THIRD DIVISION
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VICTORIA
REGNER, Petitioner, - versus - CYNTHIA R.
LOGARTA, TERESA R. TORMIS and CEBU COUNTRY CLUB, Inc., Respondents. |
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G.R. No. 168747 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO,
NACHURA, and REYES, JJ. Promulgated: |
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CHICO-NAZARIO,
J.:
This Petition for Review on Certiorari seeks to reverse the Decision[1]
dated 6 May 2005 of the Court of Appeals in CA-G.R. CV No. 71028 entitled, “Victoria Regner v. Cynthia Logarta, Teresa
R. Tormis and Cebu Country Club, Inc.,” which affirmed the Order dated 9
November 2000 of the Regional Trial Court (RTC) of Cebu, granting herein
respondents’ motion to dismiss Civil Case No. CEB 23927. The Order dated
Civil Case No. CEB. 23927 arose from
the following factual antecedents:
Luis Regner
(Luis) had three daughters with his first wife, Anicita C. Regner, namely,
Cynthia Logarta (Cynthia) and Teresa Tormis (Teresa), the respondents herein,
and Melinda Regner-Borja (Melinda).
Herein petitioner Victoria Regner (
During the lifetime of Luis, he
acquired several properties, among which is a share at Cebu Country Club Inc.,
evidenced by Proprietary Ownership Certificate No. 0272. On
Luis passed away on
On
Sheriff
Melchor A. Solon served the summonses on Cynthia and Teresa at the Borja Family
Clinic in
Upon her
arrival in the
Subsequently,
on
Petitioner
opposed[5]
the motion and filed her own motion to set the case for pre-trial, to which
Teresa filed her rejoinder on the ground that their sister, Cynthia, an
indispensable party, had not yet been served a summons. Thus, Teresa prayed for the dismissal of
petitioner’s complaint, as the case would not proceed without Cynthia’s
presence.
On
Considering that the donees
in the Deed of Donation are Cynthia R. Logarta and Teresa R. Tormis, they are
therefore an (sic) indispensable party (sic). In the case of Quisumbing vs.
Court of Appeals, 189 SCRA 325, indispensable parties are those with such an
interest in the controversy that a final decree would necessarily affect their
rights so that the court could not proceed without their presence
Wherefore, in view of the
foregoing, the instant case is hereby
dismissed without prejudice.
A motion for reconsideration was filed
by petitioner, but the same was denied in an Order dated
Aggrieved, petitioner appealed to the
Court of Appeals. On
[T]he plaintiff-appellant [Victoria Regner] should have moved for the
extraterritorial service of summons for both defendants-appellees Teresa R.
Tormis and Cynthia R. Logarta as they were not residing and were not found in
the Philippines when plaintiff-appellant [Victoria Regner] filed this case below.
Although defendant-appellant Teresa Tormis was personally served with summons
on
It has to be emphasized that
it is incumbent upon the plaintiff [Victoria Regner] to move with leave of
court for the extraterritorial service of summons. Taking into account the
considerable time that had elapsed from the filing of the complaint on June 15,
1999 until defendant-appellee Teresa R. Tormis, through counsel, filed a motion
to dismiss on September 12, 2000, or approximately fifteen (15) months, without
any act on the part of plaintiff-appellant [Victoria Regner] to move for
extraterritorial service of summons upon the person of defendant-appellee Cynthia
Logarta renders plaintiff-appellant’s [Victoria Regner] complaint dismissible
for failure to prosecute her action for unreasonable length of time under
Section 3, Rule 17, Revised Rules of Court, x x x.[7]
Hence, this appeal via petition[8]
for review on certiorari filed by
petitioner raising the following assignment of errors:
THE COURT OF APPEALS ERRED
IN HOLDING THAT THE DELAY IN SERVING SUMMONS ON ONE OF THE DEFENDANTS
CONSTITUTES A FAILURE TO PROSECUTE NOTWITHSTANDING THAT THE REST OF THE CO-DEFENDANTS
WERE DULY SERVED WITH SUMMONSES
THE COURT OF APPEALS ERRED
IN NOT CONSIDERING THAT THE ANSWER FILED BY ONE INDIVIDUAL DEFENDANT REDOUNDS
TO THE BENEFIT OF THE OTHER DEFENDANT WHO HAS NOT BEEN SERVED WITH SUMMONS, THE
NATURE OF ACTION BEING ADMITTEDLY COMMON AMONG ALL DEFENDANTS.[9]
From
the foregoing, this Court identifies the issues to be resolved in this petition
as: (1) Whether a co-donee is an indispensable party in an action to
declare the nullity of the deed of donation, and (2) whether delay in the
service of summons upon one of the defendants constitutes failure to prosecute
that would warrant dismissal of the complaint.
