SUMMONS

PABLO B. CASIMINA VS. HON. EMILIO B. LEGASPI

GR NO. 147530, June 29, 2005

Involved personal movement of a government employee in the public service.

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 may acquire jurisdiction over his person. As a rule, summons should be
personally served on the defendant. It is only when summons cannot be served personally within a
reasonable period of the time that substituted service may be resorted to. The Rules specify two modes for
effecting substituted service of summons to wit:

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 copies at defendant’s office or regular place of business with some competent person
in charge thereof.

Here, petitioner never received the summons against him, whether personally or in his office.
The records show that petitioner’s official addresses as the General Manager of the Phil. Fisheries Dev.
Authority was in Quezon City. Yet, the summons, was served not in his Manila Office but in PFDA in Iloilo
branch office and received by the records receiving officer there.

The failure to faithfully, strictly and fully comply with the requirements of substituted service renders the
service ineffective.

The doctrine of substantial compliance requires that for there to be a valid service of summons, actual
receipts of the summons by the defendant through the person served must be shown.

FILMERCO COMMERCIAL VS. IAC

GR NO. 70661, APRIL 9, 1987

The main issue in this petition is whether or not the petitioners were served valid summons so as to bring
their within the jurisdiction of the court.

Valid service of summons on defendant spouses – not valid in the case.

Valid service of summons on defendant-corporation – not valid in the case.

There was no valid service of summons upon the defendant spouses that could be effected thru Mrs. Angle
Morger. The rule designates the persons to whom copies of the process may be left. The rule presupposes
that such a relation of confidence exists between the person with whom the copy is left and the defendant
and therefore, assumes that such person will deliver the process to defendant or in some way give notice
thereof. Mrs. Morger's manifestation negates any close relationship between herself and the defendant-
spouses to qualify her as representative of the former to receive summons in their behalf.
Filmerco Commercial Co., Inc., (Filmerco) obtained two separate loans from the Bank of Philippine Islands
(BPI) on November 26, 1982 and December 26, 1982 respectively. As security for the payment of the
obligation stated in the promissory notes, spouses Jaime and Ana Maria Miguel executed a deed of
continuing suretyship wherein the Miguels bound themselves jointly and solidarily with Filmerco for the
payment of the latter's obligation under the loan-accounts.

The loans remained outstanding even after they became due and demandable. Hence, on May 5,1983,
BPI filed a complaint docketed as Civil Case No. 2807 for recovery of a sum of money against Filmerco
and spouses Jaime and Ana Maria Miguel before the Regional Trial Court of Makati, Rizal.

Upon motion of the plaintiff, the defendants were in default for failure to file an answer within the
reglementary period. The plaintiff was then allowed to present its evidence ex-parte.

The lower court rendered a judgment in favor of the plaintiff and against defendants.

On the ground that the period to appeal expired without any decision having been appealed, the plaintiff
filed a motion for execution of judgment before the lower court. This motion was granted and a writ of
execution was issued against Filmerco and the Miguels.

Pursuant to the writ of execution, respondent Sheriff Villapana levied on and attached alleged properties of
Filmerco and the Miguels. These properties were scheduled for sale on September 20, 1984.

On September 25, 1984, the defendants filed a motion to set aside the decision, writ of execution, notice
of levy/attachment and to restrain the holding of the auction sale. The motion was premised on the ground
that the court had no jurisdiction over the defendants because no valid summons was served on them.

The lower court denied aforesaid motion.

According to the sheriff's return dated September 7, 1983, summons and copy of the complaint were not
served on the petitioners at 31 Sta. Escolastica Street, Pasay City, their given principal place of business
and had to be returned to the court unserved for the reason that the "defendants have already vacated the
premises and/or addresses more than a year ago and no definite information could be had regarding their
present whereabouts." Three separate summons for each of the defendants were addressed to 31 Sta.
Scholastics Street, Pasay City, Metro Manila.

Upon motion of the private respondent (plaintiff in the case) the lower court issued alias summons.

According to the sheriff's return dated March 31, 1984, summons were duly served upon "defendant-
spouses Jaime and Ana Maria Miguel at No. 18, Yuchengco Drive, Pacific Malayan Village, Alabang,
Muntinlupa, Metro Manila, thru Mrs. Angle Morger, a person residing therein of suitable age and discretion
to receive service of that nature and who received the said court processes for and in behalf of the
defendants but refused to sign." It was noted therein that the defendant spouses are "duly served" but that
the other defendant Filmerco was "not and could not be served"and the summons pertaining to it was "
returned unserved."

There can be no dispute that service of summons upon the defendant is necessary in order that a court
may acquire jurisdiction over his person. Any judgment without such service in the absence of a valid waiver
is null and void. (Keister v. Navarro, 77 SCRA 209).
Pursuant to Section 7, Rule 14 of the Revised Rules of court, summons must be served on the defendant.
However, when the defendant cannot be served personally within a reasonable time after efforts to locate
him have failed, substituted service may be made.

In the case at bar, there is no question that personal service of summons upon the defendants could not
be made because they moved out from their given address and their whereabouts were unknown as
indicated in the sheriff's return. Hence, the court resorted to substituted service of summons provided for
under Section 8, Rule 14 of the Revised Rules of Court:

SEC. 8. Substituted service. — If 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 dwelling house or 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.

Applying these principles to the case at bar, we find that no valid service of summons upon the defendant
spouses could be effected thru Mrs. Angle Morger. In her affidavits, Mrs. Morger manifested that she and
her husband are the bona fide residents of 18 Yuchengco Drive, Pacific Malayan Village, Alabang, Metro
Manila; that they leased the said premises from the owner thereof as evidenced by a contract of lease dated
August 8, 1983; that they have been occupying the premises since September 1, 1983; that on March 31,
1984, Sheriff Villapana attempted to serve the official summons and a copy of a complaint against spouses
Jaime and Ana Maria Miguel and Filmerco Commercial Inc.; that she informed the sheriff that the Miguels
do not reside in the place and that neither was said residence the dwelling place of the Miguel spouses;
that she does not know Filmerco, Inc.; that despite the fact that she informed the sheriff that she is not
authorized by the spouses and Filmerco to receive any papers for them, the sheriff left, leaving some
documents with her maid, Daday Lopez; that she did not affix her signature on the documents being then
served by the sheriff nor did the maid affix hers; that the documents left by the sheriff with the maid were
not even ascertained nor read by the affiant. Mrs. Morger's manifestation is not refuted or rebutted.

... [T]he rule designates the persons to whom copies of the process may be left. The rule presupposes that
such a relation of confidence exists between the person with whom the copy is left and the defendant and
therefore, assumes that such person will deliver the process to defendant or in some way give notice
thereof. (Keister v. Navarro, supra)

Mrs. Morger's manifestation negates any close relationship between herself and the defendant-spouses to
qualify her as representative of the former to receive summons in their behalf.

We have explained the doctrine of piercing the veil of corporate fiction in the following manner:

The doctrine that a corporation is a legal entity distinct and separate from the members
and stockholders who compose it is recognized and respected in all cases which are within
reason and the law. (Borja v. Vasquez, 74 Phil. 56), When the fiction is urged as a means
of perpetrating a fraud or an illegal act or as a vehicle for the evasion of an existing
obligation, the circumvention of statutes, the achievement or perfection of a monopoly or
generally the perpetration of knavery or crime, (Koppel Phil. v. Yatco, 77 Phil. 496; Lidell &
Co. v. Collector, G.R. No. L-9687, June 30, 1961; Commissioner v. Norton & Harrison
Company, G.R. No. L- 17618, Aug. 31, 1964; and Guevarra, Phil. Corp. Law, 1961 ed., p.
7) the veil with which the law covers and isolates the corporation from the members or
stockholders who compose it will be drifted to allow for its consideration merely as an
aggregation of individuals. (Villa Rey Transit, Inc. v. Ferrer, 25 SCRA 845-857).

