February 2012 - Philippine Supreme Court Resolutions
Philippine Supreme Court Resolutions
[G.R. No. 190772 : February 01, 2012]
JULIE [JULIA] PEREZ-SILVA, REPRESENTED BY HER ATTORNEY-IN-FACT, RAQUEL N. PEREZ v. DOLORES MATA-PEDONG, JOINED BY HER HUSBAND, PRIMITIVO A. PEDONG.
G.R. No. 190772 (Julie [Julia] Perez-Silva, represented by her attorney-in-fact, Raquel N. Perez v. Dolores Mata-Pedong, joined by her husband, Primitivo A. Pedong). - Before us is a petition for review on certiorari[1] under Rule 45 of the Rules of Court with a prayer for the issuance of a writ of preliminary injunction, seeking to annul the Order[2] dated December 21, 2009 of the Regional Trial Court (RTC) of Olongapo City, Branch 75, denying the petitioner's 'motion to declare all proceedings null and void.'[3] Petitioner Julie Perez-Silva (Silva) alleges that the trial court never acquired jurisdiction over her person, as the defendant in the civil case on the ground of an improper service of summons. The trial court allowed substituted service to be made upon her, a Philippine resident who at the time was temporarily out of the country, thereby raising a pure question of law.
Considering the respondents' failure to file a comment on the petition, the Court resolved to dispense with their comment per Resolution[4] dated May 30, 2011.
The facts are as follows:
On December 3, 2007, the respondents filed a verified complaint[5] against the petitioner for Specific Performance with Damages before the RTC which was docketed as Civil Case No. 234-0-2007.
The respondents alleged that the petitioner executed on November 29, 2000 a real estate mortgage[6] over her share of Lot 2703, Ts-308 of the Olongapo Townsite with an area of 78 square meters, and the residential house erected thereon, as collateral for the loan she obtained from the respondent in the amount of Fifty Thousand Pesos (P50,000.00), subject to ten percent (10%) monthly interest, payable within six months. Title of the property was still in the name of Ricardo Perez, Sr. and Inocencia N. Perez but the petitioner claimed that the subject property was donated to her by the Spouses Perez.
The petitioner failed to pay the mortgage debt when it became due after six months. Several verbal and written demands were made but remained unheeded.
On September 5, 2002, the petitioner and her spouse voluntarily agreed to settle their loan obligation by executing a deed of absolute sale in favor of the respondents over the subject property.
However, instead of causing the delivery of the subject property to the respondents, the petitioner requested that she and her family be allowed to continue in their possession of the subject property for five more months in order to give them enough time to find a new place to stay. The respondents agreed.
At the end of the five-month period, the respondents advised the petitioner to peacefully vacate the premises, but the latter refused. The respondents made attempts to talk to the petitioner but to no avail.
On, or around September 5, 2005, the respondents learned that the petitioner was able to secure title over the subject portion of Lot 2703 in her name. Considering the continued refusal of the petitioner to voluntarily surrender the house and lot despite demand, the respondents were constrained to institute the civil action before the RTC, docketed as Civil Case No. 234-0-2007.
On January 8, 2008, the RTC issued summons addressed to the petitioner and her husband. Per Sheriffs Return[7] dated January 10, 2008, service of summons upon the persons of the defendants was unavailing due to the following reasons: petitioner Silva had been in the United States of America since December 2006, and her return to the country was uncertain, while her husband, defendant Eduardo Silva was already deceased.
On the basis of the said sheriff's return, the counsel for the respondents filed on February 20, 2008 a 'Motion for Issuance to Defendant Julie Perez-Silva of Summons by Publication."[8] The said motion was denied. The respondents filed a Motion for Reconsideration[9] which was also denied per Order[10] dated May 8, 2008. The trial court ratiocinated thus:
"Although Section 16 allows service of summons on a Philippine resident temporarily out of the country under the condition set forth in Section 15, the present action which is purely in personam is not among those enumerated in Section 15 authorizing extra-territorial service of summons."[11]
Consequently, the respondents filed a 'motion to direct process server to serve summons by substituted service.'[12] On July 4, 2008, the trial court issued an order[13] directing its sheriff to serve summons to the petitioner through substituted service, pursuant to Section 7, Rule 14 of the Rules of Court.
On July 11, 2008, the Court sheriff filed his return[14] certifying that on July 11, 2008, he � "served the summons, together with a copy of the Complaint and its annexes, personally upon defendants Julie (Julia) Perez-Silva and Eduardo Silva, thru their nephew Richard Perez, a person of suitable age and discretion residing at the given address, who refused to sign and acknowledge receipt. However, the undersigned tendered a copy to him."
The petitioner, together with her husband was declared in default, and the respondents were allowed to present evidence ex-parte. On November 4, 2008, the trial court rendered its Judgment,[15] finding for the respondents.
