Republic of the Philippines In case of publication, where the residence of a nonresident or
SUPREME COURT absent defendant is known, the judge must direct a copy of the
Manila
EN BANC
G.R. No. L-11390 March 26, 1918
EL BANCO ESPAOL-FILIPINO, plaintiff-appellant,
vs.
VICENTE PALANCA, administrator of the estate of Engracio Palanca
Tanquinyeng, defendant-appellant.
Aitken and DeSelms for appellant.
Hartigan and Welch for appellee.
STREET, J.:
This action was instituted upon March 31, 1908, by "El Banco Espanol-
Filipino" to foreclose a mortgage upon various parcels of real property
situated in the city of Manila. The mortgage in question is dated June 16,
1906, and was executed by the original defendant herein, Engracio Palanca
Tanquinyeng y Limquingco, as security for a debt owing by him to the
bank. Upon March 31, 1906, the debt amounted to P218,294.10 and was
drawing interest at the rate of 8 per centum per annum, payable at the
end of each quarter. It appears that the parties to this mortgage at that
time estimated the value of the property in question at P292,558, which
was about P75,000 in excess of the indebtedness. After the execution of
this instrument by the mortgagor, he returned to China which appears to
have been his native country; and he there died, upon January 29, 1810,
without again returning to the Philippine Islands.
As the defendant was a nonresident at the time of the institution of the
present action, it was necessary for the plaintiff in the foreclosure
proceeding to give notice to the defendant by publication pursuant to
section 399 of the Code of Civil Procedure. An order for publication was
accordingly obtained from the court, and publication was made in due form
in a newspaper of the city of Manila. At the same time that the order of the
court should deposit in the post office in a stamped envelope a copy of the
summons and complaint directed to the defendant at his last place of
residence, to wit, the city of Amoy, in the Empire of China. This order was
made pursuant to the following provision contained in section 399 of the
Code of Civil Procedure:
summons and complaint to be forthwith deposited by the clerk in
the post-office, postage prepaid, directed to the person to be
served, at his place of residence
Whether the clerk complied with this order does not affirmatively appear.
There is, however, among the papers pertaining to this case, an affidavit,
dated April 4, 1908, signed by Bernardo Chan y Garcia, an employee of the
attorneys of the bank, showing that upon that date he had deposited in the
Manila post-office a registered letter, addressed to Engracio Palanca
Tanquinyeng, at Manila, containing copies of the complaint, the plaintiff's
affidavit, the summons, and the order of the court directing publication as
aforesaid. It appears from the postmaster's receipt that Bernardo probably
used an envelope obtained from the clerk's office, as the receipt purports
to show that the letter emanated from the office.
The cause proceeded in usual course in the Court of First Instance; and the
defendant not having appeared, judgment was, upon July 2, 1908, taken
against him by default. Upon July 3, 1908, a decision was rendered in favor
of the plaintiff. In this decision it was recited that publication had been
properly made in a periodical, but nothing was said about this notice
having been given mail. The court, upon this occasion, found that the
indebtedness of the defendant amounted to P249,355. 32, with interest
from March 31, 1908. Accordingly it was ordered that the defendant
should, on or before July 6, 1908, deliver said amount to the clerk of the
court to be applied to the satisfaction of the judgment, and it was declared
that in case of the failure of the defendant to satisfy the judgment within
such period, the mortgage property located in the city of Manila should be
exposed to public sale. The payment contemplated in said order was never
made; and upon July 8, 1908, the court ordered the sale of the property.
The sale took place upon July 30, 1908, and the property was bought in by
the bank for the sum of P110,200. Upon August 7, 1908, this sale was
confirmed by the court.
About seven years after the confirmation of this sale, or to the precise,
upon June 25, 1915, a motion was made in this cause by Vicente Palanca,
as administrator of the estate of the original defendant, Engracio Palanca
Tanquinyeng y Limquingco, wherein the applicant requested the court to
set aside the order of default of July 2, 1908, and the judgment rendered
upon July 3, 1908, and to vacate all the proceedings subsequent thereto.
The basis of this application, as set forth in the motion itself, was that the
order of default and the judgment rendered thereon were void because the
court had never acquired jurisdiction over the defendant or over the
subject of the action.
At the hearing in the court below the application to vacate the judgment
was denied, and from this action of the court Vicente Planca, as
administrator of the estate of the original defendant, has appealed. No
other feature of the case is here under consideration than such as related
to the action of the court upon said motion.
The case presents several questions of importance, which will be discussed
in what appears to be the sequence of most convenient development. In
the first part of this opinion we shall, for the purpose of argument, assume
that the clerk of the Court of First Instance did not obey the order of the
court in the matter of mailing the papers which he was directed to send to
the defendant in Amoy; and in this connection we shall consider, first,
whether the court acquired the necessary jurisdiction to enable it to
proceed with the foreclosure of the mortgage and, secondly, whether those
proceedings were conducted in such manner as to constitute due process
of law.
The word "jurisdiction," as applied to the faculty of exercising judicial
power, is used in several different, though related, senses since it may
have reference (1) to the authority of the court to entertain a particular
kind of action or to administer a particular kind of relief, or it may refer to
the power of the court over the parties, or (2) over the property which is
the subject to the litigation.
The sovereign authority which organizes a court determines the nature and
extent of its powers in general and thus fixes its competency or jurisdiction
with reference to the actions which it may entertain and the relief it may
grant.
Jurisdiction over the person is acquired by the voluntary appearance of a
party in court and his submission to its authority, or it is acquired by the
coercive power of legal process exerted over the person.
Jurisdiction over the property which is the subject of the litigation may
result either from a seizure of the property under legal process, whereby it
is brought into the actual custody of the law, or it may result from the
institution of legal proceedings wherein, under special provisions of law,
the power of the court over the property is recognized and made effective.
In the latter case the property, though at all times within the potential
power of the court, may never be taken into actual custody at all. An
illustration of the jurisdiction acquired by actual seizure is found in
attachment proceedings, where the property is seized at the beginning of
the action, or some subsequent stage of its progress, and held to abide the
final event of the litigation. An illustration of what we term potential
jurisdiction over the res, is found in the proceeding to register the title of
land under our system for the registration of land. Here the court, without
taking actual physical control over the property assumes, at the instance of
some person claiming to be owner, to exercise a jurisdiction in rem over
the property and to adjudicate the title in favor of the petitioner against all
the world.
In the terminology of American law the action to foreclose a mortgage is
said to be a proceeding quasi in rem, by which is expressed the idea that
while it is not strictly speaking an action in rem yet it partakes of that
nature and is substantially such. The expression "action in rem" is, in its
narrow application, used only with reference to certain proceedings in
courts of admiralty wherein the property alone is treated as responsible for
the claim or obligation upon which the proceedings are based. The action
quasi rem differs from the true action in rem in the circumstance that in
the former an individual is named as defendant, and the purpose of the
proceeding is to subject his interest therein to the obligation or lien
burdening the property. All proceedings having for their sole object the sale
or other disposition of the property of the defendant, whether by
attachment, foreclosure, or other form of remedy, are in a general way
thus designated. The judgment entered in these proceedings is conclusive
only between the parties.
In speaking of the proceeding to foreclose a mortgage the author of a well
known treaties, has said:
Though nominally against person, such suits are to vindicate liens;
they proceed upon seizure; they treat property as primarily
indebted; and, with the qualification above-mentioned, they are
substantially property actions. In the civil law, they are styled
hypothecary actions, and their sole object is the enforcement of
the lien against the res; in the common law, they would be
different in chancery did not treat the conditional conveyance as a
mere hypothecation, and the creditor's right ass an equitable lien;
so, in both, the suit is real action so far as it is against property,
and seeks the judicial recognition of a property debt, and an order
for the sale of the res. (Waples, Proceedings In Rem. sec. 607.)
It is true that in proceedings of this character, if the defendant for whom
publication is made appears, the action becomes as to him a personal
action and is conducted as such. This, however, does not affect the
proposition that where the defendant fails to appear the action is quasi in
rem; and it should therefore be considered with reference to the principles
governing actions in rem.
