1
G.R. No. 155488             December 6, 2006
ERLINDA R. VELAYO-FONG, petitioner,  1993, copy of the same WAS SERVED personally upon the
vs.
SPOUSES RAYMOND and MARIA HEDY VELAYO, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for review on certiorari under Rule 45 of
the 1997 Rules of Civil Procedure seeking the reversal of the Decision1 of
the Court of Appeals (CA) dated May 14, 2002 in CA-G.R. CV No.
54434 which affirmed the Decision of the Regional Trial Court, Branch
105, Quezon City (RTC) in Civil Case No. Q-93-17133; and the CA
Resolution2 dated October 1, 2002 which denied petitioner's motion for
reconsideration.
The procedural antecedents and factual background of the case are as
follows:
On August 9, 1993, Raymond Velayo (Raymond) and his wife, Maria
Hedy Velayo (respondents) filed a complaint for sum of money and
damages with prayer for preliminary attachment against Erlinda R.
Velayo-Fong (petitioner), Rodolfo R. Velayo, Jr. (Rodolfo Jr.) and
Roberto R. Velayo (Roberto).3 Raymond is the half-brother of petitioner
and her co-defendants.
In their Complaint, respondents allege that petitioner, a resident of 1860
Alamoana Boulevard, Honolulu, Hawaii, USA, and her co-defendants,
who are residents of the Philippines, made it appear that their common
father, Rodolfo Velayo, Sr. (Rodolfo Sr.) and petitioner had filed a
complaint against Raymond before the National Bureau of Investigation
(NBI), accusing Raymond of the crimes of estafa and kidnapping a minor;
that petitioner and her co-defendants also requested that respondents be
included in the Hold Departure List of the Bureau of Immigration and
Deportation (BID) which was granted, thereby preventing them from
leaving the country and resulting in the cancellation of respondents' trips
abroad and caused all of respondents' business transactions and operations
to be paralyzed to their damage and prejudice; that petitioner and her co-
defendants also filed a petition before the Securities and Exchange
Commission (SEC) docketed as Case No. 4422 entitled "Rodolfo Velayo
Sr. et al. v. Raymond Velayo et al." which caused respondents' funds to
be frozen and paralyzed the latters' business transactions and operations to
their damage and prejudice. Since petitioner was a non-resident and not
found in the Philippines, respondents prayed for a writ of preliminary
attachment against petitioner's properties located in the Philippines.
Before respondents' application for a writ of preliminary attachment can
be acted upon by the RTC, respondents filed on September 10, 1993 an
Urgent Motion praying that the summons addressed to petitioner be
served to her at Suite 201, Sunset View Towers Condominium, Roxas
Boulevard, Pasay City and at No. 5040 P. Burgos Street, T. Towers
Condominium, Makati.4 In its Order dated September 13, 1993, the RTC
granted the said motion.5
The Process Server submitted the Officer's Return, to wit:
THIS IS TO CERTIFY, that after several failed attempts to
serve the copy of summons and complaint issued in the above-
entitled case at the given addresses of defendant Erlinda
Velayo as mentioned in the Order of this Court dated
September 13, 1993, finally, on the 23rd day of September,
1993, at the instance of herein plaintiffs through counsel,
undersigned was able to SERVED (sic) personally upon
defendant Erlinda Velayo the copy of summons together with
the thereto attached copy of the complaint, not at her two (2)
given addresses, but at the lobby of Intercontinental Hotel,
Makati, Metro Manila, right in the presence of lobby counter
personnel by the name of Ms. A. Zulueta, but said defendant
refused to sign in receipt thereof.
I FURTHER CERTIFY, that on the 27th day of September,
other defendant Rodolfo R. Velayo, Jr., at No. Block 57, Lots
17 and 19, G. Sanchez Street, BF Resort Village, Las Piñas,
Metro Manila, but who also refused to sign in receipt thereof.
WHEREFORE, original copy of the summons is now being
respectfully returned to the Honorable Court DULY SERVED.
Quezon City, Philippines, September 30, 1993.6
Upon ex-parte motions7 of respondents, the RTC in its Order dated
November 23, 1993 and January 5, 1994, declared petitioner and her co-
defendant in default for failure to file an answer and ordered the ex-parte
presentation of respondents' evidence.8
On June 15, 1994, the RTC rendered its Decision in respondents' favor,
the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby
rendered ordering the defendants to pay the plaintiffs:
1. the amount of P65,000.00 as actual damages;
2. the amount of P200,000.00 as moral damages;
3. Attorney's fees in the amount of P5,000,00 it being a
judgment by default; and
4. cost of suit.
SO ORDERED.9
On September 1, 1994, petitioner filed a Motion to Set Aside Order of
Default claiming that she was prevented from filing a responsive pleading
and defending herself against respondents' complaint because of fraud,
accident or mistake; that contrary to the Officer's Return, no summons
was served upon her; that she has valid and meritorious defenses to refute
respondents' material allegations.10 Respondents opposed said Motion.11
In its Order dated May 29, 1995, the RTC denied petitioner's Motion
ruling that the presumption of regularity in the discharge of the function
of the Process Server was not sufficiently overcome by petitioner's
allegation to the contrary; that there was no evident reason for the Process
Server to make a false narration regarding the service of summons to
defaulting defendant in the Officer's Return.12
On September 4, 1995, respondents filed a Motion for Execution.13 On
September 22, 1995, petitioner filed an Opposition to Motion for
Execution contending that she has not yet received the Decision and it is
not yet final and executory as against her.14
In its Order dated January 3, 1996, the RTC, finding that the Decision
dated June 15, 1994 and the Order dated May 29, 1995 were indeed not
furnished or served upon petitioner, denied respondents' motion for
execution against petitioner and ordered that petitioner be furnished the
said Decision and Order.15
On March 28, 1996, the RTC issued an Order directing the issuance of
the writ of execution against petitioner's co-defendant.16
On May 23, 1996, petitioner, through her counsel, finally received the
Decision dated June 15, 1994 and the Order dated May 29, 1995.17
 2

Petitioner filed an appeal with the CA questioning the propriety and judgment was already rendered by the RTC since the proper remedy is a
validity of the service of summons made upon her. Respondents opposed motion for new trial or a petition for relief from judgment under Rule 38;
the appeal, arguing that the petition should be dismissed since it raised that the issue on summons is a pure question of law which the CA does
pure questions of law, which is not within the CA's jurisdiction to resolve not have jurisdiction to resolve under Section 2 (c) of Rule 41 of the 1997
under Section 2 (c) of Rule 41 of the Revised Rules of Court; that, in any Rules of Civil Procedure.22
case, petitioner's reliance on the rule of extraterritorial service is
misplaced; that the judgment by default has long been final and executory
The Court finds it proper to resolve first whether the issue involved in the
since as early as August 1994 petitioner became aware of the judgment by
appeal filed with the CA is a question of law and therefore not within the
default when she verified the status of the case; that petitioner should
jurisdiction of the CA to resolve.
have filed a motion for new trial or a petition for relief from judgment and
not a motion to set aside the order of default since there was already a
judgment by default. In Murillo v. Consul,23 which was later adopted by the 1997 Rules of
Civil Procedure, the Court clarified the three modes of appeal from
decisions of the RTC, namely: (a) ordinary appeal or appeal by writ of
On May 14, 2002, the CA rendered its Decision affirming the Decision
error, where judgment was rendered in a civil or criminal action by the
and Order of the RTC18 ruling that it (CA) has jurisdiction since the
RTC in the exercise of original jurisdiction; (b) petition for review, where
petition raised a question of fact, that is, whether petitioner was properly
judgment was
served with summons; that the judgment by default was not yet final and
executory against petitioner since the records reveal and the RTC Order
dated January 3, 1996 confirmed that she was not furnished or served a rendered by the RTC in the exercise of appellate jurisdiction; and (c)
copy of the decision; that petitioner was validly served with summons petition for review to the Supreme Court.
since the complaint for damages is an action in personam and only
personal, not extraterritorial service, of summons, within the forum, is
The first mode of appeal, governed by Rule 41, is taken to the Court of
essential for the acquisition of jurisdiction over her person; that
Appeals on questions of fact or mixed questions of fact and law. The
petitioner's allegations that
second mode of appeal, covered by Rule 42, is brought to the Court of
Appeals on questions of fact, of law, or mixed questions of fact and law.
she did not know what was being served upon her and that somebody just The third mode of appeal, provided for by Rule 45, is elevated to the
hurled papers at her were not substantiated by competent evidence and Supreme Court only on questions of law.
cannot overcome the presumption of regularity of performance of official
functions in favor of the Officer's Return.
A question of law arises when there is doubt as to what the law is on a
certain state of facts, while there is a question of fact when the doubt
Petitioner filed a Motion for Reconsideration19 but the CA denied it in its arises as to the truth or falsity of the alleged facts.24 For a question to be
Resolution dated October 1, 2002.20 one of law, the same must not involve an examination of the probative
value of the evidence presented by the litigants or any of them.25 The
resolution of the issue must rest solely on what the law provides on the
Hence, the present petition anchored on the following grounds:
given set of circumstances. Once it is clear that the issue invites a review
I
of the evidence presented, the question posed is one of fact.26 Thus, the
THE COURT OF APPEALS PATENTLY ERRED IN NOT
test of whether a question is one of law or of fact is not the appellation
RULING THAT PETITIONER WAS NOT VALIDLY
given to such question by the party raising the same; rather, it is whether
SERVED WITH SUMMONS.
the appellate court can
II
THE COURT OF APPEALS PATENTLY ERRED IN NOT
RULING THAT PETITIONER WAS PREVENTED FROM determine the issue raised without reviewing or evaluating the evidence,
FILING RESPONSIVE PLEADING AND DEFENDING in which case, it is a question of law; otherwise it is a question of fact.27
AGAINST RESPONDENTS' COMPLAINT BECAUSE OF
FRAUD, ACCIDENT AND MISTAKE.21
Respondents' claim that the issues raised by petitioner before the CA are
pure legal questions is not tenable.
Parties filed their respective Memoranda on September 8 and 9, 2005.

