not have acquired jurisdiction over the
subject matter of the motion to cancel TCT-RT-1693
filed by the heirs of Eleuterio Cuenca, private
respondents herein, because the aforesaid motion to
cancel partakes of a separate, distinct, and
independent action by itself; that since herein
petitioners are not parties in Civil Case No. 1005, the
Court a quo was without jurisdiction over their
persons.
It may be well to state at this point that jurisdiction
of the court over the subject or nature of an action, is
conferred by law. Jurisdiction over the persons of the
parties may be acquired by the voluntary
appearance of the plaintiff, and, with respect to the
defendant, by the service of summons upon him or
by his voluntary appearance in court.
It may be recalled that when the motion to cancel
dated April 15, 1968 was filed by the heirs of
Eleuterio Cuenca in the Court of First Instance of
Agusan in Civil Case No. 1005, the court served
summons to the petitioners herein who subsequently
filed their opposition thereto (pp. 18- 19, rec.). When
the motion to cancel was set for hearing (pp. 149167, rec.) on June 17, 1968, Atty. Jose L. Lachica,
counsel of herein petitioners, appeared in court.
During said hearing, the parties were given ample
opportunity to argue their respective stand, present

For even assuming that the motion to cancel filed by

private respondents in the court below is a separate,
distinct, and independent action by itself, as argued
by the petitioners, nevertheless, by the service of
summons upon herein petitioners, and by their act of
filing an opposition to the motion as well as their
voluntary appearance in court when the motion was
set for hearing, together with the submission of their
memorandum (pp. 168-177, rec.), the petitioners are
deemed to have submitted themselves to the
jurisdiction of the court, and, consequently, they are
bound by the legal implications of the order of the
court a quo.
Moreover, the filing of petitioners' three motions for
reconsideration is a further submission on their part
to the jurisdiction of the court, and the denial of such
motions was binding on petitioners herein (Soriano
vs. Palacio, et al., 12 SCRA 447, 449).
It cannot be said that the petitioners were denied
their day in court. Neither can it be said that the
petitioners' substantial rights were prejudiced
thereby. The petitioners have had the fullest
opportunity to lay before the court the merits of their
claim when they, as stated heretofore, voluntarily
submitted themselves to the jurisdiction of the
court a quo.
To assert that the court had no jurisdiction because
petitioner Andres Aban was not a party in Civil Case
No. 1005 would appear therefore to be a mere
technicality that would not serve the interest of the
administration of justice (Torres vs. Caluag, et al., 17
SCRA 808, 811). Besides, petitioner Andres Aban's
not being a party in Civil Case No. 1005 was of his
own making. By not joining as party-plaintiff in Civil
Case No. 1005, and, at the same time, asking the

court to drop him as party-defendant (he was sued as

one of the parties-defendants when his consent to
have him joined as one of the parties-plaintiffs could
not be secured) in the same case' which the court a
quogranted in an order dated September 17, 1964,
petitioner Andres Aban virtually toyed with his right
to enforce and protect his claim over a portion of Lot
No. 427 of Butuan Cadastre. There is no plausible
reason for petitioner Andres Aban to assume that the
lot he claims (Lot No. 427-C-1) is not involved in Civil
Case No. 1005 because what is precisely under
litigation in said case is ' Lot No. 427 as a whole, of
which Lot No. 427-C-1 is part and parcel.
Under the circumstances, petitioner spouses Andres
Aban and Dolores Galope are deemed impleaded as
party respondents in Civil Case No. 1005.

the application for substitution, proof of the service

of notice of such motion in the manner required by
the rules, on the attorney to be substituted".
In the case at bar, it is clear that there was no valid
substitution of counsel. The records show that from
the time this case was filed in the CFI of Agusan until
the same reaches this Court, it was Atty. Timoteo D.
Naldoza who appeared and filed all the necessary
pleadings and motions in court as counsel of record
for private respondents herein. The subsequent
appearance of Attys. Antonio K. Caon Cesar T.
Palana, and Francisco T. Concon bears no significance
because there was practically nothing to be done in
the case any more as the same was already
submitted to this Court for decision.
MACASAET VS CO