There is an instructive analogy between the foreclosure proceeding and an
action of attachment, concerning which the Supreme Court of the United
States has used the following language:
 If the defendant appears, the cause becomes mainly a suit in
personam, with the added incident, that the property attached
remains liable, under the control of the court, to answer to any
demand which may be established against the defendant by the
final judgment of the court. But, if there is no appearance of the
defendant, and no service of process on him, the case becomes, in
its essential nature, a proceeding in rem, the only effect of which is
to subject the property attached to the payment of the defendant
which the court may find to be due to the plaintiff. (Cooper vs.
Reynolds, 10 Wall., 308.)
In an ordinary attachment proceeding, if the defendant is not personally
served, the preliminary seizure is to, be considered necessary in order to
confer jurisdiction upon the court. In this case the lien on the property is
acquired by the seizure; and the purpose of the proceedings is to subject
the property to that lien. If a lien already exists, whether created by
mortgage, contract, or statute, the preliminary seizure is not necessary;
and the court proceeds to enforce such lien in the manner provided by law
precisely as though the property had been seized upon attachment. (Roller
vs. Holly, 176 U. S., 398, 405; 44 L. ed., 520.) It results that the mere
circumstance that in an attachment the property may be seized at the
inception of the proceedings, while in the foreclosure suit it is not taken
into legal custody until the time comes for the sale, does not materially
affect the fundamental principle involved in both cases, which is that the
court is here exercising a jurisdiction over the property in a proceeding
directed essentially in rem.
Passing now to a consideration of the jurisdiction of the Court of First
Instance in a mortgage foreclosure, it is evident that the court derives its
authority to entertain the action primarily from the statutes organizing the
court. The jurisdiction of the court, in this most general sense, over the
cause of action is obvious and requires no comment. Jurisdiction over the
person of the defendant, if acquired at all in such an action, is obtained by
the voluntary submission of the defendant or by the personal service of
process upon him within the territory where the process is valid. If,
however, the defendant is a nonresident and, remaining beyond the range
of the personal process of the court, refuses to come in voluntarily, the
court never acquires jurisdiction over the person at all. Here the property
itself is in fact the sole thing which is impleaded and is the responsible
object which is the subject of the exercise of judicial power. It follows that
the jurisdiction of the court in such case is based exclusively on the power
which, under the law, it possesses over the property; and any discussion
relative to the jurisdiction of the court over the person of the defendant is
entirely apart from the case. The jurisdiction of the court over the property,
considered as the exclusive object of such action, is evidently based upon
the following conditions and considerations, namely: (1) that the property
is located within the district; (2) that the purpose of the litigation is to
subject the property by sale to an obligation fixed upon it by the mortgage;
and (3) that the court at a proper stage of the proceedings takes the
property into custody, if necessary, and expose it to sale for the purpose of
satisfying the mortgage debt. An obvious corollary is that no other relief
can be granted in this proceeding than such as can be enforced against the
property.
We may then, from what has been stated, formulated the following
proposition relative to the foreclosure proceeding against the property of a
nonresident mortgagor who fails to come in and submit himself personally
to the jurisdiction of the court: (I) That the jurisdiction of the court is
derived from the power which it possesses over the property; (II) that
jurisdiction over the person is not acquired and is nonessential; (III) that
the relief granted by the court must be limited to such as can be enforced
against the property itself.
It is important that the bearing of these propositions be clearly
apprehended, for there are many expressions in the American reports from
which it might be inferred that the court acquires personal jurisdiction over
the person of the defendant by publication and notice; but such is not the
case. In truth the proposition that jurisdiction over the person of a
nonresident cannot be acquired by publication and notice was never
clearly understood even in the American courts until after the decision had
been rendered by the Supreme Court of the United States in the leading
case of Pennoyer vs. Neff (95 U. S. 714; 24 L. ed., 565). In the light of that
decision, and of other decisions which have subsequently been rendered in
that and other courts, the proposition that jurisdiction over the person
cannot be thus acquired by publication and notice is no longer open to
question; and it is now fully established that a personal judgment upon
constructive or substituted service against a nonresident who does not
appear is wholly invalid. This doctrine applies to all kinds of constructive or
substituted process, including service by publication and personal service
outside of the jurisdiction in which the judgment is rendered; and the only
exception seems to be found in the case where the nonresident defendant
has expressly or impliedly consented to the mode of service. (Note to
Raher vs. Raher, 35 L. R. A. [N. S. ], 292; see also 50 L .R. A., 585; 35 L. R.
A. [N. S.], 312
The idea upon which the decision in Pennoyer vs. Neff (supra) proceeds is
that the process from the tribunals of one State cannot run into other
States or countries and that due process of law requires that the defendant
shall be brought under the power of the court by service of process within
the State, or by his voluntary appearance, in order to authorize the court to
pass upon the question of his personal liability. The doctrine established by
the Supreme Court of the United States on this point, being based upon the
constitutional conception of due process of law, is binding upon the courts
of the Philippine Islands. Involved in this decision is the principle that in
proceedings in rem or quasi in rem against a nonresident who is not served
personally within the state, and who does not appear, the relief must be
confined to the res, and the court cannot lawfully render a personal
judgment against him. (Dewey vs. Des Moines, 173 U. S., 193; 43 L. ed.,
665; Heidritter vs. Elizabeth Oil Cloth Co., 112 U. S., 294; 28 L. ed., 729.)
Therefore in an action to foreclose a mortgage against a nonresident, upon
whom service has been effected exclusively by publication, no personal
judgment for the deficiency can be entered. (Latta vs. Tutton, 122 Cal.,
279; Blumberg vs. Birch, 99 Cal., 416.)
It is suggested in the brief of the appellant that the judgment entered in
the court below offends against the principle just stated and that this
judgment is void because the court in fact entered a personal judgment
against the absent debtor for the full amount of the indebtedness secured
by the mortgage. We do not so interpret the judgment.
In a foreclosure proceeding against a nonresident owner it is necessary for
the court, as in all cases of foreclosure, to ascertain the amount due, as
prescribed in section 256 of the Code of Civil Procedure, and to make an
order requiring the defendant to pay the money into court. This step is a
necessary precursor of the order of sale. In the present case the judgment
which was entered contains the following words:
Because it is declared that the said defendant Engracio Palanca
Tanquinyeng y Limquingco, is indebted in the amount of
P249,355.32, plus the interest, to the 'Banco Espanol-Filipino' . . .
therefore said appellant is ordered to deliver the above amount
etc., etc.
This is not the language of a personal judgment. Instead it is clearly
intended merely as a compliance with the requirement that the amount
due shall be ascertained and that the evidence of this it may be observed
that according to the Code of Civil Procedure a personal judgment against
the debtor for the deficiency is not to be rendered until after the property
has been sold and the proceeds applied to the mortgage debt. (sec. 260).
The conclusion upon this phase of the case is that whatever may be the
effect in other respects of the failure of the clerk of the Court of First
Instance to mail the proper papers to the defendant in Amoy, China, such
irregularity could in no wise impair or defeat the jurisdiction of the court,
for in our opinion that jurisdiction rest upon a basis much more secure than
would be supplied by any form of notice that could be given to a resident
of a foreign country.
Before leaving this branch of the case, we wish to observe that we are fully
aware that many reported cases can be cited in which it is assumed that
the question of the sufficiency of publication or notice in a case of this kind
is a question affecting the jurisdiction of the court, and the court is
sometimes said to acquire jurisdiction by virtue of the publication. This
phraseology was undoubtedly originally adopted by the court because of
the analogy between service by the publication and personal service of
process upon the defendant; and, as has already been suggested, prior to
the decision of Pennoyer vs. Neff (supra) the difference between the legal
effects of the two forms of service was obscure. It is accordingly not
surprising that the modes of expression which had already been molded
into legal tradition before that case was decided have been brought down
to the present day. But it is clear that the legal principle here involved is
not effected by the peculiar language in which the courts have expounded
their ideas.
