Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 108538 January 22, 1996

LOURDES A. VALMONTE and ALFREDO D. VALMONTE, petitioners,

vs.
THE HONORABLE COURT OF APPEALS, THIRD DIVISION and ROSITA DIMALANTA, respondents.

DECISION

MENDOZA, J.:

Petitioner Lourdes A. Valmonte is a foreign resident. The question is whether in an action for partition filed
against her and her husband, who is also her attorney, summons intended for her may be served on her
husband, who has a law office in the Philippines. The Regional Trial Court of Manila, Branch 48, said no and
refused to declare Lourdes A. Valmonte in default, but the Court of Appeals said yes. Hence this petition for
review on certiorari.

The facts of the case are as follows:

Petitioners Lourdes A. Valmonte and Alfredo D. Valmonte are husband and wife. They are both residents of
90222 Carkeek Drive South Seattle, Washington, U.S.A. Petitioner Alfredo D. Valmonte, who is a member of
the Philippine bar, however, practices his profession in the Philippines, commuting for this purpose between his
residence in the state of Washington and Manila, where he holds office at S-304 Gedisco Centre, 1564 A.
Mabini Ermita, Manila.

On March 9, 1992, private respondent Rosita Dimalanta, who is the sister of petitioner Lourdes A. Valmonte,
filed a complaint for partition of real property and accounting of rentals against petitioners Lourdes A. Valmonte
and Alfredo D. Valmonte before the Regional Trial Court of Manila, Branch 48. The subject of the action is a
three-door apartment located in Paco, Manila.

In her Complaint, private respondent alleged:

The plaintiff is of legal age, a widow and is at present a resident of 14823 Conway Road, Chesterfield,
Missouri, U.S.A., while the defendants are spouses, of legal age and at present residents of 90222
Carkeek Drive, South Seattle, Washington, U.S.A., but, for purposes of this complaint may be served
with summons at Gedisco Center, Unit 304, 1564 A. Mabini St., Ermita, Manila where defendant
Alfredo D. Valmonte as defendant Lourdes Arreola Valmonte's spouse holds office and where he can
be found.

Apparently, the foregoing averments were made on the basis of a letter previously sent by petitioner Lourdes A.
Valmonte to private respondent's counsel in which, in regard to the partition of the property in question, she
referred private respondent's counsel to her husband as the party to whom all communications intended for her
should be sent. The letter reads:

July 4, 1991

Dear Atty. Balgos:

 This is in response to your letter, dated 20 June 1991, which I received on 3 July 1991. Please
address all communications to my lawyer, Atty. Alfredo D. Valmonte, whose address, telephone and
fax numbers appear below.

c/o Prime Marine

Gedisco Center, Unit 304
1564 A. Mabini, Ermita
Metro Manila
Telephone: 521-1736
Fax: 521-2095

Service of summons was then made upon petitioner Alfredo D. Valmonte, who at the time, was at his office in
Manila. Petitioner Alfredo D. Valmonte accepted the summons, insofar as he was concerned, but refused to
accept the summons for his wife, Lourdes A. Valmonte, on the ground that he was not authorized to accept the
process on her behalf. Accordingly the process server left without leaving a copy of the summons and
complaint for petitioner Lourdes A. Valmonte.

Petitioner Alfredo D. Valmonte thereafter filed his Answer with Counterclaim. Petitioner Lourdes A. Valmonte,
however, did not file her Answer. For this reason private respondent moved to declare her in default. Petitioner
Alfredo D. Valmonte entered a special appearance in behalf of his wife and opposed the private respondent's
motion.

In its Order dated July 3, 1992, the trial court, denied private respondent's motion to declare petitioner Lourdes
A. Valmonte in default. A motion for reconsideration was similarly denied on September 23, 1992. Whereupon,
private respondent filed a petition for certiorari, prohibition and mandamus with the Court of Appeals.

On December 29, 1992, the Court of Appeals rendered a decision granting the petition and declaring Lourdes
A. Valmonte in default. A copy of the appellate court's decision was received by petitioner Alfredo D. Valmonte
on January 15, 1993 at his Manila office and on January 21, 1993 in Seattle, Washington. Hence, this petition.

The issue at bar is whether in light of the facts set forth above, petitioner Lourdes A. Valmonte was validly
served with summons. In holding that she had been, the Court of Appeals stated:

[I]n her above-quoted reply, Mrs. Valmonte clearly and unequivocally directed the aforementioned counsel of
Dimalanta to address all communications (evidently referring to her controversy with her sister Mrs. Dimalanta
over the Paco property, now the subject of the instant case) to her lawyer who happens also to be her
husband. Such directive was made without any qualification just as was her choice/designation of her husband
Atty. Valmonte as her lawyer likewise made without any qualification or reservation. Any disclaimer therefore
on the part of Atty. Valmonte as to his being his wife's attorney (at least with regard to the dispute vis-a-vis (sic)
the Paco property) would appear to be feeble or trifling, if not incredible.

This view is bolstered by Atty. Valmonte's subsequent alleged special appearance made on behalf of his wife.
Whereas Mrs. Valmonte had manifestly authorized her husband to serve as her lawyer relative to her dispute
with her sister over the Paco property and to receive all communications regarding the same and subsequently
to appear on her behalf by way of a so-called special appearance, she would nonetheless now insist that the
same husband would nonetheless had absolutely no authority to receive summons on her behalf. In effect, she
is asserting that representation by her lawyer (who is also her husband) as far as the Paco property
controversy is concerned, should only be made by him when such representation would be favorable to her but
not otherwise. It would obviously be inequitable for this Court to allow private respondent Lourdes A. Valmonte
to hold that her husband has the authority to represent her when an advantage is to be obtained by her and to
deny such authority when it would turn out to be her disadvantage. If this be allowed, Our Rules of Court,
instead of being an instrument to promote justice would be made use of to thwart or frustrate the same.

xxx xxx xxx

 Turning to another point, it would not do for Us to overlook the fact that the disputed summons was
served not upon just an ordinary lawyer of private respondent Lourdes A. Valmonte, but upon her
lawyer husband. But that is not all, the same lawyer/husband happens to be also her co-defendant in
the instant case which involves real property which, according to her lawyer/husband/co-defendant,
belongs to the conjugal partnership of the defendants (the spouses Valmonte). It is highly
inconceivable and certainly it would be contrary to human nature for the lawyer/husband/co-defendant
to keep to himself the fact that they (the spouses Valmonte) had been sued with regard to a property
which, he claims to be conjugal. Parenthetically, there is nothing in the records of the case before Us
regarding any manifestation by private respondent Lourdes A. Valmonte about her lack of knowledge
about the case instituted against her and her lawyer/husband/co-defendant by her sister Rosita. . . .

PREMISES CONSIDERED, the instant petition for certiorari, prohibition and mandamus is given due
course. This Court hereby Resolves to nullify the orders of the court a quo dated July 3, 1992 and
September 23, 1992 and further declares private respondent Lourdes Arreola Valmonte as having
been properly served with summons.

