EN BANC
G.R. No. L-22997 March 15, 1968PABLO C. MONTALBAN, ET AL., plaintiffs-appellees,
vs.
GERARDO MAXIMO, defendant-appellant.
Jose W. Diokno for plaintiffs-appellees.
Norberto J. Quisumbing for defendant-appellant.
SANCHEZ, J.:
Chronologically, following are the events that spawned the present case:
August 15, 1958. Plaintiffs commenced suit1
against Fr. Gerardo Maximo who, according to the complaint, was
residing at the parish church at Concepcion, Malabon, Rizal. Plaintiffs'
cause of action for damages sprang from a motor vehicle accident which
occurred at Padre Faura St., Manila, on December 16, 1957. Paul Hershell
Montalban, son of plaintiffs, suffered injuries.
August 15, 1958. On this same day
that the complaint was filed, summons was served on defendant Fr.
Gerardo Maximo at the parish church of Concepcion, Malabon, Rizal,
through Fr. Arsenio Bautista — a priest in the same parish church.
August 23, 1958. Fr. Arsenio
Bautista sent a letter (dated August 21) to Macario M. Ofilada, Clerk of
Court of the Court of First Instance of Manila, informing him that
defendant Fr. Gerardo Maximo left for Europe on August 7, and "will be
back on the first week of November." Actually, Fr. Maximo returned from
abroad "about the second week of October, 1958"2
September 20, 1958. The lower court declared defendant in default, on plaintiffs' motion of September 13, 1958.
June 8, 1959. Upon plaintiffs' evidence, the court rendered judgment sentencing defendant to:
1. Pay plaintiff Paul Hershell Montalban the amount of P10,000.00 as actual damages for loss of his spleen;
2. Pay plaintiff Paul Hershell Montalban the amount
of P10,000.00 for loss or impairment of earning capacity, talents and
physical strength;
3. Pay plaintiff Paul Hershell Montalban the amount of P5,000.00 as moral damages;
4. Pay plaintiffs Pablo C. Montalban and Regina Barretto the amount of P5,000.00 as moral damages;
5. Pay plaintiffs the amount of P1,000.00 as exemplary damages; and
6. Pay plaintiffs attorney's fees [in] the amount of P3,000.00 and the cost of litigation.
December 16, 1959. Plaintiffs
themselves wrote defendant Fr. Gerardo Maximo, at the Malabon Catholic
Church, informing the latter of the lower court's decision, giving the
data: "Re Civil Case No. 37202 (in which the foregoing judgment was
rendered) Montalban vs. Maximo," quoting therein the dispositive part of
the decision just transcribed, requesting prompt compliance therewith
and suggesting that he communicate with or personally see their lawyer,
Jose W. Diokno, at the latter's address, 332 Regina Building, Escolta,
Manila.
December 20, 1959. Defendant,
through his legal counsel, Dr. Nicanor T. Santos, answered the foregoing
letter expressing regret that he could not comply with plaintiffs'
request, because he (defendant) was not aware of the said civil case,
and that, in the criminal action arising out of the same incident, said
defendant was acquitted by the Municipal Court of Manila.3
January 14, 1960. Deputy Sheriff
Liberato C. Manalo of Rizal notified defendant of the issuance of the
writ of execution dated January 7, 1960, and demanded payment of the
amount set forth therein. The Sheriff's return to the writ shows that in
response to such demand, defendant alleged that he was then
"financially hard up"4 and that the Sheriff found no property that could be subject to execution.
January 30, 1962. An alias writ of execution was issued. Copy thereof was received by defendant on February 9, 1962.
February 1, 1962. The Deputy Sheriff attached and levied on a residential house located in Caloocan City and purportedly belonging to defendant.
February 20, 1962. Two years and two
months after defendant admittedly learned of the lower court's decision
from counsel for plaintiffs herein, said defendant, by counsel, filed a
verified motion in the same case praying for the annulment of the
entire proceedings. His ground is this: Summons was not duly served upon
him "as provided under Sec. 7, Rule 7 of the Rules of Court;"5
accordingly, the lower court "did not acquire jurisdiction over his
person"; and "the trial and decision by default" are "null and void."6
March 3, 1962. The court denied this motion.
