SECOND DIVISION

[G.R. No. 51832. April 26, 1989.]

RAFAEL PATRICIO, petitioner, vs. THE HONORABLE OSCAR LEVISTE, JUDGE, CFI
CAPIZ, BRANCH II and BIENVENIDO BACALOCOS, respondents.
Stephen C. Arceo for petitioner.
Isagani V. Roblete for private respondent.
SYLLABUS
1.
REMEDIAL LAW; MOTIONS; NOTICE THEREOF; PURPOSE. The general rule
is that notice of motion is required where a party has a right to resist the relief
sought by the motion and principles of natural justice demand that his rights be not
affected without an opportunity to be heard.
2.
ID.; ID.; ID.; ID.; PROCEDURAL RULES LIBERALLY CONSTRUED IN CASE
AT BAR. In the case at bar, a copy of the motion for reconsideration was
served upon petitioner, although service was effected through ordinary
mail and not by registered mail as required to the rules. But, petitioner was
duly given the full opportunity to be heard and to argue his case when the
court a quo required him to file a reply (opposition) to the motion for
reconsideration and subsequently set the motion for oral argument. What
the law really eschews is not the lack of previous notice of hearing but the
lack of opportunity to be heard. It has been held that parties should not rely on
mere technicalities which, in the interest of justice, may be relaxed. The rules of
procedure should be viewed as mere tools designed to facilitate the attainment of
justice. Their strict and rigid application, which would result in technicalities that
tend to frustrate rather than promote substantial justice, must be avoided.
Moreover, the case should, as much as possible, be decided on the merits and not
merely on technicalities.
3.
CIVIL LAW; DAMAGES; ARTICLE 2219 OF THE CIVIL CODE; WHEN MORAL
DAMAGES MAY BE RECOVERED. We find petitioner's claim for moral damages,
meritorious. There is no question that moral damages may be recovered in cases
where a defendant's wrongful act or omission has caused the complainant physical
suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation and similar injury. An award of moral
damages is allowed in cases specified or analogous to those provided in Article 2219
of the Civil Code, to wit: "ART. 2219. Moral damages may be recovered in the
following and analogous cases: (1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other
lascivious acts. (4) Adultery or concubinage; (5) Illegal or arbitrary detention or
arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8)
Malicious prosecution; (9) Acts mentioned in article 309; (10) Acts and actions
referred to in articles 21, 26, 27, 28, 29, 30 32, 34, and 35 . . ."
4.
ID.; ID.; WHEN AWARD OF COMPENSATORY DAMAGES PROPER; PROOF OF
ACTUAL OR COMPENSABLE PHYSICAL INJURY NOT NECESSARY. Pursuant to Art. 21
of the Civil Code in relation to par. (10) of Art. 2219 of the same Code, "any person
who wilfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage." The fact
that no actual or compensatory damage was proven before the trial court, does not
adversely affect petitioner's right to recover moral damages. Moral damages may be
awarded in appropriate cases referred to in the chapter on human relations of the
Civil Code (Articles 19 to 36), without need of proof that the wrongful act complained

of had caused any physical injury upon the complainant. (Malonzo v. Galang, G.R.
No. L-13851, 27 July 1960, 109 Phil. 16).
5.
ID.; ID.; ID.; REASON FOR THE RULE. It is clear from the report of the
Code Commission that the reason underlying an award of damages under Art. 21 of
the Civil Code is to compensate the injured party for the moral injury caused upon
his person, thus ". . . Fully sensible that there are countless gaps in the statutes,
which leave so many victims of moral wrongs helpless, even though they have
actually suffered material and moral injury, the Commission has deemed it
necessary, in the interest of justice, to incorporate in the proposed Civil Code the
following rule: 'ART. 23. Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall compensate
the latter for the damage.'
6.
ID.; ID.; REASON FOR THE AWARD OF EXEMPLARY OR CORRECTIVE
DAMAGES; SUCH AWARD IS NOT RECOVERABLE AS A MATTER OF RIGHT. In
addition to the award of moral damages, exemplary or corrective damages may be
imposed upon herein private respondent by way of example or correction for the
public good (Art. 22, 29, Civil Code). Exemplary damages are required by public
policy to suppress the wanton acts of the offender. They are an antidote so that the
poison of wickedness may not run through the body politic. The amount of
exemplary damages need not be proved where it is shown that plaintiff is entitled to
either moral, temperate or compensatory damages, as the case may be (Art. 2234,
Civil Code), although such award cannot be recovered as a matter of right. (Art.
2233, Civil Code).
7.
ID.; ID.; ATTORNEY'S FEES; AWARD THEREOF PROPER WHERE EXEMPLARY
DAMAGES RECOVERABLE. In cases where exemplary damages are awarded to the
injured party, attorney's fees are also recoverable.
DECISION
PADILLA, J p:
Petition for review on certiorari of the Order 1 of the Court of First Instance of Capiz,
Branch II, on the motion for reconsideration filed by private respondent Bienvenido
Bacalocos, dismissing the complaint for damages against the latter, docketed as
Civil Case No. V-3937.
Petitioner Rafael Patricio, an ordained Catholic priest, and actively engaged in social
and civic affairs in Pilar, Capiz, where he is residing, was appointed Director General
of the 1976 Religious and Municipal Town Fiesta of Pilar, Capiz.
On 16 May 1976 at about 10:00 o'clock in the evening, while a benefit dance was
on-going in connection with the celebration of the town fiesta, petitioner together
with two (2) policemen were posted near the gate of the public auditorium to check
on the assigned watchers of the gate. Private respondent Bienvenido Bacalocos,
President of the Association of Barangay Captains of Pilar, Capiz and a member of
the Sangguniang Bayan, who was in a state of drunkenness and standing near the
same gate together with his companions, struck a bottle of beer on the table
causing an injury on his hand which started to bleed. Then, he approached petitioner
in a hostile manner and asked the latter if he had seen his wounded hand, and
before petitioner could respond, private respondent, without provocation, hit
petitioner's face with his bloodied hand. As a consequence, a commotion ensued
and private respondent was brought by the policemen to the municipal building. 2
As a result of the incident, a criminal complaint for "Slander by Deed was filed by
petitioner with the Municipal Trial Court of Pilar, Capiz, docketed as Criminal Case
No. 2228, but the same was dismissed. 3 Subsequently, a complaint for damages

was filed by petitioner with the court a quo. In a decision, 4 dated 18 April 1978, the
court ruled in favor of herein petitioner (as complainant), holding private respondent
liable to the former for moral damages as a result of the physical suffering, moral
shock and social humiliation caused by private respondent's act of hitting petitioner
on the face in public. The dispositive part of the decision reads as follows:
"WHEREFORE, the Court orders defendant to pay plaintiff the damages as follows:
Cdpr
a)

Moral damages of P10,000.00

b)

Exemplary damages, P1,000.00 and

c)

Attorney's fees, P2,000.00

SO ORDERED." 5
On 9 June 1978, petitioner filed a motion for execution of judgment, alleging that the
18 April 1978 decision had become final and executory alter the lapse of thirty (30)
days from receipt thereof by private respondent, without any motion for
reconsideration or appeal having been filed. 6 However, said motion was denied by
the court a quo on the ground that there was a pending motion for reconsideration
filed by private respondent. 7 Subsequently, private respondent filed a supplemental
motion for reconsideration 8 and the court ordered petitioner to file a reply
(opposition) thereto. 9 In compliance, petitioner filed a reply (opposition) to the
motion for reconsideration, alleging that the filing of said motion and supplement
thereto was without notice to the adverse party and proof of service, hence, the
decision sought to be reconsidered had already become final and unappealable. 10
Private respondent filed a rejoinder (reply) and a manifestation stating that
petitioner was duly served with a copy of said motion for reconsideration by ordinary
mail, attaching thereto the affidavit of Godofredo Almazol who stated that he mailed
the envelope to counsel for herein petitioner. 11 The court a quo then scheduled the
motion for oral argument and the parties were allowed to extensively argue their
respective causes.
On 3 August 1979, an order 12 of dismissal of the petitioner's complaint was issued
by the trial court, thus
"ORDER
This is a motion for reconsideration of the decision of this Court dated April 18,
1978, filed by counsel for defendant on May 18, 1978.
In view of the recent trend in the Supreme Court to liberally construe the Rules, and
in view of Section 2, Rule 1, the Court resolves to give due course to the motion.
Upon review of the facts of the case, it appears and the Court finds merit in the
motion for reconsideration, particularly noting that there is indeed no showing of
compensatory damages being proved.
WHEREFORE, this Court reconsiders its decision to conform to the facts and the law,
namely, that moral and exemplary damages, in order to merit, the plaintiff ought to
have proven actual or compensatory damages.
WHEREFORE, this case is ordered dismissed. LLpr
SO ORDERED."
Not satisfied with said order, petitioner filed the petition at bar contending that no
copy of the Motion for Reconsideration was served upon petitioner and no proof of