On October 28, 2009, the petitioner filed a 'Special Appearance with Opposition to Motions for Execution and for Issuance of Writ of Execution and to Declare All Proceedings Null and Void,'[16] which was subsequently denied after the respective parties submitted their reply and rejoinder, per court Order dated December 21, 2009.
On January 15, 2010, a writ of execution was issued by the trial court for the implementation of its decision therein. The court sheriff proceeded with its implementation, and served upon the attorney-in-fact of the petitioner a Notice to Vacate[17] the premises.
Hence, this petition, with a prayer for the issuance of a writ of preliminary injunction.
The lone issue is:
WHETHER OR NOT THE COURT A QUO COMMITTED A REVERSIBLE ERROR OF LAW WHEN IT ORDERED THE SERVICE OF SUMMONS TO THE DEFENDANT THROUGH SUBSTITUTED SERVICE, PURSUANT TO SECTION 7, RULE 14 OF THE RULES OF COURT, AND NOT BY PUBLICATION AS PRAYED FOR BY THE PLAINTIFFS-RESPONDENTS THEMSELVES, AND IN PERSISTING IN SAID ERROR DESPITE THE DEFENDANTS-PETITIONER�S MOTION TO DECLARE ALL PROCEEDINGS NULL AND VOID, SINCE IT NEVER ACQUIRED JURISDICTION OVER THE DEFENDANT-PETITIONER DUE TO THE IMPROPER SERVICE OF SUMMON.[18]
The petitioner posits that the trial court never acquired jurisdiction over her person so as to empower the said court to proceed with the trial of the case, since substituted service of summons is improper and contrary to Section 16, Rule 14 of the 1957 Revised Rules of Court.
Section 16, Rule 14 provides:
Sec. 16. Residents temporarily out of the Philippines.
When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section.
The preceding section, Section 15 provides:
Sec. 15. Extraterritorial service.
When the defendant does not reside and is not found in the Philippines, and the action 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 contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by 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;
From the foregoing, Section 16, Rule 14 speaks of ANY ACTION which is commenced against a defendant who ordinarily resides in the Philippines but who is temporarily out of the country. Therefore, whether the action is in personam, or quasi in rem, service of summons may, by leave of court, be effected only by personal service or by publication;
Since there was no proper and valid service of summons, the trial court did not acquire jurisdiction over the person of the petitioner; hence, all of the proceedings taken by the said court in Civil Case No. 234-0-2007 are null and void.
The petitioner avers that she is entitled to the reliefs demanded, and the whole or part of such relief consists in the immediate restrain of the lower court and its sheriff from enforcing the judgment dated November 4, 2008 in order to avoid grave and irreparable damage and injury to the petitioner.
The Court resolves to deny the instant petition.
While this Court agrees with the petitioner's contention that Section 16, Rule 14 of the Revised Rules of Court applies to any case, and that service of summons by means of publication is a proper mode of obtaining jurisdiction over the person of a defendant who is a Philippine resident but temporarily out of the country, it is however incorrect to maintain that summons cannot be properly served upon such defendant by means of substituted service.
As early as 1968, this Court has made it clear in Montalban v. Maximo[19] that:
[T]he defendant may be charged by a judgment in personam as a result of legal proceedings upon a method of service which is not personal, "which in fact may not become actual notice to him," and which may be accomplished in his lawful absence from the country. x x x x
A man temporarily absent from this country leaves a definite place of residence, a dwelling where he lives, a local base, so to speak, to which any inquiry about him may be directed and where he is bound to return. Where one temporarily absents himself, he leaves his affairs in the hands of one who may be reasonably expected to act in his place and stead; to do all that is necessary to protect his interests; and to communicate with him from time to time any incident of importance that may affect him or his business or his affairs. x x x
x x x
In the light of the foregoing, we find ourselves unwilling to concede that substituted service provided in Section 8 [now Section 7] may be down-graded as an ineffective means to bring temporarily absent residents within the reach of our courts.[20] (emphasis supplied and citations omitted)
The Court finds no reversible error in the order of the trial court appealed from. Accordingly, there is no cogent reason to declare all proceedings taken by the trial court as null and void.cralaw
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.
Very truly yours,
(Sgd.) TERESITA AQUINO TUAZON
Deputy Division Clerk of Court
Endnotes:
[1] Rollo, pp. 7-16.[2] Id. at 17-18.
[3] Id. at 51-53.
[4] Id. at 77.
[5] Id. at 20-25.
[6] Id. at 30.
[7] Id. at 35.
[8] Id. at 36-37.
[9] Id. at 38-40.
[10] Id. at 41.
[11] Id. at 41.
[12] Id. at 42-43.
[13] Id. at 44.
[14] Id. at 45.
[15] Id. at 46-49.
[16] Id. at 51-53.
[17] Id. at 61.
[18] Id. at 11.
[19] 131 Phil 154 (1968).
[20] Id. at 164-165.
