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Jose vs. Boyon

*
G.R. No. 147369. October 23, 2003.

Spouses PATRICK JOSE and RAFAELA JOSE,

petitioners, vs. Spouses HELEN BOYON and ROMEO
BOYON, respondents.

Remedial Law; Actions; Summons; Jurisdictions; Generally,

trial courts acquire jurisdiction over the person of the defendant by
the service of summons.—In general, trial courts acquire
jurisdiction over the person of the defendant by the service of
summons. Where the action is in personam and the defendant is
in the Philippines, such service may be done by personal or
substituted service, following the procedures laid out in Sections 6
and 7 of Rule 14 of the Revised Rules of Court.
Same; Same; Same; Same; Substituted Service; Personal
service of summons is preferred to substituted service; Only if the
former cannot be made promptly can the process server resort to
the latter; Circumstances which must be indicated in the proof of
summons; Failure to comply faithfully, strictly and fully with all
the foregoing requirements of substituted service renders the
service of summons ineffective.—As can be gleaned from the
above-quoted Sections, personal service of summons is preferred
to substituted service. Only if the former cannot be made
promptly can the process server resort to the latter. Moreover, the
proof of service of summons must (a) indicate the impossibility of
service of summons within a reasonable time; (b) specify the
efforts exerted to locate the defendant; and (c) state that the
summons was served upon a person of sufficient age and
discretion who is residing in the address, or who is in charge of
the office or regular place of business, of the defendant. It is
likewise required that the pertinent facts proving these
circumstances be stated in the proof of service or in the officer’s
return. The failure to comply faithfully, strictly and fully with all
the foregoing requirements of substituted service renders the
service of summons ineffective.
Same; Same; Same; Same; Same; A general statement that
such efforts were made will not suffice for purposes of complying

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with the rules of substituted service of summons.—The Return of

Summons shows that no effort was actually exerted and no
positive step taken by either the process server or petitioners to
locate and serve the summons personally on respondents. At best,
the Return merely states the alleged whereabouts of respondents
without indicating that such information was verified from a
person who had knowledge thereof. Certainly, without specifying
the details of the attendant circumstances or of the efforts exerted
to serve the summons, a general statement that such efforts were
made will not suffice

_______________

* THIRD DIVISION.

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Jose vs. Boyon

for purposes of complying with the rules of substituted service of

summons.
Same; Same; Same; Same; Extraterritorial Service;
Extraterritorial service of summons or summons by publication
applies only when the action is in rem or quasi in rem.—It must be
noted that extraterritorial service of summons or summons by
publication applies only when the action is in rem or quasi in rem.
The first is an action against the thing itself instead of against the
defendant’s person; in the latter, an individual is named as
defendant, and the purpose is to subject that individual’s interest
in a piece of property to the obligation or loan burdening it.
Same; Same; Same; Same; Same; An action for specific
performance is an action in personam.—In the instant case, what
was filed before the trial court was an action for specific
performance directed against respondents. While the suit
incidentally involved a piece of land, the ownership or possession
thereof was not put in issue, since they did not assert any interest
or right over it. Moreover, this Court has consistently declared
that an action for specific performance is an action in personam.

PETITION for review on certiorari of a decision of the

Court of Appeals.

The facts are stated in the opinion of the Court.

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     Lucia V. Oliveros for petitioners.

     Arnold H. Labay for respondents.

PANGANIBAN, J.:

In general, substituted service can be availed of only after a

clear showing that personal service of summons was not
legally possible. Also, service by publication is applicable in
actions in rem and quasi in rem, but not in personal suits
such as the present one which is for specific performance.

The Case
1
Before the Court is a Petition for Review on Certiorari
under Rule 45 of the Rules of Court, assailing the February
26, 2001

_______________

1 Rollo, pp. 10-30.

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218 SUPREME COURT REPORTS ANNOTATED

Jose vs. Boyon

2
Decision of the Court of Appeals (CA) in CA-G.R. SP No.
60888. The dispositive portion of the CA Decision is worded
as follows:

“WHEREFORE, on the basis of what prescinds, the assailed

resolution and orders issued by the public respondent are perforce
ANNULLED and SET ASIDE. This pronouncement is
nonetheless rendered without prejudice to the refiling3 of the same
case by the private respondents with the court a quo.”

The Facts

The factual antecedents of the case are narrated by the CA

in this wise:

“On July 2, 1998, [petitioners] Patrick and Rafaela Jose lodged a

complaint for specific performance against [respondents] Helen
and Romeo Boyon to compel them to facilitate the transfer of
ownership of a parcel of land subject of a controverted sale. The
action was lodged before the Regional Trial Court of Muntinlupa
which is presided by herein public respondent Judge N.C. Perello.

