G.R. No.
L-40491 May 28, 1975 The aforecited motions of the petitioner and of the corporation were set for
SEGUNDO AMANTE, petitioner,
vs.
HON. DELFIN VIR. SUNGA, in his capacity as Presiding Judge of the Court
of First Instance of Camarines Sur, Branch No. I, and VIGAAN
AGRICULTURAL DEVELOPMENT CORPORATION, respondents.
Pedro N. Belmi for petitioner.
Eriberto J. Fante for respondents.
ANTONIO, J.:ñé+.£ªwph!1
This case raises in issue the validity of the Order dated February 14, 1975 of
respondent Judge of the Court of First Instance of Camarines Sur, Branch I,
setting aside its Order of December 6, 1974, granting petitioner an extension
of fifteen (15) days from December 9, 1974 within which to file his answer to
the complaint in Civil Case No. 7799 (Vigaan Agricultural Development
Corporation vs. Segundo Amante) and declaring the petitioner in default,
notwithstanding the fact that said party had already filed his answer.
It appears that the petitioner, on December 2, 1974, filed a written motion with
the trial court requesting for an extension of fifteen (15) days from December
9, 1974, within which to file his answer. Although it is not disputed that a copy
of said motion was furnished the counsel for the plaintiff, the said pleading
appears to have been addressed only to the Clerk of Court, with the request
that said official submit the motion to the Court for its consideration and
resolution immediately upon receipt thereof.
On December 6, 1974, the trial court granted, the motion. Petitioner, however,
on December 10, 1974, filed a "Motion for Bill of Particulars". Copy of this
motion was appropriately addressed to the counsel of plaintiff, informing him
that petitioner will submit the said motion to the, court for its consideration
and resolution at 8:30 a.m. on December 23, 1974.
In the meantime, on December 11, 1974, private respondent corporation, as
plaintiff in said case, filed a motion to set aside the trial court's Order of
December 6, 1974, alleging that the notice in petitioner's motion of December
2, 1974 was defective for non-compliance with Section 5 of Rule 15 of the
Revised Rules of Court, and praying that the defendant be declared in default.
hearing on February 7, 1975. On said date, after the respondent corporation
showed to the petitioner its Articles of Incorporation, the latter agreed to
withdraw his Motion for Bill of Particulars, leaving the private respondent's
motion for resolution by the Court.
On the same date (February 7, 1975.), petitioner filed his answer with
counterclaim to the complaint. The court a quo, however, on February, 14,
1975, on the basis of its opinion that the notice in the motion of petitioner for
the extension of the period within which to file an answer was defective
because of its alleged failure to comply with the requirements of Section 5 of
Rule 15 of the Revised Rules of Court, set aside its Order of December 6, 1974,
declared petitioner in default and authorized the Clerk of Court to receive the
evidence of the plaintiff.
In view of the legal issue involved, this Court considered the Comment of
respondent corporation as its Answer. As the matter was already amply
discussed in the pleadings, this case was deemed submitted for decision.
We grant certiorari and set aside the trial court's Order of February 14, 1975.
1. The motion for extension of time within which a party may plead is not a
litigated motion where notice to the adverse party is necessary to afford the
latter an opportunity to resist the application,1 but an ex parte motion "made to
the court in behalf of one or the other of the parties to the action, in the absence
and usually without the knowledge of the other party or parties."2 As "a
general rule, notice of motion is required where a party has a right to resist the
relief sought by the motion and principles of natural justice demand that his
rights be not affected without an opportunity to be heard..." 3
It has been said that "ex parte motions are frequently permissible in procedural
matters, and also in situations and under circumstances of emergency; and an
exception to a rule requiring notice is sometimes made where notice or the
resulting delay might tend to defeat the objection of the motion." 4
Section 1 of Rule 11 of the Revised Rules of Court authorizes the trial court to
permit the submission of an answer even after the time fixed in the rules for
its presentation. The granting of extension to plead is a matter addressed to
the sound discretion of the court.5 In some cases the court allowed the
defendant to file his answer "even after the time fixed for their presentation."6
Thus We have set aside orders of default where defendant's failure to answer
on time was excusable.7

In the case at bar, respondent private corporation was not deprived of any
substantial right by reason of the alleged defect of notice in petitioner's motion
praying for an extension of the time to plead. There are motions that may be
heard and granted ex parte, and a motion for extension of time to file an answer
belongs to such class.8 It was, therefore, error for the court a quo to set aside its
Order granting extension to petitioner within which to file his pleading.

2. Moreover, petitioner had filed a Motion for Bill of Particulars on December

10, 1974, and under the Rules "after service of the bill of particulars ... or after
denial of his motion, the moving party shall have the same time to serve his
responsive pleading, if any is permitted by these rules, as that to which he was
entitled at the time of serving his motion, but not less than five (5) days in any
event." (Section 1 [b], Rule 12, Revised Rules of Court.) The pendency of the
motion for a bill of particulars, therefore, interrupts the period within which
to file a responsive pleading, and movant should have, after notice of the
denial of his motion, the same time to serve his answer "as that to which he
was entitled at the time of serving his motion." 9

It is true that petitioner, on February 7, 1975, withdrew his Motion for a Bill of
Particulars, but on the same date he also filed his answer.

In the attendant circumstances, We cannot perceive how the interests of justice

was served and promoted by the precipitate action of the trial court. A default
judgment does not pretend to be based on the merits of the controversy. Its
existence is justified by expediency. It may, however, amount to a positive and
considerable injustice to the defendant. The possibility of such serious
consequences necessarily requires a careful examination of the circumstances
under which a default order was issued. And when no real injury would result
to the interests of the plaintiff by the reopening of the case, the only objection
to such action would, therefore, be solely on a technicality. On such an infirm
foundation, it would be a grievous error to sacrifice the substantial rights of a
litigant. For the rules should be liberally construed in order to promote their
objective in assisting the parties in obtaining just, speedy and inexpensive
determination of their cases.

