01 PENNOYER v.

NEFF
95 U.S. 714, 24 L. Ed. 565 (1878)
Facts
- Mitchell brought suit against Neff to recover unpaid legal
fees. Mitchell was a lawyer from Oregon. Neff was a
resident of California.
- In the original suit, jurisdiction over Neff was obtained by
service of summons by publication. Mitchell published
notice of the lawsuit in an Oregon newspaper but did not
serve Neff personally.
- Neff failed to appear and a default judgment was entered
against him.
- To satisfy the judgment Mitchell seized land owned by Neff
located in Oregon. The land was sold on auction. Mitchell
purchased it and later assigned it to Pennoyer.
- Neff sued Pennoyer in federal district court in Oregon to
recover possession of the property, claiming that the
original judgment against him was invalid for lack of
jurisdiction over both him and the land.
- The court found that the judgment in the lawsuit between
Mitchell and Neff was invalid and that Neff still owned the
land.
- Pennoyer lost on appeal and the Supreme Court granted
certiorari.
Issue
W/N a state court can exercise personal jurisdiction over a
non-resident who has not been personally served while

within the state and whose property within the state was not
attached before the onset of litigation?
Holding
No. A court may enter a judgment against a nonresident only if the party
1) is personally served with process while within the
state, or
2) has property within the state, and that property is
attached before litigation begins (i.e. quasi in rem
jurisdiction).
A personal judgment is without any validity if it be
rendered by a State court in an action upon a money
demand against a nonresident of the State who was
served by a publication of summons, but upon whom no
personal service of process within the State was made,
and who did not appear; and no title to property passes by
a sale under an execution issued upon such a judgment.
In an action for money or damages where a defendant
does not appear in the court, and is not found within the
State, and is not a resident thereof, but has property
therein, the jurisdiction of the court extends only over
such property.
The authority of every tribunal is necessarily restricted
by the territorial limits of the State in which it is
established. Any attempt to exercise authority beyond
those limits would be deemed in every other forum, as
has been said by this Court, an illegitimate assumption
of power, and be resisted as mere abuse.

In the case against the plaintiff, the property here in

controversy sold under the judgment rendered was not
attached, nor in any way brought under the jurisdiction
of the court. Its first connection with the case was
caused by a levy of the execution. It was not, therefore,
disposed of pursuant to any adjudication, but only in
enforcement of a personal judgment, having no relation
to the property, rendered against a nonresident without
service of process upon him in the action or his
appearance therein.
Substituted service by publication, or in any other
authorized form, is sufficient to inform a nonresident of the
object of proceedings taken where property is once
brought under the control of the court by seizure or some
equivalent act, but where the suit is brought to determine
his personal rights and obligations, that is, where it is
merely in personam, such service upon him is ineffectual
for any purpose.
- Since the adoption of the Fourteenth Amendment, the
validity of judgments may be directly questioned on the
ground that proceedings in a court of justice to determine
the personal rights and obligations of parties over whom
that court has no jurisdiction do not constitute due process
of law. Due process demands that legal proceedings be
conducted according to those rules and principles which
have been established in our systems of jurisprudence for
the protection and enforcement of private rights.
- To give legal proceedings any validity, there must be a
tribunal with legal authority to pass judgment, and a

defendant must be brought within its jurisdiction by

service of process within the state, or by his voluntary
appearance.
- The substituted service of process by publication in actions
brought against non-residents is valid only where property
in the state is brought under the control of the court, and
subjected to its disposition by process adapted to that
purpose, or where the judgment is sought as a means of
reaching such property or affecting some interest therein;
in other words, where the action is in the nature of a
proceeding in rem.
- The Oregon court did not have personal jurisdiction over
Neff because he was not served in Oregon. The courts
judgment would have been valid if Mitchell had attached
Neffs land at the beginning of the suit. Mitchell could not
have done this because Neff did not own the land at the
time Mitchell initiated the suit. The default judgment was
declared invalid. Therefore, the sheriff had no power to
auction the real estate and title never passed to Mitchell.
Neff was the legal owner.
Disposition
Judgment for Neff affirmed.

