THIRD
DIVISION
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ALEXANDER TAM WONG,
Petitioner, - versus
- CATHERINE FACTOR-KOYAMA, Respondent. |
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G.R. No. 183802 Present: YNARES-SANTIAGO, J., Chairperson, CHICO-NAZARIO, VELASCO, JR., NACHURA, and
PERALTA, JJ. Promulgated: September 17, 2009 |
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CHICO-NAZARIO, J.:
For Review on Certiorari, under Rule 45 of the Revised Rules of Court, are the
Resolutions dated
The present controversy originates
from a Complaint[5] dated
On
On
On
Wong subsequently filed with the RTC,
by registered mail sent on
In its Order[14]
dated
Wong, by special appearance of
counsel, then filed with the RTC on
In her Opposition[16]
to the Motion to Dismiss, filed on 5 November
2007, Koyama maintained that there was a proper substituted service of
the summons, consequently, the RTC acquired jurisdiction over the person of
Wong; and that Wong was served a copy of the Motion to have him declared in
default on 3 October 2007, as evidenced by the Registry Return Card.[17]
Wong filed a Reply[18]
on
The RTC denied Wong’s Motion to
Dismiss for lack of merit. In its Order[20]
dated
Wong went before the Court of Appeals
via a Petition for Certiorari[22]
under Rule 65 of the Revised Rules of Court contending that the RTC committed
grave abuse of discretion, amounting to lack or excess of jurisdiction, in
issuing its Orders dated 25 September 2007 and 18 October 2007 in which it,
respectively, declared Wong in default in Civil Case No. C-21860 and denied his
Motion to Dismiss the Complaint in the same case. Wong insisted that there was no valid service
of summons upon him, and that he was not notified of Koyama’s Motion to have
him declared in default.
The Court of Appeals, in a Resolution[23]
dated
According to the Court of Appeals,
Wong should have availed himself of the following remedies for RTC Order dated
As to the first assailed Order declaring [Wong] in
default, the remedies available to a party declared in default were reiterated
in Cerezo v. Tuazon, viz:
a)
The defendant in
default may, at any time after discovery thereof and before judgment, file a
motion under oath to set aside the order of default on the ground that his
failure to answer was due to fraud, accident, mistake or excusable negligence,
and that he has a meritorious defense (Sec. 3, Rule 18 [now Sec. 3(b), Rule
9]);
b)
If the judgment
has already been rendered when the defendant discovered the default, but before
the same has become final and executory, he may file a motion for new trial
under Section 1(a) of Rule 37;
c)
If the defendant
discovered the default after the judgment has become final and executory, he
may file a petition for relief under Section 2 [now Section 1] of Rule 38; and
d)
He may also
appeal from the judgment rendered against him as contrary to the evidence or to
the law, even if no petition to set aside the order of default has been
presented by him (Sec. 2, Rule 41).
Moreover, a petition for certiorari to declare the nullity of a judgment by default is also
available if the trial court improperly declared a party in default, or even if
the trial court properly declared a party in default, if grave abuse of
discretion attended such declaration.[24]
As to the second assailed Order denying petitioner’s
Motion to Dismiss, the said Order is interlocutory and is not a proper subject
of a petition for certiorari. Even in
the face of an error of judgment on the part of a judge denying the motion to
dismiss, certiorari will not lie. Certiorari
is not a remedy to correct errors of procedure.
Let it be stressed at this point that basic rule that
when a motion to dismiss is denied by the trial court, the remedy is not to
file a petition for certiorari, but
to appeal after a decision has been rendered. An order denying a motion to
dismiss is interlocutory, and so the proper remedy in such a case is to appeal
after a decision has been rendered. A writ of certiorari is not intended to correct every controversial
interlocutory ruling; it is resorted only to correct a grave abuse of
discretion or a whimsical exercise of judgment equivalent to lack of
jurisdiction. Its function is limited to keeping an inferior court within its
jurisdiction and to relieve persons from arbitrary acts—acts which courts or
judges have no power or authority in law to perform. It is not designed to
correct erroneous findings and conclusions made by the courts.[25]
Ultimately, the Court of Appeals decreed:
WHEREFORE, premises considered, the Petition is DISMISSED outright.[26]
Wong filed a Motion for
Reconsideration[27] of the
foregoing Resolution on
Hence, Wong filed the instant
Petition before this Court.
