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Tamano who could file an action for annulment of their marriage.

Petitioner
1. Tamano v. Ortiz, Jun. 29, 1998 likewise contended that since Tamano and Zorayda were both Muslims and
married in Muslim rites the jurisdiction to hear and try the instant case was
vested in the sharia courts pursuant to Art. 155 of the Code of Muslim Personal
FIRST DIVISION Laws.

[G.R. No. 126603. June 29, 1998] The lower court denied the motion to dismiss and ruled that the instant
case was properly cognizable by the Regional Trial Court of Quezon City since
ESTRELLITA J. TAMANO, petitioner, vs. HON. RODOLFO A. ORTIZ, Estrellita and Tamano were married in accordance with the Civil Code and not
Presiding Judge, RTC-Br. 89, Quezon City, HAJA PUTRI exclusively in accordance with PD No. 1083[2] or the Code of Muslim Personal
ZORAYDA A. TAMANO, ADIB A. TAMANO and the HON. COURT laws. The motion for reconsideration was likewise denied; hence, petitioner
OF APPEALS, respondents. filed the instant petition with this Court seeking to set aside the 18 July 1995
order of respondent presiding judge of the RTC-Br. 89, Quezon City, denying
DECISION petitioners motion to dismiss and the 22 August 1995 order denying
reconsideration thereof.
BELLOSILLO, J.:
In a Resolution dated 13 December 1995 we referred the case to the
This Petition for Review on Certiorari seeks to reverse and set aside the Court of Appeals for consolidation with G.R. No. 118371. Zorayda and Adib A.
decision of the Court of Appeals of 30 September 1996 in CA-G.R. SP. No. Tamano however filed a motion, which the Court of Appeals granted, to resolve
39656 which affirmed the decision of the Regional Trial Court-Br. 89, Quezon the Complaint for Declaration of Nullity of Marriage ahead of the other
City, denying the motion to dismiss as well as the motion for reconsideration consolidated cases.
filed by petitioner Estrellita J. Tamano.
The Court of Appeals ruled that the instant case would fall under the
On 31 May 1958 Senator Mamintal Abdul Jabar Tamano (Tamano) exclusive jurisdiction of sharia courts only when filed in places where there
married private respondent Haja Putri Zorayda A. Tamano (Zorayda) in are sharia courts. But in places where there are no sharia courts, like Quezon
civilrites. Their marriage supposedly remained valid and subsisting until his City, the instant case could properly be filed before the Regional Trial Court.
death on 18 May 1994. Prior to his death, particularly on 2 June 1993, Tamano
also married petitioner Estrellita J. Tamano (Estrellita) in civil rites in Malabang, Petitioner is now before us reiterating her earlier argument that it is
Lanao del Sur. the sharia court and not the Regional Trial Court which has jurisdiction over the
subject and nature of the action.
On 23 November 1994 private respondent Zorayda joined by her son Adib
A. Tamano (Adib) filed a Complaint for Declaration of Nullity of Marriage of Under The Judiciary Reorganization Act of 1980,[3] Regional Trial Courts
Tamano and Estrellita on the ground that it was bigamous. They contended have jurisdiction over all actions involving the contract of marriage and marital
that Tamano and Estrellita misrepresented themselves as divorced and single, relations.[4] Personal actions, such as the instant complaint for declaration of
respectively, thus making the entries in the marriage contract false and nullity of marriage, may be commenced and tried where the plaintiff or any of
fraudulent. the principal plaintiffs resides, or where the defendant or any of the principal
defendants resides, at the election of the plaintiff.[5]There should be no question
Private respondents alleged that Tamano never divorced Zorayda and that by now that what determines the nature of an action and correspondingly the
Estrellita was not single when she married Tamano as the decision annulling court which has jurisdiction over it are the allegations made by the plaintiff in
her previous marriage with Romeo C. Llave never became final and executory this case.[6] In the complaint for declaration of nullity of marriage filed by private
for non-compliance with publication requirements. respondents herein, it was alleged that Estrellita and Tamano were married in
accordance with the provisions of the Civil Code. Never was it mentioned that
Estrellita filed a motion to dismiss alleging that the Regional Trial Court of
Estrellita and Tamano were married under Muslim laws or PD No.
Quezon City was without jurisdiction over the subject and nature of the
1083. Interestingly, Estrellita never stated in her Motion to Dismiss that she and
action. She alleged that "only a party to the marriage" could file an action
Tamano were married under Muslim laws. That she was in fact married to
for annulment of marriage against the other spouse,[1] hence, it was only
Tamano under Muslim laws was first mentioned only in her Motion for Sec. 19. Jurisdiction in Civil Cases. - Regional Trial Courts shall
Reconsideration. exercise exclusive original jurisdiction: x x x (6) In all cases not within
the exclusive jurisdiction of any court, tribunal, person or body
Nevertheless, the Regional Trial Court was not divested of jurisdiction to exercising judicial or quasi-judicial functions x x x x
hear and try the instant case despite the allegation in the Motion for
Reconsideration that Estrellita and Tamano were likewise married in Muslim WHEREFORE, the instant petition is DENIED. The decision of the Court
rites. This is because a courts jurisdiction cannot be made to depend upon of Appeals sustaining the 18 July 1995 and 22 August 1995 orders of the
defenses set up in the answer, in a motion to dismiss, or in a motion for Regional Trial Court - Br. 89, Quezon City, denying the motion to dismiss and
reconsideration, but only upon the allegations of the complaint.[7]Jurisdiction reconsideration thereof, is AFFIRMED. Let the records of this case be
over the subject matter of a case is determined from the allegations of the immediately remanded to the court of origin for further proceedings until
complaint as the latter comprises a concise statement of the ultimate facts terminated.
constituting the plaintiffs causes of action.[8]
SO ORDERED.
Petitioner argues that the sharia courts have jurisdiction over the instant
suit pursuant to Art. 13, Title II, PD No. 1083,[9] which provides - Davide, Jr., (Chairman), Vitug, Panganiban, and Quisumbing, JJ., concur.

Art. 13. Application. - (1) The provisions of this Title shall apply to
marriage and divorce wherein both parties are Muslims, or wherein
only the male party is a Muslim and the marriage is solemnized in
accordance with Muslim law or this Code in any part of the Philippines. [1] Motion to Dismiss, p. 3; Rollo, p. 52.
(2) In case of a marriage between a Muslim and a non-Muslim, [2] Order, p. 2; Records, p. 20.
solemnized not in accordance with Muslim law or this Code, the Civil
Code of the Philippines shall apply. [3] Sec. 19, BP 129 as amended.
(3) Subject to the provisions of the preceding paragraphs, the [4] Sec.
19, B.P. Blg. 129, as amended, otherwise known as The Judiciary
essential requisites and legal impediments to marriage, divorce, Reorganization Act of 1980.
paternity and filiation, guardianship and custody of minors, support
[5] Sec. 2, Rule 4, 1997 Rules of Civil Procedure, as amended.
and maintenance, claims for customary dower (mahr), betrothal,
breach of contract to marry, solemnization and registration of marriage [6] Sandel
and divorce, rights and obligations between husband and wife, v. Court of Appeals, G.R. No. 117250, 19 September 1996, 262
parental authority, and the property relations between husband and SCRA 109.
wife shall be governed by this Code and other applicable Muslim laws. [7] Id., p. 110.
As alleged in the complaint, petitioner and Tamano were married in [8] Bernardo v. Court of Appeals, G.R. No. 120730, 28 October 1996, 263 SCRA
accordance with the Civil Code. Hence, contrary to the position of petitioner,
660.
the Civil Code is applicable in the instant case. Assuming that indeed petitioner
and Tamano were likewise married under Muslim laws, the same would still fall [9] The Code of Muslim Personal Laws of the Philippines.
under the general original jurisdiction of the Regional Trial Courts.

Article 13 of PD No. 1083 does not provide for a situation where the
parties were married both in civil and Muslim rites. Consequently,
the shariacourts are not vested with original and exclusive jurisdiction when it
comes to marriages celebrated under both civil and Muslim laws. Consequently, 2. Siasoco v. CA, Feb. 15, 1999
the Regional Trial Courts are not divested of their general original jurisdiction
under Sec. 19, par. (6) of BP Blg. 129 which provides -
THIRD DIVISION denied the Motion to Declare Defendants Siasoco et al. (herein petitioners) in
Default. The second Order denied the Motion for Suspension filed by
[G.R. No. 132753. February 15, 1999] defendants and directed them to file their answer to plaintiffs Amended
Complaint.
MARIO SIASOCO, ANGELITA E. SIASOCO, MA. BELLA SIASOCO, ESTER
SIASOCO-LAMUG, MA. LOURDES SIASOCO LAMUG-BARRIOS, Undaunted, petitioners seek recourse in this Court.[5]
MA. RAMONA SIASOCO LAMUG, MA. VICTORIA SIASOCO
The Facts
LAMUG-DOMINGUEZ, BELEN SIASOCO-JOSE, RAFAEL
SIASOCO JOSE, CYNTHIA SIASOCO JOSE, CRISTINA SIASOCO
JOSE, ROBERTO SIASOCO JOSE, CARIDAD SIASOCO JOSE, Petitioners were the registered owners of nine parcels of land located in
RAMON SIASOCO JOSE, OSCAR SIASOCO, RUBEN SIASOCO, Montalban, Rizal. In December 1994, they began to offer the subject properties
SALOME SIASOCO-PAZ, MEDARDO PAZ SIASOCO, ROLANDO for sale.Subsequently, Iglesia ni Cristo (INC) negotiated with the petitioners,
PAZ SIASOCO, JESUS PAZ SIASOCO, NELLY STO. DOMINGO but the parties failed to agree on the terms of the purchase. More than a year
NARIO, MARY GRACE, STO. DOMINGO NARIO and MARY ANNE later, both parties revived their discussions. In a letter dated December 16,
STO. DOMINGO NARIO, petitioners, vs. COURT OF APPEALS; 1996, petitioners made a final offer to the INC. The latters counsel sent a reply
HON. MARCELINO F. BAUTISTA, JR., Presiding Judge, Branch received by Petitioner Mario Siasoco on December 24, 1996, stating that the
215, Regional Trial Court, Quezon City; and the IGLESIA NI offer was accepted, but that the INC was not amenable to your proposal to an
CRISTO, respondents. undervaluation of the total consideration. In their letter dated January 8, 1997,
petitioners claimed that the INC had not really accepted the offer, adding that,
DECISION prior to their receipt of the aforementioned reply on December 24, 1996, they
had already contracted with Carissa for the sale of the said properties due to
PANGANIBAN, J.: the absence of any response to their offer from INC.
Notwithstanding the filing of a responsive pleading by one defendant, the Maintaining that a sale had been consummated, INC demanded that the
complaint may still be amended once, as a matter of right, by the plaintiff in corresponding deed be executed in its favor. Petitioners refused. The ensuing
respect to claims against the non-answering defendant(s). The Court also events were narrated by the Court of Appeals, as follows:
reiterates that certiorari is not the proper remedy to contest a lower courts final
adjudication, since appeal is available as a recourse. On January 14, 1997, private respondent filed a civil suit for [s]pecific
[p]erformance and [d]amages against petitioners and Carissa Homes and
Statement of the Case
Development & Properties, Inc. docketed as Civil Case No. Q-97-29960.
Petitioners assail the February 25, 1998 Decision[1] of the Court of Petitioners filed therein a Motion to Dismiss on the ground of improper venue
Appeals[2] in CA-GR SP No. 45451, the dispositive portion of which reads: and lack of capacity to sue.
WHEREFORE, [the] foregoing considered, the present petition for certiorari is Carissa Homes filed its answer to the complaint on February 24, 1997.
hereby DENIED for lack of merit. The Temporary Restraining Order issued by
this Court on December 17, 1997 is hereby lifted. Petitioners are given six (6) Pending resolution of petitioners Motion to Dismiss, private respondent
days from receipt of this decision within which to file their answer. The motion negotiated with Carissa Homes which culminated in the purchase of the subject
for oral argument filed by respondent is rendered moot. Respondent court is properties of Carissa Homes by private respondent.
ordered to proceed and resolve the case with deliberate speed.[3]
On April 24, 1997, private respondent filed an [A]mended [C]omplaint, dropping
The foregoing disposition affirmed two Orders of the Regional Trial Court Carissa Homes as one of the defendants and changing the nature of the case
(RTC) of Quezon City, Branch 215, dated August 11, 1997 and September 11, to a mere case for damages.
1997 in Civil Case No. Q-97-29960.[4] The first Order (1) admitted the Amended
Complaint; (2) dropped Defendant Carissa Homes Development and
Properties, Inc. (hereafter referred to as Carissa) from the Complaint; and (3)
Petitioners filed a Motion to Strike Out Amended Complaint, contending that the Complaint did not substantially alter private respondents cause of action, since
complaint cannot be amended without leave of court, since a responsive petitioners were not being asked to answer a legal obligation different from that
pleading has been filed. stated in the original Complaint.
Assignment of Errors
On August 11, 1997, the first assailed order denying petitioners Motion to Strike
Out Amended Complaint was rendered.
In their Memorandum, petitioners submit, for the consideration of this
On August 31, 1997, petitioners filed a Motion for Suspension of Proceeding Court, the following issues:[6]
pending the resolution [by] the respondent court of the Motion to Dismiss earlier
filed. A.

On September 11, 1997, the second assailed order denying petitioners Motion Whether or not the respondent Court of Appeals gravely erred in holding
to Suspend Proceeding was rendered[;] the Order reads: that the respondent Judges admission of INCs Amended Complaint was
proper.
Filed also last September 1, 1997 [was] a Motion for Suspension by the
defendant Siasoco thru their counsel Atty. Clara Dumandang-Singh. Although B.
the court could not consider the motion filed because it violates the new rules
Whether or not the respondent Court of Appeals gravely erred in affirming
on personal service, in the interest of justice, the court will resolve the
respondent Judges denial of petitioners Motion for Suspension.
motion. In the resolution of this court dated August 11, 1997, it state[d] that
defendants [were being] given a period of five (5) days within which to file [an] C.
answer to the Amended Complaint. The defendants here obviously refer to the
defendants Mario Siasoco, et. al. In the Motion for Suspension filed by the Whether or not the respondent Court of Appeals gravely erred in refusing
defendants Siasoco, et al., the latter insist on the court resolving the motion to to hear petitioners application for a temporary restraining order and writ of
dismiss. As stated in the resolution, the motion to dismiss is now moot and preliminary injunction.
academic because of the Amended Complaint from Specific Performance with
Damages to just Damages. For this court to resolve the Motion to Dismiss xxx Simply stated, the question is: did the CA err in affirming the two Orders of
the first complaint, would be an exercise in futility. The main complaint now is the RTC which had allowed the Amended Complaint?
damages and no longer Specific Performance with damages which [was] The Courts Ruling
actually what the Resolution dated August 11, 1997 [was] all about. Be that as
it may, the court gives defendants Siasoco, et al. fifteen (15) days from receipt
The petition is devoid of merit. We sustain the Court of Appeals, but for
of this Order to file their respective Answers to the Amended Complaint, not
reasons different from those given in the assailed Decision.
from the receipt of the resolution of the Motion to Dismiss which will not be
forthcoming. Preliminary Issue: Propriety of Certiorari

Ruling of the Court of Appeals


In their Petition and Memorandum, Mario Siasoco et al. emphasize that
the instant suit was commenced pursuant to Rule 65 of the 1997 Rules of
The Court of Appeals (CA) ruled that although private respondent could no
Procedure and allege that Respondent Court of Appeals committed grave
longer amend its original Complaint as a matter of right, it was not precluded
abuse of discretion in issuing the challenged Decision dated February 25, 1998
from doing so with leave of court. Thus, the CA concluded that the RTC had not
xxx. This is a procedural error. For the writ of certiorari under Rule 65 to issue,
acted with grave abuse of discretion in admitting private respondents Amended
the petitioner must show not only that the lower court acted with grave abuse of
Complaint.
discretion, but also that there is no appeal, or any other plain, speedy, and
Petitioners argued that the trial court where the original Complaint for adequate remedy in the ordinary course of law. [7] Since the questioned CA
specific performance had been filed was not the proper venue. Debunking Decision was a disposition on the merits, and since said Court has no
petitioners argument, the CA explained that the RTC nevertheless had remaining issue to resolve, the proper remedy available to petitioners was a
jurisdiction over the said Complaint. The CA also held that the Amended petition for review under Rule 45, not Rule 65. Furthermore, as a general
rule, certiorari under Rule 65 cannot issue unless the lower court, through a of cases or prevent the circuity of action and unnecessary expense, unless
motion for reconsideration, has been given an opportunity to correct the there are circumstances such as inexcusable delay or the taking of the adverse
imputed error.[8] Although there are recognized exceptions to this rule, party by surprise or the like, which might justify a refusal of permission to
petitioners do not claim that this case is one of them. For this procedural lapse, amend.[13]
the instant petition should be dismissed outright.
In the present case, petitioners failed to prove that they were prejudiced by
Nonetheless, inasmuch as the Petition was filed within the 15-day period private respondents Amended Complaint. True, Carissa had already filed its
provided under Rule 45, and considering the importance of the issue raised own Answer. Petitioners, however, have not yet filed any. Moreover, they do
and the fact that private respondent did not question the propriety of the instant not allege that their defense is similar to that of Carissa. On the contrary,
Petition, the Court treated the action as a petition for review (not certiorari) private respondents claims against the latter and against petitioners are
under Rule 45 in order to accord substantial justice to the parties. We will thus different. Against petitioners, whose offer to sell the subject parcels of land had
proceed to discuss the substantive issue. allegedly been accepted by private respondent, the latter is suing for specific
performance and damages for breach of contract. Although private respondent
Main Issue: Admission of Amended Complaint
could no longer amend, as a matter of right, its Complaint against Carissa, it
could do so against petitioners who, at the time, had not yet filed an answer.
Petitioners argue that the lower courts erred in admitting the Amended
Complaint. Under the Rules, a party may amend his pleading once as a matter The amendment did not prejudice the petitioners or delay the
of right at any time before a responsive pleading is served xxx. [9] When private action. Au contraire, it simplified the case and tended to expedite its
respondent filed its Amended Complaint, Carissa, the other party-defendant in disposition. The Amended Complaint became simply an action for damages,
the original Complaint, had already filed its Answer. Because a responsive since the claims for specific performance and declaration of nullity of the sale
pleading had been submitted, petitioners contend that private respondent have been deleted.
should have first obtained leave of court before filing its Amended
RTC Had Jurisdiction
Complaint. This it failed to do. In any event, such leave could not have been
granted, allegedly because the amendment had substantially altered the cause
of action. Petitioners also insist that the RTC of Quezon City did not have jurisdiction
over the original Complaint; hence, it did not have any authority to allow the
This argument is not persuasive. It is clear that plaintiff (herein amendment. They maintain that the original action for specific performance
private respondent) can amend its complaint once, as a matter of right, before involving parcels of land in Montalban, Rizal should have been filed in the RTC
a responsive pleading is filed.[10] Contrary to the petitioners contention, the fact of that area. Thus, they chide the CA for allegedly misunderstanding the
that Carissa had already filed its Answer did not bar private respondent from distinction between territorial jurisdiction and venue, thereby erroneously
amending its original Complaint once, as a matter of right, against herein holding that the RTC had jurisdiction over the original Complaint, although
petitioners. Indeed, where some but not all the defendants have answered, the venue was improperly laid.
plaintiffs may amend their Complaint once, as a matter of right, in respect to
claims asserted solely against the non-answering defendants, but not as to We disagree. True, an amendment cannot be allowed when the court has
claims asserted against the other defendants.[11] no jurisdiction over the original Complaint and the purpose of the amendment is
to confer jurisdiction on the court.[14] In the present case, however, the RTC had
The rationale for the aforementioned rule is in Section 3, Rule 10 of the jurisdiction because the original Complaint involved specific performance with
Rules of Court, which provides that after a responsive pleading has been filed, damages. In La Tondea Distillers v. Ponferrada,[15] this Court ruled that a
an amendment may be rejected when the defense is substantially complaint for specific performance with damages is a personal action and may
altered.[12] Such amendment does not only prejudice the rights of the defendant; be filed in the proper court where any of the parties reside, viz.:
it also delays the action. In the first place, where a party has not yet filed a
responsive pleading, there are no defenses that can be altered. Furthermore, Finally, [w]e are not also persuaded by petitioners argument that venue should
the Court has held that [a]mendments to pleadings are generally favored and be lodged in Bago City where the lot is situated. The complaint is one for
should be liberally allowed in furtherance of justice in order that every case may specific performance with damages. Private respondents do not claim
so far as possible be determined on its real facts and in order to speed the trial ownership of the lot but in fact [recognize the] title of defendants by annotating
a notice of lis pendens.In one case, a similar complaint for specific performance
with damages involving real property, was held to be a personal action, which [13]
Philippine National Bank v. Court of Appeals, 159 SCRA 433, 444, March 30,
may be filed in the proper court where the party resides. Not being an action 1988, per Fernan, J.
involving title to or ownership of real property, venue, in this case, was not
[14]
Campos Rueda Corporation v. Bautista, 6 SCRA 240, September 29, 1962;
improperly laid before the RTC of Bacolod City.[16]
Tamayo v. San Miguel Brewery, 10 SCRA 115, January 31, 1974.
WHEREFORE, the Petition is hereby DENIED. Costs against petitioners.
[15]
264 SCRA 540, November 21, 1996, per Francisco, J.; citing Adamos v. J.M.
SO ORDERED. Tuason, 25 SCRA 530 (1968).

Romero (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur. [16] At pp. 544-545.