A scrutiny of petitioner's petition before the CA reveals that it raised two

Petitioner argues that summons should have been served through
issues: (a) the propriety of the service effected on a non-resident; and (b)
extraterritorial service since she is a non-resident; that the RTC should
the validity of the service made upon her. The first is a question of law.
have lifted the order of default since a default judgment is frowned upon
There is indeed a question as to what and how the law should be applied.
and parties should be given their day in court; that she was prevented
The second is a question of fact. The resolution of said issue entails a
from filing a responsive pleading and defending against respondents'
review of the factual circumstances that led the RTC to conclude that
complaint
service was validly effected upon petitioner. Therefore, petitioner
properly brought the case to the CA via the first mode of appeal under the
through fraud, accident or mistake considering that the statement in the aegis of Rule 41.
Officer's Return that she was personally served summons is inaccurate;
that
How may service of summons be effected on a non-resident?

she does not remember having been served with summons during the said
Section 17,28 Rule 14 of the Rules of Court provides:
date but remembers that a man hurled some papers at her while she was
entering the elevator and, not knowing what the papers were all about, she
threw back the papers to the man before the elevator closed; that she has a Section 17. Extraterritorial service – When the defendant does
valid and meritorious defense to refute the material allegations of not reside and is not found in the Philippines and the action
respondents' complaint. 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 lien or interest, actual or
On the other hand, respondents contend that petitioner was validly served
contingent, or in which relief demanded consists, wholly or in
with summons since the rules do not require that service be made upon
part, in excluding the defendant from any interest therein, or
her at her place of residence as alleged in the complaint or stated in the
the property of the defendant has been attached in the
summons; that extraterritorial service applies only when the defendant
Philippines, service may, by leave of court, be effected out of
does not reside and is not found in the Philippines; that petitioner erred in
the Philippines by personal service as under section 7; or by
filing a motion to set aside the order of default at the time when a default
 3
publication in a 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 sent by
registered mail to the last known address of the defendant, or
in any other manner the court may deem sufficient. Any order
granting such leave shall specify a reasonable time, which
shall not be less than sixty (60) days after notice, within which
the defendant must answer.
Under this provision, when the defendant is a nonresident and he is not
found in the country, summons may be served extraterritorially. There are
only four instances when extraterritorial service of summons is proper,
namely: (a) when the action affects the personal status of the plaintiffs;
(b) when the action relates to, or the subject of which is property, within
the Philippines, in which the defendant claims a lien or interest, actual or
contingent; (c) when the relief demanded in such action consists, wholly
or in part, in excluding the defendant from any interest in property located
in the Philippines; and (d) when the defendant's property has been
attached within the Philippines. In these instances, 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) any other manner
the court may deem sufficient.
Thus, extrajudicial service of summons apply only where the action is in
rem, that is, an action against the thing itself instead of against the person,
or in an action quasi in rem, where an individual is named as defendant
and the purpose of the proceeding is to subject his interest therein to the
obligation or loan burdening the property. The rationale for this is that
in in rem and quasi in rem actions, jurisdiction over the person of the
defendant is
not a prerequisite to confer jurisdiction on the court provided that the
court acquires jurisdiction over the res.29
Where the action is in personam, that is, one brought against a person on
the basis of her personal liability, jurisdiction over the person of the
defendant is necessary for the court to validly try and decide the case.
When the defendant is a non-resident, personal service of summons
within the state is essential to the acquisition of jurisdiction over the
person.30 Summons on the defendant must be served by handing a copy
thereof to the defendant in person, or, if he refuses to receive it, by
tendering it to him.31 This cannot be done, however, if the defendant is
not physically present in the country, and thus, the court cannot acquire
jurisdiction over his person and therefore cannot validly try and decide
the case against him.32
In the present case, respondents' cause of action in Civil Case No. Q-93-
17133 is anchored on the claim that petitioner and her co-defendants
maliciously instituted a criminal complaint before the NBI and a petition
before the SEC which prevented the respondents from leaving the country
and paralyzed the latters' business transactions. Respondents pray that
actual and moral damages, plus attorney's fees, be awarded in their favor.
The action instituted by respondents affect the parties alone, not the
whole world. Any judgment therein is binding only upon the parties
properly impleaded.33 Thus, it is an action in personam. As such, personal
service of summons upon the defendants is essential in order for the court
to acquire jurisdiction over their persons.34
The Court notes that the complaint filed with the RTC alleged that
petitioner is a non-resident who is not found in the Philippines for which
reason respondents initially prayed that a writ of preliminary attachment
be issued against her properties within the Philippines to confer
jurisdiction upon the RTC. However, respondents did not pursue its
application for said writ when petitioner was subsequently found
physically present in the Philippines and personal service of summons
was effected on her.
Was there a valid service of summons on petitioner? The answer is in the
affirmative.
Petitioner's bare allegation that the statement in the "Officer's Return that
she was personally served summons is inaccurate" is not sufficient. A
process server's certificate of service is prima facie  evidence of the facts
as set out in the certificate.35 Between the claim of non-receipt of
summons by a party against the assertion of an official whose duty is to
send notices, the latter assertion is fortified by the presumption that
official duty has been regularly performed.36 To overcome the
presumption of regularity of performance of official functions in favor of
such Officer's Return, the evidence against it must be clear and
convincing. Petitioner having been unable to come forward with the
requisite quantum of proof to the contrary, the presumption of regularity
of performance on the part of the process server stands.
The Court need not make a long discussion on the propriety of the
remedy adopted by petitioner in the RTC of filing a motion to set aside
the order of default at a time when there was already a judgment by
default. As aptly held by the CA, since petitioner was not furnished or
served a copy of the judgment of default, there was no notice yet of such
judgment as against her. Thus, the remedy of filing a motion to set aside
the order of default in the RTC was proper.
Petitioner's argument that the RTC should have set aside the order of
default and applied the liberal interpretation of rules with a view of
affording parties their day in court is not tenable. While indeed default
orders are not viewed with favor, the party seeking to have the order of
default lifted must
first show that her failure to file an answer or any other responsive
pleading was due to fraud, accident, mistake, or excusable neglect and
then she must show that she has a valid and meritorious defense.37
In this case, petitioner failed to show that her failure to file an answer was
due to fraud, accident, mistake or excusable neglect. Except for her bare
unsupported allegation that the summons were only thrown to her at the
elevator, petitioner did not present any competent evidence to justify the
setting aside of the order of default.
Moreover, when a party files a motion to lift order of default, she must
also show that she has a meritorious defense or that something would be
gained by having the order of default set aside.38 The term meritorious
defense implies that the applicant has the burden of proving such a
defense in order to have the judgment set aside. The cases usually do not
require such a strong showing. The test employed appears to be
essentially the same as used in considering summary judgment, that is,
whether there is enough evidence to present an issue for submission to the
trier of fact, or a showing that on the undisputed facts it is not clear that
the judgment is warranted as a matter of law. 39 The defendant must show
that she has a meritorious defense otherwise the grant of her motion will
prove to be a useless exercise. Thus, her motion must be accompanied by
a statement of the evidence which she intends to present if the motion is
granted and which is such as to warrant a reasonable belief that the result
of the case would probably be otherwise if a new trial is granted.40
In the present case, petitioner contented herself with stating in her
affidavit of merit that the cases against respondent Raymond were filed at
the instance of her father.41 Such allegation is a conclusion rather than a
statement of facts showing a meritorious defense. The affidavit failed to
controvert the facts alleged by the respondents. Petitioner has not shown
that she has a meritorious defense.
Thus, since petitioner failed to show that her failure file an answer was
not due to fraud, accident, mistake, or excusable neglect; and that she had
a valid and meritorious defense, there is no merit to her prayer for a
liberal interpretation of procedural rules.
WHEREFORE, the instant petition is DENIED. The assailed Decision
and Resolution of the Court of Appeals are AFFIRMED.
Costs against petitioner.
 4
SO ORDERED.
G.R. No. 177598              October 17, 2008
ROBERT SAN PEDRO, petitioner, 
vs.
WILLY ONG and NORMITA CABALLES, respondents.
DECISION
CHICO-NAZARIO, J.:
Before this Court is a Petition for Review on Certiorari  under Rule 45 of
the Revised Rules of Court, filed by petitioner Robert San Pedro (San
Pedro), seeking to reverse and set aside the Decision1 of the Court of
Appeals dated 29 December 2006 and its Resolution2 dated 13 April 2007
in CA-G.R. CV No. 79399. In its assailed Decision, the Court of Appeals
reversed the Decision3 dated 21 February 2003 of the Regional Trial
Court (RTC) of Malolos, Bulacan, Branch 19, in Civil Case No. 515-M-
99, declaring, inter alia, that the deeds of real estate mortgage constituted
on the subject properties are null and void; while, in its assailed
Resolution, the appellate court denied San Pedro’s Motion for
Reconsideration.
The factual and procedural antecedents of this case are as follows:
On 3 April 1996, San Pedro purchased from the spouses Guillermo
Narciso and Brigida Santiago (spouses Narciso) two parcels of land
(subject properties) covered by Transfer Certificates of Title TCTs No. T-
82381 and No. T-82382 of the Registry of Deeds of Bulacan, with areas
of about 200 square meters and 150 square meters, respectively. San
Pedro bought the subject properties for ₱35,000.00, as evidenced by
Deeds of Sale executed in his favor by the spouses Narciso on 8 April
1996.4
In order to transfer in his name the TCTs covering the subject properties,
and upon the spouses Narciso’s recommendation, San Pedro hired the
services of Adora Dela Peña (Dela Peña) who is known to be very
familiar with the intricacies of real property transfers.5
After sometime, San Pedro inquired with the Registry of Deeds of
Bulacan as to the status of his application for the issuance in his name of
new TCTs for the subject properties. He was surprised to find out,
however, that the subject properties were still registered in the names of
the Narciso spouses and were mortgaged to Willy Ong (Ong).6
According to the annotation stamped at the back of TCTs No. T-82381
and No. T-82382, the spouses Narciso, on 23 July 1998, executed Special
Powers of Attorney (SPAs) authorizing Dela Peña to mortgage the subject
properties to Ong. The SPAs were procured by Dela Peña from the
spouses Narciso with the help of one Rufino Landayan, a tricycle driver
who accompanied Dela Peña to the spouses Narciso’s residence. San
Pedro found out that it was Normita Caballes (Caballes), Ong’s agent,
who caused the registration of the mortgages with the Registry of Deeds
of Bulacan and the annotation thereof on the TCTs of the spouses
Narciso.7
In order to free the subject properties from the said encumbrances, San
Pedro filed with the RTC on 7 May 1999 a Petition for Nullification of
Mortgage with Damages against the spouses Narciso, Dela Peña,
Landayan, Ong, and Caballes, docketed as Civil Case No. 515-M-99.
On 14 May 1991, the RTC issued summons to spouses Narciso, Dela
Peña, Landayan, Ong, and Caballes, directing them to file their Answers
to San Pedro’s Petition in Civil Case No. 515-M-99. On the same day, the
Sheriff served the summons on all concerned as evidenced by the
Sheriff’s Return,8 which reads:
SERVICE RETURN
THIS IS TO CERTIFY that on 14th day of May 1999, the undersigned
served a copies (sic) of Summons in connection in (sic) the above-entitled
case accompanying (sic) by the Complaints with annexes attached thereto
upon defendants, at their given address, to wit:
Spouses Brigida Santiago thru their son Jaime Narciso/
&
Guillermo Narciso
-
Received & sign
Adora Dela Peña thru her sister-in-law/
-
Received but refused to sign
Rufino Landayan thru his son Christopher
-
Landayan/received & sign
Normita Caballes & thru Paul Caballes son of 
Willy Ong - Normita Caballes/received
& sign
The original copy of Summons is, therefore, respectfully returned DULY
SERVED.
While the spouses Narciso, Landayan, Ong, and Caballes separately filed
their Answers in accordance with the summons, thereby voluntarily
submitting themselves to the jurisdiction of the RTC, Dela Peña failed to
do so and she was, thus, declared by the RTC to be in default.
In their Answer,9 the spouses Narciso admitted to selling the subject
properties to San Pedro, and denied authorizing the mortgage of the same
to Ong. Their signatures on the SPAs were fraudulently secured by Dela
Peña who misrepresented to them that such document was necessary to
facilitate the transfer of the TCTs of the subject properties to San Pedro.
The spouses Narciso denied that they participated in or benefited from the
loan obligation obtained by Dela Peña from Ong.
For their part, Caballes and Ong raised in their Joint Answer10 the defense
of mortgagee-in-good-faith. They claimed that they both relied in good
faith on the SPAs granting Dela Peña the authority to mortgage the
subject properties since there was nothing on the face thereof which
would have raised their suspicion as to the authenticity of the document.
Ong alleged that the subject properties were used by Dela Peña as
collateral for the loan, amounting to ₱170,000.00, which she obtained
from Ong. Since the said loan obligation already became due and
demandable, Ong sought the foreclosure of the subject properties. During
the auction sale, Ong emerged as the highest bidder but the TCTs of the
subject properties were not yet transferred to his name.
Landayan, in his Answer,11 denied any participation in the procurement of
the SPAs or in the mortgage of the subject properties, except that he was
hired by Dela Peña to bring her to the spouses Narciso’s residence at the
time the alleged SPAs were fraudulently procured.
After the Pre-Trial Conference, trial on the merits ensued.
During the trial, San Pedro presented Landayan to testify in his favor.
According to Landayan, he came to know Dela Peña when the latter hired
his tricycle. Landayan took Dela Peña and a woman, whom he identified
as Caballes’ sister, to the residence of the spouses Narciso to secure
Guillermo Narciso’s signature on a certain document. While Dela Peña
and Caballes’ sister were inside the spouses Narciso’s house, Caballes
was waiting for them outside in a white car. After a few minutes, Dela
Peña and Caballes’ sister came out, and together with Caballes, they
visited and inspected the subject properties; after which, Dela Peña and
Caballes’ sister proceeded to a restaurant to try and secure Brigida
Santiago’s signature on the document they carried. After somebody
 5
signed the document for Brigida Santiago, Dela Peña asked Landayan to
sign the same as witness, to which he obliged.12
San Pedro himself took the witness stand. He testified that he bought the
subject properties from the spouses Narciso for ₱35,000.00. After the
execution of the Deeds of Sale and payment of the purchase price to the
spouses Narciso, possession of the subject properties were turned over to
him. San Pedro started to build his dream house on the subject properties,
spending about ₱2,000,000.00 thereon, only to find out later on that the
subject properties on which his house was built was encumbered by Dela
Peña to Ong on the strength of the SPAs executed by the spouses Narciso
in Dela Peña’s favor. When San Pedro confronted the spouses Narciso
about the mortgages, they denied authorizing the same.13
San Pedro’s sister, Luz San Pedro Tominago (Tominago), narrated before
the RTC that on 31 March 1991, she filed a complaint against Dela Peña
before the Philippine National Police (PNP) Station in Balagtas, Bulacan
for the latter’s failure to effect the transfer of the TCTs of the subject
properties in San Pedro’s name, as she was obliged to do. Tominago filed
the complaint on behalf of San Pedro, who was working abroad.14
Finally, a document examiner and handwriting expert from the National
Bureau of Investigation (NBI) was also presented as a witness for San
Pedro. He confirmed that the signature of Guillermo Narciso on one of
the SPAs was forged, while the signatures of his wife Brigida Santiago on
both SPAs were spurious.15
After San Pedro presented his evidence, Ong and Caballes filed a
demurrer to evidence, questioning the lack of jurisdiction of the RTC over
the person of Dela Peña. Since Dela Peña was an indispensable party in
the case, they claimed that no final determination of the same could be
arrived at without the said court acquiring jurisdiction over Dela Peña.16
In an Order dated 24 August 2001, the RTC denied the demurrer to
evidence filed by Ong and Caballes. Hence, trial proceeded with the
presentation of evidence by the defense.
Ong testified for the defense that Caballes informed him that she knew of
two parcels of land in Bulacan that were being offered as collaterals for a
loan. When Ong expressed interest in the subject properties, Caballes
showed him copies of the SPA executed by the spouses Narciso in favor
of Dela Peña. Ong then instructed Caballes to verify with the Registry of
Deeds whether the spouses Narciso were the real owners of the subject
properties and whether their TCTs were clean. Caballes returned with
certified true copies of the TCTs which were in the names of the spouses
Narciso and bore no encumbrances. Satisfied with the documents, Ong
agreed to release the amount of ₱170,000.00 as loan, secured by the
subject properties. Ong admitted that he was not able to personally talk to
Dela Peña or to the spouses Narciso. All negotiations pertaining to the
loan and mortgages were transacted through Caballes.17
Caballes also offered her testimony, in which she stated that she came to
know Dela Peña because the latter was looking for someone who can
grant her a loan with the subject properties as collateral. Dela Peña was
armed with the SPAs from the spouses Narciso authorizing her to
mortgage the subject properties. After Caballes examined the documents,
she proceeded to the Registry of Deeds of Bulacan to verify the status and
ownership of the subject properties. After she found out that the TCTs
were in the name of the spouses Narciso and were clean, Caballes went to
Ong who released the money for the loan. Dela Peña issued nine post-
dated checks to Ong as payment for her loan obligation. All nine checks
were dishonored by the drawee bank when presented for payment because
Dela Peña’s account was already closed. Ong, thus, instituted before the
Municipal Trial Court (MTC) of Balagtas, Bulacan, a case against Dela
Peña for violation of Batas Pambansa Blg. 22.18
On 21 February 2003, the RTC rendered a Decision in Civil Case No.
515-M-99, declaring null and void the mortgages constituted over the
subject properties in Ong’s favor. According to the court a quo, Ong and
Caballes failed to exercise reasonable degree of diligence before they
entered into mortgage contracts with Dela Peña, who was not the
registered owner of the properties being mortgaged and was only
purportedly authorized by the registered owners thereof. The RTC, thus,
ruled:
WHEREFORE, judgment is hereby rendered as follows:
1. Declaring [San Pedro] the legal and rightful owner of the two (2)
parcels of land subject of this litigation, covered by TCT No. T-82381
and TCT No. 82382 presently in the name of [the spouses Narciso].
2. Adjudging the sale by [the spouses Narciso] to [San Pedro], legal,
valid, subsisting and in all respect enforceable.
3. Resolving to declare the Special Power[s] of Attorney constituted in
favor of [Dela Peña] null and void.
4. Declaring the Deeds of Mortgage purportedly executed by [Dela Peña]
as Attorney-in-fact of [the spouses Narciso], in favor of [Ong] constituted
in [sic] TCT No. T-82381 and TCT No. 82382 void ab initio.
5. Ordering the Registry of Deeds for the Province of Bulacan to cancel
the recordings of mortgages in favor of Ong constituted in [sic] TCT No.
82381 and TCT No. 82382 as well as any annotation of foreclosure
proceedings if there are any by [Ong].
6. Ordering [Ong] to return to [San Pedro] the owner’s duplicate copy of
TCT No. 82381 and TCT No. 82382 which are presently in his
possession.
7. Ordering [Dela Peña] to pay [Ong] the sum of P245,000.00 plus legal
interest from September, 1998 until the whole obligation is fully
extinguished.
All other claims, counterclaims and cross claims are ordered denied for
lack of merit.19
Without filing any Motion for Reconsideration before the RTC, Ong and
Caballes appealed the adverse RTC Decision to the Court of Appeals,
assigning as error the lack of jurisdiction of the RTC over the person of
Dela Peña which rendered all the proceedings held before said court
fatally defective. Their appeal was docketed as CA-G.R. CV No. 79399.
In a Decision20 dated 29 December 2006, the Court of Appeals granted
the appeal of Ong and Caballes, and accordingly reversed the RTC
Decision dated 21 February 2003. The appellate court justified its reversal
of the ruling of the RTC on its finding that the service of summons on
Dela Peña was invalid; thus, the RTC did not acquire jurisdiction over her
person. The substituted service of summons employed by the Sheriff was
ineffective for failure to comply with the statutory requirements before
such mode of service could be resorted to. The Sheriff in the present case
used substituted service without even showing that Dela Peña could not
be served personally with the summons within reasonable time. Since
Dela Peña was an indispensable party to the controversy, without her no
final determination of the case can be had. Thus, the dispositive portion of
the assailed Court of Appeals Decision reads:
WHEREFORE, all the above premises considered, the Decision, dated
February 21, 2003, of the Regional Trial Court of Malolos, Bulacan,
Branch 19, is hereby set aside for want of jurisdiction. The instant case is
hereby remanded to the court a quo for appropriate proceedings. No
costs.21
The Motion for Reconsideration filed by San Pedro was denied by the
Court of Appeals in its Resolution22 dated 13 April 2007 for the issues
raised therein were already sufficiently threshed out in its Decision.
 6
San Pedro is now before this Court assailing the adverse decision
rendered by the Court of Appeals.23 For the resolution of this Court are
the following issues:
I.
WHETHER OR NOT THE RTC HAS JURISDICTION TO HEAR AND
DECIDE THE CASE FILED BY SAN PEDRO.
II.
WHETHER OR NOT DE LA PEÑA IS AN INDISPENSABLE PARTY
TO THE CASE.
III.
WHETHER OR NOT ONG WAS MORTGAGEE-IN-GOOD FAITH.
Vital to the resolution of the present controversy are the questions on
whether there was a valid service of summons upon Dela Peña; and if
there was none, whether the improper service of summons on Dela Peña
invalidates the entire proceedings before the court a quo.
Summons is a writ by which the defendant is notified of the action
brought against him. Service of such writ is the means by which the court
may acquire jurisdiction over his person. Any judgment without such
service in the absence of a valid waiver is null and void.24
To provide perspective, it is crucial to determine first whether the action
is in personam, in rem, or quasi in rembecause the rules on service of
summons under Rule 14 of the Revised Rules of Court apply according to
the nature of the action.25
In the case at bar, Civil Case No. 515-M-99, instituted by San Pedro, is
anchored on his claim that he is the real and rightful owner of the subject
properties, thus, no one else has the right to mortgage them. The real
estate mortgages constituted on the subject properties in favor of Ong,
annotated on their TCTs, are encumbrances on said properties, which may
be considered a cloud on San Pedro’s title thereto.
Such cloud may be removed or San Pedro’s title quieted under Article
476 of the Civil Code, which reads:
Art. 476. Whenever there is a cloud on title to real property or any interest
therein, by reason of any instrument, record, claim, encumbrance or
proceeding which is apparently valid or effective but is in truth and in fact
