G.R. No. 183795, November 12, 2014
PRUDENTIAL BANK (NOW BANK OF THE PHILIPPINE ISLANDS) AS THE DULY APPOINTED ADMINISTRATOR OF THE ESTATE OF JULIANA DIEZ VDA. DE GABRIEL, Petitioner, v. AMADOR A. MAGDAMIT, JR., ON HIS BEHALF AND AS SUBSTITUTED HEIR (SON) OF AMADOR MAGDAMIT, SR., AND AMELIA F. MAGDAMIT, AS SUBSTITUTED HEIR (WIDOW) OF AMADOR MAGDAMIT, SR., Respondents.
D E C I S I O N
After due consideration of the matter and arguments stated therein, the Court resolves to DENY the defendant's Motion to dismiss, it appearing that the summons issued in this case was served, albeit substituted nevertheless valid. It is of no consequence that defendant is also presently residing in Bacoor, Cavite. Suffice it to say that summons was served upon him (although substituted) on the leased premises which plaintiff is justified in assuming that he is also residing thereat. Moreover, it appears that he knew the person on whom summons was served (together with a copy of the complaint) as a certain Dara Cabug only that he claims that the latter is not of "suitable age and discretion" to receive the summons. Simply put, the requirement of due process has been satisfied. Be that as it may, it would not unduly prejudice the rights of the plaintiff if defendant is given additional period of five (5) days from notice hereof within which to file his Answer.6
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against defendants Amador Magdamit, Sr.:chanroblesvirtuallawlibrary
1. ordering said defendant and all persons claiming right under him to vacate the subject three (3) lots covered by TCT No. 118317 of the Registry of Deeds of Manila, located at and also known as 1164 Interior J. Nakpil St., Paco, Manila and to peacefully surrender possession thereof to plaintiff;
2. ordering said defendant to pay plaintiff the sum of P180,000.00 representing rentals or reasonable compensation for the use of the property due from August 2003 up to February 2005 and P10,000.00 per month thereafter until defendants fully vacate the subject property;
3. ordering said defendant to pay plaintiff the sum of P20,000.00 as attorney's fees; and
4. to pay the costs.
The complaint is dismissed as against defendant Amador Magdamit, Jr. and the latter's counterclaim is likewise dismissed.
WHEREFORE, this Court finds merit on the appeal and consequently, the decision on appeal is hereby set aside, and this case is accordingly dismissed for lack of jurisdiction over the persons of the defendants.13
Having found that the MeTC did not acquire jurisdiction over the persons (sic) of respondents, it would be futile on Our part to still pass upon the other errors assigned by petitioner.
WHEREFORE, premises considered, the petition is DENIED. Costs against petitioner.
"I. Whether or not the Court of Appeals erred in dismissing the Petition for Review of the Decision of the Regional Trial Court of Manila dated January 18, 2006; and disposing of only the issue of lack of jurisdiction over the person of respondents for alleged improper service of summons;
II. Whether or not the Court of Appeals erred in not ruling on the material and substantial issues in the case; and
III. Whether or not the Court of Appeals erred in affirming the decision of the Metropolitan Trial Court of Manila dismissing of the Complaint against Magdamit, Jr., based on the ground that he was no longer residing at the subject property prior to, and at the time of the filing of the ejectment complaint."15
1. That, on October 22, 2003, he proceeded to the place of defendant Amador Magdamit, Sr. at No. 1164 Int. Julio Nakpil St., Paco, Manila, for the purpose of serving the Summons issued in the above-entitled case, but no service was effected because he was not around;
2. That, on October 23, 2003, undersigned repaired (sic) anew to the said place but for the second time, he failed to reached (sic) said defendant. Thus, he elected (sic) substituted service by serving the said summons together with the copy of the complaint and annexes attached thereat (sic) to Ms. Madel Magalona, a person of sufficient age and living thereat who however refused to acknowledge(d) receipt thereof;
3. That, undersigned explained to (this) Ms. Magalona the contents of the said process in a language she fully understood and adviced (sic) her to gave (sic) the same to her employer as soon as he arrives.17
This is to certify, that on the 24th day of March, 2003, xxx served copy of the Summons together with the copy of the Complaint and its attachment, upon defendant/s Amador A. Magdamit, Jr. at 1164 Int., J. Nakpil St., Paco, Manila, by tendering the copy to Dara Cabug (grand daughter), a person of sufficient age, discretion and residing therein who however refused to acknowledged (sic) receipt thereof.
That on several occasions despite deligent (sic) efforts exerted to serve the said processes personally to defendant/s herein the same proved futile. Thus, substituted service was effected in accordance with the provision of Sec. 8, Rule 14, Rules of Court.