3. La Tondena v. Ponferrada, Nov. 21, 1996


[1] Rollo, pp. 25-34.
[2] SeventhDivision, composed of J. Eugenio S. Labitoria , ponente; JJ. Jainal P. THIRD DIVISION
Rasul, Division chairman, and Marina L. Buzon, member; both concurring.
[G.R. No. 109656. November 21, 1996]
[3] Assailed Decision, p. 9; rollo, p. 33.
LA TONDEA DISTILLERS, INC., petitioner, vs. THE HON. JUDGE
[4] Issued by Judge Marcelino F. Bautista Jr. BERNARDO T. PONFERRADA, JOAQUIN T. GOCHANGCO,
ENRIQUE DY, QUINTIN DY, LITO ONG, JERRY ONG and LUIS T.
[5] Thecase was deemed submitted for resolution on November 19, 1998, upon ONG, respondents.
receipt by this Court of petitioners Memorandum.
DECISION
[6] Memorandum for the Petitioners, p. 14.
FRANCISCO, J.:
[7] Section
1, Rule 65; Gelindon v. De la Rama, 228 SCRA 322, December 9,
1993; Jose v. Zulueta, 2 SCRA 574, May 31, 1961. The undisputed facts are simplified as follows:
[8] Liberty Insurance Corp. v. Court of Appeals, 222 SCRA 37, May 13, 1993. 1. Several persons[1] (herein referred to as defendants) reneged on
their contract to sell to private respondents a parcel of land[2] located
[9] Section 2, Rule 10. in Bago City;
[10] SEC.
2. When amendments are allowed as a matter of right. --- A party may 2. This breach prompted private respondents to file on August 25,
amend his pleading once as a matter of course at any time before a responsive 1987 before the Regional Trial Court (RTC) of Bacolod City an action for
pleading is served or, if the pleading is one to which no responsive pleading is specific performance with damages against defendants. A notice
permitted and the action has not been placed upon the trial calendar, he may of lis pendens was annotated on the latters title although the same was
so amend it at any time within ten (10) days after it is served. cancelled on November 9, 1988 upon defendants filing a bond;
[11]
Francisco, The Revised Rules of Court, Vol. 1, p. 646; citing Pallant v. 3. Pending the trial before the lower court on November, 1991,
Sinatra, D.C.N.Y. 1945, 7 F.R.D. 293. petitioner bought the above lot from defendants. Aggrieved, private
[12]
respondents amended their complaint and impleaded petitioner as an
Section 3, Rule 10.
additional defendant alleging that petitioner was not a buyer in good faith;
4. Subsequently, petitioner filed a motion to dismiss the amended Section 3 of Rule 16[10] sanctions deferment of hearing on the motion until the
complaint on two grounds: no cause of action and improper venue. In trial if the ground alleged does not appear to be indubitable. Clearly respondent
support of the first ground, petitioner asserts that it is a buyer in good faith judge had doubts on the allegation of petitioners good faith. This is a question
since the notice of lis pendens was already cancelled when it bought the of fact which necessitates presentation of evidence and is certainly far from
lot. As for the second ground, petitioner argued that venue should be indubitable.[11] It is within the discretion of the court to defer action if the ground
in Bago City where the lot is located and not in Bacolod City; alleged does not appear to be indubitable[12] and that deferment is only deemed
a provisional denial of the motion to dismiss.[13]
5. On October 1, 1992, petitioner received a resolution from the lower
court denying their motion as there was need for the parties to present Finally, We are not also persuaded by petitioners argument that venue
evidence on the question of good faith. Petitioners motion for should be lodged in Bago City where the lot is situated.[14] The complaint is one
reconsideration was also denied in a resolution they received on January for specific performance with damages. Private respondents do not claim
20, 1993; ownership of the lot but in fact recognized title of defendants by annotating a
notice of lis pendens. In one case,[15] a similar complaint for specific
6. More than three (3) months later, or on April 21, 1993, petitioner performance with damages involving real property, was held to be a personal
went directly to this Court via petition for certiorari under Rule 65 assailing action, which may be filed in the proper court where the party resides. Not
the denial of its motions. On November 24, 1993, the court gave due being an action involving title to or ownership of real property, venue, in this
course to the petition and required the parties to submit their case, was not improperly laid before the RTC of Bacolod City.
memorandum.[3] After the parties submitted their respective memoranda
as directed, petitioner filed a manifestation alleging for the first time that it Counsel for the petitioner should have meticulously observed the
sold the lot sometime in September, 1992 to Distileria Bago, Inc. a procedural guidelines established by the Rules of Court as well as by
separate entity with which the former has substantial stockholdings. Based jurisprudence. We reiterate that the extraordinary remedy of certiorari is not
on such admission, private respondents moved to dismiss the instant intended to be a tool to delay litigation and must be resorted to only in cases of
petition, arguing that petitioner is no longer a real party in interest, having manifest grave abuse of discretion. The case at bench does not call for such
sold the lot. extraordinary remedy.

The issue posed herein involves the remedy of an aggrieved party when ACCORDINGLY, finding no grave abuse of discretion, the instant petition
the lower court denies his motion to dismiss. is DISMISSED.

However, the petition should be dismissed outright for being filed beyond SO ORDERED.
the reasonable period,[4] the same having been filed only after more than three
months from the time petitioner received a copy of the assailed RTC Narvasa, C.J. (Chairman), Davide, Jr., Melo, and Panganiban,
resolutions. JJ., concur.

Even assuming that the petition was promptly filed, dismissal is still
warranted on account of the following reasons:

First, an order denying a motion to dismiss is only interlocutory which is [1]


Cotabato Visayan Development Corporation, Amanda G. Vda. de Malojo and
neither appealable until final judgment,[5] nor could it generally be assailed
on certiorari.[6] The remedy of the aggrieved party is to file an answer pursuant Ephraim Olvido.
to Sec. 4, Rule 16, and interpose as defenses, the objections raised in his [2] Covered by TCT No. T-10921.
motion to dismiss, proceed to trial, and in case of an adverse decision, elevate
the whole case by appeal in due time.[7] [3] Rollo, p. 71.
Second, the extraordinary remedy of certiorari can be availed of only if the [4]
Three months is the reasonable period for filing a petition for certiorari under
denial of the motion constitutes grave abuse of discretion. [8] In the case at bar, Rule 65 as adopted in Cielo v. NLRC, 193 SCRA 410 (1993).
the lower court did not abuse its discretion in deferring [9] action on the motion.
[5]
Newsweek vs. IAC, 142 SCRA 177 (1986) citing Section 2 of Rule 41; Van defendant or any of the principal defendants resides, or in the case of a
Dorn vs. Romillo, Jr., 139 SCRA 139 (1985). nonresident defendant where he may be found, at the election of the plaintiff.
[6]
Mendoza vs. CA, 201 SCRA 343; MB Finance Corporation vs. Abesamis, [15] Adamos vs. J.M. Tuason, 25 SCRA 530 (1968).
195 SCRA 592 (1991); Quisumbing vs. Gumban, 193 SCRA 520 (1991).
[7]
Dizon vs. CA, 210 SCRA 107 (1992); NIDC vs. Aquino, 163 SCRA 153
(1988). 4. National Steel Corporation v. CA, Feb. 2, 1999
[8]
Mendoza vs. CA, supra; Cojuangco vs. Romillo, Jr., 167 SCRA 751 (1988);
Acain vs. IAC, 155 SCRA 100; Vda. de Bacang vs. CA, 125 SCRA 137 (1983);
Espiritu vs. Solidum, 52 SCRA 131 (1973); Moreno vs. Macadaeg, 117 Phil. SECOND DIVISION
713 (1963). [G.R. No. 123215. February 2, 1999]
[9] RTC Resolution dated Sept. 22, 1992, p. 3; Rollo, p. 28. NATIONAL STEEL CORPORATION, petitioner, vs. COURT OF APPEALS,
[10]
Sec. 3. Hearing and Order. After hearing the court may deny or grant the HON. ARSENIO J. MAGPALE, and JOSE MA. P.
motion or allow amendment of pleading, or may defer the hearing and JACINTO, respondents.
determination of the motion until the trial if the ground alleged therein does not DECISION
appear to be indubitable. (italics ours)
[11]
MENDOZA, J.:
Mendoza vs. Navarette, 214 SCRA 337 (1992); Espiritu vs. Solidum, supra;
Geganto vs. Katalbas, 8 SCRA 525 (1963); Uy Chao vs. dela Rama Steamship, This is a petition for review on certiorari of the decision, [1] dated
6 SCRA 69 (1962). September 11, 1995, of the Court of Appeals, which dismissed the special civil
[12]
action for certiorari filed by petitioner National Steel Corporation (NSC) to set
Mendoza vs. CA, supra, citing Nico vs. Blanco, 81 P 213; Ong Peng v. aside the order, dated April 6, 1994, of the Regional Trial Court, Branch LVII,
Custodio, 111 P 382 (1961) cited in Vicente J. Francisco. The Revised Rules of City of Makati. In the said order, the trial court denied the motion of petitioner
Court of the Phil., Annotated and Commented, Vol. I, 2nd ed. p. 966. See NSC to dismiss the complaint for recovery of personal property which private
Recreation and Amusement Association of the Phil. vs. City of Manila, 100 P respondent Jose P. Jacinto had filed.
950 (1957).
[13]
The facts are as follows:
Summit Guaranty vs. Arnaldo, 158 SCRA 332 (1988) citing Peralta de
Guerrero vs. Madrigal Shipping, 106 P485 (1960). Private respondent Jacinto was the former owner of record of 100 shares
[14]
of stock of the Manila Golf and Country Club (MGCC) now owned by and
Rule 4, Sec. 2. Venue in Courts of First Instance. (a) Real actions. Actions registered in the name of petitioner NSC. On February 9, 1990, he filed a
affecting title to, or for recovery of possession, or for partition or condemnation complaint[2] against the NSC, alleging that
of, or foreclosure of mortgage on, real property, shall be commenced and tried
in the province where the property or any part thereof lies. 4. In or about 1970, for valuable considerations, Manila Golf and
Country Club, Inc. (MGCCI) issued its Stock Certificate No. 1361 to
(b) Personal actions. All other actions may be commenced and tried where the plaintiff representing 100 shares of MGCCI.
defendant or any of the defendants resides or may be found, or where the
plaintiff or any of the plaintiffs resides, at the election of the plaintiff. 5. From about 1972 up to the early part of February 1986, plaintiff
was abroad and could not return to the Philippines for reasons beyond
Sec. 2 of the Revised Rules on Venue of actions provides: his control.
Venue of personal actions. All other actions may be commenced and tried
where the plaintiff or any of the principal plaintiffs resides, or where the
6. When plaintiff returned to the Philippines in 1986, he discovered 2. If for any reason whatsoever NSC fails or refuses to execute the deed of
that Stock Certificate No. 1361 had been cancelled and a replacement assignment and surrender NSCs replacement stock certificate, MGCCI be
Stock Certificate had been issued in the name of NSC. ordered to:

7. The cancellation and transfer of plaintiffs Stock Certificate No. 2.1. Cancel in its stock and transfer book the stock certificate issued
1361 is void for the reasons that: there was no meeting of minds, there to NSC issued in replacement of certificate No. 1361;
was no specific contract between plaintiff and NSC or any party
covering the alleged transfer nor was there any consideration for the 2.2. Issue a new stock certificate in the name of NSC or the stock
same. certificate that might have been issued in replacement
thereof.
8. Despite repeated demands upon NSC to return and re-transfer
plaintiffs 100 shares in MGCCI formerly covered by said Stock 2.3. Declare as lost and of no force and effect the MGCCI stock
Certificate No. 1361, NSC failed and refused and still fails and refuses certificate now outstanding and registered in the name of
to comply with the same. NSC.

9. MGCCIs act in cancelling plaintiffs stock certificate No. 1361 3. Ordering NSC and MGCCI to pay plaintiff, jointly and severally:
and issuing a replacement certificate in the name of NSC is without
3.1. P1 Million as moral damages; and
basis and illegal considering that there was no valid document
evidencing the assignment, sale or transfer by plaintiff to NSC of 3.2. P100,000.00 as attorneys fees.
MGCCI stock certificate No. 1361.
Other reliefs are also prayed for.[3]
10. In consequence of NSC and MGCCIs illegal act in causing the
cancellation and transfer of plaintiffs Stock Certificate No. 1361 unto Petitioner NSC sought the dismissal of the complaint on the ground of
NSCs name: prescription, but its motion was denied by the trial court in an order, dated
November 9, 1990. Petitioner NSC brought a special civil action for certiorari in
10.1. Plaintiff suffered mental anguish for which an award of the Court of Appeals, but again its petition was dismissed by the appellate court
moral damages of P1 Million is proper; on August 30, 1991. Its attempt to secure review in this Court failed as its
10.2. Plaintiff was constrained to litigate and secure the petition was dismissed in a resolution, dated March 18, 1992.
services of counsel for a fee of P100,000.00 and for Petitioner NSC then filed its answer, after which trial was held. It thereafter
which NSC and MGCCI should be held liable. filed a motion[4] to dismiss the complaint against it on the ground of lack of
jurisdiction. It alleged:
Based on the foregoing allegations, Jacinto prayed:
Plaintiff paid docket and other fees totalling P4,040.00. The certification of
PRAYER
Clerk of Court Ma. Corazon Cecelia P. Cuba is attached as Annex A.
WHEREFORE, it is respectfully prayed that judgment be rendered:
2. Under Sec. 7(a) of Rule 141, as amended by the Resolution of the Supreme
1. Ordering NSC to execute a deed of assignment re-transferring unto plaintiff Court En Banc dated September 4, 1990, the docket fees for filing an
the MGCCI certificate issued to the former in replacement of Stock Certificate action . . . . is P600 for the first P150,000.00 and P5.00 for each P1,000.00 in
No. 1361 and to surrender said Deed of Assignment, together with the MGCCI excess of P150,000.00.
certificate issued to NSC (in replacement of Stock Certificate No. 1361) for
3. The actual value of the MGCCI share certificate as of February, 1990, when
cancellation thereof and to order MGCCI to cancel said stock certificate and
issue a new one in the name of Jose Ma. P. Jacinto; the complaint was filed, was P5,511,000.00.

A certification issued by the MGCCI attesting to the fair market value of a


MGCCI share is attached as Annex B.
4. This means that the correct docket fee for the filing of plaintiffs complaint is There can be no divergence of opinion from the allegations, designation and
approximately P26,805.00 and not P4,040.00 which is the amount plaintiff the reliefs prayed for, as clearly and definitively spelled out in the face of the
actually paid. complaint, that private respondents principal relief is for petitioner NSC to
execute a deed of assignment re-transferring unto plaintiff the MGCCI
.... certificate issued to the former in replacement of stock certificate No. 1861 x x
x. And there also appears to be no hint of any intention on the part of private
6. The failure of plaintiff to pay the correct filing fees on February 13, 1990 respondent to mislead the clerk of court in assessing the correct fees, or to
meant that this court did not acquire jurisdiction over plaintiffs action. Under the
evade the payment of the correct fees.
ruling of Sun Insurance, and as explained below, the plaintiff cannot now pay
the deficiency in the filing fees because it is already beyond the applicable Hence, this petition raising the following assignment of errors:
prescriptive or reglementary period.
Assignment of Errors
The trial court denied petitioners motion in an order, dated April 6,
1994. Hence, the latter brought a special civil action for certiorari in the Court of THE RESPONDENT COURT OF APPEALS ERRED IN CHARACTERIZING
Appeals, but its petition was dismissed on September 11, 1995. The Court of THE NATURE OF PRIVATE RESPONDENTS ACTION AS ONE FOR
Appeals ruled: SPECIFIC PERFORMANCE AND NOT ONE FOR RECOVERY OF
PROPERTY.
The principal relief, or prayer in private respondents complaint is specific, for
the NSC to execute a deed of assignment re-transferring unto plaintiff the THE RESPONDENT COURT OF APPEALS ERRED IN REFUSING TO TAKE
MGCCI certificate x x x in replacement of stock certificate No. 1861 x x x. COGNIZANCE OF THE TACAY [v. Regional Trial Court, 180 SCRA 433 (1989)]
AND BPI CREDIT [v. Court of Appeals, 204 SCRA 601 (1991)] RULINGS.
There is no allegation in the complaint of any quantified amount and/or of the
actual value of the stock certificate in question. THE RESPONDENT COURT OF APPEALS ERRED IN NOT FINDING THAT
THE LOWER COURT FAILED TO ACQUIRE JURISDICTION OVER PRIVATE
There is also no separate cause of action and/or prayer in the face of the RESPONDENTS COMPLAINT DUE TO NON-PAYMENT OF THE REQUIRED
complaint that private respondent, even in the alternative, prayed that if the FILING FEES.
principal relief is unavailing, that defendants be ordered to pay him the actual or
equivalent value of the stock certificate, hence there is even no reason or basis Petitioner NSC correctly argues that the action in this case is for the
to move for a more definite statement or for a bill of particulars of any matter recovery of property rather than for specific performance and, hence, the
which is not averred in the complaint with sufficient definiteness or particularity docket fee should be based on the value of the property sought to be
to enable petitioner to properly prepare for a more responsive pleading or to recovered. It is similar to an action in which petitioner seeks the execution of a
prepare for trial. deed of sale of a parcel of land in his favor. Such action has been held to be for
the recovery of the real property and not for specific performance since his
.... primary objective is to regain the ownership and possession of the parcel of
land. In Ruiz v. J.M. Tuason & Co., Inc., it was held:[5]
Perspicaciously, what should guide the office of the Clerk of Court, Regional
Trial Court, Makati, Metro Manila, in assessing the correct docket fees for the Appellant contends that the present action is transitory because it is one for
filing of the complaint in Civil Case No. 90-4051, when it was filed on February specific performance and its object is to compel J. M. Tuason & Co., Inc. to
13, 1990, is what is alleged and prayed for in the complaint. It would be execute a final deed of sale of the property in question in favor of appellant
uncalled for and baseless for the clerk of court to consider at that point in time founded upon compliance with the compromise agreement wherein said
the supposed actual value of the MGCCI share certificate as of February, 1990, company recognized the sale made by Florencio Deudor of said property in
x x x (in the amount of) P5,511,000.00, and then and there assess an additional favor of Jose Dinglasan who, in the same agreement, was recognized by the
docket fee of P22,765.00 (P26,805.00 minus P4,040.00), precisely because company as a purchaser who had already made partial payment of the
the said sum of P5,511,000.00 is not alleged in the body of the complaint, and purchased price of the land.
which is not also sought to be recovered in the action.
This contention has no merit. Although appellants complaint is entitled to be The petitioner raised the issue regarding jurisdiction for the first time in its Brief
one for specific performance, yet the fact that he asked that a deed of sale of a filed with the public respondent in CA-G.R. CV No. 26220 on 2 February
parcel of land situated in Quezon City be issued in his favor and that a transfer 1991.After vigorously participating in all stages of the case before the trial court
certificate of title covering said land be issued to him shows that the primary and even invoking the trial courts authority in order to ask for affirmative relief,
objective and nature of the action is to recover the parcel of land itself because the petitioner is effectively barred by estoppel from challenging the trial courts
to execute in favor of appellant the conveyance requested there is need to jurisdiction. Although the issue of jurisdiction may be raised at any stage of the
make a finding that he is the owner of the land which in the last analysis proceedings as the same is conferred by law, it is nonetheless settled that a
resolves itself into an issue of ownership. party may be barred from raising it on ground of laches or estoppel. The
deficiency in the payment of the docket fees must, however, be considered a
Similarly, if, as in this case, plaintiff, herein private respondent Jacinto, lien on the judgment which must be remitted to the clerk of court of the court a
seeks the execution in his favor of a deed of assignment of shares of stock, it quo upon the execution of the judgment.
follows that the action is for the recovery of personal property, the main
purpose of which is to regain the ownership and possession of the said shares In the case at bar, petitioner NSC filed in 1990 a motion to dismiss but did
of stock. not raise this point. Instead it based his motion on prescription. Upon the denial
by the trial court of its motion to dismiss, it filed an answer, submitted its
Accordingly, as petitioner NSC contends, private respondent Jacinto pre-trial brief, and participated in the proceedings before the trial court. It was
should pay docket fees based on the value of the shares of stock and the only in 1993 more than three years after filing its motion to dismiss that
amount of damages he seeks to recover. Under Rule 141, 7(a) of the Rules of petitioner NSC again filed a motion to dismiss the action on the ground of lack
Court as it stood at the time of the filing of the complaint against petitioner, of jurisdiction. Clearly, petitioner is estopped from raising this issue. Indeed,
docket fees for ordinary civil actions should be based on the total sum claimed, while the lack of jurisdiction of a court may be raised at any stage of an action,
exclusive of interest, or the stated value of the property in litigation. [6] Thus, the nevertheless, the party raising such question may be estopped if he has
docket fees should be computed on the basis of the value of the property and actively taken part in the very proceedings which he questions and he only
the amount of related damages claimed, exclusive of interest. As we held objects to the courts jurisdiction because the judgment or the order
in Tacay v. Regional Trial Court,[7] where the action involves real property and a subsequently rendered is adverse to him.[10]
related claim for damages as well, the legal fees shall be assessed on the basis
of both (a) the value of the property and (b) the total amount of related WHEREFORE, the decision of the Court of Appeals, dated September 11,
damages sought. The Court acquires jurisdiction over the action if the filing of 1995, is AFFIRMED. The deficiency in the payment of the docket fees shall be
the initiatory pleading is accompanied by the payment of the requisite fees, or, a lien on any judgment which may be rendered in favor of private respondent
if the fees are not paid at the time of the filing of the pleading, as of the time of Jose P. Jacinto.
full payment of the fees within such reasonable time as the court may grant,
unless, of course, prescription has set in in the meantime. SO ORDERED.