02 MULLANE v. CENTRAL HANOVER

Facts
Central Hanover Bank and Trust Co. established a common
trust fund according to New York Banking Law. Section 100-c
of this law provides that a trust company may, with approval
of the State Banking Board, establish a common fund and,
within prescribed limits, invest therein the assets of an
unlimited number of estates, trusts or other funds of which
it is trustee. Each participating trust shares ratably in the
common fund, but exclusive management and control is in
the trust company as trustee. Provisions are made for
accountings
twelve
to
fifteen
months
after
the
establishment of a fund and triennially thereafter. In this
way, donors and testators of moderately sized trusts are not
be denied the service of corporate fiduciaries, which service
would not have been extended to them based on their
capital standing alone.
In March 1947, Central Hanover Bank petitioned the
Surrogate Court for settlement of its first account as
common trustee. At this time, it already had 113 trusts (half
inter vivos and half testamentary) with a gross capital of
nearly $3 million. The only notice given to the beneficiaries
(some of whom did not reside in New York) of the application
was by publication in a local newspaper in strict compliance
with Section 100-c (12) of New York Banking Law, "'After
filing such petition (for judicial settlement of its account) the
petitioner shall cause to be issued by the court in which the
petition is filed and shall publish not less than once in each
week for four successive weeks in a newspaper to be
designated by the court a notice or citation addressed
generally without naming them to all parties interested in
such common trust fund and in such estates, trusts or funds

mentioned in the petition, all of which may be described in

the notice or citation only in the manner set forth in said
petition and without setting forth the residence of any such
decedent or donor of any such estate, trust or fund.
This is in contrast to the notice it gave to the beneficiaries
back when the first investment in the common fund was
made, at which time they had been notified by mail.
Appellant Kenneth Mullane appeared specially, objecting
that notice by publication was inadequate to afford due
process under the 14th Amendment. The Court thus had no
jurisdiction to render a final and binding decree.
Issue:
w/n the notice by publication given by Central Hanover and
Trust Co. to its known beneficiaries is constitutional
Held:
NO. We hold the notice of judicial settlement of accounts
required by the New York Banking Law 100-c(12) is
incompatible with the requirements of the Fourteenth
Amendment of due process as a basis for adjudication
depriving known persons whose whereabouts are also
known of substantial property rights.
Ratio
Justice Jackson did not explicitly determine what type of
jurisdiction was being exercised here, but held that the
Fourteenth Amendment applied to all of them regardless of
how the state classified the action. As long as the procedure
accords the claimants, resident or non-resident, the full

opportunity to appear and be heard, then the Court has a

right to hear the case.
When notice is a person's due, process which is a mere
gesture is not due process. The means employed must be
such as one desirous of actually informing the absentee
might
reasonably
adopt
to
accomplish
it.
The
reasonableness and hence the constitutional validity of any
chosen method may be defended on the ground that it is in
itself reasonably certain to inform those affected, or, where
conditions do not reasonably permit such notice, that the
form chosen is not substantially less likely to bring home
notice than other of the feasible and customary substitutes.
It would be idle to pretend that publication alone as
prescribed here, is a reliable means of acquainting
interested parties of the fact that their rights are
before the courts. It is not an accident that the greater
number of cases reaching this Court on the question of
adequacy of notice have been concerned with actions
founded on process constructively served through local
newspapers. Chance alone brings to the attention of
even a local resident an advertisement in small type
inserted in the back pages of a newspaper, and if he
makes his home outside the area of the newspaper's normal
circulation the odds that the information will never reach
him are large indeed. The chance of actual notice is
further reduced when as here the notice required
does not even name those whose attention it is
supposed
to
attract,
and
does
not
inform
acquaintances who might call it to attention.

The Court held that those beneficiaries KNOWN to the

trustee should have been informed personally of the
accounting by ordinary mail. Since the trustee periodically
remits income to them, it is reasonable to expect them to
give such notice. The statutory notice to known
beneficiaries is inadequate, not because in fact it fails to
reach everyone, but because under the circumstances it is
not reasonably calculated to reach those who could easily
be informed by other means at hand. Publication may
theoretically be available for all the world to see, but it is too
much in our day to suppose that each or any individual
beneficiary does or could examine all that is published to
see if something may be tucked away in it that affects his
property interests.

Mr. Justice BURTON, dissenting.

These common trusts are available only when the
instruments creating the participating trusts permit
participation in the common fund. Whether or not further
notice to beneficiaries should supplement the notice and
representation here provided is properly within the
discretion of the State. The Federal Constitution does not
require it here.

03 SHAFFER v. HEITNER (1977)

433 U.S. 186
APPEAL FROM THE SUPREME COURT OF DELAWARE
MARSHALL, J
Background: The controversy in this case concerns the
constitutionality of a Delaware statute that allows a court of
that State to take jurisdiction of a lawsuit by sequestering
any property of the defendant that happens to be located in
Delaware. Appellants contend that the sequestration statute
as applied in this case violates the Due Process Clause of
the Fourteenth Amendment both because it permits the
state courts to exercise jurisdiction despite the absence of
sufficient contacts among the defendants, the litigation, and
the State of Delaware and because it authorizes the
deprivation of defendants' property without providing
adequate procedural safeguards.
FACTS: Greyhound, a Delaware corporation, lost a large
antitrust judgment and Heitner initiated a shareholder
derivative suit in Delaware against 28 officers and directors
of the corporation (i.e. Shaffer,et al). Heitner owned one
share of Greyhound stock and was a nonresident of
Delaware. Heitner filed a motion for sequestration of stock
owned by 21 of the defendants in order to obtain quasi-inrem jurisdiction. The legal situs of the stock was deemed to
be in Delaware.
The Delaware sequestration statute allowed property within
the state to be seized to allow the Delaware court to obtain
personal jurisdiction over the owner. Shaffer et al. made a
special appearance to challenge the courts jurisdiction on
the grounds that the statute was unconstitutional. Shaffer