We now proceed to a discussion of the question whether the supposed
irregularity in the proceedings was of such gravity as to amount to a denial
of that "due process of law" which was secured by the Act of Congress in
force in these Islands at the time this mortgage was foreclosed. (Act of July
1, 1902, sec. 5.) In dealing with questions involving the application of the
constitutional provisions relating to due process of law the Supreme Court
of the United States has refrained from attempting to define with precision
the meaning of that expression, the reason being that the idea expressed
therein is applicable under so many diverse conditions as to make any
attempt ay precise definition hazardous and unprofitable. As applied to a
judicial proceeding, however, it may be laid down with certainty that the
requirement of due process is satisfied if the following conditions are
present, namely; (1) There must be a court or tribunal clothed with judicial
power to hear and determine the matter before it; (2) jurisdiction must be
lawfully acquired over the person of the defendant or over the property
which is the subject of the proceeding; (3) the defendant must be given an
opportunity to be heard; and (4) judgment must be rendered upon lawful
hearing.
Passing at once to the requisite that the defendant shall have an
opportunity to be heard, we observe that in a foreclosure case some
notification of the proceedings to the nonresident owner, prescribing the
time within which appearance must be made, is everywhere recognized as
essential. To answer this necessity the statutes generally provide for
publication, and usually in addition thereto, for the mailing of notice to the
defendant, if his residence is known. Though commonly called
constructive, or substituted service of process in any true sense. It is
merely a means provided by law whereby the owner may be admonished
that his property is the subject of judicial proceedings and that it is
incumbent upon him to take such steps as he sees fit to protect it. In
speaking of notice of this character a distinguish master of constitutional
law has used the following language:
 . . . if the owners are named in the proceedings, and personal
notice is provided for, it is rather from tenderness to their interests,
and in order to make sure that the opportunity for a hearing shall
not be lost to them, than from any necessity that the case shall
assume that form. (Cooley on Taxation [2d. ed.], 527, quoted in
Leigh vs. Green, 193 U. S., 79, 80.)
It will be observed that this mode of notification does not involve any
absolute assurance that the absent owner shall thereby receive actual
notice. The periodical containing the publication may never in fact come to
his hands, and the chances that he should discover the notice may often
be very slight. Even where notice is sent by mail the probability of his
receiving it, though much increased, is dependent upon the correctness of
the address to which it is forwarded as well as upon the regularity and
security of the mail service. It will be noted, furthermore, that the provision
of our law relative to the mailing of notice does not absolutely require the
mailing of notice unconditionally and in every event, but only in the case
where the defendant's residence is known. In the light of all these facts, it
is evident that actual notice to the defendant in cases of this kind is not,
under the law, to be considered absolutely necessary.
The idea upon which the law proceeds in recognizing the efficacy of a
means of notification which may fall short of actual notice is apparently
this: Property is always assumed to be in the possession of its owner, in
person or by agent; and he may be safely held, under certain conditions, to
be affected with knowledge that proceedings have been instituted for its
condemnation and sale.
It is the duty of the owner of real estate, who is a nonresident, to
take measures that in some way he shall be represented when his
property is called into requisition, and if he fails to do this, and fails
to get notice by the ordinary publications which have usually been
required in such cases, it is his misfortune, and he must abide the
consequences. (6 R. C. L., sec. 445 [p. 450]).
It has been well said by an American court:
If property of a nonresident cannot be reached by legal process
upon the constructive notice, then our statutes were passed in
vain, and are mere empty legislative declarations, without either
force, or meaning; for if the person is not within the jurisdiction of
the court, no personal judgment can be rendered, and if the
judgment cannot operate upon the property, then no effective
judgment at all can be rendered, so that the result would be that
the courts would be powerless to assist a citizen against a
nonresident. Such a result would be a deplorable one. (Quarl vs.
Abbett, 102 Ind., 233; 52 Am. Rep., 662, 667.)
It is, of course universally recognized that the statutory provisions relative
to publication or other form of notice against a nonresident owner should
be complied with; and in respect to the publication of notice in the
newspaper it may be stated that strict compliance with the requirements of
the law has been held to be essential. In Guaranty Trust etc. Co. vs. Green
Cove etc., Railroad Co. (139 U. S., 137, 138), it was held that where
newspaper publication was made for 19 weeks, when the statute required
20, the publication was insufficient.
With respect to the provisions of our own statute, relative to the sending of
notice by mail, the requirement is that the judge shall direct that the notice
be deposited in the mail by the clerk of the court, and it is not in terms
declared that the notice must be deposited in the mail. We consider this to
be of some significance; and it seems to us that, having due regard to the
principles upon which the giving of such notice is required, the absent
owner of the mortgaged property must, so far as the due process of law is
concerned, take the risk incident to the possible failure of the clerk to
perform his duty, somewhat as he takes the risk that the mail clerk or the
mail carrier might possibly lose or destroy the parcel or envelope
containing the notice before it should reach its destination and be
delivered to him. This idea seems to be strengthened by the consideration
that placing upon the clerk the duty of sending notice by mail, the
performance of that act is put effectually beyond the control of the plaintiff
in the litigation. At any rate it is obvious that so much of section 399 of the
Code of Civil Procedure as relates to the sending of notice by mail was
complied with when the court made the order. The question as to what
may be the consequences of the failure of the record to show the proof of
compliance with that requirement will be discussed by us further on.
The observations which have just been made lead to the conclusion that
the failure of the clerk to mail the notice, if in fact he did so fail in his duty,
is not such an irregularity, as amounts to a denial of due process of law;
and hence in our opinion that irregularity, if proved, would not avoid the
judgment in this case. Notice was given by publication in a newspaper and
this is the only form of notice which the law unconditionally requires. This
in our opinion is all that was absolutely necessary to sustain the
proceedings.
It will be observed that in considering the effect of this irregularity, it
makes a difference whether it be viewed as a question involving
jurisdiction or as a question involving due process of law. In the matter of
jurisdiction there can be no distinction between the much and the little.
The court either has jurisdiction or it has not; and if the requirement as to
the mailing of notice should be considered as a step antecedent to the
acquiring of jurisdiction, there could be no escape from the conclusion that
the failure to take that step was fatal to the validity of the judgment. In the
application of the idea of due process of law, on the other hand, it is clearly
unnecessary to be so rigorous. The jurisdiction being once established, all
that due process of law thereafter requires is an opportunity for the
defendant to be heard; and as publication was duly made in the
newspaper, it would seem highly unreasonable to hold that failure to mail
the notice was fatal. We think that in applying the requirement of due
process of law, it is permissible to reflect upon the purposes of the
provision which is supposed to have been violated and the principle
underlying the exercise of judicial power in these proceedings. Judge in the
light of these conceptions, we think that the provision of Act of Congress
declaring that no person shall be deprived of his property without due
process of law has not been infringed.
In the progress of this discussion we have stated the two conclusions; (1)
that the failure of the clerk to send the notice to the defendant by mail did
not destroy the jurisdiction of the court and (2) that such irregularity did
not infringe the requirement of due process of law. As a consequence of
these conclusions the irregularity in question is in some measure shorn of
its potency. It is still necessary, however, to consider its effect considered
as a simple irregularity of procedure; and it would be idle to pretend that
even in this aspect the irregularity is not grave enough. From this point of
view, however, it is obvious that any motion to vacate the judgment on the
ground of the irregularity in question must fail unless it shows that the
defendant was prejudiced by that irregularity. The least, therefore, that can
be required of the proponent of such a motion is to show that he had a
good defense against the action to foreclose the mortgage. Nothing of the
kind is, however, shown either in the motion or in the affidavit which
accompanies the motion.
An application to open or vacate a judgment because of an irregularity or
defect in the proceedings is usually required to be supported by an
affidavit showing the grounds on which the relief is sought, and in addition
to this showing also a meritorious defense to the action. It is held that a
general statement that a party has a good defense to the action is
insufficient. The necessary facts must be averred. Of course if a judgment
is void upon its face a showing of the existence of a meritorious defense is
not necessary. (10 R. C. L., 718.)