It does not follow, however, that the trial court should have dismissed the Bellosillo, (Chairman), Puno, Quisumbing, and Buena, JJ., concur.
complaint for failure of private respondent to pay the correct amount of docket
fees.Although the payment of the proper docket fees is a jurisdictional
requirement, the trial court may allow the plaintiff in an action to pay the same
within a reasonable time before the expiration of the applicable prescriptive or
reglementary period.[8] If the plaintiff fails to comply with this requirement, the [1] Per
Justice Artemon Luna and concurred in by Justices Ramon Mabutas, Jr.
defendant should timely raise the issue of jurisdiction or else he would be and Jose de la Rama.
considered in estoppel. In the latter case, the balance between the appropriate
[2] Comment, Annex 1, Rollo, pp. 83-85.
docket fees and the amount actually paid by the plaintiff will be considered a
lien on any award he may obtain in his favor. Thus, in Pantranco North Express, [3] Id.,
Inc. v. Court of Appeals, we held:[9] pp. 84-85.
[4] Petition, Annex F, Rollo, pp. 58-59.
[5] 7 SCRA 202, 206-207 (1963). Dominador G. Magno for plaintiffs-appelants.
Araneta, Mendoza & Papa and Sison & San Juan for defendants-appellees.
[6] As amended by Administrative Circular No. 11-94, Rule 141, 7(a) now
provides that docket fees for ordinary civil actions should be based on the total MAKALINTAL, J.:
sum claimed, inclusive of interest, damages of whatever kind, attorneys fees,
litigation expenses, and costs, or the stated value of the property in litigation. This case is before us on regular appeal from the order of the Court of First
Instance of Manila dismissing the complaint in its civil case No. 53067.
[7] 180 SCRA 433, 444 (1989).
The plaintiffs, numbering thirty-three (33) in all, instituted this action for
[8] Sun Insurance Office, Ltd. v. Asuncion, 170 SCRA 274 (1989). "Specific Performance and Damages," alleging four (4) causes of action
against J.M. Tuason & Co., Inc., and Gregorio Araneta, Inc., the latter in its
[9] 224 SCRA 477, 491 (1993). capacity as managing partner and attorney-in-fact of the former. In the first
[10] Martinez
cause of action the complaint states that the plaintiffs are in possession of
v. De la Merced, 174 SCRA 182 (1989).
certain residential lots situated in Matalahib and Tatalon, Quezon City, having
purchased the same sometime in 1949 from several persons collectively
designated as the Deudors; that said lots are all embraced and included in a
bigger parcel of land covered by a Torrens title in the name of J.M. Tuason &
Co., Inc.; that after 1949 the same lots claimed by herein plaintiffs became the
5. Adamos v. J.M. Tuazon & Co., Oct. 14, 1968 subject-matter of several civil cases in the Court of First Instance of Rizal
(Quezon City) between the Deudors and J. M. Tuason & Co., Inc.; that on
March 16, 1953 the parties in those cases entered into a compromise
agreement, subsequently embodied in the decision of the Court, under which
Republic of the Philippines
the legitimate purchasers of lots from the Deudors, named in a list attached to
SUPREME COURT
the said agreement, among them the plaintiffs, "who are to continue and/or who
Manila
are entitled to elect and have elected to buy their respective lots, from the legal
EN BANC owners who are now the defendants (J.M. Tuason & Co., Inc) shall be credited
(the) sums already paid by them under their former purchase contracts from
G.R. No. L-21957 October 14, 1968 their active predecessors-in-interest;" that it is likewise provided in the
compromise agreement that the so-called owners (J. M. Tuason & Co., Inc),
LAURO ADAMOS, ORO ADAMOS, DOMINGO ALMEDA, BENITA ALTO, now the defendants, shall make new purchase contracts in favor of the plaintiffs
ADELAIDA BERNARDO, SIMPLICIO BELISARIO, BERNARDINO with respect to their respective lots acquired by them from the Deudors at the
CUSTODIO, AMADO DOMINGUEZ, GREGORIO SAN DIEGO, FELICISIMO current rate then existing at the time of the execution of the compromise
G. FAUSTO, ANGELA GATMAYTAN, BENITA ILAYA, LEONCIO LISING, agreement; that the plaintiffs "are ... willing to buy their respective lots and/or
MARGARITA V. LISING, EMELING P. LAHOM, ROSALINA MAGNO, elect to continue to purchase the same from the defendants and also to sign
FELICIANO MlSERICORDIA, AUREA MISERICORDIA, ANA PASCUAL, new purchase contracts, but the defendants without any legal justification
JOSE PADILLA, ABUNDO PORTO, CARMEN REYTAS, LILY SANTOS, whatsoever, deliberately refused and failed and still refuse and fail to make new
ELISA B. SISON, INES VITUG, FLORENTINA VERGARA, now deceased, purchase contracts in favor of the herein plaintiffs up to the present time,
represented by her heirs Nicanor Vergara, Hilarion Vergara, Miguel notwithstanding verbal and written demands made by the plaintiffs to the
Vergara, Dolores Vergara and Margarita V. Lising, EMILIA MENDOZA, defendants, and in spite of their written and verbal commitments to plaintiffs."
CARIDAD B. SISON, ESTER M. SISON, AUGUSTO M. SISON, MARIA M. DE
SISON, alias MARIA DE LEON, ALEJANDRO SISON and CESAR M. The third and fourth causes of action, after incorporating by reference the
SISON, plaintiffs-appellants, allegations in the first one, merely deal with the prices at which, according to
vs. the plaintiffs, the defendants should sell the lots to them pursuant to the
J. M. TUASON & CO., INC. and GREGORIO ARANETA, compromise agreement. The fourth cause of action contains a claim for
INC., defendants-appellees. damages and attorney's fees.
The relief sought in the complaint, aside from the claim for damages and From the orders of February 28, 1957 and January 10, 1958, the "Deudors"
attorney's fees, is for the defendants to be ordered "to make new purchase appealed to the Supreme Court, but on May 30, 1961 it affirmed them and held
contracts in favor of the plaintiffs on their respective lots at the current price among others the following:
ranging from P17.00 to P20.00 (per square meter) at the time of the execution
of the compromise agreement." "... In any event, said paragraph is but a faithful statement of the law pertinent
to the subject, inasmuch as the period of four (4) months, given to the Deudors,
J. M. Tuason & Co., Inc., and Gregorio Araneta, Inc. filed separate motions to in said decision, for the delivery of the land of 30 quiñones to which their right to
dismiss, both pleading improper venue and failure to state a cause of action, collect P614,925.74 was subject as a suspensive condition — constituted a
and the first alleging, besides, extinctive prescription and misjoinder of parties. resolutory period. When the same expired with said suspensive condition still
Over the plaintiffs' opposition, the lower court granted the motion and unfulfilled, appellants' right to comply with it was extinguished, and the
dismissed the complaint on one ground, namely, failure to state a cause of conditional obligation of the appellees to pay said sum was terminated (Article
action. The material portions of the order of dismissal read as follows: 1193, Civil Code of the Philippines). (Florencio Deudor, et al. vs. J. M. Tuason
& Co., Inc., G.R. L-13768, May 30, 1961)"
... The compromise agreement upon which the plaintiffs based their complaint
had already been rescinded and set aside. After the rendition of the decision Whatever doubt there could still be as to the effect of the ruling in the
which was based upon the compromise agreement, ... several incidents arose above-quoted case on the compromise agreement of March 16, 1953, was
in connection with the implementation thereof which led to the issuance of two dispelledby a subsequent decision of the Supreme Court in "J. M. Tuason &
orders by the Court of First Instance of Rizal, Quezon City Branch, in Civil Co., Inc., et al. vs. Bienvenido Sanvictores", G.R. L-16886, promulgated on
Cases Nos. Q-135, Q-139, Q-174 and Q-177. January 30, 1962 when it stated that —

In the first order which was dated February 28, 1957, said court directed those "It is also worthy of note that the compromise between Deudor and Tuason
referred collectively as the "Deudors" in the compromise agreement, to clear upon which Sanvictores predicates his right to buy the lot he occupies, has
and deliver the peaceful possession of the 30 "quiñones" to J. M. Tuason & Co., been validly rescinded and set aside, as recognized by this Court in its decision
Inc., and Gregorio Araneta, Inc., within a period of four (4) months from that in G.R. No. L-13768, Deudor vs. Tuason, promulgated on May 30, 1961."
date.
WHEREFORE, the Court is of the opinion and so holds that the complaint
The "Deudors" moved for the reconsideration of said order while Gregorio states no cause of action and by virtue thereof is hereby dismissed without
Araneta, Inc. filed a motion alleging that the former had not delivered the 30 pronouncement as to costs.
"quiñones" despite the expiration of four months fixed in the order of February
28, 1957 and praying that the Sheriff of Quezon City be directed to place The plaintiffs moved to reconsider, were turned down, and came up directly to
movant in possession of said parcel of land except those portions which were in this Court on appeal.
the possession of parties named individually in said motion.
It is a well-settled rule that in a motion to dismiss based on the ground that the
The Court of First Instance of Rizal, Quezon City Branch, denied the motion for complaint fails to state a cause of action, the question submitted to the court for
reconsideration of the "Deudors" and granted the motion of Gregorio Araneta, determination is the sufficiency of the allegations in the complaint itself.
Inc. dated August 16, 1957 in an order dated January 10, 1958, wherein it Whether those allegations are true or not is beside the point, for their truth is
made the following pronouncement: hypothetically admitted by the motion. The issue rather is: admitting them to be
true, may the court render a valid judgment in accordance with the prayer in the
"... There is no excuse, therefore, for the failure of the Deudors to deliver the complaint? Stated otherwise, the insufficiency of the cause of action must
remaining 30 quiñones, 4 years and 8 months after the execution and approval appear on the face of the complaint in order to sustain a dismissal on this
of the compromise agreement. The equitable, if not the legal, solution of the ground. No extraneous matter may be considered, nor facts not alleged, which
problem is the setting aside of the compromise agreement of March 16, 1953, would require evidence and therefore must be raised as defenses and await
so far as it still remains unimplemented or executory. The failure to deliver and the trial (Garcon vs. Redemptorist Fathers, L-23510, May 30, 1966). So rigid is
the continued mushrooming of houses in the area, despite the compromise, the norm prescribed that if the court should doubt the truth of the facts averred
justify the release of J. M. Tuason & Co., Inc. and Gregorio Araneta, Inc. from it must not dismiss the complaint but require an answer and proceed to hear
further obligations under the agreement of March 16, 1953."
the case on the merits (Republic Bank vs. Cuaderno, L-22399, March 30, Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez, Castro, Angeles, Fernando
1967). and Capistrano, JJ., concur.
Zaldivar, J., is on leave.
In departing from this rule and taking cognizance of facts not alleged or referred
to in the complaint, specifically the so-called rescission of the compromise
agreement on which the plaintiffs' complaint is predicated, the lower court
committed an error. The alleged rescission, the extent of its effects on the 6. De Jesus v. Coloso, Jan. 28, 1961
different aspects of that agreement and specifically on the present claims of the
Republic of the Philippines
plaintiffs, are matters of defense which should be properly raised in the answer.
SUPREME COURT
It is unsafe to lift the idea of "rescission" from the context in which it was used in
Manila
the two cases relied upon by the lower court and apply it here without a
previous inquiry into the facts to determine whether or not it is indeed EN BANC
applicable.
G.R. No. L-14821 January 28, 1961
In their brief the defendants as appellees insist on the other ground alleged by
them below in support of their motion to dismiss but not passed upon by the DOMINGO DE JESUS, in his capacity as Administrator of the Intestate
lower court, namely, that venue was improperly laid. We do not agree with the Estate of Florentina N. Vda. de Jesus,plaintiff-appellant,
defendants. All the allegations as well as the prayer in the complaint show that vs.
this is not a real but a personal action — to compel the defendants to execute RODRIGO COLOSO, defendant-appellee.
the corresponding purchase contracts in favor of the plaintiffs and to pay
damages. The plaintiffs do not claim ownership of the lots in question: they Salonga, Ordoñez, Gonzales & Associates for plaintiff-appellant.
recognize the title of the defendant J. M. Tuason & Co., Inc. They do not ask Andres T. Velarde for defendant-appellee.
that possession be delivered to them, for they allege to be in possession. The
case cited by the defendants (Abao, et al. vs. J. M. Tuason & Co., Inc., G.R. No. LABRADOR, J.:
L-16796, Jan. 30, 1962) is therefore not in point. In that case, as stated by this
This is an appeal from an order of the Court of First Instance of Bataan, Hon.
Court in its decision, the "plaintiffs' action is predicated on the theory that they
Ambrosio T. Dollete, presiding, dismissing the action instituted by the
are 'occupants, landholders,' and 'most' of them 'owners by purchase' of the
plaintiff-appellant, on the ground that the venue of the action is improperly laid
residential lots in question; that, in consequence of the compromise agreement
and that another action between the parties involving the same issue is
adverted to above, between the Deudors and defendant corporations, the latter
pending.
had acknowledged the right and title of the Deudors in and to said lots; and
hence, the right and title of the plaintiffs, as successors-in-interest of the The complaint alleges that on February 12, 1955, defendant Rodrigo Coloso
Deudors; that, by entering into said agreement, defendant corporations had, and the plaintiff's intestate entered into a contract, whereby the latter
also, waived their right to invoke the indefeasibility of the Torrens title in favor of authorized the former to have exclusive right to manage a parcel of land
J. M. Tuason & Co., Inc.; and that defendants have no right, therefore, to oust containing an area of 315 hectares located at Samal, Bataan, with the duty of
plaintiffs from the lots respectively occupied by them and which they claim to be paying the real estate taxes due thereon (known as the Hacienda Nolasco),
entitled to hold. Obviously, this action affects, therefore, not only the improving the irrigation system thereof, introducing thereon permanent
possession of real property, but, also, the title thereto. Accordingly, it should improvements consisting of the planting of fruit trees, clearing of trees,
have been instituted in the Court of First Instance of the Province of Rizal in cultivation of annual crops, rendering annual accounting of his administration,
which said property is situated (Section 3, Rule 5 of the Rules of Court)." and delivering to plaintiff-appellant one-half of all the produce from fruit trees
and annual crops, etc. The Agreement also contains a provision to the effect
WHEREFORE, the order appealed from is set aside, and the case is remanded
that defendant shall have the right to the management and administration of the
for further proceedings, with costs against the defendants-appellees in this
land for a period of 10 years, extendible for another 10 years, as well as the
instance.
right of option to purchase the property within the first 10 years at the price of
P60,000.00.
The present action was filed in the Court of First Instance of Bataan as Civil motion to dismiss on this ground of pendency of another action can not be
Case No. 2511 of that court. Alleging in the complaint that the defendant has granted for the reason that the present action seeks recovery of the possession
failed to comply with certain obligations in relation to the land, such as payment of the property, while the other action instituted in the Court of First Instance of
of taxes, introduction of permanent improvement, etc. and claiming that such Manila seeks recovery of damages for failure of defendant therein,
failure warrants a rescission of the contract, the plaintiff prayed for the plaintiff-appellant herein, to comply with the terms of the agreement. It is true
rescission of the contract, return of possession of the land by defendant to the that the validity of the contract may be in issue in either case, but there are
plaintiff intestate, and the payment to the latter by the former of the sum of other issues in the case at bar such as the breach of the terms of the contract
P50,000 by way of actual damages plus another sum of P10,000 by way of by the defendant-appellee and the consequent right of plaintiff to the return of
attorney's fees and other expenses. The defendant filed motion, on the ground the possession of the land. In the case filed in the Court of First Instance of
that the motion to dismiss the a venue is improperly laid and on the further Manila, the issue is whether defendant herein, plaintiff in that case, may be
ground that the case should have been filed as a compulsory counterclaim in entitled to recover damages arising from his failure to execute the deed of sale
Civil Case No. 34243 of the Court of First Instance of Manila, entitled "Rodrigo over the land and his interference in the negotiations for the sale of said land. In
Coloso, plaintiff, versus Domingo de Jesus as administrator of the intestate the case of Hongkong & Shanghai Banking Corporation v. Aldecoa, 30 Phil.
estate of the deceased of Doña Florentina N. Vda. de Jesus, et al." Attached to 255, we held that an action to annul a contract of mortgage is not a bar to
the motion to dismiss is a copy of the complaint and the answer in said Civil another action to foreclose the same contract of mortgage. Similarly the action
Case No. 34243. The first ground for dismissal of the action is that the venue is for damages in the Court of First Instance of Manila can not bar the present
improperly laid. Defendant-appellee argues that the case at bar filed in the action in Bataan.
Court of First Instance of Bataan is not a real action but a personal action, for
the reason that appellant's main purpose in filing the case is "to rescind the WHEREFORE, the order of the Court of First Instance of Bataan dismissing the
contract so that appellee may be deprived of his option rights under the complaint is hereby reversed and the case is ordered remanded to that court
contract." This argument is not true to fact. In plaintiff-appellant's complaint, it is for further proceedings. With costs against defendant-appellee.
alleged that defendant committed a breach of the contract, so plaintiff prays
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L.,
that the contract be ordered rescinded and that defendant be ordered "to return
Barrera, Gutierrez David, Paredes and Dizon, JJ., concur.
possession of the Hacienda Nolasco to plaintiff." So, the ultimate purpose or
end of the action is to recover possession of real property, not merely to rescind
the contract. It is alleged that the contract has been breached, a reason for
which the other party demands its rescission and the return of the property
subject thereof. The action, therefore, is an action for the recovery of the
possession of land and in accordance with Section 3 of Rule 5 of the Rules of 7. Domagas v. Jensen, Jan. 17, 2005
Court, the action was properly filed with the Court of First Instance of Bataan,
where the property is situated. SECOND DIVISION

The second ground for the dismissal of the action, which was also sustained by [G.R. No. 158407. January 17, 2005]
the court a quo as a valid ground for dismissal, is the fact that
FILOMENA DOMAGAS, petitioner, vs. VIVIAN LAYNO JENSEN, respondent.
defendant-appellee Rodrigo Coloso had instituted another action in the Court of
First Instance of Manila (Civil Case No. 34243). Defendant-appellee herein, DECISION
plaintiff in that case, claims to have the absolute right to sell his title right and
interest in the land its improvement's thereon, but that plaintiff-appellant herein, CALLEJO, SR., J.:
defendant in that case, prevented him from continuing with the final
negotiations for the sale of his rights under the contract; that in his action, This is a petition for review on certiorari, under Rule 45 of the Rules of Court, of
Coloso seeks the enforcement of the agreement entered into between him and the Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 73995, which
the deceased owner, and that as a result of the action instituted by Coloso, filed affirmed the Decision[2] of the Regional Trial Court (RTC) of Dagupan City,
in the Court of First Instance of Manila on November 29, 1957, the action filed Branch 44, in Civil Case No. 2000-0244-D, which declared null and void the
in the Court of First Instance of Bataan should not be allowed to proceed. The decision of the Municipal Trial Court (MTC) of Calasiao, Pangasinan in Civil
Case No. 879.[3]
The antecedent facts follow. respondents) brother, Oscar Layno, who was then in the respondents house at
No. 572 Barangay Buenlag, Calasiao, Pangasinan. The Sheriff left the
On February 19, 1999, petitioner Filomena Domagas filed a complaint for summons and complaint with Oscar Layno, who received the same.[5]
forcible entry against respondent Vivian Jensen before the MTC of Calasiao,
Pangasinan. The petitioner alleged in her complaint that she was the registered Nonetheless, on May 17, 1999, the court rendered judgment ordering the
owner of a parcel of land covered by Original Certificate of Title (OCT) No. respondent and all persons occupying the property for and in the latters behalf
P-30980, situated in Barangay Buenlag, Calasiao, Pangasinan, and with an to vacate the disputed area and to pay monthly rentals therefor, including
area of 827 square meters. On January 9, 1999 the respondent, by means of actual damages, attorneys fees, and exemplary damages. The fallo of the
force, strategy and stealth, gained entry into the petitioners property by decision reads:
excavating a portion thereof and thereafter constructing a fence thereon. As
such, the petitioner was deprived of a 68-square meter portion of her property 1) Ordering the defendant, her representatives, agents and persons acting
along the boundary line. The petitioner prayed that, after due proceedings, under her, to vacate the 68-square meters which she encroached upon;
judgment be rendered in her favor, thus:
2) Ordering the defendant to pay a monthly rental of P1,000.00 to the plaintiff;
3. And, after trial, judgment be rendered:
3) To pay plaintiff actual damages of P20,000.00; attorneys fees of P15,000.00
a) DECLARING the writ of Preliminary Mandatory Injunction and Writ of and exemplary damages in the amount of P20,000.00 plus the costs.
Preliminary Injunction permanent;
SO ORDERED.[6]
b) ORDERING defendant, his representatives, agents and persons acting
under her, to vacate the portion of the property of the plaintiff occupied by them The respondent failed to appeal the decision. Consequently, a writ of execution
and to desist from entering, excavating and constructing in the said property of was issued on September 27, 1999.
the plaintiff described in paragraph 2 hereof and/or from disturbing the peaceful On August 16, 2000, the respondent filed a complaint against the petitioner
ownership and possession of the plaintiff over the said land, pending the final before the RTC of Dagupan City for the annulment of the decision of the MTC
resolution of the instant action; in Civil Case No. 879, on the ground that due to the Sheriffs failure to serve the
complaint and summons on her because she was in Oslo, Norway, the MTC
c) ORDERING defendant to pay reasonable rental at FIVE THOUSAND
(P5,000.00) PESOS per month from January 9, 1999 up to the time she finally never acquired jurisdiction over her person. The respondent alleged therein
vacates and removes all constructions made by her in the property of the that the service of the complaint and summons through substituted service on
her brother, Oscar Layno, was improper because of the following: (a) when the
plaintiff and up to the time she finally restores the said property in the condition
complaint in Civil Case No. 879 was filed, she was not a resident of Barangay
before her illegal entry, excavation and construction in the property of the
Buenlag, Calasiao, Pangasinan, but of Oslo, Norway, and although she owned
plaintiff;
the house where Oscar Layno received the summons and the complaint, she
d) ORDERING defendant to pay actual damages in the amount of TWENTY had then leased it to Eduardo Gonzales; (b) she was in Oslo, Norway, at the
THOUSAND (P20,000.00) PESOS; moral damages in the amount of TWENTY time the summons and the complaint were served; (c) her brother, Oscar Layno,
THOUSAND (P20,000.00) PESOS; attorneys fees of THIRTY THOUSAND was merely visiting her house in Barangay Buenlag and was not a resident nor
(P30,000.00) PESOS in retainers fee and ONE THOUSAND FIVE HUNDRED an occupant thereof when he received the complaint and summons; and (d)
(P1,500.00) PESOS per court appearance fee; exemplary damages in the Oscar Layno was never authorized to receive the summons and the complaint
amount of TWENTY THOUSAND (P20,000.00) PESOS, and, costs. for and in her behalf.[7]