Petitioners assail the aforequoted decision, alleging that the Court of Appeals erred (1) in refusing to apply the
provisions of Rule 14, 17 of the Revised Rules of Court and applying instead Rule 14, 8 when the fact is that
petitioner Lourdes A. Valmonte is a nonresident defendant; and (2) because even if Rule 14, 8 is the
applicable provision, there was no valid substituted service as there was no strict compliance with the
requirement by leaving a copy of the summons and complaint with petitioner Alfredo D. Valmonte. Private
respondent, upon the other hand, asserts that petitioners are invoking a technicality and that strict adherence to
the rules would only result in a useless ceremony.

We hold that there was no valid service of process on Lourdes A. Valmonte.

To provide perspective, it will be helpful to determine first the nature of the action filed against petitioners
Lourdes A. Valmonte and Alfredo D. Valmonte by private respondent, whether it is an action in personam, in
rem or quasi in rem. This is because the rules on service of summons embodied in Rule 14 apply according to
whether an action is one or the other of these actions.

In an action in personam, personal service of summons or, if this is not possible and he cannot be personally
served, substituted service, as provided in Rule 14, 7-8 is essential for the acquisition by the court of
jurisdiction over the person of a defendant who does not voluntarily submit himself to the authority of the
court. If defendant cannot be served with summons because he is temporarily abroad, but otherwise he is a
Philippine resident, service of summons may, by leave of court, be made by publication. Otherwise stated, a
resident defendant in an action in personam, who cannot be personally served with summons, may be
summoned either by means of substituted service in accordance with Rule 14, 8 or by publication as provided
in 17 and 18 of the same Rule.

In all of these cases, it should be noted, defendant must be a resident of the Philippines, otherwise an action in
personam cannot be brought because jurisdiction over his person is essential to make a binding decision.

On the other hand, if the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not
essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res. If the defendant
is a nonresident and he is not found in the country, summons may be served exterritorially in accordance with
Rule 14, 17, which provides:

17. 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 7; 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..

In such cases, what gives the court jurisdiction in an action in rem or quasi in rem is that it has jurisdiction over
the res, i.e. the personal status of the plaintiff who is domiciled in the Philippines or the property litigated or
attached.

Service of summons in the manner provided in 17 is not for the purpose of vesting it with jurisdiction but for
complying with the requirements of fair play or due process, so that he will be informed of the pendency of the
action against him and the possibility that property in the Philippines belonging to him or in which he has an
interest may be subjected to a judgment in favor of the plaintiff and he can thereby take steps to protect his
interest if he is so minded.

Applying the foregoing rules to the case at bar, private respondent's action, which is for partition and
accounting under Rule 69, is in the nature of an action quasi in rem. Such an action is essentially for the
purpose of affecting the defendant's interest in a specific property and not to render a judgment against him. As
explained in the leading case of Banco Espaol Filipino v. Palanca :

[An action quasi in rem is] an action which while not strictly speaking an action in rem partakes of that nature
and is substantially such. . . . The action quasi in rem differs from the true action in rem in the circumstance that
in the former an individual is named as defendant and the purpose of the proceeding is to subject his interest
therein to the obligation or lien burdening the property. All proceedings having for their sole object the sale or
other disposition of the property of the defendant, whether by attachment, foreclosure, or other form of remedy,
are in a general way thus designated. The judgment entered in these proceedings is conclusive only between
the parties.

As petitioner Lourdes A. Valmonte is a nonresident who is not found in the Philippines, service of summons on
her must be in accordance with Rule 14, 17. Such service, to be effective outside the Philippines, must be
made either (1) by personal service; (2) 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 should be
sent by registered mail to the last known address of the defendant; or (3) in any other manner which the court
may deem sufficient.

Since in the case at bar, the service of summons upon petitioner Lourdes A. Valmonte was not done by means
of any of the first two modes, the question is whether the service on her attorney, petitioner Alfredo D.
Valmonte, can be justified under the third mode, namely, "in any . . . manner the court may deem sufficient."

We hold it cannot. This mode of service, like the first two, must be made outside the Philippines, such as
through the Philippine Embassy in the foreign country where the defendant resides. Moreover, there are
several reasons why the service of summons on Atty. Alfredo D. Valmonte cannot be considered a valid
service of summons on petitioner Lourdes A. Valmonte. In the first place, service of summons on petitioner
Alfredo D. Valmonte was not made upon the order of the court as required by Rule 14, 17 and certainly was
not a mode deemed sufficient by the court which in fact refused to consider the service to be valid and on that
basis declare petitioner Lourdes A. Valmonte in default for her failure to file an answer.

In the second place, service in the attempted manner on petitioner was not made upon prior leave of the trial
court as required also in Rule 14, 17. As provided in 19, such leave must be applied for by motion in writing,
supported by affidavit of the plaintiff or some person on his behalf and setting forth the grounds for the
application.

Finally, and most importantly, because there was no order granting such leave, petitioner Lourdes A. Valmonte
was not given ample time to file her Answer which, according to the rules, shall be not less than sixty (60) days
after notice. It must be noted that the period to file an Answer in an action against a resident defendant differs
from the period given in an action filed against a nonresident defendant who is not found in the Philippines. In
the former, the period is fifteen (15) days from service of summons, while in the latter, it is at least sixty (60)
days from notice.
Strict compliance with these requirements alone can assure observance of due process. That is why in one
case, although the Court considered publication in the Philippines of the summons (against the contention that
it should be made in the foreign state where defendant was residing) sufficient, nonetheless the service was
considered insufficient because no copy of the summons was sent to the last known correct address in the
Philippines..

Private respondent cites the ruling in De Leon v. Hontanosas, 67 SCRA 458,462-463 (1975), in which it was
held that service of summons upon the defendant's husband was binding on her. But the ruling in that case is
justified because summons were served upon defendant's husband in their conjugal home in Cebu City and the
wife was only temporarily absent, having gone to Dumaguete City for a vacation. The action was for collection
of a sum of money. In accordance with Rule 14, 8, substituted service could be made on any person of
sufficient discretion in the dwelling place of the defendant, and certainly defendant's husband, who was there,
was competent to receive the summons on her behalf. In any event, it appears that defendant in that case
submitted to the jurisdiction of the court by instructing her husband to move for the dissolution of the writ of
attachment issued in that case.

On the other hand, in the case of Gemperle v. Schenker, it was held that service on the wife of a nonresident
defendant was found sufficient because the defendant had appointed his wife as his attorney-in-fact. It was
held that although defendant Paul Schenker was a Swiss citizen and resident of Switzerland, service of
summons upon his wife Helen Schenker who was in the Philippines was sufficient because she was her
husband's representative and attorney-in-fact in a civil case, which he had earlier filed against William
Gemperle. In fact Gemperle's action was for damages arising from allegedly derogatory statements contained
in the complaint filed in the first case. As this Court said, "[i]n other words, Mrs. Schenker had authority to sue,
and had actually sued, on behalf of her husband, so that she was, also, empowered to represent him in suits
filed against him, particularly in a case, like the one at bar, which is a consequence of the action brought by her
on his behalf" Indeed, if instead of filing an independent action Gemperle filed a counterclaim in the action
brought by Mr. Schenker against him, there would have been no doubt that the trial court could have acquired
jurisdiction over Mr. Schenker through his agent and attorney-in-fact, Mrs. Schenker.

