Voluntary appearance

(1) Voluntary appearance is any appearance of the defendant in court, provided he does not raise the
question of lack of jurisdiction of the court (Flores vs. Zurbito, 37 Phil. 746; Carballo vs. Encarnacion, 92
Phil. 974). It is equivalent to service of summons (Sec. 20).
(2) An appearance is whatever form, without explicitly objecting to the jurisdiction of the court over the
person, is a submission to the jurisdiction of the court over the person. It may be made by simply filing a
formal motion, or plea or answer. If his motion is for any other purpose than to object to the jurisdiction of
the court over his person, he thereby submits himself to the jurisdiction of the court (Busuego vs. CA, L-
48955, June 30, 1987; La Naval Drug Corp. vs. CA, 54 SCAD 917).
(3) Voluntary appearance may be in form of:

(a) Voluntary appearance of attorney;

(b) A motion, by answer, or simple manifestation (Flores vs. Surbito);

(c) A telegraphic motion for postponement (Punzalan vs. Papica, Feb. 29, 1960);
(d) Filing a motion for dissolution of attachment;

(e) Failure to question the invalid service of summons (Navale vs. CA, GR 109957, Feb. 20, 1996);
(f) Filing a motion for extension of time to file an answer

Flores vs Zurbito Gr No. L-12890

This is an appeal from an order dismissing an election protest.

6th day of June, 1916 - Election for the office of governor was held in the Province
of Sorsogon, candidates were Bernabe Flores, Jose Zurbito, Antonio Rocha, and
Rosendo Gabionsa.

8th day of July, 1916 - Jose Zurbito was proclaimed duly elected by the provincial
board of canvasses

19th day of July, 1916, Bernabe Flores on the presented a protest in the CFI
against said election, alleging of frauds being committed and prayed for a
recanvass and investigation;

Notice of said protest was given to Zurbito, Rocha, and Gabionsa by registered
mail, which was received by each of them;

The said notice and copy of said protest were received personally by appellee Jose
Zurbito;

Antonio Rocha and Rosendo Gabionsa failed to appear and answer or defend said
protest;
On the 25th day of July, 1916, the said Jose Zurbito appeared in court and
presented a motion in said protest relating to the custody of the ballot boxes during
the pendency of said protest which motion was granted by the court on the same
day;

On the 27th day of July, 1916, Jose Zurbito again appeared in court, and claimed
that he had not appeared in said court for the purpose of defending the protest,
presented another motion praying that the same be dismissed for the reason that it
was signed by the attorney for the protestant and not by the protestant himself.

On the 7th day of August, 1916, after hearing the respective parties, Fernando
Salas, judge granted said motion and dismissed said protest with costs against the
protestant;

Protestant appealed to the Supreme Court and obtained a reversal of the same by a
decision of the Supreme Court of the 27th day of December, 1916;

The cause was remanded to the lower court with direction that the protest be
reinstated and that the court proceed to hear the same upon its merits; that at the
time set for the trial after the reinstatement of the cause Jose Zurbito again
appeared and presented another motion praying that the protest be dismissed
because proper notice had not been given to the protestee, which motion was
granted on the 16th day of March, 1917, and the present appeal was perfected
from that order.

Issue: Whether or not the protestees had been given legal notice of the protest
presented by the protestant and appellant?

1. ELECTION CONTESTS; NOTICE; APPEARANCE. — While the law provides that

election contests shall be instituted "upon motion with notice," it does not
contain any provision as to the method of giving notice. While the procedure
indicated by section 396 of Act No. 190 may be followed in giving notice,
such procedure is not mandatory. While service of a copy of the protest and
notice of the same is important and necessary, it may be waived by the
protestee. If the protestee voluntarily appears, by a general appearance, he
thereby gives the court jurisdiction over his person, and an objection
thereafter made upon the ground that no notice was received will not avail
him. It is then too late. He has given the court jurisdiction over his person.