Rule
3, Section 7 of the Rules of Court, defines indispensable
parties as parties-in-interest without whom there can be no final determination
of an action. As such, they must be
joined either as plaintiffs or as defendants.
The general rule with reference to the making of parties in a civil
action requires, of course, the joinder of all necessary
parties where possible, and the joinder of all indispensable parties under any
and all conditions, their presence being a sine
qua non for the exercise of judicial power.[12] It is precisely “when an indispensable party
is not before the court [that] the action should be
dismissed.”[13] The absence of an indispensable party renders
all subsequent actions of the court null and void for want
of authority to act, not only as to the absent parties but even as to those
present.[14]
As we ruled in Alberto v. Mananghala[15]:
In an action for
recovery of property against a person who purchased it from another who in turn
acquired it from others by the same means
or by donation or otherwise, the predecessors of defendants are
indispensable parties if the transfers, if not voided, may bind
plaintiff. (Garcia vs. Reyes, 17 Phil. 127.) In the latter case,
this Court held:
In order to bring this suit duly to a close, it is imperative to
determine the only question raised in connection with the pending appeal, to
wit, whether all the persons who intervened in the matter of the transfers and
donation herein referred to, are or are not necessary parties to this suit,
since it is asked in the complaint that the said transfers and donation be
declared null and void – an indispensable declaration for the purpose, in a
proper case, of concluding the plaintiff to be the sole owner of the house in
dispute.
If such a declaration of annulment can directly affect the persons
who made and who were concerned in the said transfers, nothing could be more proper
and just than to hear them in the litigation, as parties interested in
maintaining the validity of those transactions, and therefore, whatever be the
nature of the judgment rendered, Francisco Reyes, Dolores Carvajal, Alfredo
Chicote, Vicente Miranda, and Rafael Sierra, besides the said minors, must be
included in the case as defendants.” (Garcia vs. Reyes, 17 Phil.,
130-131.)
It takes no
great degree of legal sophistication to realize that Cynthia and Teresa are indispensable parties to Civil Case No. CEB
23927. Cynthia and Teresa allegedly
derived their rights to the subject property by way of donation from their
father Luis. The
central thrust of the petitioner’s complaint in Civil Case No. CEB 23927 was
that Luis could not have donated Proprietary
Ownership Certificate No. 0272 to his daughters Cynthia and Teresa, as Luis was
already very ill and no longer of sound and disposing mind at the time of
donation on 15 May 1997. Accordingly,
the prayer in petitioner’s complaint was for the trial court to declare null
and void the Deed of Donation and to restrain the Cebu Country Club, Inc. from
transferring title and ownership of Proprietary Ownership Certificate No. 0272
to Cynthia and Teresa.
Thus,
based on the Deed of Donation, Teresa and Cynthia are co-owners of Proprietary
Membership Certificate No. 0272 of Cebu Country Club, Inc. The country club
membership certificate is undivided and it is impossible to pinpoint which
specific portion of the property belongs to either Teresa or Cynthia. Indeed, both Teresa and Cynthia are
indispensable parties in Civil Case No. CEB 23927.