In effect, this doctrine refers to determination of liability and not to determination of jurisdiction.
This is so because the doctrine of piercing the veil of corporate fiction comes to play only during the trial of
the case after the court has already acquired jurisdiction over the corporation. Hence, before this doctrine
can be applied, based on the evidence to be presented, it is imperative that the court must first have
jurisdiction over the corporation. For the court to acquire jurisdiction over a domestic corporation such as
the petitioner corporation, summons must be served upon it through the officers of the corporation
enumerated in Section 13, Rule 14 of the Revised Rules of Court. There is not even a semblance of any
effort to serve summons upon an officer as such. Since, the summons intended for the petitioner-
corporation was "not and could not be served" as certified in the sheriff's return, the lower court never
acquired jurisdiction over the petitioner-corporation. It follows that the judgment against the petitioner-
corporation is null and void

The allegations that the petitioners deliberately concealed their whereabouts to escape the payment of just
and valid obligations appear to have some basis. However, allegations such as these do not justify the
appellate court's upholding a judgment wherein the trial court has not acquired jurisdiction over the persons
of the defendants.

The private respondent has chosen to employ a procedure which is strictly in personam. As indicated in the
cases of Citizens Surety and Insurance, Inc. v. Melencio-Herrera (38 SCRA 369) and Magdalena Estate,
Inc. v. Nieto (125 SCRA 758) it is also possible to use proceedings in rem or quasi in rem to achieve the
same desired ends. There may be other ways which, if utilized, would insure that the courts acquire
jurisdiction over defendants in recovery of money cases but the shortcut method approved by the
respondent court is not one of them.

WHEREFORE, the instant petition is hereby GRANTED. The lower court's decision in Civil Case No. 2807
is SET ASIDE. The case is remanded to the trial court for proper service of summons and trial.

ROSENDO ALBA VS. COURT OF APPEALS

GR NO. 164041, JULY 29, 2005

TOPIC: Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem
Substantial correction or cancellations of entries in civil registry

The filing with the trial court of the petition for cancellation vested the latter jurisdiction over
the res. Substantial corrections or cancellations of entries in civil registry records affecting the status or
legitimacy of a person may be effected through the institution of a petition under Rule 108 of the Revised
Rules of Court, with the proper Regional Trial Court.28 Being a proceeding in rem, acquisition of jurisdiction
over the person of petitioner is therefore not required in the present case. It is enough that the trial court is
vested with jurisdiction over the subject matter.

Armi and petitioner minor filed a petition for annulment of judgment before the Court of Appeals on the
grounds of extrinsic fraud and lack of jurisdiction over their person.

Under Section 2, Rule 47 of the 1997 Revised Rules of Civil Procedure, judgments may be annulled on the
grounds of lack of jurisdiction and extrinsic fraud.19

Whether or not the trial court acquired jurisdiction over the person of petitioner and her minor child depends
on the nature of private respondent’s action, that is, in personam, in rem or quasi in rem. An action in
personam is lodged against a person based on personal liability; an action in rem is directed against the
thing itself instead of the person; while an action quasi in rem names a person as defendant, but its object
is to subject that person’s interest in a property to a corresponding lien or obligation. 20

Hence, petitions directed against the "thing" itself or the res, which concerns the status of a person, like a
petition for adoption, annulment of marriage, or correction of entries in the birth certificate,25 as in the instant
case, are actions in rem.

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly
try and decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant
is not a prerequisite to confer jurisdiction on the court, provided that the latter has jurisdiction over the res.
Jurisdiction over the res is acquired either (a) by the seizure of the property under legal process, whereby
it is brought into actual custody of the law; or (b) as a result of the institution of legal proceedings, in which
the power of the court is recognized and made effective. 26 The service of summons or notice to the
defendant is not for the purpose of vesting the court with jurisdiction but merely for satisfying the due
process requirements.27

In the case at bar, the filing with the trial court of the petition for cancellation vested the latter
jurisdiction over the res. Substantial corrections or cancellations of entries in civil registry records affecting
the status or legitimacy of a person may be effected through the institution of a petition under Rule 108 of
the Revised Rules of Court, with the proper Regional Trial Court.28 Being a proceeding in rem, acquisition
of jurisdiction over the person of petitioner is therefore not required in the present case. It is enough that
the trial court is vested with jurisdiction over the subject matter.

The service of the order at No. 418 Arquiza St., Ermita, Manila and the publication thereof in a newspaper
of general circulation in Manila, sufficiently complied with the requirement of due process, the essence of
which is an opportunity to be heard. Said address appeared in the birth certificate of petitioner minor as the
residence of Armi. Considering that the Certificate of Birth bears her signature, the entries appearing therein
are presumed to have been entered with her approval. Moreover, the publication of the order is a notice to
all indispensable parties, including Armi and petitioner minor, which binds the whole world to the judgment
that may be rendered in the petition. An in rem proceeding is validated essentially through
publication. The absence of personal service of the order to Armi was therefore cured by the trial court’s
compliance with Section 4, Rule 108, which requires notice by publication.

Verily, a petition for correction is an action in rem, an action against a thing and not against a person. The
decision on the petition binds not only the parties thereto but the whole world. An in rem proceeding is
validated essentially through publication. Publication is notice to the whole world that the proceeding has
for its object to bar indefinitely all who might be minded to make an objection of any sort against the right
sought to be established. It is the publication of such notice that brings in the whole world as a party in the
case and vests the court with jurisdiction to hear and decide it.

E.B. VILLAROSA & PARTNER CO., LTD, VS. HON. HERMINIO I. BENITO
GR NO. 136426, AUGUST 6, 1999

TOPIC: Voluntary Appearance, Personal Service

Defendant prayed for the dismissal of the complaint on the ground of improper service of summons and for
lack of jurisdiction over the person of the defendant. Defendant contends that the trial court did not acquire
jurisdiction over its person since the summons was improperly served upon its employee in its branch office
who is not one of those persons named in Section 11, Rule 14 of the 1997 Rules of Civil Procedure upon
whom service of summons may be made.
The RTC is declared to have no jurisdiction to take cognizance of the Civil Case there being no valid service
of summon.

There was no valid service of summons on Villarosa as service was made through a person not included
in the enumeration in Section 11, Rule 14 of the 1997 Rules of Civil Procedure. The enumeration under the
new rule is restricted, limited and exclusive.The service of summons upon the branch manager of petitioner
at its branch office at Cagayan de Oro, instead of upon the general manager at its principal office at Davao
City is improper. Consequently, the trial court did not acquire jurisdiction over the person of the petitioner.

Petitioner E.B. Villarosa & Partner Co., Ltd. is a limited partnership with principal office address at 102 Juan
Luna St., Davao City and with branch offices at 2492 Bay View Drive, Tambo, Parañaque, Metro Manila
and Kolambog, Lapasan, Cagayan de Oro City. Petitioner and private respondent executed a Deed of Sale
with Development Agreement wherein the former agreed to develop certain parcels of land located at Barrio
Carmen, Cagayan de Oro belonging to the latter into a housing subdivision for the construction of low cost
housing units. They further agreed that in case of litigation regarding any dispute arising therefrom, the
venue shall be in the proper courts of Makati.

private respondent, as plaintiff, filed a Complaint for Breach of Contract and Damages against petitioner,
as defendant, before the Regional Trial Court of Makati allegedly for failure of the latter to comply with its
contractual obligation.

Summons, together with the complaint, were served upon the defendant, through its Branch Manager Engr.
Wendell Sabulbero at the stated address at Kolambog, Lapasan, Cagayan de Oro City2 but the Sheriff's
Return of Service3stated that the summons was duly served "upon defendant E.B. Villarosa & Partner Co.,
Ltd. thru its Branch Manager Engr. WENDELL SALBULBERO on May 5, 1998 at their new office Villa
Gonzalo, Nazareth, Cagayan de Oro City, and evidenced by the signature on the face of the original copy
of the summons.1âwphi1.nêt

defendant filed a Special Appearance with Motion to Dismiss 4 alleging that on May 6, 1998, "summons
intended for defendant" was served upon Engr. Wendell Sabulbero, an employee of defendant at its branch
office at Cagayan de Oro City. Defendant prayed for the dismissal of the complaint on the ground of
improper service of summons and for lack of jurisdiction over the person of the defendant. Defendant
contends that the trial court did not acquire jurisdiction over its person since the summons was improperly
served upon its employee in its branch office at Cagayan de Oro City who is not one of those persons
named in Section 11, Rule 14 of the 1997 Rules of Civil Procedure upon whom service of summons may
be made.