In contrast, in the case at bar, petitioner Lourdes A. Valmonte did not appoint her husband as her attorney-in-
fact. Although she wrote private res- pondent's attorney that "all communications" intended for her should be
addressed to her husband who is also her lawyer at the latter's address in Manila, no power of attorney to
receive summons for her can be inferred therefrom. In fact the letter was written seven months before the filing
of this case below, and it appears that it was written in connection with the negotiations between her and her
sister, respondent Rosita Dimalanta, concerning the partition of the property in question. As is usual in
negotiations of this kind, the exchange of correspondence was carried on by counsel for the parties. But the
authority given to petitioner's husband in these negotiations certainly cannot be construed as also including an
authority to represent her in any litigation.

For the foregoing reasons, we hold that there was no valid service on petitioner Lourdes A. Valmonte in this
case.

WHEREFORE, the decision appealed from is REVERSED and the orders dated July 3, 1992 and September
23, 1992 of the Regional Trial Court of Manila, Branch 48 are REINSTATED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 165016 June 17, 2008

DOLORES MONTEFALCON & LAURENCE MONTEFALCON, petitioners,

vs.
RONNIE S. VASQUEZ, respondent.

DECISION

QUISUMBING, J.:

This petition for review assails the September 29, 2003 Decision and the July 19, 2004 Resolution of the
Court of Appeals in CA-G.R. CV No. 71944, which had reversed the May 28, 2001 Decision of the
Regional Trial Court (RTC), Branch 19, of Naga City in Civil Case No. RTC '99-4460.

The facts culled from the records are as follows.

In 1999, petitioner Dolores P. Montefalcon filed a Complaint for acknowledgment and support against
respondent Ronnie S. Vasquez before the RTC of Naga City. Alleging that her son Laurence is the
illegitimate child of Vasquez, she prayed that Vasquez be obliged to give support to co-petitioner
Laurence Montefalcon, whose certificate of live birth he signed as father. According to petitioners,
Vasquez only gave a total of P19,000 as support for Laurence since Laurence was born in 1993.
Vasquez allegedly also refused to give him regular school allowance despite repeated demands.
Petitioner Dolores added that she and Vasquez are not legally married, and that Vasquez has his own
family.

A sheriff tried to serve the summons and complaint on Vasquez in Aro-aldao, Nabua, Camarines Sur.
Vasquez's grandfather received them as Vasquez was in Manila. Vasquez's mother returned the
documents to the clerk of court, who informed the court of the non-service of summons.

Petitioners then filed a motion to declare Vasquez in default. The court denied it for lack of proper service
of summons.

In 2000, the court issued an alias summons on Vasquez at "10 Int. President Garcia St., Zone 6, Signal
Village, Taguig, Metro Manila" upon petitioners' motion. Albeit a Taguig deputy sheriff served it by
substituted service on Vasquez's caretaker Raquel Bejer, the sheriff's return incorrectly stated "Lazaro" as
Vasquez's surname.

Another alias summons was issued, also received by Bejer. The second sheriff's return states:

THIS IS TO CERTIFY THAT on the 19th day of July 2000 the undersigned sheriff caused the
service of summons issued by the court in the above-entitled case together with the copy of the
complaint and annexes attached thereon upon defendant RONNIE S. VASQUEZ, by substituted
service, thru his caretaker, RAQUEL BEJER, a person of sufficient discretion, who acknowledged
the receipt thereof at No. 10 Int. President Garcia St. Zone 6, Signal Village, Taguig, Metro
Manila, as evidenced by her signature appearing at the lower portion of the original copy of
summons.
 WHEREFORE, said summons is hereby returned to the court of origin DULY SERVED for its
records and information.

Taguig for Naga City, July 19, 2000

(SGD.)
ERNESTO G. RAYMUNDO, JR.,
Deputy Sheriff
MTC BR 74
Taguig, Metro Manila

On petitioners' motion, the trial court declared Vasquez in default for failure to file an answer despite the
substituted service of summons. Vasquez was furnished with court orders and notices of the proceedings
at his last known address, but these were returned as he had allegedly moved to another place and left
no new address.

In 2001, the court granted petitioners' prayers, explaining that they had no ill-motive and that Dolores
gave a truthful testimony. The court added that Vasquez admitted the truth of the allegations by his
silence. It further explained that Laurence's certificate of live birth, being a public document, is irrefutably
a prima facie evidence of illegitimate filiation. The trial court decreed:

WHEREFORE, by preponderant evidence, judgment is hereby rendered in favor of the plaintiffs

Dolores Montefalcon and her minor child Laurence Montefalcon and against defendant Ronnie S.
Vasquez who is hereby ordered to:

1. Acknowledge plaintiff Laurence Montefalcon as his illegitimate child with Dolores Montefalcon;

2. Give support to the said minor in the amount of FIVE THOUSAND (P5,000.00) PESOS
monthly commencing on June 1, 1993, the past support for eight (8) years in the amount of
FOUR HUNDRED EIGHTY THOUSAND (P480,000.00) PESOS less the amount of NINETEEN
THOUSAND (P19,000.00) PESOS previously given, shall be paid promptly and the monthly
support of FIVE THOUSAND (P5,000.00) PESOS shall be paid not later than the end of each
month beginning on July 31, 2001 and every end of the month thereafter as prayed for in the
complaint; and

3. Pay the sum of TEN THOUSAND (P10,000.00) PESOS and THREE THOUSAND (P3,000.00)
PESOS as attorney's and appearance fees, respectively, and litigation expenses of ONE
THOUSAND (P1,000.00) PESOS.

SO ORDERED.

In the same year, Vasquez surfaced. He filed a notice of appeal to which petitioners opposed. Appeal
was granted by the court. Before the appellate court, he argued that the trial court erred in trying and
deciding the case as it "never" acquired jurisdiction over his person, as well as in awarding P5,000-per-
month support, which was allegedly "excessive and exorbitant." The appellate court noted that the service
of summons on Vasquez was "defective" as there was no explanation of impossibility of personal service
and an attempt to effect personal service, and decreed as follows:

WHEREFORE, based on the foregoing premises, the instant appeal is GRANTED. The appealed
May 28, 2001 Decision of the Regional Trial Court of Naga City in Civil Case No. RTC '99-4460 is
hereby NULLIFIED and SET ASIDE. Accordingly, let this case be REMANDED to the court a
quo for further proceedings.
 SO ORDERED.

Petitioners argued in their motion for reconsideration that any attempt at personal service of summons
was needless as Vasquez already left for abroad. The appellate court, however, denied the motion.
Hence, this petition.

Petitioners assign two appellate court errors:

I.

THE COURT OF APPEALS ERRED IN HOLDING THAT THE RESPONDENT IN THIS CASE
WAS NOT VALIDLY SERVED WITH THE SUMMONS AND COMPLAINT IN CIVIL CASE NO.
RTC '99-4460; AND THAT

II.

THE COURT OF APPEALS ERRED IN ANNUL[L]ING AND SETTING ASIDE THE TRIAL
COURT'S DECISION (ANNEX "B") FOR LACK OF JURISDICTION.

Petitioners justify the validity of substituted service as Vasquez had left as overseas seafarer when the
sheriff served the summons on July 19, 2000 in Taguig. Noting that Vasquez's seaman's book indicated
that he left the country on January 24, 2000 and came back on October 12, 2000, they criticize the
appellate court for anchoring its rulings on mere technicality.

