Summons Definition and purpose Duty to issue, Rule 14, Secs 1, 5 Section 1. Clerk to issue summons.

Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants. Sec. 5. Issuance of alias summons. If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiff's counsel, stating the reasons for the failure of service, within five (5) days therefrom. In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons. Form Content, Rule 14, Sec. 2 Sec. 2. Contents. The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain: (a) the name of the court and the names of the parties to the action; (b) a direction that the defendant answer within the time fixed by these Rules; (c) a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the summons. If with leave of court, Rule 14, Sec. 17 Sec. 17. Leave of court. Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. Who serves, Rule 14, Sec. 3 Sec. 3. By whom served. The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons. On whom, In general, Rule 14, Sec 1, 6 Section 1. to the defendants. Sec. 6. Service in person on defendant. Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. Entity without juridical personality, Rule 14, Sec. 8 Sec. 8. Service upon entity without juridical personality. When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought. Associations, Rule 14, Sec. 9 (?) Sec. 9. Service upon prisoners. When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose.

Domestic, Rule 14, Sec. 11 Sec. 11. Service upon domestic private juridical entity. When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel. Rebollido v. CA, 170 SCRA 800 (1989) REBOLLIDO VS CA (PEPSICO) 170 SCRA 800 GUTIERREZ, J.; February 28, 1989 NATURE Petition for certiorari to review CA decision FACTS - Petitioners were involved in a vehicular accident involving a truck trailer owned by Pepsi Cola Bottling Company on March 1, 1984. - Rebollido and Valencia, owner and driver, respectively, of the school bus which got into the accident, filed an action for quasi delict and damages on August 7, 1984. - On September 21, 1984, the sheriff served summons to the defendants. Said summons was received by Nanette Sison who represented herself as authorized to receive the court process being a secretary at the legal department of Pepsi Cola. - Pepsi Cola failed to file an answer and was later declared in default. The lower court heard the case ex-parte and adjudged the defendants jointly and severally liable for damages in a decision rendered on June 24, 1985. - On August 5, 1985, when the default judgment became final and executory, the petitioners filed a motion for execution, a copy of which was received no longer by the defendant Pepsi Cola but by private respondent PEPSICO, Inc., on August 6, 1985. - As it turned out, Pepsi Cola was dissolved on March 2, 1984 and PEPSICO assumed in a written undertaking to settle Pepsi Colas debts, liabilities and obligations. (It should noted that the accident occurred one day before the dissolution of the corporation.) - Realizing that the judgment of the lower court would eventually be executed against it, respondent PEPSICO, Inc., opposed the motion for execution and moved to vacate the judgment on the ground of lack of jurisdiction. The private respondent questioned the validity of the service of summons to a mere clerk. It invoked Section 13, Rule 14 of the Rules of Court on the manner of service upon a private domestic corporation and Section 14 of the same rule on service upon a private foreign corporation. The motion was denied by the lower court ratiocinating that that under Section 122 of the Corporation Code, the defendant continued its corporate existence for three (3) years from the date of dissolution. - PEPSICO filed a special civil action for certiorari and prohibition with the CA to annul and set aside the judgment of the lower court, and its order denying the motion to vacate judgment, for having been issued without jurisdiction. CA granted the petition ruling that there was no valid service of summons. The Appelate Court however stated that the judgment tendered by the lower court after Pepsis dissolution is a liability of PEPSICO within the contemplation of the undertaking earlier mentioned. The CA remanded the case to the lower court and ordered that PEPSICO be summoned and be given its day in court. - Petioners filed this petition with the SC. ISSUES 1. WON Pepsi Cola, the dissolved corporation, is the real party in interest to whom summons should be served in the civil case for damages

2. WON there was valid service of summons through Nenette Sison, allegedly the secretary of the legal department of Pepsi Cola. If there was valid service of summons upon Pepsi Cola, the issue arises as to whether or not such service -validly vested jurisdiction on the lower court over the person of the respondent corporation. HELD 1. Yes. In the case at bar, the right of action of the petitioners against Pepsi Cola and its driver arose not at the time when the complaint was filed but when the acts or omission constituting the cause of action accrued, i.e. on March 1, 1984, which is the date of the accident and when Pepsi Cola allegedly committed the wrong. 2. Yes. - At the time of the issuance and receipt of the summons, Pepsi Cola was already dissolved. The Court is of the opinion that service is allowed in such a situation. In the American case of Crawford v. Refiners Co-operative Association, Incorporation (71 NM 1, 375 p 2d 212 [1962]), it was held that a "defendant corporation is subject to suit and service of process even though dissolved." Nowhere in the Corporation Code is there any special provision on how process shall be served upon a dissolved defendant corporation. The absence of any such provision, however, should not leave petitioners without any remedy, unable to pursue recovery for wrongs committed by the corporation before its dissolution. Since our law recognizes the liability of a dissolved corporation to an aggrieved creditor, it is but logical for the law to allow service of process upon a dissolved corporation. Otherwise, substantive rights would be lost by the mere lack of explicit technical rules. (Please note that under the Corporation Code, Section 122, a dissolved corporation shall nevertheless be continued as a body corporate for three (3) years after the time when it would have been so dissolved, for the purpose of prosecuting and defending suits by or against it and enabling it to settle and close its affairs, to dispose of and convey its property and to distribute its assets, but not for the purpose of continuing the business for which it was established.) - The Rules of Court on service of summons upon a private domestic corporation is also applicable to a corporation which is no longer a going concern. Section 13, Rule 14, mandates: "Service upon private domestic corporation or partnershjp.-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." Therefore, service upon a dissolved corporation may be made through any of the persons enumerated in Section 13, Rule 14. To be sure, this Court has ruled that service on a mere employee or clerk of a corporation is not sufficient. The persons who should receive the summons should be those named in the statute; otherwise, those who have charge or control of the operations of the company or who may be relied upon to deliver the papers served upon them. - The fact that the summons was received through Miss Sison is not disputed by the parties. For which corporation was she acting? After the dissolution and during the pendency of the case below, private respondent PEPSICO held office at the same address of Pepsi Cola where Miss Sison was working. The petitioners argue that summons was served through the secretary of the legal department who acted as agent of Pepsi Cola. On the other hand, it is contended by private respondent PEPSICO that Miss Sison works for its legal department and not of Pepsi Cola. So that, private respondent avers, there was no valid service upon Pepsi Cola since Miss Sison acted in PEPSICO's behalf. (p. 64, Rollo) Even assuming this contention to be true, the private respondent had the obligation to act upon the summons

received and to defend Pepsi Cola pursuant to the undertaking it executed on June 11, 1983. Whomsoever Miss Sison was acting for in receiving the summons there is no question that the notice of the action was promptly delivered either to Pepsi Cola or PEPSICO with whom she is admittedly connected. - It is clear that private respondent is aware that the liabilities of Pepsi Cola are enforceable against it upon the dissolution of Pepsi Cola. As correctly stated by the Court of Appeals, by virtue of the assumption of the debts, liabilities and obligations of Pepsi Cola, "any judgment rendered against Pepsi Cola after its dissolution is a 'liability' of PEPSICO, Inc., within the contemplation of the undertaking." Hence it was incumbent upon respondent PEPSICO, Inc., to have defended the civil suit against the corporation whose liabilities it had assumed. Failure to do so after it received the notice by way of summons amounts to gross negligence and bad faith. The private respondent cannot now invoke a technical defect involving improper service upon Pepsi Cola and alleged absence of service of summons upon it. There is the substantive right of the petitioners to be considered over and above the attempt of the private respondent to avoid the jurisdiction of the lower court. DISPOSITIVE The petition is hereby GRANTED. The decision of the Court of Appeals is REVERSED and SET ASIDE. The judgment of the lower court and its order denying the motion to vacate judgment are REINSTATED. Summa Trading v. Avendano, 146 SCRA 197 (1986) Dapat Summit Trading and Development Corporation vs. Avendao, 135 SCRA 397 [1985] SUMMIT TRADING AND DEVELOPMENT CORPORATION, petitioner, vs. JUDGE HERMINIO A. AVENDANO, Court of First Instance of Laguna, Binan Branch I, SEGUNDO PILIPINIA and EDGARDO MINDO, represented by ERNESTO PILIPINIA, respondents. AQUINO, J.: This case is about the summons intended for defendant Summit Trading and Development Corporation. As background, it should be stated that Segundo Pilipinia and Edgardo Mindo in 1973 acquired under Land Authority Administrative Order No. 4 two registered lots with a total area of 2 hectares located at Barrio San Vicente, San Pedro, Laguna. The titles of the lots contain the annotation that should Pilipinia and Mindo sell the same, they have the right to redeem the lots within five years from the date of the sale (Exh. H and I). Pilipinia and Mindo sold the lots for P16,000 and P12,000 to Gavino Ortega on February 14 and April 19, 1977. They have retained possession of the lots which are ricelands. They became tenants thereof. At the instance of Ortega, the said annotation was cancelled by Judge Avendao in his order of September 24, 1979 ostensibly because the lots would be converted into commercial, industrial or residential sites (Exh. M). That conversion has not taken place. At present the two lots are still ricelands. In a letter dated October 16, 1979, Ortega advised Ernesto Pilipinia (attorney-in-fact of Segundo and Mindo) that he and his father would have the right of first refusal in case the lots were sold (Exh. E and O). Ortega resold the two lots on November 14, 1979 for P16,000 and P11,000 to Summit Trading through its president, Virgilio P. Balaguer (Exh. N and N-1). On August 10, 1981, or within the five-year period, Pilipinia and Mindo filed a complaint against Ortega and Summit Trading for the redemption or repurchase of

the two lots. They deposited P100,000 with the Royal Savings and Loan Association for that purpose. Ortega was duly summoned. He failed to answer the complaint. He was declared in default. Summit Trading was also declared in default. In his judgment by default dated October 29, 1981, Judge Avendano (the same judge who ordered the cancellation of the annotation) gave plaintiffs Pilipinia and Mindo 15 days from notice within which to redeem the lots for P16,000 and P12,000 and ordered Summit Trading to execute the corresponding deeds of sale and surrender the Torrens titles. If it failed to do so, the clerk of court was directed to perform that task. The register of deeds was ordered to issue new titles to Pilipinia and Mindo. The default judgment was rendered on the assumption that Summit Trading was duly summoned through Marina Saquilayan as secretary of Summit Trading. She received the summons on August 28, 1981. A copy of the judgment was also served on her on November 13, 1981 (Exh. B, pp. 31-32, 64, Record). Actually, Saquilayan received the summons as secretary of Balaguer, already mentioned as the president of Summit Trading which purchased the lots from Ortega. Bonifacio Tiongson was the corporate secretary. Nineteen days after Saquilayan received a copy of the decision, Summit Trading filed a motion for reconsideration on the ground that the trial court did not acquire jurisdiction over it because summons was not served upon it in accordance with Rule 14 of the Rules of Court which provides: SEC. 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. It is true that Saquilayan is not among the persons mentioned in section 13. However, she, being under the control of Summit Trading, has not explained what she has done with the summons and complaint. The logical assumption is that she delivered it to her boss, the president of Summit Trading. As already stated, she received a copy of the decision and Summit Trading became aware of it. Summit Trading's motion for reconsideration was denied. While Summit Trading is technically correct in contending that there was no strict compliance with section 13, we cannot close our eyes to the realities of the situation. Under the facts of this case, Saquilayan, being the secretary of the president (whose contact with the outside world is normally through his secretary), may be regarded as an "agent" within the meaning of section 13.(See Villa Rey Transit, Inc. vs. Far East Motor Corporation, L-31339, January 31, 1978, 81 SCRA 298; Filoil Marketing Corporation vs. Marine Development Corporation of the Phil., L29636, September 30, 1982, 117 SCRA 86.) Hence summons was validly served upon Summit Trading. Its negligence in not answering the complaint was inexcusable. In fact, up to this time, Summit Trading has not bothered to state its defenses to the action nor stated whether it has a meritorious case warranting the setting aside of the default judgment. The cases of Delta Motor Sales Corporation vs. Mangosing, L-41667, April 30,1976, 70 SCRA 598 and ATM Trucking Inc. vs. Buencamino, G.R. No. 62445, August 31, 1983, 124 SCRA 434 are not in point because the summons in the two cases was served upon mere clerks or employees of the corporations who cannot be relied upon to know what to do with the legal papers served upon them. In the instant case, service was made on the president's secretary who could have easily notified the president that an action was filed against the corporation just as she had apprised him of the judgment in this case. The instant petition for certiorari, treated as an appeal under Republic Act No. 5440, was filed out of time. Considered as a special civil action under Rule 65 of the Rules of Court, it is baseless because the trial court had acquired jurisdiction over Summit Trading. As already shown, summons was properly served on the president's secretary.

We are not saying that service on such a secretary is always proper. Generally, it is improper. The president himself must be served personally with the summons if it is desired to effect the service on that particular officer. But, as already stated, under the facts of this case, the president's secretary may be regarded as the "agent" within the meaning of section 13 since service upon her of the judgment itself came to the notice of Summit Trading. WHEREFORE, the petition is dismissed. The trial court's judgment is affirmed. Its implementation is now in order. The restraining order is dissolved. Costs against the petitioner. SO ORDERED. Makasiar (Chairman), Concepcion, Jr., Abad Santos, Escolin and Cuevas, JJ., concur. Foreign, Rule 14, Sec. 12 Sec. 12. Service upon foreign private juridical entity. When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines. Public Corporation, Rule 14, Sec. 13 Sec. 13. Service upon public corporations.When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. Minors, Rule 14, Sec. 10 Insane, incompetents, Rule 14, Sec. 10 Sec. 10. Service upon minors and incompetents.When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother. Prisoners, Rule 14, Sec. 9 Sec. 9. Service upon prisoners.When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. Unknown defendant, Rule 14, Sec. 14 Sec. 14. Service upon defendant whose identity or whereabouts are unknown. In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. Residents temporarily out, Rule 14, Secs. 18, 16 Sec. 16. Residents temporarily out of the Philippines. When any 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 also effected out of the Philippines, as under the preceding section. Sec. 18. Proof of service. The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy.

