#7: Spouses PATRICK JOSE and RAFAELA JOSE, petitioners, vs.

Spouses
HELEN BOYON and ROMEO BOYON, respondents. [G.R. No.
147369. October 23, 2003]

FACTS: Petitioners Patrick and Rafaela Jose lodged a complaint before the
RTC of Muntinlupa which is presided by herein public respondent Judge
N.C. Perello 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. Respondent judge, through the
acting Branch Clerk of Court 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. Petitioners filed before the trial court an Ex-parte
Motion for Leave of Court to Effect Summons by Publication which was
granted. 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. The lower court ruled in favor of
petitioners. [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 service of summons effected by the court a quo. The public
respondent issued an Order denying the said motion on the basis of the
defaulted [respondents] supposed loss of standing in court. The
[respondents] once again raised the issue of jurisdiction of the trial court via
a motion for reconsideration which was again denied. On appeal, 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.
ISSUE: Whether or not there is a valid service of summons on the
respondent.
RULING: No. 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 where 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 officers return. The
failure to comply faithfully, strictly and fully with all the foregoing
requirements of substituted 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. 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 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 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 hence may be used
only as prescribed and in the circumstances authorized by statute.
Summons by publication improper
The extraterritorial service of summons or summons by publication applies
only when the action is in rem or quasi in rem. 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. Moreover, court has
consistently declared that an action for specific performance is an action in
personam. Having failed to serve the summons on Sps. Boyon properly, the
RTC did not validly acquire jurisdiction over their persons. Consequently, due
process demands that all the proceedings conducted subsequent thereto
should be deemed null and void.
FOR REFERENCE ONLY:

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 defendants office or regular
place of business with some competent person in charge thereof.
#8TOYOTA CUBAO, INC., petitioner, vs. THE HONORABLE COURT OF
APPEALS and DANILO A. GUEVARRA, respondents. [G.R. No.
126321. October 23, 1997]

FACTS: Petitioner Toyota Cubao, Inc., undertook repairs on the car owned by
private respondent Danilo Guevarra. The repair cost of P76,800.47 was paid
by means of a BPI Check drawn by Guevarra in favor of Toyota. When
presented for payment, the check was dishonored for being Drawn Against
Insufficient Funds (`DAIF'). Petitioner thereupon requested that Guevarra
should make good the check. When Guevarra failed to heed the demand,
petitioner filed a civil case for collection of the unpaid account. On 07 January
1993, the trial court issued the summons to Guevarra at his address in 29
Burgos Street, Calamba, Laguna. Process Server Antonio Rimas of the
Regional Trial Court of Calamba, Laguna, submitted to the trial court a return
on the service stating, among others, that the original summon was duly
served thru Guevarra’s sister – in – law, Gloria Caballes, by leaving a copy of
the summons and complaint but refused to sign. Petitioner, claiming that
Guevarra had failed to file an ANSWER within the reglementary period,
moved to declare Guevarra in default. On 06 January 1994, the trial court
rendered judgment in favor of petitioner. On 26 July 1995, the Deputy
Sheriff, implementing the writ, levied on Guevarra’s Toyota Corolla. The
notice of levy was served on Guevarra personally but he refused to sign the
receipt thereof, expressed surprise over it, and stated that he was not aware
of any case instituted against him. On appeal, Guevarra claimed that the trial
court did not acquire jurisdiction over his person because of a defective
service of summons on him. The appellate court, finding merit in the
petition, annulled and set aside the default judgment, the writ of execution,
the levy upon execution and the sale at public auction of the vehicle. It held
that the substituted service of summons effected on private respondent was
not valid and that, consequently, the proceedings had before the trial court
were nugatory and without legal effect.

ISSUE: Whether or not the Court of Appeals has gravely erred in ignoring the
rule, enunciated in Mapa vs. Court of Appeals, that the absence in the
sheriffs return of a statement about the impossibility of personal service
cannot be conclusive proof that the substituted service resorted to is invalid.

RULING: No. The Court sustains the Court of Appeals.