2. ID.; ID.; ID. — A voluntary appearance is a waiver of the necessity of a

formal notice. An appearance in whatever form, without expressly objecting
to the jurisdiction of the court over the person is a submission to the
jurisdiction of the court over the person. An appearance may be made by
filing a formal motion, or plea, or answer. When the appearance is by motion
for the purpose of objecting to the jurisdiction of the court over the person, it
must be for the sole and separate purpose of objecting to the jurisdiction of
 the court. If his motion is for any other purpose than to object to the
jurisdiction of the court over his person, thereby submits himself to the
jurisdiction of the court. A special appearance by motion made for the
purpose of objecting to the jurisdiction of the court over the person will be
held to be a general appearance, if the party in said motion should, for
example, ask for a dismissal of the action upon the further ground that the
court had no jurisdiction over the subject matter.
- In the present case, Jose Zurbito appeared in court on three different occasions; first, to make
a motion relating to the custody of the ballot boxes during the pendency of the action; second,
to make a motion to dismiss the protest upon the ground that the same had not been signed by
the protestant personally, and third, to dismiss the protest upon the ground that he had not
been duly notified of the same. Each of the first and second appearances were sufficient to give
the court jurisdiction over his person and authority to decide the questions presented. With
reference to his third appearance the record shows by Exhibit C that he had actually received
notice of the protest together [with] a copy of the protest filed in court. His appearance without
objecting to the jurisdiction of the court waived all objections to the form and manner of service
of notice.

Considering, therefore, (a) that all of the candidates received actual notice of
the protest as well as a copy of the protest, and (b) that the Jose Zurbito not
only received actual notice of the protest together with a copy of the same, but
actually appeared in court and thereby gave the court jurisdiction over his
person, it is hereby ordered and decreed that the judgment dismissing the
protest be revoked and that the cause be remanded to the court whence it came
with direction that said protest be reinstated for the purpose of deciding the
issues presented by the same upon their merits. And without any finding as to
costs. So ordered.