The lapse of time is also a circumstance deeply affecting this aspect of the
case. In this connection we quote the following passage from the
encyclopedic treatise now in course of publication:
Where, however, the judgment is not void on its face, and may
therefore be enforced if permitted to stand on the record, courts in
many instances refuse to exercise their quasi equitable powers to
vacate a judgement after the lapse of the term ay which it was
entered, except in clear cases, to promote the ends of justice, and
where it appears that the party making the application is himself
without fault and has acted in good faith and with ordinary
diligence. Laches on the part of the applicant, if unexplained, is
deemed sufficient ground for refusing the relief to which he might
otherwise be entitled. Something is due to the finality of
judgments, and acquiescence or unnecessary delay is fatal to
motions of this character, since courts are always reluctant to
interfere with judgments, and especially where they have been
executed or satisfied. The moving party has the burden of showing
diligence, and unless it is shown affirmatively the court will not
ordinarily exercise its discretion in his favor. (15 R. C. L., 694, 695.)
It is stated in the affidavit that the defendant, Engracio Palanca
Tanquinyeng y Limquingco, died January 29, 1910. The mortgage under
which the property was sold was executed far back in 1906; and the
proceedings in the foreclosure were closed by the order of court confirming
the sale dated August 7, 1908. It passes the rational bounds of human
credulity to suppose that a man who had placed a mortgage upon property
worth nearly P300,000 and had then gone away from the scene of his life
activities to end his days in the city of Amoy, China, should have long
remained in ignorance of the fact that the mortgage had been foreclosed
and the property sold, even supposing that he had no knowledge of those
proceedings while they were being conducted. It is more in keeping with
the ordinary course of things that he should have acquired information as
to what was transpiring in his affairs at Manila; and upon the basis of this
rational assumption we are authorized, in the absence of proof to the
contrary, to presume that he did have, or soon acquired, information as to
the sale of his property.
The Code of Civil Procedure, indeed, expressly declares that there is a
presumption that things have happened according to the ordinary habits of
life (sec. 334 [26]); and we cannot conceive of a situation more appropriate
than this for applying the presumption thus defined by the lawgiver. In
support of this presumption, as applied to the present case, it is
permissible to consider the probability that the defendant may have
received actual notice of these proceedings from the unofficial notice
addressed to him in Manila which was mailed by an employee of the bank's
attorneys. Adopting almost the exact words used by the Supreme Court of
the United States in Grannis vs. Ordeans (234 U. S., 385; 58 L. ed., 1363),
we may say that in view of the well-known skill of postal officials and
employees in making proper delivery of letters defectively addressed, we
think the presumption is clear and strong that this notice reached the
defendant, there being no proof that it was ever returned by the postal
officials as undelivered. And if it was delivered in Manila, instead of being
forwarded to Amoy, China, there is a probability that the recipient was a
person sufficiently interested in his affairs to send it or communicate its
contents to him.
Of course if the jurisdiction of the court or the sufficiency of the process of
law depended upon the mailing of the notice by the clerk, the reflections in
which we are now indulging would be idle and frivolous; but the
considerations mentioned are introduced in order to show the propriety of
applying to this situation the legal presumption to which allusion has been
made. Upon that presumption, supported by the circumstances of this
case, ,we do not hesitate to found the conclusion that the defendant
voluntarily abandoned all thought of saving his property from the
obligation which he had placed upon it; that knowledge of the proceedings
should be imputed to him; and that he acquiesced in the consequences of
those proceedings after they had been accomplished. Under these
circumstances it is clear that the merit of this motion is, as we have
already stated, adversely affected in a high degree by the delay in asking
for relief. Nor is it an adequate reply to say that the proponent of this
motion is an administrator who only qualified a few months before this
motion was made. No disability on the part of the defendant himself
existed from the time when the foreclosure was effected until his death;
and we believe that the delay in the appointment of the administrator and
institution of this action is a circumstance which is imputable to the parties
in interest whoever they may have been. Of course if the minor heirs had
instituted an action in their own right to recover the property, it would
have been different.
It is, however, argued that the defendant has suffered prejudice by reason
of the fact that the bank became the purchaser of the property at the
foreclosure sale for a price greatly below that which had been agreed upon
in the mortgage as the upset price of the property. In this connection, it
appears that in article nine of the mortgage which was the subject of this
foreclosure, as amended by the notarial document of July 19, 1906, the
parties to this mortgage made a stipulation to the effect that the value
therein placed upon the mortgaged properties should serve as a basis of
sale in case the debt should remain unpaid and the bank should proceed to
a foreclosure. The upset price stated in that stipulation for all the parcels
involved in this foreclosure was P286,000. It is said in behalf of the
appellant that when the bank bought in the property for the sum of
P110,200 it violated that stipulation.
It has been held by this court that a clause in a mortgage providing for a
tipo, or upset price, does not prevent a foreclosure, nor affect the validity
of a sale made in the foreclosure proceedings. (Yangco vs. Cruz Herrera
and Wy Piaco, 11 Phil. Rep., 402; Banco-Espaol Filipino vs. Donaldson, Sim
and Co., 5 Phil. Rep., 418.) In both the cases here cited the property was
purchased at the foreclosure sale, not by the creditor or mortgagee, but by
a third party. Whether the same rule should be applied in a case where the
mortgagee himself becomes the purchaser has apparently not been
decided by this court in any reported decision, and this question need not
here be considered, since it is evident that if any liability was incurred by
the bank by purchasing for a price below that fixed in the stipulation, its
liability was a personal liability derived from the contract of mortgage; and
as we have already demonstrated such a liability could not be the subject
of adjudication in an action where the court had no jurisdiction over the
person of the defendant. If the plaintiff bank became liable to account for
the difference between the upset price and the price at which in bought in
the property, that liability remains unaffected by the disposition which the
court made of this case; and the fact that the bank may have violated such
an obligation can in no wise affect the validity of the judgment entered in
the Court of First Instance.
In connection with the entire failure of the motion to show either a
meritorious defense to the action or that the defendant had suffered any
prejudice of which the law can take notice, we may be permitted to add
that in our opinion a motion of this kind, which proposes to unsettle judicial
proceedings long ago closed, can not be considered with favor, unless
based upon grounds which appeal to the conscience of the court. Public
policy requires that judicial proceedings be upheld. The maximum here
applicable is non quieta movere. As was once said by Judge Brewer,
afterwards a member of the Supreme Court of the United States:
Public policy requires that judicial proceedings be upheld, and that
titles obtained in those proceedings be safe from the ruthless hand
of collateral attack. If technical defects are adjudged potent to
destroy such titles, a judicial sale will never realize that value of
the property, for no prudent man will risk his money in bidding for
and buying that title which he has reason to fear may years
thereafter be swept away through some occult and not readily
discoverable defect. (Martin vs. Pond, 30 Fed., 15.)
In the case where that language was used an attempt was made to annul
certain foreclosure proceedings on the ground that the affidavit upon which
the order of publication was based erroneously stated that the State of
Kansas, when he was in fact residing in another State. It was held that this
mistake did not affect the validity of the proceedings.
In the preceding discussion we have assumed that the clerk failed to send
the notice by post as required by the order of the court. We now proceed to
consider whether this is a proper assumption; and the proposition which
we propose to establish is that there is a legal presumption that the clerk
performed his duty as the ministerial officer of the court, which
presumption is not overcome by any other facts appearing in the cause.
In subsection 14 of section 334 of the Code of Civil Procedure it is declared
that there is a presumption "that official duty has been regularly
performed;" and in subsection 18 it is declared that there is a presumption
"that the ordinary course of business has been followed." These
presumptions are of course in no sense novelties, as they express ideas
which have always been recognized. Omnia presumuntur rite et solemniter
esse acta donec probetur in contrarium. There is therefore clearly a legal
presumption that the clerk performed his duty about mailing this notice;
and we think that strong considerations of policy require that this
presumption should be allowed to operate with full force under the
circumstances of this case. A party to an action has no control over the
clerk of the court; and has no right to meddle unduly with the business of
the clerk in the performance of his duties. Having no control over this
officer, the litigant must depend upon the court to see that the duties
imposed on the clerk are performed.
