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G.R. No.

150908 January 21, 2005

PACAÑA-GONZALES, as one of the heirs of Luciano Pacaña,


petitioner, vs. THE HONORABLE COURT OF APPEALS and
MANUEL CARBONELL PHUA, respondents.

CARPIO MORALES, J.:

FACTS:

Spouses Amarillo registered owners of subject lot 7746 located in


Cebu, it was conveyed to Manuel Carbonell Phua and Amarillo􏰀s title
was cancelled. More than a decade later heirs of Pacaña claim the lot
and filed a complaint for Nullity of Title and Annulment of Deed of
Sale. Summons together with the complaint was served to the
spouses Amarillo but not to the Phua who was unknown at his given
address at Salinas Compound Lahug, Cebu City. Service of
summons to Phua by postal service was served but the same failed,
then summons by publication was resorted. It was publish once a
week for (3) three consecutive weeks.

No answer recievd by Phua within reglementary period. The RTC


declared him in default and the heirs of Pacaña were allowed to
present their evidence exparte. Decision was served against the
defendant by publication and the Register of Deeds of Cebu City
issue a new transfer certificate of title to Pacaña.
Phua filed for annulment of judgment in Court Of Appeals, because
when the case was filed by the Pacaña he did not receive any
summons because he was outside the country. CA granted the
petition and the RTC􏰀c decision were declared null and void, for lack
of jurisdiction over the person.

ISSUE:

1. Whether or not the service of summons to Phua was valid.


2. Whether or not the publisher is of general circulation.
3. Whether or not RTC acquire jurisdiction.

RULING:

1. In rule 14 SEC. 21. 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. Since
Phua’s whereabouts were unknown and could not be
ascertained by diligent inquiry, service of summons by
publication was correctly availed of by the Heirs of Pacaña. But
such service of summons to Phua by publication was not
supported by an affidavit therefore it is invalid.

2. The Visayan Herald is published for the dissemination of local


news and general information, that it has a bona fide
subscription list of paying subscribers and that it is published at
regular intervals. The Visayan Herald publishing was not
considered a newspaper of general circulation because their
publications were by intervals and is only by their bona fide
subscription list of paying subscribers, literally not for public and
thus not qualified as general circulation.

3. Regional Trial Court failed to acquire jurisdiction for not


diligently following required necessary requisites. Hence the
issuance of new certificate is null and void.

WHEREFORE, the petition is hereby DENIED for lack of merit.

Costs against petitioner.