Section 7, Rule 14, of the Rules of Court requires that summons must be
served personally by "handing a copy thereof to the defendant in person or,
if he refuses to receive it, by tendering it to him." If, however, this mode of
service cannot be effected within a reasonable time, substituted service may
be resorted to under Section 8 of the same Rule. A law prescribing the
manner in which the service of summons should be effected is jurisdictional
in character and its proper observance is what dictates the court's ability to
take cognizance of the litigation before it. Compliance therewith must
appear affirmatively in the return. It must so be as substitute service is a
mode that departs or deviates from the standard rule. Substitute service
must be used only in the way prescribed, and under circumstances
authorized, by law.
In Mapa vs. Court of Appeals, the Court did say that - x x x the absence in the
sheriffs return of a statement about the impossibility of personal service
does not conclusively prove that the service is invalid x x x. - The Court,
however, has elucidated that evidence must in such a case be duly presented
that would prove proper compliance with the rules on substituted service.
And, in Keister vs. Navarro, the Court said:
The summons must be served to the defendant in person. [Section 7, Rule
14, Revised Rules of Court.] It is only when the defendant cannot be served
personally within a reasonable time that a substituted service may be
made. [Section 8, Ibid.] Impossibility of prompt service should be shown by
stating the efforts made to find the defendant personally and the fact that
such efforts failed. This statement should be made in the proof of service. [I
Moran, Comments on the Rules of Court, 1970 Ed., p. 444.] This is necessary
because substituted service is in derogation of the usual method of service. It
has been held that this method of service is `in derogation of the common
law; it is a method extraordinary in character, and hence may be used only
as prescribed and in the circumstances authorized by statute.' [72 C.J.S.
1053.] Thus, under the controlling decisions, the statutory requirements of
substituted service must be followed strictly, faithfully and fully, and any
substituted service other than that authorized by the statute is considered
ineffective.
It is not here disputed that substituted service of summons has been
resorted to by the process server but that, unfortunately, the server's return
did not state the facts or the needed particulars that could justify the
substituted service. The constitutional requirement of due process, this
Court has held in Boticano vs. Chu, Jr., exacts that the service (of summons)
be such as may reasonably be expected to give the notice desired. Once the
service provided by the rules accomplishes that end, "the requirement of
justice is answered; the traditional notions of fair play are satisfied; due
process is served. Although Moran, on the Rules of Court, has said that
Irregularities of this kind (substituted service) (might) be cured by proof that
the copies (have) actually been delivered to the defendant," in the case at
bar, however, private respondent appears to have been notified of the case
for the first time only at the time the levy on execution of judgment was
effected by the sheriff.
The fact of the matter was that Guevarra evidently had been unaware of the
proceedings. Upon learning of the adverse decision, but already too late in
the day for him to get relief from that court, he filed, instead,
a certiorari petition before the Court of Appeals. The appellate court neither
abused its discretion nor was in error when it refused to consider the
affidavit of the process server (declaring the concomitant facts required to
be incorporated in the return) which was presented to it for the first time
only as an annex to its Reply filed with the tribunal. For the appellate court
to have accepted the affidavit favorably on its face value, without hearing,
would have again been a denial to the defendant (herein private respondent)
of his right to due process. WHEREFORE, the petition for review is DENIED.
#9ELISEO BOTICANO, petitioner, vs. MANUEL CHU, JR., respondent. G.R.
No. L-58036 March 16, 1987

FACTS: When private respondent Manuel Chu, Jr. failed to comply with the
agreement under which he assumed and undertook to pay for the damages
caused by his driver, Jaime Sigua, to petitioner Eliseo Boticano, the latter
filed a complaint for damages against private respondent Manuel Chu, Jr.
and Jaime Sigua both as defendants in a civil case before the Court of First
Instance. Summons was issued on December 12, 1977 but was returned
unserved for defendant Jaime Sigua because he was no longer connected
with San Pedro Saw Mill, Guagua, Pampanga, while another copy of the
summons for Manuel Chu, Jr. was returned duly served on him thru his wife
Veronica Chu at his dwelling house. On February 15, 1978 petitioner moved
to dismiss the case against Jaime Sigua and to declare Manuel Chu, Jr. in
default for failure to file responsive pleadings within the reglementary
period. The motion was granted by the lower court and ruled in favor of
plaintiff-petitioner. On March 19, 1979 private respondent Manuel Chu, Jr.
filed with the trial court a "Notice of Appeal" and an Urgent Motion for
Extension of Time to File Record on Appeal which was granted by the trial
court on the same date. Atty. Hermenegildo D. Ocampo, counsel of record
of private respondent, filed a "Motion to Withdraw as Counsel" while the
new counsel Atty. Wilfredo G. Laxamana entered his appearance and filed
his record on appeal. Petitioner filed with the trial court a Motion to Dismiss
Appeal and for execution wherein private respondent's counsel personally
appeared and opposed petitioner's motion. The trial court issued an order
denying aforesaid motion, while on May 22, 1979, the trial court issued
another order approving private respondent's Record on Appeal. On appeal,
the Court of Appeals issued its decision setting aside the appealed judgment
for being null and void and its order denying petitioner’s motion for
reconsideration. Hence, this petition.