II
FACTS:
With respect to the petition filed by Atty. Timoteo D.
Naldoza to record his attorney's lien and to consider
him as the principal counsel of record of herein
private respondents, suffice it to state that this Court
finds the petition meritorious.
While concededly, private respondents herein have
the right to dismiss their attorney with or without
cause, however, any change or substitution of
attorney must have to follow the procedure
prescribed by Rule 138, Section 26 of the Revised
Rules of Court.
Unless the formalities required by the Rules of -Court
on valid substitution of attorneys are complied with,
no substitution will be permitted and the attorney
who appeared last in the cause before such
application for substitution will be regarded as the
attorney of record and entitled to be notified of all
notices and pleadings and responsible for the
conduct of the case (Olivares vs. Leola 97 Phil. 352).
Specifically, We have ruled in several cases that "no
substitution of attorneys will be allowed unless the
following requisites concur: (1) there must be filed a
written application for substitution; (2) there must be
filed the written consent of the client to the
substitution; (3) there must be filed the written
consent of the attorney to be substituted, if such
consent can be obtained; (4) in case such written
consent cannot be procured, there must be filed with

To warrant the substituted service of the summons

and copy of the complaint, the serving officer must
first attempt to effect the same upon the defendant
in person. Only after the attempt at personal service
has become futile or impossible within a reasonable
time may the officer resort to substituted service.
The Case
Petitioners defendants in a suit for libel brought by
respondent appeal the decision promulgated on
March 8, 20021 and the resolution promulgated on
January 13, 2003,2 whereby the Court of Appeals (CA)
respectively dismissed their petition for certiorari,
prohibition and mandamus and denied their motion
for reconsideration. Thereby, the CA upheld the order
the Regional Trial Court (RTC), Branch 51, in Manila
had issued on March 12, 2001 denying their motion
to dismiss because the substituted service of the
summons and copies of the complaint on each of
them had been valid and effective.3
Antecedents
On July 3, 2000, respondent, a retired police officer
assigned at the Western Police District in Manila,
sued Abante Tonite, a daily tabloid of general
circulation; its Publisher Allen A. Macasaet; its
Managing Director Nicolas V. Quijano; its Circulation

Manager Isaias Albano; its Editors Janet Bay, Jesus R.

Galang and Randy Hagos; and its Columnist/Reporter
Lily Reyes (petitioners), claiming damages because
of an allegedly libelous article petitioners published
in the June 6, 2000 issue of Abante Tonite. The suit,
docketed as Civil Case No. 00-97907, was raffled to
Branch 51 of the RTC, which in due course issued
summons to be served on each defendant, including
Abante Tonite, at their business address at Monica
Publishing Corporation, 301-305 3rd Floor, BF
Condominium Building, Solana Street corner A.
Soriano Street, Intramuros, Manila.4
In the morning of September 18, 2000, RTC Sheriff
Raul Medina proceeded to the stated address to
effect the personal service of the summons on the
defendants. But his efforts to personally serve each
defendant in the address were futile because the
defendants were then out of the office and
unavailable. He returned in the afternoon of that day
to make a second attempt at serving the summons,
but he was informed that petitioners were still out of
the office. He decided to resort to substituted service
of the summons, and explained why in his sheriffs
return dated September 22, 2005
On October 3, 2000, petitioners moved for the
dismissal of the complaint through counsels special
appearance in their behalf, alleging lack of
jurisdiction over their persons because of the invalid
and ineffectual substituted service of summons. They
contended that the sheriff had made no prior attempt
to serve the summons personally on each of them in
accordance with Section 6 and Section 7, Rule 14 of
the Rules of Court. They further moved to drop
Abante Tonite as a defendant by virtue of its being
neither a natural nor a juridical person that could be
impleaded as a party in a civil action.
At the hearing of petitioners motion to dismiss,
Medina testified that he had gone to the office
address of petitioners in the morning of September
18, 2000 to personally serve the summons on each
defendant; that petitioners were out of the office at
the time; that he had returned in the afternoon of the
same day to again attempt to serve on each
defendant personally but his attempt had still proved
futile because all of petitioners were still out of the
office; that some competent persons working in
petitioners office had informed him that Macasaet