WHEREFORE, the default order of February 14, 1975, as well as the Order of
March 14, 1975, denying petitioner's motion for reconsideration, is hereby set
aside, and this case is ordered remanded to the court of origin for further
proceedings. Costs against private respondent.
G.R. No. L-26768 October 30, 1970
FAUSTINO GOJO, petitioner-appellant,
vs.
SEGUNDO GOYALA and ANTONINA ALMOGUERA, respondents-
appellees.
Fernando P. Gerona, Sr. for petitioner-appellant.
Agustin Frivaldo for respondents-appellees.
BARREDO, J.:.
Appeal from the favorable decision of the Court of First Instance of Sorsogon
on the counterclaim of respondents (herein appellees) in its Civil Case No.
1657-84 — the complaint (petition) of therein petitioner (herein appellant)
having beet previously dismissed, without prejudice, for his failure to submit
an amended complaint as required of him in the court a quo's earlier order.
The record shows that on 26 May 1951, appellee Segundo, Goyala together
with his now deceased wife Antonina Almoguera, who was also named
respondent or defendant in the complaint or petition in the court below, sold
to appellant by a "Deed of Pacto de Retro Sale" a certain parcel of agricultural
land having an area of approximately two and one-half hectares for P750.00,
the repurchase to be made, according to the deed, within one year. It also
appears from said deed that on July 4, 1951, the vendee paid another P100.00
as addition to the purchase price. About ten (10) years after the execution of
the said document, or on April 12, 1961, to be precise, the vendee filed with
the Court of First Instance of Sorsogon the present case against the vendors by
way of a petition for consolidation of ownership of the land described and
involved in the "Deed of Pacto de Retro Sale." In his petition, the vendee, herein
appellant, alleged, inter alia, that the date for repurchase, May 26, 1952, having
expired and the vendors not having been able to repurchase the same under
the terms and conditions of the agreement, the ownership over the land
involved had become consolidated in him; and that for the purpose of
recording in the Registry of Property the said consolidation of ownership, it
was necessary that a judicial order be issued to that effect and accordingly
prayed for such an order.
On May 26, 1961, appellee Segundo Goyala filed an opposition or answer to
the petition. He therein alleged that his wife Antonina Almoguera had died in
the year 1959 and denied the allegation in the petition regarding thepacto de
retro sale, "the fact of the matter being," according to him, "that on May 26,
1951, the respondents obtained a cash load of P750.00 from the petitioner
payable in one year without interest; that only on July 26, 1951, Dolores
Goyala, daughter of the respondents, obtained from the petitioner the sum of
P50.00 to be added and credited to the account of the respondents; and then
on August 25, 1951, the said Dolores Goyala received from the petitioner
another amount of P10.00 to be added to and credited to the account of the
respondents, (so that) the total loan of the respondents from the petitioner
aggregates P810.00 Philippine Currency" and that to guarantee the payment
of the said loan, the respondents executed a mortgage in favor of the petitioner
on a parcel of coconut land described in Annex A of the petition, hence, altho
the deed was executed or drawn in the form of a pacto de retro sale, the true
and real intention of the parties thereto was that the same was a mere
mortgage to secure the payment of the original loan of P750.00 together with
the additional amount received thereafter, making a total loan of P810.00,
payable within, one year without interest. He further alleged that in the
evening of May 26, 1952, he and his wife went to the house of the petitioner
and tendered to him the sum of P810.00 to pay the debt, but said petitioner
refused to receive the same and to cancel the document of mortgage, Annex
A. The said appellee also reiterated by way of counterclaim the foregoing
allegations of his answer and prayed thus:.
WHEREFORE, the respondent Segundo Goyala respectfully
prays this Honorable Court to dismiss the petition and render
judgment in favor of the respondents as follows:.
(a) Ordering the petitioner to receive the sum
of P810.00 tendered or deposited by the
respondents in full settlement of their debts
to him;
(b) Declaring the document marked Annex A
of the petition to be mortgage and not a pacto
de retro sale, and ordering the same cancelled
and with no more force and effect;
(c) Ordering the petitioner to pay the
respondents the sum of P1,800.00 per annum
beginning May 26, 1951 until the final
 termination of this case as the reasonable
monetary value of the products for the said
property, and from this amount, there should
be deducted however, the corresponding
legal interest annually on said loans; and
(d) In case, however, of the remote possibility
that this Court should find the said
instrument (Annex A) to be a true pacto de
retro sale, and not a mere mortgage, it is
hereby prayed that the petitioner be ordered
to execute a deed of resale or repurchase of
said property in favor of the respondents in
accordance with Art. 1606 third paragraph of
the Civil Code."
On December 1, 1962, counsel for respondent Goyala filed a manifestation
informing the trial court that the named defendant (respondent) Antonina
Almoguera was already dead, she having died at Labo, Camarines Norte on
March 27, 1959, and that her surviving nearest kin are her children, namely:
Leonor, Pedro, Juliana, Dolores, Valentina, Soledad, Penya, Mamerta,
Salvador, Genesa, Felipe, Elegio — all surnamed Goyala — with residences at
Bulan, Sorsogon. Hearing was had on that manifestation, after which the trial
court, under date of December 4, 1962, issued the following order:.
As prayed for in the manifestation of Atty. Agustin Frivaldo
counsel for the defendant, dated December 1, 1962, on the
ground stated therein, the counsel for the plaintiff is hereby
required to submit an amended Complaint substituting
therein for one of the defendants, Antonina Almoguera, now
deceased her successors in interest as party defendants,
within the reglementary period.
Subsequently, on January 26, 1963, appellee Goyala filed a motion to dismiss
the complaint or petition on the ground that notwithstanding the lapse of 43
days after appellant's receipt of a copy of the above-quoted order of the trial
court, said appellant had failed and neglected to submit the amended
complaint required of him. The motion was opposed by appellant; and the
trial court, resolving the incident, issued the following order on February 15,
1963:.
The matter under consideration is the motion to dismiss filed
by the defendants on the ground that the plaintiff has failed
and neglected to submit the amended complaint as required
in the order of this Court dated December 4, 1962, which the
plaintiff has received on December 18, 1962. From December
13, 1962 when the motion to dismiss was filed, 43 days have
elapsed. On February 6, 1963 when the plaintiff has again
failed to file together with said opposition the required
amended complaint, and although plaintiff has requested for
a reasonable extension of time within which to file the said
pleading, it is regretable to state that up to the present has
neglected to do so.
WHEREFORE, the complaint is hereby dismissed without
prejudice.
Thereafter, on July 10, 1963, appellee filed a motion to declare appellant in
default in respect of said appellee's counterclaim, contained in his answer
(opposition) to the dismissed complaint petition) of appellant. This motion
was granted by the trial court in its order of July 11, 1963, to wit:.
Upon petition of the counsel for the defendant Segundo
Goyala to declare the plaintiff in default on the ground of
failure on the part of the plaintiff to answer the counterclaim
filed by said defendant Segundo Goyala within the
reglementary period, despite the fact that the plaintiff's
counsel was duly served with a copy thereof, and the
plaintiff's complaint was already dismissed by this Court in
its order of February 15, 1963 on the ground of neglect to
submit the amended complaint as required in the Court order
of December 4, 1962, the plaintiff is hereby declared in default
on the counterclaim filed by said defendant Segundo Goyala.
Let the defendant Segundo Goyala submit his evidence before
the Clerk of Court, who is hereby commissioned to receive the
same.
As directed in the order above-quoted, the Clerk of Court received the
evidence of appellee in respect of his counterclaim and, thereafter, on
November 15, 1963 the trial court rendered favorable judgment on appellee's
counterclaim. The pertinent portions of the decision referred to read thus:.
It appears that on May 26, 1951, respondents obtained a loan
of P750.00 from the petitioner. To secure the loan, respondents
executed a document, which was made a Deed of Pacto de
Retro Sale (Exh. "A"), on suggestion of petitioner to exempt
himself from liabilities under the Usury Law. Dolores Goyala,
one of the daughters of respondents, obtained an additional
loan of P50.00 on July 26, 1951, (Exh. "A-1") and another
P10.00 on August 19, 1951, (Exh. "A-3") from the petitioner
which amounts were duly authorized and acknowledged by
respondent Segundo Goyala. In the late afternoon of May 26,
1952, the last day to redeem the property, Segundo Goyala,
tendered the amount of P810.00 to herein petitioner in
complete payment of the loan and to release the property
securing the said loan, but was refused because it was already
night time, and was advised instead to return the following
day. When Segundo Goyala returned the following day to
redeem the property he was told by petitioner that the period
to redeem has already expired. Segundo Goyala testified
further that he tried no less than three times to redeem the
property but each time petitioner refused the redemption
money.
It appears further that the petitioner is in possession of the
land since May 26, 1951, after the execution of Exhibit "A" up
to the present time and had appropriated to himself the
products during the period. It is shown further that the land
is a productive coconut land and has a fair market value of
P5,000.00 with an annual yield of P1,800.00.
The respondents are not however entitled to be reimbursed of
the value of the products obtained by the petitioner who acted
in the belief that the agreement was a Pacto de Retro Sale
which turned out to be otherwise as the Court now so
declares.
WHEREFORE, in view of the foregoing the Court hereby
declares the Deed of Pacto de Retro Sale (Exh. "A") an
equitable mortgage and respondents Segundo Goyala and the
heirs of Antonina Almoguera are allowed to redeem the
property; orders Faustino Gojo to withdraw the amount of
P810.00 deposited with the Clerk of Court in full settlement of
the loan, and hereby cancels and declares without force and
effect the aforementioned Deed of Pacto de Retro Sale
executed by the spouses Segundo Goyala and Antonina
Almoguera in favor of Faustino Gojo. Without costs.
The above-quoted decision was subsequently amended in an order of
December 19, 1963, as follows:.
It appearing that in the dispositive part of the decision there
was no directive to restore the possession to the defendants
upon execution, the dispositive portion of the said decision is
hereby amended to include therein an additional directive
ordering the plaintiff to deliver and restore the possession of
the land in question to the defendants.
Dissatisfied with the decision referred to, appellant appealed to the Court of
Appeals which upon its finding that the said appeal involves purely questions
of law, certified the same to this Court for resolution.
In his brief, appellant assigns the following errors allegedly committed by the
trial court:.
1. THE LOWER COURT ERRED IN DECLARING
PLAINTIFF IN DEFAULT WITH RESPECT TO
DEFENDANT'S COUNTERCLAIM;
2. THE LOWER COURT ERRED IN DEPUTIZING OR
COMMISSIONING THE CLERK OF COURT TO RECEIVE
THE EVIDENCE OF THE DEFENDANT SEGUNDO
GOYALA;
3. THE LOWER COURT ERRED IN RENDERING
JUDGMENT IN FAVOR OF THE RESPONDENT SEGUNDO
GOYALA AND THE HEIRS OF ANTONINA ALMOGUERA
ALLOWING THEM TO REDEEM THE LAND IN
QUESTION FROM THE PETITIONER FAUSTINO GOJO
FOR THE SUM OF P810.00.
The thrust of appellant's argument in respect of the first assignment of error is
to the effect that there is no occasion for the trial court to declare him in default
in respect of appellee's counterclaim in this case, for the reasons that: (a) the
said counterclaim "falls within the category of compulsory counterclaim"
which does not call for an independent answer as the complaint already denies
its material allegations; and (b) the dismissal of the complaint in this case
without prejudice carried with it the dismissal of the said counterclaim.
The first assignment of error of appellant is well taken. It is now settled that a
plaintiff who fails or chooses not to answer a compulsory counterclaim may
not be declared in default, principally because the issues raised in the
counterclaim are deemed automatically joined by the allegations of the
complaint.1 In the instant case, there can be no doubt that appellant's
counterclaim was a compulsory one in as much as it arises out of or is
necessarily connected with transaction or occurrence that is the subject matter
of the complaint; the complaint alleged that the right of appellee to repurchase
the property in question had already expired and asked for an order of
consolidation; on the other hand, appellant's counterclaim was for reformation
of the deed claiming that it was only a mortgage. Thus the counterclaim was
clearly inconsistent with and directly controverted; the whole theory and basic
allegations of the complaint. In consequence, appellant's complaint stood as
the answer to appellee's counterclaim; hence, the incorrectness of the trial
court's order declaring the appellant in default in regard to said counterclaim
is evident.
Regarding the dismissal of petitioner's complaint, We hold also, that the trial
court committed reversible error in ordering the same. It is true that under
Section 3 of Rule 17, a complaint may be dismissed for failure to prosecute if
the plaintiff fails to comply with an order of the court, but it is obvious that
the said provision cannot apply when the order supposedly ignored is a void
one, as in this case. Here, the trial court ordered petitioner to amend the
complaint only because it was informed that one of the defendants had died,
the court directing that the plaintiff should name the heirs of the deceased as
defendants in lieu of said deceased. Such an order runs counter to the ruling
of this Court in Caseñas vs. Resales, et al. 2 which is squarely applicable to the
Situation herein obtaining. In that case, We held:.
When certain of the parties to Civil Case No. 261 died and due
notice thereof was given to the trial court, it devolved on the
said court to order, not the amendment of the complaint, but
the appearance of the legal representatives of the deceased in
accordance with the procedure and manner outlined in Rule
3, Section 17 of the Rules of Court, which provide:.
"SECTION 17. Death of party. — After a party
dies and the claim is not thereby
extinguished, the court shall order, upon
proper notice, the legal representative of the
deceased to appear and to be substituted for
the deceased, within a period of thirty (30)
days, or within such time as may be granted.
If the legal representative fails to appear
within said time, the court may order the
opposing party to procure the appointment
of a legal representative of the deceased
within a time to be specified by the court, and
the representative shall immediately appear
for and on behalf of the interest of the
deceased. The court charges involved in
procuring such appointment, if defrayed by
the opposing party, may be recovered as
costs. The heirs of the deceased may be
allowed to be substituted for the deceased,
without requiring the appointment of an
executor or administrator and the court may
appoint guardian ad litem for the minor
heirs."
In the case of Barrameda vs. Barbara, 90 Phil. 718, this Court
held that an order to amend the complaint, before the proper
substitution of parties as directed by the aforequoted rule has
been effected, is void and imposes upon the plaintiff no duty
to comply therewith to the end that an order dismissing the
said complaint, for such non-compliance, would similarly be
void. In a subsequent case, Ferriera, et al. vs. Gonzales, et
al., G.R. No. L-11567, July 17, 1958, this Court affirmed a
similar conclusion on the determination that the continuance
of a proceedings during the pendency of which a party
thereto dies, without such party having been validly
substituted in accordance with the rules, amounts to a "lack of
jurisdiction".
The facts of this case fit four square into the Barrameda case
above-cited, save for the minor variance that in the former
two of the litigants died while only one predeceased the case
in Barrameda. Here, as in Barrameda, during the pendency of
(the) civil case, notice was given to the trial court of the deaths
of one of the plaintiffs and one of the defendants in it. Instead
of ordering the substitution of the deceased's legal
representatives in accordance with Rule 3, Sec. 17 of the Rules
 of Court, the trial court directed the surviving plaintiff to
amend the complaint and when the latter failed to comply
therewith, the said court dismissed the complaint for such
non-compliance. We must hold, therefore, as We did
in Barrameda that inasmuch as there was no obligation on the
part of the plaintiff-appellant herein to amend his complaint
in Civil Case No. 261, any such imposition being void, his
failure to comply with such an order did not justify the
dismissal of his complaint. Grounded as it was upon a void
order, the dismissal was itself void." (To the same effect, see
World Wide Insurance & Surety Co. v. Jose, etc., et al., 96 Phil.
45, 50).