Other considerations no less potent contribute to strengthen the
conclusion just stated. There is no principle of law better settled than that
after jurisdiction has once been required, every act of a court of general
jurisdiction shall be presumed to have been rightly done. This rule is
applied to every judgment or decree rendered in the various stages of the
proceedings from their initiation to their completion (Voorhees vs. United
States Bank, 10 Pet., 314; 35 U. S., 449); and if the record is silent with
respect to any fact which must have been established before the court
could have rightly acted, it will be presumed that such fact was properly
brought to its knowledge. (The Lessee of Grignon vs. Astor, 2 How., 319; 11
L. ed., 283.)
In making the order of sale [of the real state of a decedent] the
court are presumed to have adjudged every question necessary to
justify such order or decree, viz: The death of the owners; that the
petitioners were his administrators; that the personal estate was
insufficient to pay the debts of the deceased; that the private acts
of Assembly, as to the manner of sale, were within the
constitutional power of the Legislature, and that all the provisions
of the law as to notices which are directory to the administrators
have been complied with. . . . The court is not bound to enter upon
the record the evidence on which any fact was decided. (Florentine
vs. Barton, 2 Wall., 210; 17 L. ed., 785.) Especially does all this
apply after long lapse of time.
Applegate vs. Lexington and Carter County Mining Co. (117 U. S., 255)
contains an instructive discussion in a case analogous to that which is now
before us. It there appeared that in order to foreclose a mortgage in the
State of Kentucky against a nonresident debtor it was necessary that
publication should be made in a newspaper for a specified period of time,
also be posted at the front door of the court house and be published on
some Sunday, immediately after divine service, in such church as the court
should direct. In a certain action judgment had been entered against a
nonresident, after publication in pursuance of these provisions. Many years
later the validity of the proceedings was called in question in another
action. It was proved from the files of an ancient periodical that publication
had been made in its columns as required by law; but no proof was offered
to show the publication of the order at the church, or the posting of it at
the front door of the court-house. It was insisted by one of the parties that
the judgment of the court was void for lack of jurisdiction. But the Supreme
Court of the United States said:
The court which made the decree . . . was a court of general
jurisdiction. Therefore every presumption not inconsistent with the
record is to be indulged in favor of its jurisdiction. . . . It is to be
presumed that the court before making its decree took care of to
see that its order for constructive service, on which its right to
make the decree depended, had been obeyed.
It is true that in this case the former judgment was the subject of
collateral , or indirect attack, while in the case at bar the motion to vacate
the judgment is direct proceeding for relief against it. The same general
presumption, however, is indulged in favor of the judgment of a court of
general jurisdiction, whether it is the subject of direct or indirect attack the
only difference being that in case of indirect attack the judgment is
conclusively presumed to be valid unless the record affirmatively shows it
to be void, while in case of direct attack the presumption in favor of its
validity may in certain cases be overcome by proof extrinsic to the record.
The presumption that the clerk performed his duty and that the court
made its decree with the knowledge that the requirements of law had been
complied with appear to be amply sufficient to support the conclusion that
the notice was sent by the clerk as required by the order. It is true that
there ought to be found among the papers on file in this cause an affidavit,
as required by section 400 of the Code of Civil Procedure, showing that the
order was in fact so sent by the clerk; and no such affidavit appears. The
record is therefore silent where it ought to speak. But the very purpose of
the law in recognizing these presumptions is to enable the court to sustain
a prior judgment in the face of such an omission. If we were to hold that
the judgment in this case is void because the proper affidavit is not present
in the file of papers which we call the record, the result would be that in
the future every title in the Islands resting upon a judgment like that now
before us would depend, for its continued security, upon the presence of
such affidavit among the papers and would be liable at any moment to be
destroyed by the disappearance of that piece of paper. We think that no
court, with a proper regard for the security of judicial proceedings and for
the interests which have by law been confided to the courts, would incline
to favor such a conclusion. In our opinion the proper course in a case of
this kind is to hold that the legal presumption that the clerk performed his
duty still maintains notwithstanding the absence from the record of the
proper proof of that fact.
In this connection it is important to bear in mind that under the practice
prevailing in the Philippine Islands the word "record" is used in a loose and
broad sense, as indicating the collective mass of papers which contain the
history of all the successive steps taken in a case and which are finally
deposited in the archives of the clerk's office as a memorial of the
litigation. It is a matter of general information that no judgment roll, or
book of final record, is commonly kept in our courts for the purpose of
recording the pleadings and principal proceedings in actions which have
been terminated; and in particular, no such record is kept in the Court of
First Instance of the city of Manila. There is, indeed, a section of the Code
of Civil Procedure which directs that such a book of final record shall be
kept; but this provision has, as a matter of common knowledge, been
generally ignored. The result is that in the present case we do not have the
assistance of the recitals of such a record to enable us to pass upon the
validity of this judgment and as already stated the question must be
determined by examining the papers contained in the entire file.
But it is insisted by counsel for this motion that the affidavit of Bernardo
Chan y Garcia showing that upon April 4, 1908, he sent a notification
through the mail addressed to the defendant at Manila, Philippine Islands,
should be accepted as affirmative proof that the clerk of the court failed in
his duty and that, instead of himself sending the requisite notice through
the mail, he relied upon Bernardo to send it for him. We do not think that
this is by any means a necessary inference. Of course if it had affirmatively
appeared that the clerk himself had attempted to comply with this order
and had directed the notification to Manila when he should have directed it
to Amoy, this would be conclusive that he had failed to comply with the
exact terms of the order; but such is not this case. That the clerk of the
attorneys for the plaintiff erroneously sent a notification to the defendant
at a mistaken address affords in our opinion very slight basis for supposing
that the clerk may not have sent notice to the right address.
There is undoubtedly good authority to support the position that when the
record states the evidence or makes an averment with reference to a
jurisdictional fact, it will not be presumed that there was other or different
evidence respecting the fact, or that the fact was otherwise than stated. If,
to give an illustration, it appears from the return of the officer that the
summons was served at a particular place or in a particular manner, it will
not be presumed that service was also made at another place or in a
different manner; or if it appears that service was made upon a person
other than the defendant, it will not be presumed, in the silence of the
record, that it was made upon the defendant also (Galpin vs. Page, 18
Wall., 350, 366; Settlemier vs. Sullivan, 97 U. S., 444, 449). While we
believe that these propositions are entirely correct as applied to the case
where the person making the return is the officer who is by law required to
make the return, we do not think that it is properly applicable where, as in
the present case, the affidavit was made by a person who, so far as the
provisions of law are concerned, was a mere intermeddler.
The last question of importance which we propose to consider is whether a
motion in the cause is admissible as a proceeding to obtain relief in such a
case as this. If the motion prevails the judgment of July 2, 1908, and all
subsequent proceedings will be set aside, and the litigation will be
renewed, proceeding again from the date mentioned as if the progress of
the action had not been interrupted. The proponent of the motion does not
ask the favor of being permitted to interpose a defense. His purpose is
merely to annul the effective judgment of the court, to the end that the
litigation may again resume its regular course.
There is only one section of the Code of Civil Procedure which expressly
recognizes the authority of a Court of First Instance to set aside a final
judgment and permit a renewal of the litigation in the same cause. This is
as follows:
SEC. 113. Upon such terms as may be just the court may relieve a
party or legal representative from the judgment, order, or other
proceeding taken against him through his mistake, inadvertence,
surprise, or excusable neglect; Provided, That application thereof
be made within a reasonable time, but in no case exceeding six
months after such judgment, order, or proceeding was taken.
An additional remedy by petition to the Supreme Court is supplied by
section 513 of the same Code. The first paragraph of this section, in so far
as pertinent to this discussion, provides as follows:
When a judgment is rendered by a Court of First Instance upon
default, and a party thereto is unjustly deprived of a hearing by
fraud, accident, mistake or excusable negligence, and the Court of
First Instance which rendered the judgment has finally adjourned
so that no adequate remedy exists in that court, the party so
deprived of a hearing may present his petition to the Supreme
Court within sixty days after he first learns of the rendition of such
judgment, and not thereafter, setting forth the facts and praying to
have judgment set aside. . . .
It is evident that the proceeding contemplated in this section is intended to
supplement the remedy provided by section 113; and we believe the
conclusion irresistible that there is no other means recognized by law
whereby a defeated party can, by a proceeding in the same cause, procure
a judgment to be set aside, with a view to the renewal of the litigation.