also asserted that there were insufficient contacts to confer

jurisdiction. The District Court found that the statute was
valid, and did not address the minimum contacts argument
due to the finding that the legal presence of the stock in
Delaware conferred quasi-in rem jurisdiction.
ISSUES:
1. Can a state obtain personal jurisdiction over a party
based on that partys ownership of property in the
state?
NO. A state cannot obtain personal jurisdiction over a
party based merely on that partys ownership of
property in the state.
2. Is quasi in rem jurisdiction subject to the constitutional
requirements of minimum contacts? YES. It is subject
to the constitutional requirements of minimum
contacts.
HOLDING AND RATIO: Judgement REVERSED.
1. Whether or not a State can assert jurisdiction over a
nonresident must be evaluated according to the
minimum-contacts standard of International Shoe Co.
v. Washington.
a. In order to justify an exercise of jurisdiction in
rem, the basis for jurisdiction must be sufficient
to justify exercising "jurisdiction over the
interests of persons in the thing." The presence
of property in a State may bear upon the
existence of jurisdiction by providing contacts
among the forum State, the defendant, and the
litigation, as for example, when claims to the
property itself are the source of the underlying
controversy
between
the
plaintiff
and
defendant, where it would be unusual for the

State where the property is located not to have

jurisdiction.
b. But where, as in the instant quasi in rem action,
the property now serving as the basis for state
court jurisdiction is completely unrelated to the
plaintiff's cause of action, the presence of the
property alone, i.e., absent other ties among the
defendant, the State, and the litigation, would
not support the State's jurisdiction.
c. Though the primary rationale for treating the
presence of property alone as a basis for
jurisdiction is to prevent a wrongdoer from
avoiding payment of his obligations by removal
of his assets to a place where he is not subject
to an in personam suit, that is an insufficient
justification for recognizing jurisdiction without
regard to whether the property is in the State for
that purpose. Moreover, the availability of
attachment procedures and the protection of the
Full Faith and Credit Clause also militate against
that rationale.
2. In rem jurisdiction: Due process under the Fourteenth
Amendment requires that the basis for jurisdiction
must be sufficient to justify exercising jurisdiction over
the interests of persons in the thing. The presence of
property in a State may allow jurisdiction by providing
contacts among the forum State, the defendant, and
the litigation; for example, when claims to the
property itself are the source of the underlying
controversy.
3. Where, as in this case, the property serving as the
basis for jurisdiction is completely unrelated to the
plaintiffs cause of action, the presence of the property
alone, i.e., absent other ties among the defendant, the

State, and the litigation, would not support the States

jurisdiction.
4. Delawares assertion of jurisdiction over appellants,
based solely as it is on the statutory presence of
appellants property in Delaware, violates the Due
Process Clause, which does not contemplate that a
state may make binding a judgment against an
individual or corporate defendant with which the state
has no contacts, ties, or relations. Appellants holdings
in the corporation do not provide contacts with
Delaware sufficient to support jurisdiction of that
States courts over appellants.
5. Delaware state-court jurisdiction is not supported by
that States interest in supervising the management of
a Delaware corporation and defining the obligations of
its officers and directors, since Delaware bases
jurisdiction, not on appellants status as corporate
fiduciaries, but on the presence of their property in
the State.
6. Though it may be appropriate for Delaware law to
govern the obligations of appellants to the corporation
and stockholders, this does not mean that appellants
have purposefully availed themselves of the privilege
of conducting activities within the forum State.
Appellants, who were not required to acquire interests
in the corporation in order to hold their positions, did
not by acquiring those interests surrender their right
to be brought to judgment in the States in which they
had minimum contacts.