Besides, in line with the principle underlying Sec. 2 of Rule 17, it is not proper
to dismiss a complaint when a compulsory counterclaim has been pleaded by
defendant. The reason is obvious. Under the cited provision, the right of the
plaintiff to move for the dismissal of an action after the defendant has filed his
answer is qualified by the clause providing that: "If a counterclaim has been
pleaded by a defendant prior to the service upon him of the plaintiff's motion
to dismiss, the action shall not be dismissed against the defendant's objection
unless the counterclaim can remain pending for independent adjudication by
the court." With this limitation, the power of the court to dismiss the complaint
upon motion of plaintiff, which is usually without prejudice, is not purely
discretionary.3 The purpose is to avoid multiplicity of suits over the same
matter which would necessarily entail unnecessary expense and, what is
worse, possibility of conflict and inconsistency in the resolution of the same
questions. The same considerations would obtain, if the defendant were the
one to ask for dismissal. The best interests of justice require that conflicting
claims regarding the same matter should be decided in one single proceeding.
Dismissing the complaint without prejudice, as the trial court has done in this
case, albeit upon motion of the defendant, will not prevent the undesirable
multiplication of suits and reventilation of the same issues in the subsequent
action that may be filed by virtue of the reservation made in the disputed order
of dismissal.

Having arrived at the foregoing conclusions, it becomes unnecessary to

discuss the other two assigned errors.