March 24, 1962. Defendant's move to reconsider was rejected by the court.
Hence, this appeal from the orders of March
3 and March 24, 1962, duly certified to this Court by the Court of
Appeals.1äwphï1.ñët
September 2, 1965. After the case was submitted for decision, defendant's lawyer informed this Court of the death of defendant on August 1, 1965.
October 18, 1967. Following
extensive efforts to have the deceased defendant substituted by any of
his heirs or the executor or administrator of his estate, which were to
no avail, this Court appointed the Clerk of Court of the Court of First
Instance of Manila, representative of the deceased defendant.
1. A question of transcendental importance
which necessarily involves an inquiry into procedural due process is
whether summons in a suit in personam against a resident of the
Philippines temporarily absent therefrom may be validly effected by
substituted service under Section 8, Rule 14, (formerly Section 8, Rule
7) of the Rules of Court. A head-on collision of views becomes
inevitable considering the diametrically opposing positions taken by
plaintiffs, on the one hand, and defendant, on the other. For,
plaintiffs make the point that even with defendant temporarily abroad,
substituted service is valid under Section 8 by leaving a copy of the
summons "at the defendant's dwelling house or residence with some person
of suitable age and discretion then residing therein."
Plaintiffs argue that if the ordinary
method prescribed by the rules that is, personal service under Section
7, Rule 14, is not feasible, then the substituted service in Section 8
aforesaid comes into play. Section 8 says:
Sec. 8. Substituted service. — If
the defendant cannot be served within a reasonable time as provided in
the preceding section, service may be effected (a) by leaving copies of
the summons at the defendant's dwelling house or residence with some
person of suitable age and discretion then residing therein, or (b) by
leaving the copies at defendant's office or regular place of business
with some competent person in charge thereof.
Upon the other hand, defendant advances the
theory that in a situation like the present, where defendant was
temporarily abroad, the sole and exclusive method of service of summons
in a case in personam is that set forth in Section 18, Rule 14 of the Rules (formerly Section 18, Rule 7), which reads:
Sec. 18. 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 effected out of the Philippines, as under the preceding section.7
Section 17 referred to in Section 18 (Section 17, Rule 7 in the old Rules) in turn states:
Sec. 17. 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 7; 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.
Historically, in its common-law origin, the jurisdiction of courts to render judgments in personam was grounded on their de facto power over defendant's person. Jurisdiction was based on the power to seize and imprison defendant.8
If a defendant was absent from the territory, the fact that he was a
citizen would not enable the court's officers to seize him and service
could not represent this power.9 Hence, his presence within
the territorial jurisdiction was a prerequisite to the rendition of a
judgment personally binding against him. Anglo-American law then
emphasized the power concept of jurisdiction.10
Continental law, however, was somewhat different. It had two fundamental principles of Roman origin: 1) in suits in personam and those relating to movables, courts of the domicile of the defendant have general jurisdiction — actor rei forum sequitur, and (2) in actions concerning immovables, the courts of the situs have exclusive jurisdiction.11
In the development of the law, the variance
between Anglo-American law and continental law became "less and less
clear-cut" because "American law has had to yield to the increasing
necessity of enlarging more and more the catalogue of forums available
to the plaintiff."12
Thus it is, that American cases forged the
doctrine, now long recognized, that domiciliaries of a state, though
temporarily out of its territorial jurisdiction, are always amenable to
suits in personam therein.13 And this precept is the
foundation for the American rule that declares substituted service
binding on absent residents. The leading case Milliken vs. Meyer,14 furnishes the rationale:
. . . the authority of a state over one of
its citizens is not terminated by the mere fact of his absence from the
state. The state which accords him privileges and affords protection to
him and his property by virtue of his domicile may also exact reciprocal
duties. "Enjoyment of the privileges of residence within the state, and
the attendant right to invoke the protection of its laws, are
inseparable" from the various incidences of state citizenship. . . . The
responsibilities of that citizenship arise out of the relationship to
the state which domicile creates. That relationship is not dissolved by
mere absence from the state. The attendant duties, like the rights and
privileges incident to domicile, are not dependent on continuous
presence in the state. One such incident of domicile is amenability
to suit within the state even during sojourns without the state, where
the state has provided and employed a reasonable method for apprising
such an absent party of the proceedings against him.