04 DE HOYA v. REYES (2006)

(1)Chester De Hoya is an alleged co-conspirator in a
syndicated estafa case filed against several directors
and officers of State Resources Development
Management Corp. by complainant Manuel Dy Awiten.
(2)State Prosecutor found probable cause to file an
information and the respondent judge likewise found
probable cause to issue an arrest warrant for De Hoya.
(3)De Hoya has evaded arrest and refuses to submit to
the jurisdiction of the trial court.
(4)ACTION: De Hoya filed Petition for Certiorari and
Prohibition to declare null and void the arrest warrant
for lack of probable cause.
ISSUES:
(1)WON there was probable cause to issue arrest warrant
(YES)
(2)SYLLABUS: WON De Hoya could avail of remedies
from the court without submitting to its jurisdiction
(NO).
SC:
RE Arrest Warrant: There was sufficient evidence to show
probable cause probable cause:
(1)Complainant was enticed to invest a large sum of
money.
(2)Checks were issued to him as return on capital which
were dishonored.
(3)Accused De Hoya is an incorporation and director and
that he had knowledge of its activities and
transactions.
RE type of Jurisdiction (citing Regalado):

(1)Over the plaintif: This is acquired by the filing of the

complaint, petition, or initiatory pleading before the
court by the plaintiff or petitioner.
(2)Over the defendant: This is acquired by voluntary
appearance or submission by the defendant or
respondent to the court or by coercive process issued
by the court to him, generally by the service of
summons.
(3)Over the subject matter: This is conferred by law
and, unlike jurisdiction over the parties, cannot be
conferred on the court by voluntary act or agreement
of the parties.
(4)Over the issues of the case: This is determined and
conferred by the pleadings filed in the case by the
parties, or by their agreement in a pre-trial order or
stipulation, or, at times by their implied consent as by
the failure of a party to object to evidence on an issue
not covered by the pleadings, as provided in ROC
10.5.
(5)Over the res: This is acquired by the actual or
constructive seizure by the court of the thing in
question, thus placing it in custodial egis, as in
attachment or garnishment; or by provision of law
which recognizes in the court the power to deal with
the property or subject matter within its territorial
jurisdiction, as in land registration proceedings or suits
involving civil status or real property in the Philippines
of a non-resident defendant.
RE right of accused to seek relief:
There is no reason in this case to allow the petitioner to
obtain relief from the courts without submitting to its
jurisdiction. His continued refusal to submit to jurisdiction
should give the Court more reason to uphold the warrant of

arrest so as to place him in the custody of the law and on

trial for charges against him. It should be remembered that
he who invokes the jurisdiction of the court should first
submit to its jurisdiction.

05 REYES v. DIAZ
MORAN, J.
Nov. 26, 1941
Topic: Jurisdiction over subject matter
FACTS:
The case was appealed to the SC from the CA on the ground
that the jurisdiction of the trial court is in issue (no facts
were explicitly indicated in the case itself)
DISCUSSION
ON
JURISDICTION
OVER
SUBJECT
MATTER:
It has been held that the word "jurisdiction" as used in the
constitutions and in the statutes "means jurisdiction as to
the subject-matter only, unless an exception arises by
reason of its employment in a broader sense."
Jurisdiction over the subject-matter is the power to hear and
determine cases of the general class to which the
proceedings in question belong and is conferred by the
sovereign authority which organizes the court and defines
its powers. WON a court has jurisdiction over the subjectmatter calls for interpretation and application of the law of
jurisdiction which distributes the judicial power among the
different courts in the Philippines, and since the ruling on
the matter affects the very life and structure of our judicial
system, the law placed the power and authority to act
thereon in the highest court of the land.
In order that a court may validly try and decide a case, it
must have jurisdiction over the persons of the parties. But in
some instances it is said that the court should also have
jurisdiction over the issue.

Jurisdiction
Matter

on

SubjectJurisdiction on the Issues

conferred by law

Conferred by the pleadings

Cannot

may be conferred by consent either

implied of the parties

Cannot

Although an issue is not duly plea

validly be tried and decided if
objection is made thereto by the par

Jurisdiction over the issue is an expression of a principle that

is involved in jurisdiction over the persons of the parties. At
any rate, whether or not the court has jurisdiction over a
specific issue is a question that requires nothing except an
examination of the pleadings, and this function is without
such importance as call for the intervention of the SC.
ISSUES (allegedly related to jurisdiction):
WON there is sufficient to show that the protestant has duly
filed his certificate of candidacy
WON the trial court has or has no authority to pass upon the
validity of the ballots adjudicated to the protestant which
have not been challenged by the protestee in his counterprotest.

HELD:
ISSUE 1: this is not a question of jurisdiction but a question
of fact
Both parties agree that if the due filing of the
protestant's certificate of candidacy is proven, the trial
court has no jurisdiction except to dismiss the case.
There is, therefore, no question between the parties
as to what the jurisdiction of the trial court is
according to law in either case. The real question
between them is one of fact. And until this is proven,
the question of jurisdiction cannot be determined.
ISSUE 2: this is also not a question of jurisdiction but of
relevancy of evidence
An erroneous ruling on the matter may encroach upon
issues completely foreign to those defined in the
pleadings, but in such case, it is a question of
jurisdiction on the issue and not on the subject matter
DISPOSITIVE:
Wherefore, this case is hereby remanded to the Court of
Appeals for further proceedings.