WHEREFORE, the decision appealed from is set aside and this case is
remanded to the court below for further proceedings in consonance with the
above opinion, with costs against appellee.
 Vasquez was in Manila. Vasquezs mother returned the documents to the clerk
DOLORES MONTEFALCON & LAURENCE G.R. No. 165016 of court, who informed the court of the non-service of summons.[6]
MONTEFALCON,
Petitioners, Present:
Petitioners then filed a motion to declare Vasquez in default. The court denied
it for lack of proper service of summons.[7]
QUISUMBING, J., Chairperson,
TINGA,
- versus - REYES,* In 2000, the court issued an alias summons on Vasquez at 10 Int. President
LEONARDO-DE CASTRO, and** Garcia St., Zone 6, Signal Village, Taguig, Metro Manila upon petitioners
BRION, JJ. motion. Albeit a Taguig deputy sheriff served it by substituted service on
Vasquezs caretaker Raquel Bejer, the sheriffs return incorrectly stated Lazaro
RONNIE S. VASQUEZ, Promulgated: as Vasquezs surname.[8]
Respondent.
June 17, 2008
Another alias summons[9] was issued, also received by Bejer. The
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
second sheriffs return states:

DECISION THIS IS TO CERTIFY THAT on the 19th day of July

2000 the undersigned sheriff caused the service of summons
QUISUMBING, J.: issued by the court in the above-entitled case together with
the copy of the complaint and annexes attached thereon upon
defendant RONNIE S. VASQUEZ, by substituted service,
This petition for review assails the September 29, 2003 Decision[1] and thru his caretaker, RAQUEL BEJER, a person of sufficient
the July 19, 2004 Resolution[2] of the Court of Appeals in CA-G.R. CV No. discretion, who acknowledged the receipt thereof at No. 10
71944, which had reversed the May 28, 2001 Decision[3] of the Regional Trial Int. President Garcia St. Zone 6, Signal Village, Taguig, Metro
Court (RTC), Branch 19, of Naga City in Civil Case No. RTC 99-4460. Manila, as evidenced by her signature appearing at the lower
portion of the original copy of summons.
The facts culled from the records are as follows.
WHEREFORE, said summons is hereby returned to
the court of origin DULY SERVED for its records and
In 1999, petitioner Dolores P. Montefalcon filed a Complaint [4] for information.
acknowledgment and support against respondent Ronnie S. Vasquez before
the RTC of Naga City.Alleging that her son Laurence is the illegitimate child Taguig for Naga City, July 19, 2000
of Vasquez, she prayed that Vasquez be obliged to give support to co-
petitioner Laurence Montefalcon, whose certificate of live birth he signed as (SGD.)
father.[5] According to petitioners, Vasquez only gave a total of P19,000 as ERNESTO G. RAYMUNDO,
support for Laurence since Laurence was born in 1993. Vasquez allegedly also JR.,
refused to give him regular school allowance despite repeated Deputy Sheriff
demands. Petitioner Dolores added that she and Vasquez are not legally MTC BR 74
married, and that Vasquez has his own family. Taguig, Metro Manila[10]

A sheriff tried to serve the summons and complaint on Vasquez in On petitioners motion, the trial court declared Vasquez in default for
Aro-aldao, Nabua, Camarines Sur. Vasquezs grandfather received them as failure to file an answer despite the substituted service of summons. Vasquez
was furnished with court orders and notices of the proceedings at his last
known address, but these were returned as he had allegedly moved to another WHEREFORE, based on the foregoing premises, the instant
place and left no new address.[11] appeal is GRANTED. The appealed May 28, 2001 Decision of
the Regional Trial Court of Naga City in Civil Case No. RTC
99-4460 is hereby NULLIFIED and SET
In 2001, the court granted petitioners prayers, explaining that they had no ill-
ASIDE. Accordingly, let this case be REMANDED to the
motive and that Dolores gave a truthful testimony. The court added that
court a quo for further proceedings.
Vasquez admitted the truth of the allegations by his silence. It further
explained that Laurences certificate of live birth, being a public document, is
SO ORDERED.[14]
irrefutably a prima facie evidence of illegitimate filiation. The trial court
decreed:
WHEREFORE, by preponderant evidence, judgment is Petitioners argued in their motion for reconsideration[15] that any attempt at
hereby rendered in favor of the plaintiffs Dolores personal service of summons was needless as Vasquez already left for
Montefalcon and her minor child Laurence Montefalcon and abroad. The appellate court, however, denied the motion. Hence, this petition.
against defendant Ronnie S. Vasquez who is hereby ordered
to:
Petitioners assign two appellate court errors:
1. Acknowledge plaintiff Laurence Montefalcon as his
illegitimate child with Dolores Montefalcon; I.
THE COURT OF APPEALS ERRED IN HOLDING THAT
2. Give support to the said minor in the amount of FIVE
THE RESPONDENT IN THIS CASE WAS NOT VALIDLY
THOUSAND (P5,000.00) PESOS monthly commencing on June 1,
SERVED WITH THE SUMMONS AND COMPLAINT IN
1993, the past support for eight (8) years in the amount of FOUR
CIVIL CASE NO. RTC 99-4460; AND THAT
HUNDRED EIGHTY THOUSAND (P480,000.00) PESOS less the
amount of NINETEEN THOUSAND (P19,000.00) PESOS
II.
previously given, shall be paid promptly and the monthly support
of FIVE THOUSAND (P5,000.00) PESOS shall be paid not later THE COURT OF APPEALS ERRED IN ANNUL[L]ING AND
than the end of each month beginning on July 31, 2001 and every SETTING ASIDE THE TRIAL COURTS DECISION (ANNEX
end of the month thereafter as prayed for in the complaint; and B) FOR LACK OF JURISDICTION.[16]

3. Pay the sum of TEN THOUSAND (P10,000.00) PESOS and

THREE THOUSAND (P3,000.00) PESOS as attorneys and
appearance fees, respectively, and litigation expenses of ONE
THOUSAND (P1,000.00) PESOS.
SO ORDERED.[12]
Petitioners justify the validity of substituted service as Vasquez had left as
overseas seafarer when the sheriff served the summons on July 19, 2000 in
Taguig. Noting that Vasquezs seamans book indicated that he left the country
on January 24, 2000 and came back on October 12, 2000, they criticize the
appellate court for anchoring its rulings on mere technicality.

