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Phil. 974) - It Is Equivalent To Service of Summons (Sec. 20)
Phil. 974) - It Is Equivalent To Service of Summons (Sec. 20)
(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:
(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
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?
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.
vs.
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.
(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.
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.
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.