The designation of persons or officers who are authorized to accept summons for a domestic corporation
or partnership is now limited and more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil
Procedure. The rule now states "general manager" instead of only "manager"; "corporate secretary" instead
of "secretary"; and "treasurer" instead of "cashier." The phrase "agent, or any of its directors" is
conspicuously deleted in the new rule.

The particular revision under Section 11 of Rule 14 was explained by retired Supreme Court Justice Florenz
Regalado, thus:23

. . . the then Sec. 13 of this Rule allowed service upon a defendant corporation to "be made on the
president, manager, secretary, cashier, agent or any of its directors." The aforesaid terms were
obviously ambiguous and susceptible of broad and sometimes illogical interpretations, especially
the word "agent" of the corporation. The Filoil case, involving the litigation lawyer of the corporation
who precisely appeared to challenge the validity of service of summons but whose very appearance
for that purpose was seized upon to validate the defective service, is an illustration of the need for
 this revised section with limited scope and specific terminology. Thus the absurd result in the Filoil
case necessitated the amendment permitting service only on the in-house counsel of the
corporation who is in effect an employee of the corporation, as distinguished from an independent
practitioner. (emphasis supplied).

The rule must be strictly observed. Service must be made to one named in (the) statute…

Accordingly, we rule that the service of summons upon the branch manager of petitioner at its branch office
at Cagayan de Oro, instead of upon the general manager at its principal office at Davao City is improper.
Consequently, the trial court did not acquire jurisdiction over the person of the petitioner.

The fact that defendant filed a belated motion to dismiss did not operate to confer jurisdiction upon its
person.

Section 20 now provides that "the inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a voluntary appearance." The
emplacement of this rule clearly underscores the purpose to enforce strict enforcement of the rules on
summons. Accordingly, the filing of a motion to dismiss, whether or not belatedly filed by the defendant, his
authorized agent or attorney, precisely objecting to the jurisdiction of the court over the person of the
defendant can by no means be deemed a submission to the jurisdiction of the court. There being no proper
service of summons, the trial court cannot take cognizance of a case for lack of jurisdiction over the person
of the defendant. Any proceeding undertaken by the trial court will consequently be null and void.

MASON VS CA
GR NO. 144662, OCT. 13, 2003

TOPIC: Voluntary Appearance, Personal Service

Summons was served by a mere filing clerk. Petitioner stressed that there was a substantial compliance
since the summons actually reached private respondent.

a. Whether there was valid service of summons on private respondent for the trial court to acquire
jurisdiction, and

b. Whether private respondent’s motion to lift order of default was in order.

Notice to enable the other party to be heard and to present evidence is not a mere technicality or a trivial
matter in any administrative or judicial proceedings. The service of summons is a vital and indispensable
ingredient of due process. We will deprive private respondent of its right to present its defense in this multi-
million peso suit, if we disregard compliance with the rules on service of summons.

The service of summons upon private respondent through its filing clerk cannot be considered valid. Hence,
it necessarily follows therefore that the Regional Trial Court of Pasay City did not acquire jurisdiction over
private respondent. Consequently, all the subsequent proceedings held before it, including the order of
default, are null and void.

Petitioners spouses Efren and Digna Mason owned two parcels of land located along Epifanio delos Santos
Avenue in Pasay City. On March 30, 1993, petitioners and private respondent Columbus Philippines Bus
Corporation (hereafter Columbus) entered into a lease contract, under which Columbus undertook to
construct a building worth ten million pesos (₱10,000,000) at the end of the third year of the lease. Because
private respondent failed to comply with this stipulation, the petitioners on November 13, 1998, filed a
complaint for rescission of contract with damages against private respondent before the Regional Trial
Court of Pasay City. Summons was served upon private respondent through a certain Ayreen Rejalde.
While the receiving copy of the summons described Rejalde as a secretary of Columbus, the sheriff’s return
described Rejalde as a secretary to the corporate president, duly authorized to receive legal processes.

Private respondent failed to file its answer or other responsive pleading, hence petitioners filed a motion to
declare private respondent in default. The motion was granted and petitioners were allowed to present
evidence ex-parte.

Private respondent filed a motion to lift order of default, which was opposed by petitioners.

The Court of Appeals held that the trial court erred when it denied private respondent’s motion to lift order
of default. The appellate court pointed out that private respondent was not properly served with summons,
thus it cannot be faulted if it failed to file an Answer.

Notice to enable the other party to be heard and to present evidence is not a mere technicality or a trivial
matter in any administrative or judicial proceedings. The service of summons is a vital and indispensable
ingredient of due process.16 We will deprive private respondent of its right to present its defense in this
multi-million peso suit, if we disregard compliance with the rules on service of summons.

Since service upon it was invalid, the trial court did not acquire jurisdiction over it. Hence, all the subsequent
proceedings in the trial court are null and void, including the order of default.

Since we have ruled that service of summons upon private respondent through its filing clerk cannot be
considered valid, it necessarily follows therefore that the Regional Trial Court of Pasay City did not acquire
jurisdiction over private respondent. Consequently, all the subsequent proceedings held before it, including
the order of default, are null and void.

FORTUNATO GOMEZ VS COURT OF APPEALS

GR NO. 127692, MARCH 10, 2004

TOPIC: SUBSTITUTED SERVICE

Private respondents alleged that the trial court’s decision is null and void on the ground that it did not
acquire jurisdiction over their persons as they were not validly served with a copy of the summons
and the complaint.

The resolution of the present petition hinges on the issue of whether or not summons was effectively
served on respondents. If in the affirmative, the trial court had validly acquired jurisdiction over their
persons and therefore its judgment is valid.

NOTES to consider in the case:

a) Personal service of summons must be made on the person of the defendant in actions in
peronam.
b) It cannot be served to another or resort to substituted service of summon if there is no showing
of impossibility of personal service to the defendant.
c) If the defendant is outside of the country, then the court cannot validly try and decide the case
against him.

When the defendant in an action in personam is a non-resident who does not voluntarily submit himself to
the authority of the court, personal service of summons within the State is essential to the acquisition of
jurisdiction over his person. This cannot be done if the defendant is not physically present in the country,
and thus, the court cannot acquire jurisdiction over his person and therefore cannot validly try and decide
the case against him.

The judgment sought to be executed against respondents were rendered without jurisdiction as there was
neither a proper service of summons nor was there any waiver or voluntary submission to the trial court’s
jurisdiction. Hence, the same is void, with regard to private respondents except Caridad Trocino. Caridad
Trocino was validly served with summons and was accorded due process.

The process server served the summons and copies of the complaint on respondents Jacob, Jesus, Jr.,
Adolfo, Mariano, Consolacion, Alice and Racheal, through their mother, Caridad Trocino. The return did
not contain any particulars as to the impossibility of personal service on Mariano Trocino within a
reasonable time. Considering that the case was an action in personam, such improper service
renders the same ineffective.

Petitioners filed a civil action for specific performance/ recession against the heirs of Jesus J. Trocino, Sr.,
which include herein respondents and their mother Caridad Trocino. Private respondents alleged that the
trial court’s decision is null and void on the ground that it did not acquire jurisdiction over their persons as
they were not validly served with a copy of the summons and the complaint. According to them, at the time
summons was served on them, Adolfo Trocino was already in Ohio, U.S.A., and has been residing there
for 25 years, while Mariano Trocino was in Talibon, Bohol, and has been residing there since 1986. They
also refuted the receipt of the summons by Caridad A. Trocino, and the representation made by Atty.
Bugarin in their behalf. Respondents also contended that they have a meritorious defense.Petitioners filed
their Comment/Answer to the petition.

On September 30, 1996, the Court of Appeals issued the assailed Decision granting the petition and
annulling the decision of the RTC.

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. Any judgment without such service in
the absence of a valid waiver is null and void.

To resolve whether there was valid service of summons on respondents, the nature of the action filed
against them must first be determined. It will be helpful to determine first whether the action is in personam,
in rem, or quasi in rem because the rules on service of summons under Rule 14 of the Rules of Court of
the Philippines apply according to the nature of the action.

