[G.R. No. 131724. June 21, 2000]

MILLENIUM INDUSTRIAL COML. CORP. vs. JACKSON TAN

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 21 2000.

G.R. No. 131724 (Millenium Industrial Commercial Corporation vs. Jackson Tan.)

For resolution is respondent Jackson Tan's Motion for Reconsideration of the Court's decision dated February 28, 2000 reversing the decision rendered by the Court of Appeals in CA-G.R. SP No. 39957 in his favor. As will be recalled, both the Court of Appeals and the trial court held that petitioner had been properly served with summons in the action for foreclosure filed by respondent. On this ground, petitioner's motion to dismiss based on the trial court's alleged lack of jurisdiction over the person of the petitioner was denied. The Court of Appeals ruled that there was substantial compliance with Rule 14, �11 of the Rules of Court on service of summons on a corporation.

Reversing the appellate court's decision, this court held that the rule on substantial compliance does not apply because petitioner's receipt of the summons from the person allegedly served had not been shown. Consequently, the trial court did not acquire jurisdiction over the person of petitioner and respondent's action for foreclosure should be dismissed.

In his motion for reconsideration, respondent accepts this Court's ruling that there was no valid service of summons upon petitioner. He, prays, however, that the decision be reconsidered insofar as it orders the dismissal of his complaint for foreclosure. In his motion, respondent alleges:

5. Respondent had already lost more than four (4) years from the time he filed his complaint for foreclosure of mortgage. Dismissing his complaint means refiling the same, payment of another filing fees and incurring expenses, thus, further aggravating his present predicament;

6. In the higher interest of justice, Respondent seeks the kind indulgence of the Hon. Court and moves for the reconsideration of that portion of its Decision dismissing his complaint and instead, to order the trial court to issue another or alias summons to Petitioner for it to answer his complaint for foreclosure of real estate mortgage. 1 Rollo , p. 199 .

Respondent's contention is bereft of merit.

Under Rule 16, �1(a) of the Rules of Civil Procedure, the lack of jurisdiction of a court over the person of the defendant is a ground for the dismissal of the complaint. Jurisdiction over the defendant is obtained either through valid service of summons upon him or through his voluntary submission to the jurisdiction of the court. In the present case, it is no longer disputed that service of summons upon petitioner was invalid. Nor is there any question that petitioner has not voluntarily submitted itself to the jurisdiction of the trial court. The grant of petitioner's motion to dismiss on the ground of lack of jurisdiction over its person is, therefore, proper. Indeed, Rule 16, �3 provides that in resolving a motion to dismiss, the court may do any of the following: (1) it may dismiss the action or claim; (2) it may deny the motion; or (3) it may order the amendment of the pleading. Respondent's plea that his complaint be not dismissed and instead alias summons be issued is contrary to these provisions of the Rules of Civil Procedure. Furthermore, under Rule 14, �5, alias summons may be issued only when the original summons is returned without being served on any or all of the defendants, or when said original summons has been lost. Here, the original summons had been served albeit improperly. Alias summons, may not, therefore, be validly issued.

Respondent's invocation of the higher interest of justice cannot justify what he seeks from this Court. The four years which respondent claims he has lost as a result of the delay in prosecuting his complaint for foreclosure cannot be brought back even if his plea were granted.

WHEREFORE, respondent's motion for reconsideration is DENIED for lack of merit.

Very truly yours,

(Sgd.) TOMASITA B. MAGAY-DRIS

Clerk of Court


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