In general, substituted service can be availed of only after a clear showing that personal service of summons was not legally possible. Also, service by publication is applicable in actions in rem and quasi in rem, but not in personal suits such as the present one which is for specific performance.
Before the Court is a Petition for Review on Certiorari
1 under Rule 45 of the Rules of Court, assailing the February 26, 2001 Decision 2 of the Court of Appeals (CA) in CA-GR SP No. 60888. The dispositive portion of the CA Decision is worded as follows:chanrob1es virtua1 1aw 1ibrary
"WHEREFORE, on the basis of what prescinds, the assailed resolution and orders issued by the public respondent are perforce ANNULLED and SET ASIDE. This pronouncement is nonetheless rendered without prejudice to the refiling of the same case by the private respondents with the court a quo." 3
The factual antecedents of the case are narrated by the CA in this wise:jgc:chanrobles.com.ph
"On July 2, 1998, [petitioners] Patrick and Rafaela Jose lodged a complaint for specific performance against [respondents] Helen and Romeo Boyon to compel them to facilitate the transfer of ownership of a parcel of land subject of a controverted sale. The action was lodged before the Regional Trial Court of Muntinlupa which is presided by herein public respondent Judge N.C. Perello. On July 21, 1998, respondent judge, through the acting Branch Clerk of Court of Branch 276 of the RTC of Muntinlupa City, issued summons to the [respondents]. As per return of the summons, substituted service was resorted to by the process server allegedly because efforts to serve the summons personally to the [respondents] failed. On December 9, 1998, [petitioners] filed before the trial court an Ex-parte Motion for Leave of Court to Effect Summons by Publication. On December 28, 1998, public respondent issued an Order granting the Ex-parte Motion for Leave of Court to Effect Summons by Publication. On July 30, 1999, the respondent judge, sans a written motion, issued an Order declaring herein [respondent] in default for failure to file their respective answers. As a consequence of the declaration of default, [petitioners] were allowed to submit their evidence ex-parte. Ultimately, on December 7, 1999, respondent judge issued the assailed resolution, the dispositive portion of which reads as follows:chanrob1es virtual 1aw library
‘. . . Therefore, Spouses Helen and Romeo Boyon are directed to execute the necessary document with the effect of withdrawing the Affidavit of Loss they filed and annotated with the Register of Deeds of Makati City so that title ‘to the parcel of land subject of the Deed of Absolute Sale in favor of the Plaintiffs be transferred in their names. Thereafter the Register of Deeds of Makati City or Muntinlupa City may cancel Transfer of Certificate of Title No. 149635 of the Defendants and issue another to Plaintiff under the deed of sale, clean and free of any reported encumbrance.
‘Defendants are also directed to pay Plaintiffs actual expenses in the amount of P20,000 and attorney’s fees of P20,000 including costs of this suit.’
x x x
"On January 5, 2000, [respondent] Helen Boyon, who was then residing in the United States of America, was surprised to learn from her sister Elizabeth Boyon, of the resolution issued by the respondent court. On January 18, 2000, [respondents] filed an Ad Cautelam motion questioning, among others, the validity of the service of summons effected by the court a quo. On March 17, 2000, the public respondent issued an Order denying the said motion on the basis of the defaulted [respondents’] supposed loss of standing in court. On March 29, 2000, the [respondents] once again raised the issue of jurisdiction of the trial court via a motion for reconsideration. On June 22, 2000, however, an Order was issued by the public respondent denying the said motion. The [petitioners] moved for the execution of the controverted judgment which the respondent judge ultimately granted." 4
Thereafter, respondents filed before the CA a Petition for certiorari
under Rule 65 of the Revised Rules of Civil Procedure, questioning the jurisdiction of the regional trial court (RTC).
Ruling of the Court of Appeals
The CA held that the trial court had no authority to issue the questioned Resolution and Orders. According to the appellate court, the RTC never acquired jurisdiction over respondents because of the invalid service of summons upon them. First, the sheriff failed to comply with the requirements of substituted service of summons, because he did not specify in the Return of Summons the prior efforts he had made to locate them and the impossibility of promptly serving the summons upon them by personal service. Second, the subsequent summons by publication was equally infirm, because the Complaint was a suit for specific performance and therefore an action in personam. Consequently, the Resolution and the Orders were null and void, since the RTC had never acquired jurisdiction over respondents.