Venturanza v. CA, 156 SCRA 305 (1987) VENTURANZA V CA 156 SCRA 305 PADILLA; December 11, 1987 NATURE Petition for review on certiorari of the decision of the Court of Appeals FACTS - May 22, 1985 Senoran (now respondent) filed a complaint against spouses Venturanza with the MTC Manila for collection of sums of money in the aggragate amount of P9,711.50, representing several loans evidenced by promissory notes which had become due and demandable but unpaid despite repeated demands. - June 10, 1985 - Summons was issued against the petitioners 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. A sheriffs return was issued which stated that Augusto was capable of being served the summons in terms of age and discretion but he refused to sign the receipt. - August 12, 1985 - For failure of the petitioners to file their Answer, a decision was handed down against the Venturanza spouses. 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. - September 22, 1985 Sps. Venturanza 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 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. Since April 1985, petitioners had been already residing at Aurora Street, Pasay City. - The motion was denied for lack of merit for the following reasons: - According to the affidavit of the sheriff Cruz, 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 Cruz 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 along with the PLDT Directoru 1985-86 indicate that defendant Violeta S. Venturanza is a resident of 3412 B.A. Tan, Bo. Obrero Tondo, Manila. - On appeal to the Manila RTC, the MTC decision was affirmed. A petition for review lodged with the CA gave the same results. ISSUE WON jurisdiction had been acquired over the sps. Venturanza HELD NO Ratio Reasoning - 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. - 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 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. - Under Rule 14 of the Rules of Court, there are three (3) methods of service of summons in civil actions, namely: 1) personal service (See. 7); 2) substituted service (Sec. 8); and 3) service by publication. Strict compliance with these modes of service is required in order that the court may require jurisdiction over the person of the defendant. 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. In the absence of valid waiver trial and judgment, without such service, are null and void. - 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. 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. 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. - In Keister vs. Navarro, it was held that 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. - 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. 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. DISPOSITIVE Decision reversed and set aside. Non-resident, Rule 14, Sec. 15 Sec. 15. 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 6; 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. Modes of service personal, Rule 14, Sec. 6 Sec. 6. Service in person on defendant. Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. substituted, Rule 14, Sec. 7 Sec. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. [1993V212] SPOUSES PEPITO AND LORETO LAUS, petitioners, vs. HON. COURT OF APPEALS, HON. SALVADOR C. CEGUERA, in his capacity as Presiding Judge of the Regional Trial Court of Quezon City, Branch 82; NILO SM. CABANG, in his capacity as Deputy Sheriff of Quezon City and CONSUELO P. TORRES, respondents.1993 Mar 83rd DivisionG.R. No. 101256D E C I S I O N DAVIDE, JR., J p: Petitioners seek the review and reversal of the 30 May 1991 Decision 1 of respondent Court of Appeals in CA-G.R. SP No. 22232 2 and the 30 July 1991 Resolution denying their motion to reconsider the said decision. The challenged decision dismissed, for lack of merit, their petition for certiorari, prohibition and injunction to annul the Orders dated 5 March 1990 and 9 July 1990 of Branch 82 of the Regional Trial Court (RTC) of Quezon City in Civil Case No. Q-89-3327 which, respectively, declared them in default and denied their motion to reconsider such declaration. The antecedents of this case are not controverted.

On 24 August 1989, private respondent Consuelo P. Torres filed against "Loredo (sic) Alfaro-Laus and John Doe" a complaint, docketed as Civil Case No. Q-89-3327, for the collection of a sum of money. The defendants in the said case are the petitioners in the instant petition. The complaint alleges that petitioner Loreto Alfaro-Laus executed a promissory note in favor of the private respondent under which the former undertook to pay the latter the amount of Sixty-Six Thousand Pesos (P66,000.00) after three (3) months from the date thereof. Upon maturity of the said promissory note, however, only Eleven Thousand Pesos (P11,000.00) was paid; despite the receipt of a demand letter from the private respondent, petitioners made no further payments. Thus, the former filed the aforementioned complaint praying for the payment of the unpaid balance of P55,000.00 "plus interest at the rate of ten per cent (10%), compounded monthly beginning February 21, 1989, and twenty-five per cent (25%) of the entire amount due for and as attorney's fees, such being in accordance with the terms and conditions set forth in the promissory note." 3 On 10 October 1989, Deputy Sheriff Romero S. Cruz proceeded to the petitioners' address at 122 Molave Park Subdivision, Paraaque, Metro Manila to serve the summons and a copy of the complaint. Failing to serve the summons personally upon the petitioners after waiting for ten (10) minutes, he resorted to a substituted service through one Josephine Areola, who purportedly represented herself to be the maid of the said petitioners. 4 On the same date, Deputy Sheriff Cruz executed and filed a return 5 which reads: "Respectfully returned to the REGIONAL TRIAL COURT Branch 82, QUEZON CITY, the attached original copy of the summons issued in connection with Civil Case No. 893327 entitled CONSUELO P. TORRES versus LOREDO (sic) LAUS & JOHN DOE with the information that duplicate copy of the same together with the complaint and its annexes was duly served upon defendant Loredo (sic) Laus of 122 Molave Park Subd. Paraaque M. M. thru JOSEPHINE AREOLA, maid of Loredo Daus (sic) of same address, received as evidenced by her signature appearing thereon." The petitioners did not file any answer. Consequently, upon motion of the private respondent, the trial court 6 issued on 29 December 1989 an order declaring the former in default and setting the ex parte presentation of the private respondent's evidence for 16 January 1990. 7 The petitioners claim that they received this 29 December 1989 Order only on 22 January 1990. On 24 January 1990, the trial court rendered a judgment by default against the petitioners; it ordered the latter "[T]o pay the plaintiff (private respondent) the amount of FIFTY-FIVE Thousand Pesos (P55,000.00) at the rate of ten per cent (10%), compounded monthly beginning February 21, 1989 up to the present; and . . . [T]o pay attorney's fees equivalent to twenty-five percent (25%) of the entire amount due" to the private respondent. 8 On 2 February 1990, before receiving a copy of the 22 January 1990 decision, petitioners, by way of a special appearance, filed a motion to dismiss the case for lack of jurisdiction over their persons. They allege that the service of summons was ineffective because it was not indicated in the return that the sheriff had first exerted efforts to serve the same personally before resorting to substituted service. 9 In its Order of 5 March 1990, the trial court denied the motion to dismiss for lack of merit on the ground that it had already rendered a judgment by default on 24

January 1990. 10 Petitioners received a copy of this order on 24 March 1990. In the meantime, the trial court issued a writ of execution. On 30 March 1990, public respondent Deputy Sheriff Nilo Cabang, pursuant to a writ of execution issued by the trial court, levied upon petitioners' properties consisting of a 1983 Mitsubishi Galant Sedan and a men's ring. On 3 April 1990, petitioners filed a motion to reconsider the Order of 5 March 1990; 11 they reiterated therein the contention that the trial court did not acquire jurisdiction over their persons because of the defective service of summons, and further aver that: "Josephine Areola, the person who supposedly received the summons is not even known to the defendants. It turned out from their investigation that said Josephine Areola was just a guest of one of their maid (sic) who stayed for only about a week. Furthermore Josephine Areola was just a child of about ten to eleven years old and would not be expected to know what to do with the documents handed to her. With all due respect it would not be fair for the defendant if the summons would be served upon the defendants through a person who is not of sufficient age and discretion at the time the summons was served, and a transcient (sic) at that." 12 A hearing on the motion for reconsideration was held and the parties presented evidence on the issue of service of summons. Petitioner Loreto Alfaro-Laus testified that Josephine Areola, who was 11 to 12 years old at that time, was just a guest of her maid and thus stayed in the house for a week. Private respondent, on the other hand, presented evidence to show that Josephine had been staying in the petitioners' house since July 1990 for she was the person who received the demand letter sent to the petitioners on 3 July 1989. 13 Deputy Sheriff Cruz also took the witness stand, identified the affidavit he executed on 27 April 1990 14 and further asserted that he found no one in the house of the petitioners when he arrived on 10 October 1989; he claimed that he waited for ten (10) minutes. Thereupon, two (2) women arrived; the said women told him, upon his inquiry, that the petitioners were not around. He then served the summons through one of them, Josephine Areola. 15 In its Order of 9 July 1990, 16 the trial court denied the petitioners' motion for reconsideration and held that there was a proper service of summons because contrary to Loreto Alfaro-Laus' statement that Areola was a guest of their maid for a week, it was proven that Areola was in fact the very person who, on 3 July 1989, received the demand letter sent by the private respondent. On 17 July 1990, petitioners filed with the Court of Appeals a petition for certiorari, prohibition and injunction with application for a restraining order 17 to set aside the trial court's Orders of 5 March 1990 and 9 July 1990, and to dismiss Civil Case No. Q89-3327. The petition was docketed as CA-G.R. SP No. 22232. Petitioners insisted therein that the trial court committed grave abuse of discretion and a grave error in denying their motion to dismiss and the motion to reconsider said denial despite the lack of jurisdiction over their persons. They likewise challenged the denial of such motion to dismiss which was based solely on the ground that a judgment by default had already been rendered. 18 On 30 May 1991, the respondent Court of Appeals promulgated its decision 19 denying the petition for lack of merit. It made the following disqualifications: " . . . it was the defendants-petitioners who erred in filing a motion to dismiss at that late stage of the proceedings. A motion to dismiss on the ground that the Court has

no jurisdiction over the person of the defendants is proper only when made within the reglementary period for filing a responsive pleading and before such responsive pleading is filed (Rule 16, Sec. 1[a]). In this case, the defendants-petitioners' motion to dismiss was filed five (5) months after the complaint was filed and only after a default judgment had already been rendered by the respondent Court. Thus, it was rather too late in the day for the defendants-petitioners' motion to dismiss to be considered by the respondent Court. In the proper exercise of its sound judicial discretion, the respondent Court did not err in denying the motion to dismiss on the ground that a judgment by default had already been rendered. Besides, even if the motion to dismiss was filed on time, and yet, was still denied by the respondent Court, the order of the court denying the motion to dismiss is interlocutory and cannot be the subject of a petition for certiorari, such as this instant petition (National Investment and Development Corp. vs. Aquino, 163 SCRA 153). The denial of a motion to dismiss cannot be questioned in a petition for certiorari, which is an extra-ordinary writ that is not allowed as a substitute for ordinary appeal (Tan vs. Intermediate Appellate Court, 164 SCRA 130). Be that as it may, the defendants-petitioners had other remedies available to them, but which they failed to avail of. In a long line of cases decided by the Supreme Court, it has been repeatedly provided that the remedies of a defaulted defendant are: (a) The defendant in default may, at any time after discovery thereof and before judgment, file a motion, under oath, to set aside the order of default on the ground that his failure to answer was due to fraud, accident, mistake, excusable negligence, and that he has a meritorious defense; (b) If the judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory, he may file a Motion for New Trial under Section 1[a] of Rule 37; (c) If the defendant discovered the default after the judgment has become final and executory, he may file a petition for relief under Sec. 2 of Rule 38; and (d) He may also appeal from the judgment rendered against him as contrary to the evidence or to law, even if no petition to set aside the order of default has been presented by him (Sec. 2, Rule 41). (Lina vs. Court of Appeals, 135 SCRA 637; Tiburcio vs. Castro, 161 SCRA 583). As it is, the defendants-petitioners failed, after they received notice of the order declaring them in default and before the default judgment was rendered, to file a motion, under oath, to set aside the order of default on the ground that they failed to file a timely answer due to fraud, accident, mistake, or excusable negligence, and showing (sic) that they had a meritorious defense. The other applicable remedy which they failed to employ is the remedy of appeal from the judgment rendered against them as contrary to the evidence or the law, even in the absence of a motion/petition to set aside the order of default. This instant petition for certiorari cannot be a substitute for the remedy of appeal, which the defendants-petitioners did not pursue, as they must first exhaust the remedies available to them (Lina vs. Court of Appeals, supra.). That the judgment by default had already become final and is about to be executed is the result of the defendants-petitioners' failure to file a timely appeal. As such, the default judgment may no longer be challenged (Tiburcio vs. Castro, supra.)

Lastly, We find that the respondent Court was liberal enough in hearing the defendants-petitioners' motion for reconsideration of the denial of their motion to dismiss. As the pivotal issue therein, the defendant-petitioners were given their day in court to prove that the service of summons to them was both improper and invalid. After weighing the evidence and testimonies of the parties and other persons involved, the respondent Court ruled that there was valid service of summons. We find no compelling reason to rule otherwise. There is such a presumption of regularity in the performance of official functions by the sheriff, and it was up to the defendants-petitioners to convince the respondent Court that there was, indeed, invalid service of summons. This they failed to do. They could not substantiate their claim that Josephine Areola was a child of 10 to 11 years who would not know what to do with the court documents received by her. The defendants-petitioners' contention that Josephine Areola stayed with them for only a few days backfired when the private respondent presented documentary evidence to show that Josephine Areola was already residing in the defendantspetitioners' house at least three (3) months before the summons was served. No other proof was presented by the defendants-petitioners to bolster their allegations apart from their self-serving, and sometimes conflicting, testimonies. Thus, We find no error or grave abuse of discretion on the part of the respondent Court in denying the defendants-petitioners' motion for reconsideration." 20 Meanwhile, on 13 June 1991, respondent sheriff Nilo Cabang sold at a public auction the levied men's ring - on oval diamond set in yellow gold - to the private respondent for P140,000.00, and the Galant car to Atty. Leonardo Perez, Jr., counsel for the latter, for P180,000.00. Both were the highest bidders. 21 Their motion for the reconsideration of the aforesaid decision having been denied in the respondent Court's Resolution of 30 July 1991, 22 petitioners availed of this recourse under Rule 45 of the Revised Rules of Court and raise the following issues: "1. WHETHER OR NOT THE COURT A QUO ACQUIRED JURISDICTION OVER THE REASONS OF THE PETITIONERS BY VIRTUE OF THE SUBSTITUTED SERVICE OF SUMMONS EFFECTED BY DEPUTY SHERIFF ROMEO CRUZ; 2. WHETHER OR NOT THE REMEDY OF CERTIORARI CAN BE AVAILED OF BY A PARTY IMPROVIDENTLY DECLARED IN DEFAULT TO CHALLENGE THE ORDER OF DEFAULT AND THE SUBSEQUENT JUDGMENT BY DEFAULT." 23 On 10 February 1992, after the filing of the private respondent's comment and the petitioners' reply thereto, We resolved to give due course to the petition and required the parties to file their respective memoranda which they subsequently complied with.We find merit in this petition. The focal issue is whether or not the trial court acquired jurisdiction over the persons of the petitioners by virtue of the substituted service of summons effected by Deputy Sheriff Cruz. Since the petitioners did not voluntarily submit to the jurisdiction of the trial court, proper service of summons became imperative. If the service effected in the case at bar was, as claimed by the petitioners, invalid, the trial court acquired no jurisdiction over their persons. 24 In such an instance, the order of default, judgment by default and writ of execution issued by the trial court would be null and void. 25 The general rule in this jurisdiction is that summons must be personally served; pursuant to Section 7, Rule 14 of the Revised Rules of Court, such personal service is to be accomplished by "handing a copy thereof to the defendant in person, or, if

he refuses to receive it, by tendering it to him." However, if this mode of service cannot be effected within a reasonable time, substituted service may be resorted to under Section 8 of the same Rule. Section 8 provides: "SEC. 8. Substituted Service. - If the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's dwelling house or residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof." This provision is a reproduction of Section 8, Rule 7 of the 1940 Rules of Court except that inter alia, "promptly" in the latter was changed to "within a reasonable time" in the former. "Within a reasonable time" contemplates a period of time longer than that demarcated by the word "prompt," and presupposes that a prior attempt at personal service, within a justifiable time frame as would be necessary to bring the defendant within the jurisdiction of the court, had failed. 26 Since substituted service is in derogation of the common law and is extraordinary in character, it must be used only as prescribed and in the circumstances authorized by statute. 27 Statutes prescribing modes other than personal service of summons must be strictly complied with to give the court jurisdiction, and such compliance must appear affirmatively in the return. 28 In Keister vs. Navarro, 29 this Court described how the impossibility of personal service should be shown: "Impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the fact that such efforts failed. This statement should be made in the proof of service (I Moran, Comments on the Rules of Court, 1970 Ed., p. 444). This is necessary because substituted service is in derogation of the usual method of service. It has been held that this method of service is `in derogation of the common law; it is a method extraordinary in character, and hence may be used only as prescribed and in the circumstances authorized by statute.' . . . (72 C.J.S. 1053)." Emphasizing the need for strict compliance with the requirements of substituted service, this Court issued Administrative Circular No. 59, the pertinent portions of which read as follows: "SUBJECT: Service of Summons. Delays in court proceedings have been caused by faulty and erroneous implementation of Section 8, Rule 14, Rules of Court on Substituted Service of Summons. The Trial Judges of all lower courts, as well as the Clerks of Court in their capacity as Ex-Officio Sheriffs together with the Deputy Sheriffs are reminded of the provision of Section 8, Rule 14, Rules of Court on substituted service as follows: xxx xxx xxx