Plaintiff further prays for other reliefs and remedies just and equitable in the The respondent further alleged that the MTC had no jurisdiction over the
premises.[4] subject matter of the complaint in Civil Case No. 879 because the petitioner,
the plaintiff therein, failed to show prior possession of the property. She further
The case was docketed as Civil Case No. 879. The summons and the claimed that the alleged forcible entry was simply based on the result of the
complaint were not served on the respondent because the latter was survey conducted by Geodetic Engineer Leonardo de Vera showing that the
apparently out of the country. This was relayed to the Sheriff by her (the property of the respondent encroached on that of the petitioner.
The respondent filed a Manifestation dated August 31, 2000, and appended No. 572 located in the said barangay; and (d) the Voters Registration
thereto the following: (a) a copy[8] of her passport showing that she left the Record[16] of Oscar Layno, approved on June 15, 1997.
country on February 17, 1999; (b) a copy[9] of the Contract of Lease dated
November 24, 1997, executed by her and Eduardo D. Gonzales over her house After due proceedings, the trial court rendered a decision in favor of the
for a period of three (3) years or until November 24, 2000; (c) her respondent. The dispositive portion reads:
affidavit[10] stating, inter alia, that she owned the house at Barangay Buenlag,
Calasiao, Pangasinan, which she leased to Eduardo Gonzales; that she was WHEREFORE, judgment is rendered in favor of plaintiff Vivian Layno Jensen
and against defendant Filomena Domagas, as follows:
married to Jarl Jensen, a citizen of Norway, on August 23, 1987 and had
resided in Norway with her husband since 1993; that she arrived in the 1. The Decision of the Municipal Trial Court of Calasiao, Pangasinan in Civil
Philippines on December 31, 1998, but left on February 17, 1999; she returned Case No. 879, entitled Filomena Domagas versus Vivian Layno Jensen is
to the Philippines on July 30, 2000 and learned, only then, of the complaint declared null and void, for lack of jurisdiction over the person of the plaintiff and
against her and the decision of the MTC in Civil Case No. 879; her brother the subject matter.
Oscar Layno was not a resident of the house at Barangay Buenlag; and that
she never received the complaint and summons in said case; (d) the 2. Defendant Filomena Domagas is ordered to pay plaintiff, the following:
affidavit[11] of Oscar Layno declaring that sometime in April 1999, he was in
the respondents house to collect rentals from Eduardo Gonzales; that the a.) Actual damages, representing litigation expenses in the amount
Sheriff arrived and served him with a copy of the summons and the complaint in of P50,000.00;
Civil Case No. 879; and that he never informed the respondent of his receipt of
the said summons and complaint; (e) an affidavit[12] of Eduardo Gonzales b.) Attorneys fees in the amount of P50,000.00;
stating that he leased the house of the respondent and resided thereat; the
c.) Moral Damages in the amount of P50,000.00;
respondent was not a resident of the said house although he (Gonzales)
allowed the respondent to occupy a room therein whenever she returned to the d.) Exemplary Damages in the amount of P50,000.00; and
Philippines as a balikbayan; and that Oscar Layno was not residing therein but
only collected the rentals. e.) Costs of suit.

In her answer to the complaint, the petitioner alleged that the respondent was a SO ORDERED.[17]
resident of Barangay Buenlag, Calasiao, Pangasinan and was the owner of the
subject premises where Oscar Layno was when the Sheriff served the The trial court declared that there was no valid service of the complaint and
summons and complaint; that the service of the complaint and summons by summons on the respondent, the defendant in Civil Case No. 879, considering
substituted service on the respondent, the defendant in Civil Case No. 879, that she left the Philippines on February 17, 1999 for Oslo, Norway, and her
was proper since her brother Oscar Layno, a resident and registered voter of brother Oscar Layno was never authorized to receive the said complaint and
Barangay. Buenlag, Calasiao, Pangasinan, received the complaint and summons for and in her behalf.
summons for and in her behalf.
The petitioner appealed the decision to the CA which, on May 6, 2003,
The petitioner appended the following to her answer: (a) a copy[13] of the Deed rendered judgment affirming the appealed decision with modifications. The CA
of Absolute Sale executed by Jose Layno in her favor, dated August 26, 1992, ruled that the complaint in Civil Case No. 879 was one for ejectment, which is
showing that the respondent was a resident of Barangay Buenlag, Calasiao, an action quasi in rem. The appellate court ruled that since the defendant
Pangasinan; (b) a Real Estate Mortgage[14] executed by the respondent, therein was temporarily out of the country, the summons and the complaint
dated February 9, 1999 showing that she was a resident of Barangay Buenlag, should have been served via extraterritorial service under Section 15 in relation
Calasiao, Pangasinan; (c) the Joint Affidavit[15] of Vicenta Peralta and Orlando to Section 16, Rule 14 of the Rules of Court, which likewise requires prior leave
Macalanda, both residents of Barangay Buenlag, Calasiao, Pangasinan, of court. Considering that there was no prior leave of court and none of the
declaring that the respondent and her brother Oscar Layno were their modes of service prescribed by the Rules of Court was followed by the
neighbors; that the respondent and her brother had been residents of Barangay petitioner, the CA concluded that there was really no valid service of summons
Buenlag since their childhood; that although the respondent left the country on and complaint upon the respondent, the defendant in Civil Case No. 879.
several occasions, she returned to the Philippines and resided in her house at
Hence, the present petition. proceedings to enforce personal rights and obligations and in which personal
judgments are rendered adjusting the rights and obligations between the
The petitioner assails the decision of the CA, alleging that the appellate court affected parties is in personam. Actions for recovery of real property are in
erred in holding that the respondents complaint for ejectment is an action quasi personam.[25]
in rem. The petitioner insists that the complaint for forcible entry is an action
in personam; therefore, substituted service of the summons and complaint on On the other hand, a proceeding quasi in rem is one brought against persons
the respondent, in accordance with Section 7, Rule 14 of the Rules of Court, is seeking to subject the property of such persons to the discharge of the claims
valid. The petitioner, likewise, asserts that Oscar Layno is a resident and a assailed.[26] In an action quasi in rem, an individual is named as defendant
registered voter of Barangay Buenlag, Calasiao, Pangasinan; hence, the and the purpose of the proceeding is to subject his interests therein to the
service of the complaint and summons on the respondent through him is valid. obligation or loan burdening the property.[27] Actions quasi in rem deal with the
status, ownership or liability of a particular property but which are intended to
The respondent, on the other hand, asserts that the action for forcible entry operate on these questions only as between the particular parties to the
filed against her was an action quasi in rem, and that the applicable provision of proceedings and not to ascertain or cut off the rights or interests of all possible
the Rules of Court is Section 15 of Rule 14, which calls for extraterritorial claimants. The judgments therein are binding only upon the parties who joined
service of summons. in the action.[28]
The sole issue is whether or not there was a valid service of the summons and Section 1, Rule 70 of the Rules of Court provides:
complaint in Civil Case No. 879 on the respondent herein who was the
defendant in the said case. The resolution of the matter is anchored on the Section 1. Who may institute proceedings, and when. - Subject to the
issue of whether or not the action of the petitioner in the MTC against the provisions of the next succeeding section, a person deprived of the possession
respondent herein is an action in personam or quasi in rem. of any land or building in force, intimidation, threat, strategy, or stealth, or a
lessor, vendor, vendee, or other person against whom the possession of any
The ruling of the CA that the petitioners complaint for forcible entry of the land or building is unlawfully withheld after the expiration or termination of the
petitioner against the respondent in Civil Case No. 879 is an action quasi in rem, right to hold possession by virtue of any contract, express or implied, or the
is erroneous. The action of the petitioner for forcible entry is a real action and legal representatives or assigns of any such lessor, vendor, vendee, or other
one in personam. person, may, at any time within one (1) year after such unlawful deprivation or
withholding of possession, bring an action in the proper Municipal Trial Court
The settled rule is that the aim and object of an action determine its
against the person or persons unlawfully withholding or depriving of possession,
character.[18] Whether a proceeding is in rem, or in personam, or quasi in
or any person or persons claiming under them, for the restitution of such
remfor that matter, is determined by its nature and purpose, and by these
possession, together with damages and costs.
only.[19] A proceeding in personam is a proceeding to enforce personal rights
and obligations brought against the person and is based on the jurisdiction of Under Section 15, Rule 70 of the said Rule, the plaintiff may be granted a writ
the person, although it may involve his right to, or the exercise of ownership of, of preliminary prohibition or mandatory injunction:
specific property, or seek to compel him to control or dispose of it in
accordance with the mandate of the court.[20] The purpose of a proceeding in Sec. 15. Preliminary Injunction. The court may grant preliminary injunction, in
personam is to impose, through the judgment of a court, some responsibility or accordance with the provisions of Rule 58 hereof, to prevent the defendant
liability directly upon the person of the defendant.[21] Of this character are suits from committing further acts of dispossession against the plaintiff.
to compel a defendant to specifically perform some act or actions to fasten a
pecuniary liability on him.[22] An action in personam is said to be one which A possessor deprived of his possession through forcible entry or unlawful
has for its object a judgment against the person, as distinguished from a detainer may, within five (5) days from the filing of the complaint, present a
judgment against the propriety to determine its state. It has been held that an motion in the action for forcible entry or unlawful detainer for the issuance of a
action in personam is a proceeding to enforce personal rights or obligations; writ of preliminary mandatory injunction to restore him in his possession. The
such action is brought against the person. As far as suits for injunctive relief are court shall decide the motion within thirty (30) days from the filing thereof.
concerned, it is well-settled that it is an injunctive act in
personam.[23] In Combs v. Combs,[24] the appellate court held that If, after due proceedings, the trial court finds for the plaintiff, it shall then render
judgment in his or her favor, thus:
Sec. 17. Judgment. If, after trial, the court finds that the allegations of the of service may be resorted to: (a) substituted service set forth in Section 8; (2)
complaint are true, it shall render judgment in favor of the plaintiff for the personal service outside the country, with leave of court; (3) service by
restitution of the premises, the sum justly due as arrears of rent or as publication, also with leave of court; or (4) any other manner the court may
reasonable compensation for the use and occupation of the premises, deem sufficient.[32]
attorneys fees and costs. If it finds that said allegations are not true, it shall
render judgment for the defendant to recover his costs. If a counterclaim is Thus, any judgment of the court which has no jurisdiction over the person of the
established, the court shall render judgment for the sum found in arrears from defendant is null and void.[33]
either party and award costs as justice requires.
In the present case, the records show that the respondent, before and after his
From the aforementioned provisions of the Rules of Court and by its very marriage to Jarl Jensen on August 23, 1987, remained a resident of Barangay
nature and purpose, an action for unlawful detainer or forcible entry is a real Buenlag, Calasiao, Pangasinan. This can be gleaned from the Deed of
action and in personam because the plaintiff seeks to enforce a personal Absolute Sale dated August 26, 1992 in which she declared that she was a
obligation or liability on the defendant under Article 539 of the New Civil resident of said barangay. Moreover, in the Real Estate Mortgage Contract
Code,[29] for the latter to vacate the property subject of the action, restore dated February 9, 1999, ten days before the complaint in Civil Case No. 879
physical possession thereof to the plaintiff, and pay actual damages by way of was filed, the petitioner categorically stated that she was a Filipino and a
reasonable compensation for his use or occupation of the property.[30] resident of Barangay Buenlag, Calasiao, Pangasinan. Considering that the
respondent was in Oslo, Norway, having left the Philippines on February 17,
As gleaned from the averments of the petitioners complaint in the MTC, she 1999, the summons and complaint in Civil Case No. 879 may only be validly
sought a writ of a preliminary injunction from the MTC and prayed that the said served on her through substituted service under Section 7, Rule 14 of the Rules
writ be made permanent. Under its decision, the MTC ordered the defendant of Court, which reads:
therein (the respondent in this case), to vacate the property and pay a monthly
rental of P1,000.00 to the plaintiff therein (the petitioner in this case). SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be
served within a reasonable time as provided in the preceding section, service
On the issue of whether the respondent was validly served with the summons may be effected (a) by leaving copies of the summons at the defendants
and complaint by the Sheriff on April 5, 1999, the petitioner asserts that since residence with some person of suitable age and discretion then residing therein,
her action of forcible entry against the respondent in Civil Case No. 879 was in or (b) by leaving the copies at defendants office or regular place of business
personam, summons may be served on the respondent, by substituted service, with some competent person in charge thereof.
through her brother, Oscar Layno, in accordance with Section 7, Rule 14 of the
Rules of Court. The petitioner avers that Oscar Layno, a person of suitable age Strict compliance with the mode of service is required in order that the court
and discretion, was residing in the house of the respondent on April 5, 1999. may acquire jurisdiction over the person of the defendant.[34] The statutory
She avers that the fact that the house was leased to and occupied by Eduardo requirement of substituted service must be followed faithfully and strictly and
Gonzales was of no moment. Moreover, the Sheriff is presumed to have any substituted service other than that authorized by the statute is rendered
performed his duty of properly serving the summons on the respondent by ineffective.[35] As the Court held in Hamilton v. Levy:[36]
substituted service.
The pertinent facts and circumstances attendant to the service of summons
The contention of the petitioner has no merit. must be stated in the proof of service or Officers Return; otherwise, any
substituted service made in lieu of personal service cannot be upheld. This is
In Asiavest Limited v. Court of Appeals,[31] the Court had the occasion to state: necessary because substituted service is in derogation of the usual method of
service. It is a method extraordinary in character and hence may be used only
In an action in personam, jurisdiction over the person of the defendant is as prescribed and in the circumstances authorized by statute. Here, no such
necessary for the court to validly try and decide the case. Jurisdiction over the explanation was made. Failure to faithfully, strictly, and fully comply with the
person of a resident defendant who does not voluntarily appear in court can be requirements of substituted service renders said service ineffective.[37]
acquired by personal service of summons as provided under Section 7, Rule 14
of the Rules of Court. If he cannot be personally served with summons within a In Keister v. Narcereo,[38] the Court held that the term dwelling house or
reasonable time, substituted service may be made in accordance with Section residence are generally held to refer to the time of service; hence, it is not
8 of said Rule. If he is temporarily out of the country, any of the following modes sufficient to leave the summons at the formers dwelling house, residence or
place of abode, as the case may be. Dwelling house or residence refers to the In sum, then, the respondent was not validly served with summons and the
place where the person named in the summons is living at the time when the complaint in Civil Case No. 879 on April 5, 1999, by substituted service. Hence,
service is made, even though he may be temporarily out of the country at the the MTC failed to acquire jurisdiction over the person of the respondent; as
time. It is, thus, the service of the summons intended for the defendant that such, the decision of the MTC in Civil Case No. 879 is null and void.
must be left with the person of suitable age and discretion residing in the house
of the defendant. Compliance with the rules regarding the service of summons IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
is as much important as the issue of due process as of jurisdiction.[39] No costs.

The Return of Service filed by Sheriff Eduardo J. Abulencia on the service of SO ORDERED.
summons reads:
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.
Respectfully returned to the court of origin the herein summons and enclosures
in the above-entitled case, the undersigned caused the service on April 5,
1999.

Defendant Vivian Layno Jensen is out of the country as per information from [1] Penned by Associate Justice Conrado M. Vasquez, Jr. with Associate
her brother Oscar Layno, however, copy of summons and enclosures was Justices Mercedes Gozo-Dadole and Rosmari D. Carandang,
received by her brother Oscar Layno on April 5, 1999 as evidenced by his concurring; Rollo, pp. 25-33.
signature appearing in the original summons.
[2] Penned by Judge Crispin C. Laron (Retired).
Calasiao, Pangasinan, April 6, 1999.
[3] Entitled Filomena Domagas v. Vivian Layno Jensen.
(Sgd.)
[4] Records, p. 13.
EDUARDO J. ABULENCIA
[5] Id. at 20.
Junior Process Server[40]
[6] Id. at 79.
As gleaned from the said return, there is no showing that as of April 5, 1999,
the house where the Sheriff found Oscar Layno was the latters residence or [7] Records, p. 2.
that of the respondent herein. Neither is there any showing that the Sheriff tried
to ascertain where the residence of the respondent was on the said date. It [8] Id. at 54-56.
turned out that the occupant of the house was a lessor, Eduardo Gonzales, and
that Oscar Layno was in the premises only to collect the rentals from him. The [9] Id. at 57-58.
service of the summons on a person at a place where he was a visitor is not
[10] Id. at 53.
considered to have been left at the residence or place or abode, where he has
another place at which he ordinarily stays and to which he intends to return.[41] [11] Id. at 60.
The Voters Registration Record of Oscar Layno dated June 15, 1997 wherein [12] Id. at 59.
he declared that he was a resident of No. 572 Barangay Buenlag, Calasiao,
Pangasinan, as well as the Joint Affidavit of Vicenta Peralta and Orlando [13] Id. at 46.
Macasalda cannot prevail over the Contract of Lease the respondent had
executed in favor of Eduardo Gonzales showing that the latter had resided and [14] Id. at 47.
occupied the house of the respondent as lessee since November 24, 1997, and
the affidavit of Eduardo Gonzales that Oscar Layno was not residing in the said [15] Id. at 50
house on April 5, 1999. [16] Exhibit 6.
[17] Records, p. 126. [37] Id. at 829.

[18] National Surety Co. v. Austin Machinery Corporation, 35 F.2d 842 (1929). [38] 77 SCRA 209 (1977).

[19] Sandejas v. Robles, 81 Phil. 421 (1948). [39] Ang Ping v. Court of Appeals, 310 SCRA 343 (1999).

[20] Id. at 424. [40] Records, p. 20.