and Quijano were always out and unavailable, and

that Albano, Bay, Galang, Hagos and Reyes were
always out roving to gather news; and that he had
then resorted to substituted service upon realizing
the impossibility of his finding petitioners in person
within a reasonable time.
On March 12, 2001, the RTC denied the motion to
dismiss, and directed petitioners to file their answers
to the complaint within the remaining period allowed
by the Rules of Court,6 relevantly stating:
Records show that the summonses were served upon
Allen A. Macasaet, President/Publisher of defendant
AbanteTonite, through LuAnn Quijano; upon
defendants Isaias Albano, Janet Bay, Jesus R. Galang,
Randy Hagos and Lily Reyes, through Rene Esleta,
Editorial Assistant of defendant Abante Tonite (p. 12,
records). It is apparent in the Sheriffs Return that on
several occasions, efforts to served (sic) the
summons personally upon all the defendants were
ineffectual as they were always out and unavailable,
so the Sheriff served the summons by substituted
service.
Considering that summonses cannot be served within
a reasonable time to the persons of all the
defendants, hence substituted service of summonses
was validly applied. Secretary of the President who is
duly authorized to receive such document, the wife
of the defendant and the Editorial Assistant of the
defendant, were considered competent persons with
sufficient discretion to realize the importance of the
legal papers served upon them and to relay the same
to the defendants named therein (Sec. 7, Rule 14,
1997 Rules of Civil Procedure).
WHEREFORE, in view of the foregoing, the Motion to
Dismiss is hereby DENIED for lack of merit..
Accordingly, defendants are directed to file their
Answers to the complaint within the period still open
to them, pursuant to the rules.
SO ORDERED.
Petitioners filed a motion for reconsideration,
asserting that the sheriff had immediately resorted to
substituted service of the summons upon being
informed that they were not around to personally

receive the summons, and that Abante Tonite, being

neither a natural nor a juridical person, could not be
made a party in the action.
On June 29, 2001, the RTC denied petitioners motion
for reconsideration.7 It stated in respect of the
service of summons, as follows:
The allegations of the defendants that the Sheriff
immediately resorted to substituted service of
summons upon them when he was informed that
they were not around to personally receive the same
is untenable. During the hearing of the herein
motion, Sheriff Raul Medina of this Branch of the
Court testified that on September 18, 2000 in the
morning, he went to the office address of the
defendants to personally serve summons upon them
but they were out. So he went back to serve said
summons upon the defendants in the afternoon of
the same day, but then again he was informed that
the defendants were out and unavailable, and that
they were always out because they were roving
around to gather news. Because of that information
and because of the nature of the work of the
defendants that they are always on field, so the
sheriff resorted to substituted service of summons.
There was substantial compliance with the rules,
considering the difficulty to serve the summons
personally to them because of the nature of their job
which compels them to be always out and
unavailable. Additional matters regarding the service
of summons upon defendants were sufficiently
discussed in the Order of this Court dated March 12,
2001.
Regarding the impleading of Abante Tonite as
defendant, the RTC held, viz:
"Abante Tonite" is a daily tabloid of general
circulation. People all over the country could buy a
copy of "Abante Tonite" and read it, hence, it is for
public consumption. The persons who organized said
publication obviously derived profit from it. The
information written on the said newspaper will affect
the person, natural as well as juridical, who was
stated or implicated in the news. All of these facts
imply that "Abante Tonite" falls within the provision
of Art. 44 (2 or 3), New Civil Code. Assuming
arguendo that "Abante Tonite" is not registered with
the Securities and Exchange Commission, it is