The manner of effecting substituted service as prescribed in Venturanza v. Court of Appeals, 156 SCRA 305, must be strictly complied with, thus: 'The substituted service should be availed only when the defendant cannot be served promptly in person. Impossibility of prompt service should be shown by

stating the efforts made to find the defendant personally and the failure of such efforts. The statement should be made in the proof of service. This is necessary because substituted service is in derogation of the usual method of service. Substituted service is a method extraordinary in character, and hence may be used only as prescribed in the circumstances authorized by statute. Thus, the statutory requirements of substituted service must be followed strictly, faithfully, and any substituted service other than that authorized by the statute is considered ineffective.' For immediate compliance." A perusal of the sheriff's return in the case at bar readily reveals that it does not (a) indicate the impossibility of service of summons within a reasonable time, (b) specify the efforts exerted to locate the petitioners and (c) state that it was served on a person of sufficient age and discretion residing therein. The fact of the matter is that as disclosed in his testimony taken in connection with the motion for reconsideration, and the affidavit he prepared in conjunction with such hearing. Deputy Sheriff Cruz resorted to a substituted service on his first - and only - attempt to effect a personal service. Upon being informed that the petitioners were not around at that time, he immediately resorted to a substituted service through Josephine Areola, a person whose age he did not even know or attempt to discover. He did not even inquire about the whereabouts of the petitioners, the time they were expected to return home, the hours of the day they could be contacted at their house or the location of their offices, if any, in order that he could faithfully comply with the requirement of personal service. Thus, he declared and admitted: "Q. In this case, you went to the residence of the defendant once as you stated on paragraph 3 30 on October 10, 1989? A. Yes, sir. Q. And you did not wait the (sic) defendant to come because according to you in paragraph 4, you were informed that the defendant was not around, is that correct? A. According to the maid. Q. So upon being informed that the defendant was not around you served the summons, according to paragraph 4 to one Josephine Ariola, is that correct? A. Yes, sir. Q. In other words, you relied on the information given to you by somebody that the defendant was not around? A: I waited there for around ten (10) minutes and then two (2) women arrived in the tricycle and I waited them (sic) to get inside and I asked them if Mr. and Mrs. Laus will be coming. Q. And they answered they were not around at that time? A.Yes, sir. Q. So, you immediately served the summons upon the persons arriving (sic)? A. Yes, sir.

Q. And who were these persons who arrived? A. Josephine Ariola. Q. And who is her companion? A. I did not ask anymore? xxx xxx xxx

Q. Who is older, is this Josephine Ariola or her companion? A. Josephine Ariola, she was the one who signed the summons. Q. Did you ask her age? A. I did not ask anymore because she look already (sic) of sufficient age. Q. That's your conclusion? A. Yes because she was the maid there and she was the older one." 31 As it turns out, the unrebutted evidence for the petitioners establishes that Areola (or Ariola) was only 11 to 12 years old at the time substituted service was attempted. 32 It is all too obvious that no earnest efforts were exerted by Deputy Sheriff Cruz to effect the personal service of summons. His testimony thus attests to an undue, if not indecent, haste to serve the summons at the first attempt without making sure that personal service was, by then and even thereafter, an impossibility because either the petitioners had left for a foreign country or an unknown destination with not definite date of returning within a reasonable period or had gone into hiding to avoid service of any process from the courts. If he had only made the inquiries suggested above, he could have returned in the evening of 10 October 1989 or on any of the succeeding days - including the following Saturday and Sunday. Service of summons may be made at night as well as during the day, or even on a Sunday or holiday because of its ministerial character. 33 Since the substituted service of summons in this case was not validly effected, the trial court did not acquire jurisdiction over the persons of the petitioners. The order of default, the judgment by default, the writ of execution issued by it, as well as the auction sale of the petitioners' properties levied on execution are, therefore, all null and void. There is more in this case which further unmasks the nullity of the decision of the trial court. Both parties agree that the petitioners were the defendants in Civil Case No. Q-89-3327. However, petitioner Loreto Alfaro-Laus is erroneously mentioned in the complaint as Loredo. On the other hand, petitioner Pepito Laus, the husband of Loreto, is merely designated as JOHN DOE. The latter was impleaded as a codefendant presumably on the theory that the liability sought to be enforced is a conjugal partnership liability. In short, Loreto's husband was sued as an indispensable party; it is clear that the trial court treated him as such when in its decision, ordered the defendants, not just Loreto, to pay the adjudged amounts.

The sheriff's return of service indisputably discloses that no summons was even attempted to be served on petitioner Pepito Laus. Sheriff Cruz unequivocally states therein that the "duplicate copy of the same together with the complaint and its annexes was duly served upon defendant Loredo (sic) Laus of 122 Molave Park Subd. Paraaque M. M. thru JOSEPHINE AREOLA, maid of Loredo Daus (sic) of same address, . . . ." 34 Neither Deputy Sheriff Cruz nor the private respondent had volunteered additional information to the effect that at some other time, summons was in fact served on Pepito Laus. Accordingly, the trial court never acquired jurisdiction over his person. And yet, while it concedes in its 29 December 1989 Order that the substituted service of summons was valid only for Loreto, it declared the defendants - and not only her - in default. The court could have easily avoided this misdoing if it only examined the records before issuing the order. On this score alone, the judgment by default is fatally flawed. There is still another fact which betrays the trial court's unusual haste in rendering the judgment by default. In the dispositive portion of the decision, the defendants were ordered, inter alia: "1. To pay the plaintiff the amount of FIFTY-FIVE Thousand Pesos (P55,000.00) at the rate of ten per cent (10%), compounded monthly beginning February 21, 1989 up to the present;" 35 While this rate of ten per cent (10%) could only refer to the imposable interest, the court failed to state whether its application shall be on a monthly or yearly basis. The body of the decision, however, speaks of ten per cent (10%) interest PER MONTH; 36 this seems to have been the basis relied on by respondent sheriff Cabang in computing for the petitioners' alleged liability for purposes of execution. 37 This award of interest - in effect amounting to one hundred twenty per cent (120%) per annum - and the additional twenty-five per cent (25%) of the total amount due ordered paid as attorney's fees, are unreasonable and unconscionable. Since the trial court's default order and judgment by default are null and void, the respondent Court gravely erred in affirming them. Some further comments, en passant, on the ratiocination of the respondent Court are in order. It is not accurate for the latter to have said that the petitioners' motion to dismiss was not filed seasonably because it was filed beyond the reglementary period provided in the Revised Rules of Court. Such a conclusion would doubtless be correct if there was a valid service of summons. If, however, a defendant has not been properly summoned, the period to file a motion to dismiss for lack of jurisdiction over his person does not commence to run until he voluntarily submits to the jurisdiction of the court, since the court has no jurisdiction to adjudicate the controversy as to him until such time. 38 In this case, petitioners did not voluntarily submit to the jurisdiction of the trial court. Consequently, the period to file a responsive pleading did not even commence to run. Nor are We persuaded by the respondent Court's declaration that even if the motion to dismiss had been filed on time, the trial court's order denying the same, being interlocutory, still cannot be the subject of a petition for certiorari. To be sure, this rule admits of an exception, as when the trial court clearly acted outside of its jurisdiction or with grave abuse of discretion in denying the motion to dismiss. 39 This is exactly what happened in the case while it was pending before the trial court; the denial of the motion to dismiss was based solely on the ground that a judgment by default had already been entered. Certainly, this does not constitute a valid

ground for the denial because the motion raises a fundamental and prejudicial issue affecting the validity of the decision by default. Equally unmeritorious is the respondent Court's statement that the failure of the petitioners to appeal from the judgment by default rendered such judgment final and unassailable. In the first place, it is axiomatic that a void judgment can never become final and executory and may even be assailed or impugned at any time. 40 An action to declare the nullity of a void judgment does not prescribe. 41 Secondly, the motion to dismiss in this case was filed before the petitioners received a copy of the decision by default. Since the said motion is based on the lack of jurisdiction over the persons of the petitioners which, if true - in fact, We have found it to be so would result in the nullification not only of the default order but of the decision as well, then for all legal intents and purposes, the latter was covered by the motion. This was precisely the orientation of the trial court when it allowed the parties to submit evidence to support the motion to reconsider the Order of 5 March 1990 denying the motion to dismiss. It would certainly not have gone that far if it thought otherwise for by then, the decision had already become final. Its suggestion that the petitioners should have filed a motion to set aside the order of default on the ground that they had failed to file the answer on grounds of fraud, accident, mistake or excusable negligence or a motion for new trial or a petition for relief from judgment, is untenable for it begs the question. Besides, as shown above, petitioners' failure to file the answer was not based on any of these grounds, but stood on the void service of summons. Finally, respondent Court's reliance on the presumption of regularity in the performance of official functions is misplaced. We have held that such a presumption does not apply where it is patent that the sheriff's return is defective. 42 WHEREFORE, the Decision of the respondent Court of Appeals of 30 May 1991 and the Resolution dated 30 July 1991 in CA-G.R. SP No. 22232 are hereby REVERSED and SET ASIDE. The Order of Branch 82 of the Regional Trial Court of Quezon City of 29 December 1989 (Civil Case No. Q-89-3327) declaring petitioners in default, its Decision of 24 January 1990, Orders of 5 March 1990 and 9 July 1990 and the writ of execution issued therein, as well as all proceedings had pursuant to the writ of execution, are declared NULL and VOID. The case is hereby remanded to the court of origin for further proceedings which shall include the valid service of summons. SO ORDERED. Mapa v. CA, 214 SCRA 417 (1993) [1992V806] TOMAS G. MAPA, petitioner, vs. COURT OF APPEALS, JUDGE MAXIMO A. SAVELLANO, JR., REGIONAL TRIAL COURT OF MANILA BRANCH LIII, and LAND BANK OF THE PHILIPPINES, respondents.1992 Oct 23rd DivisionG.R. No. 79374D E C I S I O N DAVIDE, JR., J.: The validity of a substituted service of summons upon the petitioner is raised as the common issue in these two (2) cases. Since identical parties are involved in both, this Court ordered their consolidation. 1

G.R. No. 79374 involves a petition filed under Rule 45 of the Rules of Court to review the 3 June 1987 Decision of public respondent Court of Appeals in C.A.-G.R. SP No. 08535 2 denying, for lack of merit, the petition therein which sought to set aside the decision of Branch 53 of the Regional Trial Court (RTC) of Manila. A similar petition under Rule 45 of the Rules of Court was filed in G.R. No. 82986 to review the decision of public respondent Court of Appeals, dated 20 January 1988, in C.A.-G.R. SP No. 13252. 3 The said decision set aside (a) the 4 May 1987 Order of Branch 10 of the Regional Trial Court of Manila in Civil Case No. 82-13465 reversing its earlier decision of 18 September 1983 on the ground that the herein petitioner was not validity served with summons and (b) the 16 October 1987 Order denying the motion for reconsideration of the latter. The antecedent facts as disclosed by the records in these cases are not disputed. High Peak Mining Exploration Corporation (hereinafter referred to as High Peak), through its duly authorized corporate officers Encarnation C. Tittel and Juergen Tittel, borrowed various sums of money from the private respondent Land Bank of the Philippines (LBP), the latter acting as trustee of Trust Account No. 01-139. The loans are evidenced by the following Promissory Notes executed on different dates, signed by the said officers and made payable to the Trust Account: (1) On 23 June 1980, the sum of Five Million Pesos (P5,000,000.00) for a term of 360 days, with interest at 16% per annum and with a maturity value of P5,800,000.00, under Promissory Note (SER No. 0001); (2) On 14 August 1980, the sum of Three Million Pesos (P3,000,000.00) for a term of 360 days, with interest at 17% per annum and with a maturity value of P3,510,000.00, under Promissory Note (SER No. 0002); and (3) On 9 September 1980, the sum of Three Million Pesos (P3,000,000.00) for a term of 360 days, with interest at 17% per annum and with a maturity value of P3,510,000.00, under Promissory Note (SER No. 0003). No security being required, none was put up by High Peak for the faithful performance of its obligations under the Promissory Notes. These three (3) Promissory Notes expressly provide that demand and dishonor are waived by High Peak and its officers. High Peak failed to pay the said loans. Despite the waiver of notice of demand, the LBP nevertheless sent demand letters to the former which ignored the same. The LBP was thus constrained to take legal action based on the three (3) Promissory Notes. The first note became the subject matter of a complaint for the recovery of a sum of money with an application for a writ of preliminary attachment filed solely against High Peak. The complainant was filed on 14 July 1981 with the then Court of First Instance (now Regional Trial Court) of Manila. It was docketed therein as Civil Case No. 82-6235 and was assigned to Branch 26 thereof. The case was later renumbered as Civil Case No. 142400 when Branch 26 became Branch 53 of the Regional Trial Court of Manila. The complaint was thereafter amended to implead as additional defendants the petitioner herein, in his personal capacity and as Chairman of High Peak's Board of Directors, and the abovenamed signatories to the promissory notes. The amended complaint was admitted by the court in its Order of 16 September 1982. This is the case involved in G.R. No. 79374.