There should be no doubt, therefore, that in suits in personam, courts have jurisdiction over residents temporarily out of the country.
This brings us to the question of
procedural due process. Substituted service such as one contemplated in
Section 8 upon a temporarily absent resident, it has been held, is
wholly adequate to meet the requirements of due process.15
The constitutional requirement of due process exacts that the service be
such as may be reasonably expected to give the notice desired. Once the
service provided by the rules reasonably accomplishes that end, the
requirement of justice is answered; the traditional notions of fair play
are satisfied; due process is served.
In American jurisprudence, whether a defendant be in another state under the federal system or is abroad in Europe,16 substituted service is still considered to be valid.17 The language in Milliken vs. Meyer, supra,
is expressive: "Its adequacy so far as due process is concerned is
dependent on whether or not the form of substituted service provided for
such cases and employed is reasonably calculated to give
him actual notice of the proceedings and an opportunity to be heard. If
it is, then traditional notions of fair play and substantial justice
(McDonald vs. Mabee, supra) implicit in due process are satisfied."18
When the framers of our Rules adapted
Section 8, it is to be implied that they intended to give the provision
the same meaning shaped out by the jurisprudence of the jurisdiction
from whence it was patterned. Section 8 is to be viewed in the same
context it is understood in the American legal system. The word
"defendant" in that provision is to be construed as including any
resident of this country. By comparative construction, Section 8 is to
be applied to all resident defendants — without distinction as to
whether he is physically present in this country or not.
Chief Justice Moran shares this view.
Commenting on Section 18, Rule 14, he states: "Since the defendant is
residing in the Philippines, jurisdiction over his person may be
acquired by Philippine courts by substituted service of summons under section 8. But extra-territorial service is allowed also by leave of court according to the above provision [Section 18]."19
Justice Martin regards the word "residence" in Section 8 as "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 state at
the time."20
This construction is but fair. It is in
accord with substantial justice. The burden on a plaintiff is not to be
enlarged with a restrictive construction as desired by defendant here.
Under the rules, a plaintiff, in the initial stage of suit, is merely
required to know the defendant's "dwelling house or residence" or his
"office or regular place of business" — and no more. He is not asked to
investigate where a resident defendant actually is at the precise moment
of filing suit. Once defendant's dwelling house or residence or office
or regular place of business is known, he can expect valid service of
summons to be made on "some person of suitable age and discretion then
residing" in defendant's dwelling house or residence, or on "some
competent person in charge" of his office or regular place of business.
By the terms of the law, plaintiff is not even duty-bound to see to it
that the person upon whom service was actually made delivers the summons
to defendant or inform him about it. The law presumes that for him.
It is immaterial then that defendant does
not in fact receive actual notice. This will not affect the validity of
the service.21 Accordingly, the defendant may be charged by a judgment in personam as a result of legal proceedings upon a method of service which is not personal, "which in fact may not become actual notice to him," and which may be accomplished in his lawful absence from the country.22
For, the rules do not require that papers be served on defendant
personally or a showing that the papers were delivered to defendant by
the person with whom they were left.23
Reasons for the views just expressed are
not wanting. 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 in justice
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.
In the light of the foregoing, we find
ourselves unwilling to concede that substituted service provided in
Section 8 may be down-graded as an ineffective means to bring
temporarily absent residents within the reach of our courts.
As we go back to the case at hand, there is
the temporarily absent defendant who was a parish priest. Summons upon
him was served upon Fr. Bautista who lived in the same convent where
defendant resided. Fr. Bautista, we must assume, is a responsible
person. Service upon him is effective.
2. The view we take of this case sweeps
away defendant's argument that Section 18 is the sole provision that
governs summons upon a defendant temporarily absent in an action in personam,
as here. Indeed, defendant's posture strikes at the very language
employed by this reglementary provision cited by him. The word "may" —
in the statement in Section 8 that "service may, by leave of court, be effected out of
the Philippines," as under Section 17 — will not support the deduction,
without more, that Section 18 is the only provision controlling in this
case. On the contrary, the phraseology of the rule is a recognition of
the fact that substituted service — out of the Philippines — under
Section 17 is but one of the modes of effective service to bring a
defendant in court. And upon the basic concepts under which our rules
governing processes operate, the normal method of service of summons on
one temporarily absent is by substituted service set forth in Section 8.