06 BERNABE v. VERGARA
EN BANC G.R. No. L-48652

September 16, 1942

MORAN, J.:

CFI: Awarded Lucia, Hipolito, and Barbara 1/3 of the

common property and ordered them to pay the debts of
their mother, Apolonia (Php 350).
CA: Referred the case to SC since issues involved are
questions of law.

Facts:

Victoriano Zafra died and was survived by his children:

Benito, Apolonia and Dominga.

Benito (leaving a daughter named Irinea) and

Apolonia (leaving 3 children: Lucia, Hipolito, and
Barbara) died.

This action for partition of the inheritance left by

Victoriano was filed by the heirs of Benito and
Apolonia against Dominga and the persons to whom
she had sold her share in the common property
(Brigida Martinez, Amadeo Landicho and Marcelina
Landicho).

Domingas Counterclaim:

She had paid certain debts contracted by Apolonia

which constituted an equitable lien upon the property
left by Apolonia.

Issue: WON CFI had jurisdiction to render its judgment for

Php 350.

SC:

CFI had jurisdiction not only because there was a

counterclaim wherein the amount adjudged was within
the amount pleaded, but because the proceeding was
in the nature of one for liquidation and partition of
inheritance wherein debts left by the deceased
ancestors may be determined and ordered paid if the
creditors are parties.

The jurisdiction involved is not one over the subject

matter but at most over the issue or over the persons
of the parties.
o A CFI has jurisdiction over the case involving
P200 or more, and therefore the CFI of Nueva
Ecija had jurisdiction to render judgment in the
amount of P350.

o The question of WON there was a proper

issue raised in the pleading as to said
amount, is not a question of jurisdiction
over the subject-matter, but jurisdiction
over the issue.

Reyes v. Diaz: Jurisdiction over the subject-matter is the

power to hear and determine cases of the general class to
which the proceedings in question belong and is conferred
by the sovereign authority which organizes the court and
defines the court and defines its powers.

In some instances it is said that the court should also

have jurisdiction over the issue, meaning thereby that
the issue being tried and decided by the court
be within the issues raised in the pleadings.

This kind of jurisdiction should be distinguished from

jurisdiction over the subject matter, the latter being
conferred by law and the former by the pleadings.

Jurisdiction over the issue, unlike jurisdiction over the

subject-matter, may be conferred by consent
either express or implied of the parties.

Although an issue is not duly pleaded it may

validly be tried and decided if no timely
objection is made thereto by the parties. This
cannot be done when jurisdiction over the subjectmatter is involved.

Jurisdiction over the issue is an expression of a

principle that is involved in jurisdiction over the
persons of the parties. Where, for instance, an issue is
not duly pleaded in the complaint, the defendant
cannot be said to have been served with process as to
that issue.

WON the court has jurisdiction over a specific

issue is a question that requires nothing except
an examination of the pleadings, and this function
is without such importance as to call for the
intervention of this court.

Question of jurisdiction raised in the case is not only

unsubstantial but is also not the kind of question that may
deprive the CA of its appellate jurisdiction over the case. It
is hereby ordered that this case be returned to the CA for
hearing and decision on the merits.

07 PANTALEON v ASUNCION
May 22, 1959
Concepcion
Topic: Jurisdiction over the person
Facts:
On June 12, 1953, Vicenta Pantaleon instituted in the
CFI of Nueva Ecija an action to recover from Asuncion the
sum of P2, 000. The summons was returned by the sheriff
unserved, with the statement that Asuncion is residing in B24 Tala Estate, Caloocan, Rizal. However, the alias summons
was also returned unserved, with information that he had
left the Tala estate and diligent efforts to locate him proved
to no avail.
On March 1955, the court ordered that Asuncion be
summoned by publication, and the summons was published
in the Examiner, a newspaper of general circulation in
Nueva Ecija. Asucion failed to appear or give an answer, so
he was later declared in default. Subsequently, the court
rendered judgment against Asuncion for the sum of P 2, 300
with interest.
46 days later, Asuncion filed a petition for relief from
the order of default and judgment on the ground of mistake
and excusable negligence. His affidavit and verified answer
were annexed to his petition.
He stated that:
- He received in his residence in Quezon City a
notice of a registered letter at the Post office in
Nueva Ecija.

He went to claim the letter, which contained a copy

of the order of default and the judgment against
him.
Had the copy of the summons and order for its
publication been sent by mail, he would have
received such.
The copy of the summons and the order for the
publication thereof were not deposited in the post
office, postage prepaid, directed to the defendant
by ordinary mail to his last known address, in
violation of ROC Rule 7 sec. 21.

Pantaleon argues that the provision applicable is Sec.