The second and third Promissory Notes, on the other hand, became the subject matter of a complaint for the recovery of a sum of money filed against High Peak, the herein petitioner in his personal capacity and as Chairman of High Peak's Board of Directors and the aforementioned signatories to the three (3) Promissory Notes. This complaint was likewise filed on 29 October 1982 with the Court of First Instance of Manila. It was docketed as Civil Case No. 82-13465 and was assigned to Branch 10 thereof. This is the case involved in G.R. No. 82986. The amended complaint in Civil Case No. 142400 and the complaint in Civil Case No. 82-13465 both allege that the defendants could be served with summons at the Second Floor, First Midland Condominium Bldg., Gamboa St., Legaspi Village Makati, Metro Manila. The subsequent procedural antecedents in each case are hereunder summarized. G.R. No. 79374 (re Civil Case No. 142400) On 2 December 1982, Deputy Sheriff Romulo A. Flores of the Office of the Provincial Sheriff filed a return of service of summons in Civil Case No. 142400, reading as follows:. "SHERIFF'S RETURN THIS IS TO CERTIFY that on the 10th day of November, 1982 I have served copies of herein summons with complaint and annexes attached thereto issued by the Court in the above entitled case upon the defendants High Peak Mining Exploration Corporation, Tomas G. Mapa, Encarnacion C. Tittel and Juergen Tittel, thru SUSAN O. DELA TORRE, a person of suitable age and discretion working therein, who claims to be the person authorized to receive processess (sic) of this nature and who acknowledged the receipt thereof at second (sic) floor, First Midland Condominium Bldg., Gamboa Street, Legaspi Village, Makati, Metro-Manila. WHEREFORE, said summons is hereby returned to the Honorable Court of origin DULY SERVED, for its record and information. Pasig, Metro-Manila, November 15, 1982." 4 No answer having been filed by the defendants, the trial court, upon motion of the LBP, issued an order on 15 April 1983 declaring the defendants in default and ordering the LBP to present its evidence ex-parte. On 20 September 1983, said court, per Judge Maximo Savellano, JR., rendered a decision against the defendants; the latter's liability for the amount adjudged was made joint and several. Herein petitioner, as one of the defendants below, received a copy of the decision in his residence at No. 625 N.S. Amoranto Ave., Sta. Mesa Heights, Quezon City on 10 December 1984. On 21 December 1984, petitioner filed a Motion to Dismiss and Set Aside Judgment 5 on the ground that service of summons upon him and High Peak was fatally defective because it was not made in accordance with law. As to him, the sheriff's return did not show that the sheriff exerted efforts to personally serve the summons; thus, substituted service pursuant to Sections 7 and 8, Rule 14 of the Rules of Court was not warranted. Petitioner additionally postulates that even granting that the substituted service was proper, the actual service upon Susan O. dela Torre cannot be considered valid because "(a) it was left not at defendant Mapa's residence and

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dela Torre was not residing therein, and (b) that he (Mapa) was not holding office or regular place of business at the second floor, First Midland Condominium Bldg., Gamboa St., Legaspi Village, Makati, Metro Manila;" he holds office in his residence. The motion was denied by the trial court in its Order of 10 May 1985. A motion to reconsider the same was likewise denied in the Order of 31 January 1986. Petitioner then sought redress from the respondent Court of Appeals through a petition for certiorari against Judge Savellano and the LBP. The case was docketed as C.A.-G.R. SP No. 08535. In its decision promulgated on 3 June 1987, 6 respondent Court of Appeals denied the petition on the ground that ". . . respondent Court was right in assuming jurisdiction over the defendants Tomas G. Mapa, Encarnacion C. Tittel and Juergen Tittel who were being sued in their personal capacities, on the basis of its finding that the substituted service of summons pursuant to Section 8, Rule 14 of the Rules of Court was properly affected (sic) by Deputy Sheriff Romulo A. Flores." Respondent Court further that the service of summons upon Susan O. dela Torre, an employee of the corporation, may be regarded as service upon an agent of a corporation within the meaning of Section 13 of Rule 14. Finally, it took note of the trial court's observation in the latter's Order of 10 May 1985 that since petitioner Mapa has not even assailed the merits of the court's 30 September 1983 decision, justice and equity demanded that "the same should be left undisturbed." His motion to reconsider the adverse decision having been denied in the respondent Court's resolution of 29 July 1987, petitioner filed the instant petition on 16 September 1987. G.R. No. 82986 (re Civil Case No. 82-13465) The duty to serve the summons in Civil Case No. 82-13465 also fell on the shoulders of Deputy Sheriff Romulo A. Flores. On 15 November 1982, he filed his return of service which reads: "SHERIFF'S RETURN THIS IS TO CERTIFY that on the 10th day of November, 1982, I have served copies of herein summons with complaint and annexes attached thereto issued by the Court in the above-entitled case upon defendants High Peak Mining Exploration Corporation, Tomas G. Mapa, Encarnacion C. Tittel and Juegen (sic) Tittle, thru SUSAN O. DELA TORRE, a person of suitable age and discretion working with said defendants, who claims to be the person authorized (sic) to receive process (sic) of this nature and who acknowledged the receipt thereof at 2nd Floor, First Midland Condominium Bldg., Gamboa St., Legaspi Vill., Makati, Metro-Manila. WHEREFORE, said summons is hereby returned to the Honorable Court of origin DULY SERVED, for its record and information. Pasig, Metro-Manila, November 15, 1982." 7 No answer having been filed by the defendants therein, the LBP filed a motion to declare them in default, which the trial court granted. On 18 September 1983, said court, per then Judge Eduardo R. Bengzon, handed down a decision against the defendants. The latter were adjudged joint and severally liable for the amounts to be paid. 8 On 14 October 1986, petitioner filed a Motion to Dismiss and Set Aside Judgment 9 on the ground that service of summons to him and the corporation was fatally

defective; he reiterated the same arguments he raised in the similar motion he filed in Civil Case No. 142400. Over the LBP's opposition, the trial court, this time per Judge Josefina Cruz Rodil, issued an Order on 4 May 1987 10 partly granting the said motion by setting aside the decision because no jurisdiction was acquired over both the petitioner and High Peak. The court held that there is no showing that efforts were exerted by the sheriff to serve the summons personally upon the petitioner; the former immediately resorted to substituted service upon Susan O. dela Torre who cannot be considered a competent person in charge of the office. With respect to High Peak, Miss dela Torre, a mere employee thereof, is not one of those explicitly authorized to receive summons in behalf of a corporation under Section 13, Rule 14 of the Rules of Court. It denied, however, the motion to dismiss; instead, it allowed the petitioner "to file his answer or responsive pleading within fifteen (15) days from receipt of this Order," and directed the issuance of summons on the other defendants. 11 On 15 June 1987, the LBP filed a motion to reconsider this Order 12 alleging therein that there was substantial compliance with the rule on service of summons. The LBP further invited the trial court's attention to the 3 June 1987 decision of the Court of Appeals in the aforementioned C.A.-G.R. SP No. 08535. Petitioner consequently filed his opposition 13 thereto; he reiterates the arguments raised in his motion to dismiss and, with respect to the aforesaid decision of the Court of Appeals, contends that since the same is not final, it does not yet control. The trial court denied the motion in its Order of 16 October 1987. 14 Unable to accept the above orders of the trial court, the LBP filed with the Court of Appeals a special civil action for certiorari, prohibition and mandamus which was docketed therein as C.A.-G.R. SP No. 13252. On 20 January 1988, the Court of Appeals promulgated its decision in said C.A.-G.R. SP No. 13252 15 finding the trial court to have committed grave abuse of discretion amounting to lack of jurisdiction in issuing the challenged orders, and resolving as follows: "WHEREFORE, the petition for certiorari is hereby GRANTED and the decision 16 of the respondent court dated May 4, 1987 and October 16, 1987 are hereby set aside for being contrary to law. The restraining order issued on November 16, 1987 is likewise made permanent. . . ." 17 His motion to reconsider the said decision having been denied on 13 April 1988, 18 the petitioner filed the instant petition. On 20 May 1988, this Court gave due course to G.R. No. 79374. 19 After the petitioner filed his reply to the private respondent's comment in G.R. No. 82986, this Court, in the Resolution of 6 March 1989, ordered the latter's consolidation with the former. 20 The parties in these cases, particularly the private respondent, as plaintiff below, should have striven to consolidate Civil Case No. 142400 and Civil Case No. 8213465 while they were still pending before the trial court. Both involve identical parties, similar transactions made one after the other and the same trust account of the LBP. As a matter of fact, if the filing of Civil Case No. 142400 had only been delayed by just three (3) months, there would have been no need to file more than one (1) case. Moreover, summonses upon defendants in both cases were served on the same occasion. Valuable time of the parties, the two (2) branches of the trial court and eventually even of the Court of Appeals would have been saved had the said cases been consolidated pursuant to Section 1, Rule 31 of the Rules of Court. Parties should avail of this rule both for their own and the court's advantage and benefit. The purpose or object of consolidation is precisely to avoid multiplicity of

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suits, guard against oppression or abuse, prevent delay, declog congested dockets, simplify the work of the trial court and save unnecessary costs or expenses; in short, the aim is to attain justice with the least expense and vexation to the parties litigants. 21 As stated in the exordium of this ponencia, the basic issue raised in these petitions is whether or not there was a valid substituted service of summons in both Civil Case No. 142400 and Civil Case No. 82-13465. Both cases are unquestionably actions in personam. Jurisdiction over the petitioner, as defendant therein, can therefore be acquired either by his voluntary submission to such jurisdiction, as when he appears in court, or by service of summons upon him. Voluntary appearance is equivalent to service of summons; 22 in fact, it even cures the defect of summons. 23 Since petitioner did not voluntarily submit to the jurisdiction of the trial court in both cases, personal service became imperative. Section 7, Rule 14 of the Rules of Court explicitly requires personal service of summons which is accomplished "by handing a copy thereof to the defendant in person, or, if he refuses to receive it, by tendering it to him." However, if personal service cannot be effected within a reasonable time, substituted service, as provided for in Section 8 of the abovementioned Rule 14, may suffice: "SEC. 8. Substituted service. If the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's dwelling house or residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof." This provision is a reproduction of Section 8, Rule 7 of the 1940 Rules of Court except that, inter alia, the word "promptly" in the latter was changed to "within a reasonable time" in the former. Of course, "within a reasonable time" in the former. Of course, "within a reasonable time" contemplates a period of time longer than that demarcated by the word "prompt", and presupposes that a prior attempt at personal service, within a justifiable time frame as would be necessary to bring the defendant within the jurisdiction of the court, had failed. It is not shown when the summons in Civil Cases Nos. 142400 and 82-13465 were actually issued; what is clear to this Court is that the amended complaint in the first case was admitted by the trial court on 16 September 1982, while the complaint in Civil Case No. 82-13465 was filed on 29 October 1982. While the separate Sheriff's returns indicate that the summonses in both cases were served on 10 November 1982, these returns do not show that prior attempts at personal service were made by the Sheriff and that such attempts had failed, prompting the latter to resort to substituted service. In Keister vs. Navarro, 24 this Court described how the impossibility of personal service should be shown: "Impossibility of prompt service should be shown by stating the efforts failed. This statement should be made in the proof of service (I Moran, Comments on the Rules of Court, 1970 Ed., p. 444). This is necessary because substituted service is in derogation of the usual method of service. It has been held that this method of service is 'in derogation of the common law'; it is a method extraordinary in character, and hence may be 'used only as prescribed and in the circumstances authorized by statute.' . . . (72 C.J.S. 1053)."

The proof of service alluded to is the return required by Section 6 of Rule 14 which reads: "SEC. 6. Return. When the service has been completed, the server shall give notice thereof, by registered mail, to the plaintiff or his counsel, and shall return the summons to the clerk who issued it, accompanied with the proof of service." In Busuego vs. Court of Appeals, 25 this Court also succinctly expressed how such impossibility is to be shown. Thus: ". . . Perusal, however, of the sheriff's return reveals that the sheriff failed to specify therein what prior efforts, if any, had been exerted to serve summons upon the other defendants personally within a reasonable period of time, and the lack of success of such efforts, before proceeding to substituted service. . . ." As earlier adverted to, the sheriff's returns in Civil Cases Nos. 142400 and 82-13465 are patently wanting in particulars that would justify the substituted service. Accordingly, it is fatally flawed and defective; on that basis alone, therefore, the trial court acquired no jurisdiction over the person of the petitioner. It must nevertheless be emphasized that the absence in the sheriff's return of a statement about the impossibility of personal service does not conclusively prove that the service is invalid. Proof of prior attempts at personal service may be submitted by the plaintiff during the hearing of any incident assailing the validity of the substituted service. While the sheriff's return carries with it the presumption, albeit disputable, of regularity in the sense that inter alia, the entries therein are deemed correct, it does not necessarily follow that an act done in relation to the official duty for which the return is made was not done simply because it is not disclosed therein. Besides, the sheriff's neglect in making such a disclosure should not unduly prejudice the plaintiff if what was undisclosed was in fact done. Unfortunately in these instant cases, the private respondent failed to present evidence during the hearings of the petitioner's separate motions to dismiss and set aside judgment to prove that substituted service of summons was indeed effected in strict compliance with Section 8, Rule 14 of the Rules of Court. During such hearings, the private respondent could also have presented evidence to show that the petitioner did in fact receive from Susan O. dela Torre the summonses, together with copies of the complaints, in both cases. If indeed the petitioner received the same, the requirement of due process would have been complied with. Thus, in Boticano vs. Chu, 26 this Court had the occasion to state: "In the case at bar, there is no question that summons was timely issued and received by private respondent. In fact, he never denied actual receipt of such summons but confined himself to the argument that the Sheriff should prove that personal service was first made before resorting to substituted service. This brings to the fore the question of procedural due process. In Montalban vs. Maximo (22 SCRA 1077 [1968]) the Court ruled that '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.' Indeed, such construction is but fair, and in accord with substantial justice. The burden on a plaintiff is not to be enlarged with a restrictive construction desired by the defendant (Ibid., p. 1078)."