[21] Asiavest Ltd. v. Court of Appeals, 296 SCRA 539 (1998). [41] John Hancock Mutual Life Insurance Co. v. Gooley, 118 ALR 1484
(1938); Albers v. Bramberg, 32 N.E. 2d 362 (1941).
[22] Hughes v. Hughes, 278 S.W. 121 (1925).
SECOND DIVISION
[23] Green Oaks Apartments, Ltd. v. Cannon, 696 S.W. 2d 415 (1985).
[G.R. No. 158407. January 17, 2005]
[24] 60 S.W. 2d 368 (1933).
FILOMENA DOMAGAS, petitioner, vs. VIVIAN LAYNO
[25] PNB v. Court of Appeals, 153 SCRA 435 (1987). JENSEN, respondent.
[26] Freeman v. Alderson, 30 L.Ed.372 (1886). DECISION
[27] Banco do Brasil v. Court of Appeals, 333 SCRA 545 (2000). CALLEJO, SR., J.:
[28] Perry v. Young, 182 S.W. 577 (1916). This is a petition for review on certiorari, under Rule 45 of the Rules of
Court, of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 73995,
[29] ART. 539. Every possessor has a right to be respected in his possession;
which affirmed the Decision[2] of the Regional Trial Court (RTC) of Dagupan
and should he be disturbed therein he shall be protected in or restored to said
City, Branch 44, in Civil Case No. 2000-0244-D, which declared null and void
possession by the means established by the laws and the Rules of Court. the decision of the Municipal Trial Court (MTC) of Calasiao, Pangasinan in Civil
possessor deprived of his possession through forcible entry may within ten Case No. 879.[3]
days from the filing of the complaint present a motion to secure from the
The antecedent facts follow.
competent court, in the action for forcible entry, a writ of preliminary mandatory
injunction to restore him in his possession. The court shall decide the motion On February 19, 1999, petitioner Filomena Domagas filed a complaint for
within thirty (30) days from the filing thereof. forcible entry against respondent Vivian Jensen before the MTC of Calasiao,
Pangasinan. The petitioner alleged in her complaint that she was the registered
[30] Progressive Development Corporation, Inc. v. Court of Appeals, 301 SCRA owner of a parcel of land covered by Original Certificate of Title (OCT) No.
637 (1999). P-30980, situated in Barangay Buenlag, Calasiao, Pangasinan, and with an
[31] 296 SCRA 539 (1998). area of 827 square meters. On January 9, 1999 the respondent, by means of
force, strategy and stealth, gained entry into the petitioners property by
[32] Id. at 552-553. excavating a portion thereof and thereafter constructing a fence thereon. As
such, the petitioner was deprived of a 68-square meter portion of her property
[33] Lam v. Rosillosa, 86 Phil. 447 (1956). along the boundary line. The petitioner prayed that, after due proceedings,
judgment be rendered in her favor, thus:
[34] Venturanza v. Court of Appeals, 156 SCRA 305 (1987).
3. And, after trial, judgment be rendered:
[35] Umandap v. Sabio, Jr., 339 SCRA 243 (2000).
a) DECLARING the writ of Preliminary Mandatory Injunction and
[36] 344 SCRA 821 (2000). Writ of Preliminary Injunction permanent;
b) ORDERING defendant, his representatives, agents and 2) Ordering the defendant to pay a monthly rental of P1,000.00 to the
persons acting under her, to vacate the portion of the plaintiff;
property of the plaintiff occupied by them and to desist from
entering, excavating and constructing in the said property of 3) To pay plaintiff actual damages of P20,000.00; attorneys fees
the plaintiff described in paragraph 2 hereof and/or from of P15,000.00 and exemplary damages in the amount
disturbing the peaceful ownership and possession of the of P20,000.00 plus the costs.
plaintiff over the said land, pending the final resolution of
SO ORDERED.[6]
the instant action;
The respondent failed to appeal the decision. Consequently, a writ of
c) ORDERING defendant to pay reasonable rental at FIVE
execution was issued on September 27, 1999.
THOUSAND (P5,000.00) PESOS per month from January
9, 1999 up to the time she finally vacates and removes all On August 16, 2000, the respondent filed a complaint against the
constructions made by her in the property of the plaintiff and petitioner before the RTC of Dagupan City for the annulment of the decision of
up to the time she finally restores the said property in the the MTC in Civil Case No. 879, on the ground that due to the Sheriffs failure to
condition before her illegal entry, excavation and serve the complaint and summons on her because she was in Oslo, Norway,
construction in the property of the plaintiff; the MTC never acquired jurisdiction over her person. The respondent alleged
therein that the service of the complaint and summons through substituted
d) ORDERING defendant to pay actual damages in the amount
of TWENTY THOUSAND (P20,000.00) PESOS; moral service on her brother, Oscar Layno, was improper because of the following: (a)
damages in the amount of TWENTY THOUSAND when the complaint in Civil Case No. 879 was filed, she was not a resident of
Barangay Buenlag, Calasiao, Pangasinan, but of Oslo, Norway, and although
(P20,000.00) PESOS; attorneys fees of THIRTY
she owned the house where Oscar Layno received the summons and the
THOUSAND (P30,000.00) PESOS in retainers fee and
complaint, she had then leased it to Eduardo Gonzales; (b) she was in Oslo,
ONE THOUSAND FIVE HUNDRED (P1,500.00) PESOS
Norway, at the time the summons and the complaint were served; (c) her
per court appearance fee; exemplary damages in the
amount of TWENTY THOUSAND (P20,000.00) PESOS, brother, Oscar Layno, was merely visiting her house in Barangay Buenlag and
and, costs. was not a resident nor an occupant thereof when he received the complaint and
summons; and (d) Oscar Layno was never authorized to receive the summons
Plaintiff further prays for other reliefs and remedies just and equitable in the and the complaint for and in her behalf.[7]
premises.[4]
The respondent further alleged that the MTC had no jurisdiction over the
The case was docketed as Civil Case No. 879. The summons and the subject matter of the complaint in Civil Case No. 879 because the petitioner,
complaint were not served on the respondent because the latter was the plaintiff therein, failed to show prior possession of the property. She further
apparently out of the country. This was relayed to the Sheriff by her (the claimed that the alleged forcible entry was simply based on the result of the
respondents) brother, Oscar Layno, who was then in the respondents house at survey conducted by Geodetic Engineer Leonardo de Vera showing that the
No. 572 Barangay Buenlag, Calasiao, Pangasinan. The Sheriff left the property of the respondent encroached on that of the petitioner.
summons and complaint with Oscar Layno, who received the same.[5]
The respondent filed a Manifestation dated August 31, 2000, and
Nonetheless, on May 17, 1999, the court rendered judgment ordering the appended thereto the following: (a) a copy[8] of her passport showing that she
respondent and all persons occupying the property for and in the latters behalf left the country on February 17, 1999; (b) a copy[9] of the Contract of Lease
to vacate the disputed area and to pay monthly rentals therefor, including dated November 24, 1997, executed by her and Eduardo D. Gonzales over her
actual damages, attorneys fees, and exemplary damages. The fallo of the house for a period of three (3) years or until November 24, 2000; (c) her
decision reads: affidavit[10] stating, inter alia, that she owned the house at Barangay Buenlag,
Calasiao, Pangasinan, which she leased to Eduardo Gonzales; that she was
1) Ordering the defendant, her representatives, agents and persons married to Jarl Jensen, a citizen of Norway, on August 23, 1987 and had
acting under her, to vacate the 68-square meters which she resided in Norway with her husband since 1993; that she arrived in the
encroached upon; Philippines on December 31, 1998, but left on February 17, 1999; she returned
to the Philippines on July 30, 2000 and learned, only then, of the complaint 1. The Decision of the Municipal Trial Court of Calasiao, Pangasinan in
against her and the decision of the MTC in Civil Case No. 879; her brother Civil Case No. 879, entitled Filomena Domagas versus Vivian Layno
Oscar Layno was not a resident of the house at Barangay Buenlag; and that Jensen is declared null and void, for lack of jurisdiction over the
she never received the complaint and summons in said case; (d) the person of the plaintiff and the subject matter.
affidavit[11] of Oscar Layno declaring that sometime in April 1999, he was in the
respondents house to collect rentals from Eduardo Gonzales; that the Sheriff 2. Defendant Filomena Domagas is ordered to pay plaintiff, the following:
arrived and served him with a copy of the summons and the complaint in Civil
a.) Actual damages, representing litigation expenses in the
Case No. 879; and that he never informed the respondent of his receipt of the
amount of P50,000.00;
said summons and complaint; (e) an affidavit[12] of Eduardo Gonzales stating
that he leased the house of the respondent and resided thereat; the respondent b.) Attorneys fees in the amount of P50,000.00;
was not a resident of the said house although he (Gonzales) allowed the
respondent to occupy a room therein whenever she returned to the Philippines c.) Moral Damages in the amount of P50,000.00;
as a balikbayan; and that Oscar Layno was not residing therein but only
collected the rentals. d.) Exemplary Damages in the amount of P50,000.00; and

In her answer to the complaint, the petitioner alleged that the respondent e.) Costs of suit.
was a resident of Barangay Buenlag, Calasiao, Pangasinan and was the owner
of the subject premises where Oscar Layno was when the Sheriff served the SO ORDERED.[17]
summons and complaint; that the service of the complaint and summons by
The trial court declared that there was no valid service of the complaint
substituted service on the respondent, the defendant in Civil Case No. 879,
and summons on the respondent, the defendant in Civil Case No. 879,
was proper since her brother Oscar Layno, a resident and registered voter of
considering that she left the Philippines on February 17, 1999 for Oslo, Norway,
Barangay. Buenlag, Calasiao, Pangasinan, received the complaint and
and her brother Oscar Layno was never authorized to receive the said
summons for and in her behalf.
complaint and summons for and in her behalf.
The petitioner appended the following to her answer: (a) a copy[13] of the
The petitioner appealed the decision to the CA which, on May 6, 2003,
Deed of Absolute Sale executed by Jose Layno in her favor, dated August 26,
rendered judgment affirming the appealed decision with modifications. The CA
1992, showing that the respondent was a resident of Barangay Buenlag,
ruled that the complaint in Civil Case No. 879 was one for ejectment, which is
Calasiao, Pangasinan; (b) a Real Estate Mortgage[14] executed by the
an action quasi in rem. The appellate court ruled that since the defendant
respondent, dated February 9, 1999 showing that she was a resident of
therein was temporarily out of the country, the summons and the complaint
Barangay Buenlag, Calasiao, Pangasinan; (c) the Joint Affidavit [15] of Vicenta
should have been served via extraterritorial service under Section 15 in relation
Peralta and Orlando Macalanda, both residents of Barangay Buenlag, Calasiao,
to Section 16, Rule 14 of the Rules of Court, which likewise requires prior leave
Pangasinan, declaring that the respondent and her brother Oscar Layno were
of court. Considering that there was no prior leave of court and none of the
their neighbors; that the respondent and her brother had been residents of
modes of service prescribed by the Rules of Court was followed by the
Barangay Buenlag since their childhood; that although the respondent left the
petitioner, the CA concluded that there was really no valid service of summons
country on several occasions, she returned to the Philippines and resided in
and complaint upon the respondent, the defendant in Civil Case No. 879.
her house at No. 572 located in the said barangay; and (d) the Voters
Registration Record[16] of Oscar Layno, approved on June 15, 1997. Hence, the present petition.
After due proceedings, the trial court rendered a decision in favor of the The petitioner assails the decision of the CA, alleging that the appellate
respondent. The dispositive portion reads: court erred in holding that the respondents complaint for ejectment is an
action quasi in rem. The petitioner insists that the complaint for forcible entry is
WHEREFORE, judgment is rendered in favor of plaintiff Vivian Layno Jensen
an action in personam; therefore, substituted service of the summons and
and against defendant Filomena Domagas, as follows:
complaint on the respondent, in accordance with Section 7, Rule 14 of the
Rules of Court, is valid. The petitioner, likewise, asserts that Oscar Layno is a
resident and a registered voter of Barangay Buenlag, Calasiao, Pangasinan;
hence, the service of the complaint and summons on the respondent through to the obligation or loan burdening the property.[27] Actions quasi in rem deal
him is valid. with the status, ownership or liability of a particular property but which are
intended to operate on these questions only as between the particular parties
The respondent, on the other hand, asserts that the action for forcible to the proceedings and not to ascertain or cut off the rights or interests of all
entry filed against her was an action quasi in rem, and that the applicable possible claimants. The judgments therein are binding only upon the parties
provision of the Rules of Court is Section 15 of Rule 14, which calls for who joined in the action.[28]
extraterritorial service of summons.
Section 1, Rule 70 of the Rules of Court provides:
The sole issue is whether or not there was a valid service of the summons
and complaint in Civil Case No. 879 on the respondent herein who was the Section 1. Who may institute proceedings, and when. - Subject to the
defendant in the said case. The resolution of the matter is anchored on the provisions of the next succeeding section, a person deprived of the possession
issue of whether or not the action of the petitioner in the MTC against the of any land or building in force, intimidation, threat, strategy, or stealth, or a
respondent herein is an action in personam or quasi in rem. lessor, vendor, vendee, or other person against whom the possession of any
land or building is unlawfully withheld after the expiration or termination of the
The ruling of the CA that the petitioners complaint for forcible entry of the right to hold possession by virtue of any contract, express or implied, or the
petitioner against the respondent in Civil Case No. 879 is an action quasi in rem, legal representatives or assigns of any such lessor, vendor, vendee, or other
is erroneous. The action of the petitioner for forcible entry is a real action and person, may, at any time within one (1) year after such unlawful deprivation or
one in personam. withholding of possession, bring an action in the proper Municipal Trial Court
against the person or persons unlawfully withholding or depriving of possession,
The settled rule is that the aim and object of an action determine its or any person or persons claiming under them, for the restitution of such
character.[18] Whether a proceeding is in rem, or in personam, or quasi in
possession, together with damages and costs.
remfor that matter, is determined by its nature and purpose, and by these
only.[19] A proceeding in personam is a proceeding to enforce personal rights Under Section 15, Rule 70 of the said Rule, the plaintiff may be granted a
and obligations brought against the person and is based on the jurisdiction of writ of preliminary prohibition or mandatory injunction:
the person, although it may involve his right to, or the exercise of ownership of,
specific property, or seek to compel him to control or dispose of it in Sec. 15. Preliminary Injunction. The court may grant preliminary injunction, in
accordance with the mandate of the court.[20] The purpose of a proceeding in accordance with the provisions of Rule 58 hereof, to prevent the defendant
personam is to impose, through the judgment of a court, some responsibility or from committing further acts of dispossession against the plaintiff.
liability directly upon the person of the defendant. [21] Of this character are suits
to compel a defendant to specifically perform some act or actions to fasten a A possessor deprived of his possession through forcible entry or unlawful
pecuniary liability on him.[22] An action in personam is said to be one which has detainer may, within five (5) days from the filing of the complaint, present a
for its object a judgment against the person, as distinguished from a judgment motion in the action for forcible entry or unlawful detainer for the issuance of a
against the propriety to determine its state. It has been held that an action in writ of preliminary mandatory injunction to restore him in his possession. The
personam is a proceeding to enforce personal rights or obligations; such action court shall decide the motion within thirty (30) days from the filing thereof.
is brought against the person. As far as suits for injunctive relief are concerned,
it is well-settled that it is an injunctive act in personam.[23] In Combs v. If, after due proceedings, the trial court finds for the plaintiff, it shall then
Combs,[24] the appellate court held that proceedings to enforce personal rights render judgment in his or her favor, thus:
and obligations and in which personal judgments are rendered adjusting the Sec. 17. Judgment. If, after trial, the court finds that the allegations of the
rights and obligations between the affected parties is in personam. Actions for complaint are true, it shall render judgment in favor of the plaintiff for the
recovery of real property are in personam.[25] restitution of the premises, the sum justly due as arrears of rent or as
On the other hand, a proceeding quasi in rem is one brought against reasonable compensation for the use and occupation of the premises,
attorneys fees and costs. If it finds that said allegations are not true, it shall
persons seeking to subject the property of such persons to the discharge of the
claims assailed.[26] In an action quasi in rem, an individual is named as render judgment for the defendant to recover his costs. If a counterclaim is
defendant and the purpose of the proceeding is to subject his interests therein established, the court shall render judgment for the sum found in arrears from
either party and award costs as justice requires.
From the aforementioned provisions of the Rules of Court and by its very In the present case, the records show that the respondent, before and
nature and purpose, an action for unlawful detainer or forcible entry is a real after his marriage to Jarl Jensen on August 23, 1987, remained a resident of
action and in personam because the plaintiff seeks to enforce a personal Barangay Buenlag, Calasiao, Pangasinan. This can be gleaned from the Deed
obligation or liability on the defendant under Article 539 of the New Civil of Absolute Sale dated August 26, 1992 in which she declared that she was a
Code,[29] for the latter to vacate the property subject of the action, restore resident of said barangay. Moreover, in the Real Estate Mortgage Contract
physical possession thereof to the plaintiff, and pay actual damages by way of dated February 9, 1999, ten days before the complaint in Civil Case No. 879
reasonable compensation for his use or occupation of the property. [30] was filed, the petitioner categorically stated that she was a Filipino and a
resident of Barangay Buenlag, Calasiao, Pangasinan. Considering that the
As gleaned from the averments of the petitioners complaint in the MTC, respondent was in Oslo, Norway, having left the Philippines on February 17,
she sought a writ of a preliminary injunction from the MTC and prayed that the 1999, the summons and complaint in Civil Case No. 879 may only be validly
said writ be made permanent. Under its decision, the MTC ordered the served on her through substituted service under Section 7, Rule 14 of the Rules
defendant therein (the respondent in this case), to vacate the property and pay of Court, which reads:
a monthly rental of P1,000.00 to the plaintiff therein (the petitioner in this case).
SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be
On the issue of whether the respondent was validly served with the served within a reasonable time as provided in the preceding section, service
summons and complaint by the Sheriff on April 5, 1999, the petitioner asserts may be effected (a) by leaving copies of the summons at the defendants
that since her action of forcible entry against the respondent in Civil Case No. residence with some person of suitable age and discretion then residing therein,
879 was in personam, summons may be served on the respondent, by or (b) by leaving the copies at defendants office or regular place of business
substituted service, through her brother, Oscar Layno, in accordance with with some competent person in charge thereof.
Section 7, Rule 14 of the Rules of Court. The petitioner avers that Oscar Layno,
a person of suitable age and discretion, was residing in the house of the Strict compliance with the mode of service is required in order that the
respondent on April 5, 1999. She avers that the fact that the house was leased court may acquire jurisdiction over the person of the defendant.[34] The statutory
to and occupied by Eduardo Gonzales was of no moment. Moreover, the requirement of substituted service must be followed faithfully and strictly and
Sheriff is presumed to have performed his duty of properly serving the any substituted service other than that authorized by the statute is rendered
summons on the respondent by substituted service. ineffective.[35] As the Court held in Hamilton v. Levy:[36]

The contention of the petitioner has no merit. The pertinent facts and circumstances attendant to the service of summons
must be stated in the proof of service or Officers Return; otherwise, any
In Asiavest Limited v. Court of Appeals,[31] the Court had the occasion to substituted service made in lieu of personal service cannot be upheld. This is
state: necessary because substituted service is in derogation of the usual method of
service. It is a method extraordinary in character and hence may be used only
In an action in personam, jurisdiction over the person of the defendant is
as prescribed and in the circumstances authorized by statute. Here, no such
necessary for the court to validly try and decide the case. Jurisdiction over the explanation was made. Failure to faithfully, strictly, and fully comply with the
person of a resident defendant who does not voluntarily appear in court can be
requirements of substituted service renders said service ineffective.[37]
acquired by personal service of summons as provided under Section 7, Rule 14
of the Rules of Court. If he cannot be personally served with summons within a In Keister v. Narcereo,[38] the Court held that the term dwelling house or
reasonable time, substituted service may be made in accordance with Section residence are generally held to refer to the time of service; hence, it is not
8 of said Rule. If he is temporarily out of the country, any of the following modes sufficient to leave the summons at the formers dwelling house, residence or
of service may be resorted to: (a) substituted service set forth in Section 8; (2) place of abode, as the case may be. Dwelling house or residence refers to the
personal service outside the country, with leave of court; (3) service by place where the person named in the summons is living at the time when the
publication, also with leave of court; or (4) any other manner the court may service is made, even though he may be temporarily out of the country at the
deem sufficient.[32] time. It is, thus, the service of the summons intended for the defendant that
must be left with the person of suitable age and discretion residing in the house
Thus, any judgment of the court which has no jurisdiction over the person of the defendant. Compliance with the rules regarding the service of summons
of the defendant is null and void.[33] is as much important as the issue of due process as of jurisdiction. [39]
The Return of Service filed by Sheriff Eduardo J. Abulencia on the service Hence, the MTC failed to acquire jurisdiction over the person of the respondent;
of summons reads: as such, the decision of the MTC in Civil Case No. 879 is null and void.

Respectfully returned to the court of origin the herein summons and enclosures IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of
in the above-entitled case, the undersigned caused the service on April 5, merit. No costs.
1999.
SO ORDERED.
Defendant Vivian Layno Jensen is out of the country as per information from
her brother Oscar Layno, however, copy of summons and enclosures was Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario,
received by her brother Oscar Layno on April 5, 1999 as evidenced by his JJ., concur.
signature appearing in the original summons.

Calasiao, Pangasinan, April 6, 1999.

(Sgd. [1]
) Penned by Associate Justice Conrado M. Vasquez, Jr. with Associate
Justices Mercedes Gozo-Dadole and Rosmari D. Carandang,
EDUARDO J. concurring; Rollo, pp. 25-33.
ABULENCIA [2] Penned by Judge Crispin C. Laron (Retired).
Junior Process [3] Entitled Filomena Domagas v. Vivian Layno Jensen.
Server[40]
[4] Records, p. 13.
As gleaned from the said return, there is no showing that as of April 5,
1999, the house where the Sheriff found Oscar Layno was the latters residence [5] Id. at 20.
or that of the respondent herein. Neither is there any showing that the Sheriff
tried to ascertain where the residence of the respondent was on the said date. [6] Id. at 79.
It turned out that the occupant of the house was a lessor, Eduardo Gonzales,
[7] Records, p. 2.
and that Oscar Layno was in the premises only to collect the rentals from him.
The service of the summons on a person at a place where he was a visitor is [8]
not considered to have been left at the residence or place or abode, where he Id. at 54-56.
has another place at which he ordinarily stays and to which he intends to [9] Id. at 57-58.
return.[41]
[10] Id. at 53.
The Voters Registration Record of Oscar Layno dated June 15, 1997
wherein he declared that he was a resident of No. 572 Barangay Buenlag, [11] Id. at 60.
Calasiao, Pangasinan, as well as the Joint Affidavit of Vicenta Peralta and
Orlando Macasalda cannot prevail over the Contract of Lease the respondent [12] Id. at 59.
had executed in favor of Eduardo Gonzales showing that the latter had resided
[13] Id. at 46.
and occupied the house of the respondent as lessee since November 24, 1997,
and the affidavit of Eduardo Gonzales that Oscar Layno was not residing in the [14]
said house on April 5, 1999. Id. at 47.
[15] Id. at 50
In sum, then, the respondent was not validly served with summons and
the complaint in Civil Case No. 879 on April 5, 1999, by substituted service. [16] Exhibit 6.
[17] Records, p. 126. [37] Id. at 829.
[18] National Surety Co. v. Austin Machinery Corporation, 35 F.2d 842 (1929). [38] 77 SCRA 209 (1977).
[19] Sandejas v. Robles, 81 Phil. 421 (1948). [39] Ang Ping v. Court of Appeals, 310 SCRA 343 (1999).
[20] Id. at 424. [40] Records, p. 20.
[21] Asiavest Ltd. v. Court of Appeals, 296 SCRA 539 (1998). [41] John Hancock Mutual Life Insurance Co. v. Gooley, 118 ALR 1484
(1938); Albers v. Bramberg, 32 N.E. 2d 362 (1941).
[22] Hughes v. Hughes, 278 S.W. 121 (1925).
[23] Green Oaks Apartments, Ltd. v. Cannon, 696 S.W. 2d 415 (1985).
8. Gomez v. CA, Mar. 10, 2004
[24] 60 S.W. 2d 368 (1933).
[25] PNB v. Court of Appeals, 153 SCRA 435 (1987).
SECOND DIVISION
[26] Freeman v. Alderson, 30 L.Ed.372 (1886).
[G.R. No. 127692. March 10, 2004]
[27] Banco do Brasil v. Court of Appeals, 333 SCRA 545 (2000).
FORTUNATO GOMEZ and AURORA GOMEZ, petitioners, vs. COURT OF
[28] Perry v. Young, 182 S.W. 577 (1916). APPEALS, ADOLFO TROCINO and MARIANO
[29]
TROCINO, respondents.
ART. 539. Every possessor has a right to be respected in his possession;
and should he be disturbed therein he shall be protected in or restored DECISION
to said possession by the means established by the laws and the Rules
of Court. AUSTRIA-MARTINEZ, J.:

possessor deprived of his possession through forcible entry may within ten Before the Court is a petition for review on certiorari under Rule 45 of the
days from the filing of the complaint present a motion to secure from Rules of Court assailing the decision[1] of the Court of Appeals
the competent court, in the action for forcible entry, a writ of preliminary dated September 30, 1996, in CA-G.R. SP No. 40067, nullifying the decision
mandatory injunction to restore him in his possession. The court shall and orders of the Regional Trial Court of Cebu City (Branch 10) in Civil Case
decide the motion within thirty (30) days from the filing thereof. No. CEB-11103, for want of jurisdiction.
[30] Progressive Development Corporation, Inc. v. Court of Appeals, 301 SCRA Civil Case No. CEB-11103 is an action for specific performance and/or
637 (1999). rescission filed by herein petitioners, spouses Fortunato and Aurora Gomez,
against the heirs of Jesus J. Trocino, Sr., which include herein respondents and
[31] 296 SCRA 539 (1998). their mother Caridad Trocino.[2]
[32] Id. at 552-553. Filed on December 16, 1991, the complaint alleges: Some time in 1975,
[33]
the spouses Jesus and Caridad Trocino mortgaged two parcels of land covered
Lam v. Rosillosa, 86 Phil. 447 (1956).
by TCT Nos. 10616 and 31856 to Dr. Clarence Yujuico. The mortgage was
[34] Venturanza v. Court of Appeals, 156 SCRA 305 (1987). subsequently foreclosed and the properties sold at public auction on July 11,
1988, and before the expiry of the redemption period, the spouses Trocino sold
[35] Umandap v. Sabio, Jr., 339 SCRA 243 (2000). the property to petitioners on December 12, 1989, who in turn, redeemed the
[36] 344 SCRA 821 (2000).
same from Dr. Yujuico. The spouses Trocino, however, refused to convey In addition thereto, defendants are to pay jointly and severally to the plaintiffs,
ownership of the properties to petitioners, hence, the complaint. the amount of P50,000.00 as moral damages; P20,000.00 as exemplary
damages; P40,000.00 by way of attorneys fees; and P10,000.00 as litigation
On January 10, 1992, the trial courts Process Server served summons on expenses.
respondents, in the manner described in his Return of Service, to wit:
SO ORDERED.[5]
Respectfully returned to the Branch Clerk of Court, Regional Trial Court of
Cebu, Branch 10, the herein attached original summons issued in the Due to the defendants failure to deliver the owners duplicate of TCT Nos.
above-entitled case with the information that on January 8, 1992 summons and 10616 and 31856, the RTC issued an order on August 29, 1995declaring said
copies of the complaint were served to the defendants Jacob, Jesus Jr., Adolfo, titles null and void, and ordering the Register of Deeds of Cebu City to issue
Mariano, Consolacion, Alice, Racheal thru defendant Caridad Trocino at their new titles in the name of herein petitioners.[6]
given address at Maria Cristina Extension (besides Sacred Heart School for
Girls), Cebu City, evidence by her signature found at the lower portion of the Thereafter, or on March 13, 1996, respondents Adolfo and Mariano
original summons.[3] Trocino filed with the Court of Appeals, a petition for the annulment of the
judgment rendered by the RTC-Cebu (Branch 10) in Civil Case No.
WHEREFORE I, respectfully return the original summons duly served to the CEB-11103. Private respondents alleged that the trial courts decision is null
court of origin. and void on the ground that it did not acquire jurisdiction over their persons as
they were not validly served with a copy of the summons and the
Cebu City, Philippines, January 10, 1992. complaint.According to them, at the time summons was served on them, Adolfo
Trocino was already in Ohio, U.S.A., and has been residing there for 25 years,
(signed) while Mariano Trocino was in Talibon, Bohol, and has been residing there since
DELFIN D. 1986. They also refuted the receipt of the summons by Caridad A. Trocino, and
BARNIDO the representation made by Atty. Bugarin in their behalf. Respondents also
contended that they have a meritorious defense.[7] Petitioners filed their
RTC Process Server Comment/Answer to the petition.[8]