service as well as notice of hearing were attached to said motion when filed with the
court a quo; thus, the motion for reconsideration did not interrupt the running of the
period to appeal. The alleged mailing of a copy of said motion by ordinary mail did
not, according to petitioner, cure the defect. Petitioner further argues that
respondent's admission that he slapped herein petitioner in public causing him
physical suffering and social humiliation, entitles the latter to moral damages. Actual
and compensatory damages need not be proven before an award of moral damages
can be granted, so petitioner contends.
On the other hand, private respondent claims that the order of the court a quo
apprising petitioner of the motion for reconsideration filed by private respondent and
requiring the former to file a reply (opposition) thereto, had cured the defect of lack
of proof of service and notice of hearing of said motion for reconsideration; and that
the award of moral damages to petitioner is without basis for lack of proof of bad
faith on the part of private respondent.
With respect to the alleged lack of service on petitioner of a copy of the motion and
notice of hearing and failure to attach to the motion proof of service thereof, the
general rule is that notice of motion is required where a party has a right to resist
the relief sought by the motion and principles of natural justice demand that his
rights be not affected without an opportunity to be heard. 13
In the case at bar, a copy of the motion for reconsideration was served upon
petitioner, although service was effected through ordinary mail and not by
registered mail as required to the rules. But, petitioner was duly given the full
opportunity to be heard and to argue his case when the court a quo required him to
file a reply (opposition) to the motion for reconsideration and subsequently set the
motion for oral argument.
What the law really eschews is not the lack of previous notice of hearing but the lack
of opportunity to be heard. It has been held that parties should not rely on mere
technicalities which, in the interest of justice, may be relaxed. 14 The rules of
procedure should be viewed as mere tools designed to facilitate the attainment of
justice. Their strict and rigid application, which would result in technicalities that
tend to frustrate rather than promote substantial justice, must be avoided. 15
Moreover, the case should, as much as possible, be decided on the merits and not
merely on technicalities.
As to the petitioner's claim for moral damages, we find the same to be meritorious.
There is no question that moral damages may be recovered in cases where a
defendant's wrongful act or omission has caused the complainant physical suffering,
mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation and similar injury. 16 An award of moral damages is
allowed in cases specified or analogous to those provided in Article 2219 of the Civil
Code, to wit:
"ART. 2219.
cases:

Moral damages may be recovered in the following and analogous

(1)

A criminal offense resulting in physical injuries;

(2)

Quasi-delicts causing physical injuries;

(3)

Seduction, abduction, rape, or other lascivious acts.

(4)

Adultery or concubinage;

(5)

Illegal or arbitrary detention or arrest;

(6)

Illegal search;

(7)

Libel, slander or any other form of defamation;

(8)

Malicious prosecution;

WHEREFORE, the petition is GRANTED. The order appealed from, dated 3 August
1979, is REVERSED and the decision of the court a quo dated 18 April 1978 is hereby
REINSTATED. With costs against private respondent.

(9)

Acts mentioned in article 309;

SO ORDERED.

(10)

Acts and actions referred to in articles 21, 26, 27, 28, 29, 30 32, 34, and 35.

xxx

xxx

xxx

Private respondent's contention that there was no bad faith on his part in slapping
petitioner on the face and that the incident was merely accidental is not tenable. It
was established before the court a quo that there was an existing feud between the
families of both petitioner and private respondent and that private respondent
slapped the petitioner without provocation in the presence of several persons.
The act of private respondent in hitting petitioner on the face is contrary to morals
and good customs and caused the petitioner mental anguish, moral shock, wounded
feelings and social humiliation. Private respondent has to take full responsibility for
his act and his claim that he was unaware of what he had done to petitioner because
of drunkenness is definitely no excuse and does not relieve him of his liability to the
latter.
Pursuant to Art. 21 of the Civil Code in relation to par. (10) of Art. 2219 of the same
Code, "any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage."
The fact that no actual or compensatory damage was proven before the trial court,
does not adversely affect petitioner's right to recover moral damages. Moral
damages may be awarded in appropriate cases referred to in the chapter on human
relations of the Civil Code (Articles 19 to 36), without need of proof that the wrongful
act complained of had caused any physical injury upon the complainant. 17 It is
clear from the report of the Code Commission that the reason underlying an award
of damages under Art. 21 of the Civil Code is to compensate the injured party for the
moral injury caused upon his person, thus
". . . Fully sensible that there are countless gaps in the statutes, which leave so
many victims of moral wrongs helpless, even though they have actually suffered
material and moral injury, the Commission has deemed it necessary, in the interest
of justice, to incorporate in the proposed Civil Code the following rule: LLphil
'ART. 23. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.'
xxx

xxx

xxx" 18

In addition to the award of moral damages, exemplary or corrective damages may

be imposed upon herein private respondent by way of example or correction for the
public good. 19 Exemplary damages are required by public policy to suppress the
wanton acts of the offender. They are an antidote so that the poison of wickedness
may not run through the body politic. 20
The amount of exemplary damages need not be proved where it is shown that
plaintiff is entitled to either moral, temperate or compensatory damages, as the
case may be, 21 although such award cannot be recovered as a matter of right. 22
In cases where exemplary damages are awarded to the injured party, attorney's fees
are also recoverable. 23

sum of P9,711.50 with interest thereon at the rate of twelve percent (12%) per
annum from due date per promissory notes until fully paid, to pay P1,000.00 as
attorney's fees and costs of suit. 3 Considering that, as per sheriff's Return, dated
17 August 1985, said decision could not be served upon the petitioners at 3412 B.A.
Tan St., Barrio Obrero, Tondo, Manila, on the ground that they were no longer at said
address, the same was served on 16 September 1985 upon Violeta S. Venturanza in
her office at Asian Development Bank, Roxas Blvd., Pasay City. 4

SECOND DIVISION
[G.R. No. 77760. December 11, 1987.]
SPOUSES VIOLETA S. VENTURANZA and ROMY VENTURANZA, petitioners, vs. HON.
COURT OF APPEALS, HON. JUDGE BERNARDO P. PARDO, PRESIDING JUDGE OF
REGIONAL TRIAL COURT OF MANILA, BRANCH XLIII, HON. JUDGE ERNESTO
MADAMBA, PRESIDING JUDGE OF METROPOLITAN TRIAL COURT OF MANILA, BRANCH
XVII AND NIEVES SENORAN, respondents.
DECISION
PADILLA, J p:
Petition for review on certiorari of the decision * of the Court of Appeals, dated 6
March 1987, in CA-G.R. No. SP-08971 entitled "Spouses Violeta S. Venturanza and
Romy Venturanza, petitioners, vs. Hon. Judge Bernardo Pardo, et al., respondents,"
affirming the decision ** of the Regional Trial Court of Manila, Branch XLIII.
On 22 May 1985, plaintiff Nieves Y. Senoran (now private respondent) filed a
complaint against spouses Violeta S. Venturanza and Romy Venturanza (now
petitioners) with the Metropolitan Trial Court of Manila, Branch XVII, docketed as Civil
Case No. 109950, for collection of sums of money in the aggregate amount of
P9,711.50, representing several loans evidenced by promissory notes which had
become due and demandable but unpaid despite repeated demands. 1 On 10 June
1985, summons was issued against the petitioners and served on Augusto Soan,
father of petitioner Violeta S. Venturanza, at 3412 B.A. Tan Street, Barrio Obrero,
Tondo, Manila, the address of petitioners stated in the complaint. The sheriff's
Return, states as follows: 2
"I certify that on this date I served a copy of this Summons together with a copy of
the corresponding Complaint on Violeta Venturanza and Romy Venturanza at the
address designated herein/at _________ Manila, personally/thru Mr./Miss/Mrs. Augusto
Soan, father, a person working/residing therein who is of sufficient age and
discretion and/or duly authorized to receive services of this nature and who
signed/but who, however, refused to sign for the receipt hereof, as evidenced by
his/her/the latter's signature appearing on the face of this summons.
Manila, Philippines, June 10, 1985."
For failure of the petitioners to file their Answer, a decision dated 12 August 1985
was rendered by the court a quo based on the allegations of fact in the complaint,
and ordering the petitioners to pay jointly and severally the private respondent the

On 22 September 1985, petitioners filed a "Motion to Set Aside Decision and to

Declare Past Proceedings Null and Void for Lack of Jurisdiction," alleging that there
had been no proper and valid service of summons upon them in accordance with
either Section 7 or Section 8 of Rule 14 of the Rules of Court 5 and that the court a
quo never acquired jurisdiction over the person of the petitioners, considering that
the address where the summons was served is the residence of Violeta S.
Venturanza's father, Augusto Soan, and not the residence or dwelling house of the
petitioners, and that since April 1985, petitioners had been already residing at
Aurora Street, Pasay City. 6 In an order dated 20 October 1985, the court a quo
denied the motion, for lack of merit, stating thus: cdrep
"The preponderance of evidence weighs heavily in favor of an affirmative resolution
of the issue.
"In the affidavit of Deputy Sheriff, Jose L. Cruz, attached as Annex "A" of plaintiff's
opposition to the motion under consideration, he positively states that upon his
service at defendants' abovementioned given address, he inquired from one
Augusto Soan, who identified himself to be defendant's father whether defendants
were residents of the place. Upon confirming that defendants were in fact residents
thereat, Jose L. Cruz forthwith handed to said Augusto Soan the summons together
with a copy of the complaint requesting the latter to serve the same upon
defendants.
"The Telephone Directory of Asian Development Bank for February, 1984, attached
and marked as Annex "B" of plaintiff's opposition clearly indicates therein that
defendant Violeta S. Venturanza is a resident of 3412 B.A. Tan, Bo. Obrero, Tondo,
Manila (Annex "B"). The Telephone Directory of the same Asian Development Bank,
where defendant, Violeta S. Venturanza is employed for October, 1984 (Annex "C"),
bears the same information (Annex "C-1"). Indeed the PLDT Telephone Directory for
1985-1986 (Annex "F") also bears a substantial identical information as to
defendant, Violeta S. Venturanza's residence.
In the light of all the foregoing evidence indubitably showing that defendants have
always been residents of 3412 B.A. Tan St., Bo. Obrero, Tondo, Manila up to the
present, the bare allegation in defendants' motion that they have been residing at
Aurora St., Pasay City since April 1985, unsupported by any other independent
competent evidence, is, utmost (sic), self-serving, and devoid of any probative
value.
WHEREFORE, let defendants, motion be, as it is hereby denied for lack of merit.
SO ORDERED." 7
On appeal to the Regional Trial Court of Manila, Branch XLIII, the appeal being
docketed as Civil Case No. 86-34319, the decision of the court a quo was affirmed
with a slight modification, i.e., lowering the amount of attorney's fees to P500.00. 8
On 6 March 1987, a petition for review was filed with the Court of Appeals. Said RTC
decision was affirmed in toto. 9 Hence, this petition for review on certiorari. cdll
The issues raised and to be resolved in this instance, are the following:

I.
Whether or not the Metropolitan Trial Court validly acquired jurisdiction over
the persons of the petitioners when the summons was served upon Augusto Soan,
father of petitioner Violeta S. Venturanza at 3412 B.A. Tan St., Bo. Obrero, Tondo,
Manila, which address is no longer the residence nor the place of business of
petitioners.
II.
Whether or not the provisions of Section 8, Rule 14 of the Rules of Court
was legally complied with by the Sheriff in serving the summons upon the father of
one of the petitioners. 10
The court a quo, in its findings of fact, reached the conclusion that the address at
3412 B.A. Tan St., Bo. Obrero, Tondo, Manila, where summons was served by the
branch sheriff, Jose L. Cruz, was the place of residence of the petitioners, after the
latter allegedly failed to submit any evidence to prove their allegation that they
were no longer residents of said address and had transferred to 2511 Aurora St.,
Pasay City.
11 The court a quo relied heavily on what appeared in the 1984
Telephone Directory of Asian Development Bank, where defendant Violeta S.
Venturanza is employed, in the PLDT Telephone Directory for 1985-1986, and the
sheriff's affidavit dated 16 October 1985 stating that, upon inquiry from Augusto
Soan on whether the defendants were residents of the above-said address, the latter
confirmed the same. 12
It is the general rule that findings of fact of the Court of Appeals when supported by
substantial evidence, are beyond this Court's power of review. 13 However, in the
instant case, we cannot but consider that the address of defendant Violeta S.
Venturanza found in the 1984 Asian Development Bank Directory and the PLDT
Telephone Directory for 1985-86, together with the affidavit of the branch sheriff, are
not sufficient to substantiate the findings of the court a quo that petitioners were
bona fide residents of 3412 B.A. Tan St., Barrio Obrero, Tondo, Manila at the time
summons was served on Augusto Soan. prLL
There is no question, and in fact it was admitted by the petitioners, that in 1984
they were actual residents of 3412 B.A. Tan St., Barrio Obrero, Tondo, Manila and, as
correctly reflected in the 1984 Asian Development Bank Directory. However, the
change of their address, upon their transfer to Pasay City in April 1985, could not be
reflected in the 1985-86 PLDT Telephone Directory, because this directory had
already been printed and circulated to the public before their transfer in April 1985
to Aurora St. in Pasay City. Moreover, the copy of the contract of lease dated April
1985 between petitioner Romualdo Venturanza as lessee and Linda Galvez as lessor
over an apartment unit located at 2511 Aurora St., Pasay City 14 and the affidavit of
Augusto Soan dated 29 April 1986 stating that he never told the sheriff that the
defendants were residing in his house at 3412 B.A, Tan St., Barrio Obrero, Tondo,
Manila, sufficiently negate the conclusion of the court a quo. 15
Under Rule 14 of the Rules of Court, there are three (3) methods of service of
summons in civil actions, namely: 1) personal service (Sec. 7); 2) substituted service
(Sec. 8); and 3) service by publication. 16 Strict compliance with these modes of
service is required in order that the court may require jurisdiction over the person of
the defendant. 17 Service of summons upon the defendant is the means by which
the court acquires jurisdiction over his person. This process is for the benefit of the
defendant, and is intended to afford the latter an opportunity to be heard on the
claim against him. 18 In the absence of valid waiver, trial and judgment, without
such service, are null and void.
There is no question that the case at bar which is an action for collection of sum of
money is an action in personam thereby requiring personal service of summons on
the defendants.

"In an action strictly in personam, personal service of summons within the forum is
essential to the acquisition of jurisdiction over the person of the defendant who does
not voluntarily submit himself to the authority of the court." (Pantaleon vs. Asuncion,
105 Phil. 761; Sequito vs. Letrondo, 10 Phil. 1139)
It is only when a defendant can not be personally served with summons within a
reasonable time that a substituted service may be availed of, the same to be
effected in the following manner: a) by leaving copies of the summons at the
defendants' 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. 19 For a
substituted service to be valid, summons served at the defendant's residence must
be served at his residence at the time of such service and not at his former place of
residence. LLpr
"The terms "dwelling house" or "residence" are generally held to refer to the time of
service, hence it is not sufficient "to leave the copy at defendant's former dwelling
house, residence, or place of abode, as the case may be, after his removal
therefrom." They refer to the place where the person named in the summons is
living at the time when the service is made, even though he may be temporarily out
of the country at the time." (Keister v. Navarro, 77 SCRA 209, May 31, 1977)
It is further required by law that an effort or attempt should first be made to
personally serve the summons and after this has failed, a substituted service may
be caused upon the defendant, and the same must be reflected in the proof of
service. 20
"The substituted service should be availed of 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. It has
been held that it 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." . . . (Arevalo vs. Quitalon, 166 SCRA 707)
Upon careful examination of the sheriff's Return in this case, dated 10 June 1985,
which purports to serve as proof that summons had been served upon the
defendants, together with a copy of the complaint, through Augusto Soan, no
statement is made that an effort or attempt was exerted to personally serve the
summons on the defendants and that the same had failed. In fact, said Return does
not even indicate the address of the defendants to whom summons was supposed to
have been served. The presumption of regularity in the performance of official
functions by the sheriff is not applicable in this case where it is patent that the
sheriff's return is defective.
WHEREFORE, the decision of the Court of Appeals is hereby REVERSED and SET
ASIDE. The case is remanded to the court of origin for further proceedings, including
a valid service of summons. No costs.
SO ORDERED.

1.
REMEDIAL LAW; CIVIL PROCEDURE; SUMMONS; "AGENTS" NO LONGER
AUTHORIZED TO RECEIVE SUMMONS FOR CORPORATION. Earlier cases have
uphold service of summons upon a construction project manager; a corporation's
assistant manager; ordinary clerk of a corporation; private secretary of corporate
executives; retained counsel; officials who had charge or control of the operations of
the corporation, like the assistant general manager; or the corporations Chief
Finance and Administrative Officer. In these cases, these persons were considered as
"agent" within the contemplation of the old rule. Notably, under the new Rules,
service of summons upon an agent of the corporation is no longer authorized.
2.
ID.; ID.; ID.; DESIGNATION OF PERSONS OR OFFICERS AUTHORIZED TO
RECEIVE SUMMONS FOR DOMESTIC CORPORATIONS, LIMITED. The designation of
persons or officers who are authorized to accept summons for a domestic
corporation or partnership is now limited and more clearly specified in Section 11,
Rule 14 of the 1997 Rules of Civil Procedure. The rule now states "general manager"
instead of only "manager"; "corporate secretary" instead of "secretary"; and
"treasurer" instead of "cashier." The phrase "agent, or any of its directors" is
conspicuously deleted in the new rule, . . . It should be noted that even prior to the
effectivity of the 1997 Rules of Civil Procedure, strict compliance with the rules has
been enjoined. (Delta Motor Sales Corporation vs. Mangosing, 70 SCRA 598 [1976])
3.
ID.. ID.; ID.; JURISDICTION NOT ACQUIRED WHERE SERVICE OF SUMMONS
WAS MADE ON BRANCH MANAGER. Accordingly, we rule that the service of
summons upon the branch manager of petitioner at its branch office at Cagayan de
Oro, instead of upon the general manager at its principal office at Davao City is
improper. Consequently, the trial court did not acquire jurisdiction over the person of
the petitioner.

[G.R. No. 136426. August 6, 1999.]

E.B. VILLAROSA & PARTNER CO., LTD., petitioner, vs. HON. HERMINIO I. BENITO, in
his capacity as Presiding Judge, RTC, Branch 132, Makati City and IMPERIAL
DEVELOPMENT CORPORATION, respondent.
Capuyan Quimpo & Salazar for petitioner.
Ermitao Sangco Manzano & Associates for private respondent.
SYNOPSIS
In this instant petition, E.B. Villarosa and Partner Co., Ltd. contended that the trial
court did not acquire jurisdiction over its person because the summons intended for
it was improperly served on its Branch Manager. cDTSHE
The Court agreed with petitioner. Designation of persons or officers who are
authorized to accept summons for a domestic corporation or partnership is now
limited and more clearly specified in the 1997 Rules of Civil Procedure. The rule must
be strictly observed, service must be made to one named in the statute.

