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,
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.
“x x x.
Fundamental is the rule that jurisdiction over a defendant in a civil case is acquired either through service of summons or through voluntary appearance in court and submission to its authority. In the absence or when the service of summons upon the person of the defendant is defective, the court acquires no jurisdiction over his person, and a judgment rendered against him is null and void.19
In actions in personam such as ejectment, the court acquires jurisdiction over the person of the defendant through personal or substituted service of summons. However, because substituted service is in derogation of the usual method of service and personal service of summons is preferred over substituted service, parties do not have unbridled right to resort to substituted service of summons.20 Before substituted service of summons is resorted to, the parties must: (a) indicate the impossibility of personal service of summons within a reasonable time; (b) specify the efforts exerted to locate the defendant; and (c) state that the summons was served upon a person of sufficient age and discretion who is residing in the address, or who is in charge of the office or regular place of business of the defendant.21
In Manotoc v. Court of Appeals,22 we have succinctly discussed a valid resort to substituted service of summons:
We can break down this section into the following requirements to effect a valid substituted service:
(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 Sheriff’s 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 Sheriff’s 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)
The service of summons on Magdamit, Sr. failed to comply with the rule laid down in Manotoc. The resort to substituted service after just two (2) attempts to personally serve the summons on Magdamit, Sr., is premature under our pronouncement that:
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 Sheriff’s 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
Then too, the proof of service failed to specify the details of the attendant circumstances. The Return merely expressed a general statement that because the Sheriff failed to reach Magdamit, Sr., he elected substituted service of summons. The Return failed to state the impossibility to serve summons within a reasonable time. And the further defect in the service was that the summons was served on a person not of sufficient discretion, an incompetent person, Madel Magalona, a housemaid of Magdamit Sr.’s daughter, Arleen Marie Cabug.
Similar to the case of Magdamit, Sr., the service of summons on Magdamit, Jr. also failed to comply with the rules laid down in Manotoc. The summons was served at 1163 Int., J. Nakpil St., Paco, Manila, Magdamit, Jr.’s former residence when at the time, Magdamit, Jr. was residing at 0369 Jupiter St., Progressive Village 20 and 21, Molino I, Bacoor, Cavite. In Keister v. Navarro,25 we have defined "dwelling house" or "residence" to refer to a place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the country at the time to the time of service. Therefore, it is not sufficient for the Sheriff "to leave the copy at defendant's former dwelling house, residence, or place of abode, as the case may be, after his removal therefrom".26
Worse, the Return did not make mention of any attempt to serve the summons at the actual residence of Magdamit, Jr. The Return merely expressed a general statement that the sheriff exerted efforts to serve the summons and that the same was futile, "[t]hat on several occasions despite deligent (sic) efforts exerted to serve the said processes personally to defendant/s herein the same proved futile," without any statement on the impossibility of service of summons within a reasonable time. Further, the summons was served on a certain Dara Cabug, a person not of suitable age and discretion, who is unauthorized to receive the same.
Notably, the requirement additionally is that:
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 tothe 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 readily acceptable conclusion in this case is that the process server at once resorted to substituted service of summons without exerting enough effort to personally serve summons on respondents. In Sps. Jose v. Sps. Boyon,28 we discussed the effect of failure to specify the details of the effort exerted by the process server to personally serve summons upon the defendants:
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)
In the case at bar, the Returns contained mere general statements that efforts at personal service were made. Not having specified the details of the attendant circumstances or of the efforts exerted to serve the summons,30 there was a failure to comply strictly with all the requirements of substituted service, and as a result the service of summons is rendered ineffective.31
Filing an Answer does not amount to voluntary appearance
The petitioner asserted that assuming arguendo that the service of summons was defective, respondents’ filing of their respective Answers and participation in the proceedings in the MeTC, such as attending the pre-trial and presenting evidence, amount to voluntary appearance which vested the MeTC jurisdiction over their persons.
Indeed, despite lack of valid service of summons, the court can still acquire jurisdiction over the person of the defendant by virtue of the latter’s voluntary appearance. Section 20, Rule14 of the Rules of Court clearly states:
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.
However, such is not the case at bar. Contrary to petitioner’s contention, respondents are not deemed to have voluntarily submitted to the court’s jurisdiction by virtue of filing an Answer or other appropriate responsive pleadings and by participating in the case.
The mandate under the Rules on Summary Proceedings that govern ejectment cases, is expeditious administration of justice such that the filing of an Answer is mandatory. To give effect to the mandatory character and speedy disposition of cases, the defendant is required to file an answer within ten (10) days from service of summons, otherwise, the court, motu proprio, or upon motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint, limited to the relief prayed for by the petitioner.32 Through this rule, the parties are precluded from resorting to dilatory maneuvers.
Compliantly, respondents filed their respective Answers. In the MeTC, at first, Magdamit, Jr. filed a Notice of Special Appearance with Motion to Dismiss, where he seasonably raised the issue of lack of jurisdiction, which the MeTC later ordered to be stricken out. In lieu thereof, Magdamit, Jr. filed an Answer with Counterclaim (In a Special Appearance Capacity). Again, Magdamit, Jr. reiterated the lack of jurisdiction over his person and the subject matter. On the other hand, Magdamit, Sr. filed an Answer with an allegation by special defense that the original complaint should be dismissed outright because the MeTC did not acquire jurisdiction over his person and the subject matter. In sum, both respondents filed their Answers via special appearance.
In Philippine Commercial International Bank v. Spouses Wilson Dy Hong Pi and Lolita Dy,33 we held that filing of an answer in a special appearance cannot be construed as voluntary appearance or submission to the court’s jurisdiction:
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:
(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)
Parallel to our ruling in Philippine Commercial International Bank, the respondents’ act of filing their respective Answers with express reservation should not be construed as a waiver of the lack of jurisdiction of the MeTC over their person because of non-service/defective/improper service of summons and for lack of jurisdiction over the subject matter. Hence, sans voluntary submission to the court’s jurisdiction, filing an answer in compliance with the rules on summary procedure in lieu of obtaining an adverse summary judgment does not amount to voluntary submission. As we already held, a party who makes a special appearance in court, challenging the jurisdiction of said court, is not deemed to have submitted himself to the jurisdiction of the court.35 It should not be construed as voluntary submission to the jurisdiction of the court.
X x x.”