On January 27, 1992, the defendants, through their counsel Atty. Expedito On September 30, 1996, the Court of Appeals issued the assailed
P. Bugarin, filed their Answer. Defendant Caridad A. Trocino, respondents Decision granting the petition and annulling the decision of the RTC-Cebu
mother, verified said pleading.[4] (Branch 10). The decretal portion of the decision reads:

After trial on the merits, the RTC rendered its decision on March 1993, WHEREFORE, the decision of the Regional Trial Court of Cebu City, Branch
with the following disposition: 10, in Civil Case No. CEB-11103 as well as all Orders issued to implement the
same are hereby ANNULLED AND SET ASIDE. The Register of Deeds of
WHEREFORE, premises considered, judgment is hereby rendered in favor of Cebu City is hereby ENJOINED from cancelling Transfer Certificates of Title
the plaintiffs and against the defendants. Nos. 10616 and 31856. No pronouncement as to costs.
The latter are hereby ordered to jointly and severally execute a Deed of Sale in SO ORDERED.[9]
favor of the plaintiffs and to deliver the owners duplicate copies of TCT Nos.
10616 and 31856, covering the properties sold, to the plaintiffs within ten (10) Their motion for reconsideration having been denied by the Court of
days from the finality of the judgment, after which plaintiffs shall pay in turn to Appeals, petitioners filed the present petition, setting forth the following
the defendants the balance of P2,000,000.00. Otherwise, the sale is rescinded assignment of errors:
and revoked and the defendants are directed to return to the plaintiffs the
amount of P500,000.00, with interest of 12% per annum computed I. THE COURT OF APPEALS ERRED IN FINDING LACK OF PRIOR
from December 6, 1989, until the full amount is paid. KNOWLEDGE ON THE PART OF RESPONDENTS TROCINO,
REGARDING THE PROCEEDINGS BEFORE THE RTC
OF CEBU CITY AND IN NOT DISMISSING THE PETITION FOR If efforts to find defendant personally makes prompt service impossible,
VIOLATION OF SUPREME COURT CIRCULAR 04-94. substituted service may be effected by leaving copies of the summons at the
defendant's dwelling house or residence with some person of suitable age and
II. THE COURT OF APPEALS ERRED IN DECLARING THE NEED discretion then residing therein, or by leaving the copies at the defendant's
FOR PERSONAL AND/OR EXTRATERRITORIAL SERVICE OF office or regular place of business with some competent person in charge
SUMMONS, DESPITE THE NATURE OF THE CAUSE OF thereof.[15] In substituted service, it is mandated that the fact of impossibility of
ACTION BEING ONE IN REM. personal service should be explained in the proof of service.[16]
III. THE COURT OF APPEALS ERRED IN ANNULLING THE When the defendant in an action in personam is a non-resident who does
JUDGMENT, CAUSING FURTHER USELESS LITIGATION AND not voluntarily submit himself to the authority of the court, personal service of
UNNECESSARY EXPENSE ON PETITIONERS AND summons within the State is essential to the acquisition of jurisdiction over his
RESPONDENTS, ESPECIALLY SINCE RESPONDENTS HAVE person. This cannot be done if the defendant is not physically present in the
NOT SHOWN ANY VALID DEFENSE AS GROUND FOR country, and thus, the court cannot acquire jurisdiction over his person and
REVERSAL OF JUDGMENT OF THE RTC. therefore cannot validly try and decide the case against him. [17] An exception
was accorded in Gemperle vs. Schenker wherein service of summons through
IV. THE COURT OF APPEALS ERRED IN RULING THAT ITS
the non-residents wife, who was a resident of the Philippines, was held valid, as
JUDGMENT IS APPLICABLE IN FAVOR OF CARIDAD
the latter was his representative and attorney-in-fact in a prior civil case filed by
TROCINO.[10] the non-resident, and the second case was merely an offshoot of the first
Summons is a writ by which the defendant is notified of the action brought case.[18]
against him. Service of such writ is the means by which the court acquires
Meanwhile, in actions in rem or quasi in rem, jurisdiction over the person
jurisdiction over his person.[11] Any judgment without such service in the
of the defendant is not a prerequisite to confer jurisdiction on the court provided
absence of a valid waiver is null and void.[12]
that the court acquires jurisdiction over the res, although summons must be
The resolution of the present petition hinges on the issue of whether or not served upon the defendant in order to satisfy the due process
summons was effectively served on respondents. If in the affirmative, the trial requirements.[19] Thus, where the defendant is a non-resident who is not found
court had validly acquired jurisdiction over their persons and therefore its in the Philippines, and (1) the action affects the personal status of the plaintiff;
judgment is valid. (2) the action relates to, or the subject matter of which is property in the
Philippines in which the defendant has or claims a lien or interest; (3) the action
To resolve whether there was valid service of summons on respondents, seeks the exclusion of the defendant from any interest in the property located in
the nature of the action filed against them must first be determined. As the the Philippines; or (4) the property of the defendant has been attached in the
Court explained in Asiavest Limited vs. Court of Appeals, it will be helpful to Philippines, summons may be served extraterritorially by (a) personal service
determine first whether the action is in personam, in rem, or quasi in rem out of the country, with leave of court; (b) publication, also with leave of court;
because the rules on service of summons under Rule 14 of the Rules of Court or (c) any other manner the court may deem sufficient.[20]
of the Philippines apply according to the nature of the action.[13]
In the present case, petitioners cause of action in Civil Case No.
In actions in personam, summons on the defendant must be served by CEB-11103 is anchored on the claim that the spouses Jesus and Caridad
handing a copy thereof to the defendant in person, or, if he refuses to receive it, Trocino reneged on their obligation to convey ownership of the two parcels of
by tendering it to him. This is specifically provided in Section 7, Rule 14 of the land subject of their sale. Thus, petitioners pray in their complaint that the
Rules of Court,[14] which states: spouses Trocino be ordered to execute the appropriate deed of sale and that
the titles be delivered to them (petitioners); or in the alternative, that the sale be
SEC. 7. Personal service of summons.-- The summons shall be served by revoked and rescinded; and spouses Trocino ordered to return to petitioners
handing a copy thereof to the defendant in person or, if he refuses to receive it, their down payment in the amount of P500,000.00 plus interests.The action
by tendering it to him. instituted by petitioners affect the parties alone, not the whole world. Hence, it
is an action in personam, i.e., any judgment therein is binding only upon the
parties properly impleaded.[21]
Contrary to petitioners belief, the complaint they filed for specific Trocino.[26] The return did not contain any particulars as to the impossibility of
performance and/or rescission is not an action in rem. While it is a real action personal service on Mariano Trocino within a reasonable time. Such improper
because it affects title to or possession of the two parcels of land covered by service renders the same ineffective.
TCT Nos. 10616 and 31856, it does not automatically follow that the action is
already one in rem. In Hernandez vs. Rural Bank of Lucena, Inc., the Court Due process of law requires personal service to support a personal judgment,
made the following distinction: and, when the proceeding is strictly in personam brought to determine the
personal rights and obligations of the parties, personal service within the state
In a personal action, the plaintiff seeks the recovery of personal property, the or a voluntary appearance in the case is essential to the acquisition of
enforcement of a contract or the recovery of damages. In a real action, the jurisdiction so as to constitute compliance with the constitutional requirement of
plaintiff seeks the recovery of real property, or, as indicated in section 2(a) of due process.[27]
Rule 4, a real action is an action affecting title to real property or for the
recovery of possession, or for partition or condemnation of, or foreclosure of a Moreover, inasmuch as the sheriffs return failed to state the facts and
mortgage on, real property. circumstances showing the impossibility of personal service of summons upon
respondents within a reasonable time, petitioners should have sought the
An action in personam is an action against a person on the basis of his issuance of an alias summons. Under Section 5, Rule 14 of the Rules of Court,
personal liability, while an action in rem is an action against the thing itself, alias summons may be issued when the original summons is returned without
instead of against the person. Hence, a real action may at the same time be an being served on any or all of the defendants.[28] Petitioners, however, did not do
action in personam and not necessarily an action in rem.[22] so, and they should now bear the consequences of their lack of diligence.

The objective sought in petitioners complaint was to establish a claim The fact that Atty. Expedito Bugarin represented all the respondents
against respondents for their alleged refusal to convey to them the title to the without any exception does not transform the ineffective service of summons
two parcels of land that they inherited from their father, Jesus Trocino, who was into a valid one. It does not constitute a valid waiver or even a voluntary
one of the sellers of the properties to petitioners. Hence, to repeat, Civil Case submission to the trial courts jurisdiction. There was not even the slightest proof
No. CEB-11103 is an action in personam because it is an action against showing that respondents authorized Atty. Bugarins appearance for and in their
persons, namely, herein respondents, on the basis of their personal liability. As behalf. As found by the Court of Appeals:
such, personal service of summons upon the defendants is essential in
order for the court to acquire of jurisdiction over their persons.[23] While Caridad Trocino may have engaged the services of Atty. Bugarin, it did
not necessarily mean that Atty. Bugarin also had the authority to represent the
A distinction, however, must be made with regard to service of summons defendant heirs. The records show that in all the pleadings which required
on respondents Adolfo Trocino and Mariano Trocino. Adolfo Trocino, as verification, only Caridad Trocino signed the same. There was never a single
records show, is already a resident of Ohio, U.S.A. for 25 years. Being a instance where defendant heirs signed the pleading. The fact that a pleading is
non-resident, the court cannot acquire jurisdiction over his person and validly signed by one defendant does not necessarily mean that it is binding on a
try and decide the case against him. co-defendant.Furthermore, Caridad Trocino represented herself as the
principal defendant in her Motion to Withdraw Appeal. (Rollo, p. 80)
On the other hand, Mariano Trocino has been in Talibon, Bohol since
1986. To validly acquire jurisdiction over his person, summons must be served Since the defendant heirs are co-defendants, the trial court should have verified
on him personally, or through substituted service, upon showing of impossibility the extent of Atty. Bugarins authority when petitioners failed to appear as early
of personal service. Such impossibility, and why efforts exerted towards as the pre-trial stage, where the parties are required to appear. The absence of
personal service failed, should be explained in the proof of service. The the defendant heirs should have prompted the trial court to inquire from the
pertinent facts and circumstances attendant to the service of summons must be lawyer whether he was also representing the other petitioners. As co-defendant
stated in the proof of service or Officers Return. Failure to do so would and co-heirs over the disputed properties, the defendant heirs had every right
invalidate all subsequent proceedings on jurisdictional grounds. [24] to be present during the trial. Only Caridad Trocino appeared and testified on
her own behalf. All the defenses raised were her own, not the defendant
In the present case, the process server served the summons and copies heirs.[29]
of the complaint on respondents Jacob, Jesus, Jr., Adolfo, Mariano,
Consolacion, Alice and Racheal,[25] through their mother, Caridad
Consequently, the judgment sought to be executed against respondents [4] Id., p. 29, Annex C.
were rendered without jurisdiction as there was neither a proper service of
[5] Id., pp. 34-35, Annex D.
summons nor was there any waiver or voluntary submission to the trial courts
jurisdiction. Hence, the same is void, with regard to private respondents except [6] Id., p. 49, Annex F.
Caridad Trocino.
[7] Id., pp. 2-13, Petition.
It must be pointed out that while it was the spouses Jesus and Caridad
Trocino who sold the properties to petitioners, their right to proceed against [8] Id., pp. 52-55.
Jesus Trocino when he died was passed on to his heirs, which includes
respondents and Caridad Trocino. Such transmission of right occurred by [9] Id., p. 117.
operation of law, more particularly by succession, which is a mode of
[10] Rollo, p. 15.
acquisition by virtue of which the property, rights and obligations to the extent of
the value of the inheritance of a person are transmitted. [30] When the process [11]
server personally served the summons on Caridad Trocino, the trial court Licaros vs. Licaros, G.R. No. 150656, April 29, 2003.
validly acquired jurisdiction over her person alone. Hence, the trial courts [12] Umandap vs. Sabio, G.R. No. 140244, August 29, 2000, 339 SCRA
decision is valid and binding with regard to her, but only in proportion to
243-247.
Caridad Trocinos share. As aptly stated by the Court of Appeals:
[13] G.R. No. 128803, September 25, 1998, 296 SCRA 539, 552.
This Courts decision is therefore applicable to all the defendant heirs with the
exception of defendant Caridad Trocino considering that it was the latter who [14] Section 7, Rule 14 is now reproduced in Section 6, Rule 14 of the 1997
entered into the alleged sale without the consent of her husband. She is Rules of Civil Procedure.
therefore estopped from questioning her own authority to enter into the
questioned sale. Moreover, Caridad Trocino was validly served with summons [15] Section 8, Rule 14 of the Rules of Court.
and was accorded due process.[31]
[16] Supra, Asiavest Limited case.
WHEREFORE, the petition for review is DENIED. The decision of the
[17] Banco de Brasil vs. Court of Appeals, G.R. Nos. 121576-78, June 16, 2000,
Court of Appeals in CA-G.R. SP No. 40067 is AFFIRMED.
333 SCRA 545, 557.
Costs against petitioners.
[18] Supra., Asiavest Limited case.
SO ORDERED.
[19] Ibid.
Quisumbing, (Acting Chairman), Callejo, Sr., and Tinga, JJ., concur.
[20] Rule 14, Section 15 of the Rules of Court.
Puno, (Chairman), J., on leave.
[21] Paderanga vs. Buissan, G.R. No. 49475, September 28, 1993, 226 SCRA
786, 790.
[22] G.R. No. L-29791, January 10, 1978, 81 SCRA 75, 84-85.
[1] Penned by Justice Consuelo Ynares-Santiago (now Associate Justice of the [23] Arcenas vs. Court of Appeals, G.R. No. 130401, December 4, 1998, 299
Supreme Court), and concurred in by Justice Fidel P. Purisima (retired SCRA 733, 741.
Associate Justice of the Supreme Court), and Justice Ruben T. Reyes.
[24] Madrigal vs. Court of Appeals, G.R. No. 129955, November 26, 1999, 319
[2] CA Rollo, p. 20, Annex A. SCRA 331, 336.
[3] Id., p. 25, Annex B. [25] Also referred to as Rachel in the pleadings.
[26] Supra., Note No. 3. 1) US$1,810,265.40 or its equivalent in Hong Kong currency
at the time of payment with legal interest from
[27] Supra., Arcenas case. December 28, 1984 until fully paid;
[28] Rule 14, Section 5 of the Rules of Court provides: 2) interest on the sum of US$1,500.00 at 9.875% per annum
from October 31, 1984 to December 28, 1984; and
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 plaintiffs counsel, 3) HK$905.00 at fixed cost in the action; and
stating the reasons for the failure of service, within (5) days
therefrom. In such a case, or if the summons has been lost, the clerk, 4) at least $80,000.00 representing attorneys fees, litigation
on demand of the plaintiff, may issue an alias summons. expenses and cost, with interest thereon from the
date of the judgment until fully paid.
[29] Rollo, pp. 90-91.
On March 3, 1988, the defendant filed a Motion to Dismiss. However,
[30] Emnace vs. Court of Appeals, G.R. No. 126334, November 23, 2001, 370 before the court could resolve the said motion, a fire which partially
SCRA 431, 445. razed the Quezon City Hall Building on June 11, 1988 totally
[31]
destroyed the office of this Court, together with all its records,
Rollo, p. 96.
equipment and properties. On July 26, 1988, the plaintiff, through
counsel filed a Motion for Reconstitution of Case Records. The Court,
after allowing the defendant to react thereto, granted the said Motion
and admitted the annexes attached thereto as the reconstituted
records of this case per Order dated September 6, 1988. Thereafter,
9. Asiavest Limited v. CA, Sept. 25, 1998 the Motion to Dismiss, the resolution of which had been deferred,
was denied by the Court in its Order of October 4, 1988.
FIRST DIVISION
On October 19, 1988, defendant filed his Answer. The case was then
[G.R. No. 128803. September 25, 1998] set for pre-trial conference. At the conference, the parties could not
arrive at any settlement. However, they agreed on the following
ASIAVEST LIMITED, petitioner, vs. THE COURT OF APPEALS AND
stipulations of facts:
ANTONIO HERAS, respondents.
1) The defendant admits the existence of the judgment
DECISION
dated December 28, 1984 as well as its amendment
DAVIDE, JR., J.: dated April 13, 1987, but not necessarily the
authenticity or validity thereof;
In issue is the enforceability in the Philippines of a foreign judgment. The
antecedents are summarized in the 24 August 1990 Decision [1] of Branch 107 2) The plaintiff is not doing business and is not licensed to
of the Regional Trial Court of Quezon City in Civil Case No. Q-52452; thus: do business in the Philippines;

The plaintiff Asiavest Limited filed a complaint on December 3, 1987 3) The residence of defendant, Antonio Heras, is New Manila, Quezon
against the defendant Antonio Heras praying that said defendant be City.
ordered to pay to the plaintiff the amounts awarded by the Hong Kong
The only issue for this Court to determine is, whether or not the
Court Judgment dated December 28, 1984 and amended on April 13,
judgment of the Hong Kong Court has been repelled by evidence of
1987, to wit:
want of jurisdiction, want of notice to the party, collusion, fraud or
clear mistake of law or fact, such as to overcome the presumption
established in Section 50, Rule 39 of the Rules of Court in favor of In his affidavit (Exh. 2) which constitutes his direct testimony, the said
foreign judgments. witness stated that:

In view of the admission by the defendant of the existence of the The defendant was sued on the basis of his personal
aforementioned judgment (Pls. See Stipulations of Facts in the Order guarantee of the obligations of Compania Hermanos de
dated January 5, 1989 as amended by the Order of January 18, Navegacion S.A. There is no record that a writ of summons
1989), as well as the legal presumption in favor of the plaintiff as was served on the person of the defendant in Hong Kong, or
provided for in paragraph (b), Sec. 50, (Ibid.), the plaintiff presented that any such attempt at service was made. Likewise, there
only documentary evidence to show rendition, existence, and is no record that a copy of the judgment of the High Court
authentication of such judgment by the proper officials concerned was furnished or served on the defendant; anyway, it is not
(Pls. See Exhibits A thru B, with their submarkings). In addition, the a legal requirement to do so under Hong Kong laws;
plaintiff presented testimonial and documentary evidence to show its
entitlement to attorneys fees and other expenses of litigation. a) The writ of summons or claim can be served by the
solicitor (lawyer) of the claimant or plaintiff. In
On the other hand, the defendant presented two witnesses, namely, Hong Kong there are no Court personnel who
Fortunata dela Vega and Russel Warren Lousich. serve writs of summons and/or most other
processes.
The gist of Ms. dela Vegas testimony is to the effect that no writ of
summons or copy of a statement of claim of Asiavest Limited was b) If the writ of summons or claim (or complaint) is not
ever served in the office of the Navegante Shipping Agency Limited contested, the claimant or the plaintiff is not
and/or for Mr. Antonio Heras, and that no service of the writ of required to present proof of his claim or complaint
summons was either served on the defendant at his residence in nor present evidence under oath of the claim in
New Manila, Quezon City. Her knowledge is based on the fact that order to obtain a Judgment.
she was the personal secretary of Mr. Heras during his JD Transit
days up to the latter part of 1972 when he shifted or diversified to c) There is no legal requirement that such a Judgment
shipping business in Hong Kong; that she was in-charge of all his or decision rendered by the Court in Hong Kong [to]
letters and correspondence, business commitments, undertakings, make a recitation of the facts or the law upon
conferences and appointments, until October 1984 when Mr. Heras which the claim is based.
left Hong Kong for good; that she was also the Officer-in-Charge or
d) There is no necessity to furnish the defendant with a
Office Manager of Navegante Shipping Agency LTD, a Hong Kong
copy of the Judgment or decision rendered against
registered and based company acting as ships agent, up to and until
the company closed shop sometime in the first quarter of 1985, when him.
shipping business collapsed worldwide; that the said company held e) In an action based on a guarantee, there is no
office at 34-35 Connaught Road, Central Hong Kong and later established legal requirement or obligation under
transferred to Caxton House at Duddel Street, Hong Kong, until the Hong Kong laws that the creditor must first bring
company closed shop in 1985; and that she was certain of such facts proceedings against the principal debtor. The
because she held office at Caxton House up to the first quarter of creditor can immediately go against the guarantor.
1985.
On cross examination, Mr. Lousich stated that before he was
Mr. Lousich was presented as an expert on the laws of Hong Kong, commissioned by the law firm of the defendants counsel as an expert
and as a representative of the law office of the defendants counsel witness and to verify the records of the Hong Kong case, he had
who made a verification of the record of the case filed by the plaintiff been acting as counsel for the defendant in a number of commercial
in Hong Kong against the defendant, as well as the procedure in matters; that there was an application for service of summons upon
serving Court processes in Hong Kong. the defendant outside the jurisdiction of Hong Kong; that there was
an order of the Court authorizing service upon Heras outside of Hong
Kong, particularly in Manila or any other place in the Philippines (p. 9, WHEREFORE, judgment is hereby rendered ordering defendant to
TSN, 2/14/90); that there must be adequate proof of service of pay to the plaintiff the following sums or their equivalents in
summons, otherwise the Hong Kong Court will refuse to render Philippine currency at the time of payment: US$1,810,265.40 plus
judgment (p. 10, ibid); that the mere fact that the Hong Kong Court interest on the sum of US$1,500,000.00 at 9.875% per annum from
rendered judgment, it can be presumed that there was service of October 31, 1984 to December 28, 1984, and HK$905 as fixed cost,
summons; that in this case, it is not just a presumption because there with legal interests on the aggregate amount from December 28,
was an affidavit stating that service was effected in [sic] a particular 1984, and to pay attorneys fees in the sum of P80,000.00.
man here in Manila; that such affidavit was filed by one Jose R.
Fernandez of the firm Sycip Salazar on the 21 st of December 1984, ASIAVEST moved for the reconsideration of the decision. It sought an
and stated in essence that on Friday, the 23rd of November 1984 he award of judicial costs and an increase in attorneys fees in the amount of
served the 4th defendant at No. 6 First Street, Quezon City by leaving US$19,346.45 with interest until full payment of the said obligations. On the
it at that address with Mr. Dionisio Lopez, the son-in-law of the other hand, HERAS no longer opposed the motion and instead appealed the
4th defendant the copy of the writ and Mr. Lopez informed me and I decision to the Court of Appeals, which docketed the appeal as CA-G.R. CV No.
barely believed that he would bring the said writ to the attention of the 29513.
4th defendant (pp. 11-12, ibid.); that upon filing of that affidavit, the
In its order[2] November 1990, the trial court granted ASIAVESTs motion
Court was asked and granted judgment against the 4th defendant;
and that if the summons or claim is not contested, the claimant of the for reconsideration by increasing the award of attorneys fees to US$19,345.65
plaintiff is not required to present proof of his claim or complaint or OR ITS EQUIVALENT IN PHILIPPINE CURRENCY, AND TO PAY THE
COSTS OF THIS SUIT, provided that ASIAVEST would pay the corresponding
present evidence under oath of the claim in order to obtain judgment;
filing fees for the increase. ASIAVEST appealed the order requiring prior
and that such judgment can be enforced in the same manner as a
payment of filing fees. However, it later withdrew its appeal and paid the
judgment rendered after full hearing.
additional filing fees.
The trial court held that since the Hong Kong court judgment had been
duly proved, it is a presumptive evidence of a right as between the parties; On 3 April 1997, the Court of Appeals rendered its decision[3] reversing the
hence, the party impugning it had the burden to prove want of jurisdiction over decision of the trial court and dismissing ASIAVESTs complaint without
prejudice.It underscored the fact that a foreign judgment does not of itself have
his person. HERAS failed to discharge that burden. He did not testify to state
any extraterritorial application. For it to be given effect, the foreign tribunal
categorically and under oath that he never received summons. Even his own
should have acquired jurisdiction over the person and the subject matter. If
witness Lousich admitted that HERAS was served with summons in his
such tribunal has not acquired jurisdiction, its judgment is void.
Quezon City residence. As to De la Vegas testimony regarding non-service of
summons, the same was hearsay and had no probative value. The Court of Appeals agreed with the trial court that matters of remedy
As to HERAS contention that the Hong Kong court judgment violated the and procedure such as those relating to service of summons upon the
defendant are governed by the lex fori, which was, in this case, the law of Hong
Constitution and the procedural laws of the Philippines because it contained no
Kong. Relative thereto, it gave weight to Lousichs testimony that under the
statements of the facts and the law on which it was based, the trial court ruled
that since the issue related to procedural matters, the law of the forum, i.e., Hong Kong law, the substituted service of summons upon HERAS effected in
Hong Kong laws, should govern. As testified by the expert witness Lousich, the Philippines by the clerk of Sycip Salazar Hernandez & Gatmaitan firm
such legalities were not required under Hong Kong laws. The trial court also would be valid provided that it was done in accordance with Philippine laws. It
then stressed that where the action is in personam and the defendant is in the
debunked HERAS contention that the principle of excussion under Article 2058
Philippines, the summons should be personally served on the defendant
of the Civil Code of the Philippines was violated. It declared that matters of
pursuant to Section 7, Rule 14 of the Rules of Court.[4] Substituted service may
substance are subject to the law of the place where the transaction occurred; in
only be availed of where the defendant cannot be promptly served in person,
this case, Hong Kong laws must govern.
the fact of impossibility of personal service should be explained in the proof of
The trial court concluded that the Hong Kong court judgment should be service. It also found as persuasive HERAS argument that instead of directly
recognized and given effect in this jurisdiction for failure of HERAS to overcome using the clerk of the Sycip Salazar Hernandez & Gatmaitan law office, who
the legal presumption in favor of the foreign judgment. It then decreed; thus: was not authorized by the judge of the court issuing the summons, ASIAVEST
should have asked for leave of the local courts to have the foreign summons THE HONG KONG SUMMONS SHOULD HAVE BEEN SERVED
served by the sheriff or other court officer of the place where service was to be WITH LEAVE OF PHILIPPINE COURTS;
made, or for special reasons by any person authorized by the judge.
V.
The Court of Appeals agreed with HERAS that notice sent outside the
state to a non-resident is unavailing to give jurisdiction in an action against him THE FOREIGN JUDGMENT CONTRAVENES PHILIPPINE LAWS,
personally for money recovery. Summons should have been personally served THE PRINCIPLES OF SOUND MORALITY, AND THE PUBLIC
on HERAS in Hong Kong, for, as claimed by ASIAVEST, HERAS was POLICY OF THE PHILIPPINES.
physically present in Hong Kong for nearly 14 years. Since there was not even
Being interrelated, we shall take up together the assigned errors.
an attempt to serve summons on HERAS in Hong Kong, the Hong Kong
Supreme Court did not acquire jurisdiction over HERAS. Nonetheless, it did not Under paragraph (b) of Section 50, Rule 39 of the Rules of Court, [5] which
totally foreclose the claim of ASIAVEST; thus: was the governing law at the time this case was decided by the trial court and
While We are not fully convinced that [HERAS] has a meritorious respondent Court of Appeals, a foreign judgment against a person rendered by
defense against [ASIAVESTs] claims or that [HERAS] ought to be a court having jurisdiction to pronounce the judgment is presumptive evidence
of a right as between the parties and their successors in interest by the
absolved of any liability, nevertheless, in view of the foregoing
subsequent title. However, the judgment may be repelled by evidence of want
discussion, there is a need to deviate from the findings of the lower
of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of
court in the interest of justice and fair play. This, however, is without
prejudice to whatever action [ASIAVEST] might deem proper in order law or fact.
to enforce its claims against [HERAS]. Also, Section 3(n) of Rule 131 of the New Rules of Evidence provides that in
the absence of proof to the contrary, a court, or judge acting as such, whether
Finally, the Court of Appeals also agreed with HERAS that it was
in the Philippines or elsewhere, is presumed to have acted in the lawful
necessary that evidence supporting the validity of the foreign judgment be
exercise of jurisdiction.
submitted, and that our courts are not bound to give effect to foreign judgments
which contravene our laws and the principle of sound morality and public Hence, once the authenticity of the foreign judgment is proved, the burden
policy. to repel it on grounds provided for in paragraph (b) of Section 50, Rule 39 of the
ASIAVEST forthwith filed the instant petition alleging that the Court of Rules of Court is on the party challenging the foreign judgment -- HERAS in this
case.
Appeals erred in ruling that

I. At the pre-trial conference, HERAS admitted the existence of the Hong


Kong judgment. On the other hand, ASIAVEST presented evidence to prove
IT WAS NECESSARY FOR [ASIAVEST] TO PRESENT EVIDENCE rendition, existence, and authentication of the judgment by the proper
SUPPORTING THE VALIDITY OF THE JUDGMENT; officials. The judgment is thus presumed to be valid and binding in the country
from which it comes, until the contrary is shown.[6] Consequently, the first
II. ground relied upon by ASIAVEST has merit. The presumption of validity
accorded foreign judgment would be rendered meaningless were the party
THE SERVICE OF SUMMONS ON [HERAS] WAS DEFECTIVE seeking to enforce it be required to first establish its validity.
UNDER PHILIPPINE LAW;
The main argument raised against the Hong Kong judgment is that the
III. Hong Kong Supreme Court did not acquire jurisdiction over the person of
HERAS. This involves the issue of whether summons was properly and validly
SUMMONS SHOULD HAVE BEEN PERSONALLY SERVED ON served on HERAS. It is settled that matters of remedy and procedure such as
HERAS IN HONG KONG;
those relating to the service of process upon the defendant are governed by
IV. the lex fori or the law of the forum,[7] i.e., the law of Hong Kong in this
case. HERAS insisted that according to his witness Mr. Lousich, who was
presented as an expert on Hong Kong laws, there was no valid service of not exclude the presentation of other competent evidence to prove
summons on him. the existence of a foreign law. In that case, the Supreme Court
considered the testimony under oath of an attorney-at-law of San
In his counter-affidavit,[8] which served as his direct testimony per Francisco, California, who quoted verbatim a section of California
agreement of the parties,[9] Lousich declared that the record of the Hong Kong Civil Code and who stated that the same was in force at the time the
case failed to show that a writ of summons was served upon HERAS in Hong obligations were contracted, as sufficient evidence to establish the
Kong or that any such attempt was made. Neither did the record show that a existence of said law. Accordingly, in line with this view, the Supreme
copy of the judgment of the court was served on HERAS. He stated further that Court in the Collector of Internal Revenue v. Fisher et al.,[14] upheld
under Hong Kong laws (a) a writ of summons could be served by the solicitor of the Tax Court in considering the pertinent law of California as proved
the claimant or plaintiff; and (b) where the said writ or claim was not contested, by the respondents witness. In that case, the counsel for respondent
the claimant or plaintiff was not required to present proof under oath in order to testified that as an active member of the California Bar since 1951, he
obtain judgment. is familiar with the revenue and taxation laws of the State of
California. When asked by the lower court to state the pertinent
On cross-examination by counsel for ASIAVEST, Lousich testified that the
California law as regards exemption of intangible personal properties,
Hong Kong court authorized service of summons on HERAS outside of its
the witness cited Article 4, Sec. 13851 (a) & (b) of the California
jurisdiction, particularly in the Philippines. He admitted also the existence of an
Internal and Revenue Code as published in Derrings California Code,
affidavit of one Jose R. Fernandez of the Sycip Salazar Hernandez & a publication of Bancroft-Whitney Co., Inc. And as part of his
Gatmaitan law firm stating that he (Fernandez) served summons on HERAS on testimony, a full quotation of the cited section was offered in evidence
13 November 1984 at No. 6, 1st St., Quezon City, by leaving a copy with
by respondents. Likewise, in several naturalization cases, it was held
HERASs son-in-law Dionisio Lopez.[10] On redirect examination, Lousich
by the Court that evidence of the law of a foreign country on
declared that such service of summons would be valid under Hong Kong laws
reciprocity regarding the acquisition of citizenship, although not
provided that it was in accordance with Philippine laws.[11]
meeting the prescribed rule of practice, may be allowed and used as
We note that there was no objection on the part of ASIAVEST on the basis for favorable action, if, in the light of all the circumstances, the
qualification of Mr. Lousich as an expert on the Hong Kong law. Under Sections Court is satisfied of the authenticity of the written proof
24 and 25, Rule 132 of the New Rules of Evidence, the record of public offered.[15] Thus, in a number of decisions, mere authentication of the
documents of a sovereign authority, tribunal, official body, or public officer may Chinese Naturalization Law by the Chinese Consulate General of
be proved by (1) an official publication thereof or (2) a copy attested by the Manila was held to be competent proof of that law.[16]
officer having the legal custody thereof, which must be accompanied, if the
There is, however, nothing in the testimony of Mr. Lousich that touched on
record is not kept in the Philippines, with a certificate that such officer has the the specific law of Hong Kong in respect of service of summons either in
custody. The certificate may be issued by a secretary of the embassy or actions in rem or in personam, and where the defendant is either a resident or
legation, consul general, consul, vice consul, or consular agent, or any officer in
nonresident of Hong Kong. In view of the absence of proof of the Hong Kong
the foreign service of the Philippines stationed in the foreign country in which
law on this particular issue, the presumption of identity or similarity or the
the record is kept, and authenticated by the seal of his office. The attestation
so-called processual presumption shall come into play. It will thus be presumed
must state, in substance, that the copy is a correct copy of the original, or a that the Hong Kong law on the matter is similar to the Philippine law.[17]
specific part thereof, as the case may be, and must be under the official seal of
the attesting officer. As stated in Valmonte vs. Court of Appeals,[18] it will be helpful to
determine first whether the action is in personam, in rem, or quasi in
Nevertheless, the testimony of an expert witness may be allowed to prove rem because the rules on service of summons under Rule 14 of the Rules of
a foreign law. An authority[12] on private international law thus noted:
Court of the Philippines apply according to the nature of the action.
Although it is desirable that foreign law be proved in accordance with An action in personam is an action against a person on the basis of his
the above rule, however, the Supreme Court held in the case personal liability. An action in rem is an action against the thing itself instead of
of Willamette Iron and Steel Works v. Muzzal, [13] that Section 41, against the person.[19] An action quasi in rem is one wherein an individual is
Rule 123 (Section 25, Rule 132 of the Revised Rules of Court) does
named as defendant and the purpose of the proceeding is to subject his principal debtor. Before we can apply the foregoing rules, we must determine
interest therein to the obligation or lien burdening the property.[20] first whether HERAS was a resident of Hong Kong.

In an action in personam, jurisdiction over the person of the defendant is Fortunata de la Vega, HERASs personal secretary in Hong Kong since
necessary for the court to validly try and decide the case. Jurisdiction over the 1972 until 1985,[29] testified that HERAS was the President and part owner of a
person of a resident defendant who does not voluntarily appear in court can be shipping company in Hong Kong during all those times that she served as his
acquired by personal service of summons as provided under Section 7, Rule 14 secretary. He had in his employ a staff of twelve.[30] He had business
of the Rules of Court. If he cannot be personally served with summons within a commitments, undertakings, conferences, and appointments until October
reasonable time, substituted service may be made in accordance with Section 1984 when [he] left Hong Kong for good.[31] HERASs other witness, Russel
8 of said Rule. If he is temporarily out of the country, any of the following modes Warren Lousich, testified that he had acted as counsel for HERAS for a number
of service may be resorted to: (1) substituted service set forth in Section 8; [21] (2) of commercial matters.[32] ASIAVEST then infers that HERAS was a resident of
personal service outside the country, with leave of court; (3) service by Hong Kong because he maintained a business there.
publication, also with leave of court;[22] or (4) any other manner the court may
deem sufficient.[23] It must be noted that in his Motion to Dismiss,[33] as well as in his
Answer[34] to ASIAVESTs complaint for the enforcement of the Hong Kong
However, in an action in personam wherein the defendant is court judgment, HERAS maintained that the Hong Kong court did not have
a non-resident who does not voluntarily submit himself to the authority of the jurisdiction over him because the fundamental rule is that jurisdiction in
court, personal service of summons within the state is essential to the personam over non-residentdefendants, so as to sustain a money judgment,
acquisition of jurisdiction over her person.[24] This method of service is possible must be based upon personal service of summons within the state which
if such defendant is physically present in the country. If he is not found therein, renders the judgment.[35]
the court cannot acquire jurisdiction over his person and therefore cannot
validly try and decide the case against him.[25] An exception was laid down For its part, ASIAVEST, in its Opposition to the Motion to
in Gemperle v. Schenker[26] wherein a non-resident was served with summons Dismiss[36] contended: The question of Hong Kong courts want of jurisdiction is
through his wife, who was a resident of the Philippines and who was his therefore a triable issue if it is to be pleaded by the defendant to repel the
representative and attorney-in-fact in a prior civil case filed by him; moreover, foreign judgment. Facts showing jurisdictional lack (e.g. that the Hong Kong
the second case was a mere offshoot of the first case. suit was in personam, that defendant was not a resident of Hong Kong when
the suit was filed or that he did not voluntarily submit to the Hong Kong courts
On the other hand, in a proceeding in rem or quasi in rem, jurisdiction over jurisdiction) should be alleged and proved by the defendant.[37]
the person of the defendant is not a prerequisite to confer jurisdiction on the
court provided that the court acquires jurisdiction over the res. Nonetheless, In his Reply (to the Opposition to Motion to Dismiss), [38] HERAS argued
summons must be served upon the defendant not for the purpose of vesting the that the lack of jurisdiction over his person was corroborated by ASIAVESTs
court with jurisdiction but merely for satisfying the due process allegation in the complaint that he has his residence at No. 6, 1 st St., New
requirements.[27] Thus, where the defendant is a non-resident who is not found Manila, Quezon City, Philippines. He then concluded that such judicial
in the Philippines and (1) the action affects the personal status of the plaintiff; (2) admission amounted to evidence that he was and is not a resident of Hong
the action relates to, or the subject matter of which is property in the Philippines Kong.
in which the defendant has or claims a lien or interest; (3) the action seeks the
exclusion of the defendant from any interest in the property located in the Significantly, in the pre-trial conference, the parties came up with
Philippines; or (4) the property of the defendant has been attached in the stipulations of facts, among which was that the residence of defendant, Antonio
Heras, is New Manila, Quezon City.[39]
Philippines -- service of summons may be effected by (a) personal service out
of the country, with leave of court; (b) publication, also with leave of court; or (c) We note that the residence of HERAS insofar as the action for the
any other manner the court may deem sufficient.[28] enforcement of the Hong Kong court judgment is concerned, was never in
In the case at bar, the action filed in Hong Kong against HERAS was in issue. He never challenged the service of summons on him through a security
personam, since it was based on his personal guarantee of the obligation of the guard in his Quezon City residence and through a lawyer in his office in that
city. In his Motion to Dismiss, he did not question the jurisdiction of the
Philippine court over his person on the ground of invalid service of
summons. What was in issue was his residence as far as the Hong Kong suit IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered
was concerned. We therefore conclude that the stipulated fact that HERAS is a DENYING the petition in this case and AFFIRMING the assailed judgment of
resident of New Manila, Quezon City, Philippines refers to his residence at the the Court of Appeals in CA-G.R. CV No. 29513.
time jurisdiction over his person was being sought by the Hong Kong
court. With that stipulation of fact, ASIAVEST cannot now claim that HERAS No costs.
was a resident of Hong Kong at the time.
SO ORDERED.
Accordingly, since HERAS was not a resident of Hong Kong and the
Bellosillo, Vitug, and Panganiban, JJ., concur.
action against him was, indisputably, one in personam, summons should have
been personally served on him in Hong Kong. The extraterritorial service in the Quisumbing, J., no part., former partner of a counsel.
Philippines was therefore invalid and did not confer on the Hong Kong court
jurisdiction over his person. It follows that the Hong Kong court judgment
cannot be given force and effect here in the Philippines for having been
rendered without jurisdiction.
[1]
Annex B of Petition; Rollo, 66-74. Per Judge (now Associate Justice of the
Even assuming that HERAS was formerly a resident of Hong Kong, he
was no longer so in November 1984 when the extraterritorial service of Court of Appeals) Delilah Vidallon Magtolis.
summons was attempted to be made on him. As declared by his secretary, [2]
which statement was not disputed by ASIAVEST, HERAS left Hong Kong in Original Record (OR), 326.2 of
October 1984 for good.[40]His absence in Hong Kong must have been the [3]
Annex A of Petition; Rollo, 49-65. Per Mabutas, R., Jr., J., with the
reason why summons was not served on him therein; thus, ASIAVEST was
concurrence of Imperial, J., and Alio-Hormachuelos, P., JJ.
constrained to apply for leave to effect service in the Philippines, and upon
obtaining a favorable action on the matter, it commissioned the Sycip Salazar [4] This
section (now Section 6, Rule 14 of the 1997 Rules of Civil Procedure)
Hernandez & Gatmaitan law firm to serve the summons here in the Philippines. provided:
In Brown v. Brown,[41] the defendant was previously a resident of the SEC. 7. Personal Service of Summons. - The summons shall be served by
Philippines. Several days after a criminal action for concubinage was filed handing a copy thereof to the defendant in person, or, if he refuses to receive it,
against him, he abandoned the Philippines. Later, a proceeding quasi in by tendering it to him.
rem was instituted against him. Summons in the latter case was served on the
defendants attorney-in-fact at the latters address. The Court held that under the [5]This Section is now Section 48 of Rule 39 of the 1997 Rules of Civil
facts of the case, it could not be said that the defendant was still a resident of Procedure with the following amendments: (1) inclusion of final orders of a
the Philippines because he ha[d] escaped to his country and [was] therefore an tribunal of a foreign country; and (2) clarification that the grounds to repel a
absentee in the Philippines. As such, he should have been summoned in the foreign judgment or final order are applicable to both judgment or final order
same manner as one who does not reside and is not found in the Philippines. upon a title to a specific thing and one against a person.