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On July 21, 1998, respondent judge, through the acting Branch

Clerk of Court of Branch 276 of the RTC of Muntinlupa City,
issued summons to the [respondents]. As per return of the
summons, substituted service was resorted to by the process
server allegedly because efforts to serve the summons personally
to the [respondents] failed. On December 9, 1998, [petitioners]
filed before the trial court an Ex-parte Motion for Leave of Court
to Effect Summons by Publication. On December 28, 1998, public
respondent issued an Order granting the Ex-parte Motion for
Leave of Court to Effect Summons by Publication. On July 30,
1999, the respondent judge, sans a written motion, issued an
Order declaring herein [respondents] in default for failure to file
their respective answers. As a consequence of the declaration of
default, [petitioners] were allowed to submit their evidence ex-
parte. Ultimately, on December 7, 1999, respondent judge issued
the assailed resolution, the dispositive portion of which reads as
follows:

‘x x x Therefore, Spouses Helen and Romeo Boyon are directed to execute

the necessary document with the effect of withdrawing the Affidavit of
Loss they filed and annotated with the Register of Deeds of Makati City
so that title ‘to the parcel of land subject of the Deed of Absolute Sale in
favor of the Plaintiffs be transferred in

_______________

2 Id., pp. 33-40. Penned by Justice Bienvenido L. Reyes, with the concurrence of
Justices Marina L. Buzon (acting Division chair) and Eriberto U. Rosario, Jr.
3 CA Decision, p. 7; Rollo, p. 39.

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Jose vs. Boyon

their names. Thereafter the Register of Deeds of Makati City

orMuntinlupa City may cancel Transfer of Certificate of Title No.149635
of the Defendants and issue another to Plaintiff under thedeed of sale,
clean and free of any reported encumbrance.
‘Defendants are also directed to pay Plaintiffs actual expenses in the
amount of P20,000 and attorney’s fees of P20,000 including costs of this
suit.’
x x x     x x x     x x x

“On January 5, 2000, [respondent] Helen Boyon, who was then

residing in the United States of America, was surprised to learn
from her sister Elizabeth Boyon, of the resolution issued by the
respondent court. On January 18, 2000, [respondents] filed an Ad
Cautelam motion questioning, among others, the validity of the

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service of summons effected by the court a quo. On March 17,

2000, the public respondent issued an Order denying the said
motion on the basis of the defaulted [respondents’] supposed loss
of standing in court. On March 29, 2000, the [respondents] once
again raised the issue of jurisdiction of the trial court via a motion
for reconsideration. On June 22, 2000, however, an Order was
issued by the public respondent denying the said motion. The
[petitioners] moved for the execution of the controverted
4
judgment
which the respondent judge ultimately granted.”

Thereafter, respondents filed before the CA a Petition for

certiorari under Rule 65 of the Revised Rules of Civil
Procedure, questioning the jurisdiction of the regional trial
court (RTC).

Ruling of the Court of Appeals

The CA held that the trial court had no authority to issue

the questioned Resolution and Orders. According to the
appellate court, the RTC never acquired jurisdiction over
respondents because of the invalid service of summons
upon them. First, the sheriff failed to comply with the
requirements of substituted service of summons, because
he did not specify in the Return of Summons the prior
efforts he had made to locate them and the impossibility of
promptly serving the summons upon them by personal
service. Second, the subsequent summons by publication
was equally infirm, because the Complaint was a suit for
specific performance and therefore an action in personam.
Consequently, the

_______________

4 Id., pp. 2-3 & 34-35.

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Jose vs. Boyon

Resolution and the Orders were null and void, since the
RTC had never acquired 5
jurisdiction over respondents.
Hence, this Petition.

Issues

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In their Memorandum, petitioners raise the following

issues for our consideration:

“A. The Honorable Court of Appeals erred in not

holding that the assailed Resolution dated
December 7, 1999 was already final and executory
“B. The Honorable Court of Appeals erred in giving due
course to the Petition for Certiorari of private
respondents despite the pendency of an appeal
earlier filed
“C. The Honorable Court erred in not holding that the
Petition for Certiorari was time barred
“D. The Honorable Court of Appeals erred in holding
that the proceedings in the lower court are null and
void due to invalid and defective service of
summons and the court did not acquire6
jurisdiction
over the person of the respondents.”

In sum, the main issue revolves around the validity of the

service of summons on respondents.

The Court’s Ruling

The Petition has no merit.