invalid, ineffective, voidable, or unenforceable, and may be prejudicial to
said title, an action may be brought to remove such cloud or to quiet the
title.
An action may also be brought to prevent a cloud from being cast upon
title to real property or any interest therein. (Emphasis ours.)
San Pedro alleged in his Petition in Civil Case No. 515-M-99 that the
mortgages in favor of Ong may, at first, appear valid and effective, but
are actually invalid or voidable for having been made without the
knowledge and authority of the spouses Narciso, the registered owners of
the subject properties and San Pedro’s predecessors-in-interest. In asking
the cancellation of the mortgages on the TCTs of the subject properties,
San Pedro was ultimately asking the RTC to remove a cloud on his title to
the same. It is, thus, irrefragable that Civil Case No. 515-M-99 is an
action for quieting of title.
Significantly, suits to quiet title are characterized as proceedings quasi in
rem. Technically, they are neither in remnor in personam. In an
action quasi in rem, an individual is named as defendant. However, unlike
suits in rem, a quasi in rem judgment is conclusive only between the
parties. A proceeding quasi in rem is one brought against 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 defendant and the
purpose of the proceeding is to subject his interests therein to the
obligation or loan burdening the property. Actions quasi in rem deal 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 to the proceedings and not to ascertain or cut off the rights or
interests of all possible claimants. The judgments therein are binding only
upon the parties who joined in the action.27
According to Section 6, Rule 14 of the Revised Rules of Court, summons
on the defendant in actions in personammust be served by handing a copy
thereof to the defendant in person, or, if he refuses to receive it, by
tendering it to him.28 Meanwhile, in actions in rem or quasi in rem,
jurisdiction over the person of the defendant is not a prerequisite to confer
jurisdiction on the court provided that the court acquires jurisdiction over
the res, although summons must be served upon the defendant in order to
satisfy the due process requirements.29
In Alba v. Court of Appeals, 30 the Court further elucidated that:
In an action in personam, jurisdiction over the person of the defendant is
necessary for the court to validly try and decide the case. In
a proceeding in rem or quasi in rem, jurisdiction over the person of the
defendant is not a prerequisite to confer jurisdiction on the court,
provided that the latter has jurisdiction over the res. Jurisdiction over
the res is acquired either (a) by the seizure of the property under legal
process, whereby it is brought into actual custody of the law; or (b) as a
result of the institution of legal proceedings, in which the power of
the court is recognized and made effective. The service of summons or
notice to the defendant is not for the purpose of vesting the court with
jurisdiction but merely for satisfying the due process requirements.
(Emphasis supplied.)
Given that Civil Case No. 515-M-99 is a an action for quieting of title,
settled to be quasi in rem, the RTC was not required to acquire
jurisdiction over the persons of the defendants, it being sufficient for the
said court to acquire jurisdiction over the subject matter of the case. By
San Pedro’s institution of Civil Case No. 515-M-99, the RTC already
acquired jurisdiction over the subject properties – the res. Therefore, the
service of summons to the defendants in said case, including Dela Peña,
did not affect the jurisdiction of the RTC to hear and decide Civil Case
No. 515-M-99, and did not invalidate the proceedings held therein on the
basis of jurisdiction.
Admittedly, there was a defect in the service of the summons on Dela
Peña. The Sheriff immediately resorted to substituted service of summons
on Dela Peña without attempting first to effect personal service within
reasonable time. The Sheriff’s Return31 merely stated that he served a
copy of the summons on Dela Peña’s sister-in-law who refused to sign the
same.
Personal service of summons is preferred to substitute 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.32 Indisputably, the Sheriff did not comply with any
of the foregoing requirements, thus, rendering his service of summons on
Dela Peña invalid.
Nonetheless, the improper service of summons on Dela Peña did not void
the proceedings conducted by the RTC in Civil Case No. 515-M-99, for
lack of jurisdiction. As the Court has underscored herein, in quasi in
rem proceedings, the court need not acquire jurisdiction over the persons
of the defendants, for as long as it has acquired jurisdiction over the res.
The defect in the service of summons merely infringed Dela Peña’s right
to due process that precluded the RTC from rendering a valid judgment
with respect to her personal liability. And since Dela Peña’s right to due
 7
process is personal and pertains to her alone, it could not be invoked by
her other co-defendants in Civil Case No. 515-M-99 so as to escape the
judgment of liability against them.
Contrary to the pronouncement of the Court of Appeals, Dela Peña
was not an indispensable party to this case, without whom, no final
conclusion of the case can be arrived at.
The Court defined indispensable party in Philippine National Bank v.
Heirs of Estanislao Militar and Deogracias Militar, 33 as follows:
An indispensable party is one whose interest will be affected by the
court's action in the litigation, and without whom no final
determination of the case can be had. The party's interest in the subject
matter of the suit and in the relief sought are so inextricably intertwined
with the other parties' (sic) that his legal presence as a party to the
proceeding is an absolute necessity. In his absence there cannot be a
resolution of the dispute of the parties before the court which is effective,
complete, or equitable.
Conversely, a party is not indispensable to the suit if his interest in the
controversy or subject matter is distinct and divisible from the interest of
the other parties and will not necessarily be prejudiced by a judgment
which does complete justice to the parties in court. He is not
indispensable if his presence would merely permit complete relief
between him and those already parties to the action or will simply avoid
multiple litigation. (Emphasis supplied.)
Evidently, Dela Peña does not fall within the definition of an
indispensable party. As the Court has explained, Civil Case No. 515-M-
99 is an action for quieting of title, intended to remove any cloud upon
San Pedro’s title to the subject properties. The real estate mortgages in
favor of Ong annotated on the TCTs of the subject properties constitute
the cloud to be removed. Thus, the crux of the controversy is the title of
San Pedro to the subject properties vis-à-vis that of Ong, for the
determination of which, Dela Peña’s participation is not an absolute
necessity. The judgment of the RTC upholding San Pedro’s title to the
subject properties over Ong’s, or even if it were the other way around,
would not have affected Dela Peña, because Dela Peña never claimed title
to the subject properties; she only misrepresented that she had authority to
mortgage the same on behalf of the registered owners, namely, the
spouses Narciso. After she successfully, albeit, fraudulently, obtained the
loan using the subject properties as mortgage, her interest in the same had
ended. She may have perpetrated fraud for which she may be held liable
but, clearly, these may be established in a separate and subsequent case.
Her presence in the proceedings before the RTC would have only
permitted complete relief since the said court could have already
determined therein her liability for the damages she had caused to any of
the parties, but it does not make her presence indispensable.
San Pedro’s title proved to be superior to that of Ong’s. The subject
properties were sold to him prior to the mortgage of the same to Ong. The
spouses Narciso, registered owners of the subject properties, admitted the
sale thereof to San Pedro and denied giving any authority to Dela Peña to
mortgage the said properties. An expert witness affirmed that the
signature of Guillermo Narciso on one of the purported SPAs in favor of
Dela Peña was forged, while the signatures of his wife Brigida Santiago
on both SPAs were spurious. Ong and Caballes cannot even point out any
defect in San Pedro’s title to the subject properties. Ong can only assert
better right to the same as allegedly a mortgagee in good faith.
However, the well-entrenched legal principle in our jurisprudence
requires a higher degree of diligence to be exercised by the mortgagee
when he is not directly dealing with the registered owner of real property.
As the Court enunciated in Abad v. Guimba34:
While one who buys from the registered owner does not need to look
behind the certificate of title, one who buys from one who is not the
registered owner is expected to examine not only the certificate of title
but all factual circumstances necessary for [one] to determine if there are
any flaws in the title of the transferor, or in [the] capacity to transfer the
land. Although the instant case does not involve a sale but only a
mortgage, the same rule applies inasmuch as the law itself includes a
mortgagee in the term "purchaser."
The Court has stressed time and again that every person dealing with an
agent is put upon inquiry, and must discover upon his peril the authority
of the agent, and this is especially true where the act of the agent is of
unusual nature. If a person makes no inquiry, he is chargeable with
knowledge of the agent’s authority, and his ignorance of that authority
will not be any excuse.35
In the more recent case of Bank of Commerce v. San Pablo, Jr.,36 the
Court elucidated:
The Bank of Commerce clearly failed to observe the required degree of
caution in ascertaining the genuineness and extent of the authority of
Santos to mortgage the subject property. It should not have simply relied
on the face of the documents submitted by Santos, as its undertaking to
lend a considerable amount of money required of it a greater degree of
diligence. That the person applying for the loan is other than the
registered owner of the real property being mortgaged should have
already raised a red flag and which should have induced the Bank of
Commerce to make inquiries into and confirm Santos’ authority to
mortgage the Spouses San Pablo’s property. A person who
deliberately ignores a significant fact that could create suspicion in an
otherwise reasonable person is not an innocent purchaser for
value (Emphasis ours.)
Considering Ong’s undue haste in granting the loan without inquiring into
the ownership of the subject properties being mortgaged, as well as the
authority of the supposed agent to constitute the mortgages on behalf of
the owners, he cannot be considered a mortgagee-in-good-faith. Ong’s
averment that he exercised prudence in the loan-mortgage transaction is
debunked by his own admission that he merely relied on Caballes’
representations thereon, without personally meeting or speaking with
Dela Peña, the supposed agent, or the spouses Narciso, the registered
owners of the subject properties. Although he instructed Caballes to
check the TCTs of the subject properties, he did not bother to personally
meet Dela Peña and ascertain the genuineness and authenticity of the
latter’s authority to mortgage the same on behalf of the spouses Narciso
especially considering that the one mortgaging the property is not the
registered owner.
The real estate mortgages constituted on the subject properties based on
false and fraudulent SPAs are void ab initio. In Veloso and Rosales v. La
Urbana,37 the Court ruled that forged powers of attorney are without force
and effect and, thus, nullified the mortgage constituted on the strength
thereof:
In view of the forgoing facts, the court held that pursuant to Article 1714
of the Civil Code and under the Torrens Act in force in this jurisdiction,
the forged powers of attorney prepared by Del Mar were without force
and effect and that the registration of the mortgages constituted by virtue
thereof were likewise null and void and without force and effect, and that
they could not in any way prejudice the rights of the plaintiff as the
registered owner of her participations in the properties in question.
Consequently, the foreclosure proceedings on the mortgaged properties
are likewise void ab initio. Since Ong cannot be deemed a mortgagee-in-
good-faith nor an innocent purchaser for value of the subject properties at
the auction sale thereof, his claim to the said properties cannot prevail
over that of San Pedro. The Court’s ruling, however, is without prejudice
to the right of Ong to proceed against those who perpetrated the fraud to
his prejudice.
WHEREFORE, in view of the foregoing, the instant Petition
is GRANTED. The Decision dated 29 December 2006 rendered by the
Court of Appeals in CA-G.R. CV No. 79399 is REVERSED and SET
ASIDE. The Decision dated 21 February 2003 of the Regional Trial
Court of Malolos, Bulacan, Branch 19, in Civil Case No. 515-M-99, is
herebyREINSTATED with the modification that the portion ordering
 8
Adora Dela Peña to pay Willy G. Ong the sum of ₱245,000.00 plus legal
interest, is DELETED.
SO ORDERED.
G.R. No. 156759               June 5, 2013
ALLEN A. MACASAET, NICOLAS V. QUIJANO, JR., ISAIAS
ALBANO, LILY REYES, JANET BAY, JESUS R. GALANG, AND
RANDY HAGOS, Petitioners, 
vs.
FRANCISCO R. CO, JR., Respondent.
DECISION
BERSAMIN, J.:
To warrant the substituted service of the summons and copy of the
complaint, the serving officer must first attempt to effect the same upon
the defendant in person. Only after the attempt at personal service has
become futile or impossible within a reasonable time may the officer
resort to substituted service.
The Case
Petitioners – defendants in a suit for libel brought by respondent – appeal
the decision promulgated on March 8, 20021 and the resolution
promulgated on January 13, 2003,2 whereby the Court of Appeals (CA)
respectively dismissed their petition for certiorari, prohibition and
mandamus and denied their motion for reconsideration. Thereby, the CA
upheld the order the Regional Trial Court (RTC), Branch 51, in Manila
had issued on March 12, 2001 denying their motion to dismiss because
the substituted service of the summons and copies of the complaint on
each of them had been valid and effective.3
Antecedents
On July 3, 2000, respondent, a retired police officer assigned at the
Western Police District in Manila, sued Abante Tonite, a daily tabloid of
general circulation; its Publisher Allen A. Macasaet; its Managing
Director Nicolas V. Quijano; its Circulation Manager Isaias Albano; its
Editors Janet Bay, Jesus R. Galang and Randy Hagos; and its
Columnist/Reporter Lily Reyes (petitioners), claiming damages because
of an allegedly libelous article petitioners published in the June 6, 2000
issue of Abante Tonite. The suit, docketed as Civil Case No. 00-97907,
was raffled to Branch 51 of the RTC, which in due course issued
summons to be served on each defendant, including Abante Tonite, at
their business address at Monica Publishing Corporation, 301-305 3rd
Floor, BF Condominium Building, Solana Street corner A. Soriano Street,
Intramuros, Manila.4
In the morning of September 18, 2000, RTC Sheriff Raul Medina
proceeded to the stated address to effect the personal service of the
summons on the defendants. But his efforts to personally serve each
defendant in the address were futile because the defendants were then out
of the office and unavailable. He returned in the afternoon of that day to
make a second attempt at serving the summons, but he was informed that
petitioners were still out of the office. He decided to resort to substituted
service of the summons, and explained why in his sheriff’s return dated
September 22, 2005,5 to wit:
SHERIFF’S RETURN
This is to certify that on September 18, 2000, I caused the service of
summons together with copies of complaint and its annexes attached
thereto, upon the following:
1. Defendant Allen A. Macasaet, President/Publisher of
defendant AbanteTonite, at Monica Publishing Corporation,
Rooms 301-305 3rd Floor, BF Condominium Building, Solana
corner A. Soriano Streets, Intramuros, Manila, thru his
secretary Lu-Ann Quijano, a person of sufficient age and
discretion working therein, who signed to acknowledge receipt
thereof. That effort (sic) to serve the said summons personally
upon said defendant were made, but the same were ineffectual
and unavailing on the ground that per information of Ms.
Quijano said defendant is always out and not available, thus,
substituted service was applied;
2. Defendant Nicolas V. Quijano, at the same address, thru his
wife Lu-Ann Quijano, who signed to acknowledge receipt
thereof. That effort (sic) to serve the said summons personally
upon said defendant were made, but the same were ineffectual
and unavailing on the ground that per information of (sic) his
wife said defendant is always out and not available, thus,
substituted service was applied;
3. Defendants Isaias Albano, Janet Bay, Jesus R. Galang,
Randy Hagos and Lily Reyes, at the same address, thru Rene
Esleta, Editorial Assistant of defendant AbanteTonite, a
person of sufficient age and discretion working therein who
signed to acknowledge receipt thereof. That effort (sic) to
serve the said summons personally upon said defendants were
made, but the same were ineffectual and unavailing on the
ground that per information of (sic) Mr. Esleta said defendants
is (sic) always roving outside and gathering news, thus,
substituted service was applied.
Original copy of summons is therefore, respectfully returned duly served.
Manila, September 22, 2000.
On October 3, 2000, petitioners moved for the dismissal of the complaint
through counsel’s special appearance in their behalf, alleging lack of
jurisdiction over their persons because of the invalid and ineffectual
substituted service of summons. They contended that the sheriff had made
no prior attempt to serve the summons personally on each of them in
accordance with Section 6 and Section 7, Rule 14 of the Rules of Court.
They further moved to drop Abante Tonite as a defendant by virtue of its
being neither a natural nor a juridical person that could be impleaded as a
party in a civil action.
At the hearing of petitioners’ motion to dismiss, Medina testified that he
had gone to the office address of petitioners in the morning of September
18, 2000 to personally serve the summons on each defendant; that
petitioners were out of the office at the time; that he had returned in the
afternoon of the same day to again attempt to serve on each defendant
personally but his attempt had still proved futile because all of petitioners
were still out of the office; that some competent persons working in
petitioners’ office had informed him that Macasaet and Quijano were
always out and unavailable, and that Albano, Bay, Galang, Hagos and
Reyes were always out roving to gather news; and that he had then
resorted to substituted service upon realizing the impossibility of his
finding petitioners in person within a reasonable time.
On March 12, 2001, the RTC denied the motion to dismiss, and directed
petitioners to file their answers to the complaint within the remaining
period allowed by the Rules of Court,6 relevantly stating:
Records show that the summonses were served upon Allen A. Macasaet,
President/Publisher of defendant AbanteTonite, through LuAnn Quijano;
upon defendants Isaias Albano, Janet Bay, Jesus R. Galang, Randy Hagos
and Lily Reyes, through Rene Esleta, Editorial Assistant of defendant
Abante Tonite (p. 12, records). It is apparent in the Sheriff’s Return that
on several occasions, efforts to served (sic) the summons personally upon
all the defendants were ineffectual as they were always out and
unavailable, so the Sheriff served the summons by substituted service.
Considering that summonses cannot be served within a reasonable time to
the persons of all the defendants, hence substituted service of summonses
was validly applied. Secretary of the President who is duly authorized to
receive such document, the wife of the defendant and the Editorial
Assistant of the defendant, were considered competent persons with
sufficient discretion to realize the importance of the legal papers served
upon them and to relay the same to the defendants named therein (Sec. 7,
Rule 14, 1997 Rules of Civil Procedure).
WHEREFORE, in view of the foregoing, the Motion to Dismiss is hereby
DENIED for lack of merit..
Accordingly, defendants are directed to file their Answers to the
complaint within the period still open to them, pursuant to the rules.
 9
SO ORDERED.
Petitioners filed a motion for reconsideration, asserting that the sheriff
had immediately resorted to substituted service of the summons upon
being informed that they were not around to personally receive the
summons, and that Abante Tonite, being neither a natural nor a juridical
person, could not be made a party in the action.
On June 29, 2001, the RTC denied petitioners’ motion for
reconsideration.7 It stated in respect of the service of summons, as
follows:
The allegations of the defendants that the Sheriff immediately resorted to
substituted service of summons upon them when he was informed that
they were not around to personally receive the same is untenable. During
the hearing of the herein motion, Sheriff Raul Medina of this Branch of
the Court testified that on September 18, 2000 in the morning, he went to
the office address of the defendants to personally serve summons upon
them but they were out. So he went back to serve said summons upon the
defendants in the afternoon of the same day, but then again he was
informed that the defendants were out and unavailable, and that they were
always out because they were roving around to gather news. Because of
that information and because of the nature of the work of the defendants
that they are always on field, so the sheriff resorted to substituted service
of summons. There was substantial compliance with the rules,
considering the difficulty to serve the summons personally to them
because of the nature of their job which compels them to be always out
and unavailable. Additional matters regarding the service of summons
upon defendants were sufficiently discussed in the Order of this Court
dated March 12, 2001.
Regarding the impleading of Abante Tonite as defendant, the RTC held,
viz:
"Abante Tonite" is a daily tabloid of general circulation. People all over
the country could buy a copy of "Abante Tonite" and read it, hence, it is
for public consumption. The persons who organized said publication
obviously derived profit from it. The information written on the said
newspaper will affect the person, natural as well as juridical, who was
stated or implicated in the news. All of these facts imply that "Abante
Tonite" falls within the provision of Art. 44 (2 or 3), New Civil Code.
Assuming arguendo that "Abante Tonite" is not registered with the
Securities and Exchange Commission, it is deemed a corporation by
estoppels considering that it possesses attributes of a juridical person,
otherwise it cannot be held liable for damages and injuries it may inflict
to other persons.
Undaunted, petitioners brought a petition for certiorari, prohibition,
mandamusin the CA to nullify the orders of the RTC dated March 12,
2001 and June 29, 2001.
Ruling of the CA
On March 8, 2002, the CA promulgated its questioned
decision,8 dismissing the petition for certiorari, prohibition, mandamus, to
wit:
We find petitioners’ argument without merit. The rule is that certiorari
will prosper only if there is a showing of grave abuse of discretion or an
act without or in excess of jurisdiction committed by the respondent
Judge. A judicious reading of the questioned orders of respondent Judge
would show that the same were not issued in a capricious or whimsical
exercise of judgment. There are factual bases and legal justification for
the assailed orders. From the Return, the sheriff certified that "effort to
serve the summons personally xxx were made, but the same were
ineffectual and unavailing xxx.
and upholding the trial court’s finding that there was a substantial
compliance with the rules that allowed the substituted service.
Furthermore, the CA ruled:
Anent the issue raised by petitioners that "Abante Tonite is neither a
natural or juridical person who may be a party in a civil case," and
therefore the case against it must be dismissed and/or dropped, is
untenable.
The respondent Judge, in denying petitioners’ motion for reconsideration,
held that:
xxxx
Abante Tonite’s newspapers are circulated nationwide, showing
ostensibly its being a corporate entity, thus the doctrine of corporation by
estoppel may appropriately apply.
An unincorporated association, which represents itself to be a
corporation, will be estopped from denying its corporate capacity in a suit
against it by a third person who relies in good faith on such
representation.
There being no grave abuse of discretion committed by the respondent
Judge in the exercise of his jurisdiction, the relief of prohibition is also
unavailable.
WHEREFORE, the instant petition is DENIED. The assailed Orders of
respondent Judge are AFFIRMED.
SO ORDERED.9
On January 13, 2003, the CA denied petitioners’ motion for
reconsideration.10
Issues
Petitioners hereby submit that:
1. THE COURT OF APPEALS COMMITTED AN ERROR
OF LAW IN HOLDING THAT THE TRIAL COURT
ACQUIRED JURISDICTION OVER HEREIN
PETITIONERS.
2. THE COURT OF APPEALS COMMITTED
REVERSIBLE ERROR BY SUSTAINING THE
INCLUSION OF ABANTE TONITE AS PARTY IN THE
INSTANT CASE.11
Ruling
The petition for review lacks merit.
Jurisdiction over the person, or jurisdiction in personam –the power of the
court to render a personal judgment or to subject the parties in a particular
action to the judgment and other rulings rendered in the action – is an
element of due process that is essential in all actions, civil as well as
criminal, except in actions in rem or quasi in rem. Jurisdiction over the
defendantin an action in rem or quasi in rem is not required, and the court
acquires jurisdiction over an actionas long as it acquires jurisdiction over