Similarly, HERAS, who was also an absentee, should have been served [6]
Northwest Orient Airlines, Inc. v. Court of Appeals, 241 SCRA 192, 199
with summons in the same manner as a non-resident not found in Hong [1995].
Kong. Section 17, Rule 14 of the Rules of Court providing for extraterritorial
[7] Ibid.
service will not apply because the suit against him was in personam. Neither
can we apply Section 18, which allows extraterritorial service on a resident [8]
defendant who is temporarily absent from the country, because even if HERAS Exhibit 2, OR, Civil Case No. Q-52452, 197-200.
be considered as a resident of Hong Kong, the undisputed fact remains that he [9] TSN, 14 February 1990, 5.
left Hong Kong not only temporarily but for good.
[10] Id., 11-12.
[11] Id., 13-15. 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
[12] JOVITO R. SALONGA, PRIVATE INTERNATIONAL LAW 101-102 [1995]. sent by registered mail to the last known address of the defendant, or in any
[13]
other manner the court may deem sufficient. Any order granting such leave
61 Phil. 471 [1935].
shall specify a reasonable time, which shall not be less than sixty (60) days
[14] 1 SCRA 93 [1961]. after notice, within which the defendant must answer.
[24] Boudart v. Tait, 67 Phil. 170, 174-175 1 [1939].
[15]
Citing Pardo v. Republic, 85 Phil. 323 [1950]; Delgado v. Republic, G.R. No.
L-2546, January 28, 1950. [25] 1 MORAN 456.
[16]
Citing Yap v. Solicitor General, 81 Phil. 468; Yee Bo Mann v. Republic, 83 [26] 19 SCRA 45 [1967].
Phil. 749; Go v. Anti-Chinese League, 47 O.G. 716; Leelin v. Republic, 47 O.G.
694. [27] Valmonte v. Court of Appeals, supra note 18 at 100-101.
[17] Northwest Orient Airlines, Inc. v. Court of Appeals, supra note 6, at 200. [28] Section 17, Rule 14 of the Rules of Court.
[18] 252 SCRA 92, 99 [1996]. [29] TSN, 5 July 1989, 7, 13-14, 23.
[19] Dial Corp. v. Soriano, 161 SCRA 737 [1988]. [30] Id., 13-14, 20-23.
[20] Brown v. Brown, 3 SCRA 451, 456 [1961]. [31] Exhibit, 1, OR, 189.
[21]
Montalban v. Maximo, 22 SCRA 1070, 1078-1081 [1968]; Valmonte v. Court [32] TSN, 14 February 1990, 7.
of Appeals, supra note 18, at 100; 1 MANUEL V. MORAN, COMMENTS ON
THE RULES OF COURT 459 [1979] (hereafter 1 MORAN). [33] OR, 31-40.
[22]
Section 18 in relation to Section 17, Rule 14 of the Rules of Court; [34] Id., 101-110.
Montalban v. Maximo, supra note 21 at 1080-1081; Valmonte v. Court of
[35] Citing Boudart v. Tait, supra note 24.
Appeals, supra note 18, at 100; 1 MORAN 459.
[23] [36] OR, 47-53.
Section 18 in relation to Section 17, Rule 14 of the Rules of Court. These
provisions read: [37] Id., 52. Emphasis supplied.
SEC. 18. Residents temporarily out of the Philippines. - When an action is [38]
commenced against a defendant who ordinarily resides within the Philippines, OR, 61-69.
but who is temporarily out of it, service may, by leave of court, be effected out [39] OR, 127.
of the Philippines, as under the preceding section.
[40] Exhibit 1.
SEC. 17. Extraterritorial service. - When the defendant does not reside and is
not found in the Philippines and the action affects the personal status of the [41] Supra note 20.
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
10. Pantaleon v. Asuncion, May 22, 1959
of the Philippines by personal service as under section 7; or by publication in a
Republic of the Philippines Pitimine Street, San Francisco del Monte Quezon City, which is his residence,
SUPREME COURT he received notice of a registered letter at the Post Office in San Jose, Nueva
Manila Ecija, his old family residence; that he proceeded immediately to the latter
municipality to claim said letter, which he received on September 28, 1955; that
EN BANC the letter contained copy of said order of July 12, 1955, and of the judgment of
September 8, 1955, much to his surprise, for he had not been summoned or
G.R. No. L-13141 May 22, 1959
notified of the hearing of this case; that had copy of the summons and of the
VICENTA PANTALEON, plaintiff-appellee, order for its publication been sent to him by mail, as provided in Rule 7, section
vs. 21, of the Rules of Court said summons and order would have reached him, "as
HONORATO ASUNCION, defendant-appellant. the judgment herein had"; and that his failure to appear before the court is
excusable it being due to the mistake of the authorities concerned in not
Feliciano R. Bautista for appellee. complying with the provisions of said section. Upon denial of said petition for
Servando Cleto for appellant. relief, defendant perfected his present appeal, which is predicated upon the
theory that the aforementioned summons by publication had not been made in
CONCEPCION, J.: conformity with the Rules of Court.
This is an appeal, taken by defendant Honorato Asuncion from an order More specifically, defendant maintains that copy of the summons and of the
denying a petition for relief from an order declaring him in default and a order for the publication thereof were not deposited "in the post office, postage
judgment by default. prepaid, directed to the defendant by ordinary mail to his last known address",
in violation of Rule 7, section 21, of the Rules of Court, and that, had this
On June 12, 1953, plaintiff, Vicenta Pantaleon, instituted this action, in the provision been complied with, said summons and order of publication would
Court of First Instance of Nueva Ecija, to recover from said Asuncion, the sum have reached him, as had the decision appealed from. Said section 21 reads:
of P2,000.00, with interest thereon, in addition to attorney's fees. The summons
originally issued was returned by the sheriff of Nueva Ecija unserved, with the If the service has been made by publication, service may be proved by the
statement that, according to reliable information, Asuncion was residing in B-24 affidavit of the printer, his foreman or principal clerk, or of the editor, business
Tala Estate, Caloocan, Rizal. An alias summons was issued, therefore, for or advertising manager, to which affidavit a copy of the publication shall be
service in the place last mentioned. However, the provincial sheriff of Rizal attached, and by an affidavit showing the deposit of a copy of the summons
returned it unserved, with information that Asuncion had left the Tala Estate and order for publication in the post office, postage prepaid, directed to the
since February 18, 1952, and that diligent efforts to locate him proved to no defendant by ordinary mail to his last known address. (Emphasis supplied.).
avail. On plaintiff's motion, the court ordered, on March 9, 1955, that defendant
be summoned by publication, and the summons was published on March 21 Plaintiff alleges, however, that the provision applicable to the case at bar is not
and 28, and April 4, 1955, in the "Examiner", said to be a newspaper of general this section 21, but section 16, of Rule 7, of the Rules of Court, which provides:
circulation in Nueva Ecija. Having failed to appear or answer the complaint
within the period stated in the summons, defendant was, by an order dated July Whenever the defendant is designated as an unknown owner, or the like, or
12, 1955, declared in default. Subsequently, or on September 8, 1955, after a whenever the address of a defendant is unknown and cannot be ascertained by
hearing held in the absence of the defendant and without notice to him, the diligent inquiry, service may, by leave of court, be effect upon him by
court rendered judgment for the plaintiff and against said defendant, for the publication in such places and for such times as the court may order.
sum of P2,300.00, with interest thereon at the legal rate, from October 28, 1948, It is, moreover, urged by the plaintiff that the requirement, in said section 21, of
and costs. an affidavit showing that copy of the summons and of the order for its
About forty-six (46) days later, or on October 24, 1955, the defendant filed a publication had been sent by mail to defendant's last known address, refers to
petition for relief from said order of July 12, 1955, and from said judgment, the extraterritorial service of summons, provided for in section 17 of said Rule 7,
dated September 8, 1955, and upon the ground of mistake and excusable pursuant to which:
negligence. Annexed to said petition were defendant's affidavit and his verified
When the defendant does not reside and is not found in the Philippines and the
answer. In the affidavit, Asuncion stated that, on September 26, 1955, at 34 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 or a voluntary appearance in the case is essential to the acquisition of
lien or interest, actual or contingent, or in which the relief demanded consists, jurisdiction so as to constitute compliance with the constitutional requirement of
wholly or in part, in excluding the defendant from any interest therein, or the due process. . . .
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 Although a state legislature has more control over the form of service on its
under section 7; or by registered mail; or by publication in such places and for own residents than nonresidents, it has been held that in action in
such time as the court may order, in which case a copy of the summons and personam . . . service by publication on resident defendants, who are
order of the court shall be sent by ordinary mail to the last known address of the personally within the state and can be found therein is not "due process of law",
defendant; or in any other manner the court may deem sufficient. Any order and a statute allowing it is unconstitutional. (16A C.J.S., pp. 786, 789;
granting such leave shall specify a reasonable time, which shall not be less Emphasis ours.)
than sixty (60) days after notice, within which the defendant must answer.
Lastly, from the viewpoint of substantial justice and equity, we are of the
Said section 21, however, is unqualified. It prescribes the "proof of service by opinion that defendant's petition for relief should have been granted. To begin
publication", regardless of whether the defendant is a resident of the with, it was filed well within the periods provided in the Rules of Court. Secondly,
Philippines or not. Section 16 must be read in relation to section 21, which and, this is more important, defendant's verified answer, which was attached to
complements it. Then, too, we conceive of no reason, and plaintiff has said petition, contains allegations which, if true, constitute a good defense.
suggested none, why copy of the summons and of the order for its publication Thus, for instance, in paragraph (2) of the "special denials" therein, he alleged:
should be mailed to non-resident defendants, but not to resident defendants.
We can not even say that defendant herein, who, according to the return of the That it is not true that he failed to pay the said indebtedness of his said wife, as
alleged in paragraph 3 of the complaint, for as a matter of fact, plaintiff and
Sheriff of Nueva Ecija, was reportedly residing in Rizal — where he, in fact
defendant agreed upon a settlement of the said indebtedness of the latter's
(San Francisco del Monte and Quezon City used to be part of Rizal), was
deceased wife on December 5, 1948, whereby defendant was allowed to pay it
residing — could reasonably be expected to read the summons published in a
newspaper said to be a general circulation in Nueva Ecija. out of his monthly salary by instalment of P10.00 monthly beginning January,
1949, and in accordance therewith, defendant paid unto plaintiff the following
Considering that strict compliance with the terms of the statute is necessary to sums:
confer jurisdiction through service by publication (Bachrach Garage and Taxi
Co. vs. Hotchkiss and Co., 34 Phil., 506; Banco Español-Filipino vs.Palanca, Instalment for January-February, 1948
37 Phil., 921; Mills vs. Smiley, 9 Idaho 317, 325, 76 Pac. 785; March 1949— P30.00 paid personally
Charles vs. Marrow, 99 Mo. 638; Sunderland, Cases on Procedure, Annotated, April 2, 1949— 10.00 by money order 7488
Trial Practice, p. 51), the conclusion is inescapable that the lower court had no May 11, 1949— 10.00 by money order 7921
authority whatsoever to issue the order of July 12, 1955, declaring the June 10, 1949— 10.00 by money order 8230
defendant in default and to render the decision of September 8, 1955, and that July 11, 1949— 10.00 by money order 8595
both are null and void ad initio. August 10, 1949— 10.00 by money order 8943
September 1949— 10.00 paid personally
Apart from the foregoing, it is a well-settled principle of Constitutional Law that,
in an action strictly in personam, like the one at bar, personal service of October 1949— 10.00 paid personally
summons, within the forum, is essential to the acquisition of jurisdiction over November 14, 1949— 10.00 by money order 9776
the person of the defendant, who does not voluntarily submit himself to the December 13, 1949— 10.00 by money order 0076
January 10, 1950— 10.00 by money order 0445
authority of the court. In other words, summons by publication cannot —
February 9, 1950— 10.00 by money order 0731
consistently with the due process clause in the Bill of Rights — confer upon the
March 10, 1950— 10.00 by money order 1149
court jurisdiction over said defendant.
April 10, 1950— 10.00 by money order 1387
Due process of law requires personal service to support a personal judgment, May 11, 1950— 10.00 by money order 1990
and, when the proceeding is strictly in personam brought to determine the June 12, 1950— 10.00 by money order 1055
personal rights and obligations of the parties, personal service within the state July 11, 1950— 10.00 by money order 8850
August 11, 1950— 10.00 by money order 9293 Republic of the Philippines
September 6, 1950— 10.00 by money order 9618 SUPREME COURT
October 10, 1950— 10.00 by money order 0008 Manila
November 8, 1950— 10.00 by money order 0369
December 1950— 10.00 paid personally FIRST DIVISION
January 2, 1951— 10.00 paid personally
G.R. No. 82811 October 18, 1988
February 10, 1951— 10.00 paid personally
March 12, 1951— 10.00 paid personally CONSOLIDATED PLYWOOD INDUSTRIES, INC., petitioner,
April 1951— 10.00 paid personally vs.
May 1951— 10.00 paid personally HON. AUGUSTO B. BREVA and MINDANAO HEMP EXPORT
June 1951— 10.00 paid personally CORPORATION, respondents.
July 1951— 10.00 paid personally
August 1951— 10.00 paid personally
September 1951— 10.00 paid personally
November 1951— 10.00 paid personally NARVASA, J.:
December 1951— 10.00 paid personally
September 1952— 30.00 paid personally Not infrequently, appeals are resolved on grounds not precisely assigned as
December 1952— 20.00 paid personally error which upon review are however seen to be more decisive than those
January 1953— 10.00 paid personally actually raise and argued. This appeal is one such instance. The dismissal of
February 1953— 10.00 paid personally the petitioner's action, decreed in the appealed Decision of the Trial Court,
March 1953— 10.00 paid personally must be upheld, not for the reason therein stated, but on quite a different
April 1953— 10.00 paid personally ground.
May 1953— 10.00
The case involves the claim of one of two co-owners for reimbursement from
Total paid — P460.00
the other of expenses incurred for the repair and preservation of the common
The specification of the dates of payment, of the amounts paid each time, of the property. Based oh the petitioner's pleadings and the intendment of its proofs,
manner in which each payment was made, and of the number of the money as well as the findings of the appealed Decision, the factual background is
orders in which eighteen (18) payments had been effected, constitutes a strong hereunder set forth.
indication of the probable veracity of said allegation, fully justifying the grant of
The property in question consists of a parcel of land measuring 5,263 square
an opportunity to prove the same.
meters, with a warehouse and office building standing thereon, covered by
Wherefore, said order of July 12, 1955, and the aforementioned decision of Transfer Certificate of Title No. 11679 of the Registry of Deeds of Davao City.
September 8, 1955, are hereby set aside and annulled, and let the record of One of the registered co-owners is the petitioner, Consolidated Plywood
this case be remanded to the lower court for further proceedings with costs Industries, Inc. (hereafter simply referred to as CPII); it had purchased an
against plaintiff-appellee. It is so ordered. undivided one-half (1/2) portion of the property from the Consolidated Bank &
Trust Company which, in turn, had acquired that share at a foreclosure sale.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, The other registered co-owner is the Mindanao Hemp Export Corporation
Labrador and Endencia, JJ., concur. (hereafter MHEC).

After having acquired its undivided half share, CPII occupied the property,
using the warehouse to store its products and the nearby building to quarter its
11. Consolidated Plywood v. Breva, Oct. 18, 1988 personnel. It also employed guards to secure the premises. 1 In July 1984, it
made repairs and improvements on the property, as follows: replacement of the
dilapidated G.I. sheet roofing; construction of a new perimeter defense; putting
of earth filling on the driveway to keep out flood waters and installation of a Quite evidently, it was the Trial Court's view, 11 based on Article 500 of the Civil
steel gate. Code (to the effect that upon partition of common property the co-owners are
bound to render mutual accounting for "benefits received and reimbursements
For the repairs, improvements and guard fees CPII allegedly spent for expenses made") that a co-owner cannot put the property to his sole use
P239,837.21, one-half of which, with interests, it sought to recover from MHEC. and benefit gratiswithout the express agreement of the other co-owners.
When extra-judicial demands produced no results, it filed suit for collection
against MHEC in the Regional Trial Court of Davao City. 2 CPII has applied directly to this Court for a reversal of said judgment, arguing in
the main that a co-owner has the right to use the whole of the property owned
Summons was issued to MHEC whose address was stated in the complaint to in common without obligation for rentals and, hand-in- hand with such right of
be at 413 Jaboneros St., Binondo, Manila. It went unserved for the reason, use, the right to reimbursement from the other co-owners of their proportionate
stated in the return of the Sheriff of Manila, that "... Mindanao Hemp Export share in necessary expenses incurred by him for the preservation of the
Corp. is no longer doing business at said address (and) (n)obody around the property. Petitioner argues further that it is entitled to attorney's fees and
place knows the present whereabouts of said defendant. 3 The Trial Court expenses of litigation, having been compelled to sue because of MHEC's
sought to ascertain the defendant's whereabouts from the Securities and failure to fulfill reportorial requirements of the Securities and Exchange
Exchange Commission, but that office simply furnished the same address: 413 Commission had rendered extrajudicial collection well-nigh impossible.
Jaboneros St., Binondo, Manila as the latest address of that corporation in its
records. 4 Service at that address having already been attempted and failed, That MHEC may no longer be found at 413 Jaboneros St., Binondo, Manila, is
CPII moved for, and the Trial Court ordered on April 28,1987, service of made more apparent by the fact that the copy of this Court's resolution of May 2,
summons by publication. 5Publication was effected in the newspaper, 1988 requiring its comment on CPII's petition, which was sent by registered
Philippine Daily Inquirer, on May 18 and 15,1987 and June 1, 1987. 6Copy of mail to said address, was returned unclaimed after three notices. 12 While from
the alias summons was also sent by registered mail addressed to MHEC at 413 the foregoing it may appear that resolution of the appeal is a simple and
Jaboneros Street, Binondo, Manila. 7 No answer being filed within the sixty-day straightforward matter of applying law and precedent to the facts established by
period after last publication prescribed in the alias summons, MHEC was the evidence, such a result is precluded by the circumstance that due to a
declared in defaults 8 and CPII thereafter presented its evidence ex parte. The failure to effect proper service of summons on MHEC, the Trial Court never
Trial Court also conducted an ocular inspection and found that CPII was using acquired jurisdiction over the person of said defendant and therefore could not
the entire warehouse as well as the office building standing on the property. 9 lawfully render valid judgment thereon.

On March 29, 1988, the Trial Court rendered judgment which, while finding that Petitioner's suit is for the collection of a sum of money- personal action, as
CPII had in fact incurred expenses in the amount of P161,951.70 (instead of distinguished from a real action, i.e., one "... affecting title to, or for recovery of
the claimed P239,837.21), denied said plaintiff reimbursement of one-half of possession of, or for partition or condemnation of, or foreclosure of mortgage
that amount and instead dismissed the complaint "for lack of merit," ruling that: on, real property. 13 It is, too, an action strictly in personam, as to which, in a
line of cases starting with Pantaleon vs. Asuncion, 14 this Court laid down and
... It is very apparent that the plaintiff made the necessary repairs on the consistently hewed to the rule that ... personal service of summons within the
warehouse and fence and put the earth fills on the land so that it could use the forum, is essential to the acquisition of jurisdiction over the person of the
property, and in fact it has been using the property after said repairs and earth defendant, who does not voluntarily submit himself to the authority of the court.
filling in July 1984 xxx without paying any rentals to the defendant for the use of In other words, summons by publication cannot consistently with the due
its 50% undivided portion thereof In the conservative estimate of the Court d process clause in the Bill of Rights confer upon the Court jurisdiction over said
property can easily fetch a monthly rental of P20,000.00 and, if sold, can realize defendant," and that "... (t)he proper recourse for a creditor in the same
several millions of pesos. 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
Considering that the plaintiff is the one using the entire property exclusively
Rule 57, section 1(f) in which case, the attachment converts the action into a
without any rentals, the Court believes that it has no right to compel the proceeding in rem or quasi in rem and the summons by publication may then
defendant to reimburse it for half of the cost of said necessary repairs on the accordingly be deemed valid and effective." 15
warehouse and fence and earth filling on the land. 10
Accordingly, and service of summons by publication here not having been 13 Rule 4, sec. 2(a), Rules of Court.
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 14 105 Phil. 765.
petitioner's action must be, as it is hereby, DISMISSED.
15 Citizens Surety and Ins. Co., Inc. vs. Melencio-Herrera, 38 SCRA 369; see
In view of the peculiar circumstances of this case, it is hereby directed that in also Magdalena Estate vs. Nieto 125 SCRA 758.
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.

Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Footnotes

1 Complaint, Original Record, pp. 1-4; Appealed Decision; Rollo, pp. 18-19.

2 Docketed as Civil Case No. 18279.

3 Original Record, p. 14.

4 Id., p. 16.

5 Order dated April 28,1987; Original Record, p. 54.

6 Exhibit D; Original Record, p. 54.

7 Id., p. 55.

8 Order dated October 2,1987; Original Record, p. 66.

9 Appealed Decision; Rollo, pp. 21-22.

10 Rollo, p. 23.

11 Later affirmed in said Court's Comment on the Petition for Review; Rollo, pp.
146,147.

12 Rollo, p. 157-158.