16 which provides that when the defendant is an unknown
owner or the like, or whenever the address of a defendant is
unknown, service may, by leave of court be effected by
publication. She also argues that the requirement in Sec. 21
refers to extraterritorial service of summons.
Asuncions petition for relief was denied, and he
appealed.
Issue:
WON the CFI had jurisdiction over the person of the
defendant NO
Ratio:
Section 21 requires proof of service by publication
whether the defendant is a resident or not. Sec 16 and Sec.
21 should be read in relation to each other.
Strict compliance with the terms of the statute is
necessary to confer jurisdiction through service by

publication, thus, the court had no authority to issue the

default order or render judgment. Both are null and void.
Also, since the suit is an action strictly in
personam, personal service of summons within the
forum is essential to acquire jurisdiction over the
person of the defendant, who does not voluntarily
submit himself to the authority of the court.
Summons by publication cannot confer upon the
court jurisdiction over such defendant.
The defendants verified answer contains allegations,
if true, constitute a good defense, from the viewpoint of
substantial justice.
The order declaring defendant in default and the
subsequent decision against him are set aside and annulled.

08 DAVAO LIGHT & POWER CO., INC., v. CA

jurisdiction of the latter's person by service of summons or

his voluntary submission to the Court's authority

FACTS:
Davao Light & Power Co., Inc. filed a complaint for recovery
of a sum of money and damages against Queensland Hotel,
etc. and Teodorico Adarna. The complaint contained an ex
parte application for a writ of preliminary attachment. Judge
Nartatez issued an Order granting the ex parte application
and fixing the attachment bond at P4,600,513.37. Davao
Light submitted the attachment bond; writ of attachment
was issued.
The summons and a copy of the complaint, as well as the
writ of attachment and a copy of the attachment bond, were
served on defendants Queensland and Adarna; and
pursuant to the writ, the sheriff seized properties belonging
to the latter.
Queensland and Adarna filed a motion to discharge the
attachment for lack of jurisdiction to issue the same
because at the time the order of attachment was
promulgated (May 3, 1989) and the attachment writ issued
(May 11, 1989), the Trial Court had not yet acquired
jurisdiction over the cause and over the persons of the
defendants.

ISSUE: whether or not a writ of preliminary attachment may

issue ex parte against a defendant before acquisition of

HELD: Yes. Writ of preliminary attachment may issue ex

parte against a defendant even before acquisition of
jurisdiction of the latter's person by service of summons or
his voluntary submission to the Court's authority

RATIO:

1. There is ordinarily some appreciable interval of time

between the day of the filing of the complaint and the
day of service of summons
on
the
defendant.
During this period, different acts may be done by the
plaintiff or by the Court, which are of unquestionable
validity and propriety. Among these, for example, are
the appointment of a guardian ad litem, the grant of
authority to the plaintiff to prosecute the suit as a
pauper litigant, the amendment of the complaint by
the plaintiff as a matter of right without leave of court,
authorization by the Court of service of summons by
publication, the dismissal of the action by the plaintiff
on mere notice.
This, too, is true with regard to the provisional
remedies of preliminary attachment, preliminary
injunction, receivership or replevin. They may be

validly and properly applied for and granted even

before the defendant is summoned or is heard from.

2. A preliminary attachment may be defined as the

provisional remedy in virtue of which a plaintiff or
other party may, at the commencement of the action
or at any time thereafter, have the property of the
adverse party taken into the custody of the court as
security for the satisfaction of any judgment that may
be recovered.

3. It is incorrect to theorize that after an action or

proceeding has been commenced and jurisdiction over
the person of the plaintif has been vested in the
court, but before the acquisition of jurisdiction over
the person of the defendant (either by service of
summons or his voluntary submission to the court's
authority), nothing can be validly done by the plaintiff
or the court.
It is wrong to assume that the validity of acts done
during this period should be defendant on, or held in
suspension until, the actual obtention of jurisdiction
over the defendant's person. The obtention by the
court of jurisdiction over the person of the defendant
is one thing; quite another is the acquisition of
jurisdiction over the person of the plaintiff or over the
subject-matter or nature of the action, or the res or
object hereof.

4. No hearing is required on an application for

preliminary attachment, with notice to the defendant,
for the reason that this "would defeat the objective of
the remedy . . . (since the) time which such a hearing
would take, could be enough to enable the defendant
to abscond or dispose of his property before a writ of
attachment issues." Such a procedure would warn
absconding
debtors-defendants
of
the
commencement of the suit against them and the
probable seizure of their properties, and thus give
them the advantage of time to hide their assets,
leaving the creditor-plaintiff holding the proverbial
empty bag; it would place the creditor-applicant in
danger of losing any security for a favorable judgment
and thus give him only an illusory victory.

