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JOSE v BOYON

[G.R. No. 147369. October 23, 2003]


PANGANIBAN, J.

Doctrine:
Trial courts acquire jurisdiction over the person of the defendant by the service of summons. Where the
action is in personam and the defendant is in the Philippines, such service may be done by personal or
substituted service. Personal service of summons is preferred to substituted service.

Proof of service of summons must (a) indicate the impossibility of service of summons within a
reasonable time; (b) specify the efforts exerted to locate the defendant; and (c) state that the summons
was served upon a person of sufficient age and discretion who is residing in the address, or who is in
charge of the office or regular place of business, of the defendant.

Facts:
Patrick and Rafaela Jose filed a complaint with RTC Muntinlupa for specific performance against
respondents Helen and Romeo Boyon to compel them to facilitate the transfer of ownership of
a parcel of land subject of a controverted sale.
Respondent Judge, through the acting Branch Clerk, issued summons to respondents. As per
return of the summons, substituted service was resorted to by the process server allegedly
because efforts to serve the summons personally to the respondents failed.
On December 9, 1998, petitioners filed before the trial court an Ex-parte Motion for Leave of
Court to Effect Summons by Publication. Such was granted by the RTC.
Later on, an Order was issued declaring respondents in default. Petitioners were then allowed to
submit evidence ex parte.
On January 5, 2000, respondent Helen Boyon, who was then residing in USA, was surprised to
learn from her sister Elizabeth Boyon, of the resolution issued by the respondent court. She
then filed an Ad Cautelam motion questioning, among others, the validity of the service of
summons effected by the court a quo.
RTC issued an Order denying the said motion on the basis of the defaulted respondents
supposed loss of standing in court. MR denied.
CA reversed holding that the Resolution and the Orders were null and void, since the RTC had
never acquired jurisdiction over respondents. Its grounds are as follows:
o First, the sheriff failed to comply with the requirements of substituted service of
summons, because he did not specify in the Return of Summons the prior efforts he had
made to locate them and the impossibility of promptly serving the summons upon them
by personal service.
o Second, the subsequent summons by publication was equally infirm, because the
Complaint was a suit for specific performance and therefore an action in personam.

Issue: Whether the service of summons on respondents is valid.

Held: NO. Defective personal service of summons and the summons by publication were improper.
In general, trial courts acquire jurisdiction over the person of the defendant by the service of
summons. Where the action is in personam and the defendant is in the Philippines, such service
may be done by personal or substituted service.
Personal service of summons is preferred to substituted service. Only if the former cannot be
made promptly can the process server resort to the latter. Moreover, the proof of service of
summons must
o (a) indicate the impossibility of service of summons within a reasonable time;
o (b) specify the efforts exerted to locate the defendant; and
o (c) state that the summons was served upon a person of sufficient age and discretion
who is residing in the address, or who is in charge of the office or regular place of
business, of the defendant.
It is likewise required that the pertinent facts proving these circumstances be stated in the proof
of service or in the officers return. The failure to comply faithfully, strictly and fully with all the
foregoing requirements of substituted service renders the service of summons ineffective.
In the instant case, it appears that the process server hastily and capriciously resorted to
substituted service of summons without actually exerting any genuine effort to locate
respondents.
While the Return of Summons states that efforts to do so were ineffectual and unavailing
because Helen Boyon was in the United States and Romeo Boyon was in Bicol, it did not
mention exactly what efforts -- if any -- were undertaken to find respondents. Furthermore, it
did not specify where or from whom the process server obtained the information on their
whereabouts.
The impossibility of personal service justifying availment of substituted service should be
explained in the proof of service or Officers Return; otherwise, the substituted service cannot
be upheld. Failure to do so would invalidate all subsequent proceedings on jurisdictional
grounds (citing Madrigal v CA).
It must be noted that extraterritorial service of summons or summons by publication applies
only when the action is in rem or quasi in rem. The first is an action against the thing itself
instead of against the defendants person; in the latter, an individual is named as defendant, and
the purpose is to subject that individuals interest in a piece of property to the obligation or loan
burdening it.
In the instant case, what was filed before the trial court was an action for specific performance
directed against respondents. While the suit incidentally involved a piece of land, the ownership
or possession thereof was not put in issue, since they did not assert any interest or right over it.
Moreover, this Court has consistently declared that an action for specific performance is an
action in personam.
Having failed to serve the summons on respondents properly, the RTC did not validly acquire
jurisdiction over their persons. Consequently, due process demands that all the proceedings
conducted subsequent thereto should be deemed null and void.

WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED. Costs against
petitioners.