Vasquez counters that because he was abroad, service of summons should have been personal or by
publication as substituted service is proper only if a defendant is in the country. Vasquez also added that
the sheriff's return did not state that he exerted efforts to personally serve the summons.

In their reply, petitioners insist that a substituted service is the normal method if one is temporarily away
from the country as personal service abroad or by publication are not ordinary means of service.

Simply put, the issues now for resolution are: (1) whether there is a valid substituted service of summons
on Vasquez to clothe the trial court with jurisdiction over his person; and (2) whether he is obliged to give
support to co-petitioner Laurence.

To acquire jurisdiction over the person of a defendant, service of summons must be personal, or if this is
not feasible within a reasonable time, then by substituted service. It is of judicial notice that overseas
Filipino seafarers are contractual employees. They go back to the country once their contracts expire, and
wait for the signing of another contract with the same or new manning agency and principal if they wish. It
is therefore common knowledge that a Filipino seaman often has a temporary residence in the urban
areas like Metro Manila, where majority of the manning agencies hold offices, aside from his home
address in the province where he originates. In this case, respondent Vasquez hails from Camarines Sur
but he has lived in Taguig City when the complaint was filed. Notice may then be taken that he has
established a residence in either place. Residence is a place where the person named in the summons is
living at the time when the service was made, even though he was temporarily abroad at the time. As an
overseas seafarer, Vasquez was a Filipino resident temporarily out of the country. Hence, service of
summons on him is governed by Rule 14, Section 16 of the Rules of Court:

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. (Emphasis supplied.)
The preceding section referred to states:

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.

Because Section 16 of Rule 14 uses the words "may" and "also," it is not mandatory. Other methods of
service of summons allowed under the Rules may also be availed of by the serving officer on a
defendant-seaman.

Ideally, Vasquez must be personally served summons. But was personal service of summons
practicable? Conversely, was substituted service of summons justified?

Obviously, personal service of summons was not practicable since the defendant was temporarily out of
the country. To proceed with personal service of summons on a defendant-seaman who went on
overseas contract work would not only be impractical and futile it would also be absurd.

The impossibility of prompt personal service was shown by the fact that the Naga City-based sheriff
purposely went to a barrio in Camarines Sur to serve the summons personally on Vasquez. When service
of summons failed, said sheriff ascertained the whereabouts of Vasquez. Upon being informed that
Vasquez was in Manila, the Naga court commissioned a Taguig City-based sheriff to serve the summons.
Both the Naga and Taguig sheriffs inquired about Vasquez's whereabouts, signifying that they did not
immediately resort to substituted service. There was no undue haste in effecting substituted service. The
fact that the Naga court allowed a reasonable time to locate Vasquez to as far as Taguig shows that there
was indeed no precipitate haste in serving the summons.

In this case, we agree that the substituted service in Taguig was valid and justified because previous
attempts were made by the sheriffs to serve the summons, but to no avail. Diligent efforts were evidently
exerted in the conduct of the concerned sheriffs in the performance of their official duty. Also, the person
who received the alias summons was of suitable age and discretion, then residing at Vasquez's dwelling.
There is no quarrel that it was really Vasquez's residence, as evidenced by his employment contract,
executed under the supervision and authority of the Philippine Overseas Employment Administration
(POEA). Vasquez cannot deny that in his contract of employment and seafarer's information sheet, both
bearing POEA's letterhead, his address in Metro Manila was what was correctly mentioned in the alias
summons that Bejer received. She must have informed Vasquez one way or another of the suit upon his
return in October 2000 after finishing his nine-month contract with Fathom Ship Management.

Thus, it is reasonable to conclude that he had enough time to have the default order set aside. The
default judgment was rendered on May 28, 2001. He also had enough time to file a motion for
reconsideration. But he did nothing. The interregnum between the first but failed attempt at personal
service by the RTC of Naga City in Vasquez's place in Camarines Sur to the final substituted service in
Metro Manila by a Taguig RTC sheriff was almost eight months, a reasonable time long enough to
conclude that personal service had failed and was futile.
Montalban v. Maximo offers a rational and logical solution of the issue. We held in said case that the
normal method of service of summons on one temporarily absent is by substituted service because
personal service abroad and service by publication are not ordinary means of summoning defendants.
Summons in a suit in personam against a temporarily absent resident may be by substituted service as
domiciliaries of a State are always amenable to suits in personam therein.

"Residence" is the place where the person named in the summons is living at the time when the service is
made, even though he may be temporarily out of the country at the time. A plaintiff is merely required to
know the defendant's residence, office or regular business place. He need not know where a resident
defendant actually is at the very moment of filing suit. He is not even duty-bound to ensure that the
person upon whom service was actually made delivers the summons to the defendant or informs him
about it. The law presumes that for him. It is immaterial that defendant does not receive actual notice.

As well said in Montalban:

. . . 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. It is usual for such a man to leave at
his home or with his business associates information as to where he may be contacted in the
event a question that affects him crops up. If he does not do what is expected of him, and a case
comes up in court against him, he cannot in justice raise his voice and say that he is not subject
to the processes of our courts. He cannot stop a suit from being filed against him upon a claim
that he cannot be summoned at his dwelling house or residence or his office or regular place of
business.

Not that he cannot be reached within a reasonable time to enable him to contest a suit against
him. There are now advanced facilities of communication. Long distance telephone calls and
cablegrams make it easy for one he left behind to communicate with him.

Aside from, at present, various forms of texting and short message services by the ubiquitous cellular
phones.

More importantly, the letter of the law must yield to its spirit. The absence in the final sheriff's return of a
statement about the impossibility of personal service does not conclusively prove that the service is
invalid. Such failure should not unduly prejudice petitioners if what was undisclosed was in fact done.
Proof of prior attempts at personal service may have been submitted by the plaintiff during the hearing of
any incident assailing the validity of the substituted service had Vasquez surfaced when the case was
heard. In fact, he was declared in default. It was only when a judgment against him was rendered by the
trial court that he questioned the validity of service of summons before the appellate court. Such failure to
appear, and then later to question the court's jurisdiction over his person, should not be taken against
herein petitioners.

Between Vasquez's self-serving assertion that he only came to know of the case when his mother told
him about the trial court's decision and the sheriff's return on the substituted service which carries a
presumption of regularity, the latter is undoubtedly deserving of more faith and credit. The sheriff's
certificate of service of summons is prima facie evidence of the facts set out in it. Only clear and
convincing evidence may overcome its presumption of regularity. Given the circumstances in the present
case, we agree that the presumption of regularity in the performance of duty on the part of the sheriff
stands.
On the second issue, the trial court's order must also be sustained. Co-petitioner Laurence is legally
entitled to support from the respondent, and the amount of P5,000 monthly set by the trial court is neither
excessive nor unreasonable.

Article 175 of the Family Code of the Philippines mandates that illegitimate filiation may be established in
the same way and on the same evidence as legitimate children. Under Article 172, the filiation of
legitimate children is established by any of the following: (1) through record of birth appearing in the civil
register or a final order; or (2) by admission of filiation in a public document or private handwritten
instrument and signed by the parent concerned; or in default of these two, by open and continuous
possession of the status of a legitimate child or by any other means allowed by the Rules of Court and
special laws.