4.
ID.; ID.; ID.; INEFFECTIVE SERVICE OF SUMMONS; FILING OF MOTION TO
DISMISS DOES NOT CONSTITUTE VOLUNTARY APPEARANCE. The fact that
defendant filed a belated motion to dismiss did not operate to confer jurisdiction
upon its person. There is no question that the defendant's voluntary appearance in
the action is equivalent to service of summons. Before, the rule was that a party
may challenge the jurisdiction of the court over his person by making a special
appearance through a motion to dismiss and if in the same motion, the movant
raised other grounds or invoked affirmative relief which necessarily involves the
exercise of the jurisdiction of the court, the party is deemed to have submitted
himself to the jurisdiction of the court. This doctrine has been abandoned in the case
of La Naval Drug Corporation vs. Court of Appeals, et al.; which became the basis of
the adoption of a new provision in the former Section 23, which is now Section 20 of
Rule 14 of the 1997 Rules, Section 20 now provides that "the inclusion in a motion to
dismiss of other grounds aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance." The emplacement of this
rule clearly underscores the purpose to enforce strict enforcement of the rules on
summons. Accordingly, the filing of a motion to dismiss, whether or not belatedly
filed by the defendant, his authorized agent or attorney, precisely objecting to the
jurisdiction of the court over the person of the defendant can by no means be
deemed a submission to the jurisdiction of the court. There being no proper service
of summons, the trial court cannot take cognizance of a case for lack of jurisdiction
over the person of the defendant. Any proceeding undertaken by the trial court will
consequently be null and void. cDCaHA

Petitioner's filing of a motion to dismiss, precisely objecting to the jurisdiction of the

court over the person of the defendant, can by no means be deemed a submission
to the jurisdiction of the court.

DECISION

SYLLABUS

Before this Court is a petition for certiorari and prohibition with prayer for the
issuance of a temporary restraining order and/or writ of preliminary injunction
seeking to annul and set aside the Orders dated August 5, 1998 and November 20,

GONZAGA-REYES, J p:

1998 of the public respondent Judge Herminio I. Benito of the Regional Trial Court of
Makati City, Branch 132 and praying that the public respondent court be ordered to
desist from further proceeding with Civil Case No. 98-824. LLjur
Petitioner E.B. Villarosa & Partner Co., Ltd. is a limited partnership with principal
office address at 102 Juan Luna St., Davao City and with branch offices at 2492 Bay
View Drive, Tambo, Paraaque, Metro Manila and Kolambog, Lapasan, Cagayan de
Oro City. Petitioner and private respondent executed a Deed of Sale with
Development Agreement wherein the former agreed to develop certain parcels of
land located at Barrio Carmen, Cagayan de Oro belonging to the latter into a housing
subdivision for the construction of low cost housing units. They further agreed that
in case of litigation regarding any dispute arising therefrom, the venue shall be in
the proper courts of Makati.
On April 3, 1998, private respondent, as plaintiff, filed a Complaint for Breach of
Contract and Damages against petitioner, as defendant, before the Regional Trial
Court of Makati allegedly for failure of the latter to comply with its contractual
obligation in that, other than a few unfinished low cost houses, there were no
substantial developments therein. 1
Summons, together with the complaint, were served upon the defendant, through its
Branch Manager Engr. Wendell Sabulbero at the stated address at Kolambog,
Lapasan, Cagayan de Oro City 2 but the Sheriff's Return of Service 3 stated that the
summons was duly served "upon defendant E.B. Villarosa & Partner Co., Ltd. thru its
Branch Manager Engr. WENDELL SABULBERO on May 5, 1998 at their new office Villa
Gonzalo, Nazareth, Cagayan de Oro City, and evidenced by the signature on the face
of the original copy of the summons."
On June 9, 1998, defendant filed a Special Appearance with Motion to Dismiss 4
alleging that on May 6, 1998, "summons intended for defendant" was served upon
Engr. Wendell Sabulbero, an employee of defendant at its branch office at Cagayan
de Oro City. Defendant prayed for the dismissal of the complaint on the ground of
improper service of summons and for lack of jurisdiction over the person of the
defendant. Defendant contends that the trial court did not acquire jurisdiction over
its person since the summons was improperly served upon its employee in its
branch office at Cagayan de Oro City who is not one of those persons named in
Section 11, Rule 14 of the 1997 Rules of Civil Procedure upon whom service of
summons may be made.
Meanwhile, on June 10, 1998, plaintiff filed a Motion to Declare Defendant in Default
5 alleging that defendant has failed to file an Answer despite its receipt allegedly on
May 5, 1998 of the summons and the complaint, as shown in the Sheriff's Return.
On June 22, 1998, plaintiff filed an Opposition to Defendant's Motion to Dismiss 6
alleging that the records show that defendant, through its branch manager, Engr.
Wendell Sabulbero actually received the summons and the complaint on May 8,
1998 as evidenced by the signature appearing on the copy of the summons and not
on May 5, 1998 as stated in the Sheriff's Return nor on May 6, 1998 as stated in the
motion to dismiss; that defendant has transferred its office from Kolambog, Lapasan,
Cagayan de Oro to its new office address at Villa Gonzalo, Nazareth, Cagayan de
Oro; and that the purpose of the rule is to bring home to the corporation notice of
the filing of the action.
On August 5, 1998, the trial court issued an Order 7 denying defendant's Motion to
Dismiss as well as plaintiff's Motion to Declare Defendant in Default. Defendant was
given ten (10) days within which to file a responsive pleading. The trial court stated
that since the summons and copy of the complaint were in fact received by the
corporation through its branch manager Wendell Sabulbero, there was substantial

compliance with the rule on service of summons and consequently, it validly

acquired jurisdiction over the person of the defendant. cdasia
On August 19, 1998, defendant, by Special Appearance, filed a Motion for
Reconsideration 8 alleging that Section 11, Rule 14 of the new Rules did not
liberalize but, on the contrary, restricted the service of summons on persons
enumerated therein; and that the new provision is very specific and clear in that the
word "manager" was changed to "general manager", "secretary" to "corporate
secretary", and excluding therefrom agent and director.
On August 27, 1998, plaintiff filed an Opposition to defendant's Motion for
Reconsideration 9 alleging that defendant's branch manager "did bring home" to the
defendant-corporation the notice of the filing of the action and by virtue of which a
motion to dismiss was filed; and that it was one (1) month after receipt of the
summons and the complaint that defendant chose to file a motion to dismiss.
On September 4, 1998, defendant, by Special Appearance, filed a Reply 10
contending that the changes in the new rules are substantial and not just general
semantics.
Defendant's Motion for Reconsideration was denied in the Order dated November
20, 1998. 11
Hence, the present petition alleging that respondent court gravely abused its
discretion tantamount to lack or in excess of jurisdiction in denying petitioner's
motions to dismiss and for reconsideration, despite the fact that the trial court did
not acquire jurisdiction over the person of petitioner because the summons intended
for it was improperly served. Petitioner invokes Section 11 of Rule 14 of the 1997
Rules of Civil Procedure.
Private respondent filed its Comment to the petition citing the cases of Kanlaon
Construction Enterprises Co., Inc. vs. NLRC 12 wherein it was held that service upon
a construction project manager is valid and in Gesulgon vs. NLRC 13 which held that
a corporation is bound by the service of summons upon its assistant manager.
The only issue for resolution is whether or not the trial court acquired jurisdiction
over the person of petitioner upon service of summons on its Branch Manager.
When the complaint was filed by Petitioner on April 3, 1998, the 1997 Rules of Civil
Procedure was already in force. 14
Section 11, Rule 14 of the 1997 Rules of Civil Procedure provides that:
"When the defendant is a corporation, partnership or association organized under
the laws of the Philippines with a juridical personality, service may be made on the
president, managing partner, general manager, corporate secretary, treasurer, or inhouse counsel." (underscoring supplied).
This provision revised the former Section 13, Rule 14 of the Rules of Court which
provided that:
"SECTION 13.
Service upon private domestic corporation or partnership. If the
defendant is a corporation organized under the laws of the Philippines or a
partnership duly registered, service may be made on the president, manager,
secretary, cashier, agent, or any of its directors." (underscoring supplied).
Petitioner contends that the enumeration of persons to whom summons may be
served is "restricted, limited and exclusive" following the rule on statutory
construction expressio unios est exclusio alterius and argues that if the Rules of

Court Revision Committee intended to liberalize the rule on service of summons, it

could have easily done so by clear and concise language.
We agree with petitioner.
Earlier cases have uphold service of summons upon a construction project manager
15 ; a corporation's assistant manager 16; ordinary clerk of a corporation 17; private
secretary of corporate executives 18; retained counsel 19; officials who had charge
or control of the operations of the corporation, like the assistant general manager
20; or the corporation's Chief Finance and Administrative Officer 21. In these cases,
these persons were considered as "agent" within the contemplation of the old rule.
22 Notably, under the new Rules, service of summons upon an agent of the
corporation is no longer authorized. cdrep
The cases cited by private respondent are therefore not in point.
In the Kanlaon case, this Court ruled that under the NLRC Rules of Procedure,
summons on the respondent shall be served personally or by registered mail on the
party himself; if the party is represented by counsel or any other authorized
representative or agent, summons shall be served on such person. In said case,
summons was served on one Engr. Estacio who managed and supervised the
construction project in Iligan City (although the principal address of the corporation
is in Quezon City) and supervised the work of the employees. It was held that as
manager, he had sufficient responsibility and discretion to realize the importance of
the legal papers served on him and to relay the same to the president or other
responsible officer of petitioner such that summons for petitioner was validly served
on him as agent and authorized representative of petitioner. Also in the Gesulgon
case cited by private respondent, the summons was received by the clerk in the
office of the Assistant Manager (at principal office address) and under Section 13 of
Rule 14 (old rule), summons may be made upon the clerk who is regarded as agent
within the contemplation of the rule.
The designation of persons or officers who are authorized to accept summons for a
domestic corporation or partnership is now limited and more clearly specified in
Section 11, Rule 14 of the 1997 Rules of Civil Procedure. The rule now states
"general manager" instead of only "manager"; "corporate secretary" instead of
"secretary"; and "treasurer" instead of "cashier." The phrase "agent, or any of its
directors" is conspicuously deleted in the new rule.
The particular revision under Section 11 of Rule 14 was explained by retired
Supreme Court Justice Florenz Regalado, thus: 23
". . . the then Sec. 13 of this Rule allowed service upon a defendant corporation to
'be made on the president, manager, secretary, cashier, agent or any of its
directors.' The aforesaid terms were obviously ambiguous and susceptible of broad
and sometimes illogical interpretations, especially the word 'agent' of the
corporation. The Filoil case, involving the litigation lawyer of the corporation who
precisely appeared to challenge the validity of service of summons but whose very
appearance for that purpose was seized upon to validate the defective service is an
illustration of the need for this revised section with limited scope and specific
terminology. Thus the absurd result in the Filoil case necessitated the amendment
permitting service only on the in-house counsel of the corporation who is in effect an
employee of the corporation, as distinguished from an independent practitioner."
(underscoring supplied)
Retired Justice Oscar Herrera, who is also a consultant of the Rules of Court Revision
Committee, stated that "(T)he rule must be strictly observed. Service must be made
to one named in (the) statute . . .". 24