In the same year, Vasquez surfaced. He filed a notice of appeal to which Vasquez counters that because he was abroad, service of summons should
petitioners opposed. Appeal was granted by the court.[13] Before the appellate have been personal or by publication as substituted service is proper only if a
court, he argued that the trial court erred in trying and deciding the case as it defendant is in the country. Vasquez also added that the sheriffs return did
never acquired jurisdiction over his person, as well as in awarding P5,000-per- not state that he exerted efforts to personally serve the summons.[17]
month support, which was allegedly excessive and exorbitant. The appellate
court noted that the service of summons on Vasquez was defective as there
was no explanation of impossibility of personal service and an attempt to
effect personal service, and decreed as follows:
In their reply, petitioners insist that a substituted service is the normal method therein, or the property of the defendant has been attached
if one is temporarily away from the country as personal service abroad or by within the Philippines, service may, by leave of court, be
publication are not ordinary means of service.[18] effected out of the Philippines by personal service as under
section 6; or by publication in a newspaper of general
circulation in such places and for such time as the court may
Simply put, the issues now for resolution are: (1) whether there is a valid
order, in which case a copy of the summons and order of the
substituted service of summons on Vasquez to clothe the trial court with
court shall be sent by registered mail to the last known
jurisdiction over his person; and (2) whether he is obliged to give support to
address of the defendant, or in any other manner the court
co-petitioner Laurence.
may deem sufficient. Any order granting such leave shall
specify a reasonable time, which shall not be less than sixty
To acquire jurisdiction over the person of a defendant, service of (60) days after notice, within which the defendant must
summons must be personal,[19] or if this is not feasible within a reasonable answer.
time, then by substituted service.[20] It is of judicial notice that overseas Filipino
seafarers are contractual employees. They go back to the country once their
contracts expire, and wait for the signing of another contract with the same or Because Section 16 of Rule 14 uses the words may and also, it is not
new manning agency and principal if they wish. It is therefore common mandatory. Other methods of service of summons allowed under the Rules
knowledge that a Filipino seaman often has a temporary residence in the may also be availed of by the serving officer on a defendant-seaman.
urban areas like Metro Manila, where majority of the manning agencies hold
offices, aside from his home address in the province where he originates. In
Ideally, Vasquez must be personally served summons. But was personal
this case, respondent Vasquez hails from Camarines Sur but he has lived
service of summons practicable? Conversely, was substituted service of
in Taguig City when the complaint was filed. Notice may then be taken that
summons justified?
he has established a residence in either place.Residence is a place where the
person named in the summons is living at the time when the service was made,
even though he was temporarily abroad at the time. As an overseas seafarer, Obviously, personal service of summons was not practicable since the
Vasquez was a Filipino resident temporarily out of the country. Hence, service defendant was temporarily out of the country. To proceed with personal
of summons on him is governed by Rule 14, Section 16 of the Rules of Court: service of summons on a defendant-seaman who went on overseas contract
work ─ would not only be impractical and futile ─ it would also be absurd.
SEC. 16. Residents temporarily out of the Philippines. ─ When any
action is commenced against a defendant who ordinarily
The impossibility of prompt personal service was shown by the fact that the
resides within the Philippines, but who is temporarily out of
Naga City-based sheriff purposely went to a barrio in Camarines Sur to serve
it, service may, by leave of court, be also effected out of
the summons personally on Vasquez. When service of summons failed, said
the Philippines, as under the preceding section. (Emphasis
sheriff ascertained the whereabouts of Vasquez. Upon being informed that
supplied.)
Vasquez was in Manila, the Naga court commissioned a Taguig City-based
sheriff to serve the summons. Both the Naga and Taguig sheriffs inquired
about Vasquezs whereabouts, signifying that they did not immediately resort
The preceding section referred to states:
to substituted service. There was no undue haste in effecting substituted
SEC. 15. Extraterritorial service.─ When the defendant does not
service. The fact that the Naga court allowed a reasonable time to locate
reside and is not found in the Philippines, and the action
Vasquez to as far as Taguig shows that there was indeed no precipitate haste
affects the personal status of the plaintiff or relates to, or the
in serving the summons.
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 In this case, we agree that the substituted service in Taguig was valid
or in part, in excluding the defendant from any interest and justified because previous attempts were made by the sheriffs to serve the
summons, but to no avail. Diligent efforts were evidently exerted in the
conduct of the concerned sheriffs in the performance of their official
duty. Also, the person who received the alias summons was of suitable age
and discretion, then residing at Vasquezs dwelling. There is no quarrel that it
was really Vasquezs residence, as evidenced by his employment contract,
executed under the supervision and authority of the Philippine Overseas
Employment Administration (POEA). Vasquez cannot deny that in his
contract of employment and seafarers information sheet, both bearing POEAs
letterhead, his address in Metro Manila was what was correctly mentioned in
the alias summons that Bejer received. She must have informed Vasquez one
way or another of the suit upon his return in October 2000 after finishing his
nine-month contract with Fathom Ship Management.
Thus, it is reasonable to conclude that he had enough time to have the
default order set aside. The default judgment was rendered on May 28,
2001. He also had enough time to file a motion for reconsideration. But he did
nothing. The interregnum between the first but failed attempt at personal
service by the RTC of Naga City in Vasquezs place in Camarines Sur to the
final substituted service in Metro Manila by a Taguig RTC sheriff was almost
eight months, a reasonable time long enough to conclude that personal service
had failed and was futile.
Montalban v. Maximo[21] offers a rational and logical solution of the
issue. We held in said case that the normal method of service of summons on
one temporarily absent is by substituted service because personal service
abroad and service by publication are not ordinary means of summoning
defendants. Summons in a suit in personam against a temporarily absent
resident may be by substituted service as domiciliaries of a State are always
amenable to suits in personam therein.[22]
Residence is the place where the person named in the summons is
living at the time when the service is made, even though he may be
temporarily out of the country at the time. A plaintiff is merely required to
know the defendants residence, office or regular business place. He need not
know where a resident defendant actually is at the very moment of filing
suit. He is not even duty-bound to ensure that the person upon whom service
was actually made delivers the summons to the defendant or informs him
about it. The law presumes that for him. It is immaterial that defendant does
not receive actual notice.
As well said in Montalban:
. . . 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.[23]
Aside from, at present, various forms of texting and short message services by
the ubiquitous cellular phones.
More importantly, the letter of the law must yield to its spirit. The absence in
the final sheriffs return of a statement about the impossibility of personal
service does not conclusively prove that the service is invalid. Such failure
should not unduly prejudice petitioners if what was undisclosed was in fact
done. Proof of prior attempts at personal service may have been submitted by
the plaintiff during the hearing of any incident assailing the validity of the
substituted service[24] had Vasquez surfaced when the case was heard. In fact,
he was declared in default. It was only when a judgment against him was
rendered by the trial court that he questioned the validity of service of
summons before the appellate court. Such failure to appear, and then later to
question the courts jurisdiction over his person, should not be taken against
herein petitioners.
Between Vasquezs self-serving assertion that he only came to know of the case
when his mother told him about the trial courts decision and the sheriffs return
on the substituted service which carries a presumption of regularity, the latter
is undoubtedly deserving of more faith and credit. The sheriffs certificate of
service of summons is prima facieevidence of the facts set out in it. Only clear
and convincing evidence may overcome its presumption of regularity. Given
the circumstances in the present case, we agree that the presumption of
regularity in the performance of duty on the part of the sheriff stands. [25]
On the second issue, the trial courts order must also be sustained. Co-
petitioner Laurence is legally entitled to support from the respondent, and the
amount of P5,000monthly set by the trial court is neither excessive nor
unreasonable.
sheet.[30] That income, if converted at the prevailing rate, would be more than
sufficient to cover the monthly support for Laurence.
Under Article 195 (4)[31] of the Family Code, a parent is obliged to support
his illegitimate child. The amount is variable. There is no final judgment thereof
as it shall be in proportion to the resources or means of the giver and the
necessities of the recipient.[32] It may be reduced or increased proportionately
according to the reduction or increase of the necessities of the recipient and the
resources or means of the person obliged to support.[33] Support comprises
everything indispensable for sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the financial capacity of the
family.[34] Under the premises, the award of P5,000 monthly support to Laurence
is reasonable, and not excessive nor exorbitant.

Article 175[26] of the Family Code of the Philippines mandates that
illegitimate filiation may be established in the same way and on the same
evidence as legitimate children.Under Article 172,[27] the filiation of legitimate
children is established by any of the following: (1) through record of birth
appearing in the civil register or a final order; or (2) by admission of filiation
in a public document or private handwritten instrument and signed by the
parent concerned; or in default of these two, by open and continuous
possession of the status of a legitimate child or by any other means allowed by
the Rules of Court and special laws.
Laurences record of birth is an authentic, relevant and admissible piece
of evidence to prove paternity and filiation. Vasquez did not deny that Laurence
is his child with Dolores. He signed as father in Laurences certificate of live birth,
a public document. He supplied the data entered in it. Thus, it is a competent
evidence of filiation as he had a hand in its preparation. In fact, if the child had
been recognized by any of the modes in the first paragraph of Article 172, there
is no further need to file any action for acknowledgment because any of said
modes is by itself a consummated act.[28]
In sum, we rule that the Court of Appeals erred in invalidating the
substituted service of summons and remanding the case. As there was valid
substituted service of summons under the circumstances of this case, the lower
court acquired jurisdiction over his person and correctly ordered him to pay
past and present monthly support to his illegitimate child as well as attorneys
fees and litigation expenses to petitioners.
WHEREFORE, the petition is GRANTED. The Decision
dated September 29, 2003 and Resolution dated July 19, 2004 of the Court of
Appeals in CA-G.R. CV No. 71944 are REVERSED and SET ASIDE. The
Decision dated May 28, 2001 of the Regional Trial Court, Branch
19, Naga City in Civil Case No. RTC 99-4460 is hereby REINSTATED.
Costs against respondent.
SO ORDERED.