Laurence's record of birth is an authentic, relevant and admissible piece of evidence to prove paternity
and filiation. Vasquez did not deny that Laurence is his child with Dolores. He signed as father in
Laurence's certificate of live birth, a public document. He supplied the data entered in it. Thus, it is a
competent evidence of filiation as he had a hand in its preparation. In fact, if the child had been
recognized by any of the modes in the first paragraph of Article 172, there is no further need to file any
action for acknowledgment because any of said modes is by itself a consummated act.

As filiation is beyond question, support follows as matter of obligation. Petitioners were able to prove that
Laurence needs Vasquez's support and that Vasquez is capable of giving such support. Dolores testified
that she spent around P200,000 for Laurence; she spends P8,000 a month for his schooling and their
subsistence. She told the lower court Vasquez was earning US$535 monthly based on his January 10,
2000 contract of employment with Fathom Ship Management and his seafarer information sheet. That
income, if converted at the prevailing rate, would be more than sufficient to cover the monthly support for
Laurence.

Under Article 195 (4) of the Family Code, a parent is obliged to support his illegitimate child. The amount
is variable. There is no final judgment thereof as it shall be in proportion to the resources or means of the
giver and the necessities of the recipient. It may be reduced or increased proportionately according to the
reduction or increase of the necessities of the recipient and the resources or means of the person obliged
to support. Support comprises everything indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the financial capacity of the family. Under the
premises, the award of P5,000 monthly support to Laurence is reasonable, and not excessive nor
exorbitant.

In sum, we rule that the Court of Appeals erred in invalidating the substituted service of summons and
remanding the case. As there was valid substituted service of summons under the circumstances of this
case, the lower court acquired jurisdiction over his person and correctly ordered him to pay past and
present monthly support to his illegitimate child as well as attorney's fees and litigation expenses to
petitioners.

WHEREFORE, the petition is GRANTED. The Decision dated September 29, 2003 and Resolution dated
July 19, 2004 of the Court of Appeals in CA-G.R. CV No. 71944 are REVERSED and SET ASIDE. The
Decision dated May 28, 2001 of the Regional Trial Court, Branch 19, Naga City in Civil Case No. RTC
'99-4460 is hereby REINSTATED.

Costs against respondent.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 126321 October 23, 1997

TOYOTA CUBAO, INC., petitioner,

vs.
THE HONORABLE COURT OF APPEALS and DANILO A. GUEVARRA, respondents.

VITUG, J.:

Petitioner Toyota Cubao, Inc., undertook repairs on the car owned by private respondent Danilo
Guevarra. The repair cost of P76,800.47 was paid by means of BPI Check No. 17819, dated 12
March 1991, drawn by Guevarra in favor of Toyota. When presented for payment, the check was
dishonored, i.e., "Drawn Against Insufficient Funds ('DAIF')." Petitioner thereupon requested that
Guevarra should make good the check. When Guevarra failed to heed the demand, petitioner flied a
civil case for collection of the unpaid account.

On 07 January 1993, the trial court issued the summons to Guevarra at his address in 29 Burgos
Street, Calamba, Laguna. On 02 February 1993, Process Server Antonio Rimas of the Regional
Trial Court of Calamba, Laguna, submitted to the trial court a return on the service; it read in full:

Respectfully returned to the Branch Clerk of Court, Regional Trial Court, National
Capital Judicial Region, Branch 92, Quezon City, the herein attached original
summon in the above entitled case with the information that it was duly served to the
defendant DANILO A. GUEVARRA, thru her sister-in-law, GLORIA CABALLES, by
leaving a copy of the summons and complaint but refused to sign.

Serve[d] Feb. 2, 1993.

On 23 February 1993, petitioner, claiming that Guevarra had failed to file an ANSWER within the
reglementary period, moved to declare Guevarra in default. A copy of the motion was furnished
Guevarra, through registered mail with return card, at 29 Burgos Street, Calamba, Laguna.

On 05 March 1993, the scheduled date of hearing on the aforesaid motion, the trial court held in
abeyance any action pending submission to the court of proof of service to Guevarra.

On 16 March 1993, petitioner filed the registry return card indicating receipt of the motion.

On 19 March 1993, the trial court granted petitioner's Motion To Declare Defendant In Default and
allowed an ex-parte presentation of petitioner's evidence.

On 19 May 1993, petitioner presented its evidence ex-parte. Petitioner rested, following its formal
offer of documentary exhibits, and submitted the case for resolution by the court.

On 06 January 1994, the trial court rendered judgment in favor of petitioner; thus:
 WHEREFORE, premises considered, the Court finds for the plaintiff and against the
defendant and hereby renders judgment as follows:

1. Ordering the defendant to pay the plaintiff the sum of P76,800.47 with legal
interest from March 3, 1993 and until the amount is fully paid;

2. Ordering the defendant to pay the amount of P10,000.00 as reasonable attorney's

fees;

3. With cost of suit against the defendant.

On 08 March 1994, a writ of execution was issued to implement the decision. On 26 July 1995, the
Deputy Sheriff, implementing the writ, levied on Guevarra's Toyota Corolla bearing plate No. PRW-
329. The notice of levy was served on Guevarra personally but he refused to sign the receipt
thereof, expressed surprise over it, and stated that he was not aware of any case instituted against
him.

On 28 July 1995, the Sheriff issued a notice of auction sale of the levied vehicle that was to take
place on 07 August 1995 at ten o'clock in the morning.

On 07 August 1995, the vehicle was sold at public auction to Christopher Alex Sillano, the highest
bidder, for P150,000.00. Whereupon, the corresponding certificate of sale was issued in his favor.

Guevarra turned over, on demand, the subject vehicle to the authorities; forthwith, however, he
asked, in a certiorari petition (CA-G.R. SP No. 38048) before the Court of Appeals, for the
nullification of the ex-parte judgment of 06 January 1994. Guevarra claimed that the trial court did
not acquire jurisdiction over his person because of a defective service of summons on him. The
appellate court, finding merit in the petition, annulled and set aside the default judgment, the writ of
execution, the levy upon execution and the sale at public auction of the vehicle. It held, in its now
assailed decision of 28 June 1996, that the substituted service of summons effected on private
respondent was not valid and that, consequently, the proceedings had before the trial court were
nugatory and without legal effect.

In its appeal to this Court, petitioner Toyota argues that the appellate court has gravely erred in
ignoring the rule, enunciated in Mapa vs. Court of Appeals, that the absence in the sheriff's return of a
statement about the impossibility of personal service cannot be conclusive proof that the substituted
service resorted to is invalid. Petitioner points out that Mapa has cautioned against jumping outright to the
conclusion that a substituted service becomes inconsequential merely because the process server may
have failed to state with specificity the reason for resorting to substituted service. Petitioner asserts that
the requirements of Section 8, Rule 14, of the Revised Rules of Court have been met and that the
evidence for such compliance is the affidavit of the process server on the substituted service annexed to
its reply filed before the appellate court.

The Court sustains the Court of Appeals.