Hence, this Petition. 5
In their Memorandum, petitioners raise the following issues for our consideration:chanrob1es virtua1 1aw 1ibrary
"A. The Honorable Court of Appeals erred in not holding that the assailed Resolution dated December 7, 1999 was already final and executory
"B. The Honorable Court of Appeals erred in giving due course to the Petition for Certiorari
of private respondents despite the pendency of an appeal earlier filed
"C. The Honorable Court erred in not holding that the Petition for Certiorari
was time barred
"D. The Honorable Court of Appeals erred in holding that the proceedings in the lower court are null and void due to invalid and defective service of summons and the court did not acquire jurisdiction over the person of the respondents." 6
In sum, the main issue revolves around the validity of the service of summons on respondents.
The Court’s Ruling
The Petition has no merit.
Main Issue:chanrob1es virtual 1aw library
Validity of the Service of Summons
Petitioners aver that the CA erred in ruling that the service of summons on respondents was invalid. They submit that although the case filed before the trial court was denominated as an action for specific performance, it was actually an action quasi in rem, because it involved a piece of real property located in the Philippines. They further argue that in actions quasi in rem involving ownership of a parcel of land, it is sufficient that the trial court acquire jurisdiction over the res. Thus, the summons by publication, which they effected subsequent to the substituted service of summons, was allegedly sufficient.
On the other hand, respondents maintain that the proceedings in the trial court were null and void because of the invalid and defective service of summons. According to them, the Return of Summons issued by the process server of the RTC failed to state that he had exerted earnest efforts to effect the service of summons. He allegedly tried to serve it personally on them on July 22, 1998 at No. 32 Ariza Drive, Camella Homes, Alabang. He, however, resorted to substituted service on that same day, supposedly because he could not find respondents in the above address. They further allege that the person to whom he gave the summons was not even a resident of that address.
Respondents contend that when summons is served by substituted service, the return must show that it was impossible to serve the summons personally, and that efforts had been exerted toward that end. They add that noncompliance with the rule on substituted service renders invalid all proceedings relative thereto.
As to the summons by publication subsequently effected by petitioners, respondents argue that the case filed before the trial court was an action for specific performance and, therefore, an action in personam. As such, the summons by publication was insufficient to enable the trial court to acquire jurisdiction over the persons of respondents.
Respondents conclude that even granting that the service of summons by publication was permissible under the circumstances, it would still be defective and invalid because of the failure of petitioners to observe the requirements of law, like an Affidavit attesting that the latter deposited in the post office a copy of the summons and of the order of publication, paid the postage, and sent the documents by registered mail to the former’s last known address.
We agree with respondents. In general, trial courts acquire jurisdiction over the person of the defendant by the service of summons. Where the action is in personam and the defendant is in the Philippines, such service may be done by personal or substituted service, following the procedures laid out in Sections 6 and 7 of Rule 14 of the Revised Rules of Court, which read:jgc:chanrobles.com.ph
"Section 6. Service in person on defendant. — Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.
"Section 7. Substituted service. — If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof."cralaw virtua1aw library
As can be gleaned from the above-quoted Sections, personal service of summons is preferred to substituted service. Only if the former cannot be made promptly can the process server resort to the latter. Moreover, the proof of service of summons must (a) indicate the impossibility of service of summons within a reasonably 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. 7 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. 8
Defective Personal Service of Summons
In the instant case, it appears that the process server hastily and capriciously resorted to substituted service of summons without actually exerting any genuine effort to locate respondents. A review of the records 9 reveals that the only effort he exerted was to go to No. 32 Ariza Drive, Camella Homes, Alabang on July 22, 1998, to try to serve the summons personally on respondents. While the Return of Summons states that efforts to do so were ineffectual and unavailing because Helen Boyon was in the United States and Romeo Boyon was in Bicol, it did not mention exactly what efforts — if any — were undertaken to find respondents. Furthermore, it did not specify where or from whom the process server obtained the information on their whereabouts. The pertinent portion of the Return of Summons is reproduced as follows:jgc:chanrobles.com.ph
"That efforts to serve the said Summons personally upon defendants Sps. Helen and Romeo Boyon were made but the same were ineffectual and unavailing for the reason that defendant Helen Boyon is somewhere in the United States of America and defendant Romeo Boyon is in Bicol thus substituted service was made in accordance with Section 7, Rule 14, of the Revised Rules of Court." 10
The Return of Summons shows that no effort was actually exerted and no positive step taken by either the process server or petitioners to locate and serve the summons personally on respondents. At best, the Return merely states the alleged whereabouts of respondents without indicating that such information was verified from a person who had knowledge thereof. Certainly, without specifying the details of the attendant circumstances or of the efforts exerted to serve the summons, a general statement that such efforts were made will not suffice for purposes of complying with the rules of substituted service of summons.