deemed a corporation by estoppels considering that

it possesses attributes of a juridical person,
otherwise it cannot be held liable for damages and
injuries it may inflict to other persons.
Undaunted, petitioners brought a petition for
certiorari, prohibition, mandamusin the CA to nullify
the orders of the RTC dated March 12, 2001 and June
29, 2001.
ISSUE: Whether or not jurisdiction is acquired over
the defendant through summons
RULING: Ruling of the CA
On March 8, 2002, the CA promulgated its
questioned decision,8 dismissing the petition for
certiorari, prohibition, mandamus, to wit:
We find petitioners argument without merit. The rule
is that certiorari will prosper only if there is a showing
of grave abuse of discretion or an act without or in
excess of jurisdiction committed by the respondent
Judge. A judicious reading of the questioned orders of
respondent Judge would show that the same were
not issued in a capricious or whimsical exercise of
judgment. There are factual bases and legal
justification for the assailed orders. From the Return,
the sheriff certified that "effort to serve the summons
personally xxx were made, but the same were
ineffectual and unavailing xxx.
and upholding the trial courts finding that there was
a substantial compliance with the rules that allowed
the substituted service.
Furthermore, the CA ruled:
Anent the issue raised by petitioners that "Abante
Tonite is neither a natural or juridical person who
may be a party in a civil case," and therefore the
case against it must be dismissed and/or dropped, is
untenable.
The respondent Judge, in denying petitioners motion
for reconsideration, held that:
xxxx
Abante Tonites newspapers are circulated
nationwide, showing ostensibly its being a corporate

entity, thus the doctrine of corporation by estoppel

may appropriately apply.

but mainly to satisfy the constitutional requirement

of due process.12

An unincorporated association, which represents

itself to be a corporation, will be estopped from
denying its corporate capacity in a suit against it by a
third person who relies in good faith on such
representation.

The distinctions that need to be perceived between

an action in personam, on the one hand, and an
action inrem or quasi in rem, on the other hand, are
aptly delineated in Domagas v. Jensen,13 thusly:

There being no grave abuse of discretion committed

by the respondent Judge in the exercise of his
jurisdiction, the relief of prohibition is also
unavailable.
WHEREFORE, the instant petition is DENIED. The
assailed Orders of respondent Judge are AFFIRMED.
SO ORDERED.9
On January 13, 2003, the CA denied petitioners
motion for reconsideration.10
Issues
Petitioners hereby submit that:
1. THE COURT OF APPEALS COMMITTED AN ERROR
OF LAW IN HOLDING THAT THE TRIAL COURT
ACQUIRED JURISDICTION OVER HEREIN PETITIONERS.
2. THE COURT OF APPEALS COMMITTED REVERSIBLE
ERROR BY SUSTAINING THE INCLUSION OF ABANTE
TONITE AS PARTY IN THE INSTANT CASE.11
Ruling
The petition for review lacks merit.
Jurisdiction over the person, or jurisdiction in
personam the power of the court to render a
personal judgment or to subject the parties in a
particular action to the judgment and other rulings
rendered in the action is an element of due process
that is essential in all actions, civil as well as
criminal, except in actions in rem or quasi in rem.
Jurisdiction over the defendantin an action in rem or
quasi in rem is not required, and the court acquires
jurisdiction over an actionas long as it acquires
jurisdiction over the resthat is thesubject matter of
the action. The purpose of summons in such action is
not the acquisition of jurisdiction over the defendant