An
indispensable party has been defined as follows:
An indispensable party is a party
who has such an interest in the controversy or subject matter that a final adjudication
cannot be made, in his absence, without injuring or affecting that interest, a
party who has not only an interest in the subject matter of the controversy,
but also has an interest of such nature that a final decree cannot be made
without affecting his interest or leaving the controversy in such a condition
that its final determination may be wholly inconsistent with equity and good
conscience. It has also been considered
that an indispensable party is a person in whose absence there cannot be a
determination between the parties already before the court
which is effective, complete, or equitable.
Further, an indispensable party is one who must be included in an action
before it may properly go forward.
A person is not
an indispensable party, however, if his interest in the controversy or subject
matter is separable from the interest of the other parties, so that it will not
necessarily be directly or injuriously affected by a decree which does complete
justice between them. Also, a person is
not an indispensable party if his presence would merely permit complete relief
between him and those already parties to the action, or if he has no interest
in the subject matter of the action. It
is not a sufficient reason to declare a person to be an indispensable party
that his presence will avoid multiple litigation.[16]
In
Servicewide Specialists, Incorporated v. Court of Appeals,[17]
this Court held that no final
determination of a case could be made if an indispensable party is not legally
present therein:
An indispensable party is one whose
interest will be affected by the court’s action in the
litigation, and without whom no final determination of the case can be
had. The party’s interest in the subject
matter of the suit and in the relief sought are so inextricably intertwined
with the other parties that his legal presence as a party to the proceeding is
an absolute necessity. In his absence
there cannot be a resolution of the dispute of the parties before the court which is effective, complete, or equitable.
The
rationale for treating all the co-owners of a property as indispensable parties
in a suit involving the co-owned property is explained in Arcelona v. Court of Appeals[18]:
As held by the Supreme Court,
were the courts to permit an action in ejectment to be
maintained by a person having merely an undivided interest in any given tract
of land, a judgment in favor of the defendants would not be conclusive as
against the other co-owners not parties to the suit, and thus the defendant in
possession of the property might be harassed by as many succeeding actions of
ejectment, as there might be co-owners of the title asserted against him. The purpose of this provision was to prevent
multiplicity of suits by requiring the person asserting a right against the
defendant to include with him, either as co-plaintiffs or as co-defendants, all
persons standing in the same position, so that the whole matter in dispute may
be determined once and for all in one litigation.
Applying
the foregoing definitions and principles to the present case, this Court finds
that any decision in Civil Case No. CEB 23927 cannot bind Cynthia, and the
Court cannot nullify the donation of the property she now co-owns with Teresa,
even if limited only to the portion belonging to Teresa, to whom summons was
properly served, since ownership of the property is still pro indiviso. Obviously,
Cynthia is an indispensable party in Civil Case No. CEB 23927 without whom the
lower court is barred from making a final adjudication as to
the validity of the entire donation.
Without the presence of indispensable parties to a suit or proceeding, a
judgment therein cannot attain finality.[19]
Being an indispensable party in Civil Case No. CEB 23927, the trial court must also acquire jurisdiction over Cynthia’s person through the proper service of summons.
Based on the foregoing disquisitions, the issue of whether the answer filed by Teresa should benefit Cynthia who was not served summons need not be discussed.
As to determine whether Cynthia was
properly served a summons, it will be helpful to determine first the nature of
the action filed against Cynthia and Teresa
by petitioner Victoria, whether it is an action in personam, in rem or quasi
in rem. This is because the rules
on service of summons embodied in Rule 14 apply according to whether an action
is one or the other of these actions.
