G.R. No. 165273. March 10, 2010.

LEAH PALMA, petitioner, vs. HON. DANILO P. GALVEZ, in his capacity as PRESIDING JUDGE of the
REGIONAL TRIAL COURT OF ILOILO CITY, BRANCH 24; and PSYCHE ELENA AGUDO, respondents.

Remedial Law; Certiorari; A petition for certiorari is proper when any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction and there in no appeal, or any plain, speedy and
adequate remedy at law.—Private respondent’s claim that the petition for certiorari under Rule 65 is a
wrong remedy thus the petition should be dismissed, is not persuasive. A petition for certiorari is proper
when any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in
excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction and
there is no appeal, or any plain, speedy, and adequate remedy at law. There is “grave abuse of
discretion” when public respondent acts in a capricious or whimsical manner in the exercise of its
judgment as to be equivalent to lack of jurisdiction.

Same; Same; While Section 1, Rule 65 requires that the petition for certiorari be verified, this is not an
absolute necessity where the material facts alleged are a matter of record and the questions raised are
mainly of law.—Anent private respondent’s allegation that the petition was not properly verified, we find
the same to be devoid of merit. The purpose of requiring a verification is to secure an assurance that the
allegations of the petition have been made in good faith, or are true and correct, not merely speculative.
In this instance, petitioner attached a verification to her petition although dated earlier than the filing of
her petition. Petitioner explains that since a draft of the petition and the verification were earlier sent to
her in New York for her signature, the verification was earlier dated than the petition for certiorari filed
with us. We accept such explanation. While Section 1, Rule 65 requires that the petition for certiorari be
verified, this is not an absolute necessity where the material facts alleged are a matter of record and the
questions raised are mainly of law. In this case, the issue raised is purely of law.

Same; Summons; Jurisdiction; Methods of service of summons under Section 16 of Rule 14 is not
mandatory; Modes of service of a resident defendants in temporarily out of the Philippines.—In
Montefalcon v. Vasquez, 554 SCRA 513 (2008) we said that because Section 16 of Rule 14 uses the words
“may” and “also,” it is not mandatory. Other methods of service of summons allowed under the Rules
may also be availed of by the serving officer on a defendant-resident who is temporarily out of the
Philippines. Thus, if a resident defendant is temporarily out of the country, any of the following modes of
service may be resorted to: (1) substituted service set forth in section 7 (formerly Section 8), Rule 14; (2)
personal service outside the country, with leave of court; (3) service by publication, also with leave of
court; or (4) in any other manner the court may deem sufficient.

Same; Same; Same; A dwelling house or residence refers to the place where the person named in the
summons is living at the time when the service is made, even though he may be temporarily out of the
country at the time.—We have held that a dwelling, house or residence refers to the place where the
person named in the summons is living at the time when the service is made, even though he may be
temporarily out of the country at the time. It is, thus, the service of the summons intended for the
defendant that must be left with the person of suitable age and discretion residing in the house of the
defendant. Compliance with the rules regarding the service of summons is as important as the issue of
due process as that of jurisdiction.
Same; Same; Same; The filing of motions seeking affirmative relief such as to admit answer, for
additional time to file answer, for reconsideration of a default judgement and to lift order of default with
motion for reconsideration and considered voluntary submission to the jurisdiction of the court.—We
agree with petitioner that the RTC had indeed acquired jurisdiction over the person of private
respondent when the latter’s counsel entered his appearance on private respondent’s behalf, without
qualification and without questioning the propriety of the service of summons, and even filed two
Motions for Extension of Time to File Answer. In effect, private respondent, through counsel, had already
invoked the RTC’s jurisdiction over her person by praying that the motions for extension of time to file
answer be granted. We have held that the filing of motions seeking affirmative relief, such as, to admit
answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of
default with motion for reconsideration, are considered voluntary submission to the jurisdiction of the
court. When private respondent earlier invoked the jurisdiction of the RTC to secure affirmative relief in
her motions for additional time to file answer, she voluntarily submitted to the jurisdiction of the RTC
and is thereby estopped from asserting otherwise.

PERALTA, J.:

Assailed in this petition for certiorari under Rule 65 of the Rules of Court are the
Orders dated May 7, 2004[1] and July 21, 2004[2] of the Regional Trial Court (RTC)
of IloiloCity, Branch 24, granting the motion to dismiss filed by private respondent
Psyche Elena Agudo and denying reconsideration thereof, respectively.