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On the same matter, Moran 27 has this to say: "Irregularities of this kind may, however, be cured by proof that the copies have actually been delivered to the defendant, which is equivalent to personal service." While in his separate motions to dismiss and set aside judgment in the two (2) cases filed before the trial court and annexed to his pleadings in these petitions, petitioner never alleged that he did not in fact receive the summonses, such circumstance by itself cannot warrant the conclusion that he actually received from Susan dela Torre the said summonses and copies of the complaints. In the absence of a categorical admission similar to that made in Boticano vs. Chu, no such inference to the contrary could be drawn. It was thus incumbent upon the private respondent to prove that Susan dela Torre delivered to the petitioner copies of both the summonses and the complaints. The conclusion then is inevitable that neither a valid personal nor substituted service of summons in Civil Cases Nos. 142400 and 82-13465 had been effected on the petitioner. However, Branch 10 of the RTC of Manila gravely erred when, in its Order of 4 May 1987, it set aside the decision of 18 September 1983 because it was also of the opinion that there was no valid service of summons on High Peak and the other defendants. It entirely forgot that it was only the petitioner herein who filed a motion to dismiss and set aside the judgment. For reasons which remain undisclosed, petitioner did not include his co-defendants in the said motion. In any event, the validity of the service of summonses on Encarnacion Tittel and Juergen Tittel has not been raised in issue; moreover, based on the sheriff's return of service in said case, this Court is satisfied that there was a valid service of summons on High Peak Section 13, Rule 14 of the Rules of Court provides for the manner in which service of summons upon a private domestic corporation shall be made. It reads: "SEC. 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." The rationale for the above rule 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 a person will know what to do with the legal papers served on him. In other words, the rule is meant to bring home to the corporation notice of the filing of the action. 28 The summonses for High Peak in Civil Cases Nos. 142400 and 82-13465 were received by Susan O. dela Torre who is described in the separate sheriff's returns as "a person of suitable age and discretion working therein, who claims to be the person authorized to receive processess (sic) of this nature and who acknowledged the receipt thereof at second (sic) floor, First Midland Condominium Bldg., Gamboa Street, Legaspi Village, Makati, Metro Manila." In his separate motions to dismiss, while petitioner categorically admits that this Susan O. dela Torre is an employee of the corporation, he does not disclose her specific duties and responsibilities. He does not even deny the statement, made in the said returns, that Susan is "authorized to receive processess (sic) of this nature." Until rebutted by competent evidence, these returns would have to stand in the meantime for they enjoy the presumption of regularity. Susan O. dela Torre may thus be deemed an agent of High Peak for purposes of the aforesaid Section 13 of Rule 14. It is then logical to

presume that she delivered the copies of the summonses and complaints to the corporation, considering especially the fact that she was working in the office of the said corporation as indicated in the complaints. This latter presumption has not likewise been rebutted Accordingly, even if Miss dela Torre may not strictly be considered as the proper agent for purposes of the aforecited Section 13, there was, nonetheless, substantial compliance therewith In G & G Trading Corporation vs. Court of Appeals, 29 this Court stated: "Although it may be true that the service of summons was made on a person not authorized to receive the same in behalf of the petitioner, nevertheless since it appears that the summons and complaint were in fact received by the corporation, through its said clerk, the Court finds that there was substantial compliance with the rule on service of summons. Indeed the purpose of said rule as above stated to assure service of summons on the corporation had thereby been attained. The need for speedy justice must prevail over a technicality." One final word. As stated earlier, the three (3) promissory notes involving the original amounts of P5,000,000.00, P3,000,000.00 and P3,000,000.00, or a total of P11,000,000.00, were to be released as loans from a Trust Account of the LBP unsecured by mortgage or any other security. This Court is unable to understand how Eleven Million Pesos an enormous amount can be so easily released without any form of security. Unless allowed by the Trust Account itself or the rules and regulations of the LBP, the transactions appear to be highly questionable. In this regard, since private respondent LBP is a government-owned institution, an inquiry by appropriate agencies of the government is in order to determine who were responsible for the approval of said loans. WHEREFORE, subject to the modifications as above indicated the instant petitions are hereby partly GRANTED. The decision of respondent Court of Appeals of 3 June 1987 in C.A.-G.R. SP No. 08535, subject of G.R. No. 79374, is AFFIRMED in all respects except insofar as it sustains the ruling of the trial court in Civil Case No. 142400 that the petitioner was validly served with summons in said case; the Decision of 20 September 1983 of Branch 53 of the Regional Trial Court of Manila in Civil Case No. 142400 (formerly R82-6235) stands as to the other defendants but is hereby SET ASIDE as against the petitioner, and its Orders of 10 May 1985 and 31 January 1986 are accordingly MODIFIED. Said court shall cause alias summons to be served on the petitioner. The Decision of respondent Court of Appeals of 20 January 1988 in C.A.-G.R. SP No. 13252, subject of G.R. No. 82986, is AFFIRMED in all respects except insofar as the petitioner is concerned. The Decision of 18 September 1983 of Branch 10 of the Regional Trial Court of Manila in said Civil Case No. 82-13465 stands as against the other defendants therein but is hereby SET ASIDE as against the petitioner, and the Orders therein of 4 May 1987 and 16 October 1987 are thus MODIFIED accordingly. A separate trial is hereby ordered against the petitioner in Civil Case No. 142400 and Civil Case No. 82-13465, for which purpose the latter shall be consolidated with the former. No pronouncement as to costs. SO ORDERED. Northwest v. CA, 241 SCRA 192, (1995) NORTHWEST ORIENT AIRLINES, INC. V CA (SHARP)

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241 SCRA 192 DAVIDE; February 9, 1995 NATURE Petition on certiorari to set aside the decision of the CA. FACTS - Petitioner Northwest Orient Airlines, Inc. (NORTHWEST), a corporation organized under the laws of the State of Minnesota, U.S.A., sought to enforce in the RTC Manila a judgment rendered in its favor by a Japanese court against private respondent C.F. Sharp & Company, Inc., (SHARP), a corporation incorporated under Philippine laws. - NORTHWEST and SHARP (through its Japan branch) entered into an International Passenger Sales Agency Agreement, whereby NORTHWEST authorized SHARP to sell its air transportation tickets. Unable to remit the proceeds of the ticket sales made by SHARP under the said agreement, NORTHWEST on March 25, 1980 sued defendant in Tokyo, Japan, for collection of the unremitted proceeds of the ticket sales, with claim for damages. - April 11, 1980: a writ of summons was issued by the 36th Civil Department, Tokyo District Court of Japan against SHARP at its office at the Taiheiyo Building, 3rd floor, 132, Yamashita-cho, Naka-ku, Yokohoma, Kanagawa Prefecture. The attempt to serve the summons was unsuccessful because the bailiff was advised by a person in the office that Mr. Dinozo (the person believed to be authorized to receive court processes) was in Manila and would be back on April 24, 1980. - April 24, 1980: bailiff returned to the defendant's office to serve the summons. Dr. Dinozo refused to accept the same claiming that he was no longer an employee of the defendant. - March 24, 1981: SHARP received from Deputy Sheriff Balingit copy of the judgment. Defendant not having appealed the judgment, the same became final and executory. RTC - NORTHWEST was unable to execute the decision in Japan, hence a suit for enforcement of the judgment was filed before the Manila RTC. - SHARP filed its answer averring that the judgment of the Japanese Court sought to be enforced is null and void and unenforceable in this jurisdiction having been rendered without due and proper notice to the defendant and/or with collusion or fraud and/or upon a clear mistake of law and fact - Unable to settle the case amicably, the case was tried on the merits. After NORTHWEST rested its case, SHARP filed a Motion for Judgment on a Demurrer to Evidence based on two grounds: (1) the foreign judgment sought to be enforced is null and void for want of jurisdiction and (2) the said judgment is contrary to Philippine law and public policy and rendered without due process of law. NORTHWEST filed its opposition after which the court a quo rendered the now assailed decision granting the demurrer motion and dismissing the complaint. RTC held: The foreign judgment in the Japanese Court sought in this action is null and void for want of jurisdiction over the person of the defendant considering that this is an action in personam; the Japanese Court did not acquire jurisdiction over the person of the defendant because jurisprudence requires that the defendant be served with summons in Japan in order for the Japanese Court to acquire jurisdiction over it, the process of the Court in Japan sent to the Philippines which is outside Japanese jurisdiction cannot confer jurisdiction over the defendant in the case before the Japanese court of the case at bar. - NORTHWEST moved for reconsideration of the decision, filing at the same time a conditional Notice of Appeal, asking the court to treat the said notice of appeal as

in effect after and upon issuance of the court's denial of the motion for reconsideration." SHARP opposed the MFR to which NORTHWEST filed a reply. CA - Following the notice of appeal, CA sustained the RTC and held the process of the court has no extraterritorial effect and no jurisdiction is acquired over the person of the defendant by serving him beyond the boundaries of the state." Plaintiffs Claim - While the collection suit filed is an action in personam, a distinction must be made between an action in personam against a resident defendant and an action in personam against a non-resident defendant. Jurisdiction is acquired over a nonresident defendant only if he is served personally within the jurisdiction of the court, and over a resident defendant if by personal, substituted or constructive service conformably to statutory authorization. ISSUE(S) 1. WON a Japanese court can acquire jurisdiction over a Philippine corporation doing business in Japan by serving summons through diplomatic channels on the Philippine corporation at its principal office in Manila after prior attempts to serve summons in Japan had failed. HELD YES Ratio The extraterritorial service of summons on it by the Japanese Court was valid not only under the processual presumption but also because of the presumption of regularity of performance of official duty. Reasoning GENERAL RULE: The processes of the court cannot lawfully be served outside the territorial limits of the jurisdiction of the court from which it issues and this is regardless of the residence or citizenship of the party thus served (Iowa-Rahr). There must be actual service within the proper territorial limits on defendant or someone authorized to accept service for him. Thus, a defendant, whether a resident or not in the forum where the action is filed, must be served with summons within the forum. - Even assuming a distinction between a resident defendant and non-resident defendant were to be adopted, such distinction applies only to natural persons and not to corporations. This finds support in the concept that "a corporation has no home or residence in the sense in which those terms are applied to natural persons. - A corporation is a "resident" and an inhabitant of the state in which it is incorporated and no other (where its charter was granted and not by the location of its business activities). - SHARP is a Philippine Corporation duly organized under the Philippine laws. Clearly, its residence is the Philippines, the place of its incorporation, and not Japan. While SHARP maintains branches in Japan, this will not make it a resident of Japan. A corporation does not become a resident of another by engaging in business there even though licensed by that state and in terms given all the rights and privileges of a domestic corporation. In this regard, SHARP is a non-resident corporation. As such, court processes must be served upon it at a place within the state in which the action is brought and not elsewhere - The service of summons effected in Manila or beyond the territorial boundaries of Japan was null and did not confer jurisdiction upon the Tokyo District Court over the person of SHARP; hence, its decision was void.

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- A foreign judgment is presumed to be valid and binding in the country from which it comes, until the contrary is shown. It is also proper to presume the regularity of the proceedings and the giving of due notice therein. - Section 50, Rule ROC: a judgment in an action in personam of a tribunal of a foreign country having jurisdiction to pronounce the same is presumptive evidence of a right as between the parties and their successors-in-interest by a subsequent title. The judgment may, however, be assailed by evidence of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. Also, under Section 3 of Rule 131, a court, whether of the Philippines or elsewhere, enjoins the presumption that it was acting in the lawful exercise of jurisdiction and has regularly performed its official duty. - The party attacking a foreign judgment has the burden of overcoming the presumption of its validity. Being the party challenging the judgment rendered by the Japanese court, SHARP had the duty to demonstrate the invalidity of such judgment. In attempt to discharge that burden, it contends that the extraterritorial was not only ineffectual but also void, and the Japanese Court did not, therefore, acquire jurisdiction over it. It was then incumbent upon SHARP to present evidence as to what that Japanese procedural law is and to show that under it, the assailed extraterritorial service is invalid. It did not. - Alternatively, in the light of the absence of proof regarding Japanese law, the presumption of identity or similarity or the so-called processual presumption may be invoked. Applying it, the Japanese law on the matter is presumed to be similar with the Philippine law on service of summons on a private foreign corporation doing business in the Philippines. Section 14, Rule 14 of the rules of Court provides that if the defendant is a foreign corporation doing business in the Philippines, service may be made: (1) on its resident agent designated in accordance with law for that purpose, or, (2) if there is no such resident agent, on the government official designated by law to that effect, or (3) on any of its officers or agents within the Philippines. - If the foreign corporation has designated an agent to receive summons, the designation is exclusive, and service of summons is without force and gives the court no jurisdiction unless made upon him. - Where the corporation has no such agent, service shall be made on the government official designated by law, to wit: (a) the Insurance Commissioner, in the case of a foreign insurance company; (b) the Superintendent of Banks, in the case of a foreign banking corporation; and (c) the Securities and Exchange Commission, in the case of other foreign corporations duly licensed to do business in the Philippines. Whenever service of process is so made, the government office or official served shall transmit by mail a copy of the summons or other legal process to the corporation at its home or principal office. The sending of such copy is a necessary part of the service. - Nowhere in its pleadings did SHARP profess to having had a resident agent authorized to receive court processes in Japan. This silence could only mean, or at least create an impression, that it had none. Hence, service on the designated government official or on any of SHARP's officers or agents in Japan could be availed of. While it may be true that service could have been made upon any of the officers or agents of SHARP at its three other branches in Japan, the availability of such a recourse would not preclude service upon the proper government official, as stated above. - As found by the CA, it was the Tokyo District Court which ordered that summons for SHARP be served at its head office in the Philippines after the two attempts of service had failed. The Tokyo District Court requested the Supreme Court of Japan to cause the delivery of the summons and other legal documents to the Philippines. Acting on that request, the Supreme Court of Japan sent the summons together with the other legal documents to the Ministry of Foreign Affairs of Japan which, in turn

forwarded the same to the Japanese Embassy in Manila. Thereafter, the court processes were delivered to the Ministry of Foreign Affairs (DFA) of the Philippines, then to the executive Judge of the CFI of Manila, who forthwith ordered Deputy Sheriff Rolando Balingit to serve the same on SHARP at its principal office in Manila. This service is equivalent to service on the proper government official under Section 14, Rule 14 of the Rules of Court, in relation to Section 128 of the Corporation Code. Hence, SHARP's contention that such manner of service is not valid under Philippine laws holds no water DISPOSITIVE SHARP is ordered to pay the NORTHWEST the amount adjudged in the foreign judgment subject of the case. Extraterritorial, Rule 14, Sec. 15 Sec. 15. 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 6; 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. Dial Co. v. Soriano, 161 SCRA 737 (1988) DIAL CORP v SORIANO 161 SCRA 737 GRINO-AQUINO; May 31, 1988 FACTS: -The petitioners are foreign corporations. . The respondent Imperial Vegetable Oil Company, Inc(IVO) is a Philippine corporation which through its president, Dominador Monteverde, had entered into several contracts for the delivery of coconut oil to the petitioners -Contracts contained arbitration clause. Because IVO defaulted under the contracts, the petitioners and 15 others, initiated arbitration proceedings abroad, and some have already obtained arbitration awards against IVO. -IVO filed in Manila RTC a complaint for injunction and damages against 19 foreign coconut oil buyers (including petitioners) with whom its president Dominador Monteverde had contracts. They claim that these were mere paper trail and that these were illegal and fraudulent acts by Dominador. They had a board meeting which in effect relieved Dominador of his duties as president. -they also claimed that the defendants have allegedly "harassed" IVO to comply with Dominador's contracts and to come to a settlement with them. IVO prayed for the issuance of a TRO or writ of preliminary injunction to stop the defendants from harassing IVO with their insistent demands to recognize the contracts entered into by Dominador -they also prayed for moral, exemplary and actual damages and attorneys fees.