The settled rule is that the aim and object of an

action determine its character. Whether a proceeding
is in rem, or in personam, or quasi in rem for that
matter, is determined by its nature and purpose, and
by these only. A proceeding in personam is a
proceeding to enforce personal rights and obligations
brought against the person and is based on the
jurisdiction of the person, although it may involve his
right to, or the exercise of ownership of, specific
property, or seek to compel him to control or dispose
of it in accordance with the mandate of the court.
The purpose of a proceeding in personam is to
impose, through the judgment of a court, some
responsibility or liability directly upon the person of
the defendant. Of this character are suits to compel a
defendant to specifically perform some act or actions
to fasten a pecuniary liability on him. An action in
personam is said to be one which has for its object a
judgment against the person, as distinguished from a
judgment against the property to determine its state.
It has been held that an action in personam is a
proceeding to enforce personal rights or obligations;
such action is brought against the person. As far as
suits for injunctive relief are concerned, it is wellsettled that it is an injunctive act in personam. In
Combs v. Combs, the appellate court held that
proceedings to enforce personal rights and
obligations and in which personal judgments are
rendered adjusting the rights and obligations
between the affected parties is in personam. Actions
for recovery of real property are in personam.
On the other hand, a proceeding quasi in rem is one
brought against persons seeking to subject the
property of such persons to the discharge of the
claims assailed. In an action quasi in rem, an
individual is named as defendant and the purpose of
the proceeding is to subject his interests therein to
the obligation or loan burdening the property. Actions
quasi in rem deal with the status, ownership or
liability of a particular property but which are
intended to operate on these questions only as

between the particular parties to the proceedings

and not to ascertain or cut off the rights or interests
of all possible claimants. The judgments therein are
binding only upon the parties who joined in the
action.
As a rule, Philippine courts cannot try any case
against a defendant who does not reside and is not
found in the Philippines because of the impossibility
of acquiring jurisdiction over his person unless he
voluntarily appears in court; but when the case is an
action in rem or quasi in rem enumerated in Section
15, Rule 14 of the Rules of Court, Philippine courts
have jurisdiction to hear and decide the case
because they have jurisdiction over the res, and
jurisdiction over the person of the non-resident
defendant is not essential. In the latter instance,
extraterritorial service of summons can be made
upon the defendant, and such extraterritorial service
of summons is not for the purpose of vesting the
court with jurisdiction, but for the purpose of
complying with the requirements of fair play or due
process, so that the defendant 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. On the other hand, when the defendant
in an action in personam does not reside and is not
found in the Philippines, our courts cannot try the
case against him because of the impossibility of
acquiring jurisdiction over his person unless he
voluntarily appears in court.14
As the initiating party, the plaintiff in a civil action
voluntarily submits himself to the jurisdiction of the
court by the act of filing the initiatory pleading. As to
the defendant, the court acquires jurisdiction over his
person either by the proper service of the summons,
or by a voluntary appearance in the action. 15
Upon the filing of the complaint and the payment of
the requisite legal fees, the clerk of court forthwith
issues the corresponding summons to the
defendant.16 The summons is directed to the
defendant and signed by the clerk of court under
seal. It contains the name of the court and the names
of the parties to the action; a direction that the
defendant answers within the time fixed by the Rules

of Court; and a notice that unless the defendant so

answers, the plaintiff will take judgment by default
and may be granted the relief applied for.17 To be
attached to the original copy of the summons and all
copies thereof is a copy of the complaint (and its
attachments, if any) and the order, if any, for the
appointment of a guardian ad litem.18
The significance of the proper service of the
summons on the defendant in an action in personam
cannot be overemphasized. The service of the
summons fulfills two fundamental objectives, namely:
(a) to vest in the court jurisdiction over the person of
the defendant; and (b) to afford to the defendant the
opportunity to be heard on the claim brought against
him.19 As to the former, when jurisdiction in
personam is not acquired in a civil action through the
proper service of the summons or upon a valid
waiver of such proper service, the ensuing trial and
judgment are void.20 If the defendant knowingly does
an act inconsistent with the right to object to the lack
of personal jurisdiction as to him, like voluntarily
appearing in the action, he is deemed to have
submitted himself to the jurisdiction of the court.21 As
to the latter, the essence of due process lies in the
reasonable opportunity to be heard and to submit
any evidence the defendant may have in support of
his defense. With the proper service of the summons
being intended to afford to him the opportunity to be
heard on the claim against him, he may also waive
the process.21 In other words, compliance with the
rules regarding the service of the summons is as
much an issue of due process as it is of jurisdiction. 23
Under the Rules of Court, the service of the summons
should firstly be effected on the defendant himself
whenever practicable. Such personal service consists
either in handing a copy of the summons to the
defendant in person, or, if the defendant refuses to
receive and sign for it, in tendering it to him.24 The
rule on personal service is to be rigidly enforced in
order to ensure the realization of the two
fundamental objectives earlier mentioned. If, for
justifiable reasons, the defendant cannot be served
in person within a reasonable time, the service of the
summons may then be effected either (a) by leaving