MA. IMELDA M. MANOTOC v. CA, GR NO. 130974, 2006-08-16

Facts:
Respondent Trajano seeks the enforcement of a foreign court's judgment rendered on May
1, 1991 by the United States District Court of Honolulu, Hawaii, United States of America, in
a case entitled Agapita Trajano, et al. v. Imee Marcos-Manotoc a.k.a. Imee Marcos,... Civil
Case No. 86-0207 for wrongful death of deceased Archimedes Trajano committed by
military intelligence officials of the Philippines allegedly under the command, direction,
authority, supervision, tolerance, sufferance and/or influence of defendant Manotoc,
pursuant to the... provisions of Rule 39 of the then Revised Rules of Court.
Based on paragraph two of the Complaint, the trial court issued a Summons... the
Summons and a copy of the Complaint were allegedly served upon (Mr.) Macky de la Cruz,
an alleged caretaker of petitioner at the condominium unit mentioned earlier.[4] When
petitioner failed to file her Answer, the trial court declared... her in default... petitioner, by
special appearance of counsel, filed a Motion to Dismiss[6] on the ground of lack of
jurisdiction of the trial court over her person due to an invalid substituted service of
summons.
The grounds to support the motion... were: (1) the address of defendant indicated in the
Complaint (Alexandra Homes) was not her dwelling, residence, or regular place of business
as provided in Section 8, Rule 14 of the Rules of Court; (2) the party (de la Cruz), who was
found in the unit, was neither a... representative, employee, nor a resident of the place; (3)
the procedure prescribed by the Rules on personal and substituted service of summons
was ignored; (4) defendant was a resident of Singapore; and (5) whatever judgment
rendered in this case would be ineffective and... futile.
the trial court rejected Manotoc's Motion to Dismiss on the strength of its findings that her
residence, for purposes of the Complaint, was Alexandra Homes, Unit E-2104, No. 29
Meralco Avenue, Pasig, Metro Manila, based on the documentary evidence of... respondent
Trajano.
the trial court discarded Manotoc's plea for reconsideration for lack of merit
Manotoc filed a Petition for Certiorari and Prohibition[13] before the Court of Appeals... he
CA rendered the assailed Decision,[14] dismissing the Petition for Certiorari and Prohibition.
The court a quo adopted the findings of the trial court that petitioner's residence was at
Alexandra Homes, Unit E-2104, at No. 29 Meralco
Avenue, Pasig, Metro Manila, which was also the residence of her husband, as shown by
the testimony of Atty. Robert Swift and the Returns of the registered mails sent to petitioner.
petitioner filed a Motion for Reconsideration[15] which was denied by the CA in its
Resolution
Hence, petitioner has come before the Court for review on certiorari.
Issues:
RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS ERROR IN
RENDERING THE DECISION AND RESOLUTION IN QUESTION (ANNEXES A AND B) IN
DEFIANCE OF LAW AND JURISPRUDENCE IN RULING THAT THE TRIAL COURT
ACQUIRED JURISDICTION OVER THE PERSON OF THE PETITIONER THROUGH A
SUBSTITUTED
SERVICE OF SUMMONS IN ACCORDANCE WITH SECTION 8, RULE 14 OF THE
REVISED RULES OF COURT.
RESPONDENT COURT OF APPEALS COMMITTED [A] SERIOUS ERROR WHEN IT
RULED THAT THERE WAS A VALID SERVICE OF SUMMONS ON AN ALLEGED
CARETAKER OF PETITIONER'S RESIDENCE IN COMPLETE DEFIANCE OF THE
RULING IN CASTILLO VS. CFI OF BULACAN, BR. IV, G.R. NO. L-55869,... FEBRUARY
20, 1984, 127 SCRA 632 WHICH DEFINES THE PROPRIETY OF SUCH SERVICE UPON
MERE OVERSEERS OF PREMISES WHERE A PARTY SUPPOSEDLY RESIDES.
Ruling:
We GRANT the petition.
personal service on the defendant is the preferred mode of service, that is, by handing a
copy of the summons to the... defendant in person. If defendant, for excusable reasons,
cannot be served with the summons within a reasonable period, then substituted service
can be resorted to. While substituted service of summons is permitted, "it is extraordinary in
character and in derogation of the... usual method of service.
Indeed, "compliance with the rules regarding the service of summons is as much important
as the issue of... due process as of jurisdiction.
A meticulous scrutiny of the aforementioned Return readily reveals the absence of material
data on the serious efforts to serve the Summons on petitioner Manotoc in person. There is
no clear valid reason cited in the Return why those efforts proved inadequate, to reach the...
conclusion that personal service has become impossible or unattainable outside the
generally couched phrases of "on many occasions several attempts were made to serve the
summons x x x personally," "at reasonable hours during the day," and "to no avail for the
reason that the... said defendant is usually out of her place and/or residence or premises.
The facts and circumstances should be stated with... more particularity and detail on the
number of attempts made at personal service, dates and times of the attempts, inquiries to
locate defendant, names of occupants of the alleged residence, and the reasons for failure
should be included in the Return to satisfactorily show the... efforts undertaken. That such
efforts were made to personally serve summons on defendant, and those resulted in failure,
would prove impossibility of prompt personal service.
Granting that such a general description be considered adequate, there is still a serious
nonconformity from the requirement that the summons must be left with a "person of
suitable age and discretion" residing in defendant's house or residence. Thus, there are two
(2)... requirements under the Rules: (1) recipient must be a person of suitable age and
discretion; and (2) recipient must reside in the house or residence of defendant. Both
requirements were not met. In this case, the Sheriff's Return lacks information as to
residence, age, and... discretion of Mr. Macky de la Cruz, aside from the sheriff's general
assertion that de la Cruz is the "resident caretaker" of petitioner as pointed out by a certain
Ms. Lyn Jacinto, alleged receptionist and telephone operator of Alexandra Homes
Based on the above principles, respondent Trajano failed to demonstrate that there was
strict compliance with the requirements of the then Section 8, Rule 14 (now Section 7, Rule
14 of the 1997 Rules of Civil Procedure).
On the issue whether petitioner Manotoc is a resident of Alexandra Homes, Unit E-2104, at
No. 29 Meralco Avenue, Pasig City, our findings that the substituted service is void has
rendered the matter moot and academic. Even assuming that Alexandra Homes Room 104
is her actual... residence, such fact would not make an irregular and void substituted service
valid and effective.
IN VIEW OF THE FOREGOING, this Petition for Review is hereby GRANTED
Principles:
The court's jurisdiction over a defendant is founded on a valid service of summons. Without
a valid service, the court cannot acquire jurisdiction over the defendant, unless the
defendant voluntarily submits to it.
Jurisdiction over the defendant is acquired either upon a valid service of summons or the
defendant's voluntary appearance in court. When the defendant does not voluntarily submit
to the court's jurisdiction or when there is no valid service of summons, "any judgment of
the... court which has no jurisdiction over the person of the defendant is null and void.
personal service on the defendant is the preferred mode of service, that is, by handing a
copy of the summons to the... defendant in person. If defendant, for excusable reasons,
cannot be served with the summons within a reasonable period, then substituted service
can be resorted to. While substituted service of summons is permitted, "it is extraordinary in
character and in derogation of the... usual method of service.
Section 8 of Rule 14 of the old Revised Rules of Court which applies to this case provides:
SEC. 8.[21] Substituted service. If the defendant cannot be served within a reasonable time
as provided in the preceding section [personal service on defendant], 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.
The party relying on substituted service or the sheriff must show that defendant cannot be
served promptly or there is impossibility of prompt service.
Section 8, Rule 14 provides that the plaintiff or the sheriff is given a "reasonable time" to
serve... the summons to the defendant in person, but no specific time frame is mentioned.
"Reasonable time" is defined as "so much time as is necessary under the circumstances for
a reasonably prudent and diligent man to do, conveniently, what the contract or duty
requires that should be... done, having a regard for the rights and possibility of loss, if any[,]
to the other party."
Under the Rules, the service of summons has no set period.
We can break down this section into the following requirements to effect a valid substituted
service:
(1) Impossibility of Prompt Personal Service
For substituted service of summons to be available,... there must be several attempts by the
sheriff to personally serve the summons within a reasonable period [of one month] which
eventually resulted in failure to prove impossibility of prompt service. "Several attempts"
means at least three (3) tries, preferably on at least two... different dates. In addition, the
sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of
service can be confirmed or accepted.
The sheriff must describe in the Return of Summons the facts and circumstances
surrounding the attempted personal service.[25] The efforts made to find the defendant and
the reasons behind the failure must be clearly narrated in detail in the Return.
(2) Specific Details in the Return
If the substituted service will be effected at defendant's house or residence, it should be left
with a person of "suitable age and discretion then residing therein."[27] A person of suitable
age and discretion is one who has attained the age of full legal... capacity (18 years old)
and is considered to have enough discernment to understand the importance of a
summons.
Thus, to be of sufficient discretion, such person must know how to read and understand
English to comprehend the import of the summons, and fully realize the need to deliver the
summons and complaint to the defendant at the earliest... possible time for the person to
take appropriate action.
the person must have the "relation of confidence" to the defendant, ensuring that the latter
would receive or at least be notified of the receipt of the summons.
(3) A Person of Suitable Age and Discretion
If the substituted service will be done at defendant's office or regular place of business, then
it should be served on a competent person in charge of the place.
(4) A Competent Person in Charge