The necessity of stating in the process server’s Return or Proof of Service the material facts and circumstances sustaining the validity of substituted service was explained by this Court in Hamilton v. Levy, 11 from which we quote:jgc:chanrobles.com.ph
". . . The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service or Officer’s Return; otherwise, any substituted service made in lieu of personal service cannot be upheld. This is necessary because substituted service is in derogation of the usual method of service. It is a method extraordinary in character and hence may be used only as prescribed and in the circumstances authorized by statute. Here, no such explanation was made. Failure to faithfully, strictly, and fully comply with the requirements of substituted service renders said service ineffective." 12
Moreover, the requirements of substituted service of summons and the effect of noncompliance with the subsequent proceedings therefor were discussed in Madrigal v. Court of Appeals 13 as follows:jgc:chanrobles.com.ph
"In a long line of cases, this Court held that the impossibility of personal service justifying availment of substituted service should be explained in the proof of service; why efforts exerted towards personal service failed. The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service or Officer’s Return; otherwise, the substituted service cannot be upheld. It bears stressing that since service of summons, especially for actions in personam, is essential for the acquisition of jurisdiction over the person of the defendant, the resort to a substituted service must be duly justified. Failure to do so would invalidate all subsequent proceedings on jurisdictional grounds." 14
Summons by Publication Improper
It must be noted that extraterritorial service of summons or summons by publication applies only when the action is in rem or quasi in rem. The first is an action against the thing itself instead of against the defendant’s person; in the latter, an individual is named as defendant, and the purpose is to subject that individual’s interest in a piece of property to the obligation or loan burdening it. 15
In the instant case, what was filed before the trial court was an action for specific performance directed against respondents. While the suit incidentally involved a piece of land, the ownership or possession thereof was not put in issue, since they did not assert any interest or right over it. Moreover, this Court has consistently declared that an action for specific performance is an action in personam. 16
Having failed to serve the summons on respondents properly, the RTC did not validly acquire jurisdiction over their persons. Consequently, due process demands that all the proceedings conducted subsequent thereto should be deemed null and void. 17
WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED. Costs against petitioners.
SO ORDERED.chanrob1es virtua1 1aw 1ibrary
Puno, Sandoval-Gutierrez, Corona and Carpio Morales, JJ.
1. Rollo, pp. 10–30.
2. Id., pp. 33–40. Penned by Justice Bienvenido L. Reyes, with the concurrence of Justices Marina L. Buzon (acting Division chair) and Eriberto U. Rosario Jr.
3. CA Decision, p. 7; rollo, p. 39.
4. Id., pp. 2–3 & 34–35.
5. The case was deemed submitted for decision on February 15, 2002, upon receipt by this Court of petitioners’ Memorandum signed by Atty. Lucia V. Oliveros. Respondents’ Memorandum, signed by Atty. Arnold H. Labay, was received by this Court on February 1, 2002.
6. Petitioners’ Memorandum, p. 10; rollo, p. 156. Original in upper case.
7. Oaminal v. Castillo, GR No. 152776, October 8, 2003; Umandap v. Sabio Jr., 339 SCRA 243, August 29, 2000; Laus v. CA, 219 SCRA 688, March 8, 1993.
8. Miranda v. Court of Appeals, 326 SCRA 278, February 23, 2000.
9. CA rollo, p. 62.
11. 344 SCRA 821, November 15, 2000.
12. Id., p. 829, per Ynares-Santiago, J .
13. 319 SCRA 331, November 26, 1999.
14. Id., p. 336, per Purisima, J .
15. Banco do Brasil v. Court of Appeals, 333 SCRA 545, June 16, 2000.
16. Cabutihan v. LandCenter Construction and Development Corporation, GR No. 146594, June 10, 2002; Ruiz v. Court of Appeals, 303 SCRA 637, February 25, 1999; Islamic Directorate of the Phils. v. Court of Appeals, 272 SCRA 454, May 14, 1997.