It should be noted that even prior to the effectivity of the 1997 Rules of Civil
Procedure, strict compliance with the rules has been enjoined. In the case of Delta
Motor Sales Corporation vs. Mangosing, 25 the Court held:
"A strict compliance with the mode of service is necessary to confer jurisdiction of
the court over a corporation. The officer upon whom service is made must be one
who is named in the statute; otherwise the service is insufficient. . . . .
The purpose is to render it reasonably certain that the corporation will receive
prompt and proper notice in an action against it or to insure that the summons be
served on a representative so integrated with the corporation that such person will
know what to do with the legal papers served on him. In other words, 'to bring home
to the corporation notice of the filing of the action.' . . . .
The liberal construction rule cannot be invoked and utilized as a substitute for the
plain legal requirements as to the manner in which summons should be served on a
domestic corporation. . . . ." (underscoring supplied).
Service of summons upon persons other than those mentioned in Section 13 of Rule
14 (old rule) has been held as improper. 26 Even under the old rule, service upon a
general manager of a firm's branch office has been held as improper as summons
should have been served at the firm's principal office. In First Integrated Bonding &
Ins. Co., Inc. vs. Dizon, 27 it was held that the service of summons on the general
manager of the insurance firm's Cebu branch was improper; default order could
have been obviated had the summons been served at the firm's principal office.
And in the case of Solar Team Entertainment, Inc. vs. Hon. Helen Bautista Ricafort, et
al. 28 the Court succinctly clarified that, for the guidance of the Bench and Bar,
"strictest" compliance with Section 11 of Rule 13 of the 1997 Rules of Civil Procedure
(on Priorities in modes of service and filing) is mandated and the Court cannot rule
otherwise, lest we allow circumvention of the innovation by the 1997 Rules in order
to obviate delay in the administration of justice. cdtai
Accordingly, we rule that the service of summons upon the branch manager of
petitioner at its branch office at Cagayan de Oro, instead of upon the general
manager at its principal office at Davao City is improper. Consequently, the trial
court did not acquire jurisdiction over the person of the petitioner.
The fact that defendant filed a belated motion to dismiss did not operate to confer
jurisdiction upon its person. There is no question that the defendant's voluntary
appearance in the action is equivalent to service of summons. 29 Before, the rule
was that a party may challenge the jurisdiction of the court over his person by
making a special appearance through a motion to dismiss and if in the same motion,
the movant raised other grounds or invoked affirmative relief which necessarily
involves the exercise of the jurisdiction of the court, the party is deemed to have
submitted himself to the jurisdiction of the court. 30 This doctrine has been
abandoned in the case of La Naval Drug Corporation vs. Court of Appeals, et al., 31
which became the basis of the adoption of a new provision in the former Section 23,
which is now Section 20 of Rule 14 of the 1997 Rules. Section 20 now provides that
"the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction
over the person of the defendant shall not be deemed a voluntary appearance." The
emplacement of this rule clearly underscores the purpose to enforce strict
enforcement of the rules on summons. Accordingly, the filing of a motion to dismiss,
whether or not belatedly filed by the defendant, his authorized agent or attorney,
precisely objecting to the jurisdiction of the court over the person of the defendant
can by no means be deemed a submission to the jurisdiction of the court. There
being no proper service of summons, the trial court cannot take cognizance of a
case for lack of jurisdiction over the person of the defendant. Any proceeding
undertaken by the trial court will consequently be null and void. 32

WHEREFORE, the petition is hereby GRANTED. The assailed Orders of the public
respondent trial court are ANNULLED and SET ASIDE. The public respondent Regional
Trial Court of Makati, Branch 132 is declared without jurisdiction to take cognizance
of Civil Case No. 98-824, and all its orders and issuances in connection therewith are
hereby ANNULLED and SET ASIDE.
SO ORDERED.

Norberto Quisumbing for defendant-appellant.

SYLLABUS
1.
COURTS; JURISDICTION; SUITS IN PERSONAM; JURISDICTION OVER
TEMPORARILY ABSENT RESIDENTS. In suits in personam, courts have jurisdiction
over residents temporarily out of the country.
2.
ID.; ID.; ID.; SUMMONS; SUBSTITUTED SERVICE UNDER SECTION 8, RULE 14,
APPLIES TO TEMPORARILY ABSENT RESIDENTS. In a suit in personam against a
resident of the Philippines temporarily absent therefrom, substituted service may be
validly effected under Section 8, Rule 14, Rules of Court, "(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." Said Section 8 is to be applied to all resident defendants - without
distinction as to whether the resident is physically present in this country or not.
3.
ID.; ID.; ID.; ID.; JUDGMENT ON SUBSTITUTED SERVICE UNDER SECTION 8,
RULE 14, VALID; REASON. A resident defendant may be charged by a judgment in
personam as a result of legal proceedings upon a method of service which is not
personal, which in fact may not become actual notice to him and which may be
accomplished in his lawful absence from the country. The rules do not require that
papers be served on defendant personally or a showing that the papers were
delivered to defendant by the person with whom they were left. A resident,
temporarily absent, usually leaves his affairs in the hands of a person who may
communicate with him. If the absent resident does not do so, he cannot protest.
4.
SUMMONS; SERVICE; EFFECTIVE WHEN MADE UPON ANOTHER PRIEST OF
SAME CONVENT. Where summons upon a parish priest, who is a temporarily
absent defendant, was served upon mother priest, presumably a responsible person
who lives in the same convent where defendant resides, the service is effective.
5.
ID.; ID.; SECTIONS 8 AND 18, RULE 14, COMPARED; MODES OF SERVICE;
SECTION 18 IS NOT SOLE MODE OF SERVICE ON TEMPORARILY ABSENT RESIDENT.
The statement in Section 18, Rule 14, Rules of Court that "service may, by leave of
court, be effected out of the Philippines" as under Section 17 referring to
extraterritorial service, does not mean that Section 18 is the sole provision that
governs summons upon a defendant temporarily absent in an action in personam.
Said statement in fact recognizes that Section 17 is but one of the modes of service.
The normal method of summoning one temporarily absent is by substituted service
under Section 8, for personal service outside the country and service by publication
are not ordinary means of summoning defendants.
6.
ID.; ID.; SUITS IN PERSONAM; SECTIONS 17 AND 18, RULE 14, WHEN
RESORTED TO. Service of summons in suits in personam under Sections 17 and
18, Rule 14, is more circuitous and is resorted to if defendant's dwelling house or
residence or place of business in this country is not known, or, if known, service
cannot be had under Section 8.
7.
JUDGMENTS; PRESUMPTION OF REGULARITY; NON QUIETA MOVERE. A
judgment, long final, enjoys the presumption of regularity, and unless stricken down
is entitled to respect. Non quieta movere. Public policy and sound practice demand
that, at the risk of occasional errors, judgments of courts should become final at
some definite date fixed by law. (Dy Cay vs. Crossfield & O'Brien, 38 Phil. 521, 526.)

[G.R. No. L-22997. March 15, 1968.]

PABLO C. MONTALBAN,
defendant-appellant.

ET

AL.,

plaintiffs-appellees,

Jose W. Diokno for plaintiffs-appellees.

vs.

GERARDO

MAXIMO,

8.
ID.; JUDGMENT BY DEFAULT; ANNULMENT OF; LACHES BARS ANNULMENT.
When defendant, after his return to this country, did not move to set aside the
default order, the default judgment for a big amount, and execution thereof until

after, by his own admission, two years and two months from his knowledge of the
judgment when levy and execution were made on his house, laches has set in to
prevent him from annulling the proceedings.

decision just transcribed, requesting prompt compliance therewith and suggesting

that he communicate with or personally see their lawyer, Jose W. Diokno, at the
latter's address, 332 Regina Building, Escolta, Manila.

9.
ID.; ID.; ID.; PREJUDICE TO PLAINTIFFS. Where defendant delayed in
annulling the court decision against him, plaintiffs may not be compelled to file a
fresh suit because prejudice, which could have been avoided by defendant, will be
caused the plaintiffs. The latter may have to search for their witnesses who, if found,
may no longer be able to present a narrative as accurate as before; other evidence
may have dissipated. The march of time is truth in flight. These give life to the
salutary policy on which laches is founded.