ISSUES:

1. Whether or not the question of jurisdiction over the person of the

defendant can be raised for the first time on appeal.
2. If the defendant in the Regional Trial Court (RTC) has been declared
in default, may he appeal the default judgment that may
subsequently be rendered even if he has not asked the RTC to set
aside the declaration of default?
3. Whether or not there was a valid service of summons on the
respondent Manuel Chu, Jr.
RULING:

1. No. The question has been answered in the negative by the Supreme
Court in a long line of decisions. In fact, one of the circumstances
considered by the Court as indicative of waiver by the defendant-
appellant of any alleged defect of jurisdiction over his person arising
from defective or even want of process, is his failure to raise the
question of jurisdiction in the Court of First Instance and at the first
opportunity. It has been held that upon general principles, defects in
jurisdiction arising from irregularities in the commencement of the
proceedings, defective process or even absence of process may be
waived by a failure to make seasonable objections. (Castro v. Cebu
Portland Cement Co., 71 Phil. 481 [1941] citing Machan v. De la
Trinidad, 3 Phil. 684; Vergara v. Laciapag 28 Phil. 439; U.S. v. Inductivo,
40 Phil. 84; Soriano v. Ramirez, 44 Phil. 519). More recently, in
reiteration of the same principle, the Court ruled in Dalman v. City
Court of Dipolog City, Branch II, that as to the dismissal of the criminal
case, the question of jurisdiction which was never raised in said case
before the trial court cannot be done at this stage and level (134 SCRA
244 [1985]).

Coming to the case at bar, it has been pointed out that during the stages of
the proceedings in the court below, defendant-appellant could have
questioned the jurisdiction of the lower court but he did not.

It can of course be argued that the failure to question the lower court's
jurisdiction cannot be accounted against Chu for his having been declared in
default gave him no chance to participate in the court deliberations and
therefore no chance to raise the jurisdictional issue, but then, he could have
done so, in the subsequent pleadings he filed. Besides, even assuming that
such failure cannot be taken against him, the fact is he had VOLUNTARILY
submitted himself to the court's jurisdiction.

On the contrary, private respondent voluntarily appeared thru counsel in the

trial court. He filed among others, a Notice of Appeal, Motion for Extension
of Time to File Record on Appeal, Record on Appeal, and Motion for
Withdrawal of Appearance. Not only did he submit pleadings and motions,
but he likewise appeared in person, thru counsel in the hearing and orally
argued in open court on the pending incident.

Under Section 23, Rule 14 of the Rules of Court, the defendant's voluntary
appearance in the action shall be equivalent to service. Thus, under this
principle, it has been consistently held by the Supreme Court that the defect
of summons is cured by the voluntary appearance of the defendant. (Infante
v. Toledo and Lanting, 44 Phil. 834 [1918]; Aguilos v. Sepulvede, 53 SCRA 274
[1973]; J.M. Tuazon & Co. v. Estabillo, 62 SCRA 1; Castro v. Cebu Portland
Cement Co., supra).

The Court of Appeals is however of the view that from all the actions and
steps taken by the appellant no presumption can arise that he voluntarily
submitted himself to the jurisdiction of the Court. In fact according to said
Court, all of these actions taken by the appellant are geared and mustered
towards contesting the court's jurisdiction over his person, or of attacking
the validity of the judgment on jurisdictional grounds.