In actions in personam, summons on the defendant must be served by handing a copy thereof to the
defendant in person, or, if he refuses to receive it, by tendering it to him. This is specifically provided in
Section 7, Rule 14 of the Rules of Court, which states:

SEC. 7. Personal service of summons.-- The summons shall be served by handing a copy thereof to the
defendant in person or, if he refuses to receive it, by tendering it to him.

If efforts to find defendant personally makes prompt service impossible, substituted service may be effected
by leaving copies of the summons at the defendant's dwelling house or residence with some person of
suitable age and discretion then residing therein, or by leaving the copies at the defendant's office or regular
place of business with some competent person in charge thereof. In substituted service, it is mandated that
the fact of impossibility of personal service should be explained in the proof of service.

When the defendant in an action in personam is a non-resident who does not voluntarily submit himself to
the authority of the court, personal service of summons within the State is essential to the acquisition of
jurisdiction over his person. This cannot be done if the defendant is not physically present in the country,
and thus, the court cannot acquire jurisdiction over his person and therefore cannot validly try and decide
the case against him. An exception was accorded in Gemperle vs. Schenker wherein service of summons
through the non-resident’s wife, who was a resident of the Philippines, was held valid, as the latter was his
representative and attorney-in-fact in a prior civil case filed by the non-resident, and the second case was
merely an offshoot of the first case.

Meanwhile, in actions in rem or quasi in rem, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res,
although summons must be served upon the defendant in order to satisfy the due process
requirements. Thus, where the defendant is a non-resident who is not found in the Philippines, and (1) the
action affects the personal status of the plaintiff; (2) the action relates to, or the subject matter of which is
property in the Philippines in which the defendant has or claims a lien or interest; (3) the action seeks the
exclusion of the defendant from any interest in the property located in the Philippines; or (4) the property of
the defendant has been attached in the Philippines, summons may be served extraterritorially by (a)
personal service out of the country, with leave of court; (b) publication, also with leave of court; or (c) any
other manner the court may deem sufficient.

In the present case, petitioners’ cause of action in Civil Case No. CEB-11103 is anchored on the claim that
the spouses Jesus and Caridad Trocino reneged on their obligation to convey ownership of the two parcels
of land subject of their sale. Thus, petitioners pray in their complaint that the spouses Trocino be ordered
to execute the appropriate deed of sale and that the titles be delivered to them (petitioners); or in the
alternative, that the sale be revoked and rescinded; and spouses Trocino ordered to return to petitioners
their down payment in the amount of P500,000.00 plus interests. The action instituted by petitioners
affect the parties alone, not the whole world. Hence, it is an action in personam, i.e., any judgment
therein is binding only upon the parties properly impleaded.

The Civil Case No. CEB-11103 is an action in personam because it is an action against persons, namely,
herein respondents, on the basis of their personal liability. As such, personal service of summons upon
the defendants is essential in order for the court to acquire of jurisdiction over their persons.

An action in personam is an action against a person on the basis of his personal liability, while an action in
rem is an action against the thing itself, instead of against the person. Hence, a real action may at the same
time be an action in personam and not necessarily an action in rem.

A distinction, however, must be made with regard to service of summons on respondents Adolfo Trocino
and Mariano Trocino. Adolfo Trocino, as records show, is already a resident of Ohio, U.S.A. for 25 years.
Being a non-resident, the court cannot acquire jurisdiction over his person and validly try and decide the
case against him.

On the other hand, Mariano Trocino has been in Talibon, Bohol since 1986. To validly acquire jurisdiction
over his person, summons must be served on him personally, or through substituted service, upon showing
of impossibility of personal service. Such impossibility, and why efforts exerted towards personal service
failed, should be explained in the proof of service. The pertinent facts and circumstances attendant to the
service of summons must be stated in the proof of service or Officer’s Return. Failure to do so would
invalidate all subsequent proceedings on jurisdictional grounds.

In the present case, the process server served the summons and copies of the complaint on respondents
Jacob, Jesus, Jr., Adolfo, Mariano, Consolacion, Alice and Racheal, through their mother, Caridad
Trocino. The return did not contain any particulars as to the impossibility of personal service on
Mariano Trocino within a reasonable time. Such improper service renders the same ineffective.

Due process of law requires personal service to support a personal judgment, and, when the proceeding is
strictly in personam brought to determine the personal rights and obligations of the parties, personal service
within the state or a voluntary appearance in the case is essential to the acquisition of jurisdiction so as to
constitute compliance with the constitutional requirement of due process.
Inasmuch as the sheriff’s return failed to state the facts and circumstances showing the impossibility of
personal service of summons upon respondents within a reasonable time, petitioners should have sought
the issuance of an alias summons. Under Section 5, Rule 14 of the Rules of Court, alias summons may be
issued when the original summons is returned without being served on any or all of the
defendants. Petitioners, however, did not do so, and they should now bear the consequences of their lack
of diligence.

The fact that Atty. Expedito Bugarin represented all the respondents wicthout any exception does not
transform the ineffective service of summons into a valid one. It does not constitute a valid waiver or even
a voluntary submission to the trial court’s jurisdiction. There was not even the slightest proof showing that
respondents authorized Atty. Bugarin’s appearance for and in their behalf.

The judgment sought to be executed against respondents were rendered without jurisdiction as there was
neither a proper service of summons nor was there any waiver or voluntary submission to the trial court’s
jurisdiction. Hence, the same is void, with regard to private respondents except Caridad Trocino.

LAGRIMAS PACANA-GONZALES VS COURT OF APPEALS

GR NO. 150908, JANUARY 21, 2005

TOPIC: Constructive Service (by publication)

a) Service upon a defendant where his identity is unknown or where his whereabouts are
unknown
b) Service upon residents temporarily outside the Philippines

NOTES to consider in the case:

c) The need of the supporting affidavit in Summons by Publication
d) Newspaper where summons is published must be of General Circulation
e) Presentation of Proof of Service by Publication must be shown and complied with.

In this case, the "Motion for Service of Summons by Publications" filed by the counsel of the Heirs of Pacaña
bears no supporting affidavit. Nor that The Visayan Herald is a newspaper of general circulation. It
was not also shown that the Heir of Pacana has complied with the with the rule on the presentation of proof
of service by publication which may be proved by the affidavit of the printer..etc.

Petitioner’s appeal for liberality in the application of the rules, "technicalities not being permitted to sway
the broader interest of justice," does not lie. Modes of service of summons must be strictly followed in
order that the court may acquire jurisdiction over the person of the defendant. The purpose of this is
to afford the defendant an opportunity to be heard on the claim against him. The summons intended for
Phua being invalid, the trial court did not acquire jurisdiction over him and could not as it did not render a
valid judgment against him.

The Spouses Enemesio Emerillo and Urbana Taborada (Amarillo Spouses or Spouses Amarillo), registered
owners of subject lot conveyed the same to herein respondent Manuel Carbonell Phua (Phua), following
which the Amarillo Spouses’ title was cancelled and, in its place, TCT No. 62176 was issued in the name
of Phua.
More than a decade later the Heirs of Josefa Gacho Pacaña (Heirs of Pacaña), claiming that the subject
lot was originally decreed under Decree No. 74768 issued in 1919, to be registered and "apparently"
registered under Original Certificate of Title No. 1684 in the name of Josefa Gacho after she had died, filed
before the RTC of Cebu City a Complaint for Declaration of Nullity of Title and Annulment of the Deed
of Sale covering subject lot against the Spouses Amarillo and Phua.

Summons together with copy of the complaint was served to the therein defendants Spouses Amarillo but
not to Phua who was unknown at his given address at Salinas Compound, Salinas Drive, Lahug, Cebu City.

The Branch Clerk of Branch 11 of the RTC Cebu City, to which Civil Case No. CEB-6057 was raffled, thus
effected service of summons to Phua by postal service but the same failed, drawing the Heirs of Pacaña to
file a motion to effect service of summons by publication which motion was granted.

Summons and a copy of the complaints were accordingly published once a week for three consecutive
weeks.

No answer having been received from Phua within the reglementary period, the trial court declared him in
default and the Heirs of Pacaña were allowed to, as they did, present their evidence ex-parte.