December 20, 1959. Defendant, through his legal counsel, Dr. Nicanor T. Santos,
answered the foregoing letter expressing regret that he could not comply with
plaintiffs' request, because he (defendant) was not aware of the said civil case, and
that, in the criminal action arising out of the same incident, said defendant was
acquitted by the Municipal Court of Manila. 3

DECISION
SANCHEZ, J p:
Chronologically, following are the events that spawned the present case:
August 15, 1958. Plaintiffs commenced suit 1 against Fr. Gerardo Maximo who,
according to the complaint, was residing at the parish church at Concepcion,
Malabon, Rizal. Plaintiffs' cause of action for damages sprang from a motor vehicle
accident which occurred at Padre Faura St., Manila, on December 16, 1957. Paul
Hershell Montalban, son of plaintiffs, suffered injuries.
August 15, 1958. On this same day that the complaint was filed, summons was
served on defendant Fr. Gerardo Maximo at the parish church of Concepcion,
Malabon, Rizal, through Fr. Arsenio Bautista a priest in the same parish church.
August 23, 1958. Fr. Arsenio Bautista sent a letter (dated August 21) to Macario M.
Ofilada, Clerk of Court of the Court of First Instance of Manila, informing him that
defendant Fr. Gerardo Maximo left for Europe on August 7, and "will be back on the
first week of November." Actually, Fr. Maximo returned from abroad "about the
second week of October, 1958." 2

January 14, 1960. Deputy Sheriff Liberato C. Manalo of Rizal notified defendant of
the issuance of the writ of execution dated January 7, 1960, and demanded payment
of the amount set forth therein. The Sheriff's return to the writ shows that in
response to such demand, defendant alleged that he was then "financially hard up,"
4 and that the Sheriff found no property that could be subject to execution.
January 30, 1962. An alias writ of execution was issued. Copy thereof was received
by defendant on February 9, 1962.
February 1, 1962. The Deputy Sheriff attached and levied on a residential house
located in Caloocan City and purportedly belonging to defendant.
February 20, 1962. Two years and two months after defendant admittedly learned of
the lower court's decision from counsel for plaintiffs herein, said defendant, by
counsel, filed a verified motion in the same case praying for the annulment of the
entire proceedings. His ground is this: Summons was not duly served upon him "as
provided under Sec. 7, Rule 7 of the Rules of Court"; 5 accordingly, the lower court
"did not acquire jurisdiction over his person", and "the trial and decision by default"
are "null and void," 6
March 3, 1962. The court denied this motion.
March 24, 1962. Defendant's move to reconsider was rejected by the court.

September 20, 1958. The lower court declared defendant in default, on plaintiffs'
motion of September 13, 1958.

Hence, this appeal from the orders of March 3 and March 24, 1962, duly certified to
this Court by the Court of Appeals.

June 8, 1959. Upon plaintiffs' evidence, the court rendered judgment sentencing
defendant to:

September 2, 1965. After the case was submitted for decision, defendant's lawyer
informed this Court of the death of defendant on August 1, 1965.

"1.
Pay plaintiff Paul Hershell Montalban the amount of P10,000.00 as actual
damages for loss of his spleen;

October 18, 1967. Following extensive efforts to have the deceased defendant
substituted by any of his heirs or the executor or administrator of his estate, which
were to no avail, this Court appointed the Clerk of Court of the Court of First Instance
of Manila, representative of the deceased defendant.

2.
Pay plaintiff Paul Hershell Montalban the amount of P10,000.00 for loss or
impairment of earning capacity, talents and physical strength;
3.
Pay plaintiff Paul Hershell Montalban the amount of P5,000.00 as moral
damages;
4.
Pay plaintiffs Pablo C. Montalban and Regina Barretto the amount of
P5,000.00 as moral damages;
5.

Pay plaintiffs the amount of P1,000.00 as exemplary damages; and

6.
Pay plaintiffs attorney's fees [in] the amount of P3,000.00 and the cost of
litigation."
December 16, 1959. Plaintiffs themselves wrote defendant Fr. Gerardo Maximo, at
the Malabon Catholic Church, informing the latter of the lower court's decision,
giving the data: "Re Civil Case No. 37202 (in which the foregoing judgment was
rendered) Montalban vs. Maximo," quoting therein the dispositive part of the

1.
A question of transcendental importance which necessarily involves an
inquiry into procedural due process is whether summons in a suit in personam
against a resident of the Philippines temporarily absent therefrom may be validly
effected by substituted service under Section 8, Rule 14 (formerly Section 8, Rule 7)
of the Rules of Court. A head on collision of views becomes inevitable considering
the diametrically opposing positions taken by plaintiffs, on the one hand, and
defendant, on the other. For, plaintiffs make the point that even with defendant
temporarily abroad, substituted service is valid under Section 8 by leaving a copy of
the summons "at the defendant's dwelling house or residence with some person of
suitable age and discretion then residing therein."
Plaintiffs argue that if the ordinary method prescribed by the rules, that is, personal
service under Section 7, Rule 14, is not feasible, then the substituted service in
Section 8 aforesaid comes into play. Section 8 says:

"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."

for the American rule that declares substituted service binding on absent residents.
The leading case of Milliken vs. Meyer, 14 furnishes the rationale:

"SEC. 18.
Residents temporarily out of the Philippines. When an action is
commenced against a defendant who ordinarily resides within the Philippines, but
who is temporarily out of it, service may, by leave of court, be effected out of the
Philippines, as under the preceding section." 7

" . . . the authority of a state over one of its citizens is not terminated by the mere
fact of his absence from the state. The state which accords him privileges and
affords protection to him and his property by virtue of his domicile may also exact
reciprocal duties. 'Enjoyment of the privileges of residence within the state and the
attendant right to invoke the protection of its laws, are inseparable' from the various
incidences of state citizenship . . . The responsibilities of that citizenship arise out of
the relationship to the state which domicile creates. That relationship is not
dissolved by mere absence from the state. The attendant duties, like the rights and
privileges incident to domicile, are not dependent on continuous presence in the
state. One such incident of domicile is amenability to suit within the state even
during sojourns without the state, where the state has provided and employed e
reasonable method for apprising such an absent party of the proceedings against
him."

Section 17 referred to in Section 18 (Section 17, Rule 7 in the old Rules) in turn
states:

There should be no doubt, therefore, that in suits in personam, courts have

jurisdiction over residents temporarily out of the country.

"SEC. 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."

This brings us to the question of procedural due process. Substituted service such as
one contemplated in Section 8 upon a temporarily absent resident, it has been held,
is wholly adequate to meet the requirements of due process. 15 The constitutional
requirement of due process exacts that the service be such as may be reasonably
expected to give the notice desired. Once the service provided by the rules
reasonably accomplishes that end, the requirement of justice is answered, the
traditional notions of fair play are satisfied; due process is served.

Upon the other hand, defendant advances the theory that in a situation like the
present, where defendant was temporarily abroad, the sole and exclusive method of
service of summons in a case in personam is that set forth in Section 18, Rule 14 of
the Rules (formerly Section 18, Rule 7), which reads:

Historically, in its common-law origin, the jurisdiction of courts to render judgments

in personam was grounded on their de facto power over defendant's person.
Jurisdiction was based on the power to seize and imprison defendant. 8 If a
defendant was absent from the territory, the fact that he was a citizen would not
enable the court's officers to seize him and service could not represent this power. 9
Hence, his presence within the territorial jurisdiction was a pre- requisite to the
rendition of a judgment personally binding against him. Anglo-American law then
emphasized the power concept of jurisdiction. 10
Continental law, however, was somewhat different. It had two fundamental
principles of Roman origin: (1) in suits in personam and those relating to movables,
courts of the domicile of the defendant have general jurisdiction actor rei forum
sequitur; and (2) in actions concerning immovables, the courts of the situs have
exclusive jurisdiction. 11
In the development of the law, the variance between Anglo- American law and
continental law became "less and less clear-cut" because "American law has had to
yield to the increasing necessity of enlarging more and more the catalogue of
forums available to the plaintiff." 12
Thus it is, that American cases forged the doctrine, now long recognized, that
domiciliaries of a state, though temporarily out of its territorial jurisdiction, are
always amenable to suits in personam therein. 13 And this precept is the foundation