In a
personal action, the plaintiff seeks the recovery of personal property, the enforcement of a contract or the recovery of damages.[20]
In contrast, in a real action, the plaintiff seeks the recovery of real
property; or, as indicated in Section 2(a), Rule 4 of the then Rules of Court,
a real action is an action affecting title to real property or for the recovery of possession, or for partition or condemnation of, or
foreclosure of mortgage on, real property. 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.[21]
In
an action in personam, personal
service of summons or, if this is not possible and he cannot be personally
served, substituted service, as provided in Section 7, Rule 14 of the Rules of
Court,[22] is essential for the
acquisition by the court of jurisdiction over the person of a
defendant who does not voluntarily submit himself to the authority of the court.[23] If defendant cannot be served a summons
because he is temporarily abroad, but is otherwise a Philippine resident,
service of summons may, by leave of court, be made by
publication.[24] Otherwise stated, a resident defendant in an
action in personam, who cannot be
personally served a summons, may be summoned either by means of substituted
service in accordance with Section 7, Rule 14 of the Rules of Court, or by
publication as provided in Sections 15 and 16 of the same Rule.
In all of these cases, it should be
noted, defendant must be a resident of the
On the other hand, if the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not
essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res. If the defendant is a
nonresident and he is not found in the country, summons may be served
extraterritorially in accordance with Section 15, Rule 14 of the Rules of
Court, which provides:
Section 15. Extraterritorial service. - When the defendant
does not reside and is not found in the Philippines, and the action affects the
personal status of the plaintiff or relates to, or the subject of which is,
property within the Philippines, in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief demanded consists,
wholly or in part, in excluding the defendant from any interest therein, or the
property of the defendant has been attached within the Philippines, service
may, by leave of court, be effected out of the Philippines by
personal service as under Section 6; or by publication in a newspaper of
general circulation in such places and for such time as the court
may order, in which case a copy of the summons and order of the court
shall be sent by registered mail to the last known address of the defendant, or
in any other manner the court may deem sufficient. Any order
granting such leave shall specify a reasonable time, which shall not be less
than sixty (60) days after notice, within which the defendant must answer.
As
stated above, there are only four instances wherein a defendant who is a
non-resident and is not found in the country may be served a summons by
extraterritorial service, to wit: (1)
when the action affects the personal status of the plaintiff; (2) when the
action relates to, or the subject of which is property within the Philippines,
on which the defendant claims a lien or an interest, actual or contingent; (3)
when the relief demanded in such action consists, wholly or in part, in excluding
the defendant from any interest in property located in the Philippines; and (4)
when the defendant non-resident’s property has been attached within the
Philippines. In these instances, service
of summons may be effected 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.[25]
In
such cases, what gives the court jurisdiction in an action in rem or quasi in rem is that it has
jurisdiction over the res, i.e., the
personal status of the plaintiff who is domiciled in the Philippines or the
property litigated or attached. Service of summons in the manner provided in
Section 15, Rule 14 of the Rules of Court is not for the purpose of vesting the
court with jurisdiction, but for complying with the requirements of fair play
or due process, so that the defendant will be informed of the pendency of the
action against him; and the possibility that property in the Philippines
belonging to him, or in which he has an interest, might be subjected to a
judgment in favor of the plaintiff and he can thereby take steps to protect his
interest if he is so minded.[26]
In
petitioner’s Complaint in Civil Case No. CEB No. 23427, she alleged that
Cynthia is residing at 462 West Vine No. 201, Glendale, California, 912041,
U.S.A.; while Teresa is residing at 2408 South Hacienda Boulevard, Hacienda
Heights, California, but they usually visit here in the Philippines and can be
served summonses and other processes at the Borja Family Clinic, Bohol. Pertinent portions of the Complaint read:
2. Defendant Cynthia R. Logarta is a
Filipino, of legal age, married to Ramon Logarta, resident (sic) 463 West Vine
No.201, Glendale, California, 912041, USA. She however usually visits in the
3. Defendant Teresa R. Tormis is likewise
a Filipino, of legal age, married to Antonio Tormis, and a resident of 2408 South
Hacienda Heights, California, 19745, U.S.A. She however usually visits in the
Petitioner
prayed for a declaration of nullity of the deed of donation, to restrain Cebu
Country Club, Inc. from transferring title and ownership of Proprietary
Ownership Certificate No. 0272 to Cynthia and Teresa, and for moral and
exemplary damages. Civil Case No. CEB
23927 is evidently an action against Cynthia and Teresa on the basis of their
personal liability for the alleged fraudulent transfer of the subject Country
Club membership from Luis to their name. In this sense, petitioner questions
the participation and shares of Cynthia and Teresa in the transferred Country
Club membership. Moreover, the
membership certificate from the Cebu Country Club, Inc. is a personal property.