the resthat is thesubject matter of the action. The purpose of summons in
such action is not the acquisition of jurisdiction over the defendant but
mainly to satisfy the constitutional requirement of due process.12
The distinctions that need to be perceived between an action in personam,
on the one hand, and an action inrem or quasi in rem, on the other hand,
are aptly delineated in Domagas v. Jensen,13 thusly:
The settled rule is that the aim and object of an action determine its
character. Whether a proceeding is in rem, or in personam, or quasi in
rem for that matter, is determined by its nature and purpose, and by these
only. A proceeding in personam is a proceeding to enforce personal rights
and obligations brought against the person and is based on the jurisdiction
of 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 accordance with the mandate of the court. The purpose of
a proceeding in personam is to impose, through the judgment of a court,
 10
some responsibility or liability directly upon the person of the defendant.
Of this character are suits to compel a defendant to specifically perform
some act or actions to fasten a pecuniary liability on him. An action in
personam is said to be one which has for its object a judgment against the
person, as distinguished from a judgment against the property to
determine its state. It has been held that an action in personam is a
proceeding to enforce personal rights or obligations; such action 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. In
Combs v. Combs, the appellate court held that proceedings to enforce
personal rights and obligations and in which personal judgments are
rendered adjusting the rights and obligations between the affected parties
is in personam. Actions for recovery of real property are in personam.
On the other hand, a proceeding quasi in rem is one brought against
persons seeking to subject the property of such persons to the discharge of
the claims assailed. In an action quasi in rem, an individual is named as
defendant and the purpose of the proceeding is to subject his interests
therein to the obligation or loan burdening the property. Actions quasi in
rem deal 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 to the proceedings and not to ascertain or cut off the
rights or interests of all possible claimants. The judgments therein are
binding only upon the parties who joined in the action.
As a rule, Philippine courts cannot try any case against a defendant who
does not reside and is not found in the Philippines because of the
impossibility of acquiring jurisdiction over his person unless he
voluntarily appears in court; but when the case is an action in rem or
quasi in rem enumerated in Section 15, Rule 14 of the Rules of Court,
Philippine courts have jurisdiction to hear and decide the case because
they have jurisdiction over the res, and jurisdiction over the person of the
non-resident defendant is not essential. In the latter instance,
extraterritorial service of summons can be made upon the defendant, and
such extraterritorial service of summons is not for the purpose of vesting
the court with jurisdiction, but for the purpose of complying with the
requirements of fair play or due process, so that the defendant will be
informed of the pendency of the action against him and the possibility
that property in the Philippines belonging to him or in which he has an
interest may be subjected to a judgment in favor of the plaintiff, and he
can thereby take steps to protect his interest if he is so minded. On the
other hand, when the defendant in an action in personam does not reside
and is not found in the Philippines, our courts cannot try the case against
him because of the impossibility of acquiring jurisdiction over his person
unless he voluntarily appears in court.14
As the initiating party, the plaintiff in a civil action voluntarily submits
himself to the jurisdiction of the court by the act of filing the initiatory
pleading. As to the defendant, the court acquires jurisdiction over his
person either by the proper service of the summons, or by a voluntary
appearance in the action.15
Upon the filing of the complaint and the payment of the requisite legal
fees, the clerk of court forthwith issues the corresponding summons to the
defendant.16 The summons is directed to the defendant and signed by the
clerk of court under seal. It contains the name of the court and the names
of the parties to the action; a direction that the defendant answers within
the time fixed by the Rules of Court; and a notice that unless the
defendant so answers, the plaintiff will take judgment by default and may
be granted the relief applied for.17 To be attached to the original copy of
the summons and all copies thereof is a copy of the complaint (and its
attachments, if any) and the order, if any, for the appointment of a
guardian ad litem.18
The significance of the proper service of the summons on the defendant in
an action in personam cannot be overemphasized. The service of the
summons fulfills two fundamental objectives, namely: (a) to vest in the
court jurisdiction over the person of the defendant; and (b) to afford to the
defendant the opportunity to be heard on the claim brought against
him.19 As to the former, when jurisdiction in personam is not acquired in a
civil action through the proper service of the summons or upon a valid
waiver of such proper service, the ensuing trial and judgment are void.20 If
the defendant knowingly does an act inconsistent with the right to object
to the lack of personal jurisdiction as to him, like voluntarily appearing in
the action, he is deemed to have submitted himself to the jurisdiction of
the court.21 As to the latter, the essence of due process lies in the
reasonable opportunity to be heard and to submit any evidence the
defendant may have in support of his defense. With the proper service of
the summons being intended to afford to him the opportunity to be heard
on the claim against him, he may also waive the process.21 In other words,
compliance with the rules regarding the service of the summons is as
much an issue of due process as it is of jurisdiction.23
Under the Rules of Court, the service of the summons should firstly be
effected on the defendant himself whenever practicable. Such personal
service consists either in handing a copy of the summons to the defendant
in person, or, if the defendant refuses to receive and sign for it, in
tendering it to him.24 The rule on personal service is to be rigidly enforced
in order to ensure the realization of the two fundamental objectives earlier
mentioned. If, for justifiable reasons, the defendant cannot be served in
person within a reasonable time, the service of the summons may then be
effected either (a) by leaving a copy of the summons at his residence with
some person of suitable age and discretion then residing therein, or (b) by
leaving the copy at his office or regular place of business with some
competent person in charge thereof.25 The latter mode of service is known
as substituted service because the service of the summons on the
defendant is made through his substitute.
It is no longer debatable that the statutory requirements of substituted
service must be followed strictly, faithfully and fully, and any substituted
service other than that authorized by statute is considered
ineffective.26 This is because substituted service, being in derogation of
the usual method of service, is extraordinary in character and may be used
only as prescribed and in the circumstances authorized by statute.27 Only
when the defendant cannot be served personally within a reasonable time
may substituted service be resorted to. Hence, the impossibility of prompt
personal service should be shown by stating the efforts made to find the
defendant himself and the fact that such efforts failed, which statement
should be found in the proof of service or sheriff’s return.28 Nonetheless,
the requisite showing of the impossibility of prompt personal service as
basis for resorting to substituted service may be waived by the defendant
either expressly or impliedly.29
There is no question that Sheriff Medina twice attempted to serve the
summons upon each of petitioners in person at their office address, the
first in the morning of September 18, 2000 and the second in the
afternoon of the same date. Each attempt failed because Macasaet and
Quijano were "always out and not available" and the other petitioners
were "always roving outside and gathering news." After Medina learned
from those present in the office address on his second attempt that there
was no likelihood of any of petitioners going to the office during the
business hours of that or any other day, he concluded that further attempts
to serve them in person within a reasonable time would be futile. The
circumstances fully warranted his conclusion. He was not expected or
required as the serving officer to effect personal service by all means and
at all times, considering that he was expressly authorized to resort to
substituted service should he be unable to effect the personal service
within a reasonable time. In that regard, what was a reasonable time was
dependent on the circumstances obtaining. While we are strict in insisting
on personal service on the defendant, we do not cling to such strictness
should the circumstances already justify substituted service instead. It is
the spirit of the procedural rules, not their letter, that governs.30
In reality, petitioners’ insistence on personal service by the serving officer
was demonstrably superfluous. They had actually received the
summonses served through their substitutes, as borne out by their filing of
several pleadings in the RTC, including an answer with compulsory
counterclaim ad cautelam and a pre-trial brief ad cautelam. They had also
availed themselves of the modes of discovery available under the Rules of
Court. Such acts evinced their voluntary appearance in the action.
Nor can we sustain petitioners’ contention that Abante Tonite could not
be sued as a defendant due to its not being either a natural or a juridical
person. In rejecting their contention, the CA categorized Abante Tonite as
 11
a corporation by estoppel as the result of its having represented itself to
the reading public as a corporation despite its not being incorporated.
Thereby, the CA concluded that the RTC did not gravely abuse its
discretion in holding that the non-incorporation of Abante Tonite with the
Securities and Exchange Commission was of no consequence, for,
otherwise, whoever of the public who would suffer any damage from the
publication of articles in the pages of its tabloids would be left without
recourse. We cannot disagree with the CA, considering that the editorial
box of the daily tabloid disclosed that basis, nothing in the box indicated
that Monica Publishing Corporation had owned Abante Tonite.
WHEREFORE, the Court AFFIRMS the decision promulgated on March
8, 2002; and ORDERS petitioners to pay the costs of suit.
SO ORDERED.
G.R. No. 126477 September 11, 1998
FRENCH OIL MILL MACHINERY CO., INC., petitioner,  the government official designated by law to that effect, or (c) any of its
vs.
COURT OF APPEALS [CA], REGIONAL TRIAL COURT [RTC],
CEBU CITY, BR. 11, and LUDO & LUYM OLEOCHEMICAL
CO., respondents.
RESOLUTION
MARTINEZ, J.:
Private respondent filed a complaint for breach of contract with damages
against petitioner foreign corporation and the latter's alleged Philippine
agent Trans-World Trading Company. The complaint states in part that:
1.2 Defendant French Oil Mill Machinery
("FOMMCO") is a corporation with principal
office at, Piqua, Ohio, United States of America,
engaged in business in the Philippines through its
agent Trans-World Trading Company. FOMMCO
may be served with summons and other court
processes through its agent, Trans-World Trading
Company.
1.3 Defendant Trans-World Trading Company
("Trans-World") is the agent of FOMMCO in the
Philippines, with office at Don Pablo Building, 144
Amorsolo St., Makati, Metro Manila, where it may
be served with summons and other court
processes. 1
Summons was served on Trans-World which moved to dismiss the
complaint arguing that it is not petitioner's agent. Petitioner itself filed a
special appearance with motion to dismiss contending that the court had
no jurisdiction over its person due to improper service of summons. It
argued that (a) it is not doing business in the Philippines and (b) Trans-
World is not its agent, therefore the procedure in Sections 14 2 and 17 3,
Rule 14 should have been observed. The court a quo initially dismissed
the complaint for lack of jurisdiction over petitioner 4 but on private
respondent's motion for reconsideration, said court reversed the order of
dismissal and ruled that summons was properly served on petitioner
whom it found doing business in the Philippines and Trans-World as its
agent. Petitioner elevated the case to the Court of Appeals (CA) via
petition for certiorari and prohibition but to no avail. Not satisfied,
petitioner filed this petition under Rule 45 which was initially dismissed
for being filed late 5 but on petitioner's motion for reconsideration was
reinstated by the Court. 6
Petitioner contends that it is not doing business in the Philippines and that
Trans-World is not its agent, and thus, the summons served on the latter
has no effect on the former. The contention is not meritorious.
It is not enough to merely allege in the complaint that a defendant foreign
corporation is doing business. For purposes of the rule on summons, the
fact of doing business must first be "established by appropriate
allegations in the complaint" 7 and the court in determining such fact need
not go beyond the allegations therein. 8 In this case, the allegations that
petitioner entered into a contract with private respondent to supply and
install various machineries and equipments for the use of the latter's oil
mill factory 9 and that the first shipment of machineries from petitioner
was received by private respondent 10 are sufficient allegations that
petitioner is doing business for purposes of Section 14, Rule 14. In any
case, the determination that a foreign corporation is doing business is
merely tentative and only to enable the local court to acquire jurisdiction
over the person of the foreign corporation through service of summons. It
does not foreclose a subsequent finding to the contrary depending on the
evidence. 11
Having determined the issue of doing business, the Court will now
inquire on whether petitioner was validly served with summons. Under
the Rules of Court, if the defendant is a foreign corporation doing
business in the Philippines, summons may be served on (a) its resident
agent designated in accordance with law; (b) if there is no resident agent,
officer or agent within the Philippines. 12 Private respondent alleged in its
complaint that Trans-World is petitioner's agent, so that the service was
made on the latter. Such general allegation is insufficient to show the
agency relationship between petitioner and Trans-World. However,
although there is no requirement to first substantiate the allegation of
agency yet it is necessary that there must be specific allegations in the
complaint that establishes the connection between the principal foreign
corporation and its alleged agent with respect to the transaction in
question. Nowhere in the case of Signetics Corporation v. CA, 13 cited by
both parties, did the court state that if the "complaint alleges that
defendant has an agent in the Philippines, summons can validly be served
thereto even without prior evidence of the truth of such factual
allegation." It is only in the headnote of the reporter 14 where the quoted
statement appears. Certainly a portion of the decision was paraphrased to
convey that statement which is never meant nor mentioned in
theponencia and thus, was a misinterpretation of the scope of the
decision. The headnote or syllabi is not the work of the court, nor does it
state its decision. It is simply the work of the reporter, who gives his
understanding of the decision, and is prepared for the convenience of the
profession in the examination of the reports. 15 A headnote is not a part of
the court's decision.
For purposes of the rules on summons, the determination of principal-
agent relationship from the allegations in the complaint is only
preliminary and is not even conclusive as to liability. Nothing bars the
court from later making a different finding after the parties had
substantiated their respective allegations with respect to agency should
the same be disputed. As found by both courts below, petitioner treated
Trans-World as its Philippine agent in the assailed transaction. 16 Such
factual assessment is binding on this Court 17 and will not be disturbed as
no exceptional circumstances 18 nor cogent reasons 19 were shown to
justify its reversal. For it is well-settled that factual findings of the trial
court are respected on appeal when supported by substantial evidence on
record 20 and carry more weight when affirmed by the appellate
court, 21 absent any proof that significant facts or circumstances were
overlooked or disregarded which would have varied the outcome of the
case. 22
Finally, petitioner fears that it could no longer contest the jurisdiction of
the court once it files an answer instead of a motion to dismiss, as the
filing of the former amounts to voluntary appearance. 23 Suffice it to say
that the filing of an answer  per se should not be automatically treated as
voluntary appearance by the defendant for purposes of summons. It
should be noted that when the appearance of a defendant is precisely to
object to the jurisdiction of the court over his person, it cannot be
considered as appearance in court. 24 The foregoing, however, need not be
further discussed in this case as petitioner did not file any answer.
ACCORDINGLY, the petition is DENIED for lack of merit.
SO ORDERED.
G.R. No. 130974 August 16, 2006
 12
MA. IMELDA M. MANOTOC, Petitioner,
vs.
HONORABLE COURT OF APPEALS and AGAPITA TRAJANO
on behalf of the Estate of ARCHIMEDES TRAJANO, Respondents.
DECISION
VELASCO, JR., J.:
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. The
defendant must be properly apprised of a pending action against him and
assured of the opportunity to present his defenses to the suit. Proper
service of summons is used to protect one’s right to due process.
The Case
This Petition for Review on Certiorari 1 under Rule 45 presents the core
issue whether there was a valid substituted service of summons on
petitioner for the trial court to acquire jurisdiction. Petitioner Manotoc
claims the court a quo should have annulled the proceedings in the trial
court for want of jurisdiction due to irregular and ineffective service of
summons.
The Facts
Petitioner is the defendant in Civil Case No. 63337 entitled Agapita
Trajano, pro se, and on behalf of the Estate of Archimedes Trajano v.
Imelda ‘Imee’ R. Marcos-Manotoc 2 for Filing, Recognition and/or
Enforcement of Foreign Judgment. 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 3 on July 6, 1993 addressed to petitioner at Alexandra
Condominium Corporation or Alexandra Homes, E2 Room 104, at No. 29
Meralco Avenue, Pasig City.
On July 15, 1993, 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 through an
Order 5 dated October 13, 1993.
On October 19, 1993, 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.
During the hearing on the Motion to Dismiss, petitioner Manotoc
presented Carlos Gonzales, who testified that he saw defendant Manotoc
as a visitor in Alexandra Homes only two times. He also identified the
Certification of Renato A. de Leon, which stated that Unit E-2104 was
owned by Queens Park Realty, Inc.; and at the time the Certification was
issued, the unit was not being leased by anyone. Petitioner also presented
her Philippine passport and the Disembarkation/Embarkation
Card 7 issued by the Immigration Service of Singapore to show that she
was a resident of Singapore. She claimed that the person referred to in
plaintiff’s Exhibits "A" to "EEEE" as "Mrs. Manotoc" may not even be
her, but the mother of Tommy Manotoc, and granting that she was the
one referred to in said exhibits, only 27 out of 109 entries referred to Mrs.
Manotoc. Hence, the infrequent number of times she allegedly entered
Alexandra Homes did not at all establish plaintiff’s position that she was
a resident of said place.
On the other hand, Agapita Trajano, for plaintiffs’ estate, presented
Robert Swift, lead counsel for plaintiffs in the Estate of Ferdinand Marcos
Human Rights Litigation, who testified that he participated in the
deposition taking of Ferdinand R. Marcos, Jr.; and he confirmed that Mr.
Marcos, Jr. testified that petitioner’s residence was at the Alexandra
Apartment, Greenhills. 8 In addition, the entries 9 in the logbook of
Alexandra Homes from August 4, 1992 to August 2, 1993, listing the
name of petitioner Manotoc and the Sheriff’s Return, 10 were adduced in
evidence.
On October 11, 1994, 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 relied on the presumption that the
sheriff’s substituted service was made in the regular performance of
official duty, and such presumption stood in the absence of proof to the
contrary. 11
On December 21, 1994, the trial court discarded Manotoc’s plea for
reconsideration for lack of merit. 12
Undaunted, Manotoc filed a Petition for Certiorari and
Prohibition 13 before the Court of Appeals (CA) on January 20, 1995,
docketed as CA-G.R. SP No. 36214 seeking the annulment of the October
11, 1994 and December 21, 1994 Orders of Judge Aurelio C. Trampe.
Ruling of the Court of Appeals
On March 17, 1997, the 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. It ruled that the Disembarkation/Embarkation Card and the
Certification dated September 17, 1993 issued by Renato A. De Leon,
Assistant Property Administrator of Alexandra Homes, were hearsay, and
that said Certification did not refer to July 1993—the month when the
substituted service was effected.
In the same Decision, the CA also rejected petitioner’s Philippine
passport as proof of her residency in Singapore as it merely showed the
dates of her departure from and arrival in the Philippines without
presenting the boilerplate’s last two (2) inside pages where petitioner’s
residence was indicated. The CA considered the withholding of those
pages as suppression of evidence. Thus, according to the CA, the trial
court had acquired jurisdiction over petitioner as there was a valid
substituted service pursuant to Section 8, Rule 14 of the old Revised
Rules of Court.
On April 2, 1997, petitioner filed a Motion for Reconsideration 15 which
was denied by the CA in its Resolution 16dated October 8, 1997.
 13
Hence, petitioner has come before the Court for review on certiorari.
The Issues
Petitioner raises the following assignment of errors for the Court’s
consideration:
I. 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.
II. 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.
III. RESPONDENT COURT OF APPEALS COMMITTED [A]
SERIOUS ERROR IN CONCLUDING THAT THE RESIDENCE OF
THE HUSBAND IS ALSO THE RESIDENCE OF HIS WIFE
CONTRARY TO THE RULING IN THE BANK OF THE PHILIPPINE
ISLANDS VS. DE COSTER, G.R. NO. 23181, MARCH 16, 1925, 47
PHIL. 594.
IV. RESPONDENT COURT OF APPEALS COMMITTED [A]
SERIOUS ERROR IN FAILING TO APPLY THE RULE ON EXTRA-
TERRITORIAL SERVICE OF SUMMONS UNDER SECTIONS 17
AND 18, RULE 14 OF THE REVISED RULES OF COURT. 17
The assigned errors bring to the fore the crux of the disagreement—the
validity of the substituted service of summons for the trial court to acquire
jurisdiction over petitioner.
The Court’s Ruling
We GRANT the petition.
Acquisition of Jurisdiction
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." 18 In
an action strictly in personam, 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." 19 Hence, it must faithfully and strictly comply with
the prescribed requirements and circumstances authorized by the rules.
Indeed, "compliance with the rules regarding the service of summons is
as much important as the issue of due process as of jurisdiction." 20
Requirements for Substituted 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.
We can break down this section into the following requirements to effect
a valid substituted service:
(1) Impossibility of Prompt Personal Service
The party relying on substituted service or the sheriff must show that
defendant cannot be served promptly or there is impossibility of prompt
service. 22 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." 23 Under the
Rules, the service of summons has no set period. However, when the
court, clerk of court, or the plaintiff asks the sheriff to make the return of
the summons and the latter submits the return of summons, then the
validity of the summons lapses. The plaintiff may then ask for an alias
summons if the service of summons has failed. 24 What then is a
reasonable time for the sheriff to effect a personal service in order to
demonstrate impossibility of prompt service? To the plaintiff, "reasonable
time" means no more than seven (7) days since an expeditious processing
of a complaint is what a plaintiff wants. To the sheriff, "reasonable time"
means 15 to 30 days because at the end of the month, it is a practice for
the branch clerk of court to require the sheriff to submit a return of the
summons assigned to the sheriff for service. The Sheriff’s Return
provides data to the Clerk of Court, which the clerk uses in the Monthly
Report of Cases to be submitted to the Office of the Court Administrator
within the first ten (10) days of the succeeding month. Thus, one month
from the issuance of summons can be considered "reasonable time" with
regard to personal service on the defendant.
Sheriffs are asked to discharge their duties on the service of summons
with due care, utmost diligence, and reasonable promptness and speed so
as not to prejudice the expeditious dispensation of justice. Thus, they are
enjoined to try their best efforts to accomplish personal service on
defendant. On the other hand, since the defendant is expected to try to
avoid and evade service of summons, the sheriff must be resourceful,
persevering, canny, and diligent in serving the process on the defendant.
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.
(2) Specific Details in the Return
 14