Section 7, Rule 14, of the Rules of Court requires that summons must be served personally by
"handing a copy thereof to the defendant in person or, if he refuses to receive it, by tendering it to
him." If, however, this mode of service cannot be effected within a reasonable time, substituted
service may be resorted to under Section 8 of the same Rule. A law prescribing the manner in which
the service of summons should be effected is jurisdictional in character and its proper observance is
what dictates the court's ability to take cognizance of the litigation before it. Compliance therewith
must appear affirmatively in the return. It must so be as substitute service is a mode that departs or
deviates from the standard rule. Substitute service must be used only in the way prescribed, and
under circumstances authorized, by law.

In Mapa vs. Court of Appeals, we did say that

. . . the absence in the sheriff's return of a statement about the impossibility of

personal service does not conclusively prove that the service is invalid. Proof of prior
attempts at personal service may be submitted by the plaintiff during the hearing of
any incident assailing the validity of the substituted service. While the sheriff's return
carries with it the presumption, albeit disputable, of regularity in the sense that inter
alia, the entries therein are deemed correct, it does not necessarily follow that an act
done in relation to the official duty for which the return is made was not done simply
because it is not disclosed therein.

The Court, however, has elucidated that evidence must in such a case be duly presented
that would prove proper compliance with the rules on substituted service. Hence

. . . . Unfortunately in these instant cases, the private respondent failed to present

evidence during the hearings of the petitioner's separate motions to dismiss and set
aside judgment to prove that substituted service of summons was indeed effected in
strict compliance with Section 8, Rule 14 of the Rules of Court. During such hearings,
the private respondent could also have presented evidence to show that the
petitioner did in fact receive front Susan O. dela Torre the summonses, together with
copies of the complaints, in both cases. If indeed the petitioner received the same,
the requirement of due process would have been complied with.

And, in Keister vs. Navarro, the Court said:

Service of summons upon the defendant is the means by which the court may
acquire jurisdiction over his person. In the absence of a valid waiver, trial and
judgment without such service are null and void. [Salmon, et at. v. Tan Cueco, 36
Phil. 556; Echevarria v. Parsons Hardware Co., 51 Phil. 980; Reyes v. Paz, et al., 60
Phil. 440; Pantaleon v. Asuncion, 105 Phil. 761, Government v. Botor; 69 Phil. 130;
Caneda v. Court of Appeals, 116 Phil. 283; Trimica, Inc. v. Polaris Marketing
Corporation, 60 SCRA 321, 325.] This process is solely for the benefit of the
defendant. [Mosaic Templars of America v. Saines, Civ. App. 265, SW 721.] Its
purpose is not only to give the court jurisdiction of the person of the defendant, but
also to afford the latter an opportunity to be heard on the claim made against him. [72
C.J.S. 989; Mohr v. Manvierre, 101 U.S. 417, 25 L. ed. 1052.]

The summons must be served to the defendant in person. [Section 7, Rule 14,
Revised Rules of Court.] It is only when the defendant cannot be served personally
within a reasonable time that a substituted service may be made. [Section 8, Ibid.]
Impossibility of prompt service should be shown by stating the efforts made to find
the defendant personally and the fact that such efforts failed. This statement should
be made in the proof of service. [I Moran, Comments on the Rules of Court, 1970
Ed., p. 444.] This is necessary because substituted service is in derogation of the
usual method of service. It has been held that this method of service is "in derogation
of the common law; it is a method extraordinary in character, and hence may be
used only as prescribed and in the circumstances authorized by statute." [72 C.J.S.
1053.] Thus, under the controlling decisions, the statutory requirements of
substituted service must be followed strictly, faithfully and fully, and any substituted
 service other than that authorized by the statute is considered ineffective. [Ibid., pp.
1053-1054.]

Indeed, the constitutional requirement of due process requires that the service be
such as may be reasonably expected to give the desired notice to the party of the
claim against him. [Perkins v. Dizon, 69 Phil. 186; Dy Reyes v. Ortega, 16 SCRA
903.]

It is not here disputed that substituted service of summons has been resorted to by the process
server but that, unfortunately, the server's return did not state the facts or the needed particulars that
could justify the substituted service. The constitutional requirement of due process, this Court has
held in Boticano vs. Chu, Jr., exacts that the service of summons) be such as may reasonably be
expected to give the notice desired. Once the service provided by the rules accomplishes that end, "the
requirement of justice is answered; the traditional notions of fair play are satisfied; due process is
served." Although Moran, on the Rules of Court, has said that "Irregularities of this kind (substituted
service) (might) be cured by proof that the copies (have) actually been delivered to the defendant," in the
case at bar, however, private respondent appears to have been notified of the case for the first time only
at the time the levy on execution of judgment was effected by the sheriff.

The fact of the matter was that Guevarra evidently had been unaware of the proceedings before the
Quezon City Regional Trial Court in Civil Case No. Q-92-14306. Upon learning of the adverse
decision, but already too late in the day for him to get relief from that court, he filed, instead,
a certiorari petition before the Court of Appeals. The appellate court neither abused its discretion nor
was in error when it refused to consider the affidavit of the process server (declaring the concomitant
facts required to be incorporated in the return) which was presented to it for the first time only as an
annex to its Reply filed with the tribunal. For the appellate court to have accepted the affidavit
favorably on its face value, without hearing, would have again been a denial to the defendant (herein
private respondent) of his right to due process.

WHEREFORE, the petition for review is DENIED. No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-58036 March 16, 1987

ELISEO BOTICANO, petitioner,

vs.
MANUEL CHU, JR., respondent.

PARAS, J.:

This is a petition for review on certiorari seeking to reverse and set aside the following: (a) the decision of the
Court of Appeals * promulgated on March 31, 1981 in CA-G.R. No. 65287-R entitled: "Eliseo Boticano, plaintiff-
appellee v. Jaime Sigua, defendant and Manuel Chu, Jr., defendant-appellant" which holds that the defendant-
appellant was not properly served with summons and (b) the resolution denying petitioner's motion for
reconsideration of said decision.

The findings of fact of the trial court are as follows:

Petitioner Eliseo Boticano is the registered owner of a Bedford truck with plate No. QC-870, T-Pilipinas '77
which he was using in hauling logs for a certain fee. At 11:00 o'clock in the evening of September 3, 1971,
while loaded with logs, it was properly parked by its driver Maximo Dalangin at the shoulder of the national
highway in Barrio Labi, Bongabon, Nueva Ecija when it was hit and bumped at the rear portion by a Bedford
truck bearing plate No. QK-516, T-Pilipinas '77 owned by private respondent Manuel Chu, Jr. and driven by
Jaime Sigua, the former's co-defendant in this case. Manuel Chu, Jr. acknowledged ownership thereof and
agreed with petitioner to shoulder the expenses of the repair of the damaged truck of the latter. (Decision, Civil
Case No. 6754, Rollo, pp. 36-37).

When Manuel Chu, Jr. failed to comply with aforesaid agreement as well as to pay damages representing lost
income despite petitioner's demands, the latter (plaintiff in the lower court), filed a complaint on November 24,
1977 at the Court of First Instance of Nueva Ecija, Branch VII at Cabanatuan City, against private respondent
Manuel Chu, Jr. (truck owner) and Jaime Sigua (his driver) both as defendants in Civil Case No. 6754 "Eliseo
Boticano v. Manuel Chu, Jr. and Jaime Sigua" for damages. (Record on Appeal, Rollo, pp. 45-47).