Thus, the action instituted by petitioner before the RTC is in personam.
Being an
action in personam, the general rule
requires the personal service of summons on Cynthia within the
As
Cynthia is a nonresident who is not found in the
Since
in the case at bar, the service of summons upon Cynthia was
not done by any of the authorized modes,
the trial court was correct in dismissing petitioner’s complaint.
Section 3, Rule 17 of the 1997 Rules of Civil
Procedure, states –
SEC. 3. Dismissal due to fault of plaintiff. –
If, for no justifiable cause, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint, or to prosecute his
action for an unreasonable length of time, or to comply with these Rules or any
order of the court, the complaint may be dismissed upon motion of the defendant
or upon the court's own motion, without prejudice to the right of the defendant
to prosecute his counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon the merits, unless
otherwise declared by the court.
As can be gleaned from the rule, there are three
instances when the complaint may be dismissed due to the plaintiff's fault: (1)
if he fails to appear during a scheduled trial, especially on the date for the
presentation of his evidence in chief; (2) if he fails to prosecute his action
for an unreasonable length of time; and (3) if he fails to comply with the
rules or any order of the court.[28]
Considering the circumstances of the case, it can
be concluded that the petitioner failed to prosecute the case for an
unreasonable length of time. There is failure to prosecute when the
plaintiff, being present, is not ready or is unwilling to proceed with the
scheduled trial or when postponements in the past were due to the plaintiff's
own making, intended to be dilatory or caused substantial prejudice on the part
of the defendant.[29]
While a court can dismiss a case on the ground of
failure to prosecute, the true test for the exercise of such power is whether,
under the prevailing circumstances, the plaintiff is culpable for want of due
diligence in failing to proceed with reasonable promptitude.[30] As to what
constitutes an “unreasonable length of time,” within the purview of the
above-quoted provision, the Court has ruled that it “depends upon the
circumstances of each particular case,” and that “the sound discretion of the
court” in the determination of said question “will not be disturbed, in the
absence of patent abuse”; and that “the burden of showing abuse of judicial
discretion is upon the appellant since every presumption is in favor of the
correctness of the court's action.”[31] Likewise, the concept of promptness is a
relative term and must not unnecessarily be an inflexible one. It
connotes an action without hesitation and loss of time. As to what
constitutes the term is addressed to the consideration of the trial court,
bearing in mind that while actions must be disposed of with dispatch, the
essential ingredient is the administration of justice and not mere speed.[32]
It is well to quote the doctrine laid in Padua v. Ericta,[33] as accentuated in the subsequent case Marahay v. Melicor[34]:
Courts should
not brook undue delays in the ventilation and determination of causes. It
should be their constant effort to assure that litigations are prosecuted and
resolved with dispatch. Postponements of trials and hearings should not
be allowed except on meritorious grounds; and the grant or refusal thereof
rests entirely in the sound discretion of the Judge. It goes without
saying, however, that discretion must be reasonably and wisely exercised, in
the light of the attendant circumstances. Some reasonable deferment of
the proceedings may be allowed or tolerated to the end that cases may be
adjudged only after full and free presentation of evidence by all the parties,
especially where the deferment would cause no substantial prejudice to any
part. The desideratum of a speedy disposition of cases should not, if at
all possible, result in the precipitate loss of a party’s right to present
evidence and either in plaintiff's being non-suited or the defendant's being
pronounced liable under an ex parte judgment.