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-On motion of IVO, respondent Judge authorized it to effect extraterritorial service of summons to all the defendants through DHL Philippines corporation. Pursuant to that order, the petitioners were served with summons and copy of the complaint by DHL courier service -without submitting to the court's jurisdiction and only for the purpose of objecting to said jurisdiction over their persons, petitioners filed motions to dismiss the complaint against them on the ground that the extraterritorial service of summons to them was improper and that hence the court did not acquire jurisdiction over them. -the court denied their motions to dismiss and upheld the validity of the extraterritorial service of summons to them on the ground that "the present action relates to property rights which lie in contracts within the Philippines, or which defendants claim liens or interests, actual or inchoate, legal or equitable. And one of the reliefs demanded consists, wholly or in part, in excluding the defendants from any interest in such property for the reason that their transactions with plaintiff's former president are ultra vires." Furthermore, "as foreign corporations doing business in the Philippines without a license, they opened themselves to suit before Philippine courts, pursuant to Sec. 133 of the Corporation Code of the Philippines." ISSUE: WON the extraterritorial service of summons proper HELD: NO -Only in 4 instances is extraterritorial service of summons proper, namely: "(1) when the action affects the personal status of the plaintiffs; (2) when the action relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; (3) when the relief demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and (4) when the defendant nonresident's property has been attached within the Philippines -The complaint in this case does not involve any of the 4 instances. The action is purely an action for injunction to restrain the defendants from enforcing against IVO ("abusing and harassing") its contracts for the delivery of coconut oil to the defendants, and to recover from the defendants P21 million in damages for such "harassment." *additional info lang-- *It is clearly a personal action as well as an action in personam, not an action in rem or quasi in rem. action in personam is an action against a person on the basis of his personal liability action in remedies is an action against the thing itself, instead of against the person." A personal action is one brought for the recovery of personal property, for the enforcement of some contract or recovery of damages for its breach, or for the recovery of damages for the commission of an injury to the person or property -As this a personal action, personal or substituted service of summons on the defendants, not extraterritorial service, is necessary to confer jurisdiction on the court: As a general rule, when the defendant is not residing and is not found in the Philippines, the Philippine courts cannot try any case against him because of the impossibility of acquiring jurisdiction over his person unless he voluntarily appears in court. But, when the action affects the personal status of the plaintiff residing in the Philippines, or is intended to seize or dispose of any property, real or personal, of the defendant located in the Philippines, it may be validly tried by the Philippine courts, for then, they have jurisdiction over the res, i.e., the personal status of the plaintiff or the property of the defendant and their jurisdiction over the person of the nonresident defendant is not essential

- In an action for injunction, extraterritorial service of summons and complaint upon the non-resident defendants cannot subject them to the processes of the regional trial courts which are powerless to reach them outside the region over which they exercise their authority - Neither may the court by extraterritorial service of summons acquire jurisdiction to render and enforce a money judgment against a non-resident defendant who has no property in the Philippines for "the fundamental rule is that jurisdiction in personam over non-residents, so as to sustain a money judgment, must be based upon personal service within the state which renders the judgment " Sievert v. CA, 168 SCRA 692 (1988) ALBERTO SIEVERT v. CA [J. LUNA,CAMPOSANO] G.R. No. 84034 FELICIANO; December 22, 1988 Nature: Certiorari FACTS - Alberto Sievert a citizen and resident of the Philippines received by mail a Petition for Issuance of a Preliminary Attachment filed with the Manila RTC Branch 32 in Civil Case No. 88-44346. He had not previously received any summons and any copy of a complaint against him in said case. -On the day set for hearing of the Petition for a Preliminary Writ of Attachment, Sievert's counsel went before the RTC and entered a special appearance for the limited purpose of objecting to the jurisdiction of the court. He simultaneously filed a written objection to the jurisdiction of the RTC to hear or act upon the Petition for Issuance of a Preliminary Writ of Attachment. In this written objection, Sievert prayed for denial of that Petition for lack of jurisdiction over the person of the petitioner (defendant therein) upon the ground that since no summons had been served upon him in the main case, no jurisdiction over the person of the petitioner had been acquired by the trial court. -RTC denied the petitioner's objection and issued in open court an order which, in relevant part, read as follows: Under Section 1, Rule 57, Rules of Court, it is clear that a plaintiff or any proper party may "... at the commencement of the action or at any time thereafter, have the property of the adverse party attached as the security for the satisfaction of any judgment ..." This rule would overrule the contention that this Court has no jurisdiction to act on the application, although if counsel for defendant so desire, she is given five (5) days from today within which to submit her further position why the writ should not be issued, upon the receipt of which or expiration of the period, the pending incident shall be considered submitted for resolution. (Underscoring in the original) 1 -Thereupon, on the same day, Sievert filed a Petition for certiorari with the CA. -CA dismissed the petition saying that the Judge may issue a writ of preliminary attachment against petitioner before summons is served based on R57.1 and defined what is meant by the commencement of the action citing Moran: action is commenced by filing of the complaint even though summons is not issued until a later date. ISSUE: WON a W of PA may bind a defendant or his property before summons is served upon him (or before the court has acquired jurisdiction over the person of the defendant in the main case). HELD: No. Jurisdiction must first be vested over the person of the defendant in the main case before attachment may bind the defendant or his property. The want of jurisdiction of the trial court to proceed in the main case against the defendant is quite clear. It is not disputed that neither service of summons with a copy of the

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complaint nor voluntary appearance of Sievert was had in this case. Yet, the trial court proceeded to hear the petition for issuance of the writ. Reasoning: -The issue posed in this case, however, is not to be resolved by determining when an action may be regarded as having been commenced, a point in time which, in any case, is not necessarily fixed and Identical regardless of the specific purpose for which the determination is to be made. The critical time which must be Identified is, rather, when the trial court acquires authority under law to act coercively against the defendant or his property in a proceeding in attachment. We believe and so hold that critical time is the time of the vesting of jurisdiction in the court over the person of the defendant in the main case. -Attachment is an ancillary remedy. It is not sought for its own sake but rather to enable the attaching party to realize upon relief sought and expected to be granted in the main or principal action . A court which has not acquired jurisdiction over the person of defendant, cannot bind that defendant whether in the main case or in any ancillary proceeding such as attachment proceedings. The service of a petition for preliminary attachment without the prior or simultaneous service of summons and a copy of the complaint in the main case and that is what happened in this case does not of course confer jurisdiction upon the issuing court over the person of the defendant. Ordinarily, the prayer in a petition for a writ of preliminary attachment is embodied or incorporated in the main complaint itself as one of the forms of relief sought in such complaint. Thus, valid service of summons and a copy of the complaint will in such case vest jurisdiction in the court over the defendant both for purposes of the main case and for purposes of the ancillary remedy of attachment. In such case, notice of the main case is at the same time notice of the auxiliary proceeding in attachment. Where, however, the petition for a writ of preliminary attachment is embodied in a discrete pleading, such petition must be served either simultaneously with service of summons and a copy of the main complaint, or after jurisdiction over the defendant has already been acquired by such service of summons. Notice of the separate attachment petition is not notice of the main action. Put a little differently, jurisdiction whether ratione personae or ratione materiae in an attachment proceeding is ancillary to jurisdiction ratione personae or ratione materiae in the main action against the defendant. If a court has no jurisdiction over the subject matter or over the person of the defendant in the principal action, it simply has no jurisdiction to issue a writ of preliminary attachment against the defendant or his property. - Salas v. Adil: this Court described preliminary attachment as a rigorous remedy which exposes the debtor to humiliation and annoyance, such [that] it should not be abused as to cause unnecessary prejudice. It is, therefore; the duty of the court, before issuing the writ, to ensure that all the requisites of the law have been complied with; otherwise the judge acts in excess of his jurisdiction and the writ so issued shall be null and void. DISPOSITIVE: Petition for Certiorari is GRANTED due course; the Order of the RTC and the CAs decision are SET ASIDE and ANNULLED. Citizens' Surety v. Herrera, 38 SCRA 369 (1972) CITIZENS SURETY V HERRERA 38 SCRA 369 (1972) RACH

CITIZENS' SURETY & INSURANCE CO. INC. V MELENCIO-HERRERA G.R. No. L-32170 REYES, J.B.L.; March 31, 1971 FACTS -Petitioner Citizens' Surety & Insurance Company, Inc. seeks review of an order of respondent Judge in Civil Case No. 77134 of the CFI Manila, Branch XVII, entitled "Citizens' Surety & Insurance Co., Inc. vs. Santiago Dacanay and Josefina Dacanay," dismissing the complaint for lack of proper service of summons upon defendants. -Petitioner had filed its complaint in the CFI Mla, alleging that at request of defendant Santiago Dacanay, the plaintiff had issued its Surety Bonds Nos. 4942 and 4944, the first, in favor of Gregorio Fajardo to guarantee payment of a P5,000promissory note executed by said Dacanay, and the second, in favor of Manufacturers Bank & Trust Co., to guarantee payment of another promissory note. -In consideration of said bonds, Santiago and Josefina Dacanay executed Indemnity Agreements, binding themselves jointly and severally to indemnify plaintiff for any losses, costs and expenses which it might sustain in connection with the issuance of the bonds aforesaid, with interest at 12% per annum. As additional security, the Dacanays mortgaged to plaintiff a parcel of land in Baguio City, the mortgage having been duly recorded. -The promissory notes were not paid and as a result, plaintiff Surety was compelled to pay P5,000.00 to Gregorio Fajardo and P4,081.69 to the Manufacturers' Bank. The Dacanays failed to reimburse the Surety for such payments, whereupon the Surety caused the extrajudicial foreclosure of the mortgage to pay its claim of P12,941.69 representing its payments, interest and stipulated liquidated damages. -At the foreclosure sale, the land mortgaged was sold to plaintiff, as highest bidder, for the sum of P2,000.00 leaving an unsatisfied balance of P10,491.69. Plaintiff thus sought to recover from defendants Dacanay, plus 10% thereof as attorneys' fees, and the costs. - At petitioner's request, respondent Judge caused summons to be made by publication in the newspaper Philippines Herald. But despite the publication and deposit of a prepaid copy of the complaint at the Manila post office, defendants did not appear within the period of 60 days from last publication, as required by the summons. -Plaintiff then asked that defendants be declared in default; but instead, the Judge, by order of May 16, 1970, asked it to show cause why the action should not be dismissed, the suit being in personam and defendants not having appeared. Then, on May 29, 1970, respondent Judge dismissed the case, despite plaintiff Surety's argument that the summons by publication was sufficient and valid under section 16 of Rule 14 of the Revised Rules of Court. ISSUE 1. WON summons by publication was sufficient for the court to validly acquire jurisdiction on a non-appearing defendant 2. WON dismissal of the case by the respondent Judge should be set aside HELD 1. NO -The action of plaintiff petitioner, being in personam, the Court could not validly acquire jurisdiction on a non-appearing defendant, absent a personal service of summons within the forum. - Without such personal service, any judgment on a non-appearing defendant would be violative of due process. (Pantaleon vs. Asuncin) 'Due process of law requires personal service to support a personal judgment, and when the proceeding is strictly in personam brought to determine the personal rights and obligations of the parties, personal service within the state or a voluntary

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appearance in the case is essential to the acquisition of jurisdiction so as to constitute compliance with the constitutional requirement of due process. -The proper recourse for a creditor in the same situation as petitioner is to locate properties, real or personal, of the resident defendant debtor with unknown address and cause them to be attached under Rule 57, section 1(f), in which case, the attachment converts the action into a proceeding in rem or quasi in rem and the summons by publication may then accordingly be deemed valid and effective. 2. YES -Because debtors who abscond and conceal themselves are also quite adept at concealing their properties, the dismissal of the case below by respondent Judge should be set aside and the case held pending in the court's archives, until petitioner as plaintiff succeeds in determining the whereabouts of the defendants' person or properties and causes valid summons to be served personally or by publication as the case may be. In this manner, the tolling of the period of prescription for as long as the debtor remains in hiding would properly be a matter of court records and he cannot emerge after a sufficient lapse of time from the dismissal of the case to profit from his own misdeed and claim prescription of his just debt. DISPOSITIVE Order of dismissal of the case issued by the Court below is hereby set aside, and in the interest of justice, the proceedings are ordered SUSPENDED, to be held pending until the plaintiff petitioner succeeds in ascertaining the whereabouts of the defendants and/or locating properties of the same, to enable proper summons to be issued conformably to this Opinion. Consolidated Plywood v. Breve, 166 SCRA 589 (1988) CONSOLIDATED PLYWOOD V HON. BREVA 166 SCRA 589 NARVASA, October 18, 1988 NATURE Petition for review of TC deci FACTS -Consolidated Plywood (Consolidated Plywood - Co-owner 1) purchased of property form Consolidated Bank and Trust Company, which, in turn, had acquired that share at a foreclosure sale. Mindanao Hemp Export Corporation (Mindanao Hemp Co-owner 2) was the other registered co-owner. -Consolidated Plywood occupied property, using the warehouse on it to store its products and the nearby building to quarter its personnel. It also employed guards. It also made repairs and improvements on the property amounting to P239,837,21. It sought to collect extrajudicially from Mindanao Hemp but since it produced no result, it filed action for collection before RTC Davao. -Summons was issued to Mindanao Hemp at the address stated in the complaint (413 Jaboneros St., Binondo, Manila). It went unserved, Mindanao Hemp was said to be no longer doing business at the said address and nobody around knew the present whereabouts of the defendant. When TC ascertained from SEC the business address of Mindanao Hemp, SEC gave same address -Consolidated Plywood moved for service of summons by publication, which was granted by TC. Publication was effected in PDI on May 18, and 15, 1987 then on June 1. Copy of the alias summons also sent by registered mail addressed to Mindanao Hemp at the Binondo address

-no answer filed w/n the 60d period so Mindanao Hemp declared in default. Consolidated Plywood presented its evidence ex parte. TC did ocular inspection and found out that Consolidated Plywood was using the entire property! TC: dismiss complaint for lack of merit: Did incur expenses but Consolidated Plywood was using the entire property so it had no right to compel Mindanao Hemp to reimburse it. Co-owner cannot put property to his sole use and benefit gratis without the express agreement of the other co-owner. Consolidated Plywoods Contention: a co-owner has the right to use the whole of the property owned in common without obligation for rentals and, hand-in-hand with such right of use, the right to reimbursement from the other co-owners of their proportionate share in necessary expenses incurred by him for the preservation of the property. ISSUE WON the petition for review should be dismissed HELD YES. TC never acquired jurisdiction over the person of the defendant so could not lawfully render valid judgment thereon. Personal Action so personal service of summons! Reasoning. Petitioner's suit is for the collection of a sum of money ---- a personal action, as distinguished from a real action, i.e., one ". . . affecting title to, or for recovery of possession of, or for partition or condemnation of, or foreclosure of mortgage on, real property." It is, too, an action strictly in personam, as to which in a line of cases starting with Pantaleon vs. Asuncion, this Court laid down and consistently hewed to the rule that ". . . 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. In other words, summons by publication cannot consistently with the due process clause in the Bill of Rights ---- confer upon the Court jurisdiction over said defendant," and that ". . . (t)he proper recourse for a creditor in the same situation as petitioner is to locate properties, real or personal, of the resident defendant debtor with unknown address and cause them to be attached under Rule 57, section l(fl, in which case, the attachment converts the action into a proceeding in rem or quasi in rem and the summons by publication may then accordingly be deemed valid and effective." Disposition. Accordingly, and service of summons by publication here not having been preceeded by attachment of property of MHEC, it did not confer on the Trial Court jurisdiction over the person of said defendant, and it is on this score that petitioner's action must be, as it is hereby, DISMISSED. In view of the peculiar circumstances of this case, it is hereby directed that in the not unlikely event that the petitioner pursue its claim for reimbursement against its co-owner by filing a second action therefor, efforts be exerted, prior to effecting service of summons by publication, to cause personal service on respondent corporation on its president, manager, secretary, cashier, agent or any of its directors, at such of their individual addresses as may become known to the petitioner from an examination of the records of the Securities and Exchange Commission or such others as may be or become otherwise available, failure of this latter mode of service being hereby made a condition precedent to summons by publication. SO ORDERED. Waiver of service, Rule 14, Sec. 20 Sec. 20. Voluntary appearance. The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction

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over the person of the defendant shall not be deemed a voluntary appearance. Delos Santos v. Montesa, 221 SCRA 15 (1993) DOLORES, NICOLAS and RICARDO DELOS SANTOS VS Judge MONTESA and JUANA DELOS SANTOS G.R. No. 73531 MELO; 1993 FACTS - Juana, who supposedly own the lot in question, a portion of which Dolores et.al. (petitioners) entered and occupied, lodged the complaint for Petitioners eviction. Summons was served through the mother of petitioners when the process server was unable to locate Dolores, Nicolas, and Ricardo delos Santos in Bulacan. For failure of petitioners to submit the corresponding answer, judgment was rendered pursuant to the rules on summary procedure. - The court ordered the petitioners to vacate the lot in question and to pay P5k as rental from 1985 until possession is surrendered. Upon appeal, the RTC presided by, respondent Judge Montesa granted Juanas motion for execution pending appeal on account of petitioners failure to post supersedeas bond. To set aside the proceedings in the lower court, this petition at hand was instituted anchored on the supposition that petitioners were deprived of their day in court. Upon learning if the said decision, petitioners sought to reconsider on the principal thesis that: they were never served notice of conciliation meeting at the barangay level they were never served with summons respondent was referring to a different piece of realty Dolores husband should have been impleaded

Petitioners argue that the execution pending appeal was ordered without any prior notice to them. This notion is also devoid of substance since it erroneously suggests that the court is duty-bound to notify petitioners of the immediate enforcement of the appeal under Section 2, Rule 39 of the Revised Rules of Court who is obliged to serve a copy of such motion on the adverse party's counsel, which, on the face of the subject motion, was effected by personal delivery. In fine, petitioners may not press the idea that they were deprived of their day in court amidst the implicit forms of waiver performed by their lawyer in submitting every conceivable defense for petitioners via the two motions for reconsideration below. DISPOSITIVE WHEREFORE, the petition is hereby DISMISSED for lack of merit Return of service, Rule 14, Sec. 4 Sec. 4. Return. When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff's counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service. Proof of service, Rule 14, Sec. 18 Sec. 18. Proof of service. The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy. publication, Rule 14, Sec. 19 Sec. 19. Proof of service by publication. If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address. registered mail, Rule 14, Sec. Motions Rule 15 In general, Rule 15, Sec. 1 Section 1. Motion defined. A motion is an application for relief other than by a pleading. Form, Rule 15, Sec. 2 Sec. 2. Motions must be in writing. All motions shall be in writing except those made in open court or in the course of a hearing or trial. Generally, Rule 15, Sec. 10 Sec. 10. Form. The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form. May be oral, Rule 15, Sec. 2 Sec. 2. Motions must be in writing. All motions shall be in writing except those made in open court or in the course of a hearing or trial. Motions for leave, Rule 15, Sec. 9 Sec. 9. Motion for leave. A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought to be admitted.

ISSUE WON these arguments are meritorious HELD No. All these arguments are to no avail. The writ of execution was ordered due to petitioners failure to post supersedeas bond. although the proof of service of the summons upon petitioners does not indicate impossibility of personal service, a condition precedent for resorting to substituted service, still, any defect in form and in the manner of effecting service thereof were nonetheless erased when petitioners' counsel moved to reexamine the impugned decision and posed a subsequent bid on appeal to impede immediate execution. Indeed, such demeanor is tantamount to voluntary submission to the competencia of the court within the purview of Section 23, Rule 14 of the Revised Rules of Court since any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons, absent any indication that the appearance of counsel for petitioner was precisely to protest the jurisdiction of the court over the person of defendant. Neither can such appearance be considered as a special appearance founded on the sole challenge on invalid service of summons since the application therefor raised another ground on failure to state a cause of action when conciliation proceedings at the barangay level were allegedly bypassed or disregarded. The issue as the fact that petitioners are supposedly occupying a parcel of land other than the realty claimed by Juana deserves scant consideration since a clarification on a factual query of this nature is entertained only on the lower courts.

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Contents, Rule 15, Sec. 3 Sec. 3. Contents. A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if required by these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. Omnibus Motion Rule, Rule 15, Sec. 8 Sec. 8. Omnibus motion. Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then available, and all objections not so included shall be deemed waived. Notice of hearing, Rule 15, Sec. 5 Sec. 5. Notice of hearing. The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. Proof of Service, Rule 15, Sec. 6 Sec. 6. Proof of service necessary. No written motion set for hearing shall be acted upon by the court without proof of service thereof. Provident International Resources Co. v. Court of Appeals, G.R. 119328, 259 SCRA 510 (1996) [1996V456] PROVIDENT INTERNATIONAL RESOURCES INCORPORATED, petitioner, vs. COURT OF APPEALS, and MUNICIPALITY OF PARAAQUE, represented by MAYOR PABLO R. OLIVARES, respondents.1996 Jul 263rd DivisionG.R. No. 119328DAVIDE, JR., J.: The pivotal issue in this petition for review under Rule 45 of the Rules of Court is whether respondent Court of Appeals, in its Amended Decision 1 of 18 October 1994 in CA-G.R. SP No. 32672, committed reversible error in annulling an order of execution of the Regional Trial Court (RTC) of Makati, Branch 133, in an expropriation case docketed as Civil Case No. 93-1412. 2 The said RTC order directed the Municipality of Paraaque (hereinafter PARAAQUE) to vacate the property subject of the expropriation case and to surrender possession thereof to its owner, defendant Provident International Resources, Inc. (PIRC), and was issued after the trial court had: (a) handed down an order dismissing the case for want of jurisdiction over the subject matter; (b) given due course to the appeal of PARAAQUE from such dismissal; and (c) directed the transmittal of the entire record of the case to the Court of Appeals. We resolved to give due course to the petition after petitioner PIRC filed its reply to the private respondent's comment on the petition. The factual and procedural antecedents in this case, as gathered from the original record of CA-G.R. SP No. 32672, the pleadings of the parties, and the decision and amended decision of the Court of Appeals, are not complicated. On 28 April 1993, PARAAQUE filed Civil Case No. 93-1412 with the RTC of Makati for the expropriation of certain parcels of land covered by Transfer Certificate of Title Nos. 58641, 58604, 63460, 44745, and 48033, with a total area of 68,151 square meters, located at Likod Ibayo, Barangay Sto. Nio, Ninoy Aquino Avenue, Paraaque, Metro Manila. These lots belonged to PIRC and were to be used as the site for a new municipal building. PARAAQUE claimed that it offered to buy the property for P54,520,800.00 based on the fair market value stated in the tax declarations, but PIRC refused to sell. The case was raffled to Branch 61 of the said

court, but on motion of PARAAQUE, the case was transferred to the RTC of Paraaque, then presided by Judge Octavio Astilla. On 13 May 1993, PARAAQUE deposited with the Philippine National Bank (PNB) the amount of P8.1 million, or fifteen percent (15%) of P54,520,800.00, pursuant to Section 19 3 of the Local Government Code of 1991 (R.A. No. 7160, hereinafter LGC). It then filed an ex-parte motion for the issuance of a writ of possession pursuant to said Section 19. On 17 May 1993, the RTC of Paraaque granted the motion for a writ of possession and ordered: (a) the Municipal Treasurer of Paraaque to hold the money in trust for the court and to disburse it only upon a court order; and (b) the deputy sheriff of Branch 77 of the Metropolitan Trial Court (MeTC) of Paraaque to personally serve a copy of the complaint on PIRC and to place PARAAQUE is possession, control, and disposition of the lots in question. On 18 May 1993, PARAAQUE was placed in possession of the lots. On 28 June 1993, Judge Astilla, on motion of PIRC, inhibited himself from the case and ordered the return of the case to the Executive Judge for re-raffle. Although he case was re-raffled to Branch 60, it was returned to Branch 61 of the RTC of Makati, presided by Judge Fernando V. Gorospe, Jr. On 19 July 1993, PIRC moved for reconsideration of the 17 May 1993 order of the RTC of Paraaque and prayed that PARAAQUE be ordered to vacate the lots on the following grounds: (1) the 17 May 1993 order violated PIRC's fundamental right to due process as it was given no notice nor opportunity to be heard before it was deprived of its property; (2) there was no appropriation ordinance nor certification as to the availability of "unobligated" funds for the expropriation of the lots; (3) the mandatory legal requirements for the immediate taking of possession of the lots were not fulfilled; (4) Section 19 of the LGC 4 is unconstitutional; (5) absence of an ordinance providing for the expropriation of the lots; (6) lack of a valid and definite offer previously made to PIRC; (7) lack of necessity for the expropriation of PIRC's lots considering the availability of other parcels of land suitable for PARAAQUE's purpose; (8) the expropriation violates the national policy of encouraging private investments; (9) failure to implead the Republic of the Philippines which, through the Presidential Commission of Good Government (PCGG), had sequestered the lots in question; and (10) lack of jurisdiction because the lots in question were also the subject of an action pending before the Sandiganbayan. On 10 August 1993, the RTC of Makati (Branch 61 Judge Gorospe) considered the motion for reconsideration submitted for resolution with respect to the ground of lack of jurisdiction, but deferred resolution of the other arguments. On 17 August 1993, the RTC of Makati (Branch 61) granted PIRC's motion for reconsideration and dismissed the case for lack of jurisdiction as the lots to be expropriated were in custodia legis, being sequestered by the PCGG and involved in a case pending before the Sandiganbayan. It also set aside the previous order of 17 May 1993 granting the petitioner's ex parte motion for the issuance of a writ of possession, and ordered the Deputy Sheriff to "maintain a [sic] status quo ante since it appears on record that this court has not yet issued the corresponding writ of possession to implement and enforce said order of 17 May 1993." On 23 August 1993, PARAAQUE moved for reconsideration of the 17 August 1993 order. On the other hand, PIRC filed an urgent ex parte motion for an order directing PARAAQUE to vacate the lots and surrender them to PIRC.

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On 31 August 1993, Judge Gorospe, upon PARAAQUE's motion, inhibited himself and ordered the case re-raffled. The case was eventually assigned to Branch 133 of the RTC of Makati, presided by Judge Ruben A. Mendiola. 5 On 22 October 1993, Branch 133 of the RTC of Makati, per Judge Mendiola, issued and order 6 denying PARAAQUE's motion for reconsideration and directing PARAAQUE and its agents to vacate the lots and surrender possession to PIRC within five days from notice. On 27 October 1993, PARAAQUE filed its Notice of Appeal 7 from the orders of 17 August 1993 and 22 October 1993. On 29 October 1993, Branch 133 of the RTC of Makati issued andorder 8 giving due course to PARAAQUE's appeal and ordering the transmittal of "the entire records" of Civil Case No. 93-1412 to the Court of Appeals for further proceedings. On 4 November 1993, PIRC filed a motion for the issuance of a writ implementing the order to vacate and the appointment of a special sheriff. 9 Forthwith, and on even date, the RTC of Makati (Branch 133) gave PARAAQUE a period of five days from receipt of the order within which to file its Comment/Opposition to the motion. 10 On 10 November 1993, PARAAQUE manifested 11 that the trial court had lost jurisdiction over the case "after November 6, 1993 with the perfection of [PARAAQUE's] appeal by the filing of its notice of appeal on 27 October 1993 before the 15-day period for appeal expired." Hence, no longer could the court act on PIRC's motion for an order to vacate, which PARAAQUE pointed out, was not a motion for execution pending appeal; and even assuming otherwise, no good reason was cited in the motion to justify its grant. Nevertheless, PARAAQUE asked the trial court "should [it] be [so] minded, before transmittal of the entire records to the Court of Appeals, to reverse or reconsider its appealed order due to the supervening event of a Sandiganbayan denial . . . of the PCGG motion for reconsideration of its decision lifting the sequestration . . . ." On 11 November 1993, PARAAQUE filed a manifestation calling the trial court's attention to the fact that up to said date, the record of the case had not been transmitted to the Court of Appeals. 12 On 16 November 1993, Branch 133 of the RTC of Makati issued an order 13 denying PARAAQUE's "prayer for reversal or second reconsideration of the August 17, 1993 order," contained in its Manifestation filed on 10 November 1993, but granting PIRC's motion for the issuance of a writ implementing the order to vacate which the court deemed a motion for execution pending appeal. It then ordered the issuance of a writ of execution upon PIRC's filing of a bond of P1 million, and appointed a special sheriff to implement the writ by ejecting PARAAQUE from the subject property and placing PIRC in physical possession thereof. PARAAQUE then filed with this Court a special civil action for certiorari and prohibition, docketed as G.R. No. 112442, to annul the orders of the trial court of 17 August 1993, 22 October 1993, and 16 November 1993. On 23 November 1993, this Court referred the case to the Court of Appeals, 14 which docketed it as CA-G.R. SP No. 32672. It was only on 4 January 1994 when the RTC transmitted to the Court of Appeals the record of Civil Case No. 93-1412, which, nevertheless, was still undocketed with the

Court of Appeals at the time the challenged Amended Decision in CA-G.R. SP No. 32672 was promulgated on 18 October 1994. 15 Parenthetically, it may be noted that PARAAQUE claims in its Memorandum dated 8 December 1995 that the said appeal remained undocketed "pending elevation by the trial court of the complete records to the Court of Appeals notwithstanding efforts made by Paraaque to expedite the appeal." 16 On 31 May 1994, the Court of Appeals rendered its original decision 17 in CA-G.R. SP No. 32672, dismissing the petition on the ground of forum shopping. It stated thus: It is evident that the subject of petitioner's appeal and this petition are basically the same orders issued by the trial court (dated August 17, 1993 and October 22, 1993; the November 16, 1993 order is merely a consequence of the earlier orders). It is essential for the issuance of a writ of certiorari and prohibition that there be no appeal or any plain, speedy and adequate remedy in the ordinary course of law. (Rule 65, secs. 1 and 2) In the case at bar, the remedy of appeal was available and in fact had been taken by petitioner on November 22, 1993. In the language of Collado v. Hernando, 161 SCRA 639, 645 (1988), where the petitioner also filed both an appeal and later a petition for certiorari, the Supreme Court described this "as a classic case of forum-shopping which this Court definitely cannot and will not countenance." Our conclusion that petitioner is guilty of forum-shopping and that its petition therefore must be dismissed makes it unnecessary for us to discuss the other issues raised therein. 18 PARAAQUE seasonably moved for is reconsideration 19 On 18 October 1994, the Court of Appeals promulgated its challenged Amended Decision 20 which disposed as follows: WHEREFORE, the Court GRANTS petitioner's motion for reconsideration dated 27 June 1994. We RECALL and SET ASIDE Our decision promulgated on May 31, 1994. In lieu thereof, the Court GRANTS the petition for certiorari and prohibition, hereby ANNULLING the order dated 11 November 1993, in Civil Case No. 93-1412 of the respondent Court, and permanently enjoining the respondent Court from further acting in said case, without prejudice to the final decision in the appeal. 21 In support thereof, it rationcinated as follows: (8) It was not until January 4, 1994, that the trial court's record was finally transmitted to this Court. The case is still undocketed (UDK 9504), for the reason that the appealing party has not yet paid the docketing and other legal fees. Moreover, the record is not yet complete in that certain transcripts of stenographic notes have not been submitted. The foregoing circumstances indicate that, indeed, the filing of an appeal was an inadequate remedy, and that the continuance of the proceedings in the trial court would have been an oppressive exercise of authority, which this Court, as the appellate Court, could not have stopped for the reason that the case was then not yet elevated to it. In fact, it was not until about two and a half (2 1/2) months from the filing of the notice of appeal, and about one and a half (1 1/2) month after the