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. The date and time of the attempts
on personal service, the inquiries made to locate the defendant, the
name/s of the occupants of the alleged residence or house of defendant
and all other acts done, though futile, to serve the summons on defendant
must be specified in the Return to justify substituted service. The form on
Sheriff’s Return of Summons on Substituted Service prescribed in the
Handbook for Sheriffs published by the Philippine Judicial Academy
requires a narration of the efforts made to find the defendant personally
and the fact of failure. 26 Supreme Court Administrative Circular No. 5
dated November 9, 1989 requires that "impossibility of prompt service
should be shown by stating the efforts made to find the defendant
personally and the failure of such efforts," which should be made in the
proof of service.
(3) A Person of Suitable Age and Discretion
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. "Discretion" is defined as "the ability to make decisions which
represent a responsible choice and for which an understanding of what is
lawful, right or wise may be presupposed". 28 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. Thus, 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.
The sheriff must therefore determine if the person found in the alleged
dwelling or residence of defendant is of legal age, what the recipient’s
relationship with the defendant is, and whether said person comprehends
the significance of the receipt of the summons and his duty to
immediately deliver it to the defendant or at least notify the defendant of
said receipt of summons. These matters must be clearly and specifically
described in the Return of Summons.
acknowledged the receipt thereof of said processes but he refused to sign
(emphases supplied).
WHEREFORE, said summons is hereby returned to this Honorable Court
of origin, duly served for its record and information.
Pasig, Metro-Manila July 15, 1993. 29
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." Wanting in detailed
information, the Return deviates from the ruling—in Domagas v.
Jensen 30 and other related cases 31—that the pertinent facts and
circumstances on the efforts exerted to serve the summons personally
must be narrated in the Return. It cannot be determined how many times,
on what specific dates, and at what hours of the day the attempts were
made. Given the fact that the substituted service of summons may be
assailed, as in the present case, by a Motion to Dismiss, it is imperative
that the pertinent facts and circumstances surrounding the service of
summons be described with more particularity in the Return or Certificate
of Service.
Besides, apart from the allegation of petitioner’s address in the
Complaint, it has not been shown that respondent Trajano or Sheriff
Cañelas, who served such summons, exerted extraordinary efforts to
locate petitioner. Certainly, the second paragraph of the Complaint only
states that respondents were "informed, and so [they] allege" about the
address and whereabouts of petitioner. Before resorting to substituted
service, a plaintiff must demonstrate an effort in good faith to locate the
defendant through more direct means. 32 More so, in the case in hand,
when the alleged petitioner’s residence or house is doubtful or has not
been clearly ascertained, it would have been better for personal service to
have been pursued persistently.