It will be noted however, that the Notice of Appeal (filed by defendant)

unmistakably indicates the reason for the appeal, which reads:

“That, the herein defendant is not contented with the aforesaid

Decision for it is contrary to the evidence and the law and the
award of damages is so excessively unsupported by any
evidence to warrant the same; hence, he is appealing said
Decision to the Hon. Court of Appeals, Manila, both on
questions of facts and law. “

As clearly shown in the foregoing, the above-stated conclusion of the Court

of Appeals has evidently no basis.

2. Yes. The answer is in the affirmative, however, a distinction must be

made as to the effects of such appeal.

(a) If an appeal is made without first asking the RTC to set aside the
declaration of default, and the appellate court sets aside on said declaration,
all he can get is a review of the RTC's default judgment without the
opportunity of having the higher court consider defense evidence (for the
simple reason that no evidence was even adduced by him in the RTC) (See
Rule 41, sec. 2, par. 3, Rules of Court).

(b) If upon the other hand, the defendant first asks the RTC to set aside the
declaration of default (See Rule 18, secs. 2 and 3, Rules of Court), and he is
able to prevail, the declaration will be set aside, and he will now have the
opportunity to present his evidence in the RTC. Thus, even if he finally loses
in the RTC's subsequent decision, his defense can be considered, when
appeal is made to the appellate tribunal. Of course, even if the default
declaration is not set aside despite his motion for the setting aside, he will
be entitled to all notices in the court proceedings, and can file any pleading
he may wish to file, including the notice of appeal. (See Rule 13, sec. 9, Rules
of Court).

3. Yes. In the case at bar, there is no question that summons was timely
issued and received by private respondent. In fact, he never denied actual
receipt of such summons but confined himself to the argument that the
Sheriff should prove that personal service was first made before resorting to
substituted service.

Private respondent insists that there was no valid service of summons

because private respondent is a partner and general manager in San Pedro
Sawmill. Consequently, the wife of private respondent to whom summons
and complaint were allegedly served not being partnership, cannot receive
the same under Section 13 of Rule 14 of the Rules of Court.

It has however been settled that actions must be brought by the real parties
in interest and against the persons who are bound by the judgment obtained
therein. (Salmon and Pacific Commercial Company v. Tan Cueco, 36 Phil. 557-
558 [1917]).

The title of the case both in the trial court, in the Court of Appeals and in this
Court shows that the partnership is not a party. On the contrary, as
previously stated private respondent himself assumed the responsibility of
the accident and is now estopped to disclaim the liabilities pertaining
thereto.
#10 O.B. Jovenir Construction and Development Corp. vs. Macamir Realty,
G.R. No. 135803, March 28, 2006.

FACTS: Plaintiffs Macamir Realty and Spouses Miranda (private respondents)

filed before the Makati RTC for the annulment of certain agreements they
had with Jovenir Construction, Jovenir and Liongson (petitioners). Jovenir
Construction was contracted to complete the construction of private
respondents’ condominium project. It was discovered that Jovenir
Construction had misrepresented itself as a legitimate contractor.
Respondents prayed for the issuance of a writ of preliminary injunction. One
of the impleaded defendants and a member of the Board of Directors of
Macamir Realty, Salud Madeja, filed a motion to dismiss alleging that the
spouses Miranda failed to attach any Board Resolution authorizing them to
file suit on behalf of Macamir Realty, the real party – in - interest. Private
respondents filed a Motion to Withdraw Complaint, alleging that the counsel
for plaintiffs “discovered a supposed technical defect in the complaint that
may be a ground for the dismissal of this case.”

Private respondents prayed that the plaintiffs be allowed to withdraw the

complaint without prejudice. Petitioners filed an opposition to the Motion to
Withdraw Complaint wherein they adopted Madejas arguments as to the
lack of authority on the part of the spouses Miranda to sue on behalf
of Macamir Realty. However, private respondents filed another complaint
against the same defendants, and seeking the same reliefs as the first
complaint. This time, a Board Resolution authorizing the spouses Miranda to
file the Complaint on behalf of Macamir Realty was attached to the
complaint. This second complaint was also filed with the Makati RTC. The
Verification and Certification of Non-Forum Shopping in the second complaint
was accomplished.

