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CITIZENS SURETY vs HERRERA

G.R. No. L-32170, March 31, 1971


REYES, J.B.L., J.
FACTS: At the request of Santiago Dacanay, Citizens Surety and Insurance Co. alleged that it
issued two surety bonds to guarantee payment of P5K promissory notes in favor Gregorio Fajardo
and Manufacturers Bank & Trust Co respectively.
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; that as additional security, the Dacanays mortgaged to plaintiff a parcel of land
in Baguio City, covered by Certificate of Title No. T-8116, the mortgage having been duly
recorded.
The Dacanays failed to pay the promissory notes compelling Citizens to pay. The Dacanays failed
to reimburse Citizens however, forcing the latter to cause the extrajudicial foreclosure of the
mortgage and file a case to recover the unsatisfied balance.
At petitioners request, the respondent Judge caused summons to be made by publication in the
Philippines Herald. Despite such publication and deposit of copy with the Manila post office, the
defendant did not appear within 60 days from the last publication.
Plaintiff sought the defendants to be declared in default, instead the Judge, by order, asked it to
show 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
Suretys argument that the summons by publication was sufficient and valid under section 16 of
Rule 14 of the Revised Rules of Court.
ISSUE: W/N summons made by publication is sufficient for the court to acquire jurisdiction in suit
being in personam.
RULING: 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. In an action strictly in personam, personal service of summons, within the forum, is
essential to the acquisition of jurisdiction over the person of the defendant, who does not
voluntarily submit himself to the authority of the court. 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 defendants.
The proper recourse for the creditor is to locate properties, real or personal, of the resident
defendant debtor with unknown address and cause them to be attached, in which case, the
attachment converts the action into a proceeding in rem or quasi in rem and the summons by
publication may be valid.
Given the skill of debtors to conceal their properties however, the decision of the respondent
Judge should be set aside and held pending in the archives until petitioner tracks down the
whereabouts of the defendants person or properties.