under Rule 14 of the Rules of Court of the Philippines

3, SECOND DIVISION
apply according to the nature of the action.

Same; Same; In substituted service, it is mandated that

[G.R. No. 127692. March 10, 2004] the fact of impossibility of personal service should be
explained in the proof of service.—If efforts to find
defendant personally makes prompt service impossible,
substituted service may be effected by leaving copies of
FORTUNATO GOMEZ and AURORA the summons at the defendant’s dwelling house or
GOMEZ, petitioners, vs. COURT OF APPEALS, residence with some person of suitable age and
ADOLFO TROCINO and MARIANO discretion then residing therein, or by leaving the copies
TROCINO, respondents. at the defendant’s office or regular place of business with
some competent person in charge thereof. In substituted
DECISION service, it is mandated that the fact of impossibility of
personal service should be explained in the proof of
Remedial Law; Summons; Service of summons is the service.
means by which the court acquires jurisdiction over the
person of the defendant; Any judgment without such Same; Same; In actions in rem or quasi in rem,
service in the absence of a valid waiver is null and jurisdiction over the person of the defendant is not a
void.—Summons is a writ by which the defendant is prerequisite to confer jurisdiction on the court provided
notified of the action brought against him. Service of such that the court acquires jurisdiction over the res, although
writ is the means by which the court acquires jurisdiction summons must be served upon the defendant in order to
over his person. Any judgment without such service in satisfy the due process requirements.—Meanwhile, in
the absence of a valid waiver is null and void. actions in rem or quasi in rem, jurisdiction over the
person of the defendant is not a prerequisite to confer
Same; Same; The rules on service of summons under jurisdiction on the court provided that the court acquires
Rule 14 of the Rules of Court of the Philippines apply jurisdiction over the res, although summons must be
according to the nature of the action.—To resolve served upon the defendant in order to satisfy the due
whether there was valid service of summons on process requirements. Thus, where the defendant is a
respondents, the nature of the action filed against them non-resident who is not found in the Philippines, and (1)
must first be determined. As the Court explained in the action affects the personal status of the plaintiff; (2)
Asiavest Limited vs. Court of Appeals, it will be helpful to the action relates to, or the subject matter of which is
determine first whether the action is in personam, in rem, property in the Philippines in which the defendant has or
or quasi in rem because the rules on service of summons
1
claims a lien or interest; (3) the action seeks the of Jesus J. Trocino, Sr., which include herein
exclusion of the defendant from any interest in the respondents and their mother Caridad Trocino.[2]
property located in the Philippines; or (4) the property of
Filed on December 16, 1991, the complaint
the defendant has been attached in the Philippines,
alleges: Some time in 1975, the spouses Jesus and
summons may be served extraterritorially by (a) personal
Caridad Trocino mortgaged two parcels of land covered
service out of the country, with leave of court; (b)
by TCT Nos. 10616 and 31856 to Dr. Clarence
publication, also with leave of court; or (c) any other
Yujuico. The mortgage was subsequently foreclosed and
manner thecourt may deem sufficient.
the properties sold at public auction on July 11, 1988,
and before the expiry of the redemption period, the
Same; Same; Complaint for specific performance and/or
spouses Trocino sold the property to petitioners
rescission is not an action in rem.—Contrary to
on December 12, 1989, who in turn, redeemed the same
petitioners’ belief, the complaint they filed for specific
from Dr. Yujuico. The spouses Trocino, however, refused
performance and/or rescission is not an action in rem.
to convey ownership of the properties to petitioners,
While it is a real action because it affects title to or
hence, the complaint.
possession of the two parcels of land covered by TCT
Nos. 10616 and 31856, it does not automatically follow On January 10, 1992, the trial courts Process Server
that the action is already one in rem. served summons on respondents, in the manner
described in his Return of Service, to wit:

Respectfully returned to the Branch Clerk of Court,

AUSTRIA-MARTINEZ, J.:
Regional Trial Court of Cebu, Branch 10, the herein
attached original summons issued in the above-entitled
Before the Court is a petition for review case with the information that on January 8, 1992
on certiorari under Rule 45 of the Rules of Court assailing summons and copies of the complaint were served to the
the decision[1] of the Court of Appeals dated September defendants Jacob, Jesus Jr., Adolfo, Mariano,
30, 1996, in CA-G.R. SP No. 40067, nullifying the Consolacion, Alice, Racheal thru defendant Caridad
decision and orders of Trocino at their given address at Maria Cristina Extension
the Regional Trial Court of Cebu City (Branch 10) in Civil (besides Sacred Heart School for Girls), Cebu City,
Case No. CEB-11103, for want of jurisdiction. evidence by her signature found at the lower portion of
Civil Case No. CEB-11103 is an action for specific the original summons.[3]
performance and/or rescission filed by herein petitioners,
spouses Fortunato and Aurora Gomez, against the heirs WHEREFORE I, respectfully return the original summons
duly served to the court of origin.

2
Cebu City, Philippines, January 10, 1992. damages; P40,000.00 by way of attorneys fees;
and P10,000.00 as litigation expenses.
(signed)
DELFIN D. BARNIDO SO ORDERED.[5]
RTC Process Server
Due to the defendants failure to deliver the owners
On January 27, 1992, the defendants, through their duplicate of TCT Nos. 10616 and 31856, the RTC issued
counsel Atty. Expedito P. Bugarin, filed their an order on August 29, 1995 declaring said titles null and
Answer. Defendant Caridad A. Trocino, respondents void, and ordering the Register of Deeds of Cebu City to
mother, verified said pleading.[4] issue new titles in the name of herein petitioners.[6]
After trial on the merits, the RTC rendered its Thereafter, or on March 13, 1996, respondents
decision on March 1993, with the following disposition: Adolfo and Mariano Trocino filed with the Court of
Appeals, a petition for the annulment of the judgment
WHEREFORE, premises considered, judgment is hereby rendered by the RTC-Cebu (Branch 10) in Civil Case No.
rendered in favor of the plaintiffs and against the CEB-11103. Private respondents alleged that the trial
defendants. courts decision is null and void on the ground that it did
not acquire jurisdiction over their persons as they were
The latter are hereby ordered to jointly and severally not validly served with a copy of the summons and the
execute a Deed of Sale in favor of the plaintiffs and to complaint. According to them, at the time summons was
deliver the owners duplicate copies of TCT Nos. 10616 served on them, Adolfo Trocino was already
and 31856, covering the properties sold, to the plaintiffs in Ohio, U.S.A., and has been residing there for 25 years,
within ten (10) days from the finality of the judgment, after while Mariano Trocino was in Talibon, Bohol, and has
which plaintiffs shall pay in turn to the defendants the been residing there since 1986. They also refuted the
balance of P2,000,000.00. Otherwise, the sale is receipt of the summons by Caridad A. Trocino, and the
rescinded and revoked and the defendants are directed representation made by Atty. Bugarin in their
to return to the plaintiffs the amount of P500,000.00, with behalf. Respondents also contended that they have a
interest of 12% per annum computed from December 6, meritorious defense.[7] Petitioners filed their
1989, until the full amount is paid. Comment/Answer to the petition.[8]
On September 30, 1996, the Court of Appeals issued
In addition thereto, defendants are to pay jointly and
the assailed Decision granting the petition and annulling
severally to the plaintiffs, the amount of P50,000.00 as
the decision of the RTC-Cebu (Branch 10). The decretal
moral damages; P20,000.00 as exemplary
portion of the decision reads:

3
WHEREFORE, the decision of NOT SHOWN ANY VALID DEFENSE AS
the Regional Trial Court of Cebu City, Branch 10, in Civil GROUND FOR REVERSAL OF JUDGMENT
Case No. CEB-11103 as well as all Orders issued to OF THE RTC.
implement the same are hereby ANNULLED AND SET
IV. THE COURT OF APPEALS ERRED IN
ASIDE. The Register of Deeds of Cebu City is hereby
RULING THAT ITS JUDGMENT IS
ENJOINED from cancelling Transfer Certificates of Title
APPLICABLE IN FAVOR OF CARIDAD
Nos. 10616 and 31856. No pronouncement as to costs.
TROCINO.[10]
SO ORDERED.[9] Summons is a writ by which the defendant is notified
of the action brought against him. Service of such writ is
Their motion for reconsideration having been denied the means by which the court acquires jurisdiction over
by the Court of Appeals, petitioners filed the present his person.[11] Any judgment without such service in the
petition, setting forth the following assignment of errors: absence of a valid waiver is null and void.[12]
I. THE COURT OF APPEALS ERRED IN The resolution of the present petition hinges on the
FINDING LACK OF PRIOR KNOWLEDGE ON issue of whether or not summons was effectively served
THE PART OF RESPONDENTS TROCINO, on respondents. If in the affirmative, the trial court had
REGARDING THE PROCEEDINGS BEFORE validly acquired jurisdiction over their persons and
THE RTC OF CEBU CITY AND IN NOT therefore its judgment is valid.
DISMISSING THE PETITION FOR
To resolve whether there was valid service of
VIOLATION OF SUPREME COURT
summons on respondents, the nature of the action filed
CIRCULAR 04-94.
against them must first be determined. As the Court
II. THE COURT OF APPEALS ERRED IN explained in Asiavest Limited vs. Court of Appeals, it will
DECLARING THE NEED FOR PERSONAL be helpful to determine first whether the action is in
AND/OR EXTRATERRITORIAL SERVICE OF personam, in rem, or quasi in rem because the rules on
SUMMONS, DESPITE THE NATURE OF THE service of summons under Rule 14 of the Rules of Court
CAUSE OF ACTION BEING ONE IN REM. of the Philippines apply according to the nature of the
action.[13]
III. THE COURT OF APPEALS ERRED IN
ANNULLING THE JUDGMENT, CAUSING In actions in personam, summons on the defendant
FURTHER USELESS LITIGATION AND must be served by handing a copy thereof to the
UNNECESSARY EXPENSE ON defendant in person, or, if he refuses to receive it, by
PETITIONERS AND RESPONDENTS, tendering it to him. This is specifically provided in Section
ESPECIALLY SINCE RESPONDENTS HAVE 7, Rule 14 of the Rules of Court,[14] which states:

4
SEC. 7. Personal service of summons.-- The summons prerequisite to confer jurisdiction on the court provided
shall be served by handing a copy thereof to the that the court acquires jurisdiction over the res, although
defendant in person or, if he refuses to receive it, by summons must be served upon the defendant in order to
tendering it to him. satisfy the due process requirements.[19] Thus, where the
defendant is a non-resident who is not found in the
If efforts to find defendant personally makes prompt Philippines, and (1) the action affects the personal status
service impossible, substituted service may be effected of the plaintiff; (2) the action relates to, or the subject
by leaving copies of the summons at the defendant's matter of which is property in the Philippines in which the
dwelling house or residence with some person of suitable defendant has or claims a lien or interest; (3) the action
age and discretion then residing therein, or by leaving the seeks the exclusion of the defendant from any interest in
copies at the defendant's office or regular place of the property located in the Philippines; or (4) the property
business with some competent person in charge of the defendant has been attached in the Philippines,
thereof.[15] In substituted service, it is mandated that the summons may be served extraterritorially by (a) personal
fact of impossibility of personal service should be service out of the country, with leave of court; (b)
explained in the proof of service.[16] publication, also with leave of court; or (c) any other
manner the court may deem sufficient.[20]
When the defendant in an action in personam is a
non-resident who does not voluntarily submit himself to In the present case, petitioners cause of action in
the authority of the court, personal service of summons Civil Case No. CEB-11103 is anchored on the claim that
within the State is essential to the acquisition of the spouses Jesus and Caridad Trocino reneged on their
jurisdiction over his person. This cannot be done if the obligation to convey ownership of the two parcels of land
defendant is not physically present in the country, and subject of their sale. Thus, petitioners pray in their
thus, the court cannot acquire jurisdiction over his person complaint that the spouses Trocino be ordered to
and therefore cannot validly try and decide the case execute the appropriate deed of sale and that the titles
against him.[17] An exception was accorded in Gemperle be delivered to them (petitioners); or in the alternative,
vs. Schenker wherein service of summons through the that the sale be revoked and rescinded; and spouses
non-residents wife, who was a resident of the Philippines, Trocino ordered to return to petitioners their down
was held valid, as the latter was his representative and payment in the amount of P500,000.00 plus
attorney-in-fact in a prior civil case filed by the non- interests. The action instituted by petitioners affect the
resident, and the second case was merely an offshoot of parties alone, not the whole world. Hence, it is an action
the first case.[18] in personam, i.e., any judgment therein is binding only
upon the parties properly impleaded.[21]
Meanwhile, in actions in rem or quasi in rem,
jurisdiction over the person of the defendant is not a