(4) A Competent Person in Charge In the case Umandap v. Sabio, Jr., 33 it may be true that the Court held that
a Sheriff’s Return, which states that "despite efforts exerted to serve said
process personally upon the defendant on several occasions the same
If the substituted service will be done at defendant’s office or regular
proved futile," conforms to the requirements of valid substituted service.
place of business, then it should be served on a competent person in
However, in view of the numerous claims of irregularities in substituted
charge of the place. Thus, the person on whom the substituted service will
service which have spawned the filing of a great number of unnecessary
be made must be the one managing the office or business of defendant,
special civil actions of certiorari and appeals to higher courts, resulting in
such as the president or manager; and such individual must have
prolonged litigation and wasteful legal expenses, the Court rules in the
sufficient knowledge to understand the obligation of the defendant in the
case at bar that the narration of the efforts made to find the defendant and
summons, its importance, and the prejudicial effects arising from inaction
the fact of failure written in broad and imprecise words will not suffice.
on the summons. Again, these details must be contained in the Return.
The facts and circumstances should be stated with more particularity and
detail on the number of attempts made at personal service, dates and
Invalid Substituted Service in the Case at Bar 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
Let us examine the full text of the Sheriff’s Return, which reads:
were made to personally serve summons on defendant, and those resulted
in failure, would prove impossibility of prompt personal service.
THIS IS TO CERTIFY that on many occasions several attempts were
made to serve the summons with complaint and annexes issued by this
Moreover, to allow sheriffs to describe the facts and circumstances in
Honorable Court in the above entitled case, personally upon the defendant
inexact terms would encourage routine performance of their precise
IMELDA ‘IMEE’ MARCOS-MANOTOC located at Alexandra
duties relating to substituted service—for it would be quite easy to shroud
Condominium Corpration [sic] or Alexandra Homes E-2 Room 104 No.
or conceal carelessness or laxity in such broad terms. Lastly, considering
29 Merlaco [sic] Ave., Pasig, Metro-Manila at reasonable hours of the
that monies and properties worth millions may be lost by a defendant
day but to no avail for the reason that said defendant is usually out of her
because of an irregular or void substituted service, it is but only fair that
place and/or residence or premises. That on the 15th day of July, 1993,
the Sheriff’s Return should clearly and convincingly show the
substituted service of summons was resorted to in accordance with the
impracticability or hopelessness of personal service.
Rules of Court in the Philippines leaving copy of said summons with
complaint and annexes thru [sic] (Mr) Macky de la Cruz, caretaker of the
said defendant, according to (Ms) Lyn Jacinto, Receptionist and Granting that such a general description be considered adequate, there is
Telephone Operator of the said building, a person of suitable age and still a serious nonconformity from the requirement that the summons must
discretion, living with the said defendant at the given address who be left with a "person of suitable age and discretion" residing in
defendant’s house or residence. Thus, there are two (2) requirements
 15