The Code of Civil Procedure purports to be a complete system of practice in
civil causes, and it contains provisions describing with much fullness the
various steps to be taken in the conduct of such proceedings. To this end it
defines with precision the method of beginning, conducting, and
concluding the civil action of whatever species; and by section 795 of the
same Code it is declared that the procedure in all civil action shall be in
accordance with the provisions of this Code. We are therefore of the
opinion that the remedies prescribed in sections 113 and 513 are exclusive
of all others, so far as relates to the opening and continuation of a litigation
which has been once concluded.
The motion in the present case does not conform to the requirements of
either of these provisions; and the consequence is that in our opinion the
action of the Court of First Instance in dismissing the motion was proper.
If the question were admittedly one relating merely to an irregularity of
procedure, we cannot suppose that this proceeding would have taken the
form of a motion in the cause, since it is clear that, if based on such an
error, the came to late for relief in the Court of First Instance. But as we
have already seen, the motion attacks the judgment of the court as void
for want of jurisdiction over the defendant. The idea underlying the motion
therefore is that inasmuch as the judgment is a nullity it can be attacked in
any way and at any time. If the judgment were in fact void upon its face,
that is, if it were shown to be a nullity by virtue of its own recitals, there
might possibly be something in this. Where a judgment or judicial order is
void in this sense it may be said to be a lawless thing, which can be treated
as an outlaw and slain at sight, or ignored wherever and whenever it
exhibits its head.
But the judgment in question is not void in any such sense. It is entirely
regular in form, and the alleged defect is one which is not apparent upon
its face. It follows that even if the judgment could be shown to be void for
want of jurisdiction, or for lack of due process of law, the party aggrieved
thereby is bound to resort to some appropriate proceeding to obtain relief.
Under accepted principles of law and practice, long recognized in American
courts, a proper remedy in such case, after the time for appeal or review
has passed, is for the aggrieved party to bring an action to enjoin the
judgment, if not already carried into effect; or if the property has already
been disposed of he may institute suit to recover it. In every situation of
this character an appropriate remedy is at hand; and if property has been
taken without due process, the law concedes due process to recover it. We
accordingly old that, assuming the judgment to have been void as alleged
by the proponent of this motion, the proper remedy was by an original
proceeding and not by motion in the cause. As we have already seen our
Code of Civil Procedure defines the conditions under which relief against a
judgment may be productive of conclusion for this court to recognize such
a proceeding as proper under conditions different from those defined by
law. Upon the point of procedure here involved, we refer to the case of
People vs. Harrison (84 Cal., 607) wherein it was held that a motion will not
lie to vacate a judgment after the lapse of the time limited by statute if the
judgment is not void on its face; and in all cases, after the lapse of the time
limited by statute if the judgment is not void on its face; and all cases,
after the lapse of such time, when an attempt is made to vacate the
judgment by a proceeding in court for that purpose an action regularly
brought is preferable, and should be required. It will be noted taken
verbatim from the California Code (sec. 473).
The conclusions stated in this opinion indicate that the judgment appealed
from is without error, and the same is accordingly affirmed, with costs. So
ordered.
SECOND DIVISION
[G.R. No. 158407. January 17, 2005]
FILOMENA DOMAGAS, petitioner, vs. VIVIAN LAYNO JENSEN, respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari, under Rule 45 of the Rules of
Court, of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No.
73995, which affirmed the Decision[2] of the Regional Trial Court (RTC) of
Dagupan City, Branch 44, in Civil Case No. 2000-0244-D, which declared
null and void the decision of the Municipal Trial Court (MTC) of Calasiao,
Pangasinan in Civil Case No. 879.[3]
The antecedent facts follow.
On February 19, 1999, petitioner Filomena Domagas filed a complaint for
forcible entry against respondent Vivian Jensen before the MTC of Calasiao,
Pangasinan. The petitioner alleged in her complaint that she was the
registered owner of a parcel of land covered by Original Certificate of Title
(OCT) No. P-30980, situated in Barangay Buenlag, Calasiao, Pangasinan,
and with an area of 827 square meters. On January 9, 1999 the
respondent, by means of force, strategy and stealth, gained entry into the
petitioners property by excavating a portion thereof and thereafter
constructing a fence thereon. As such, the petitioner was deprived of a 68-
square meter portion of her property along the boundary line. The
petitioner prayed that, after due proceedings, judgment be rendered in her
favor, thus:
3. And, after trial, judgment be rendered:
a) DECLARING the writ of Preliminary Mandatory Injunction
and Writ of Preliminary Injunction permanent;
b) ORDERING defendant, his representatives, agents and
persons acting under her, to vacate the portion of the
property of the plaintiff occupied by them and to desist
from entering, excavating and constructing in the said
property of the plaintiff described in paragraph 2 hereof
and/or from disturbing the peaceful ownership and
possession of the plaintiff over the said land, pending
the final resolution of the instant action;
c) ORDERING defendant to pay reasonable rental at FIVE
THOUSAND (P5,000.00) PESOS per month from January
9, 1999 up to the time she finally vacates and removes
all constructions made by her in the property of the
plaintiff and up to the time she finally restores the said
property in the condition before her illegal entry,
excavation and construction in the property of the
plaintiff;
d) ORDERING defendant to pay actual damages in the
amount of TWENTY THOUSAND (P20,000.00) PESOS;
moral damages in the amount of TWENTY THOUSAND
(P20,000.00) PESOS; attorneys fees of THIRTY
THOUSAND (P30,000.00) PESOS in retainers fee and
ONE THOUSAND FIVE HUNDRED (P1,500.00) PESOS per
court appearance fee; exemplary damages in the
amount of TWENTY THOUSAND (P20,000.00) PESOS,
and, costs.
Plaintiff further prays for other reliefs and remedies just and equitable in
the premises.[4]
The case was docketed as Civil Case No. 879. The summons and the
complaint were not served on the respondent because the latter was
apparently out of the country. This was relayed to the Sheriff by her (the
respondents) brother, Oscar Layno, who was then in the respondents
house at No. 572 Barangay Buenlag, Calasiao, Pangasinan. The Sheriff left
the summons and complaint with Oscar Layno, who received the same.[5]
Nonetheless, on May 17, 1999, the court rendered judgment ordering the
respondent and all persons occupying the property for and in the latters
behalf to vacate the disputed area and to pay monthly rentals therefor,
including actual damages, attorneys fees, and exemplary damages. The
fallo of the decision reads:
1) Ordering the defendant, her representatives, agents and
persons acting under her, to vacate the 68-square
meters which she encroached upon;
2) Ordering the defendant to pay a monthly rental of P1,000.00
to the plaintiff;
3) To pay plaintiff actual damages of P20,000.00; attorneys fees
of P15,000.00 and exemplary damages in the amount of
P20,000.00 plus the costs.
SO ORDERED.[6]
The respondent failed to appeal the decision. Consequently, a writ of
execution was issued on September 27, 1999.
On August 16, 2000, the respondent filed a complaint against the
petitioner before the RTC of Dagupan City for the annulment of the
decision of the MTC in Civil Case No. 879, on the ground that due to the
Sheriffs failure to serve the complaint and summons on her because she
was in Oslo, Norway, the MTC never acquired jurisdiction over her person.
The respondent alleged therein that the service of the complaint and
summons through substituted service on her brother, Oscar Layno, was
improper because of the following: (a) when the complaint in Civil Case No.
879 was filed, she was not a resident of Barangay Buenlag, Calasiao,
Pangasinan, but of Oslo, Norway, and although she owned the house where
Oscar Layno received the summons and the complaint, she had then
leased it to Eduardo Gonzales; (b) she was in Oslo, Norway, at the time the
summons and the complaint were served; (c) her brother, Oscar Layno,
was merely visiting her house in Barangay Buenlag and was not a resident
nor an occupant thereof when he received the complaint and summons;
and (d) Oscar Layno was never authorized to receive the summons and the
complaint for and in her behalf.[7]
The respondent further alleged that the MTC had no jurisdiction over the
subject matter of the complaint in Civil Case No. 879 because the
petitioner, the plaintiff therein, failed to show prior possession of the
property. She further claimed that the alleged forcible entry was simply
based on the result of the survey conducted by Geodetic Engineer
Leonardo de Vera showing that the property of the respondent encroached
on that of the petitioner.