5
 Contrary to petitioners belief, the complaint they filed their personal liability. As such, personal service of
for specific performance and/or rescission is not an summons upon the defendants is essential in order
action in rem. While it is a real action because it affects for the court to acquire of jurisdiction over their
title to or possession of the two parcels of land covered persons.[23]
by TCT Nos. 10616 and 31856, it does not automatically
A distinction, however, must be made with regard to
follow that the action is already one in rem. In Hernandez
service of summons on respondents Adolfo Trocino and
vs. Rural Bank of Lucena, Inc., the Court made the
Mariano Trocino. Adolfo Trocino, as records show, is
following distinction:
already a resident of Ohio, U.S.A. for 25 years. Being a
non-resident, the court cannot acquire jurisdiction over
In a personal action, the plaintiff seeks the recovery of
his person and validly try and decide the case against
personal property, the enforcement of a contract or the
him.
recovery of damages. In a real action, the plaintiff seeks
the recovery of real property, or, as indicated in section On the other hand, Mariano Trocino has been in
2(a) of Rule 4, a real action is an action affecting title to Talibon, Bohol since 1986. To validly acquire jurisdiction
real property or for the recovery of possession, or for over his person, summons must be served on him
partition or condemnation of, or foreclosure of a personally, or through substituted service, upon showing
mortgage on, real property. of impossibility of personal service. Such impossibility,
and why efforts exerted towards personal service failed,
An action in personam is an action against a person on should be explained in the proof of service. The pertinent
the basis of his personal liability, while an action in rem is facts and circumstances attendant to the service of
an action against the thing itself, instead of against the summons must be stated in the proof of service or
person. Hence, a real action may at the same time be an Officers Return. Failure to do so would invalidate all
action in personam and not necessarily an action in subsequent proceedings on jurisdictional grounds.[24]
rem.[22]
In the present case, the process server served the
summons and copies of the complaint on respondents
The objective sought in petitioners complaint was to
Jacob, Jesus, Jr., Adolfo, Mariano, Consolacion, Alice
establish a claim against respondents for their alleged
and Racheal,[25] through their mother, Caridad
refusal to convey to them the title to the two parcels of
Trocino.[26] The return did not contain any particulars as
land that they inherited from their father, Jesus Trocino,
to the impossibility of personal service on Mariano
who was one of the sellers of the properties to
Trocino within a reasonable time. Such improper service
petitioners. Hence, to repeat, Civil Case No. CEB-11103
renders the same ineffective.
is an action in personam because it is an action against
persons, namely, herein respondents, on the basis of

6
Due process of law requires personal service to support required verification, only Caridad Trocino signed the
a personal judgment, and, when the proceeding is strictly same. There was never a single instance where
in personam brought to determine the personal rights and defendant heirs signed the pleading. The fact that a
obligations of the parties, personal service within the pleading is signed by one defendant does not necessarily
state or a voluntary appearance in the case is essential mean that it is binding on a co-defendant. Furthermore,
to the acquisition of jurisdiction so as to constitute Caridad Trocino represented herself as the principal
compliance with the constitutional requirement of due defendant in her Motion to Withdraw Appeal. (Rollo, p.
process.[27] 80)