Main Issue:
Validity of the Service of Summons

Petitioners aver that the CA erred in ruling that the

service of summons on respondents was invalid. They
submit that although the case filed before the trial court
was denominated as an action

_______________

5 The case was deemed submitted for decision on February 15, 2002,
upon receipt by this Court of petitioners’ Memorandum signed by Atty.
Lucia V. Oliveros. Respondents’ Memorandum, signed by Atty. Arnold H.
Labay, was received by this Court on February 1, 2002.
6 Petitioners’ Memorandum, p. 10; Rollo, p. 156. Original in upper case.

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for specific performance, it was actually an action quasi in

rem, because it involved a piece of real property located in
the Philippines. They further argue that in actions quasi in
rem involving ownership of a parcel of land, it is sufficient
that the trial court acquire jurisdiction over the res. Thus,
the summons by publication, which they effected
subsequent to the substituted service of summons, was
allegedly sufficient.
On the other hand, respondents maintain that the
proceedings in the trial court were null and void because of
the invalid and defective service of summons. According to
them, the Return of Summons issued by the process server
of the RTC failed to state that he had exerted earnest
efforts to effect the service of summons. He allegedly tried
to serve it personally on them on July 22, 1998 at No. 32
Ariza Drive, Camella Homes, Alabang. He, however,
resorted to substituted service on that same day,
supposedly because he could not find respondents in the
above address. They further allege that the person to whom
he gave the summons was not even a resident of that
address.
Respondents contend that when summons is served by
substituted service, the return must show that it was
impossible to serve the summons personally, and that
efforts had been exerted toward that end. They add that
noncompliance with the rule on substituted service renders
invalid all proceedings relative thereto.
As to the summons by publication subsequently effected
by petitioners, respondents argue that the case filed before
the trial court was an action for specific performance and,
therefore, an action in personam. As such, the summons by
publication was insufficient to enable the trial court to
acquire jurisdiction over the persons of respondents.
Respondents conclude that even granting that the
service of summons by publication was permissible under
the circumstances, it would still be defective and invalid
because of the failure of petitioners to observe the
requirements of law, like an Affidavit attesting that the
latter deposited in the post office a copy of the summons
and of the order of publication, paid the postage, and sent
the documents by registered mail to the former’s last
known address.
We agree with respondents. In general, trial courts
acquire jurisdiction over the person of the defendant by the
service of summons. Where the action is in personam and
the defendant is in the
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Jose vs. Boyon

Philippines, such service may be done by personal or

substituted service, following the procedures laid out in
Sections 6 and 7 of Rule 14 of the Revised Rules of Court,
which read:

“Section 6. Service in person on defendant.—Whenever

practicable, the summons shall be served by handing a copy
thereof to the defendant in person, or, if he refuses to receive and
sign for it, by tendering it to him.
“Section 7. Substituted service.—If, for justifiable causes, the
defendant cannot be served within a reasonable time as provided
in the preceding section, service may be effected (a) by leaving
copies of the summons at the defendant’s residence with some
person of suitable age and discretion then residing therein, or (b)
by leaving the copies at defendant’s office or regular place of
business with some competent person in charge thereof.”

As can be gleaned from the above-quoted Sections, personal

service of summons is preferred to substituted service.
Only if the former cannot be made promptly can the
process server resort to the latter. Moreover, the proof of
service of summons must (a) indicate the impossibility of
service of summons within a reasonable time; (b) specify
the efforts exerted to locate the defendant; and (c) state
that the summons was served upon a person of sufficient
age and discretion who is residing in the address, or who is
in charge of
7
the office or regular place of business, of the
defendant. It is likewise required that the pertinent facts
proving these circumstances be stated in the proof of
service or in the officer’s return. The failure to comply
faithfully, strictly and fully with all the foregoing
requirements of substituted
8
service renders the service of
summons ineffective.

Defective Personal
Service of Summons
In the instant case, it appears that the process server
hastily and capriciously resorted to substituted service of
summons without actually exerting any genuine effort to
locate respondents. A

_______________

7 Oaminal v. Castillo, G.R. No. 152776, October 8, 2003, 413 SCRA 189;
Umandap v. Sabio, Jr., 339 SCRA 243, August 29, 2000; Laus v. Court of

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Appeals, 219 SCRA 688, March 8, 1993.

