REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA

Jane B. Austen
Plaintiff-Appellant

CA GR CV NO. 13579
-versus- For: Collection of a sum of money
and damages with application for
a writ of Preliminary Attachment

Samuel L. Clemens
Defendant-Appellee

Pursuant to the
Notice of this Honorable Court,
Appellant
Jane B. Austen
by counsel, most respectfully submit their

APPELLANTS’ BRIEF

Atty. George T. Clooney

Counsel for Plaintiff
Clooney Law Office Rm.10 2F XYZ bldg.,
San Jose Gusu, Zamboanga City
PTR No. 789325 1/10/14 ZC
IBP No. 101555 1/5/14 ZC
MCLE Comp. No. IV-0006675 1/9/10

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 TABLE OF AUTHORITIES

Philippine Jurisprudence Page

Gan Hock vs CA, 197 SCRA 223

Sps. Mason vs. CA, G.R. 1446621, October 21, 2003

Leah Palma vs. Hon. Danilo Galvie, GR No. 165273, March 10, 2010
James Kesiter vs Hon. Pedro Navarro, GR No. L-29067, May 31, 1977

Mangila vs CA, 387 SCRA 162, 172 (2002)

H.B. Zachry Co., International vs CA, SCAD 207, 223, 232, SCRA 329, 345 (1994)

Philippines Statute _____

Section 7 of Rule 14 of the 1987 Rules of Civil Procedure

SUBJECT INDEX

I. TABLE OF AUTHORITIES 2

II. ASSIGNMENT OF ERRORS 3

III. STATEMENT OF THE CASE 3

IV. SUMMARY OF PROCEEDINGS 3-4

V. STATEMENT OF MATERIAL DATES 5

VI. APPEALED DECISION 5

VII. STATEMENT OF FACTS 5-7

VIII. ISSUES 7

IX. ARGUMENTS 7-9

X. RELIEF 9

XI. APPENDIXES 10

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 II. ASSIGNMENT OF ERRORS

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DISMISSING THE

COMPLAINT ON THE GROUND THAT THE COURT HAVE NOT ACQUIRED
JURISDICTION OVER THE PERSON OF THE DEFENDING PARTY.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING PLAINTIFF-

APPELLANTS’ APPLICATION FOR PRELIMINARY ATTACHMENT.

III. STATEMENT OF THE CASE

This is an appeal from the Orders of the Court a quo dismissing a complaint for
collection of a sum of money and damages with application for a writ of Preliminary
Attachment filed by Plaintiff-Appellant against Defendant-Appellees, for non-payment of
debt.

The case arose from the time when appellant lend defendant a sum of money in
the amount of ONE MILLION (PHP 1,000,000) PESSOS, Philippine currency payable
within six (6) months with Ten (10%) Percent interest per month. Defendant then issued
a Promissory Note dated 01 January 2005 to that effect. On or about 02 July 2005,
Plaintiff made a verbal demand before Defendant in order to compel the latter to comply
with her obligation. However, defendant failed to settle her obligation. Consequently,
Plaintiff sent Defendant a Demand Letter dated 20 September 2011. The letter was
accepted and signed by the defendant on 21 September 2011. 6. Despite the persistent
and continuous demands for the payment of the said amount, Defendant failed and
refused and continuously failed and refused to settle her total obligation to the Plaintiff.

IV. SUMMARY OF PROCEEDINGS

1. On February 9, 2019, Plaintiff-Appellant instituted the instant case before the

Zamboanga City Regional Trial Court by filing the Complaint for “Collection of a sum of
money and damages with application for a writ of Preliminary Attachment.” The
complaint, docketed as Civil Case No. 13579, was filed against herein Defendant-
Appellee.

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 2. The case was subsequently raffled off to the Court a quo, the sala of Judge
xxxxxx, presiding judge of Branch 15 of the Zamboanga City Regional Trial Court.

3. On February 14, 2019, the defendant was served with summon and a copy of
the complaint.

4. On February 15, 2019, Plaintiff-Appellant filed a Motion for the issuance of a

writ of preliminary attachment.

5. On February 19, 2019, the Court a quo issued an Order, the dispositive portion
of which states that: “WHEREFORE, premises considered, Plaintiff-Appellants’
application for Writ of Preliminary Attachment is granted”

6. On February 23, 2019, Respondent-Appellee Samuel L. Clemens filed a

Motion to Dismiss on the ground, among other things, that the Honorable Court lacks
jurisdiction over the person of the defendant.

7. On March 1, 2019, Defendant Appellee filed a memorandum (In opposition to

Plaintiff-Appellants’ Application for Writ of Preliminary Attachment).

8. On March 14, 2019, Plaintiff-Appellant filed his opposition to the Motion to

Dismiss filed by Defendant-Appellee Samuel L. Clemens.