5. Whatever be the acts done by the Court prior to the

acquisition of jurisdiction over the person of
defendant, as above indicated issuance of
summons, order of attachment and writ of attachment
(and/or appointments of guardian ad litem, or grant of
authority to the plaintiff to prosecute the suit as a
pauper litigant, or amendment of the complaint by the
plaintiff as a matter of right without leave of
court 30 and however valid and proper they might
otherwise be, these do not and cannot bind and affect
the defendant until and unless jurisdiction over his
person is eventually obtained by the court, either by
service on him of summons or other coercive process
or his voluntary submission to the court's authority.

6. Hence, when the sheriff or other proper officer

commences implementation of the writ of attachment,
it is essential that he serve on the defendant not only
a copy of the applicant's affidavit and attachment
bond, and of the order of attachment, as explicity
required by Section 5 of Rule 57, but also the
summons addressed to said defendant as well as a
copy of the complaint and order for appointment of
guardian ad litem, if any, as also explicity directed by
Section 3, Rule 14 of the Rules of Court. Service of all
such documents is indispensable not only for the
acquisition of jurisdiction over the person of the
defendant, but also upon considerations of fairness, to
apprise the defendant of the complaint against him, of
the issuance of a writ of preliminary attachment and
the grounds therefor and thus accord him the
opportunity to prevent attachment of his property by
the posting of a counterbond in an amount equal to
the plaintiff's claim in the complaint.

IN SUMMARY: Writs of attachment may properly

issue ex parte provided that the Court is satisfied that
the relevant requisites therefor have been fulfilled by
the applicant, although it may, in its discretion,
require prior hearing on the application with notice to
the defendant; but that levy on property pursuant to
the writ thus issued may not be validly effected unless
preceded, or contemporaneously accompanied, by
service on the defendant of summons, a copy of the
complaint (and of the appointment of guardian ad

litem, if any), the application for attachment (if not

incorporated in but submitted separately from the
complaint), the order of attachment, and the plaintiff's
attachment bond.

09 BANCO ESPANOL-FILIPINO v. PALANCA

G.R. No. 11390; March 26, 1918; Street, J.
Doctrine
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. 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.
Facts
Engracio Palanca Tanquinyeng (Engracio) executed a
mortgage over various parcels of real property as
security for a debt he owed to El Banco Espanol-Filipino.
o His debt amounted to P218,294.10 and was drawing
interest at the rate of 8% per annum.
o The value of the property was P292,558, about
P75,000 in excess of the indebtedness.
o After the execution of the mortgage, he returned to
China, his native country, and there he died on
January 29, 1910.
On March 31, 1908, Banco Espanol instituted an action to
foreclose the mortgage. It gave notice to the defendant
by publication, who was a nonresident at the time,
pursuant to Sec 399, Code of Civil Procedure.
o The court further directed the clerk of court to deposit
in the post office in a stamped envelope a copy of the
summons and complaint directed to Engracio at his
last place of residence in China. Whether the clerk
complied with the order does not affirmatively appear.
o There is, however, an affidavit signed by an employee

of the attorneys for the bank showing that he had

deposited in the Manila post office a registered letter
addressed to Engracio, containing the other
documents.
Engracio not having appeared, judgment was taken by
the CFI against him by default.
o He was found indebted to the bank in the amount of
P249,355.32 with interest from March 31, 1908. He
was ordered to satisfy the amount on or before July 6,
1908, else the mortgaged property shall be exposed
to a public sale.
o He never made payment and so the court ordered the
sale of the property, which was bought by the bank
with P110,200.
On June 25, 1915, Vicente Palanca, as administrator of
the estate of Engracio, requested the court to set aside
the order of default, arguing that the order and the
judgment rendered were void because the court had
never acquired jurisdiction over the defendant or over
the subject of the action and yet it entered a personal
judgment against the absent debtor for the full amount of
the indebtedness.
o Lower court denied the application to vacate the
judgment.

Issues/Held/Ratio
1 W/N CFI acquired the necessary jurisdiction to enable it
to proceed with the foreclosure of the mortgage YES
a Jurisdiction may refer to (1) 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.
b 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, (ACTUAL SEIZURE)
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 (POTENTIAL JURISDICTION). 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.
c In American law, foreclosure of mortgage is said to be
a proceeding quasi in rem. Action in rem refer 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.
Actions quasi in rem are those where 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.
i 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. 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.
d 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. 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. Either way, the court is
exercising a jurisdiction over the property in a
proceeding essentially in rem.
e 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.
i 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. The property itself is the sole thing
which is impleaded and is the responsible object
which is the subject of the exercise of judicial
power.
ii The jurisdiction of the court in such case is based
exclusively on the power which, under the law, it
possesses over the property. No other relief can be
granted in this proceeding than such as can be
enforced against the property.
f 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. 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.
i 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. It is not
a personal judgment.
ii Whatever may be the effect in other respects of the
failure of the clerk to mail the proper papers to the
defendant in China, such irregularity could in no
wise impair or defeat the jurisdiction of the court,
for 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.
2 W/N the proceedings were conducted in such manner as
to constitute due process of law YES
a The requirement of due process in judicial proceedings
are as follows: (1) 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,
(3) defendant must be given an opportunity to be
heard, and (4) judgment must be rendered upon
lawful hearing.
b To be given opportunity to be heard, it is essential that
there must be some notification to the nonresident
owner prescribing the time within which his
appearance must be made. The requirement is that
the judge shall direct that the notice be deposited in
the mail by the clerk of the court, not that the notice
must be deposited in the mail. Notice by publication in