8 Miranda v. Court of Appeals, 326 SCRA 278, February 23, 2000.

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Jose vs. Boyon

9
review of the records reveals that the only effort he exerted
was to go to No. 32 Ariza Drive, Camella Homes, Alabang
on July 22, 1998, to try to serve the summons personally on
respondents. While the Return of Summons states that
efforts to do so were ineffectual and unavailing because
Helen Boyon was in the United States and Romeo Boyon
was in Bicol, it did not mention exactly what efforts—if any
—were undertaken to find respondents. Furthermore, it
did not specify where or from whom the process server
obtained the information on their whereabouts. The
pertinent portion of the Return of Summons is reproduced
as follows:

“That efforts to serve the said Summons personally upon

defendants Sps. Helen and Romeo Boyon were made but the same
were ineffectual and unavailing for the reason that defendant
Helen Boyon is somewhere in the United States of America and
defendant Romeo Boyon is in Bicol thus substituted service was
made in accordance
10
with Section 7, Rule 14, of the Revised Rules
of Court.”

The Return of Summons shows that no effort was actually

exerted and no positive step taken by either the process
server or petitioners to locate and serve the summons
personally on respondents. At best, the Return merely
states the alleged whereabouts of respondents without
indicating that such information was verified from a person
who had knowledge thereof. Certainly, without specifying
the details of the attendant circumstances or of the efforts
exerted to serve the summons, a general statement that
such efforts were made will not suffice for purposes of
complying with the rules of substituted service of
summons.
The necessity of stating in the process server’s Return or
Proof of Service the material facts and circumstances
sustaining the validity of substituted
11
service was explained
by this Court in Hamilton v. Levy, from which we quote:

“x x x The pertinent facts and circumstances attendant to the

service of summons must be stated in the proof of service or
Officer’s Return; otherwise, any substituted service made in lieu
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of personal service cannot be upheld. This is necessary because

substituted service is in derogation of the usual method of service.
It is a method extraordinary in character and

_______________

9 CA Rollo, p. 62.
10 Ibid.
11 344 SCRA 821, November 15, 2000.

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Jose vs. Boyon

hence may be used only as prescribed and in the circumstances

authorized by statute. Here, no such explanation was made.
Failure to faithfully, strictly, and fully comply with the
requirements 12
of substituted service renders said service
ineffective.”

Moreover, the requirements of substituted service of

summons and the effect of noncompliance with the
subsequent proceedings therefor
13
were discussed in
Madrigal v. Court of Appeals as follows:

“In a long line of cases, this Court held that the impossibility of
personal service justifying availment of substituted service should
be explained in the proof of service; why efforts exerted towards
personal service failed. The pertinent facts and circumstances
attendant to the service of summons must be stated in the proof of
service or Officer’s Return; otherwise, the substituted service
cannot be upheld. It bears stressing that since service of
summons, especially for actions in personam, is essential for the
acquisition of jurisdiction over the person of the defendant, the
resort to a substituted service must be duly justified. Failure to do
so would 14invalidate all subsequent proceedings on jurisdictional
grounds.”

Summons by
Publication Improper
It must be noted that extraterritorial service of summons
or summons by publication applies only when the action is
in rem or quasi in rem. The first is an action against the
thing itself instead of against the defendant’s person; in the
latter, an individual is named as defendant, and the
purpose is to subject that individual’s interest15in a piece of
property to the obligation or loan burdening it.
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In the instant case, what was filed before the trial court
was an action for specific performance directed against
respondents. While the suit incidentally involved a piece of
land, the ownership or possession thereof was not put in
issue, since they did not assert any interest or right over it.
Moreover, this Court has consistently

_______________

12 Id., p. 829, per Ynares-Santiago, J.

13 319 SCRA 331, November 26, 1999.
14 Id., p. 336, per Purisima, J.
15 Banco do Brasil v. Court of Appeals, 333 SCRA 545, June 16, 2000.

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Jose vs. Boyon

declared that16an action for specific performance is an action

in personam.
Having failed to serve the summons on respondents
properly, the RTC did not validly acquire jurisdiction over
their persons. Consequently, due process demands that all
the proceedings conducted
17
subsequent thereto should be
deemed null and void.
WHEREFORE, the Petition is DENIED and the assailed
Decision and Resolution AFFIRMED. Costs against
petitioners.
SO ORDERED.

     Puno (Chairman), Sandoval-Gutierrez, Corona and

Carpio-Morales, JJ., concur.

Petition denied, judgment and resolution affirmed.

Note.—Compliance with the rules regarding the service

of summons is as much an issue of due process as of
jurisdiction. (Ang Ping vs. Court of Appeals, 310 SCRA 343
[1999])

——o0o——

_______________

16 Cabutihan v. Landcenter Construction and Development Corporation,

G.R. No. 146594, June 10, 2002, 383 SCRA 353; Ruiz v. Court of Appeals,

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303 SCRA 637, February 25, 1999; Islamic Directorate of the Phils. v.
Court of Appeals, 272 SCRA 454, May 14, 1997.
17 Ibid.

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