The respondent filed a Manifestation dated August 31, 2000, and
appended thereto the following: (a) a copy[8] of her passport showing that
she left the country on February 17, 1999; (b) a copy[9] of the Contract of
Lease dated November 24, 1997, executed by her and Eduardo D.
Gonzales over her house for a period of three (3) years or until November
24, 2000; (c) her affidavit[10] stating, inter alia, that she owned the house
at Barangay Buenlag, Calasiao, Pangasinan, which she leased to Eduardo
Gonzales; that she was married to Jarl Jensen, a citizen of Norway, on
August 23, 1987 and had resided in Norway with her husband since 1993;
that she arrived in the Philippines on December 31, 1998, but left on
February 17, 1999; she returned to the Philippines on July 30, 2000 and
learned, only then, of the complaint against her and the decision of the
MTC in Civil Case No. 879; her brother Oscar Layno was not a resident of
the house at Barangay Buenlag; and that she never received the complaint
and summons in said case; (d) the affidavit[11] of Oscar Layno declaring
that sometime in April 1999, he was in the respondents house to collect
rentals from Eduardo Gonzales; that the Sheriff arrived and served him
with a copy of the summons and the complaint in Civil Case No. 879; and
that he never informed the respondent of his receipt of the said summons
and complaint; (e) an affidavit[12] of Eduardo Gonzales stating that he
leased the house of the respondent and resided thereat; the respondent
was not a resident of the said house although he (Gonzales) allowed the
respondent to occupy a room therein whenever she returned to the
Philippines as a balikbayan; and that Oscar Layno was not residing therein
but only collected the rentals.
In her answer to the complaint, the petitioner alleged that the respondent
was a resident of Barangay Buenlag, Calasiao, Pangasinan and was the
owner of the subject premises where Oscar Layno was when the Sheriff
served the summons and complaint; that the service of the complaint and
summons by substituted service on the respondent, the defendant in Civil
Case No. 879, was proper since her brother Oscar Layno, a resident and
registered voter of Barangay. Buenlag, Calasiao, Pangasinan, received the
complaint and summons for and in her behalf.
The petitioner appended the following to her answer: (a) a copy[13] of the
Deed of Absolute Sale executed by Jose Layno in her favor, dated August
26, 1992, showing that the respondent was a resident of Barangay
Buenlag, Calasiao, Pangasinan; (b) a Real Estate Mortgage[14] executed by
the respondent, dated February 9, 1999 showing that she was a resident of
Barangay Buenlag, Calasiao, Pangasinan; (c) the Joint Affidavit[15] of
Vicenta Peralta and Orlando Macalanda, both residents of Barangay
Buenlag, Calasiao, Pangasinan, declaring that the respondent and her
brother Oscar Layno were their neighbors; that the respondent and her
brother had been residents of Barangay Buenlag since their childhood; that
although the respondent left the country on several occasions, she
returned to the Philippines and resided in her house at No. 572 located in
the said barangay; and (d) the Voters Registration Record[16] of Oscar
Layno, approved on June 15, 1997.
After due proceedings, the trial court rendered a decision in favor of the
respondent. The dispositive portion reads:
WHEREFORE, judgment is rendered in favor of plaintiff Vivian Layno Jensen
and against defendant Filomena Domagas, as follows:
1. The Decision of the Municipal Trial Court of Calasiao, Pangasinan in
Civil Case No. 879, entitled Filomena Domagas versus Vivian
Layno Jensen is declared null and void, for lack of jurisdiction
over the person of the plaintiff and the subject matter.
2. Defendant Filomena Domagas is ordered to pay plaintiff, the
following:
a.) Actual damages, representing litigation expenses in
the amount of P50,000.00;
b.) Attorneys fees in the amount of P50,000.00;
c.) Moral Damages in the amount of P50,000.00;
d.) Exemplary Damages in the amount of P50,000.00;
and
e.) Costs of suit.
SO ORDERED.[17]
The trial court declared that there was no valid service of the complaint
and summons on the respondent, the defendant in Civil Case No. 879,
considering that she left the Philippines on February 17, 1999 for Oslo,
Norway, and her brother Oscar Layno was never authorized to receive the
said complaint and summons for and in her behalf.
The petitioner appealed the decision to the CA which, on May 6, 2003,
rendered judgment affirming the appealed decision with modifications. The
CA ruled that the complaint in Civil Case No. 879 was one for ejectment,
which is an action quasi in rem. The appellate court ruled that since the
defendant therein was temporarily out of the country, the summons and
the complaint should have been served via extraterritorial service under
Section 15 in relation to Section 16, Rule 14 of the Rules of Court, which
likewise requires prior leave of court. Considering that there was no prior
leave of court and none of the modes of service prescribed by the Rules of
Court was followed by the petitioner, the CA concluded that there was
really no valid service of summons and complaint upon the respondent, the
defendant in Civil Case No. 879.
Hence, the present petition.
The petitioner assails the decision of the CA, alleging that the appellate
court erred in holding that the respondents complaint for ejectment is an
action quasi in rem. The petitioner insists that the complaint for forcible
entry is an action in personam; therefore, substituted service of the
summons and complaint on the respondent, in accordance with Section 7,
Rule 14 of the Rules of Court, is valid. The petitioner, likewise, asserts that
Oscar Layno is a resident and a registered voter of Barangay Buenlag,
Calasiao, Pangasinan; hence, the service of the complaint and summons on
the respondent through him is valid.
The respondent, on the other hand, asserts that the action for forcible
entry filed against her was an action quasi in rem, and that the applicable
provision of the Rules of Court is Section 15 of Rule 14, which calls for
extraterritorial service of summons.
The sole issue is whether or not there was a valid service of the summons
and complaint in Civil Case No. 879 on the respondent herein who was the
defendant in the said case. The resolution of the matter is anchored on the
issue of whether or not the action of the petitioner in the MTC against the
respondent herein is an action in personam or quasi in rem.
The ruling of the CA that the petitioners complaint for forcible entry of the
petitioner against the respondent in Civil Case No. 879 is an action quasi in
rem, is erroneous. The action of the petitioner for forcible entry is a real
action and one in personam.
The settled rule is that the aim and object of an action determine its
character.[18] Whether a proceeding is in rem, or in personam, or quasi in
rem for that matter, is determined by its nature and purpose, and by these
only.[19] A proceeding in personam is a proceeding to enforce personal
rights and obligations brought against the person and is based on the
jurisdiction of the person, although it may involve his right to, or the
exercise of ownership of, specific property, or seek to compel him to
control or dispose of it in accordance with the mandate of the court.[20]
The purpose of a proceeding in personam is to impose, through the
judgment of a court, some responsibility or liability directly upon the
person of the defendant.[21] Of this character are suits to compel a
defendant to specifically perform some act or actions to fasten a pecuniary
liability on him.[22] An action in personam is said to be one which has for
its object a judgment against the person, as distinguished from a judgment
against the propriety to determine its state. It has been held that an action
in personam is a proceeding to enforce personal rights or obligations; such
action is brought against the person. As far as suits for injunctive relief are
concerned, it is well-settled that it is an injunctive act in personam.[23] In
Combs v. Combs,[24] the appellate court held that proceedings to enforce
personal rights and obligations and in which personal judgments are
rendered adjusting the rights and obligations between the affected parties
is in personam. Actions for recovery of real property are in personam.[25]
On the other hand, a proceeding quasi in rem is one brought against
persons seeking to subject the property of such persons to the discharge of
the claims assailed.[26] In an action quasi in rem, an individual is named
as defendant and the purpose of the proceeding is to subject his interests
therein to the obligation or loan burdening the property.[27] Actions quasi
in rem deal with the status, ownership or liability of a particular property
but which are intended to operate on these questions only as between the
particular parties to the proceedings and not to ascertain or cut off the
rights or interests of all possible claimants. The judgments therein are
binding only upon the parties who joined in the action.[28]
Section 1, Rule 70 of the Rules of Court provides:
Section 1. Who may institute proceedings, and when. - Subject to the
provisions of the next succeeding section, a person deprived of the
possession of any land or building in force, intimidation, threat, strategy, or
stealth, or a lessor, vendor, vendee, or other person against whom the
possession of any land or building is unlawfully withheld after the
expiration or termination of the right to hold possession by virtue of any
contract, express or implied, or the legal representatives or assigns of any
such lessor, vendor, vendee, or other person, may, at any time within one
(1) year after such unlawful deprivation or withholding of possession, bring
an action in the proper Municipal Trial Court against the person or persons
unlawfully withholding or depriving of possession, or any person or persons
claiming under them, for the restitution of such possession, together with
damages and costs.