In view of the foregoing, the original summons is now respectfully returned to the Honorable Court, DULY SERVED.18
We can break down this section into the following requirements to effect a valid substituted service:chanroblesvirtuallawlibrary
(1) Impossibility of Prompt Personal Service
The party relying on substituted service or the sheriff must show that defendant cannot be served promptly or there is impossibility of prompt service. Section 8, Rule 14 provides that the plaintiff or the sheriff is given a "reasonable time" to serve the summons to the defendant in person, but no specific time frame is mentioned. "Reasonable time" is defined as "so much time as is necessary under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that should be done, having a regard for the rights and possibility of loss, if any, to the other party." Under the Rules, the service of summons has no set period.
However, when the court, clerk of court, or the plaintiff asks the sheriff to make the return of the summons and the latter submits the return of summons, then the validity of the summons lapses. The plaintiff may then ask for an alias summons if the service of summons has failed. What then is a reasonable time for the sheriff to effect a personal service in order to demonstrate impossibility of prompt service? To the plaintiff, "reasonable time" means no more than seven (7) days since an expeditious processing of a complaint is what a plaintiff wants. To the sheriff, "reasonable time" means 15 to 30 days because at the end of the month, it is a practice for the branch clerk of court to require the sheriff to submit a return of the summons assigned to the sheriff for service. The Sheriffs Return provides data to the Clerk of Court, which the clerk uses in the Monthly Report of Cases to be submitted to the Office of the Court Administrator within the first ten (10) days of the succeeding month. Thus, one month from the issuance of summons can be considered "reasonable time" with regard to personal service on the defendant.
Sheriffs are asked to discharge their duties on the service of summons with due care, utmost diligence, and reasonable promptness and speed so as not to prejudice the expeditious dispensation of justice. Thus, they are enjoined to try their best efforts to accomplish personal service on defendant. On the other hand, since the defendant is expected to try to avoid and evade service of summons, the sheriff must be resourceful, persevering, canny, and diligent in serving the process on the defendant. For substituted service of summons to be available, there must be several attempts by the sheriff to personally serve the summons within a reasonable period [of one month] which eventually resulted in failure to prove impossibility of prompt service. "Several attempts" means at least three (3) tries, preferably on at least two different dates. In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of service can be confirmed or accepted.
(2) Specific Details in the Return
The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service. The efforts made to find the defendant and the reasons behind the failure must be clearly narrated in detail in the Return. The date and time of the attempts on personal service, the inquiries made to locate the defendant, the name/s of the occupants of the alleged residence or house of defendant and all other acts done, though futile, to serve the summons on defendant must be specified in the Return to justify substituted service. The form on Sheriffs Return of Summons on Substituted Service prescribed in the Handbook for Sheriffs published by the Philippine Judicial Academy requires a narration of the efforts made to find the defendant personally and the fact of failure. Supreme Court Administrative Circular No. 5 dated November 9, 1989 requires that "impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts," which should be made in the proof of service.
(3) A Person of Suitable Age and Discretion
If the substituted service will be effected at defendant's house or residence, it should be left with a person of "suitable age and discretion then residing therein." A person of suitable age and discretion is one who has attained the age of full legal capacity (18 years old) and is considered to have enough discernment to understand the importance of a summons. "Discretion" is defined as "the ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed". Thus, to be of sufficient discretion, such person must know how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus, the person must have the "relation of confidence" to the defendant, ensuring that the latter would receive or at least be notified of the receipt of the summons. The sheriff must therefore determine if the person found in the alleged dwelling or residence of defendant is of legal age, what the recipient's relationship with the defendant is, and whether said person comprehends the significance of the receipt of the summons and his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons. These matters must be clearly and specifically described in the Return of Summons.