9. On April 12, 20019, Defendant-Appellee filed his reply to opposition (re:

Defendants Motion to Dismiss).

10. On May 9, 2019, the Court a quo issued the assailed Order, the dispositive
portion of which stated: “WHEREFORE, premises considered, the Plaintiff-Appellants’
application for a Writ of Preliminary Attachment is hereby DENIED. SO ORDERED.”

11. On May 9, 2019, Plaintiff-Appellants filed their Motion for Reconsideration (in
re: Order dated June 2 2019).

12. The court a quo issued an Order Dated May 29, 2019, the dispositive portion
of which state thus: “WHEREFORE, for reasons afore-stated, the complaint is hereby
DISMISSED. SO ORDERED.” Plaintiff-Appellant received a copy of the said Order on
April 9, 2019.

13. On May 23, 2019, Plaintiff-Appellant filed a Notice of Appeal with the Court a
quo.

14. On May 24, 2019, the Court a quo issued its Order giving due course to
Plaintiff-Appellants’ appeal.

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 V. STATEMENT OF MATERIAL DATES

15. On October 13, 2019, Plaintiff-Appellants, through counsel , received an

order from this Honorable Court dated October 4, 2019 directing them to file their
Appellants’ Brief within 45 days from receipt thereof.

16. Hence, Plaintiff-Appellants had November 27, 2019 to file their Appellants’
Brief.

17. Hence this Brief is filed on time.

VI. APPEALED DECISION

18. The dispositive portion of the appealed Order dated May 9, 2019 states:

“WHEREFORE, premises considered, the Plaintiff-Appellants’ application

for a Writ of Preliminary Attachment is hereby DENIED. SO ORDERED.”

19. The dispositive portion of the appealed Order dated May 29, 2019 states:

“WHEREFORE, for reasons afore-stated, the complaint is hereby

DISMISSED. SO ORDERED.”

VII. STATEMENT OF FACTS

20. On January 1, 2005, Defendant borrowed from Plaintiffs a sum of money in

the amount of ONE MILLION (Php 1,000,000.00) PESOS, Philippine currency, payable
within six (6) months with Ten (10%) Percent interest per month. Defendant then issued
a Promissory Note dated 01 January 2005 to that effect.

21. On or about 02 July 2005, Plaintiff made a verbal demand before Defendant
in order to compel the latter to comply with her obligation. However, defendant failed to
settle her obligation.

22. Consequently, Plaintiff sent Defendant a Demand Letter dated 20 September

2011. The letter was accepted and signed by the defendant on 21 September 2011.

23. Despite the persistent and continuous demands for the payment of the said
amount, Defendants failed and refused and continuously fail and refuse to settle their
total obligation to the Plaintiff. Until now, notwithstanding repeated demands by her,

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Defendant failed and refused and continuously failed and refused to pay their total
account with herein Plaintiff to its great damage and prejudice.

24. These irresponsible acts of Defendant indisputably show her deceitful and
fraudulent intent not only in incurring said obligation but even in the performance
thereof, as until now, in spite of Plaintiff’s persistent and continuous demands for the
payment of the said amount, Defendant failed and refused and continuously fail and
refuse to settle their total obligation to the Plaintiff to his damage and prejudice in the
aforesaid sum of ONE MILLION (Php 1,000,000.00) PESOS, Philippine Currency,
which should be adjudged against herein Defendant.

25. On February 9, 2019, Plaintiff-Appellant instituted the instant case before the
Zamboanga City Regional Trial Court by filing the Complaint for “Collection of a sum of
money and damages with application for a writ of Preliminary Attachment.” The
complaint, docketed as Civil Case No. 13579, was filed against herein Defendant-
Appellee.

26. The case was subsequently raffled off to the Court a quo, the sala of Judge
xxxxxx, presiding judge of Branch 15 of the Zamboanga City Regional Trial Court.

27. On February 14, 2019, the defendant was served with summon and a copy of
the complaint.

28. On February 15, 2019, Plaintiff-Appellant filed a Motion for the issuance of a
writ of preliminary attachment.

29. On February 19, 2019, the Court a quo issued an Order, the dispositive
portion of which states that: “WHEREFORE, premises considered, Plaintiff-Appellants’
application for Writ of Preliminary Attachment is granted”

30. On February 23, 2019, Respondent-Appellee Samuel L. Clemens filed a

Motion to Dismiss on the ground, among other things, that the Honorable Court lacks
jurisdiction over the person of the defendant.

31. On March 1, 2019, Defendant Appellee filed a memorandum (In opposition to

Plaintiff-Appellants’ Application for Writ of Preliminary Attachment).

32. On March 14, 2019, Plaintiff-Appellant filed his opposition to the Motion to
Dismiss filed by Defendant-Appellee Samuel L. Clemens.