“[T]rial
courts have x x x the duty to dispose of controversies after trial on the
merits whenever possible. It is deemed an abuse of discretion for them,
on their own motion, ‘to enter a dismissal which is not warranted by the
circumstances of the case’ (Municipality of Dingras v. Bonoan, 85 Phil. 458-59
[1950]). While it is true that the dismissal of an action on grounds
specified under Section 3, Rule 17 of the Revised Rules of Court is addressed
to their discretion (Flores v. Phil. Alien Property Administrator, 107 Phil.
778 [1960]; Montelibano v. Benares, 103 Phil. 110 [1958];
Adorable v. Bonifacio, 105 Phil. 1269 [1959]; Inter-Island Gas Service, Inc. v.
De la Gerna, L-17631, October 19, 1966, 18 SCRA 390), such discretion must be
exercised soundly with a view to the circumstances surrounding each particular
case (Vernus-Sanciangco v. Sanciangco, L-12619, April 28, 1962, 4 SCRA 1209).
If facts obtain that serve as mitigating circumstances for the delay, the same
should be considered and dismissal denied or set aside (Rudd v. Rogerson, 15
ALR 2d 672; Cervi v. Greenwood, 147 Colo. 190, 362 P.2d 1050 [1961]),
especially where the suit appears to be meritorious and the plaintiff was not
culpably negligent and no injury results to defendant (27 C.J.S. 235-36; 15 ALR
3rd 680).” (Abinales vs. Court of First Instance of
“It
is true that the allowance or denial of petitions for postponement and the
setting aside of orders previously issued, rest principally upon the sound
discretion of the judge to whom they are addressed, but always predicated on
the consideration that more than the mere convenience of the courts or of the
parties of the case, the ends of justice and fairness would be served thereby
(Camara Vda. de Zubiri v. Zubiri, et al., L-16745, December 17, 1966). When no
substantial rights are affected and the intention to delay is not manifest, the
corresponding motion to transfer the hearing having been filed accordingly, it
is sound judicial discretion to allow them (Rexwell Corp. v. Canlas, L-16746,
December 30, 1961).” x x x.
This Court recalls that the complaint herein was
filed on
Although Section 1, Rule 14 of the Rules, imposes
upon the clerk of court the duty to serve summons, this does not relieve the
petitioner of her own duty as the plaintiff in a civil case to prosecute the
case diligently. If the clerk had been
negligent, it was petitioner’s duty to call the court’s attention to that fact. It must be noted that it was not even
petitioner who called the court’s attention that summons had not been served on
Cynthia, but Teresa. This despite the
fact that petitioner was aware, as early as 15 June 1999, when she filed her
complaint, that the summonses could not be served on Teresa and Cynthia, as she
admitted therein that Teresa and Cynthia were residing abroad. Petitioner as plaintiff should have asked
that Cynthia and Teresa be summoned by publication at the earliest possible
time. She cannot idly sit by and wait
till this is done. She cannot afterwards
wash her hands and say that the delay was not her fault. She cannot simply "fold [her]
hands" and say that it is the duty of the clerk of court to have the
summonses served on Cynthia and Teresa for the prompt disposition of her
case. If there
were no means of summoning any of the defendants, petitioner should have so
informed the court within a reasonable period of time, so that the case could
be disposed of one way or another and the administration of justice would not
suffer delay. The non-performance of
that duty by petitioner as plaintiff is an express ground for dismissing an
action. For, indeed, this duty imposed upon her was precisely to spur on
the slothful.
For
failure to diligently pursue the complaint, petitioner trifled with the right
of the respondents to speedy trial. It
also sorely tried the patience of the court and wasted its precious time and
attention. To allow petitioner to wait until such time that summonses were
served on respondents would frustrate the protection against unreasonable delay
in the prosecution of cases and violate the constitutional mandate of speedy
dispensation of justice which would in time erode the people’s confidence in
the judiciary. We take a
dim view of petitioner’s complacent attitude.