In the meantime, since neither the
Court of Appeals nor this Court issued a Temporary Restraining Order (TRO) or
writ of preliminary injunction enjoining the proceedings in Civil Case No.
C-21860, the RTC continued hearing the said case. In an Order[29]
dated
The Court believes that the interest of justice and fair play would be better served if the [herein petitioner Wong] would be given the chance to cross examine the witness, and for which reason the Court suspends the proceedings and resets the continuation of the hearing of this case on January 23, 2009 at 8:30 a.m.
Wong, through counsel, actively
participated in the hearing held on
On
WHEREFORE, premises considered, the contract of sale
between the parties relative to the sale of the condominium unit is hereby
RESCINDED and the [herein petitioner Wong] is ordered to pay the [herein
respondent Koyama] the sum of TWO MILLION TWO HUNDRED FOUR THOUSAND (Php2,204,000.00)
PESOS with legal rate of interest from the date of demand on May 25, 2007; to
pay the plaintiff the sum of TWO HUNDRED THOUSAND (Php200,000.00) PESOS as and
for attorney’s fees; to pay another sum of TWO THOUSAND FIVE HUNDRED (Php2,500.00)
PESOS per court appearance for six (6) times and to pay the costs of suit.
Wong
avers herein that the RTC did not acquire jurisdiction over his person since he
was not served the summons.
Summons is a writ by which the defendant is
notified of the action brought against him or her. In a civil action, jurisdiction over the defendant is acquired either
upon a valid service of summons or the defendant's voluntary appearance in
court. When the defendant does not voluntarily submit to the court's
jurisdiction or when there is no valid service of summons, any judgment of the
court, which has no jurisdiction over the person of the defendant, is null and
void.[33]
Where the action is in personam, i.e., one that seeks to impose some responsibility or liability
directly upon the person of the defendant through the judgment of a court,[34] and the defendant is in the Philippines, the
service of summons may be made through personal or substituted service in the
manner described in Sections 6 and 7, Rule 14 of the Revised Rules of Court,
which provide:
SEC. 6. Service in person on
defendant. – Whenever practicable, the summons shall be served by handing a
copy thereof to the defendant in person, or if he refuses to receive and sign
for it, by tendering it to him.
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 the defendant’s office or regular place of business with some
competent person in charge thereof.
It is well-established that a summons upon a respondent or a defendant must be served by handing a copy thereof to him in person or, if he refuses to receive it, by tendering it to him. Personal service of summons most effectively ensures that the notice desired under the constitutional requirement of due process is accomplished.[35] The essence of personal service is the handing or tendering of a copy of the summons to the defendant himself.[36]
Under our procedural rules, service of summons in
person of defendants is generally preferred over substituted service.[37] Substituted service derogates the regular
method of personal service. It is an
extraordinary method since it seeks to bind the respondent or the defendant to
the consequences of a suit even though notice of such action is served not upon
him but upon another to whom the law could only presume would notify him of the
pending proceedings.[38]
The Court requires that the Sheriff’s
Return clearly and convincingly show the impracticability or hopelessness of
personal service.[39] Proof
of service of summons must (a) indicate the impossibility of 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. It is likewise required that the pertinent facts
proving these circumstances be stated in the proof of service or in the
officer’s return. The failure to comply
faithfully, strictly and fully with all the foregoing requirements of
substituted service renders the service of summons ineffective.[40]
Sheriff Baloloy’s Return dated
THIS IS TO CERTIFY that on
That on
That on
That on August 10, 2007, the undersigned went again to
the said residence to serve the same summons, complaint and its annexes but Ms.
Loren Lopez, another housemaid, said that Mr. Wong was out again (sic) for
office; and
That in the interest of justice, the undersigned left
the said summons complaint and its annexes to Mr. Wong’s caretaker, Mr. Criz
Mira of legal age who reside at the said address for almost two and a half
years but he refused to acknowledge/receive the said summons.
WHEREFORE, the original summons, complaint and its
annexes is hereby returned to this Honorable Court with the information DULY
SERVED.[41]
The Court, after a careful study of
Sheriff Baloloy’s afore-quoted Return, finds that he improperly resorted to
substituted service upon Wong of the summons for Civil Case No. C-21860.