The trial court rendered judgment in favor of the therein plaintiff Heirs of Pacaña. Phua filed a Petition for
Annulment of Judgment raising the issue of the validity of service of summons by publication.

Since Phua’s whereabouts were unknown and could not be ascertained by diligent inquiry, service of
summons by publication was correctly availed of by the Heirs of Pacaña.

The motion to be allowed to serve summons by publication required a supporting "affidavit of the plaintiff
or some person on his behalf setting forth the grounds for the application."

SEC. 16. Service upon an unknown defendant. — Whenever the defendant is designated as an unknown owner, or
the like, or whenever the address of a defendant is unknown and cannot be ascertained by diligent inquiry, service
may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places
and for such time as the court may order. (Underscoring supplied)

SEC. 19. Leave of court. — Any application to the court under this rule for leave to effect service in any manner for
which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some
person on his behalf, setting forth the grounds for the application. (Underscoring supplied)

SEC. 21. Proof of service by publication. — If the service has been made by publication, service may be proved by the
affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit
a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and order
for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address.
(Underscoring supplied)

The "Motion for Service of Summons by Publications" filed by the counsel of the Heirs of Pacaña bears no
supporting affidavit, however. It did not thus comply with the Rules.

Furthermore, it has not been shown that the Heirs of Pacaña had complied with the rule on the
presentation of proof of service by publication which, as above-quoted Section 21 provides, may
be proved by an affidavit of the printer . . . to which affidavit a copy of the publication shall be attached
and by an affidavit showing the deposit of a copy of the summons and order of publication in the post office,
postage prepaid, directed to the defendant by registered mail to his last known address. Nor that The
Visayan Herald is a newspaper of general circulation. 1a\^/phi 1.net
Petitioner’s appeal for liberality in the application of the rules, "technicalities not being permitted to sway
the broader interest of justice," does not lie. Modes of service of summons must be strictly followed in
order that the court may acquire jurisdiction over the person of the defendant. The purpose of this is
to afford the defendant an opportunity to be heard on the claim against him. The summons intended for
Phua being invalid, the trial court did not acquire jurisdiction over him and could not as it did not render a
valid judgment against him.

Petition denied for lack of merit. Costs against petitioner.

ROSALINDO P. ACANCE VS COURT OF APPEALS

GR NO. 159699, MARCH 16, 2005

TOPIC: Extra –territorial service, when allowed

NOTES to consider in the case:

In this case, the court a quo acted with grave abuse of discretion in declaring the petitioners in default
without showing that there was full compliance with the requirements for extraterritorial service of
summons under Section 15, Rule 14 of the Rules of Court.

Spouses Yolanda Quijano and Ambrocio Tria, Spouses Epifania Quijano and Raphael Villanueva, Spouses
Napoleon and Pilar Quijano (respondents herein), represented by their attorney-in-fact Engr. Julius F.
Villanueva, filed with the Regional Trial Court (RTC) of Muntinlupa an amended complaint against Spouses
Jesulito and Vilma Acance, Spouses Nestor and Lynne Acance, and Spouses Manuel and Guia Acance
(petitioners herein) seeking to annul the Extra-Judicial Settlement of the Estate of Deceased Jesus P.
Acance and Waiver of Rights dated February 10, 1997, executed by Jesulito, Manuel and Nestor, all
surnamed Acance, and their mother Angela.

The amended complaint alleged that the siblings Yolanda, Epifania and Napoleon were the legitimate
children of Angela Paglicawan and Vernier Quijano. The couple, however, became estranged after the birth
of their youngest child. Upon their separation, Vernier continued to reside in Looc, Occidental Mindoro while
Angela went to Manila to work as a nurse at the National Mental Hospital in Muntinlupa City. While working
thereat, Angela met Jesus Acance. They lived together as common law husband and wife and bore the
siblings Jesulito, Manuel and Nestor.

Some time in 1966, Angela went to the United States to work as a nurse. With the savings she earned
therefrom, she acquired the subject parcels of land in Muntinlupa and had the subject 9-door apartment
units constructed thereon. Jesus Acance lived with Angela in the United States. After Vernier passed away
in 1989, Jesus and Angela got married in 1990. Jesus died in 1996 in the United States.

In seeking to nullify the extra-judicial settlement of estate executed by the Acance siblings, the Quijano
siblings alleged that the subject real properties are conjugal properties of Angela and Vernier because
these were acquired by Angela during the subsistence of her first marriage with Vernier. As such, they (the
Quijano siblings) have a valid right to succeed over the said properties as the lawful and compulsory heirs
of Angela and Vernier.
Upon motion of the respondents (the Quijano siblings and their spouses), as plaintiffs therein, the court a
quo issued an order declaring the petitioners (the Acance siblings and their spouses), as defendants
therein, in default for their failure to file an answer to the amended complaint.

Petitioner Rosalino Acance, as attorney-in-fact and administrator of the subject properties, filed with the
court a quo a Motion to Lift/Set Aside Order of Default.

Petitioner Rosalino further alleged that he had not received a copy of the complaint filed in Civil Case
No. 01-122. The only pleading he received pertaining to the case was that of the motion to declare the
petitioners in default.

While the respondents claimed that they had complied with the service of summons by publication in
a newspaper of general circulation, it does not appear that they had presented to the court a quo the
"affidavit of the printer, his foreman, or principal clerk, or of the editor, business or advertising manager"
of the "Remate," where the publication was allegedly made, to prove such service by publication.
Neither did they present an affidavit showing the deposit of a copy of the summons and order of
publication in the post office, postage prepaid, directed to the petitioners by registered mail to their last
known addresses.

The failure to strictly comply correctly with the requirements of the rules regarding the mailing of copies
of the summons and the order for its publication is a fatal defect in the service of summons.11 As held
by this Court:

It is the duty of the court to require the fullest compliance with all the requirements of the statute
permitting service by publication. Where service is obtained by publication, the entire proceeding
should be closely scrutinized by the courts and a strict compliance with every condition of law should
be exacted. Otherwise great abuses may occur, and the rights of persons and property may be made
to depend upon the elastic conscience of interested parties rather than the enlightened judgment of
the court or judge.

RE: ISSUANCE OF SUBPOENA TO PRISONER NICANOR DE GUZMAN, JR.

A.M. No. 97-2-12- MTC, AUGUST 21, 1997

TOPIC: Service upon prisoners and minors

NOTES to consider in the case:

This case involved the violation of a judge of Administrative Circular No. 6 dated December 6, 1977 wherein
he caused the issuance of a subpoena to a detention prisoner, Nicanor de Guzman who was a life termer
in the New Bilibid Prison to appear before his court. There was also a deliberate inaction of the clerk of
court on her violation after her attention was called by the NBP Superintendent informing that the prisoner
was a life termer hence permission from the Supreme Court must be secured first to enable this office
to bring prisoner de Guzman before the Honorable Court

It was a judge’s duty to "examine and study carefully any application for the issuance of subpoena or
summons involving detention prisoners filed with their court . . ." If, indeed, the Judge was not remiss in his
duty in carefully examining the subpoena, then he would have clearly noticed that Nicanor de Guzman, Jr., a
resident of San Vicente Homes, Gapan, Nueva Ecija, is the same Nicanor de Guzman, Jr., a life termer
presently detained at the NBP.
 1. CONSTITUTIONAL LAW; SUPREME COURT; ADMINISTRATIVE CIRCULAR NO. 6; PROVIDES FOR THE
RULES REGARDING ISSUANCE OF SUBPOENA OR SUMMONS INVOLVING DETENTION
PRISONERS. — Administrative Circular No. 6 dated December 6, 1977 provides that: . . . pursuant
to Administrative Circular No. 2 dated December 2, 1976, no prisoner sentenced to death or life
imprisonment or detained upon legal process for the commission of any offense punishable by death
or life imprisonment conferred in NBP (New Bilibid Prison) is allowed to be brought outside of the said
penal institution for appearance or attendance in any court except when the Supreme Court authorize
the Judge, upon proper application, to effect the transfer of the said prisoner. In addition, the said
Circular directs every judge in Metro Manila and the Provinces of Rizal, Bulacan, Cavite and Laguna
who requires the appearance or attendance of any of the aforestated prisoners confined in the New
Bilibid Prisons in any judicial proceedings to conduct such proceeding within the premises of the said
penal institution. Administrative Circular No. 6 is not as obscure as respondents suggest it to be.
While this may have been issued on December 5, 1977, by the then Chief Justice Fred Ruiz Castro, it
is an important rule for all courts to take notice of and to follow in the issuance of subpoenas to
witnesses serving or detained on a life sentence, necessitating meticulous care and extra precaution
to prevent escape. There is no reason why respondent Judge may not be aware of such circular when
it is so necessary for the proper administration of justice. Moreover, Circular No. 6 also provides that
it was a judge’s duty to "examine and study carefully any application for the issuance of subpoena or
summons involving detention prisoners filed with their court . . ."