G.R. No. 175587 September 21, 2007

PHILIPPINE COMMERCIAL INTERNATIONAL BANK, Petitioner,

vs.

JOSEPH ANTHONY M. ALEJANDRO, Respondent.

YNARES-SANTIAGO, J.:

Facts:

Petitioner filed against respondent Alejandro a complaint for sum of money with
prayer for the issuance of a writ of preliminary attachment. Said complaint alleged
that respondent, a resident of Hong Kong, executed in favor of petitioner a
promissory note obligating himself to pay P249,828,588.90 plus interest.

In view of the fluctuations in the foreign exchange rates which resulted in the
insufficiency of the deposits assigned by respondent as security for the loan,
petitioner requested the latter to put up additional security for the loan.

In praying for the issuance of a writ of preliminary attachment under Section 1

paragraphs (e)and (f) of Rule 57 of the Rules of Court, petitioner alleged that (1)
respondent fraudulently withdrew his unassigned deposits notwithstanding his
verbal promise to PCIB Assistant Vice-president Corazon B. Nepomuceno not to
withdraw the same prior to their assignment as security for the loan; and

(2) that respondent is not a resident of the Philippines. The trial court granted the
application and issued the writ ex parte. Subsequently, respondent filed a motion to
quash he writ contending that the withdrawal of his unassigned deposits was not
fraudulent as it was approved by petitioner. He also alleged
that petitioner knew that he maintains a permanent residence and an office address
here in the Philippines. In both addresses, petitioner regularly communicated with
him through its representatives. The trial court issued an order quashing the writ.
With the denial of petitioner’s motion for reconsideration, it elevated the case to the
CA via a petition for certiorari. The CA dismissed the case.
Issue: Whether the issuance of the writ of attachment was proper.

Held: No. In the instant case, it must be stressed that the writ was issued by the
trial court mainly on the representation of petitioner that respondent is not a
resident of the Philippines.