Summons was issued on December 12, 1977 but was returned unserved for defendant Jaime Sigua because
he was no longer connected with San Pedro Saw Mill, Guagua, Pampanga, while another copy of the
summons for Manuel Chu, Jr. was returned duly served on him thru his wife Veronica Chu at his dwelling
house.

On February 15, 1978 petitioner moved to dismiss the case against Jaime Sigua and to declare Manuel Chu,
Jr. in default for failure to file responsive pleadings within the reglementary period. The motion was granted by
the lower court in an Order dated September 4, 1978, allowing petitioner to adduce his evidence ex parte on
October 17, 1978. (Petition, Rollo, pp. 8-9).

From the evidence adduced by the plaintiff (petitioner herein) the trial court found that private respondent
Manuel Chu, Jr. is responsible for the fault and negligence of his driver Sigua under Article 2180 of the Civil
Code, whose negligence and lack of due care was the immediate and proximate cause of the damage to
petitioner's truck and ruled in favor of plaintiff-petitioner.

The dispositive portion of the judgment reads:

 WHEREFORE, judgment is hereby rendered in favor of the plaintiff, Eliseo Boticano, and
against herein defendant, Manuel Chu, Jr. ordering the latter as follows:

(a) To pay the plaintiff the sum of P6,970.00 representing actual damages;

(b) To pay the plaintiff the sum of P73,700.00 representing unrealized income for the non-use
of the plaintiff's damaged truck for the period of eleven (11) months;

(c) To pay the plaintiff the sum of P2,000.00 for and as attorney's fees; and

(d) To pay the costs of this suit.

SO ORDERED.

Cabanatuan City, November 28, 1978. (Ibid,, pp. 13-14).

On March 19, 1979 private respondent Manuel Chu, Jr. filed with the trial court a "Notice of Appeal" and an
Urgent Motion for Extension of Time to file Record on Appeal which was granted by the trial court on the same
date.

On March 26, 1979, Atty. Hermenegildo D. Ocampo, counsel of record of private respondent, filed a "Motion to
Withdraw as Counsel" while the new counsel Atty. Wilfredo G. Laxamana entered his appearance on April 18,
1979 and filed his record on appeal on the same date.

On May 4, 1979 petitioner filed with the trial court a Motion to Dismiss Appeal and for execution which was set
for hearing on May 14, 1979 wherein private respondent's counsel personally appeared and opposed
petitioner's motion while on the latter date petitioner filed his reply to opposition, after which on May 16, 1979
the trial court issued an order denying aforesaid motion, while on May 22, 1979, the trial court issued another
order approving private respondent's Record on Appeal. (Rollo, pp. 9-10).

After the case was brought to the Court of Appeals and the parties had filed their respective briefs, said
Appellate Court issued its decision on March 31, 1981, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS the appealed judgment is hereby set

aside, for being null and void. This case is directed to be remanded to the court of origin; that
appellant be properly served with summons and a copy of the complaint; and that the
necessary and appropriate proceedings or action be taken thereafter, as the circumstances
and the case win warrant.

With costs against appellee.

SO ORDERED.

Judgment is set aside. (Rollo, p. 33)

On April 20, 1981, petitioner filed with the respondent Court of Appeals a Motion for Reconsideration and on
June 3, 1981 a Supplemental Motion for Reconsideration. On August 28, 1981 respondent Court of Appeals
issued an order denying petitioner's Motion for Reconsideration. (Rollo, pp. 9-11).

Hence, this petition, with the following assigned errors:

1. THE RESPONDENT COURT OF APPEALS COMMITTED A MISTAKE IN HOLDING THAT PRIVATE

RESPONDENT MANUEL CHU JR. WAS NOT PROPERLY SERVED WITH SUMMONS DESPITE THE FACT
THAT THE SUMMONS WAS SERVED TO HIM THROUGH HIS WIFE;
2. THE RESPONDENT COURT OF APPEALS COMMITTED A MISTAKE IN HOLDING THAT PRIVATE
RESPONDENT DID NOT VOLUNTARILY SUBMIT HIMSELF TO THE JURISDICTION OF THE TRIAL
COURT DESPITE HIS VOLUNTARY APPEARANCE, THRU COUNSEL ON A FIXED DATE OF HEARING
AND BY FILING WITH THE LOWER COURT A NOTICE OF APPEAL, APPEAL BOND, MOTION FOR
EXTENSION OF TIME TO FILE RECORD ON APPEAL, MOTION FOR WITHDRAWAL OF APPEARANCE,
NOTICE OF APPEARANCE, AND OPPOSITION TO MOTION TO DISMISS APPEAL AND FOR ISSUANCE
OF WRIT OF EXECUTION;

3. THE RESPONDENT COURT OF APPEALS ERRED IN NOT FINDING THAT PRIVATE RESPONDENT
HAS WAIVED ANY QUESTION ON THE TRIAL COURT'S JURISDICTION OVER HIS PERSON BY HIS
DELIBERATE FAILURE AND REFUSAL TO SEEK RELIEF FROM THE TRIAL COURT.

4. THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN SETTING ASIDE THE JUDGMENT IN
CIVIL CASE NO. 6754, COURT OF FIRST INSTANCE OF CABANATUAN ClTY, BRANCH VII AND IN
DIRECTING THAT THE CASE BE REMANDED TO THE COURT OF ORIGIN SO THAT APPELLANT CAN BE
PROPERLY SERVED WITH SUMMONS. (Petition, Rollo, pp. 12-23)

In compliance with the resolution of the Second Division of this Court of October 12, 1981 (Rollo, p. 79-A)
private respondent filed his comment on November 13, 1981 (Rollo, pp. 84-87). Petition er then filed a reply
thereto in compliance with the resolution of December 7, 1981 (Rollo, p. 39) after which the petition was given
due course in the resolution of February 8, 1982 and the parties were required to file their respective
memoranda (Rollo, p. 43). Petitioner filed his memorandum on March 19, 1982 (Rollo, pp. 45-59) while private
respondent filed his memorandum on April 15, 1982 (Rollo, pp. 60-64). Thereafter, in the resolution of April 30,
1982, the case was submitted for decision. (Rollo, p. 65).

There is no dispute as to the facts of this case, as shown by the admission of private respondent to the extent
of making an agreement with petitioner to shoulder the expenses of the repair of the damaged truck of the latter
and the findings of the Court of Appeals that petitioner's evidence fully supports the findings of facts of the trial
court as well as its judgment under appeal.

Neither does private respondent deny receipt of the summons in question. The bone of contention appears to
be in the manner of service of said summons on the wife of private respondent at their dwelling instead of on
private respondent himself personally.

Petitioner contends in favor of validity of such service while private respondent maintains the opposite view
which was sustained by respondent Court of Appeals to the effect that the Sheriff resorted to substituted
service under Section 8, Rule 14 of the Rules of Court, without first complying with the mode of personal
service required under Section 7 of the same Rule.

Thus, the principal issue which arises in this case which involves an inquiry into procedural due process, is
whether or not the question of jurisdiction over the person of the defendant can be raised for the first time on
appeal.

