Jose vs. Boyon

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 to 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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Robinson vs. Miralles

The statutory requirements of substituted service must be followed strictly, faithfully, and fully and any substituted service other than that authorized by the Rules is considered ineffective. However, we frown upon an overly strict application of the Rules. It is the spirit, rather than the letter of the procedural rules, that governs.

Facts:

On 2000, Celita Miralles filed with RTC Paranaque City a complaint for sum of money against Remelita Robinson. The sheriff went to effect the summons. However, the security guard, assigned at the gate of the subdivision where Robinson lived, refuse to let the sheriff go inside the subdivision. The security guard alleged that he was instructed by Robinson not to let anybody proceed to her house if she is not around. Despite the sheriff's explanation, the guard still refused admittance. The sheriff returned the second time to serve the summons. The same thing happened. So, the sheriff served the summons by leaving a copy thereof together with the copy of the complaint to the security guard by the name of A.H. Geroche, who refused to affix his signature on the original copy thereof, so he will be the one to give the same to the defendant. 

Eventually, Robinson was declared in default and judgment was rendered ordering her to pay US$20,054.00. A copy of the decision was sent to her by registered mail. On 2003, she filed a petition for relief from the judgment by default. She claimed that summons was improperly served upon her, thus, the trial court never acquired jurisdiction over her and that all its proceedings are void. She contends that the service of summons upon the subdivision security guard is not in compliance with Section 7, Rule 14 since he is not related to her or staying at her residence. Moreover, he is not duly authorized to receive summons for the residents of the village. Hence, the substituted service of summons is not valid and that the trial court never acquired jurisdiction over her person.

On 2004, the trial court issued a Resolution denying the petition for relief. The Motion for Reconsideration was likewise denied. Hence, the appeal. 

Issue:

Whether or not the summons was properly served.

Held.

Yes. We have ruled that the statutory requirements of substituted service must be followed strictly, faithfully, and fully and any substituted service other than that authorized by the Rules is considered ineffective. However, we frown upon an overly strict application of the Rules. It is the spirit, rather than the letter of the procedural rules, that governs. 

In his Return, Sheriff Potente declared that he was refused entry by the security guard in Alabang Hills twice. The latter informed him that petitioner prohibits him from allowing anybody to proceed to her residence whenever she is out. Obviously, it was impossible for the sheriff to effect personal or substituted service of summons upon petitioner. We note that she failed to controvert the sheriff’s declaration. Nor did she deny having received the summons through the security guard. Considering her strict instruction to the security guard, she must bear its consequences. Thus, we agree with the trial court that summons has been properly served upon petitioner and that it has acquired jurisdiction over her. (Remelita Robinson vs. Celita Miralles, G.R. No. 163584, December 12, 2006)

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Licaros vs. Licaros

Extraterritorial service of summons may be effected by any other means the judge may consider sufficient. Summons by publication and at the same time furnishing respondent with a copy of the Order as well as the corresponding Summons and a copy of the petition for declaration of nullity of marriage at her given address in the US thru the Department of Affairs held valid. In actions in rem and quasi in rem, jurisdiction over the person of the non-resident defendant is not essential provided that the court acquired jurisdiction over the res.

Facts:

Abelardo Licaros and Margarita Romualdez-Licaros were lawfully married in 1968. Sometime in 1979, they agreed to separate due to marital differences. Margarita together with her two children left for the United States. On August 6, 1990, Margarita obtained a divorce decree together with a distribution of properties between her and Abelardo in the Superior Court of California. 

On August 17, 1990, Abelardo and Margarita executed an "Agreement of Separation of Properties "followed-up by a petition filed on August 21, 1990 before the Regional Trial Court of Makati for the dissolution of the conjugal partnership of gains of the spouses and for the approval of the agreement of separation of their properties. On December 27, 1990, a decision was issued granting the petition and approving the separation of property agreement.

On June 24, 1991, Abelardo commenced a civil case for the declaration of nullity of his marriage with Margarita, based on psychological incapacity under the New Family Code. Summons were served by publication in a newspaper of general circulation as well as the corresponding summons and a copy of the petition at the given address in the United States through the Department of Foreign Affairs, all at the expense of Abelardo. Respondent was given sixty (60) days after publication to file a responsive pleading. On November 8, 1991, the marriage of Abelardo to Margarita was declared null and void.

April 28, 2000, Margarita received a letter dated November 18, 1991 from a certain Atty. Angelo Q. Valencia informing her that she no longer has the right to use the family name "Licaros" inasmuch as her marriage to Abelardo had already been judicially dissolved by the Regional Trial Court of Makati on November 8, 1991.

Issue:

Whether or not there was a valid service of summons.

Held:

Yes.

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 acquires jurisdiction over his person.

As a rule, when the defendant does not reside and is not found in the Philippines, Philippine courts cannot try any case against him because of the impossibility of acquiring jurisdiction over his person unless he voluntarily appears in court. But when the case is one of actions 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. In such instances, Philippine courts have jurisdiction over the res, and jurisdiction over the person of the non-resident defendant is not essential.

Actions in personam and actions in rem or quasi in rem differ in that actions in personam are directed against specific persons and seek personal judgments. On the other hand, actions in rem or quasi in rem are directed against the thing or property or status of a person and seek judgments with respect thereto as against the whole world.

At the time Abelardo filed the petition for nullity of the marriage in 1991, Margarita was residing in the United States. She left the Philippines in 1982 together with her two children. The trial court considered Margarita a non-resident defendant who is not found in the Philippines. Since the petition affects the personal status of the plaintiff, the trial court authorized extraterritorial service of summons under Section 15, Rule 14 of the Rules of Court. The term "personal status" includes family relations, particularly the relations between husband and wife.

Under Section 15 of Rule 14, a defendant who is a non-resident and is not found in the country may be served with summons by extraterritorial service in four instances: (1) when the action affects the personal status of the plaintiff; (2) when the action 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; (3) when the relief demanded consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; or (4) when the property of the defendant has been attached within the Philippines.

In these instances, extraterritorial service of summons may be effectedunder any of three modes: (1) by personal service out of the country, with leave of court; (2) by publication and sending a copy of the summons and order of the court by registered mail to the defendant’s last known address, also with leave of court; or (3) by any other means the judge may consider sufficient.

The trial court’s prescribed mode of extraterritorial service (service by publication and furnishing her with a copy of the Order, Summons and a copy of the petition at her address in California thru the Department of Foreign Affairs) does not fall under the first or second mode specified in Section 15 of Rule 14, but under the third mode. This refers to "any other means that the judge may consider sufficient."

We hold that delivery to the Department of Foreign Affairs was sufficient compliance with the rule. After all, this is exactly what the trial court required and considered as sufficient to effect service of summons under the third mode of extraterritorial service pursuant to Section 15 of Rule 14. (Margarita Romualdez-Licaros vs. Abelardo Licaros, G.R. No. 150656, April 29, 2003)

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