Petitioner Leah Palma filed with the RTC an action for damages against the
Philippine Heart Center (PHC), Dr. Danilo Giron and Dr. Bernadette O. Cruz,
alleging that the defendants committed professional fault, negligence and omission
for having removed her right ovary against her will, and losing the same and the
tissues extracted from her during the surgery; and that although the specimens were
subsequently found, petitioner was doubtful and uncertain that the same was hers
as the label therein pertained that of somebody else. Defendants filed their
respective Answers. Petitioner subsequently filed a Motion for Leave to Admit
Amended Complaint, praying for the inclusion of additional defendants who were
all nurses at the PHC, namely, Karla Reyes, Myra Mangaser and herein private
respondent Agudo. Thus, summons were subsequently issued to them.
On February 17, 2004, the RTC's process server submitted his return of summons
stating that the alias summons, together with a copy of the amended complaint and
its annexes, were served upon private respondent thru her husband Alfredo Agudo,
who received and signed the same as private respondent was out of the country.[3]
On March 1, 2004, counsel of private respondent filed a Notice of Appearance and
a Motion for Extension of Time to File Answer[4] stating that he was just engaged
by private respondent's husband as she was out of the country and the Answer was
already due.

On March 15, 2004, private respondent's counsel filed a Motion for Another
Extension of Time to File Answer, [5] and stating that while the draft answer was
already finished, the same would be sent to private respondent for her
clarification/verification before the Philippine Consulate in Ireland; thus, the
counsel prayed for another 20 days to file the Answer.
On March 30, 2004, private respondent filed a Motion to Dismiss [6] on the ground
that the RTC had not acquired jurisdiction over her as she was not properly served
with summons, since she was temporarily out of the country; that service of
summons on her should conform to Section 16, Rule 14 of the Rules of
Court. Petitioner filed her Opposition[7] to the motion to dismiss, arguing that a
substituted service of summons on private respondent's husband was valid and
binding on her; that service of summons under Section 16, Rule 14 was not
exclusive and may be effected by other modes of service, i.e., by personal or
substituted service. Private respondent filed a Comment[8] on petitioner's
Opposition, and petitioner filed a Reply[9] thereto.
On May 7, 2004, the RTC issued its assailed Order granting private respondent's
motion to dismiss. It found that while the summons was served at private
respondent's house and received by respondent's husband, such service did not
qualify as a valid service of summons on her as she was out of the country at the
time the summons was served, thus, she was not personally served a summons; and
even granting that she knew that a complaint was filed against her, nevertheless,
the court did not acquire jurisdiction over her person as she was not validly served
with summons; that substituted service could not be resorted to since it was
established that private respondent was out of the country, thus, Section 16, Rule
14 provides for the service of summons on her by publication.

Petitioner filed a motion for reconsideration, which the RTC denied in its Order
dated July 21, 2004.
Petitioner is now before us alleging that the public respondent committed a grave
abuse of discretion amounting to lack or excess of jurisdiction when he ruled that:
 I. Substituted service of summons upon private respondent, a
defendant residing in the Philippines but temporarily outside the country
is invalid;
II. Section 16, Rule 14, of the 1997 Rules of Civil Procedure
limits the mode of service of summons upon a defendant residing in the
Philippines, but temporarily outside the country, exclusively to
extraterritorial service of summons under section 15 of the same rule;

III. In not ruling that by filing two (2) motions for extension of
time to file Answer, private respondent had voluntarily submitted herself
to the jurisdiction of respondent court, pursuant to Section 20, Rule 14 of
the 1997 Rules of Civil Procedure, hence, equivalent to having been
served with summons;

IV. The cases cited in his challenged Order of May 7, 2004

constitute stare decisis despite his own admission that the factual
landscape in those decided cases are entirely different from those in this
case.[10]

Petitioner claims that the RTC committed a grave abuse of discretion in ruling that
Section 16, Rule 14, limits the service of summons upon the defendant-resident
who is temporarily out of the country exclusively by means of extraterritorial
service, i.e., by personal service or by publication, pursuant to Section 15 of the
same Rule. Petitioner further argues that in filing two motions for extension of time
to file answer, private respondent voluntarily submitted to the jurisdiction of the
court.
In her Comment, private respondent claims that petitioner's certiorari under Rule
65 is not the proper remedy but a petition for review under Rule 45, since the RTC
ruling cannot be considered as having been issued with grave abuse of discretion;
that the petition was not properly verified because while the verification was dated
September 15, 2004, the petition was dated September 30, 2004. She insists that
since she was out of the country at the time the service of summons was made,
such service should be governed by Section 16, in relation to Section 15, Rule 14
of the Rules of Court; that there was no voluntary appearance on her part when her
counsel filed two motions for extension of time to file answer, since she filed her
motion to dismiss on the ground of lack of jurisdiction within the period provided
under Section 1, Rule 16 of the Rules of Court.
In her Reply, petitioner claims that the draft of the petition and the verification and
certification against forum shopping were sent to her for her signature earlier than
the date of the finalized petition, since the petition could not be filed without her
signed verification. Petitioner avers that when private respondent filed her two
motions for extension of time to file answer, no special appearance was made to
challenge the validity of the service of summons on her.
The parties subsequently filed their respective memoranda as required.
We shall first resolve the procedural issues raised by private respondent.
Private respondent's claim that the petition for certiorari under Rule 65 is a wrong
remedy thus the petition should be dismissed, is not persuasive. A petition
for certiorari is proper when any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction and there is no
appeal, or any plain, speedy, and adequate remedy at law. [11] There is grave abuse
of discretion when public respondent acts in a capricious or whimsical manner in
the exercise of its judgment as to be equivalent to lack of jurisdiction.