In actions in personam against residents temporarily out of the Philippines, the

court need not always attach the defendant’s property in order to have authority to
try the case. Where the plaintiff seeks to attach the defendant’s property and to
resort to the concomitant service of summons by publication, the same must be
with prior leave, precisely because, if the sole purpose of the attachment is for the
court to acquire jurisdiction, the latter must determine whether from the allegations
in the complaint, substituted service (to persons of suitable discretion at the
defendant’s residence or to a competent person in charge of his office or regular
place of business) will suffice, or whether there is a need to attach the property of
the defendant and resort to service of summons by publication in order for the
court to acquire jurisdiction over the case and to comply with the requirements of
due process.

Obviously, the trial court’s issuance of the writ was for the sole purpose of
acquiring jurisdiction to hear and decide the case. Had the allegations in
the complaint disclosed that respondent has a residence in Quezon City and an
office in Makati City, the trial court, if only for the purpose of acquiring jurisdiction,
could have served summons by substituted service on the said addresses, instead
of attaching the property of the defendant. The rules on the application of a writ of
attachment must be strictly construed in favor of the defendant. For attachment is
harsh, extraordinary, and summary in nature; it is a rigorous remedy which
exposes the debtor to humiliation and annoyance. It should be resorted to only
when necessary and as a last remedy.

It is clear from the foregoing that even on the allegation that respondent is a
resident temporarily out of the Philippines, petitioner is still not entitled to a writ of
attachment because the trial court could acquire jurisdiction over the case by
substituted service instead of attaching the property of the defendant. The
misrepresentation of petitioner that respondent does not reside in the Philippines
and its omission of his local addresses was thus a deliberate move to ensure that
the application for the writ will be granted.

Santos, Jr. v. PNOC

PEDRO T. SANTOS, JR. v. PNOC,
G.R. No. 170943, September 23, 2008

FACTS:
 December 23, 2002, PNOC Exploration Corporation, respondent, filed a complaint for a sum of
money against petitioner Pedro Santos Jr. in the RTC of Pasig. The amount sought to be collected was
the petitioner’s unpaid balance of the car loan advanced to him by respondent when he was still a
member of its board of directors.
 Personal service of summons were made to petitioner but failed because the latter cannot be
located in his last known address despite earnest efforts to do so. Subsequently, on respondent’s motion,
the trial court allowed service of summons by publication. Respondent caused the publication of the
summons in Remate, a newspaper of general circulation in the Philippines. Thereafter, respondent
submitted the affidavit of publication and the affidavit of service of respondent’s employee to the effect
that he sent a copy of the summons by registered mail to petitioner’s last known address.
 Petitioner still failed to answer within the prescribed period despite the publication of summons.
Hence, respondent filed a motion for the reception of its evidence ex parte. Trial court granted said
motion and proceeded with the ex parte presentation and formal offer of its evidence.
 Petitioner filed an Omnibus Motion for Reconsideration and to Admit Attached Answer, alleging
that the affidavit of service submitted by respondent failed to comply with Section 19, Rule 14 of the Rules
of Court as it was not executed by the clerk of court.
 Trial court denied the said motion and held that the rules did not require such execution with the
clerk of court. It also denied the motion to admit petitioner’s answer because the same was filed way
beyond the reglementary period.
 Petitioner appeals to the CA via a petition for certiorari contending that the court committed grave
abuse of discretion since it has no jurisdiction due to improper service of summons, failure to furnish him
with copies of its orders and processes and upholding technicality over equity and justice.

ISSUE:
 Whether or not there was a failure on the part of the trial court to furnish Petitioner with copies of
orders and processes issued in the course of the proceedings

HELD:
 No, Santos failed to file an answer in time, which is why he had to file an Omnibus Motion to
Admit Attached Answer. The disputed order of September 11, 2003 was a finding that the Santos was in
default for failure to file an answer or pleading within the period fixed. It is illogical to notify him of the
order simply on account of the reality that he was no longer residing and/or found on his last known
address and his whereabouts unknown thus the publication of summons. Santos could not reasonably
demand that copies of orders and processes be furnished him. His residence or whereabouts is not
known and he cannot be located. In the case at bar, there is obviously no way notice can be sent to him
and the notice requirement cannot apply to him. The law does not require that the impossible be done.
Nemo tenetur ad impossible. The law obliges no one to perform an impossibility. Laws and rules must be
interpreted in a way that they are in accordance with logic, common sense, reason and practicability. Be
that as it may, a copy of the September 11, 2003 order was still mailed to him at his last known address
but it was unclaimed.