The Court finds respondents guilty of gross negligence in the performance of their duty and hereby
IMPOSES a fine of Ten Thousand (P10,000.00) Pesos upon Judge Geminiano A. Eduardo and Five Thousand
(P5,000.00) Pesos upon Clerk of Court Juana F. Edades with a stern warning that a repetition of the same or
similar act in the future shall be dealt with more severely.chan

MOTIONS

DOMINGO MARCIAL, VS HI-CEMENT CORP./ UNION CEMENT CORP.

GR NO. 144900, NOVEMBER 18, 2005

TOPIC: Motions in general

a) Definition of a motion
b) Motions versus pleadings
c) Contents and form of motions

NOTES to consider in the case:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the
Resolution [1] dated June 2, 2000 of the Court of Appeals (CA) in CA-G.R. SP No. 58910, which denied
petitioner's motion for extension of time to file petition for review; and the CA Resolution dated
August 16, 2000, which denied petitioner's motion for reconsideration.

There was a premature dismissal of the case by the CA.

(a) party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its appellate
jurisdiction may file a verified Petition for Review with the Court of Appeals . . . within fifteen (15) days from
notice of the decision sought to be reviewed or of the denial of petitioner's motion for new trial or
reconsideration filed in due time after judgment." The motion for reconsideration filed on February 26,
2000 was timely filed since the records lay bare that it was filed on the fifteenth day from receipt, counted
from February 11, 2000.

A. WHETHER OR NOT THE COURT OF APPEALS ERRED IN DENYING THE FIRST AND ONLY MOTION FOR
EXTENSION OF TIME TO FILE PETITION FOR REVIEW ON CERTIORARI.

FACTS: Petitioner Domingo Marcial filed a complaint for forcible entry against respondents before the Municipal
Trial Court, Branch 1, Norzagaray, Bulacan. In his complaint, petitioner alleges that respondents Lloce, et
al. forcibly entered his land located in Sitio Gidgid, Bgy. Matictic, Norzagaray, Bulacan.

Respondents Lloce, et al. filed their answer, alleging that: they are not the real parties-in-interest since they
are mere employees of herein respondent Hi-Cement Corporation (HCC), acting for its interest; respondent
HCC has been in possession of the disputed property under an agreement with Iluminada de Guzman, the
owner thereof; petitioner has no right to possession of the disputed property.

Upon joint manifestation of the parties, the MTC ordered for relocation survey of the subject property.

More than two years after filing the complaint, petitioner filed on September 2, 1997 a motion for leave of
court to amend and to admit his amended complaint to implead HCC as party defendant. The trial court issued
summons.

On November 24, 1997, respondents filed an Answer to the amended complaint alleging that, in addition to
previous arguments in their earlier answer, petitioner is guilty of laches and estoppel in filing the case; and
claiming a compulsory counterclaim for moral and exemplary damages.

MTC rendered judgment in favor of the petitioner.

Dissatisfied, respondents appealed. RTC reversed MTC’s decision.

Petitioner filed for Motion to Reconsideration, it was denied. Petitioner filed for Notice of Appeal, RTC said that
it was not the proper motion since RTC rendered its decision on its appellate jurisdiction. Petitioner filed for
Motion for extension to file the proper petition for review praying for a thirty-day period from June 7, 2000 or
until July 7, 2000 to file his Petition for Review.

Petitioner filed a Motion for Reconsideration of the CA, CA denied said motion.

Petitioner contends that the CA erred in denying his first motion for extension since he filed it on May 26,
2000, well within the fifteen-day

Period to file his Petition for Review or until June 7, 2000, counted from receipt of the denial of his motion
for reconsideration on May 23, 2000.

At the outset, the Court notes that the CA erred in denying for late filing of petitioner's first motion for
extension to file Petition for Review. Undoubtedly, the error was caused by confusion due to the ambiguous
averments in the motion for extension that "petitioner received the Decision dated January 26, 2000 which
he received on February 11, 2000; and he filed a motion for reconsideration thereof on February 26, 2000."
The reckoning date for filing the motion for extension to file Petition for Review with the CA was on May 23,
2000 when petitioner received the order of the denial of his motion for reconsideration pursuant to Section 1,
Rule 42 of the 1997 Rules of Civil Procedure to the effect that "(a) party desiring to appeal from a decision of
the Regional Trial Court rendered in the exercise of its appellate jurisdiction may file a verified Petition for
Review with the Court of Appeals . . . within fifteen (15) days from notice of the decision sought to be reviewed
or of the denial of petitioner's motion for new trial or reconsideration filed in due time after
judgment." The motion for reconsideration filed on February 26, 2000 was timely filed since the records lay
bare that it was filed on the fifteenth day from receipt, counted from February 11, 2000. Petitioner received
on May 23, 2000 the Order dated May 15, 2000 which denied his motion for reconsideration. Accordingly, at
the time petitioner filed his first motion for extension of time on May 26, 2000, the period to file the Petition
for Review or motion for extension to file the same has not yet expired since only three days has elapsed.
However, the first motion for extension is fatally defective for failure to include a prayer or relief; no period
for extension was sought in the motion. Under Section 3,25 Rule 15 of the Rules of Court, a motion shall state
the relief sought to be obtained. As a result, it is pro forma or a mere scrap of paper and of no legal effect
which the CA may ignore.

Be that as it may, it cannot escape the Court's attention that petitioner filed an amended motion for extension
on June 7, 2000 or fifteen days from May 23, 2000, the date of receipt of the Order dated May 15, 2000.
Since the amended motion for extension was filed within the reglementary period, the CA should have acted
on the amended motion for extension and also considered it in the resolution of petitioner's motion for
reconsideration. Yet, as borne out by the records, no action was taken by the CA on the amended motion for
extension. In denying the motion for reconsideration, the CA undoubtedly acted with precipitate haste.
Whether the amended motion for extension is meritorious is not within the power of this Court to pass upon
or look into at this instance. Consequently, the case should be remanded to the CA for proper action on the
amended motion for extension.

PRIMETOWN PROPERTY GROUP, INC. VS. HON. LYNDON JUNTILLA

GR NO. 157801, JUNE 8, 2005

TOPIC:

d) Notice of hearing and hearing motions

e) Omnibus Motion Rule
f) Litigated and ex parte motions

NOTES to consider in the case:

Before us is a Petition for Review on Certiorari of the Decision of the Court of Appeals (CA) in CA-G.R. SP
No. 69812 which held that the Housing and Land Use Arbiter of the Housing and Land Use Regulatory Board
(HLURB) did not commit any grave abuse of discretion amounting to lack or excess of jurisdiction in granting
the motion of herein private respondent for a writ of possession.

The said rules (Notice and hearing of motion) do not apply to a motion which is merely a mode by which
the respondent herein informed the Court that the writ of execution had not been implemented, and that
she had not been placed in possession of the property. There is no need for a hearing of such motion
because it is not a litigated motion, and the court may act thereon without prejudice to the rights of the
petitioner as the adverse party.

FACTS: In 1996, Teresa C. Aguilar entered into a contract to sell with Primetown Property Group, Inc. (PPGI)
covering a condominium unit which was under construction at Mary Cielo Leisure Resort Compound, Opon,
Lapu-Lapu City. PPGI obligated itself to deliver the unit by June 1998, as indicated in its promotional material.
Thereafter, Aguilar paid by installment the purchase price of the condominium unit in the total amount
of P727,921.82.2

After the lapse of almost two years after the signing of the contract to sell, Aguilar saw that the construction
of the building, where her supposed condominium unit was to be located, had barely even started. Believing
that PPGI would not be able to deliver the unit to her by June 1998, she demanded in writing the rescission
of her contract to sell with PPGI and the refund of what she had paid. When PPGI refused, she filed a
complaint3 against PPGI for the rescission of the contract to sell and damages with the HLURB. The case was
docketed as HLURB Case No. REM-0207-0326198.