As filiation is beyond question, support follows as matter of

obligation. Petitioners were able to prove that Laurence needs Vasquezs
support and that Vasquez is capable of giving such support. Dolores testified
that she spent around P200,000 for Laurence; she spends P8,000 a month for
his schooling and their subsistence. She told the lower court Vasquez was
earning US$535 monthly based on his January 10, 2000 contract of
employment[29] with Fathom Ship Management and his seafarer information
G.R. No. 171092 March 15, 2010
EDNA DIAGO LHUILLIER, Petitioner,
vs.
BRITISH AIRWAYS, Respondent.
DECISION
DEL CASTILLO, J.:
Jurisdictio est potestas de publico introducta cum necessitate juris dicendi.
Jurisdiction is a power introduced for the public good, on account of the
necessity of dispensing justice.1
Factual Antecedents
On April 28, 2005, petitioner Edna Diago Lhuillier filed a Complaint 2 for
damages against respondent British Airways before the Regional Trial Court
(RTC) of Makati City. She alleged that on February 28, 2005, she took
respondent’s flight 548 from London, United Kingdom to Rome, Italy. Once
on board, she allegedly requested Julian Halliday (Halliday), one of the
respondent’s flight attendants, to assist her in placing her hand-carried
luggage in the overhead bin. However, Halliday allegedly refused to help and
assist her, and even sarcastically remarked that "If I were to help all 300
passengers in this flight, I would have a broken back!"
Petitioner further alleged that when the plane was about to land in Rome, Italy,
another flight attendant, Nickolas Kerrigan (Kerrigan), singled her out from
among all the passengers in the business class section to lecture on plane
safety. Allegedly, Kerrigan made her appear to the other passengers to be
ignorant, uneducated, stupid, and in need of lecturing on the safety rules and
regulations of the plane. Affronted, petitioner assured Kerrigan that she knew
the plane’s safety regulations being a frequent traveler. Thereupon, Kerrigan
allegedly thrust his face a mere few centimeters away from that of the
petitioner and menacingly told her that "We don’t like your attitude."
Upon arrival in Rome, petitioner complained to respondent’s ground manager
and demanded an apology. However, the latter declared that the flight
stewards were "only doing their job."
Thus, petitioner filed the complaint for damages, praying that respondent be
ordered to pay ₱5 million as moral damages, ₱2 million as nominal damages,
₱1 million as exemplary damages, ₱300,000.00 as attorney’s fees, ₱200,000.00
as litigation expenses, and cost of the suit.
On May 16, 2005, summons, together with a copy of the complaint, was served
on the respondent through Violeta Echevarria, General Manager of Euro-
Philippine Airline Services, Inc.3
On May 30, 2005, respondent, by way of special appearance through counsel,
filed a Motion to Dismiss4 on grounds of lack of jurisdiction over the case and
over the person of the respondent. Respondent alleged that only the courts of
London, United Kingdom or Rome, Italy, have jurisdiction over the complaint
for damages pursuant to the Warsaw Convention, 5 Article 28(1) of which
provides:
An action for damages must be brought at the option of the plaintiff, either
before the court of domicile of the carrier or his principal place of business, or
where he has a place of business through which the contract has been made,
or before the court of the place of destination.
Thus, since a) respondent is domiciled in London; b) respondent’s principal
place of business is in London; c) petitioner bought her ticket in Italy (through
Jeepney Travel S.A.S, in Rome);6 and d) Rome, Italy is petitioner’s place of
destination, then it follows that the complaint should only be filed in the
proper courts of London, United Kingdom or Rome, Italy.
Likewise, it was alleged that the case must be dismissed for lack of jurisdiction
over the person of the respondent because the summons was erroneously
served on Euro-Philippine Airline Services, Inc. which is not its resident agent
in the Philippines.
On June 3, 2005, the trial court issued an Order requiring herein petitioner to
file her Comment/Opposition on the Motion to Dismiss within 10 days from
notice thereof, and for respondent to file a Reply thereon. 7 Instead of filing a
Comment/Opposition, petitioner filed on June 27, 2005, an Urgent Ex-Parte
Motion to Admit Formal Amendment to the Complaint and Issuance of Alias
Summons.8 Petitioner alleged that upon verification with the Securities and
Exchange Commission, she found out that the resident agent of respondent in
the Philippines is Alonzo Q. Ancheta. Subsequently, on September 9, 2005,
petitioner filed a Motion to Resolve Pending Incident and Opposition to
Motion to Dismiss.9
Ruling of the Regional Trial Court
On October 14, 2005, the RTC of Makati City, Branch 132, issued an
Order10 granting respondent’s Motion to Dismiss. It ruled that:
The Court sympathizes with the alleged ill-treatment suffered by the plaintiff.
However, our Courts have to apply the principles of international law, and are
bound by treaty stipulations entered into by the Philippines which form part
of the law of the land. One of this is the Warsaw Convention. Being a signatory
thereto, the Philippines adheres to its stipulations and is bound by its
provisions including the place where actions involving damages to plaintiff is
to be instituted, as provided for under Article 28(1) thereof. The Court finds
no justifiable reason to deviate from the indicated limitations as it will only
run counter to the provisions of the Warsaw Convention. Said adherence is in
consonance with the comity of nations and deviation from it can only be
effected through proper denunciation as enunciated in the Santos case (ibid).
Since the Philippines is not the place of domicile of the defendant nor is it the
principal place of business, our courts are thus divested of jurisdiction over
cases for damages. Neither was plaintiff’s ticket issued in this country nor was
her destination Manila but Rome in Italy. It bears stressing however, that
referral to the court of proper jurisdiction does not constitute constructive
denial of plaintiff’s right to have access to our courts since the Warsaw
Convention itself provided for jurisdiction over cases arising from
international transportation. Said treaty stipulations must be complied with in
good faith following the time honored principle of pacta sunt servanda.
The resolution of the propriety of service of summons is rendered moot by the
Court’s want of jurisdiction over the instant case.
WHEREFORE, premises considered, the present Motion to Dismiss is hereby
GRANTED and this case is hereby ordered DISMISSED.
Petitioner filed a Motion for Reconsideration but the motion was denied in an
Order11 dated January 4, 2006.
Petitioner now comes directly before us on a Petition for Review
on Certiorari on pure questions of law, raising the following issues:
Issues
I. WHETHER X X X PHILIPPINE COURTs HAVE JURISDICTION OVER A
TORTIOUS CONDUCT COMMITTED AGAINST A FILIPINO CITIZEN
AND RESIDENT BY AIRLINE PERSONNEL OF A FOREIGN CARRIER
TRAVELLING BEYOND THE TERRITORIAL LIMIT OF ANY FOREIGN
COUNTRY; AND THUS IS OUTSIDE THE AMBIT OF THE WARSAW
CONVENTION.
II. WHETHER x x x RESPONDENT AIR CARRIER OF PASSENGERS, IN
FILING ITS MOTION TO DISMISS BASED ON LACK OF JURISDICTION
OVER THE SUBJECT MATTER OF THE CASE AND OVER ITS PERSON
MAY BE DEEMED AS HAVING IN FACT AND IN LAW SUBMITTED
ITSELF TO THE JURISDICTION OF THE LOWER COURT, ESPECIALLY SO,
WHEN THE VERY LAWYER ARGUING FOR IT IS HIMSELF THE
RESIDENT AGENT OF THE CARRIER.
Petitioner’s Arguments
Petitioner argues that her cause of action arose not from the contract of
carriage, but from the tortious conduct committed by airline personnel of
respondent in violation of the provisions of the Civil Code on Human
Relations. Since her cause of action was not predicated on the contract of
carriage, petitioner asserts that she has the option to pursue this case in this
jurisdiction pursuant to Philippine laws.
Respondent’s Arguments
In contrast, respondent maintains that petitioner’s claim for damages fell
within the ambit of Article 28(1) of the Warsaw Convention. As such, the same
can only be filed before the courts of London, United Kingdom or Rome, Italy.
Our Ruling
The petition is without merit.
The Warsaw Convention has the force and effect of law in this country.
It is settled that the Warsaw Convention has the force and effect of law in this
country. In Santos III v. Northwest Orient Airlines,12 we held that:
The Republic of the Philippines is a party to the Convention for the Unification
of Certain Rules Relating to International Transportation by Air, otherwise
known as the Warsaw Convention. It took effect on February 13, 1933. The
Convention was concurred in by the Senate, through its Resolution No. 19, on
May 16, 1950. The Philippine instrument of accession was signed by President
Elpidio Quirino on October 13, 1950, and was deposited with the Polish
government on November 9, 1950. The Convention became applicable to the
Philippines on February 9, 1951. On September 23, 1955, President Ramon
Magsaysay issued Proclamation No. 201, declaring our formal adherence
thereto, "to the end that the same and every article and clause thereof may be
observed and fulfilled in good faith by the Republic of the Philippines and the
citizens thereof."
The Convention is thus a treaty commitment voluntarily assumed by the
Philippine government and, as such, has the force and effect of law in this
country.13
The Warsaw Convention applies because the air travel, where the alleged
tortious conduct occurred, was between the United Kingdom and Italy, which
are both signatories to the Warsaw Convention.
Article 1 of the Warsaw Convention provides:
1. This Convention applies to all international carriage of persons,
luggage or goods performed by aircraft for reward. It applies equally
to gratuitous carriage by aircraft performed by an air transport
undertaking.
2. For the purposes of this Convention the expression "international
carriage" means any carriage in which, according to the contract made
by the parties, the place of departure and the place of destination,
whether or not there be a break in the carriage or a transhipment, are
situated either within the territories of two High Contracting Parties,
or within the territory of a single High Contracting Party, if there is an
agreed stopping place within a territory subject to the sovereignty,
suzerainty, mandate or authority of another Power, even though that
Power is not a party to this Convention. A carriage without such an
agreed stopping place between territories subject to the sovereignty,
suzerainty, mandate or authority of the same High Contracting Party
is not deemed to be international for the purposes of this Convention.
(Emphasis supplied)
Thus, when the place of departure and the place of destination in a contract of
carriage are situated within the territories of two High Contracting Parties,
said carriage is deemed an "international carriage". The High Contracting
Parties referred to herein were the signatories to the Warsaw Convention and
those which subsequently adhered to it.14
In the case at bench, petitioner’s place of departure was London, United
Kingdom while her place of destination was Rome, Italy.15 Both the United
Kingdom16 and Italy17 signed and ratified the Warsaw Convention. As such,
the transport of the petitioner is deemed to be an "international carriage"
within the contemplation of the Warsaw Convention.
Since the Warsaw Convention applies in the instant case, then the jurisdiction
over the subject matter of the action is governed by the provisions of the
Warsaw Convention.
Under Article 28(1) of the Warsaw Convention, the plaintiff may bring the
action for damages before –
1. the court where the carrier is domiciled;
2. the court where the carrier has its principal place of business;
3. the court where the carrier has an establishment by which the
contract has been made; or