And this, because personal service outside the country and service by
publication are not ordinary means of summoning defendants.
In practical terms, we perceive that — in suits in personam
— the more circuitous procedure delineated in Sections 17 and 18 is
resorted to by a plaintiff if defendant's dwelling house or residence or
place of business in this country is not known; or, if known, service
upon him cannot be had thereat upon the terms of Section 8. Here, since
personal service is impossible, resort to substituted service becomes a
necessity. A comparison between the service in Section 8 and that in
Sections 17 and 18 is beside the point. They both provide for
substituted service. Anyway, as Goodrich observed: "[I]f a substitute is to be made where an actual personal service is impossible, 'the best is none too good'."24
3. The judgment has long since become
final. It enjoys the presumption of regularity. It is, unless stricken
down, entitled to respect. Non quieta movere. Because "[p]ublic
policy and sound practice demand that, at the risk of occasional errors,
judgments of courts should become final at some definite date fixed by
law."25
The norm of conduct observed by defendant
would not, we believe, tilt the scales of justice in his favor. We go to
the background facts. Logic and common sense tell us that Fr. Bautista
who received the summons and who took interest in the case must have informed defendant one way or another of the suit, at the latest upon his return in October, 1958. By then there was still time for
him to move to set aside the default order of September 20, 1958.
Defendant did not move. It is well to remember also that judgment by
default was not rendered against defendant until June 8, 1959, or almost
nine (9) months after the default order was issued. Again, defendant
did nothing. According to defendant, he learned of that judgment on
December 20, 1959. The full impact of the judgment totalling P34,000.00
must have by then left an indelible mark in his mind. A judgment of a
court of justice is no piddling matter. It should not be trifled with.
Especially so when the amount is big, as it is here. That same day —
December 20 — his attorney took a hand on the matter, wrote back
plaintiffs refusing payment of the claim. The first writ of execution
was served on defendant on January 14, 1960. That time he did not pay,
because according to the Sheriff's return, defendant then stated that he
was "financially hard up."
Defendant did not bestir himself until
February 20, 1962, i.e., not less than to years and two months after he
learned — by his own admission — of the judgment. And, that was shortly
after levy was made on his house in Caloocan. It is in this actual
environment that then CFI Judge Magno Gatmaitan, in his order of March
24, 1962, correctly observed that "the Court once again believes that
this solution (denial of the motion to reconsider the appealed order) is
just because of the apparent intentional inaction of defendant since 20
December, 1959."
Indeed, it was not right that defendant
should have supinely sat on the decision, and deliberately disregarded
the import thereof. Neither was it correct for him to have waited so
long, slept on his rights, and only put plaintiffs to task when his own
property was threatened because of the levy and execution thereon.
The decision below may not thus be
annulled. Plaintiffs may not be compelled to file a fresh suit. Because,
prejudice to plaintiffs, which could have been avoided by defendant,
will become a reality. The additional expense, trouble and anxiety need
not be essayed. The accident took place on December 16, 1957. The lower
court's decision made mention of two eye witnesses and two doctors of
medicine who testified as to injuries. To bring back those witnesses to
court becomes a serious problem. Plaintiffs will have to search for them
and if found, they may not be able to present to the court a narrative
as accurately as they had done before. Time has an unfortunate tendency
of obliterating occurrences from a witness' memory. Recollections are
apt to be blurred. Human memory can even be treacherous. Lapse of time
may also carry with it dissipation of other evidence. Surely, there is
great validity to the statement that the march of time is truth in
flight.26 These, in broad outlines, give life to the salutary policy on which laches is founded.
WHEREFORE, the orders appealed from dated March 3, 1962 and March 24, 1962 are hereby affirmed.1äwphï1.ñët
Costs against defendant-appellant. So ordered.