a newspaper is the only form of notice which the law

unconditionally requires. When the court made the
order to send notice by mail, the requirement was
complied with.
3 W/N Engracio was prejudiced by the irregularity NO
a There is a presumption that things have happened
according to the ordinary habits of life in the Code of
Civil Procedure. It is permissible to consider the
probability that the defendant may have received
actual notice of the proceedings from the unofficial
notice mailed by the bank attorneys. The defendant
voluntarily abandoned all though of saving his
property from the obligation which he had placed
upon it.
4 W/N there are grounds which support the proposal to
unsettle judicial proceedings NO
a Palanca argues that the clerk failed to send the notice
by post as required by the order of the court.
However, 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. Every act of a court of general jurisdiction
shall be presumed to have been rightly done.
5 W/N a motion to vacate judgment is admissible as a
proceeding to obtain relief in this case NO
a The proper remedy was by an original proceeding
(Secs 113 and 513 of the Code of Civil Procedure) and
not by motion to vacate judgment.
Judgment affirmed.
Dissent (Malcolm, J): The defendant received no notice
and had no opportunity to be heard, certainly there was no
due process of law.

10 SIEVERT v. CA (1988)
Feliciano, J | Dec 22, 1988
FACTS:
Alberto Sievert, a citizen and resident of the
Philippines received by mail a Petition for Issuance of
a Preliminary Attachment filed with RTC Manila
o had not previously received any summons and
any copy of a complaint against him
Come hearing, petitioner's counsel went before the
trial court and entered a special appearance for the
limited purpose of objecting to the jurisdiction of the
court
o petitioner prayed for denial for lack of
jurisdiction over the person of the petitioner
(defendant therein) since no summons had been
served upon him on the main case
RTC denied
o RoC 57.1, it is clear that a plaintiff or any proper
party may "... at the commencement of the
action or at any time thereafter, have the
property of the adverse party attached as the
security for the satisfaction of any judgment ..."
This rule would overrule the contention that this
Court has no jurisdiction to act on the
application.
Same day, petitioner filed a Petition for certiorari with
CA
o CA dismissed
o Rule 57.1; Moran, citing American jurisprudence
on this point, stated thus: "Commencement of

action. Action is commenced by filing of the

complaint, even though summons is not issued
until a later date." Thus, a writ of preliminary
attachment may issue upon filing of the
complaint even before issuance of the summons
Petition for Review on Certiorari before the SC

ISSUE: WoN a court which has not acquired jurisdiction over

the person of the defendant in the main case, may bind
such defendant or his property by issuing a writ of
preliminary
attachment
(NO)
HELD: petition granted, CA reversed

There is no question that a writ of preliminary

attachment may be applied for a plaintiff "at the
commencement of the action or at any time
thereafter" in the cases enumerated in RoC 57.1
The critical time which must be identified in the case
at bar is, when the trial court acquires authority under
law to act coercively against the defendant or his
property in a proceeding in attachment. That critical
time is the time of the vesting of jurisdiction in the
court over the person of the defendant in the main
case.
o Attachment is an ancillary remedy. It is not
sought for its own sake but rather to enable the
attaching party to realize upon relief sought and
expected to be granted in the main or principal
action.

o A court which has not acquired jurisdiction over

the person of defendant, cannot bind that
defendant whether in the main case or in any
ancillary proceeding
Notice of the separate attachment petition is not
notice of the main action.
o Jurisdiction whether ratione personae or ratione
materiae in an attachment proceeding is
ancillary to jurisdiction ratione personae or
ratione materiae in the main action against the
defendant.
o If a court has no jurisdiction over the subject
matter or over the person of the defendant in
the principal action, it simply has no jurisdiction
to issue a writ of preliminary attachment against
the defendant or his property.

CAB: It is not disputed that neither service of

summons with a copy of the complaint nor voluntary
appearance of petitioner Sievert was had in this case.
Want of jurisdiction of the trial court to proceed in the
main case against the defendant is quite clear.
The requirements of the Rules of Court for issuance of
preliminary attachment must be strictly and faithfully
complied with in view of the nature of this provisional
remedy:
o Salas v. Adil: a rigorous remedy which exposes
the debtor to humiliation and annoyance, such
[that] it should not be abused as to cause
unnecessary prejudice