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. It is doubtful if Mr. de la Cruz is residing with petitioner
Manotoc in the condominium unit considering that a married woman of
her stature in society would unlikely hire a male caretaker to reside in her
dwelling. With the petitioner’s allegation that Macky de la Cruz is not her
employee, servant, or representative, it is necessary to have additional
information in the Return of Summons. Besides, Mr. Macky de la Cruz’s
refusal to sign the Receipt for the summons is a strong indication that he
did not have the necessary "relation of confidence" with petitioner. To
protect petitioner’s right to due process by being accorded proper notice
of a case against her, the substituted service of summons must be shown
to clearly comply with the rules.
In the case of Venturanza v. Court of Appeals, 41 it was held that "x x x
the presumption of regularity in the performance of official functions by
the sheriff is not applicable in this case where it is patent that the sheriff’s
return is defective (emphasis supplied)." While the Sheriff’s Return in the
Venturanza case had no statement on the effort or attempt to personally
serve the summons, the Return of Sheriff Cañelas in the case at bar
merely described the efforts or attempts in general terms lacking in details
as required by the ruling in the case of Domagas v. Jensen and other
cases. It is as if Cañelas’ Return did not mention any effort to accomplish
personal service. Thus, the substituted service is void.
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

It has been stated and restated that substituted service of summons must
GRANTED and the assailed March 17, 1997 Decision and October 8,
faithfully and strictly comply with the prescribed requirements and in the
1997 Resolution of the Court of Appeals and the October 11, 1994 and
circumstances authorized by the rules. 34
December 21, 1994 Orders of the Regional Trial Court, National Capital
Judicial Region, Pasig City, Branch 163 are
Even American case law likewise stresses the principle of strict hereby REVERSEDand SET ASIDE.No costs.
compliance with statute or rule on substituted service, thus:
SO ORDERED.
The procedure prescribed by a statute or rule for substituted or
constructive service must be strictly pursued. 35There must be strict
compliance with the requirements of statutes authorizing substituted or
constructive service. 36