Under Section 15, Rule 70 of the said Rule, the plaintiff may be granted a
writ of preliminary prohibition or mandatory injunction:
Sec. 15. Preliminary Injunction. The court may grant preliminary
injunction, in accordance with the provisions of Rule 58 hereof, to prevent
the defendant from committing further acts of dispossession against the
plaintiff.
A possessor deprived of his possession through forcible entry or unlawful
detainer may, within five (5) days from the filing of the complaint, present
a motion in the action for forcible entry or unlawful detainer for the
issuance of a writ of preliminary mandatory injunction to restore him in his
possession. The court shall decide the motion within thirty (30) days from
the filing thereof.
If, after due proceedings, the trial court finds for the plaintiff, it shall then
render judgment in his or her favor, thus:
Sec. 17. Judgment. If, after trial, the court finds that the allegations of the
complaint are true, it shall render judgment in favor of the plaintiff for the
restitution of the premises, the sum justly due as arrears of rent or as
reasonable compensation for the use and occupation of the premises,
attorneys fees and costs. If it finds that said allegations are not true, it
shall render judgment for the defendant to recover his costs. If a
counterclaim is established, the court shall render judgment for the sum
found in arrears from either party and award costs as justice requires.
From the aforementioned provisions of the Rules of Court and by its very
nature and purpose, an action for unlawful detainer or forcible entry is a
real action and in personam because the plaintiff seeks to enforce a
personal obligation or liability on the defendant under Article 539 of the
New Civil Code,[29] for the latter to vacate the property subject of the
action, restore physical possession thereof to the plaintiff, and pay actual
damages by way of reasonable compensation for his use or occupation of
the property.[30]
As gleaned from the averments of the petitioners complaint in the MTC,
she sought a writ of a preliminary injunction from the MTC and prayed that
the said writ be made permanent. Under its decision, the MTC ordered the
defendant therein (the respondent in this case), to vacate the property and
pay a monthly rental of P1,000.00 to the plaintiff therein (the petitioner in
this case).
On the issue of whether the respondent was validly served with the
summons and complaint by the Sheriff on April 5, 1999, the petitioner
asserts that since her action of forcible entry against the respondent in
Civil Case No. 879 was in personam, summons may be served on the
respondent, by substituted service, through her brother, Oscar Layno, in
accordance with Section 7, Rule 14 of the Rules of Court. The petitioner
avers that Oscar Layno, a person of suitable age and discretion, was
residing in the house of the respondent on April 5, 1999. She avers that the
fact that the house was leased to and occupied by Eduardo Gonzales was
of no moment. Moreover, the Sheriff is presumed to have performed his
duty of properly serving the summons on the respondent by substituted
service.
The contention of the petitioner has no merit.
In Asiavest Limited v. Court of Appeals,[31] the Court had the occasion to
state:
In an action in personam, jurisdiction over the person of the defendant is
necessary for the court to validly try and decide the case. Jurisdiction over
the person of a resident defendant who does not voluntarily appear in
court can be acquired by personal service of summons as provided under
Section 7, Rule 14 of the Rules of Court. If he cannot be personally served
with summons within a reasonable time, substituted service may be made
in accordance with Section 8 of said Rule. If he is temporarily out of the
country, any of the following modes of service may be resorted to: (a)
substituted service set forth in Section 8; (2) personal service outside the
country, with leave of court; (3) service by publication, also with leave of
court; or (4) any other manner the court may deem sufficient.[32]
Thus, any judgment of the court which has no jurisdiction over the person
of the defendant is null and void.[33]
In the present case, the records show that the respondent, before and after
his marriage to Jarl Jensen on August 23, 1987, remained a resident of
Barangay Buenlag, Calasiao, Pangasinan. This can be gleaned from the
Deed of Absolute Sale dated August 26, 1992 in which she declared that
she was a resident of said barangay. Moreover, in the Real Estate Mortgage
Contract dated February 9, 1999, ten days before the complaint in Civil
Case No. 879 was filed, the petitioner categorically stated that she was a
Filipino and a resident of Barangay Buenlag, Calasiao, Pangasinan.
Considering that the respondent was in Oslo, Norway, having left the
Philippines on February 17, 1999, the summons and complaint in Civil Case
No. 879 may only be validly served on her through substituted service
under Section 7, Rule 14 of the Rules of Court, which reads:
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
defendants residence with some person of suitable age and discretion then Calasiao, Pangasinan, April 6, 1999.
residing therein, or (b) by leaving the copies at defendants office or regular
place of business with some competent person in charge thereof. (Sg
d.)
Strict compliance with the mode of service is required in order that the
court may acquire jurisdiction over the person of the defendant.[34] The EDUARDO J.
statutory requirement of substituted service must be followed faithfully ABULENCIA
and strictly and any substituted service other than that authorized by the
statute is rendered ineffective.[35] As the Court held in Hamilton v. Levy:
Junior
[36]
Process
Server[40]
The pertinent facts and circumstances attendant to the service of
summons must be stated in the proof of service or Officers Return;
As gleaned from the said return, there is no showing that as of April 5,
otherwise, any substituted service made in lieu of personal service cannot
1999, the house where the Sheriff found Oscar Layno was the latters
be upheld. This is necessary because substituted service is in derogation of
residence or that of the respondent herein. Neither is there any showing
the usual method of service. It is a method extraordinary in character and
that the Sheriff tried to ascertain where the residence of the respondent
hence may be used only as prescribed and in the circumstances authorized
was on the said date. It turned out that the occupant of the house was a
by statute. Here, no such explanation was made. Failure to faithfully,
lessor, Eduardo Gonzales, and that Oscar Layno was in the premises only
strictly, and fully comply with the requirements of substituted service
to collect the rentals from him. The service of the summons on a person at
renders said service ineffective.[37]
a place where he was a visitor is not considered to have been left at the
residence or place or abode, where he has another place at which he
In Keister v. Narcereo,[38] the Court held that the term dwelling house or ordinarily stays and to which he intends to return.[41]
residence are generally held to refer to the time of service; hence, it is not
sufficient to leave the summons at the formers dwelling house, residence
The Voters Registration Record of Oscar Layno dated June 15, 1997
or place of abode, as the case may be. Dwelling house or residence refers
wherein he declared that he was a resident of No. 572 Barangay Buenlag,
to the place where the person named in the summons is living at the time
Calasiao, Pangasinan, as well as the Joint Affidavit of Vicenta Peralta and
when the service is made, even though he may be temporarily out of the
Orlando Macasalda cannot prevail over the Contract of Lease the
country at the time. It is, thus, the service of the summons intended for the
respondent had executed in favor of Eduardo Gonzales showing that the
defendant that must be left with the person of suitable age and discretion
latter had resided and occupied the house of the respondent as lessee
residing in the house of the defendant. Compliance with the rules
since November 24, 1997, and the affidavit of Eduardo Gonzales that Oscar
regarding the service of summons is as much important as the issue of due
Layno was not residing in the said house on April 5, 1999.
process as of jurisdiction.[39]

In sum, then, the respondent was not validly served with summons and the
The Return of Service filed by Sheriff Eduardo J. Abulencia on the service of
complaint in Civil Case No. 879 on April 5, 1999, by substituted service.
summons reads:
Hence, the MTC failed to acquire jurisdiction over the person of the
respondent; as such, the decision of the MTC in Civil Case No. 879 is null
Respectfully returned to the court of origin the herein summons and and void.
enclosures in the above-entitled case, the undersigned caused the service
on April 5, 1999.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of
merit. No costs.
Defendant Vivian Layno Jensen is out of the country as per information
from her brother Oscar Layno, however, copy of summons and enclosures
SO ORDERED.
was received by her brother Oscar Layno on April 5, 1999 as evidenced by
his signature appearing in the original summons.