Reyes, J.B.L., Dizon, Bengzon, J.P. Zaldivar, Castro and Angeles, JJ., concur.Makalintal, J., concurs in the result.
Concepcion, C.J., is on leave.
Fernando, J., took no part.
Footnotes
1Civil Case No. 37202, Court of First
Instance of Manila, entitled "Pablo C. Montalban and Regina Barretto in
their own behalf and as natural guardians, in behalf of minor Paul
Hershell B. Montalban, Plaintiffs, vs. Gerardo Maximo, Defendant."
2Defendant's motion of February 20, 1962, infra, Record on Appeal, p. 25.
3Record on Appeal, pp. 40-42. Counsel
refers to the sentence of acquittal (Record on Appeal, p. 31) in
Criminal Case No. J-070083 of the City Court of Manila, for serious
physical injuries thru reckless imprudence, entitled "The People of the
Philippines, Plaintiff, vs. Gerardo Maximo de Leon, Accused."
4Record on Appeal, p. 21. 5Now Section 7, Rule 14 of the new Rules.
6Record on Appeal, pp. 21-26.
7Emphasis supplied.
8Michigan Trust Co. vs. Ferry, 228 U.S.
346, 353, 57 L. ed. 867, 874; International Shoe Co. vs. Washington, 326
U.S. 310, 313, 90 L. ed. 95, 101-102, citing cases.
9Stimson Conflict of Laws, 1963, ed., p. 247.10Lorenzen, Cases on Conflict of Laws, 1951 ed., p. 16.
11Ibid.
12Ibid, at p. 17.
13Blackmer vs. U.S., 284 U.S. 421, 438, 76 L. ed. 375, 383. See also: 42 Am. Jur., p. 58; 72 C.J.S., p. 997.
14311 U.S. 457, 463, 85 L. ed. 278, 283; Emphasis supplied.
15McDonald vs. Mabee 243 U.S. 90, 91, 61 L. ed. 608, 609.
16Camden Safe-Deposit & Trust Co. vs. Barbour, 48 A. 1008-1009, where
defendant was in Europe and service was made at the dwelling house at
Monmouth Beach, New Jersey, where his wife and family lived.
17Missell vs. Hayes, et al., 85 A.
818-819, where summons was left at the father's home in New Brunswick,
New Jersey, while defendant was a student at a college in Maryland in
preparation for the ministry; Verdenburgh et al. vs. Weidmann, 183 A.
459-460, where summons was left at the father's house in New Jersey
while defendant was a student at Yale Law School in New Haven; Skidmore
vs. Green, 33 F. Supp. 529-530, where summons and complaint were served
on a brother's home, considered defendant's usual place of abode since
defendant's life was of a migratory nature; Rovinski vs. Rowe, 131 F. 2d
687-693, where service had been made upon defendant's mother at her
residence in Michigan, although defendant had actually been living in
various places in other states for a number of years; Blaw-Knox Co. vs.
Miller's Gold Seal Dairy, Inc., 14 Fed. Rules Serv. 4d. 122, Case 1, pp.
16-17, where summons was left with defendant's wife at his usual place
of abode (Ohio), to which he returned from time to time, although he
took employment at another state (Wisconsin) without any intention to
return and the wife was going to follow him when accommodations could be
found.
18Emphasis supplied. 191 Moran, Comments on the Rules of Court, 1963 ed., p. 396; emphasis supplied.
201 Martin, Rules of Court in the Philippines, 1963 ed., pp. 398-399, citing 127 ALR 1273, 1274.
2172 C.J.S., p. 1054. 22126 A.L.R. 1486; emphasis supplied.
23Smith vs. Kincaid, 249 F. 2d 243, 245,
citing Milliken vs. Meyer supra; U.S. vs. Stabler, 169 F. 2d 995, 997;
Maher vs. Deam, 137 N.E. 2d 149.
24Goodrich, Conflict of Laws, 1938 ed., p. 160, citing McDonald vs. Mabee, supra. 25Dy Cay vs. Crossfied & O'Brien, 38 Phil. 521, 526.
26Pangasinan Transportation Co., Inc. vs. Workmen's Compensation Commission, L-16490, January 30, 1964.
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