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filing of this case on November 22, 1993, that the record of the trial court was forwarded to this Court on appeal. Hence, the certification on non-forum shopping should be taken as technically correct. Xxx xxx xxx

What is more, appeal having been perfected, the trial court should not have ordered the execution of its order to eject the plaintiff from the subject property. Even then, there is still a question as to its jurisdiction over the subject matter of the case. The order dated November 11, 1993, was issued precipitately, and with grave abuse of discretion amounting to lack or excess of jurisdiction. 22 Its motion for reconsideration 23 of the abovementioned Amended Decision having been denied on 16 February 1995, 24 PIRC filed this petition wherein it contends that the Court of Appeals erred in: (1) failing to dismiss PARAAQUE's special civil action for certiorari and prohibition on the ground of forum-shopping; (2) concluding that PARAAQUE could avail itself of the extraordinary remedy of certiorari; and (3) ruling that the RTC issued the writ for the execution pending appeal of the order to vacate precipitately or with grave abuse of discretion. 25 The subject of PARAAQUE's petition for certiorari (CA-G.R. SP No. 32672) was the annulment of the following: (1) the order of 17 August 1993 dismissing the complaint for expropriation filed by it; (2) the order of 22 October 1993 denying the motion for reconsideration of the order of dismissal and directing PARAAQUE to vacate the premises and to peacefully surrender the possession thereof to PIRC; and (3) the order of 16 November 1993 granting PIRC's motion for the issuance of a writ of execution to implement the order to vacate. It must be pointed out that the first two orders were the subject of the ordinary appeal interposed by PARAAQUE. It would appear from the language of Section 1, Rule 65 of the Rules of Court that the availability of the right to appeal precludes recourse to the special civil action for certiorari. 26 However, it is settled, as a general proposition, that the availability of an appeal does not foreclose recourse to the extraordinary remedies, such as certiorari and prohibition, where appeal is not adequate or equally beneficial, speedy and sufficient, 27 as where the orders of the trial court were issued in excess of or without jurisdiction; 28 or there is need to promptly relieve the aggrieved party from the injurious effects of the acts of an inferior court or tribunal, e.g., the court has authorized execution of the judgment. 29 Under the peculiar, nearly bizarre circumstances obtaining in this case, the inclusion of these two orders in the special civil action for certiorari does not defeat the propriety nor viability of the special civil action for certiorari solely on the ground of forum shopping. For one, the said special civil action primarily attacks the 16 November 1993 order for having been issued without or in excess of jurisdiction or with grave abuse of discretion. This order was not, and could not have been, the subject of the notice of appeal, as it was issued only nineteen days after the trial court had given due course to the appeal and ordered the transmittal of the entire case record to the Court of Appeals. At that time, PARAAQUE had no other available plain, speedy, and adequate remedy in the ordinary course of law against the order directing execution of the order to vacate, except a special civil action for certiorari under Section 1, Rule 65 of the Rules of Court. In this regard, an appeal was obviously inadequate as the trial court even unreasonably and unjustly delayed the transmittal of the case record to the Court of

Appeals in connection with the appeal interposed against the orders of 17 August 1993 and 22 October 1993, despite the appellate court's 29 October 1993 order for such transmittal. Moreover, the RTC initially transmitted an incomplete record of 4 January 1994, hence, the case remained undocketed a fact disclosed by both the challenged Amended Decision and PARAAQUE's Memorandum dated 8 December 1995. 30 This delay then provided PARAAQUE a valid reason to likewise challenge, in the same certiorari proceeding, the orders of 17 August 1993 and 22 October 1993, which are inexorably linked to the 16 November 1993 order. As we see it, the trial court allowed itself to be privy to a scheme to obstruct the course of the ordinary appeal and to deprive PARAAQUE of its possession of the lots which it had obtained on 18 May 1993 after it had deposited the required amount which entitled it to immediate possession of the properties. Under this anomalous set of circumstances which the trial court itself created, we find no cogent reason to inflict upon PARAAQUE the extreme penalty for forum-shopping. There can, however, be no question as to the trial court's authority to act upon PIRC's motion, filed within the period to appeal, for the issuance of a writ implementing the order to vacate issued on 22 October 1993. Such a motion cannot be characterized as anything but a motion for execution pending appeal, and pursuant to Section 2, Rule 39 of the Rules of Court, such may be filed before the expiration of the period to appeal, i.e., fifteen days counted from notice of the 22 October 1993 order. 31 An appeal from such order of execution of 22 October 1993 would be deemed perfected not by the filing of the notice to appeal by one party, but upon the expiration of the last day to appeal by any party. 32 According to PARAAQUE, its last day to file the Notice of Appeal was on 6 November 1993 as it received a copy of the 22 October 1993 order on the latter date. 33 Assuming that PIRC likewise received a copy of the 22 October 1993 order on the said date, its last day to appeal, if it were so minded, was also on 6 November 1993. Accordingly, although PARAAQUE filed its notice of appeal on 27 October 1993, that appeal was not yet perfected because PIRC had until 6 November 1993 to file its notice of appeal if it so desired. The legal effect of PARAAQUE's filing its notice of appeal on 27 October 1993 was merely to render the clause, "upon the expiration of the last day to appeal by any party," 34 inapplicable to PARAAQUE, but not to PIRC. 35 PIRC may then, at any time before 6 November 1993, have filed a motion for a writ to implement the 22 October 1993 order to vacate. It is settled that a court may take cognizance of a motion for execution pending appeal filed by a party within its period to appeal, 36 as the filing of an appeal by a losing party does not automatically divest the adverse party of the right to ask for execution pending appeal. 37 Thus, the trial court's 29 October 1993 order giving due course to PARAAQUE's appeal and for the transmittal of the record of the case to the Court of Appeals was inconsequential, 38 for, despite that, PIRC had the right to file a motion for the execution of the order to vacate on or before 6 November 1993, and the trial court could validly act thereon even after the expiration of the period to appeal or perfection of the appeal, but before the transmittal of the record of the case to the appellatecourt. 39 The remaining issue for resolution is whether the trial court acted in excess of jurisdiction or with grave abuse of discretion in granting the motion for a writ to implement the order to vacate. We agree with the Court of Appeal's affirmative conclusion thereto, but not for the reasons relied upon.

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Section 2, Rule 39 of the Rules of Court provides: Sec. 2 Execution pending appeal. On motion of the prevailing party with notice to the adverse party, the court may in its discretion, order execution to issue before the expiration of the time to appeal, upon good reasons to be stated in a special order. If a record on appeal is filed thereafter, the motion and the special order shall be included therein. Obviously, the execution of judgment pending appeal is an exception to the general rule and must, therefore, be strictly construed. 40 While the grant thereof is discretionary, the aforesaid Section 2 prescribes the following requisites for the valid exercise of the discretion: (a) there must be a motion by the prevailing party with notice to the adverse party; (b) there must be a good reason for execution pending appeal; and (c) the good reason must be stated in a special order. 41 Our examination of PIRC's motion for the issuance of a writ implementing the order to vacate and the appointment of the special sheriff 42 shows that it contained no notice of hearing to PARAAQUE. The notice was a request directed to the Clerk of Court to submit the motion to the court for its consideration and approval "immediately upon receipt thereof," which reads in full as follows: The Clerk of CourtRegional Trial Court National Capital Judicial Region Makati, Branch 133 Greetings: Please submit the foregoing motion for the consideration and approval of the Honorable Court immediately upon receipt hereof. (Sgd.) Ma. Dolores T. Syquia (Typ.) MA. DOLORES T. SYQUIA A notice of hearing addressed to the Clerk of Court, and not to the parties, is not notice at all. Accordingly, a motion that does not contain a notice of hearing to the adverse party is nothing but a mere scrap of paper. 43 The Clerk of Court did not even have the duty to accept it, much more to bring it to the attention of the Presiding Judge. Yet, the former did. Worse, the latter not only gave it undue attention, forthwith on the date the motion was filed he issued an order giving PARAAQUE five days from receipt of the order within which to file its comment/opposition to the motion, after which the motion would be deemed submitted for resolution, with or without such comment/opposition. By overlooking the mandatory rule on notice to the adverse party in Section 2, Rule 39 of the Rules of Court, a positive duty imposed upon the movant, and by according value to a mere scrap of paper by "curing" its fatal defect by means of the order to serve as notice to PARAAQUE, the trial court clearly acted with grave abuse of discretion. Since the motion in question was a mere scrap of paper for want of mandatory notice, it must be deemed, for all legal intents and purposes, as if it were not filed; hence, it did not suspend the running of PIRC's period to appeal. As stated earlier, a motion for execution pending appeal must be filed within the period to appeal. It follows that none was properly filed by PIRC and the trial court had nothing to validly

act upon. When it did through its order of 16 November 1993, it was nothing short of grave abuse of discretion. To these must be added the palpable absence of any good reason to justify execution pending appeal. In the challenged order of 16 November 1993, the trial judge stated the following as the reasons: In the subject incident, defendant alleges and explains that "the continued possession of the Municipality of defendant's property has caused and will continue to cause great damage to defendant." It is also to be mentioned that the takeover of the subject property by plaintiff was done pursuant to proceeding which was void, meaningless and ineffectual, considering that the court has not acquired jurisdiction over the subject matter thereof. These and the fact the implementation of the Court's order to vacate will not result to the loss of the plaintiff, as it will only restore the subject property to its status quo ante, are reasons that the court sees to be good enough to merit the granting of the relief prayed for. Nevertheless, the Court would impose an additional requirement that defendant should first post a bond, before the writ prayed for should issue. 44 Good reasons that allow or justify execution pending appeal must be superior circumstances demanding urgency which will outweigh the injury or damage should the losing party secure a reversal of the judgment. 45 The above "reasons" relied upon by the trial court hardly qualify as "good." In the first place, PIRC did not offer any evidence to prove the "great damage" it alleged in its motion. Second, the issue of whether the trial court had jurisdiction over the expropriation case or whether the proceedings earlier had therein were "void, meaningless, and ineffectual" was the pivotal issue in the appeal interposed by PARAAQUE, and the trial court acted improperly in making such a sweeping pronouncement after it had already given due course to PARAAQUE's appeal. Moreover, the case below is an expropriation case and PARAAQUE was placed in possession of the property as early as 18 May 1993 after it had deposited the required amount pursuant to Section 19 of the LGC. Public interest was clearly involved, thus prudence and utmost circumspection, instead of undue haste, should have guided the trial court away from capriciousness. The bond in the amount of P1,000,000.00 which the trial court also required for execution of the order to vacate did not make up for the absence of any good reason for the execution pending appeal. It is settled that the filing of a bond cannot, by itself, entitle one to execution pending appeal. 46 WHEREFORE, for want of merit, the instant petition is hereby DENIED, with costs against the petitioner. SO ORDERED. Hearing of Motions, Rule 15, Sec. 4, 7 Sec. 7. Motion day. Except for motions requiring immediate action, all motions shall be scheduled for hearing on Friday afternoons, or if Friday is a non-working day, in the afternoon of the next working day. Orosa V. Court of Appeals, 261 SCRA 376 Orosa vs CA (Bertan Press) 261 SCRA 376

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Bellosillo, J.; September 3, 1996 NATURE Review on Certiorari FACTS RTC Manila - Complaint for sum of money filed by Bertan Press against petitioners. Summonses were issued but were served through the secretary of the petitioners on February 6, 1993 - Petitioners filed motion for additional time on February 24, 1993. - Private respondents moved to have petitioners declared on default for failure to file answer within the reglementary period which motion the court granted on March 8. - Petitioners filed motion for reconsideration together with their answer on March 30, 1993. - Motion for reconsideration denied and answer was expunged from the record on March 22, 1994. CA - Petitioners filed petiton for certiorari under Rule 65 on April 19, 1994 with the CA which it dismissed on October 18, 1994. - Motion for reconsideration denied on January 20, 1995 SC - Petitioners filed petiton for review. - Contention is that there was no valid service of summons on petitioners as there is showing that earnest efforts were exerted to serve summons on them personally. Hence, jurisdiction was never acquired over the petitioners by the lower court under Sections 7 and 8 of Rule 14 which read as follows: Sec. 7. Personal service of summons. - The summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive it, by tendering it to him. 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. ISSUE/S WON service of summons on petitioners was proper HELD No. The service of summons was defective as the sheriffs return is bereft of any particulars on the impossibility of personal service on petitioners within a reasonable time. However, they are deemed to have waived any flaw in the court's jurisdiction arising from a defective service of summons. For, instead of entering a special appearance questioning the propriety of the service of summons, hence, the exercise of Jurisdiction by the trial court over petitioners, they filed a motion for additional time to file answer on 24 February 1993, which was beyond the reglementary period. In effect, they voluntarily submitted to the Jurisdiction of the court. Consequently, whatever defect there was in the mode of service of summons was deemed waived and the court acquired Jurisdiction over the persons of petitioners by their voluntary submission thereto. Disposition Petition is denied

Dissent by Vitug: "The summons must be served to the defendant in person. It is only when the defendant cannot be served personally within a reasonable time that a substituted service may be made. Impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the fact that such efforts failed. This statement should be made in the proof of service. This is necessary because substituted service is 'in derogation of the usual method of service. It has been held that this method of service is' in derogation of the common law; it is a method extraordinary in character, and hence maybe used only as prescribed and in the circumstances authorized by statute.' Thus, under the controlling decisions, the statutory requirements of substituted service must be followed strictly, faithfully and fully, and any substituted service other than that authorized by the statute is considered ineffective. "Indeed, the constitutional requirement of due process requires that the service be such as may be reasonably expected to give the desired notice to the party of the claim against him." The fact that the defendants later submitted a motion for additional time within which to file their answer to the complaint should not be deemed a waiver of the defective service of summons except only from the date of such submission or voluntary appearance since it was only then when Jurisdiction over their persons could be deemed to have been lawfully acquired by the court.

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