Section 1, Rule 41 of the 1997 Rules of Civil Procedure states that an appeal
may be taken only from a final order that completely disposes of the case; that
no appeal may be taken from (a) an order denying a motion for new trial or
reconsideration; (b) an order denying a petition for relief or any similar motion
seeking relief from judgment; (c) an interlocutory order; (d) an order disallowing
or dismissing an appeal; (e) an order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of fraud, mistake or duress, or
any other ground vitiating consent; (f) an order of execution; (g) a judgment or
final order for or against one or more of several parties or in separate claims,
counterclaims, cross-claims and third-party complaints, while the main case is
pending, unless the court allows an appeal therefrom; or (h) an order
dismissing an action without prejudice. In all the above instances where the
judgment or final order is not appealable, the aggrieved party may file an
appropriate special civil action for certiorari under Rule 65.
In this case, the RTC Order granting the motion to dismiss filed by private
respondent is a final order because it terminates the proceedings against her, but
it falls within exception (g) of the Rule since the case involves several defendants,
and the complaint for damages against these defendants is still pending. [12] Since
there is no appeal, or any plain, speedy, and adequate remedy in law, the remedy of
a special civil action for certiorari is proper as there is a need to promptly relieve
the aggrieved party from the injurious effects of the acts of an inferior court or
tribunal.[13]
Anent private respondent's allegation that the petition was not properly
verified, we find the same to be devoid of merit. The purpose of requiring a
verification is to secure an assurance that the allegations of the petition have been
made in good faith, or are true and correct, not merely speculative. [14] In this
instance, petitioner attached a verification to her petition although dated earlier
than the filing of her petition. Petitioner explains that since a draft of the petition
and the verification were earlier sent to her in New York for her signature, the
verification was earlier dated than the petition for certiorari filed with us. We
accept such explanation. While Section 1, Rule 65 requires that the petition
for certiorari be verified, this is not an absolute necessity where the material facts
alleged are a matter of record and the questions raised are mainly of law.[15] In this
case, the issue raised is purely of law.

Now on the merits, the issue for resolution is whether there was a valid service
of summons on private respondent.

In civil cases, the trial court acquires jurisdiction over the person of the
defendant either by the service of summons or by the latters voluntary
appearance and submission to the authority of the former.[16] Private
respondent was a Filipino resident who was temporarily out of
the Philippines at the time of the service of summons; thus, service of
summons on her is governed by Section 16, Rule 14 of the Rules of Court,
which provides:

Sec. 16. Residents temporarily out of the Philippines. When an action is

commenced against a defendant who ordinarily resides within
the Philippines, but who is temporarily out of it, service may, by leave of
court, be also effected out of the Philippines, as under the preceding
section. (Emphasis supplied)

The preceding section referred to in the above provision is Section 15, which
speaks of extraterritorial service, thus:
 SEC. 15. Extraterritorial service. ─ When the defendant does not
reside and is not found in the Philippines, and the action affects the
personal status of the plaintiff or relates to, or the subject of which is,
property within the Philippines, in which the defendant has or claims a
lien or interest, actual or contingent, or in which the relief demanded
consists, wholly or in part, in excluding the defendant from any interest
therein, or the property of the defendant has been attached within the
Philippines, service may, by leave of court, be effected out of the
Philippines by personal service as under section 6; or by publication in a
newspaper of general circulation in such places and for such time as the
court may order, in which case a copy of the summons and order of the
court shall be sent by registered mail to the last known address of the
defendant, or in any other manner the court may deem sufficient. Any
order granting such leave shall specify a reasonable time, which shall not
be less than sixty (60) days after notice, within which the defendant must
answer.

The RTC found that since private respondent was abroad at the time of the
service of summons, she was a resident who was temporarily out of the country;
thus, service of summons may be made only by publication.