Apart from establishing that Sheriff
Baloloy went to Wong’s residence on three different dates, and that the latter was
not around every time, there is nothing else in the Sheriff’s Return to
establish that Sheriff Baloloy exerted extraordinary efforts to locate
Wong. During his visits to Wong’s
residence on
Evidently,
the Return failed to relay if sufficient
efforts were exerted by Sheriff Baloloy to locate Wong, as well as the
impossibility of personal service of summons upon Wong within a reasonable
time. Sheriff Baloloy’s three visits to
Wong’s residence hardly constitute effort on his part to locate Wong; and Wong’s
absence from his residence during Sheriff Baloloy’s visits, since Wong was at
the office or out-of-town, does not connote impossibility of personal service
of summons upon him. It must be stressed
that, before resorting to substituted service, a sheriff is enjoined to
try his best efforts to accomplish personal service on the defendant. And 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.[43]
Nevertheless, even without valid
service of summons, a court may still acquire jurisdiction over the person of
the defendant, if the latter voluntarily appears before it. Section 20, Rule 14 of the Revised Rules of
Court recognizes that:
Section 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 of the defendant shall not be deemed a voluntary
appearance. (Emphasis ours.)
The RTC acquired jurisdiction over
Wong by virtue of his voluntary appearance before it in Civil Case No.
C-21860. The Court is not referring to
Wong’s filing of his Motion to Dismiss the Complaint in Civil Case No. C-21860,
on the ground of lack of jurisdiction of the RTC over his person, because that
clearly does not constitute voluntary appearance. The Court, instead, calls attention to the
RTC Order dated
The Court further stresses the fact
that the RTC already rendered a Decision in Civil Case No. C-21860 on
IN VIEW WHEREOF, the Petition is DENIED. Costs
against the petitioner.
SO
ORDERED.
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MINITA V. CHICO-NAZARIOAssociate Justice |
WE
CONCUR:
Associate Justice
Chairperson
PRESBITERO J. VELASCO, JR.
Associate Justice |
ANTONIO
EDUARDO B. NACHURA Associate Justice |
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DIOSDADO M. PERALTAAssociate Justice |
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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
· The name of Hon. Adoracion Angeles, in her capacity as Presiding Judge of the Regional Trial Court Caloocan City, Br. 121, is deleted pursuant to Rule 45, Section 4 of the Revised Rules of Court which provides that lower courts or judges shall not be impleaded in the petition either as petitioners or respondents.
[1] Penned by Associate Justice Celia C. Librea-Leagogo with Associate Justices Regalado E. Maambong and Sixto C. Marella, Jr., concurring; rollo, pp. 25-28.
[2] Rollo, pp. 22-23.
[3] Records, p. 43.
[4] Penned by Judge Adoracion G. Angeles; records, pp. 69-70.
[5]
[6]
[7]
[8] According to Section 1, Rule 11 of the Revised Rules of Court:
Section 1. Answer to the complaint.—The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court. (Emphasis ours.)
[9] Records, pp. 39-40.
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21] Section 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 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.
[22] Records, pp. 72-85.
[23]
[24]
[25]
[26]
[27]
[28]
[29]
[30] TSN,
[31] Records, pp. 191-195.
[32]
[33] Manotoc v. Court of Appeals,
G.R. No. 130974,
[34] Domagas v. Jensen, G.R. No. 158407,
[35] Sandoval II v. House of Representatives Electoral Tribunal, 433 Phil. 290, 300-301 (2002).
[36] Paluwagan Ng Bayan Savings Bank v. King, 254 Phil. 56, 60-64 (1989).
[37] See Robinson v. Miralles, G.R. No. 163584,
[38] Sandoval II v. House of Representatives Electoral Tribunal, supra note 35 at 301.
[39]
[40] Spouses Jose v. Spouses Boyon, 460 Phil. 354, 363 (2003).
[41] Records, p. 18.
[42] Service of summons to be done
personally does not mean that service is possible only at the defendant’s
actual residence. It is enough that the defendant is handed a copy of the
summons in person by anyone authorized by law. (Lazaro v. Rural Bank of
Francisco Balagtas [Bulacan], Inc., 456 Phil. 414, 424
[2003].)
[43] Manotoc v. Court of Appeals, supra note 33 at 35-36.
[44] 469 Phil. 1020 (2004).