a copy of the summons at his residence with some

person of suitable age and discretion then residing
therein, or (b) by leaving the copy at his office or
regular place of business with some competent
person in charge thereof.25 The latter mode of service
is known as substituted service because the service
of the summons on the defendant is made through
his substitute.
It is no longer debatable that the statutory
requirements of substituted service must be followed
strictly, faithfully and fully, and any substituted
service other than that authorized by statute is
considered ineffective.26 This is because substituted
service, being in derogation of the usual method of
service, is extraordinary in character and may be
used only as prescribed and in the circumstances
authorized by statute.27 Only when the defendant
cannot be served personally within a reasonable time
may substituted service be resorted to. Hence, the
impossibility of prompt personal service should be
shown by stating the efforts made to find the
defendant himself and the fact that such efforts
failed, which statement should be found in the proof
of service or sheriffs return.28Nonetheless, the
requisite showing of the impossibility of prompt
personal service as basis for resorting to substituted
service may be waived by the defendant either
expressly or impliedly.29
There is no question that Sheriff Medina twice
attempted to serve the summons upon each of
petitioners in person at their office address, the first
in the morning of September 18, 2000 and the
second in the afternoon of the same date. Each
attempt failed because Macasaet and Quijano were
"always out and not available" and the other
petitioners were "always roving outside and
gathering news." After Medina learned from those
present in the office address on his second attempt
that there was no likelihood of any of petitioners
going to the office during the business hours of that
or any other day, he concluded that further attempts
to serve them in person within a reasonable time
would be futile. The circumstances fully warranted
his conclusion. He was not expected or required as

the serving officer to effect personal service by all

means and at all times, considering that he was
expressly authorized to resort to substituted service
should he be unable to effect the personal service
within a reasonable time. In that regard, what was a
reasonable time was dependent on the
circumstances obtaining. While we are strict in
insisting on personal service on the defendant, we do
not cling to such strictness should the circumstances
already justify substituted service instead. It is the
spirit of the procedural rules, not their letter, that
governs.30
In reality, petitioners insistence on personal service
by the serving officer was demonstrably superfluous.
They had actually received the summonses served
through their substitutes, as borne out by their filing
of several pleadings in the RTC, including an answer
with compulsory counterclaim ad cautelam and a
pre-trial brief ad cautelam. They had also availed
themselves of the modes of discovery available
under the Rules of Court. Such acts evinced their
voluntary appearance in the action.
Nor can we sustain petitioners contention that
Abante Tonite could not be sued as a defendant due
to its not being either a natural or a juridical person.
In rejecting their contention, the CA categorized
Abante Tonite as a corporation by estoppel as the
result of its having represented itself to the reading
public as a corporation despite its not being
incorporated. Thereby, the CA concluded that the
RTC did not gravely abuse its discretion in holding
that the non-incorporation of Abante Tonite with the
Securities and Exchange Commission was of no
consequence, for, otherwise, whoever of the public
who would suffer any damage from the publication of
articles in the pages of its tabloids would be left
without recourse. We cannot disagree with the CA,
considering that the editorial box of the daily tabloid
disclosed that basis, nothing in the box indicated that
Monica Publishing Corporation had owned Abante
Tonite.