We do not agree.
In Montefalcon v. Vasquez,[17] we said that because Section 16 of Rule 14
uses the words may and also, it is not mandatory. Other methods of service of
summons allowed under the Rules may also be availed of by the serving officer on
a defendant-resident who is temporarily out of the Philippines. Thus, if a resident
defendant is temporarily out of the country, any of the following modes of service
may be resorted to: (1) substituted service set forth in section 7 ( formerly Section
8), Rule 14; (2) personal service outside the country, with leave of court; (3)
service by publication, also with leave of court; or (4) in any other manner the
court may deem sufficient.[18]

In Montalban v. Maximo,[19] we held that substituted service of summons

under the present Section 7, Rule 14 of the Rules of Court in a suit in
personam against residents of the Philippines temporarily absent therefrom is the
normal method of service of summons that will confer jurisdiction on the court
over such defendant. In the same case, we expounded on the rationale in providing
for substituted service as the normal mode of service for residents temporarily out
of the Philippines.

x x x A man temporarily absent from this country leaves a definite place

of residence, a dwelling where he lives, a local base, so to speak, to
which any inquiry about him may be directed and where he is bound to
return. Where one temporarily absents himself, he leaves his affairs in the
hands of one who may be reasonably expected to act in his place and
stead; to do all that is necessary to protect his interests; and to
communicate with him from time to time any incident of importance that
may affect him or his business or his affairs. It is usual for such a man to
leave at his home or with his business associates information as to where
he may be contacted in the event a question that affects him crops up. If
he does not do what is expected of him, and a case comes up in court
against him, he cannot just raise his voice and say that he is not subject to
the processes of our courts. He cannot stop a suit from being filed
against him upon a claim that he cannot be summoned at his dwelling
house or residence or his office or regular place of business.

Not that he cannot be reached within a reasonable time to enable

him to contest a suit against him. There are now advanced facilities of
communication. Long distance telephone calls and cablegrams make it
easy for one he left behind to communicate with him. [20]

Considering that private respondent was temporarily out of the country, the
summons and complaint may 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 residing therein, or (b) by leaving the copies at
defendants office or regular place of business with some competent
person in charge thereof.
We have held that a dwelling, house or residence refers to the place where the
person named in the summons is living at the time when the service is made, even
though he may be temporarily out of the country at the time. [21] It is, thus, the
service of the summons intended for the defendant that must be left with the person
of suitable age and discretion residing in the house of the defendant. Compliance
with the rules regarding the service of summons is as important as the issue of due
process as that of jurisdiction.[22]

Section 7 also designates the persons with whom copies of the process may be left.
The rule presupposes that such a relation of confidence exists between the person
with whom the copy is left and the defendant and, therefore, assumes that such
person will deliver the process to defendant or in some way give him notice
thereof.[23]
In this case, the Sheriff's Return stated that private respondent was out of the
country; thus, the service of summons was made at her residence with her husband,
Alfredo P. Agudo, acknowledging receipt thereof. Alfredo was presumably of
suitable age and discretion, who was residing in that place and, therefore, was
competent to receive the summons on private respondent's behalf.
Notably, private respondent makes no issue as to the fact that the place where the
summons was served was her residence, though she was temporarily out of the
country at that time, and that Alfredo is her husband. In fact, in the notice of
appearance and motion for extension of time to file answer submitted by private
respondent's counsel, he confirmed the Sheriff's Return by stating that private
respondent was out of the country and that his service was engaged by respondent's
husband. In his motion for another extension of time to file answer, private
respondent's counsel stated that a draft of the answer had already been prepared,
which would be submitted to private respondent, who was in Ireland for her
clarification and/or verification before the Philippine Consulate there. These
statements establish the fact that private respondent had knowledge of the case
filed against her, and that her husband had told her about the case as Alfredo even
engaged the services of her counsel.
In addition, we agree with petitioner that the RTC had indeed acquired jurisdiction
over the person of private respondent when the latter's counsel entered his
appearance on private respondent's behalf, without qualification and without
questioning the propriety of the service of summons, and even filed two Motions
for Extension of Time to File Answer. In effect, private respondent, through
counsel, had already invoked the RTCs jurisdiction over her person by praying that
the motions for extension of time to file answer be granted. We have held that the
filing of motions seeking affirmative relief, such as, to admit answer, for additional
time to file answer, for reconsideration of a default judgment, and to lift order of
default with motion for reconsideration, are considered voluntary submission to
the jurisdiction of the court.[24] When private respondent earlier invoked the
jurisdiction of the RTC to secure affirmative relief in her motions for additional
time to file answer, she voluntarily submitted to the jurisdiction of the RTC and is
thereby estopped from asserting otherwise.[25]
Considering the foregoing, we find that the RTC committed a grave abuse of
discretion amounting to excess of jurisdiction in issuing its assailed Orders.

WHEREFORE, the petition is GRANTED. The Orders dated May 7,

2004 and July 21, 2004 of the Regional Trial Court of Iloilo City, Branch 24, are
hereby SET ASIDE.Private respondent is DIRECTED to file her Answer within
the reglementary period from receipt of this decision.

SO ORDERED.