Judgment was rendered in favor of the complainant declaring the Contract to Sell executed by the parties as
having been Rescinded.
Respondent appealed the decision to the HLURB Board of Commissioners which, on December 21, 1999,
affirmed the same and declared it as final and executory. On motion of the complainant, the HLURB issued a
writ of execution ordering the ex-officio sheriff to execute its decision against PPGI.

Sheriff levied several of its properties and proceeded to the auction sale.
Aguilar files with HLURB a motion for execution of writ of possession. PPGI filed a motion for reconsideration
contending that it was not served with a copy of Aguilar's motion for the issuance of a writ of possession.

The PPGI, now the petitioner, filed a Petition for Review on Certiorari alleging that

THE COURT OF APPEALS ERRED IN AFFIRMING THE HOUSING AND LAND USE REGULATORY BOARD'S
ACTION IN ORDERING THE WRIT OF POSSESSION WHEN PETITIONER PRIMETOWN WAS NOT INFORMED
NOR DULY NOTIFIED OF THE HEARING ON THE MOTION FOR ISSUANCE OF WRIT OF POSSESSION
THEREBY DEPRIVING PETITIONER PRIMETOWN OF ITS CONSTITUTIONAL RIGHT TO DUE PROCESS.

The petition is bereft of merit.

First. The petitioner was mandated to notify the HLURB and the respondent herein of the transfer of
its principal office from the Multinational BanCorporation Centre to the Prime Citadel Condominium at No.
5007 P. Burgos Street, Makati City. However, the petitioner failed to do so. Based on the records of the HLURB
and those of the respondent's, the principal office of the petitioner remained at the Multinational
BanCorporation Centre. While it may be true that in the writ of execution issued by the HLURB and the Sheriff's
notice of sale the address of the petitioner appears to be at the Prime Citadel Condominium at No. 5007 P.
Burgos Street, Makati City, the said address had reference to the location of the condominium unit levied upon
and sought to be sold at public auction, not to the petitioner's principal office. That the petitioner retained its
principal office at the Multinational BanCorporation Centre is shown by the fact that its employee, Ramon
Reyes, Jr., received a copy of the motion for the issuance of a writ of possession filed by the respondent on
November 23, 2001. The petitioner has not disputed the authority of Reyes, Jr. to receive such copy of the
respondent's motion.

Second. The petitioner's reliance on Sections 4, 5 and 6, Rule 15 of the Rules of Court, quoted, infra, is
misplaced:

Sec. 4. Hearing of motion. - Except for motions which the court may act upon without prejudicing the rights
of the adverse party, every written motion shall be set for hearing by the applicant.

Every written motion required to be heard and the notice of the hearing thereof shall be served in such a
manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless
the court for good cause sets the hearing on shorter notice.

Sec. 5. Notice of hearing. - The notice of hearing shall be addressed to all parties concerned, and shall specify
the time and date of the hearing which must not be later than ten (10) days after the filing of the motion.

Sec. 6. Proof of service necessary. - No written motion set for hearing shall be acted upon by the court without
proof of service thereof.

This is so because the aforecited provisions apply only to a litigated motion and not to an ex parte motion.

The said rules do not apply to a motion which is merely a mode by which the respondent herein
informed the Court that the writ of execution had not been implemented, and that she had not
been placed in possession of the property. There is no need for a hearing of such motion because
it is not a litigated motion, and the court may act thereon without prejudice to the rights of the
petitioner as the adverse party. The prejudice caused to the petitioner as the adverse party from the
HLURB order directing it and its officers and employees to vacate the condominium unit would not have been
greater than that caused by the issuance of the writ of execution itself. The writ of possession was but an
implementation of the writ of execution.31
Third. The procedure in a motion for the issuance of a writ of possession is ex parte and summary
in nature. It is a proceeding brought for the benefit of one party only and without notice by the
court to any person adverse of interest. It is a proceeding wherein relief is granted without an
opportunity for the person against whom the relief is sought to be heard. 32 The issuance of a writ of
possession is not a judgment on the merits.33 Thus, the HLURB may grant the motion even in the absence of
the judgment obligor, herein petitioner.

Fourth. The buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not
redeemed during the period of one year after the registration of the sale.34 The issuance of the writ of
possession had become ministerial duty on the part of HLURB since the respondent had sufficiently shown her
proof of title over the subject condominium. Being the registered owner of the condominium unit, she is
entitled to its possession. The case at bar is akin to foreclosure proceedings where the issuance of a writ of
possession becomes a ministerial act of the court after title on the property has been consolidated in the
mortgage.35

It must be stressed that the Register of Deeds had already cancelled CCT No. 25156 and issued CCT No.
74777 in the name of the respondent. Thus, the argument of the petitioner that the title or ownership had
been wrongfully vested with the respondent is a collateral attack on the latter's title which is more appropriate
in a direct proceeding.36

IN LIGHT OF ALL THE FOREGOING, the petition is hereby DENIED for lack of merit. Costs against the
petitioner.

ALFREDO G. BOISER, VS. JUDGE JOSE Y. AGUIRRE, JR.

AM NO. RTJ-04-1886, MAY 16, 2005

TOPIC: Pro-forma motions

NOTES to consider in the case:

A motion without notice of hearing is pro forma, a mere scrap of paper. It presents no question which the
court could decide. The court has no reason to consider it and the clerk has no right to receive it. The
rationale behind the rule is plain: unless the movant sets the time and place of hearing, the court will be
unable to determine whether the adverse party agrees or objects to the motion, and if he objects, to hear
him on his objection, since the rules themselves do not fix any period within which he may file his reply or
opposition.

The instant administrative case arose from the complaint of Alfredo G. Boiser filed with the Office of the
Court Administrator (OCA) charging Judge Jose Y. Aguirre, Jr., Regional Trial Court (RTC) of Himamaylan
City, Negros Occidental, Branch 55, with Grave Abuse of Discretion and Gross Ignorance of the Law.

Complainant Alfredo Boiser was the plaintiff in an ejectment case filed before the Municipal Trial Court (MTC)
of Himamaylan City, Negros Occidental. On 11 July 2003, the MTC rendered a decision in favor of
complainant.

Issue: liability relative to the lack of notice of hearing and proof of service of the questioned motion.

The case was appealed to the RTC of Negros Occidental. Defendant-appellant Salvador Julleza filed a motion
to release bond on the ground that the MTC of Hinigaran, Negros Occidental, in its decision dated 11 July
2003, had already resolved the writ of preliminary injunction without mentioning the applicant’s liability.

On 16 October 2003, respondent judge granted the motion.

Complainant alleged that the issuance by respondent judge of the Order dated 16 October 2003 is indicative
of his ignorance of the law considering that the motion did not state that he was furnished a copy of the motion
thereby depriving him of his right to due process. He also averred that the motion was a mere scrap of paper
for failure to state the time and date of hearing. He further alleged that respondent manifested gross ignorance
when he resolved to grant the motion to release the injunction bond considering that the same was meant to
answer for damages that he may suffer due to defendant’s continued illegal possession of the land.

The complainant withdrew the administrative case.

Regarding the Administrative issue in the case:

Prefatorily, the Court must reiterate the rule that mere desistance on the part of the complainant does not warrant the
dismissal of an administrative complaint against any member of the bench. The withdrawal of complaints cannot
divest the Court of its jurisdiction nor strip it of its power to determine the veracity of the charges made and to discipline,
such as the results of its investigation may warrant, an erring respondent. The court’s interest in the affairs of the judiciary
is a paramount concern that must not know bounds.

Anent respondent’s retirement on 01 November 2004, it has been settled that the Court is not ousted of its jurisdiction over
an administrative case by the mere fact that the respondent public official ceases to hold office during the pendency of
respondent’s case.