Ex nihilo nihil fit.[35]
Likewise, petitioner’s counsel inexplicably
failed to diligently pursue the service of summonses on respondents. These were acts of negligence, laxity and
truancy which the court could have very easily avoided or timely remedied. Petitioner and her counsel could not avail themselves
of this Court’s sympathy, considering their apparent complacency, if not
delinquency, in the conduct of their litigation.
Considering
the foregoing, we sustain the dismissal by the trial court of the petitioner’s
complaint for failure to prosecute for a period of more than one year (from the
time of filing thereof on
WHEREFORE, premises considered, the instant
petition is DENIED for lack of merit and the
assailed Decision dated
SO ORDERED.
|
|
MINITA V. CHICO-NAZARIO
Associate
Justice |
WE
CONCUR:
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson
Associate Justice
Associate Justice
RUBEN T. REYES
Associate
Justice
ATTESTATION
I attest that the conclusions in the above
Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant
to Section 13, Article VIII of the Constitution, and the Division Chairperson’s
Attestation, it is hereby certified that the conclusions in the above Decision
were reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
[1] Penned by Associate Justice
Arsenio J. Magpale (Ret.) with Associate Justices Sesinando E. Villon and
Enrico A. Lanzanas, concurring. Rollo, pp.
24-28.
[2] Rollo, pp. 33-34.
[3] Id.
at 36-41.
[4] Id.
at 43-46.
[5] Id.
at 47-48.
[6] Id.
at 25.
[7] Id.
at 27-28.
[8]
[9]
[10] Echevarria v. Parsons Hardware Co., 51 Phil. 980, 987 (1927).
[11] Planas v. Collector of Internal Revenue, 113 Phil. 377, 382 (1961).
[12] Borlasa v. Polistico, 47 Phil. 345, 347 (1925).
[13] People v. Hon. Rodriguez, 106 Phil 325, 327 (1959).
[14] Lim
Tanhu v. Ramolete, G.R. No. L-40098,
[15] 89 Phil. 188, 191-192 (1951).
[16] Arcelona v. Court of Appeals, 345 Phil. 250, 269-270 (1997).
[17] 321 Phil. 427, 434 (1995).
[18] Supra note 16 at 268-269, citing
Comments on the Rules of Court, Moran, Volume 1 (1970 ed.), pp. 182-83, citing Palarca v. Baguisi, 38 Phil. 177,
180-181 (1918). See also Pobre v. Blanco, 17 Phil. 156, 158-159
(1910); Araneta v. Montelibano, 14
Phil. 117, 123-124 (1909).
[19] Lotte Phil. Co., Inc. v. Dela Cruz, G.R. No. 166302, 28 July 2005, 464 SCRA 591, 596.
[20] Hernandez v. Rural Bank of Lucena, Inc., 171 Phil. 70, 79-80 (1978).
[21]
[22] SEC. 7. Substituted service.- If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof.
[23] Venturanza
v. Court of Appeals, G.R. No. L-77760,
[24] Rule 14, Sec. 16. Residents temporarily out of the Philippines.- When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section.
[25]
[26] Perkin
Elmer Singapore PTE LTD. v. Dakila Trading Corporation, G.R. No. 172242,
[27] Rollo, p. 36.
[28] Olave v. Mistas, G.R. No. 155193, 26 November 2004, 444 SCRA 479, 493; Bank of the Philippine Islands v. Court of Appeals, 362 Phil. 362, 367-368 (1999).
[29] Belonio v. Rodriguez, G.R. No. 161379,
11 August 2005, 466 SCRA 557, 577-578.
[30] Producers
Bank of the
[31] Goldloop Properties, Inc. v. Court of Appeals, G.R. No. 99431, 11 August 1992, 212 SCRA 498, 508-509, citing Montejo v. Urotia, 148-B Phil. 43, 50 (1971).
[32] Olave v. Mistas, supra note 28.
[33] G.R. No. L-38570,
[34] G.R. No. 44980,
[35] From nothing nothing is produced.