RTC granted the Motion to Withdraw Complaint. The RTC noted in its Order
that, "an action may be dismissed by the plaintiffs even without Order of the
Court by filing a notice of dismissal at any time before the service of the
answer under Rule 17, Section 1 of the Rules of Court," and accordingly
considered the complaint withdrawn without prejudice. Petitioners filed a
Motion to Dismiss the second complaint on the ground of forum-shopping.
They pointed out that at the time of the filing of the second complaint, the
first complaint was still pending. The RTC denied such because at the time
the Motion to Withdraw was filed, none of the defendants had filed any
answer or any responsive pleading. It was then within respondents’ right to
cause the dismissal of the complaint without having to await action of the
court on their motion. CA, affirmed. Hence this petition.
ISSUE: Whether or not there was a valid dismissal on the original complaint.
RULING: Yes. Section 1, Rule 17 of the 1964 Rules of Civil Procedure stated:
Dismissal by the plaintiff — An action may be dismissed by the plaintiff
without order of court by filing a notice of dismissal at any time before
service of the answer or of a motion for summary judgment. Unless
otherwise stated in the notice, the dismissal is without prejudice, xxx
The plaintiff was accorded the right to dismiss the complaint without the
necessity of alleging in the notice of dismissal any ground nor of making any
reservation. Under Section 1, Rule 17 of the old Rules, the dismissal
contemplated therein could be accomplished by the plaintiff through mere
notice of dismissal, and not through motion subject to approval by the Court.
Dismissal is ipso facto upon notice, and without prejudice unless otherwise
stated in the notice. It is due to these considerations that the petition should
be denied.
Evidently, respondents had the right to dismiss their complaint by mere
notice, since petitioners had not yet served their answer on respondents.
As to petitioner’s argument that respondents in this case did not file a notice
of dismissal, but instead lodged a Motion to Withdraw Complaint, a motion
which requires affirmative action from the court before the complaint may
be deemed dismissed, the first complaint had not yet been withdrawn as
of 17 February 1997, when the second complaint was filed since
the Makati RTC had granted the motion only on 24 February 1997.
According to the Court, the Motion to Withdraw Complaint makes clear
respondents’ "desire to withdraw the complaint without prejudice." That
respondents resorted to a motion to effect what they could have instead by
mere notice may be indicative of a certain degree of ignorance of procedural
rules on the part of respondents’ counsel. Yet such "error," should hardly be
of fatal consequence. The trial court has no discretion or option to deny the
motion, since dismissal by the plaintiff under Section 1, Rule 17 is guaranteed
as a matter of right to the plaintiffs. Even if the motion cites the most
ridiculous of grounds for dismissal, the trial court has no choice but to
consider the complaint as dismissed, since the plaintiff may opt for such
dismissal as a matter of right, regardless of ground.
Moreover, the Court is accord with the Court of Appeal when it pronounced
-- While [the Motion to Withdraw Complaint] is styled as a motion and
contains a prayer, these are innocuous errors and superfluities that do not
detract from its being a notice of dismissal made under said Section 1 of Rule
17 and which ipso facto dismissed the case. It is a hornbook rule that it is not
the caption of a pleading but the allegations thereat that determines its
nature. The court order of dismissal is a mere surplusage under the
circumstances and emphasized by the court a quoitself when it granted the
motion [x x x] considering that an action may be dismissed by the plaintiffs
even without Order of the Court[x x x]

Thus, the complaint could be properly considered as having been dismissed

or withdrawn. Accordingly, when respondents filed their new complaint
relating to the same cause of action, the old complaint was no longer
pending. The certification against forum-shopping attached to the new
complaint correctly asseverated that the old complaint was withdrawn.

As to the retroactive application of the 1997 Rules of Procedure which now

requires that upon the filing of a notice of dismissal, the court issues an order
confirming the dismissal. The new requirement is intended to qualify the right
of a party to dismiss the action before the adverse party files an answer or
asks for summary judgment. Still, there is no cause to apply the 1997 Rules
retroactively to this case. A plaintiff’s right to cause the dismissal of his
complaint under the old rules was unqualified. Procedural rules may not be
given retroactive effect if vested rights would be disturbed, or if their
application would not be feasible or would work injustice. Since respondents
possessed an unqualified right to cause the dismissal of their complaint
without need of confirmation by the trial court, as enunciated in the1964
Rules, they did not err in asserting that their first complaint was withdrawn
on the day of the filing of their motion to withdraw, and the lower courts
were correct in agreeing with respondents on this point.