The question has been answered in the negative by the Supreme Court in a long line of decisions. In fact, one
of the circumstances considered by the Court as indicative of waiver by the defendant-appellant of any alleged
defect of jurisdiction over his person arising from defective or even want of process, is his failure to raise the
question of jurisdiction in the Court of First Instance and at the first opportunity. It has been held that upon
general principles, defects in jurisdiction arising from irregularities in the commencement of the proceedings,
defective process or even absence of process may be waived by a failure to make seasonable objections.
(Castro v. Cebu Portland Cement Co., 71 Phil. 481 [1941] citing Machan v. De la Trinidad, 3 Phil. 684; Vergara
v. Laciapag 28 Phil. 439; U.S. v. Inductivo, 40 Phil. 84; Soriano v. Ramirez, 44 Phil. 519). More recently, in
reiteration of the same principle, the Court ruled in Dalman v. City Court of Dipolog City, Branch II, that as to
the dismissal of the criminal case, the question of jurisdiction which was never raised in said case before the
trial court cannot be done at this stage and level (134 SCRA 244 [1985]).
Coming to the case at bar, it has been pointed out that during the stages of the proceedings in the court below,
defendant-appellant could have questioned the jurisdiction of the lower court but he did not.

It can of course be argued that the failure to question the lower court's jurisdiction cannot be accounted against
Chu for his having been declared in default gave him no chance to participate in the court deliberations and
therefore no chance to raise the jurisdictional issue, but then, he could have done so, in the subsequent
pleadings he filed. Besides, even assuming that such failure cannot be taken against him, the fact is he had
VOLUNTARILY submitted himself to the court's jurisdiction.

On the contrary, private respondent voluntarily appeared thru counsel in the trial court. He filed a Notice of
Appeal, Appeal Bond, Motion for Extension of Time to File Record on Appeal, Record on Appeal, Motion for
Withdrawal of Appearance, Notice of Appearance and Opposition to Plaintiff's Motion to Dismiss Appeal and for
Issuance of a Writ of Execution. Not only did he submit pleadings and motions, but he likewise appeared in
person, thru counsel in the hearing held on May 14, 1979 at 8:30 a.m. and orally argued in open court on the
pending incident. (Rollo, pp. 53-54).

Under Section 23, Rule 14 of the Rules of Court, the defendant's voluntary appearance in the action shall be
equivalent to service. Thus, under this principle, it has been consistently held by the Supreme Court that the
defect of summons is cured by the voluntary appearance of the defendant. (Infante v. Toledo and Lanting, 44
Phil. 834 [1918]; Aguilos v. Sepulvede, 53 SCRA 274 [1973]; J.M. Tuazon & Co. v. Estabillo, 62 SCRA 1;
Castro v. Cebu Portland Cement Co., supra).

The Court of Appeals is however of the view that from all the actions and steps taken by the appellant no
presumption can arise that he voluntarily submitted himself to the jurisdiction of the Court. In fact according to
said Court, all of these actions taken by the appellant are geared and mustered towards contesting the court's
jurisdiction over his person, or of attacking the validity of the judgment on jurisdictional grounds. (Decision, CA,
G.R. No. 65287-R; Rollo, p. 31).

It will be noted however, that the Notice of Appeal (Rollo, p. 38) unmistakably indicates the reason for the
appeal, which reads:

2. That, the herein defendant is not contented with the aforesaid Decision for it is contrary to
the evidence and the law and the award of damages is so excessively unsupported by any
evidence to warrant the same; hence, he is appealing said Decision to the Hon. Court of
Appeals, Manila, both on questions of facts and law.

As clearly shown in the foregoing, the above-stated conclusion of the Court of Appeals has evidently no basis.

Of equal importance is the question: if the defendant in the Regional Trial Court (RTC) has been declared in
default, may he appeal the default judgment that may subsequently be rendered even if he has not asked the
RTC to set aside the declaration of default? The answer is in the affirmative. However a distinction must be
made as to the effects of such appeal.

(a) If an appeal is made without first asking the RTC to set aside the declaration of default,
and the appellate court sets aside on said declaration, all he can get is a review of the RTC's
default judgment without the opportunity of having the higher court consider defense evidence
(for the simple reason that no evidence was even adduced by him in the RTC) (See Rule 41,
sec. 2, par. 3, Rules of Court).

(b) If upon the other hand, the defendant first asks the RTC to set aside the declaration of
default (See Rule 18, secs. 2 and 3, Rules of Court), and he is able to prevail, the declaration
win be set aside, and he will now have the opportunity to present his evidence in the RTC.
Thus, even if he finally loses in the RTC's subsequent decision, his defense can be
considered, when appeal is made to the appellate tribunal. Of course, even if the default
declaration is not set aside despite his motion for the setting aside, he will be entitled to all
 notices in the court proceedings, and can file any pleading he may wish to file, including the
notice of appeal. (See Rule 13, sec. 9, Rules of Court).

Incidentally, the afore-mentioned rules apply to default declarations in the Metropolitan Trial Courts, the
Municipal Trial Courts, and the Municipal Circuit Trial Courts, for under Batas Pambansa Bilang 129, the said
inferior courts will follow the rules in the RTC. Note however that in summary proceedings, there can be no
default declarations.

In the case at bar, there is no question that summons was timely issued and received by private respondent. In
fact, he never denied actual receipt of such summons but confined himself to the argument that the Sheriff
should prove that personal service was first made before resorting to substituted service,

This brings to the fore the question of procedural due process. In Montalban v. Maximo (22 SCRA 1077 [1968])
the Court ruled that "The constitutional requirement of due process exacts that the service be such as may be
reasonably expected to give the notice desired. Once the service provided by the rules reasonably
accomplishes that end, the requirement of justice is answered; the traditional notions of fair play are satisfied;
due process is served."

Indeed, such construction is but fair, and in accord with substantial justice. The burden on a plaintiff is not to be
enlarged with a restrictive construction desired by the defendant. (Ibid., p. 1078).

Finally in a last ditch effort, private respondent insists that there was no valid service of summons because
private respondent is a partner and general manager in San Pedro Sawmill. Consequently the wife of private
respondent to whom summons and complaint were allegedly served not being partnership, cannot receive the
same under Section 13 of Rule 14 of the Rules of Court.

It has however been settled that actions must be brought by the real parties in interest and against the persons
who are bound by the judgment obtained therein. (Salmon and Pacific Commercial Company v. Tan Cueco, 36
Phil. 557-558 [1917]).

The title of the case both in the trial court, in the Court of Appeals and in this Court shows that the partnership
is not a party. On the contrary, as previously stated private respondent himself assumed the responsibility of
the accident and is now estopped to disclaim the liabilities pertaining thereto.

From what has been discussed the following conclusions are hereby made: jurisdiction was properly acquired
by the trial court over the person of respondent thru both service of summons and voluntary appearance in
court; he was therefore properly declared in default for not having filed any answer; despite respondent's failure
to file a motion to set aside the declaration of default, he has the right to appeal the default judgment but in the
appeal only the evidence of the petitioner may be considered, respondent not having adduced any defense
evidence; We agree with the findings of fact by the trial court, the same being unrebutted.

WHEREFORE, the assailed decision and resolution of the Court of Appeals are REVERSED and SET ASIDE,
and the decision of the then Court of First Instance (now Regional Trial Court)of Nueva Ecija, Cabanatuan City
in Civil Case No. 6754 "Eliseo Boticano v. Manuel Chu, Jr. and Jaime Sigua" is hereby REINSTATED. No
costs.

SO ORDERED.