4. the court of the place of destination.
In this case, it is not disputed that respondent is a British corporation
domiciled in London, United Kingdom with London as its principal place of
business. Hence, under the first and second jurisdictional rules, the petitioner
may bring her case before the courts of London in the United Kingdom. In the
passenger ticket and baggage check presented by both the petitioner and
respondent, it appears that the ticket was issued in Rome, Italy. Consequently,
under the third jurisdictional rule, the petitioner has the option to bring her
case before the courts of Rome in Italy. Finally, both the petitioner and
respondent aver that the place of destination is Rome, Italy, which is properly
designated given the routing presented in the said passenger ticket and
baggage check. Accordingly, petitioner may bring her action before the courts
of Rome, Italy. We thus find that the RTC of Makati correctly ruled that it does
not have jurisdiction over the case filed by the petitioner.
Santos III v. Northwest Orient Airlines18 applies in this case.
Petitioner contends that Santos III v. Northwest Orient Airlines 19 cited by the
trial court is inapplicable to the present controversy since the facts thereof are
not similar with the instant case.
We are not persuaded.
In Santos III v. Northwest Orient Airlines,20 Augusto Santos III, a resident of
the Philippines, purchased a ticket from Northwest Orient Airlines in San
Francisco, for transport between San Francisco and Manila via Tokyo and back
to San Francisco. He was wait-listed in the Tokyo to Manila segment of his
ticket, despite his prior reservation. Contending that Northwest Orient
Airlines acted in bad faith and discriminated against him when it canceled his
confirmed reservation and gave his seat to someone who had no better right
to it, Augusto Santos III sued the carrier for damages before the RTC.
Northwest Orient Airlines moved to dismiss the complaint on ground of lack
of jurisdiction citing Article 28(1) of the Warsaw Convention. The trial court
granted the motion which ruling was affirmed by the Court of Appeals. When
the case was brought before us, we denied the petition holding that under
Article 28(1) of the Warsaw Convention, Augusto Santos III must prosecute
his claim in the United States, that place being the (1) domicile of the
Northwest Orient Airlines; (2) principal office of the carrier; (3) place where
contract had been made (San Francisco); and (4) place of destination (San
Francisco).21
We further held that Article 28(1) of the Warsaw Convention is jurisdictional
in character. Thus:
A number of reasons tends to support the characterization of Article 28(1) as
a jurisdiction and not a venue provision. First, the wording of Article 32, which
indicates the places where the action for damages "must" be brought,
underscores the mandatory nature of Article 28(1). Second, this
characterization is consistent with one of the objectives of the Convention,
which is to "regulate in a uniform manner the conditions of international
transportation by air." Third, the Convention does not contain any provision
prescribing rules of jurisdiction other than Article 28(1), which means that the
phrase "rules as to jurisdiction" used in Article 32 must refer only to Article
28(1). In fact, the last sentence of Article 32 specifically deals with the exclusive
enumeration in Article 28(1) as "jurisdictions," which, as such, cannot be left to
the will of the parties regardless of the time when the damage occurred.
xxxx
In other words, where the matter is governed by the Warsaw Convention,
jurisdiction takes on a dual concept. Jurisdiction in the international sense
must be established in accordance with Article 28(1) of the Warsaw
Convention, following which the jurisdiction of a particular court must be
established pursuant to the applicable domestic law. Only after the question
of which court has jurisdiction is determined will the issue of venue be taken
up. This second question shall be governed by the law of the court to which
the case is submitted.22
Contrary to the contention of petitioner, Santos III v. Northwest Orient
Airlines23 is analogous to the instant case because (1) the domicile of
respondent is London, United Kingdom;24 (2) the principal office of
respondent airline is likewise in London, United Kingdom;25 (3) the ticket was
purchased in Rome, Italy;26 and (4) the place of destination is Rome, Italy.27 In
addition, petitioner based her complaint on Article 217628 of the Civil Code
on quasi-delict and Articles 1929 and 2130 of the Civil Code on Human Relations.
In Santos III v. Northwest Orient Airlines,31 Augusto Santos III similarly
posited that Article 28 (1) of the Warsaw Convention did not apply if the action
is based on tort. Hence, contrary to the contention of the petitioner, the factual
setting of Santos III v. Northwest Orient Airlines32 and the instant case are
parallel on the material points.
Tortious conduct as ground for the petitioner’s complaint is within the
purview of the Warsaw Convention.
Petitioner contends that in Santos III v. Northwest Orient Airlines,33 the cause
of action was based on a breach of contract while her cause of action arose
from the tortious conduct of the airline personnel and violation of the Civil
Code provisions on Human Relations.34 In addition, she claims that our
pronouncement in Santos III v. Northwest Orient Airlines35 that "the allegation
of willful misconduct resulting in a tort is insufficient to exclude the case from
the comprehension of the Warsaw Convention," is more of an obiter dictum
rather than the ratio decidendi.36 She maintains that the fact that said acts
occurred aboard a plane is merely incidental, if not irrelevant.37
We disagree with the position taken by the petitioner. Black defines obiter
dictum as "an opinion entirely unnecessary for the decision of the case" and
thus "are not binding as precedent."38 In Santos III v. Northwest Orient
Airlines,39 Augusto Santos III categorically put in issue the applicability of
Article 28(1) of the Warsaw Convention if the action is based on tort.
In the said case, we held that the allegation of willful misconduct resulting in
a tort is insufficient to exclude the case from the realm of the Warsaw
Convention. In fact, our ruling that a cause of action based on tort did not bring
the case outside the sphere of the Warsaw Convention was our ratio decidendi
in disposing of the specific issue presented by Augusto Santos III. Clearly, the
contention of the herein petitioner that the said ruling is an obiter dictum is
without basis.
Relevant to this particular issue is the case of Carey v. United Airlines,40 where
the passenger filed an action against the airline arising from an incident
involving the former and the airline’s flight attendant during an international
flight resulting to a heated exchange which included insults and profanity. The
United States Court of Appeals (9th Circuit) held that the "passenger's action
against the airline carrier arising from alleged confrontational incident
between passenger and flight attendant on international flight was governed
exclusively by the Warsaw Convention, even though the incident allegedly
involved intentional misconduct by the flight attendant." 41
In Bloom v. Alaska Airlines,42 the passenger brought nine causes of action
against the airline in the state court, arising from a confrontation with the flight
attendant during an international flight to Mexico. The United States Court of
Appeals (9th Circuit) held that the "Warsaw Convention governs actions
arising from international air travel and provides the exclusive remedy for
conduct which falls within its provisions." It further held that the said
Convention "created no exception for an injury suffered as a result of
intentional conduct" 43 which in that case involved a claim for intentional
infliction of emotional distress.
It is thus settled that allegations of tortious conduct committed against an
airline passenger during the course of the international carriage do not bring
the case outside the ambit of the Warsaw Convention.
Respondent, in seeking remedies from the trial court through special
appearance of counsel, is not deemed to have voluntarily submitted itself to
the jurisdiction of the trial court.
Petitioner argues that respondent has effectively submitted itself to the
jurisdiction of the trial court when the latter stated in its
Comment/Opposition to the Motion for Reconsideration that "Defendant [is
at a loss] x x x how the plaintiff arrived at her erroneous impression that it
is/was Euro-Philippines Airlines Services, Inc. that has been making a special
appearance since x x x British Airways x x x has been clearly specifying in all
the pleadings that it has filed with this Honorable Court that it is the one
making a special appearance."44
In refuting the contention of petitioner, respondent cited La Naval Drug
Corporation v. Court of Appeals45 where we held that even if a party
"challenges the jurisdiction of the court over his person, as by reason of
absence or defective service of summons, and he also invokes other grounds
for the dismissal of the action under Rule 16, he is not deemed to be in estoppel
or to have waived his objection to the jurisdiction over his person." 46
This issue has been squarely passed upon in the recent case of Garcia v.
Sandiganbayan,47 where we reiterated our ruling in La Naval Drug
Corporation v. Court of Appeals48 and elucidated thus:
Special Appearance to Question a Court’s Jurisdiction Is Not
Voluntary Appearance
The second sentence of Sec. 20, Rule 14 of the Revised Rules of Civil Procedure
clearly provides:
Sec. 20. Voluntary appearance. – The defendant’s voluntary appearance in the
action shall be equivalent to service of summons. The inclusion in a motion to
dismiss of other grounds aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance.
Thus, a defendant who files a motion to dismiss, assailing the jurisdiction of
the court over his person, together with other grounds raised therein, is not
deemed to have appeared voluntarily before the court. What the rule on
voluntary appearance – the first sentence of the above-quoted rule – means is
that the voluntary appearance of the defendant in court is without
qualification, in which case he is deemed to have waived his defense of lack of
jurisdiction over his person due to improper service of summons.
The pleadings filed by petitioner in the subject forfeiture cases, however, do
not show that she voluntarily appeared without qualification. Petitioner filed
the following pleadings in Forfeiture I: (a) motion to dismiss; (b) motion for
reconsideration and/or to admit answer; (c) second motion for
reconsideration; (d) motion to consolidate forfeiture case with plunder case;
and (e) motion to dismiss and/or to quash Forfeiture I. And in Forfeiture II:
(a) motion to dismiss and/or to quash Forfeiture II; and (b) motion for partial
reconsideration.
The foregoing pleadings, particularly the motions to dismiss, were filed by
petitioner solely for special appearance with the purpose of challenging the
jurisdiction of the SB over her person and that of her three children. Petitioner
asserts therein that SB did not acquire jurisdiction over her person and of her
three children for lack of valid service of summons through improvident
substituted service of summons in both Forfeiture I and Forfeiture II. This
stance the petitioner never abandoned when she filed her motions for
reconsideration, even with a prayer to admit their attached Answer Ex
Abundante Ad Cautelam dated January 22, 2005 setting forth affirmative
defenses with a claim for damages. And the other subsequent pleadings,
likewise, did not abandon her stance and defense of lack of jurisdiction due to
improper substituted services of summons in the forfeiture cases. Evidently,
from the foregoing Sec. 20, Rule 14 of the 1997 Revised Rules on Civil
Procedure, petitioner and her sons did not voluntarily appear before the SB
constitutive of or equivalent to service of summons.