Where, by the local law, substituted or constructive service is in certain

situations authorized in the place of personal service when the latter is
inconvenient or impossible, a strict and literal compliance with the
provisions of the law must be shown in order to support the judgment
based on such substituted or constructive service. 37 Jurisdiction is not to
be assumed and exercised on the general ground that the subject matter of
the suit is within the power of the court. The inquiry must be as to
whether the requisites of the statute have been complied with, and such
compliance must appear on the record. 38 The fact that the defendant had
actual knowledge of attempted service does not render the service
effectual if in fact the process was not served in accordance with the
requirements of the statute.39

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).

Due to non-compliance with the prerequisites for valid substituted

service, the proceedings held before the trial court perforce must be
annulled.

The court a quo heavily relied on the presumption of regularity in the

performance of official duty. It reasons out that "[t]he certificate of
service by the proper officer is prima facie evidence of the facts set out
herein, and to overcome the presumption arising from said certificate, the
evidence must be clear and convincing." 40

The Court acknowledges that this ruling is still a valid doctrine. However,
for the presumption to apply, the Sheriff’s Return must show that serious
efforts or attempts were exerted to personally serve the summons and that
said efforts failed. These facts must be specifically narrated in the Return.
To reiterate, it must clearly show that the substituted service must be
made on a person of suitable age and discretion living in the dwelling or
residence of defendant. Otherwise, the Return is flawed and the
presumption cannot be availed of. As previously explained, the Return of
Sheriff Cañelas did not comply with the stringent requirements of Rule
14, Section 8 on substituted service.