Moreover, inasmuch as the sheriffs return failed to Since the defendant heirs are co-defendants, the trial
state the facts and circumstances showing the court should have verified the extent of Atty. Bugarins
impossibility of personal service of summons upon authority when petitioners failed to appear as early as the
respondents within a reasonable time, petitioners should pre-trial stage, where the parties are required to
have sought the issuance of an alias summons. Under appear. The absence of the defendant heirs should have
Section 5, Rule 14 of the Rules of Court, alias summons prompted the trial court to inquire from the lawyer
may be issued when the original summons is returned whether he was also representing the other
without being served on any or all of the petitioners. As co-defendant and co-heirs over the
defendants.[28] Petitioners, however, did not do so, and disputed properties, the defendant heirs had every right
they should now bear the consequences of their lack of to be present during the trial. Only Caridad Trocino
diligence. appeared and testified on her own behalf. All the
defenses raised were her own, not the defendant
The fact that Atty. Expedito Bugarin represented all
heirs.[29]
the respondents without any exception does not
transform the ineffective service of summons into a valid
Consequently, the judgment sought to be executed
one. It does not constitute a valid waiver or even a
against respondents were rendered without jurisdiction
voluntary submission to the trial courts jurisdiction. There
as there was neither a proper service of summons nor
was not even the slightest proof showing that
was there any waiver or voluntary submission to the trial
respondents authorized Atty. Bugarins appearance for
courts jurisdiction. Hence, the same is void, with regard
and in their behalf. As found by the Court of Appeals:
to private respondents except Caridad Trocino.
While Caridad Trocino may have engaged the services of It must be pointed out that while it was the spouses
Atty. Bugarin, it did not necessarily mean that Atty. Jesus and Caridad Trocino who sold the properties to
Bugarin also had the authority to represent the defendant petitioners, their right to proceed against Jesus Trocino
heirs. The records show that in all the pleadings which when he died was passed on to his heirs, which includes

7
respondents and Caridad Trocino. Such transmission of [1] Penned by Justice Consuelo Ynares-Santiago (now
right occurred by operation of law, more particularly by Associate Justice of the Supreme Court), and
succession, which is a mode of acquisition by virtue of concurred in by Justice Fidel P. Purisima (retired
which the property, rights and obligations to the extent of Associate Justice of the Supreme Court), and
the value of the inheritance of a person are Justice Ruben T. Reyes.
transmitted.[30] When the process server personally [13] G.R. No. 128803, September 25, 1998, 296 SCRA
served the summons on Caridad Trocino, the trial court
539, 552.
validly acquired jurisdiction over her person
alone. Hence, the trial courts decision is valid and binding [14] Section 7, Rule 14 is now reproduced in Section 6,
with regard to her, but only in proportion to Caridad Rule 14 of the 1997 Rules of Civil Procedure.
Trocinos share. As aptly stated by the Court of Appeals: [15] Section 8, Rule 14 of the Rules of Court.
This Courts decision is therefore applicable to all the [16] Supra, Asiavest Limited case.
defendant heirs with the exception of defendant Caridad [17]
Trocino considering that it was the latter who entered into Banco de Brasil vs. Court of Appeals, G.R. Nos.
the alleged sale without the consent of her husband. She 121576-78, June 16, 2000, 333 SCRA 545, 557.
is therefore estopped from questioning her own authority [18] Supra., Asiavest Limited case.
to enter into the questioned sale. Moreover, Caridad [19]
Trocino was validly served with summons and was Ibid.
accorded due process.[31] [20] Rule 14, Section 15 of the Rules of Court.
[21] Paderanga vs. Buissan, G.R. No. 49475, September
WHEREFORE, the petition for review
is DENIED. The decision of the Court of Appeals in CA- 28, 1993, 226 SCRA 786, 790.
G.R. SP No. 40067 is AFFIRMED. [22] G.R. No. L-29791, January 10, 1978, 81 SCRA 75,
Costs against petitioners. 84-85.
[28] Rule 14, Section 5 of the Rules of Court provides:
SO ORDERED.
Quisumbing, (Acting Chairman), Callejo, If a summons is returned without being served on any or
Sr., and Tinga, JJ., concur. all of the defendants, the server shall also serve a
Puno, (Chairman), J., on leave. copy of the return on the plaintiffs counsel, stating
the reasons for the failure of service, within (5)
days therefrom. In such a case, or if the summons

8
 has been lost, the clerk, on demand of the plaintiff,
may issue an alias summons.
[29] Rollo, pp. 90-91.
[30] Emnace vs. Court of Appeals, G.R. No.
126334, November 23, 2001, 370 SCRA 431, 445.
[31] Rollo, p. 96.