In American jurisprudence, whether a defendant be in another state under the

federal system or is abroad in Europe, 16 substituted service is still considered to be
valid. 17 The language in Milliken vs. Meyer, supra, is expressive: "Its adequacy so
far as due process is concerned is dependent on whether or not the form of
substituted service provided for such cases and employed is reasonably calculated
to give him actual notice of the proceedings and an opportunity to be heard. If it is,
then traditional notions of fair play and substantial justice (McDonald vs. Mabee,
supra) implicit in due process are satisfied." 18
When the framers of our Rules adapted Section 8, it is to be implied that they
intended to give the provision the same meaning shaped out by the jurisprudence of
the jurisdiction from whence it was patterned. Section 8 is to be viewed in the same
context it is understood in the American legal system. The word "defendant" in that
provision is to be construed as including any resident of this country. By comparative
construction, Section 8 is to be applied to all resident defendants without
distinction as to whether he is physically present in this country or not.
Chief Justice Moran shares this view. Commenting on Section 18, Rule 14, he states:
"Since the defendant is residing in the Philippines, jurisdiction over his person may
be acquired by Philippine courts by substituted service of summons under section 8.
But extraterritorial service is allowed also by leave of court according to the above
provision [Section 18]." 19 Justice Martin regards the word "residence" in Section 8
as "the place where the person named in the summons is living at the time when
the service is made, even though he may be temporarily out of the state at the
time." 20
This construction is but fair. It is in accord with substantial justice. The burden on a
plaintiff is not to be enlarged with a restrictive construction as desired by defendant
here. Under the rules, a plaintiff, in the initial stage of suit, is merely required to
know the defendant's "dwelling house or residence" or his "office or regular place of
business" and no more. He is not asked to investigate where a resident defendant

actually is, at the precise moment of filing suit. Once defendant's dwelling house or
residence or office or regular place of business is known, he can expect valid service
of summons to be made on "some person of suitable age and discretion then
residing" in defendant's dwelling house or residence, or on "some competent person
in charge" of his office or regular place of business. By the terms of the law, plaintiff
is not even duty-bound to see to it that the person upon whom service was actually
made delivers the summons to defendant or informs him about it. The law presumes
that for him.
It is immaterial then that defendant does not in fact receive actual notice. This will
not affect the validity of the service. 21 Accordingly, the defendant may be charged
by a judgment in personam as a result of legal proceedings upon a method of
service which is not personal, "which in fact may not become actual notice to him,"
and which may be accomplished in his lawful absence from the country. 22 For, the
rules do not require that papers be served on defendant personally or a showing
that the papers were delivered to defendant by the person with whom they were
left. 23
Reasons for the views just expressed are not wanting. A man temporarily absent
from this country leaves a definite place of residence, a dwelling where he lives, a
local base, so to speak, to which any inquiry about him may be directed and where
he is bound to return. Where one temporarily absents himself, he leaves his affairs
in the hands of one who may be reasonably expected to act in his place and stead;
to do all that is necessary to protect his interests; and to communicate with him
from time to time any incident of importance that may affect him or his business or
his affairs. It is usual for such a man to leave at his home or with his business
associates information as to where he may be contacted in the event a question that
affects him crops up. If he does not do what is expected of him, and a case comes
up in court against him, he cannot in justice raise his voice and say that he is not
subject to the processes of our courts. He cannot stop a suit from being filed against
him upon a claim that he cannot be summoned at his dwelling house or residence or
his office or regular place of business.
Not that he cannot be reached within a reasonable time to enable him to contest a
suit against him. There are now advanced facilities of communication. Long distance
telephone calls and cablegrams make it easy for one he left behind to communicate
with him.
In the light of the foregoing, we find ourselves unwilling to concede that substituted
service provided in Section 8 may be down- graded as an ineffective means to bring
temporarily absent residents within the reach of our courts.
As we go back to the case at hand, there is the temporarily absent defendant who
was a parish priest. Summons upon him was served upon Fr. Bautista who lived in
the same convent where defendant resided. Fr. Bautista, we must assume, is a
responsible person. Service upon him is effective.
2.
The view we take of this case sweeps away defendant's argument that
Section 18 is the sole provision that governs summons upon a defendant
temporarily absent in an action in personam, as here. Indeed, defendant's posture
strikes at the very language employed by this reglementary provision cited by him.
The word "may" in the statement in Section 18 that "service may, by leave of
court, be effected out of the Philippines," as under Section 17 will not support the
deduction, without more, that Section 18 is the only provision controlling in this
case. On the contrary, the phraseology of the rule is a recognition of the fact that
substituted service out of the Philippines under Section 17 is but one of the
modes of effective service to bring a defendant in court. And upon the basic
concepts under which our rules governing processes operate, the normal method of
service of summons on one temporarily absent is by substituted service set forth in

Section 8. And this, because personal service outside the country and service by
publication are not ordinary means of summoning defendants.
In practical terms, we perceive that in suits in personam the more circuitous
procedure delineated in Sections 17 and 18 is resorted to by a plaintiff if defendant's
dwelling house or residence or place of business in this country is not known; or, if
known, service upon him cannot be had thereat upon the terms of Section 8. Here,
since personal service is impossible, resort to substituted service becomes a
necessity. A comparison between the service in Section 8 and that in Sections 17
and 18 is beside the point. They both provide for substituted service. Anyway, as
Goodrich observed: "[I]f a substitute is to be made where an actual personal service
is impossible, 'the best is none too good.'" 24
3.
The judgment has long since become final. It enjoys the presumption of
regularity. It is, unless stricken down, entitled to respect. Non quieta movere.
Because "[p]ublic policy and sound practice demand that, at the risk of occasional
errors, judgments of courts should become final at some definite date fixed by law."
25
The norm of conduct observed by defendant would not, we believe, tilt the scales of
justice in his favor. We go to the background facts. Logic and common sense tell us
that Fr. Bautista who received the summons and who took interest in the case must
have informed defendant one way or another of the suit, at the latest upon his
return in October, 1958. By then there was still time for him to move to set aside the
default order of September 20, 1958. Defendant did not move. It is well to
remember also that judgment by default was not rendered against defendant until
June 8, 1959, or almost nine (9) months after the default order was issued. Again,
defendant did nothing. According to defendant, he learned of that judgment on
December 20, 1959. The full impact of the judgment totalling P34,000 must have by
then left an indelible mark in his mind. A judgment of a court of justice is no piddling
matter. It should not be trifled with. Especially so when the amount is big, as it is
here. That same day December 20 his attorney took a hand on the matter,
wrote back plaintiffs refusing payment of the claim. The first writ of execution was
served on defendant on January 14, 1960. That time he did not pay, because
according to the Sheriff's return, defendant then stated that he was "financially hard
up."
Defendant did not bestir himself until February 20, 1962, i.e., not less than two
years and two months after he learned-by his own admission-of the judgment. And,
that was shortly after levy was made on his house in Caloocan. It is in this factual
environment that then CFI Judge Magno Gatmaitan, in his order of March 24, 1962,
correctly observed that 'the Court once again believes that this solution (denial of
the motion to reconsider the appealed order) is just because of the apparent
intentional inaction of defendant since 20 December, 1959."
Indeed, it was not right that defendant should have supinely sat on the decision, and
deliberately disregarded the import thereof. Neither was it correct for him to have
waited so long, slept on his rights, and only put plaintiffs to task when his own
property was threatened because of the levy and execution thereon.
The decision below may not thus be annulled. Plaintiffs may not be compelled to file
a fresh suit. Because, prejudice to plaintiffs, which could have been avoided by
defendant, will become a reality. The additional expense, trouble and anxiety need
not be essayed. The accident took place on December 16, 1957. The lower court's
decision made mention of two eyewitnesses and two doctors of medicine who
testified as to injuries. To bring back those witnesses to court becomes a serious
problem. Plaintiffs will have to search for them and if found, they may not be able to
present to the court a narrative as accurately as they had done before. Time has an
unfortunate tendency of obliterating occurrences from a witness' memory.

Recollections are apt to be blurred. Human memory can even be treacherous. Lapse
of time may also carry with it dissipation of other evidence. Surely, there is great
validity to the statement that the march of time is truth in flight. 26 These, in broad
outlines, give life to the salutary policy on which laches is founded.
WHEREFORE, the orders appealed from dated March 3, 1962 and March 24, 1962 are
hereby affirmed.
Costs against defendant-appellant. So Ordered.

FIRST DIVISION
[G.R. No. L-40945. November 10, 1986.]
IGMEDIO AZAJAR, petitioner, vs. THE HONORABLE COURT OF APPEALS (Second
Division) and CHAM SAMCO & SONS, INC., respondents.
SYLLABUS
1.
REMEDIAL LAW; CIVIL PROCEDURE; MOTIONS; MUST BE SET HEARING WITH
NOTICE TO PARTIES CONCERNED; FAILURE TO COMPLY WITH REQUIREMENT, FATAL;
EXCEPTIONS. It was wrong, of course, for the private respondent to have failed to
set its motion to dismiss for hearing on a specified date and time. The law explicitly
requires that notice of a motion shall be served by the applicant to all parties
concerned at least three (3) days before the hearing thereof, together with a copy of
the motion, and of any affidavits and other papers accompanying it, and that the
notice shall be directed to the parties concerned, stating the time and place for the
hearing of the motion. The uniform holding of this Court has been that a failure to
comply with the requirement is a fatal flaw. Such notice is required to avoid
surprises upon the opposite party and give the latter time to study and meet the
arguments of the motion, as well as to determine or make determinable the time of
submission of the motion for resolution. Where, however, the defendant entertained
for plausible reasons the erroneous notion that a hearing on his motion was
dispensable and he moreover had pleaded meritorious defenses which, if proven,
would defeat the plaintiff's claim, considering also the desirability that cases should
be determined on the merits after giving all the parties full opportunity to ventilate
their causes and defenses, rather than on technicality or procedural imperfections,
the ends of justice are better served by brushing aside technicality and affording the
defendant its day in court.
DECISION
NARVASA, J p:

Petitioner seeks reversal of the Resolution of the respondent Court of Appeals (now
Intermediate Appellate Court) dated March 25, 1975 setting aside the judgment by
default rendered against private respondent by the Court of First Instance, and
directing that said respondent be allowed to file its answer to the complaint and
after joinder of issues, trial be had and judgment rendered on the merits.
This case originated from a complaint filed by petitioner Igmedio Azajar against
respondent Cham Samco and Sons, Inc. in the Court of First Instance (now Regional
Trial Court) of Camarines Sur. 1 Azajar's claim, briefly, is that he had purchased from
defendant (hereafter referred to simply as Cham Samco), thru the latter's agent, 100
Kegs of nails of various sizes, specified in one of Cham Samco's printed order forms,
and had given to the agent P18,000.00 in full payment thereof; but in breach of
contract, Cham Samco had offered to deliver only a part of the quantity ordered.
Cham Samco filed a motion to dismiss on two grounds: (1) failure of the complaint to
state a cause of action the complaint's language indicating not a perfected sale
but merely an "offer to buy by plaintiff that was partly accepted by defendant," and
failing to show that as explicitly required by the order form, prices had been
confirmed by Cham Samco's "Manila Office," 2 and (2) that venue was improperly
laid Cham Samco's invariable condition in transactions of this nature, as Azajar
well knew from many such transactions in the past, being that "any legal action
thereon must be instituted in the City of Manila." 3
The motion to dismiss contained a notice addressed to the Clerk of Court reading as
follows:
"The Clerk of Court
Court of First Instance of Camarines Sur
Naga City
S i r:
Please submit the foregoing motion to the Court for its consideration and resolution
immediately upon receipt thereof.
Makati, Rizal for Naga City, February 4, 1974
(SGD) POLO S. PANTALEON
Copy furnished:
Atty. Augusto A. Pardalias
Naga City

party concerned (as required by Section 5, Rule 15 of the Rules of Court) and is
without the requisite notice of time and place of hearing, that a motion "with a
notice of hearing (a) directed to the Clerk of Court not to the parties; and (b) merely
stating that the same be "submitted for resolution of the Honorable Court upon
receipt thereof," copy of which motion was duly furnished to and received by "the
adverse counsel, is fatally defective and did not toll the running of the period to
appeal" (Cladera v. Sarmiento, 39 SCRA 552). Consequently, inasmuch as the
"motion to dismiss in this case is a mere scrap of paper because it is without the
requisite notice of time and place of hearing (Manakil v. Hevilla, 42 Phil. 81; Roman
Catholic Bishop v. Unisan, 44 Phil. 866; Director of Lands v. Sanz, 45 Phil. 117; and
Manila Surety v. Bath, 14 SCRA 435), the filing thereof did not suspend the running
of the period to file the required responsive pleading. That from February 4, 1974 to
February 21, 1974, seventeen (17) days had lapsed and defendant failed to file any
responsive pleading. . . . " 5
Then on March 30, 1974, the Trial Court rendered judgment by default against
defendant Cham Samco ordering it:
" . . . to deliver immediately to the plaintiff the nails mentioned in the Order Form
No. 9020 (Exhibit A); (2) requiring defendant to pay plaintiff the sum of P15,000.00
by way of actual damages, the sum of P10,000.00 by way of consequential
damages, plus interest in both instances, and the additional sum of P5,000.00, for
exemplary damages; (3) ordering defendant to pay plaintiff the sum of P7,500.00 for
attorney's fees and related expenses of litigation; and (4) to pay the costs."
Cham Samco filed a Motion for New Trial on April 9, 1974. It contended that its
failure to observe the rules governing notice of motions was due to excusable
negligence, "because the grounds alleged in the Motion to Dismiss were all in such
nature and character that addressed themselves to a motu proprio resolution by the
court and thus rendered a hearing dispensable." 6 It also alleged certain defenses
available to it which if duly alleged and proven, would absolve it from all liability. 7
This motion was denied.
Cham Samco went to the Court of Appeals on certiorari asserting that the trial court
acted with grave abuse of discretion amounting to lack of jurisdiction in declaring it
in default and then rendering judgment by default 8 The petition was dismissed for
lack of merit by the Court of Appeals on November 20, 1974. 9
But on motion for reconsideration seasonably presented, the Court of Appeals
reversed itself. By Resolution dated March 25, 1975, 10 it set aside the Trial Court's
order of default of February 22, 1974, judgment by default of March 13, 1974, and
Order dated June 4, 1974 denying Cham Samco's motion for new trial, and directed
the lower Court to allow Cham Samco to file its answer to the complaint and upon
due joinder of issues, to try and decide the case on the merits. LibLex

NF-927" 4

The Court held that:

It is this notice that has given rise to the controversy at bar.

" . . . (t)he notice in the motion which was addressed to the clerk of court asking him
to submit the motion for the consideration of the court is a substantial compliance
with the provision of section 3 Rule 16 of the Rules of Court. Verily under the said
rule, the Court has the alternative of either hearing the case or deferring the hearing
and determination thereof until the trial on the merits. Thus upon the filing of said
motion the court should have set the motion for hearing or outrightly deny the
motion, or otherwise postpone the hearing until the trial on the ground that the
grounds thereof do not appear to be indubitable. The prompt filing and apparently
valid grounds invoked in the motion are not the acts and declarations of a defaulting
party."

Contending that such a notice was fatally defective and rendered the Motion to
Dismiss incapable of tolling the period to answer, Azajar filed a motion dated
February 20, 1974 to declare Cham Samco in default, which the Court granted. By
Order dated February 22, 1974 the Court pronounced Cham Samco in default and
allowed Azajar to present evidence ex-parte. The Court justified the order of default
in this wise:
"On February 4, 1974, defendant thru counsel, instead of filing an answer to the
complaint, filed a "Motion to Dismiss" which, in legal contemplation, is not a motion
at all because the "notice" therein is directed to the Clerk of Court instead of to the

" . . . (E)ven assuming that the declaration of default of the petitioner was in order
we find that the trial court committed a grave abuse of discretion when it denied the
motion for new trial that was filed by the petitioner not only on the ground of
excusable negligence we have above discussed but also on the ground that it has a
meritorious defense." and
" . . . (E)xcessive damages have been awarded to the private respondent. In addition
to ordering the petitioner to deliver to the private respondent the nails ordered by
the latter, the petitioner was also ordered to pay not only P15,000 actual damages
for profits that the private respondent could have earned but also consequential
damages of P10,000 for the unrealized profits that the said earnings and capital of
the plaintiff could have earned, plus interest in both instances, exemplary damages
of P5,000 and P7,500 for attorney's fees and related expenses of litigation. Thus for
the capital of respondent of P18,100.00 in the purchase of the nails, the petitioner
was ordered to pay damages of a total of P37,500.00, which including the interest
awarded can amount to over P40,000, more than double the value of the said
investment of respondent. Under Section 1, Rule 37 of the Rules of Court award of
excessive damages could be a ground for new trial."
The Court concluded its opinion with the observation that "the ends of justice would
be better served in this case if we brush aside technicality and afford the petitioner
its day in court."
It was wrong, of course, for Cham Samco to have failed to set its motion to dismiss
for hearing on a specified date and time. The law explicitly requires that notice of a
motion shall be served by the appellant to all parties concerned at least three (3)
days before the hearing thereof, together with a copy of the motion, and of any
affidavits and other papers accompanying it; 11 and that the notice shall be directed
to the parties concerned, stating the time and place for the hearing of the motion.
12 The uniform holding of this Court has been that a failure to comply with the
requirement is a fatal flaw. 13 Such notice is required to avoid surprises upon the
opposite party and give the latter time to study and meet the arguments of the
motion, as well as to determine or make determinable the time of submission of the
motion for resolution. 14
Cham Samco quite frankly admits its error. It pleads however that under the
circumstances the error be not regarded as irremediable or that it be deemed as
constituting excusable negligence, warranting relief. It argues that legal and logical
considerations, which it took to be tenable, caused it to theorize that a hearing on
the motion was dispensable. It also adverts to its possession of affirmative defenses
in addition to those set out in its motion to dismiss which, if ventilated and
established at the trial, would absolve it from all liability under the complaint.
Cham Samco's belief that it was not necessary that its motion to dismiss be set for
hearing was avowedly engendered by two factors, namely:
1)
the fact that while the Rules of Court "specify the motions which can be
heard only with prior service upon adverse parties," 15 said Rules "do not point out
which written motions may be ex parte, preferring, it appears, to leave to the court,
in motions other than those specified, the discretion either to ex parte resolve . . . or
to call the parties to a hearing . . . ; 16 and
2)
the further fact that its motion to dismiss was based on two grounds on
which a hearing was superfluous, the first, failure of the complaint to state a cause
of action, being determinable exclusively from the allegations of the complaint and
no evidence being allowable thereon; and the second, that venue is improperly laid,
being resolvable exclusively on the basis of documents annexed to the motion. 17

These considerations, to be sure, did not erase movant's duty to give notice to the
adverse party of the date and time of the hearing on its motion, the purpose of said
notice being, as already stressed, not only to give the latter time to oppose the
motion if so minded, but also to determine the time of its submission for resolution.
Without such notice, the occasion would not arise to determine with reasonable
certitude whether and within what time the adverse party would respond to the
motion, and when the motion might already be resolved by the Court. The duty to
give that notice is imposed on the movant, not on the Court. LexLib
Withal, the reasons for Cham Samco's erroneous notion of the dispensability of a
hearing on its motion to dismiss are not utterly without plausibility. This
circumstance, taken together with the fact, found by the Intermediate Appellate
Court and not disputed by petitioner Azajar, that Cham Samco has meritorious
defenses which if proven would defeat Azajar's claim against it, and the eminent
desirability more than once stressed by this Court that cases should be determined
on the merits after full opportunity to all parties for ventilation of their causes and
defenses, rather than on technicality or some procedural imperfections, 18 all
conduce to concurrence with the Court of Appeals that "the ends of justice would be
better served in this case if we brush aside technicality and afford the petitioner its
day in court."
WHEREFORE, the Resolutions of the Court of Appeals of pealed from, are affirmed.
Costs against petitioner.
SO ORDERED.