(4) A Competent Person in Charge
If the substituted service will be done at defendant's office or regular place of business, then it should be served on a competent person in charge of the place. Thus, the person on whom the substituted service will be made must be the one managing the office or business of defendant, such as the president or manager; and such individual must have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons. Again, these details must be contained in the Return.23 (Emphasis and underscoring supplied; citations omitted)
What then is a reasonable time for the sheriff to effect a personal service in order to demonstrate impossibility of prompt service? To the plaintiff, "reasonable time" means no more than seven (7) days since an expeditious processing of a complaint is what a plaintiff wants. To the sheriff, "reasonable time" means 15 to 30 days because at the end of the month, it is a practice for the branch clerk of court to require the sheriff to submit a return of the summons assigned to the sheriff for service. The Sheriffs Return provides data to the Clerk of Court, which the clerk uses in the Monthly Report of Cases to be submitted to the Office of the Court Administrator within the first ten (10) days of the succeeding month. Thus, one month from the issuance of summons can be considered "reasonable time" with regard to personal service on the defendant.24
Thus, to be of sufficient discretion, such person must know how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action. Thus, the person must have the "relation of confidence" to the defendant, ensuring that the latter would receive or at least be notified of the receipt of the summons. The sheriff must therefore determine if the person found in the alleged dwelling or residence of defendant is of legal age, what the recipient's relationship with the defendant is, and whether said person comprehends the significance of the receipt of the summons and his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons. These matters must be clearly and specifically described in the Return of Summons.27
The Return of Summons shows no effort was actually exerted and no positive step taken by either the process server or petitioners to locate and serve the summons personally on respondents. At best, the Return merely states the alleged whereabouts of respondents without indicating that such information was verified from a person who had knowledge thereof. Certainly, without specifying the details of the attendant circumstances or of the efforts exerted to serve the summons, a general statement that such efforts were made will not suffice for purposes of complying with the rules of substituted service of summons.29 (Emphasis and underscoring supplied)
Sec. 20. Voluntary appearance. - The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person shall not be deemed a voluntary appearance.
Preliminarily, jurisdiction over the defendant in a civil case is acquired either by the coercive power of legal processes exerted over his person, or his voluntary appearance in court. As a general proposition, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. It is by reason of this rule that we have had occasion to declare that the filing of motions to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration, is considered voluntary submission to the court's jurisdiction. This, however, is tempered by the concept of conditional appearance, such that a party who makes a special appearance to challenge, among others, the court's jurisdiction over his person cannot be considered to have submitted to its authority.
Prescinding from the foregoing, it is thus clear that:chanroblesvirtuallawlibrary
(1) Special appearance operates as an exception to the general rule on voluntary appearance; (2) Accordingly, objections to the jurisdiction of the court over the person of the defendant must be explicitly made, i.e., set forth in an unequivocal manner; and (3) Failure to do so constitutes voluntary submission to the jurisdiction of the court, especially in instances where a pleading or motion seeking affirmative relief is filed and submitted to the court for resolution.34 (Emphasis supplied and underscoring supplied)
* Per Special Order No. 1862, dated 4 November 2014.
** Per Raffle dated 13 October 2014.
1 Penned by Associate Justice Celia C. Librea-Leagogo with Associate Justices Regalado E. Maambong and Sixto C. Marella, Jr., concurring; CA rollo, pp. 490-511.
2 Id. at 576-577.
3 Penned by Presiding Judge Concepcion S. Alarcon-Vergara; records, vol. 2, pp. 244-251.
4 Prudential Bank, as the duly appointed Administrator of the Estate of Juliana Diez Vda. De Gabriel v. Atty. Amador A. Magdamit, Jr. and Amador Magdamit, Sr., Civil Case No. 174798; records, vol. 1, pp. 15-18.
5 Id. at 72.
7 Id. at 77-82.
8 Id. at 207-217.
9 Id. at 210; CA Decision in CA-G.R. No. 93368; CA rollo, p. 504.
10 Records, vol. 1, p. 551.
11 Penned by Presiding Judge Sarah Alma M. Lim; id. at 552.
12 Records, vol. 2, pp. 244-251.
13 Id. at 251.
14 CA rollo, pp. 510-511.
15Rollo, pp. 24-25.
16 Id. at 504.
17 Records, vol. l,p. 148.
18 Id. at 28.
19Spouses Belen v. Judge Chavez, et al, 573 Phil. 58, 67 (2008).
20Tarn-Wong v. Factor-Koyama, 616 Phil. 239, 250 (2009).
21Sps. Jose v. Sps. Boyon, 460 Phil. 354, 363 (2003).
22 530 Phil. 454 (2006).
23 Id. at 468-471.
24 Id. at 469.
25 167 Phil. 567(1977).
26 Id. at 573-574; Filmerco Commercial Co., Inc. v. Intermediate Appellate Court, 233 Phil. 197, 203 (1987).
27Manoloc v. Court of Appeals, supra note 22, at 471.
28 Supra note 21.
29 Id. at 364.
31Ang Ping v. Court of Appeals, 369 Phil. 607, 614 (1999).
32 Section 6, B.P. Blg. 129.
33 606 Phil. 615(2009).
34 Id. at 633-634.
35Rapid City Realty and Development Corporation v. Villa, G.R. No. 184197, 11 February 2010, 612 SCRA 302, 306.