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.
Facts:
In 1998, Sps. Jose lodged a complaint for specific performance in RTC Muntinlupa against Sps. Helen and Romeo Boyon to compel them to facilitate the transfer of ownership of a parcel of land subject of a controverted sale. The RTC issued a summons to respondents. The process server went to the residence of Sps. Boyon in Alabang on July 22, 1998 t o try to serve the summons personally. However, he found out that Helen was in the United States and Romeo was in Bicol. Hence, the process server explained in the Return of Summons that substituted service was resorted to because efforts to serve personally failed.
Meanwhile, Sps. Jose filed before the RTC an ex parte motion for leave of court to effect summons by publication. The court granted the motion. Sps. Boyon were declared in default and Sps. Jose was allowed to present their evidence ex parte. On December 7, 1999, the RTC issued a Resolution in favor of Sps. Jose.
Helen Boyon, who was then in United Sates, was surprised to learn from her sister of the resolution issued by the court. Sps. Boyon filed an Ad Cautelam motion questioning, among others, the validity of the service of summons effected by the court a quo. The RTC denied the said motion on the basis of the defaulted respondent supposed loss of standing in court. Their motion for reconsideration was likewise denied.
Sps. Boyon appealed to the Court of Appeals which ruled that the RTC had no authority to issue the questioned resolution and orders.
Issue:
Whether or not summons summons were validly served on Sps. Boyon.
Held:
No.
Defective Personal Summons
In general, 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:
“Sec. 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.
“Sec. 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.”
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 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.
A review of the records 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 (Sps. Boyon). 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 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.
Summons by publication improper
The extraterritorial service of summons or summons by publication applies only when the action is in rem or quasi in rem. That is, the action against the thing itself instead of against the defendant’s person if the action is in rem or an individual is named as defendant and the purpose is to subject the individual’s interest in a piece of property to the obligation or loan burdening it if quasi in rem. 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. Moreover, court has consistently declared that an action for specific performance is an action in personam. Having failed to serve the summons on Sps. Boyon 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. (Sps. Patrick Jose & Rafaela Jose vs. Sps. Helen Boyon & Romeo Boyon, G.R. No. 147369. October 23, 2003)
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