Moreover, the leading La Naval Drug Corp. v. Court of Appeals applies to the
instant case. Said case elucidates the current view in our jurisdiction that a
special appearance before the court––challenging its jurisdiction over the
person through a motion to dismiss even if the movant invokes other
grounds––is not tantamount to estoppel or a waiver by the movant of his
objection to jurisdiction over his person; and such is not constitutive of a
voluntary submission to the jurisdiction of the court.1avvphi1

Thus, it cannot be said that petitioner and her three children voluntarily
appeared before the SB to cure the defective substituted services of summons.
They are, therefore, not estopped from questioning the jurisdiction of the SB
over their persons nor are they deemed to have waived such defense of lack
of jurisdiction. Consequently, there being no valid substituted services of
summons made, the SB did not acquire jurisdiction over the persons of
petitioner and her children. And perforce, the proceedings in the subject
forfeiture cases, insofar as petitioner and her three children are concerned, are
null and void for lack of jurisdiction. (Emphasis supplied)

In this case, the special appearance of the counsel of respondent in filing the
Motion to Dismiss and other pleadings before the trial court cannot be deemed
to be voluntary submission to the jurisdiction of the said trial court. We hence
disagree with the contention of the petitioner and rule that there was no
voluntary appearance before the trial court that could constitute estoppel or a
waiver of respondent’s objection to jurisdiction over its person.

WHEREFORE, the petition is DENIED. The October 14, 2005 Order of the
Regional Trial Court of Makati City, Branch 132, dismissing the complaint for
lack of jurisdiction, is AFFIRMED.

SO ORDERED.
 (2) Respondent voluntarily submitted to the jurisdiction of the trial court.
Planters Development Bank v Chandumal (Civil Procedure)
Planters Development Bank v Cha Section 20, Rule 14 of the Rules of Court states "The defendant's voluntary
ndumal appearance in the action shall be equivalent to service of summons"
GR No. 195619, September 5, 2012
(3) There is no valid rescission of the contract to sell by notarial act.
FACTS:
The allegation that Chandumal made herself unavailable for payment is not
BF Homes, Inc. and Chandumal entered into a contract to sell a parcel of land. an excuse as the twin requirements for a valid and effective cancellation under
BF Homes then sold to PDB all its rights and interests over the contract. On the law, i.e. notice of cancellation or demand for rescission by a notarial act
June 18, 1999, an action for judicial confirmation of notarial rescission and and the full payment of the cash surrender value, is mandatory.
delivery of possession was filed by PDP against Chandumal.

Consequently, summons was issued. According to the Sheriff's return, Sheriff

Galing attempted to personally serve the summons upon Chandumal on three
dates but it was unavailing as she was always out of the house on said dates.
Hence, the sheriff caused substituted service of summons by serving the same
through Chandumal's mother who acknowledged receipt thereof.

For her failure to file within the prescribed period, PDB filed an ex parte
motion to declare Chandumal in default which was granted by the RTC. On
February 23, 2001, Chandumal filed an Urgent Motion to Set Aside Order of
Default maintaining that she did not receive the summons and/or was not
notified of the same. RTC denied Chandumal's motion which was reversed by
the Court of Appeals due to invalid and ineffective substituted service of
summons.

ISSUES:
(1) Whether there was valid substituted service of summons
(2) Whether Chandumal voluntarily submitted to the jurisdiction of the trial
court
(3) Whether there was proper rescission by notarial act of the contract to sell

HELD:
(1) There was no valid substitute service of summons.

The Return of Summons does not specifically show or indicate in detail the
actual exertion of efforts or any positive step taken by the officer or process
server in attempting to serve the summons personally to the defendant. The
return merely states the alleged whereabouts of the defendant without
indicating that such information was verified from a person who had
knowledge thereof.