Judge Rolando G. How v. Teodora Ruiz, et. al., thus:

[T]he jurisdiction that was Ours at the time of the filing of the administrative complaint was not lost by the mere fact that the
respondent public official had ceased to be in office during the pendency of his case. The court retains its jurisdiction either
to pronounce the respondent official innocent of the charges or declare him guilty thereof. A contrary rule would be fraught
with injustices and pregnant with dreadful and dangerous implications. x x x If only for reasons of public policy, this Court
must assert and maintain its jurisdiction over members of the judiciary and other officials under its supervision and control
for acts performed in office which are inimical to the service and prejudicial to the interests of litigants and the general public.
If innocent, respondent official merits vindication of his name and integrity as he leaves the government which he served
well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under
the situation.

The Rules of Court requires that every motion must be set for hearing by the movant, except those motions which
the court may act upon without prejudicing the rights of the adverse party. The notice of hearing must be addressed
to all parties and must specify the time and date of the hearing, with proof of service. Sections 4, 5 and 6 of Rule 15
of the 1997 Rules on Civil Procedure provide:

SECTION 4. Hearing of motion.- Except for motions which the court may act upon without prejudicing the
rights of the adverse party, every written motion shall be set for hearing by the applicant.

Every written motion required to be heard and the notice of the hearing thereof shall be served in such a
manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless
the court for good cause sets the hearing on shorter notice.

SEC. 5. Notice of hearing.- The notice of hearing shall be addressed to all parties concerned, and shall
specify the time and date of the hearing which must not be later than ten (10) days after the filing of the
motion.

SEC. 6. Proof of service necessary.- No written motion set for hearing shall be acted upon by the court
without proof of service thereof.

It appears that the Motion to Release Bond was defective as it did not have a proper notice of hearing. The
date and time of the hearing were not specified. Neither complainant nor his counsel was furnished a copy thereof.
These were never controverted by respondent judge.

A motion without notice of hearing is pro forma, a mere scrap of paper. It presents no question which the court could
decide. The court has no reason to consider it and the clerk has no right to receive it. The rationale behind the rule
is plain: unless the movant sets the time and place of hearing, the court will be unable to determine whether the
adverse party agrees or objects to the motion, and if he objects, to hear him on his objection, since the rules
themselves do not fix any period within which he may file his reply or opposition. The objective of the rule is to avoid
a capricious change of mind in order to provide due process to both parties and ensure impartiality in the trial.
Also, without proof of service to the adverse party, a motion is nothing but an empty formality deserving no judicial
cognizance. The rule mandates that the same shall not be acted upon by the court. Proof of service is mandatory.

As can be seen the law involved is simple and elementary, lack of conversance therewith constitutes gross ignorance
of the law. Judges are expected to exhibit more than just cursory acquaintance with statutes and procedural laws.
They must know the laws and apply them properly in all good faith. Judicial competence requires no less.

Clearly, respondent judge had ignored a fundamental rule. He acted too precipitately in granting defendant’s motion
despite the absence of the requirements as above prescribed.

CESAR E.A. VIRATA VS. THE HONORABLE SANDIGANBAYAN

GR NO.114331, MAY 27, 1997

TOPIC: Motions for Bill of Particulars

a) Purpose and when applied for

NOTES to consider in the case:

Virata filed this instant petition for certiorari under Rule 65 of the Rules of Court to challenge the foregoing
Resolution of the Sandiganbayan
The issues to be resolved in the instant case are as follows: chanrob1es v irt ual 1aw li bra ry

1. WHETHER OR NOT THE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO

LACK OR EXCESS OF JURISDICTION IN ADMITTING THE BILL OF PARTICULARS SUBMITTED BY THE
REPUBLIC.

2. WHETHER OR NOT THE OFFICE OF THE SOLICITOR GENERAL AND THE PCGG ARE AUTHORIZED BY LAW
TO DEPUTIZE A COUNSEL TO FILE THE BILL OF PARTICULARS IN BEHALF OF THE REPUBLIC.

We find the instant petition meritorious.

The rule is that a complaint must contain the ultimate facts constituting plaintiff’s cause of action. A cause of
action has the following elements, to wit: (1) a right in favor of the plaintiff by whatever means and
under whatever law it arises or is created; (2) an obligation on the part of the named defendant to
respect or not to violate such right; and (3) an act or omission on the part of such defendant violative
of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which
the latter may maintain an action for recovery of damages. As long as the complaint contains these three
elements, a cause of action exists even though the allegations therein are vague, and dismissal of the action
is not the proper remedy when the pleading is ambiguous because the defendant may ask for more
particulars. As such, Section 1, Rule 12 of the Rules of Court, provides, inter alia, that a party may move for
more definite statement or for a bill of particulars of any matter which is not averred with sufficient
definiteness or particularity to enable him properly to prepare his responsive pleading or to prepare for trial.
Such motion shall point out the defects complained of and the details desired. Under this Rule, the remedy
available to a party who seeks clarification of any issue or matter vaguely or obscurely pleaded by the other
party, is to file a motion, either for a more definite statement or for a bill of particulars. An order directing
the submission of such statement or bill, further, is proper where it enables the party movant intelligently to
prepare a responsive pleading, or adequately to prepare for trial.

A bill of particulars is a complementary procedural document consisting of an amplification or more

particularized outline of a pleading, and being in the nature of a more specific allegation of the facts recited
in the pleading. It is the office of the bill of particulars to inform the opposite party and the court of the
precise nature and character of the cause of action or defense which the pleader has attempted to set forth
and thereby to guide his adversary in his preparations for trial, and reasonably to protect him against
surprise at the trial. It gives information of the specific proposition for which the pleader contends, in
respect to any material and issuable fact in the case, and it becomes a part of the pleading which it
supplements. It has been held that a bill of particulars must inform the opposite party of the nature of the
pleader’s cause of action or defense, and it must furnish the required items of the claim with reasonable
fullness and precision. Generally, it will be held sufficient if it fairly and substantially gives the opposite party
the information to which he is entitled, as required by the terms of the application and of the order therefor.
It should be definite and specific and not contain general allegations and conclusions. It should be
reasonably certain and as specific as the circumstances will allow.

Guided by the foregoing rules and principles, we are convinced that both the bill of particulars dated
November 3, 1993 and the Limited Bill of Particulars of October 22, 1992 are couched in such general
and uncertain terms as would make it difficult for petitioner to submit an intelligent responsive
pleading to the complaint and to adequately prepare for trial.

Clearly from the foregoing allegation, the Republic failed miserably to amplify the charge against Virata
because, instead of supplying the pertinent facts and specific matters that form the basis of the charge, it
only made repetitive allegations in the bill of particulars that Virata supported and assisted the formation of
the corporation concerned, which is the very same charge or allegation in paragraph 14 (m) of the expanded
Second Amended Complaint which requires specifications and unfailing certainty. As such, the important
question as to what particular acts of Virata that constitute support and assistance in the formation of
Erectors Holding, Incorporated is still left unanswered, a product of uncertainty.

There are certain matters in the foregoing allegations which lack in substantial particularity. They are broad
and definitely vague which require specifications in order that Virata can properly define the issues and
formulate his defenses.

As clearly established by the foregoing discussion, the two bills of particulars filed by the Republic failed to
properly amplify the charges leveled against Virata because, not only are they mere reiteration or repetition
of the allegations set forth in the expanded Second Amended Complaint, but, to the large extent, they
contain vague, immaterial and generalized assertions which are inadmissible under our procedural rules.

As such, in view of the Republic’s failure to obey this Court’s directive of April 6, 1993 (G.R. No. 106527)
and the Sandiganbayan’s order of August 4, 1992 to file the proper bill of particulars which would completely
amplify the charges against Virata, this Court deems it just and proper to order the dismissal of the
expanded Second Amended Complaint, in so far as the charges against Virata are concerned. This action is
justified by Section 3, Rule 17 of the Rules of Court, which provides that: jgc:chan roble s.com. ph

"Section 3. Failure to prosecute. — If plaintiff fails to appear at the time of the trial, or to prosecute his
action for an unreasonable length of time, or to comply with these rules or any order of the court, the action
may be dismissed upon motion of the defendant or upon the court’s own motion. This dismissal shall have
the effect of an adjudication upon the merits, unless otherwise provided by court." (Emphasis ours)