33. On April 12, 20019, Defendant-Appellee filed his reply to opposition (re:
Defendants Motion to Dismiss).

34. On May 9, 2019, the Court a quo issued the assailed Order, the dispositive
portion of which stated: “WHEREFORE, premises considered, the Plaintiff-Appellants’
application for a Writ of Preliminary Attachment is hereby DENIED. SO ORDERED.”

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 35. On May 9, 2019, Plaintiff-Appellants filed their Motion for Reconsideration (in
re: Order dated June 2 2019).

36. The court a quo issued an Order Dated May 29, 2019, the dispositive portion
of which state thus: “WHEREFORE, for reasons afore-stated, the complaint is hereby
DISMISSED. SO ORDERED.” Plaintiff-Appellant received a copy of the said Order on
April 9, 2019.

VIII. ISSUES

I. WHETHER OR NOT THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

DISMISSING THE COMPLAINT ON THE GROUND THAT THE COURT DID NOT
ACQUIRE JURISDICTION OVER THE PERSON OF THE DEFENDANT.

II. WHETHER OR NOT THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

DENYING PLAINTIFF-APPELLANTS APPLICATION FOR A WRIT OF PRELIMINARY
ATTACHMENT.

IX. ARGUMENTS

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DISMISSING THE

COMPLAINT ON THE GROUND THAT THE COURT HAVE NOT ACQUIRE
JURISDICTION OVER THE PERSON OF THE DEFENDANT.

As a rule, modes of service of summons are strictly followed in order that the
court may acquire jurisdiction over the person of a defendant.1 The service of summons
is a vital and indispensable ingredient of due process.2

A cursory reading of the Summons and Return of Service would readily show
that the copies of the Summons dated 14 February 2019 and the Complaint and its
corresponding annexes were allegedly delivered and tendered upon the Defendant’s
address through a certain Neil John who was the brother of the defendant, and who was
permanently residing therein.

Said service of Summons constitutes a proper service of summons amounting to

sufficiency of jurisdiction over the person of the herein Defendant since the summons
was properly served upon a person who is one of those persons authorized under
Section 7, Rule 14 of the 1997 Rules of Civil Procedure upon whom service of
summons shall be made.

1
Gan Hock vs CA, 197 SCRA 223
2
Sps. Mason vs. CA, G.R. 1446621, October 21, 2003

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 The material provision on the service of summons provided for in Section 7 of
Rule 14 of the 1997 Rules of Civil Procedure reads as follows:

Section 7. Substituted service. — If, for justifiable causes, the defendant cannot
be served within a reasonable time as provided in the preceding section, service may
be effected (a) by leaving copies of the summons at the defendant's residence with
some person of suitable age and discretion then residing therein, or (b) by leaving the
copies at defendant's office or regular place of business with some competent person in
charge thereof.3

It bears no further emphasis that the service of the summons was done on a
person who is authorized under the said Section. In Leah Palma vs. Hon. Danilo
Galvie,4 the Supreme Court held that the service of the summons intended for the
defendant that must be left with the person of suitable age and discretion residing in the
house of the defendant. Compliance with the rules regarding the service of summons is
as important as the issue of due process as that of jurisdiction.

Service of summons upon the defendant is the means by the court may acquire
jurisdiction over his person. In the absence of a valid waiver, trial and judgment without
such service are null and void. This process is solely for the benefit of the defendant. Its
purpose is not only to give the court jurisdiction of the person of the defendant, but also
to afford the latter an opportunity to be heard on the claim made against him. The
summons must be served to the defendant in person. It is only when the defendant
cannot be served personally within a reasonable time that a substituted service may be
made.5 There being a no failure to observe the proper procedure in the service of
summons, the Court, therefore, acquired jurisdiction over the person of the Defendant.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING PLAINTIFF-

APPELLANTS’ APPLICATION FOR PRELIMINARY ATTACHMENT.

The grant of the provisional remedy of attachment practically involves three

states: first, the court issues the order granting the application; second, the writ of
attachment issues pursuant to the order granting the writ; and third, the writ is
implemented. 6

For the initial two stages, it is not necessary that jurisdiction over the person of
the defendant should first be obtained. It is well-settled that a writ of preliminary

3
Section 7 of Rule 14 of the 1987 Rules of Civil Procedure
4
GR No. 165273, March 10, 2010
5
James Kesiter vs Hon. Pedro Navarro, GR No. L-29067, May 31, 1977
6
Mangila vs CA, 387 SCRA 162, 172 (2002)
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attachment may be validly applied for and granted even before the defendant is
summoned or is heard from.

However, once the implementation commences, it is required that the court must
have acquired jurisdiction over the person of the defendant for without such
juriscdiction, the court has no power and authority to act in any manner against the
defendant. Any order issuing from the court will not bind the defendant.7

It is clear that the trial court committed an error in denying Plaintiff-Appellants’

application for preliminary attach dated May 9, 2019. The court already acquired
jurisdiction over the defendant when the defendant were served of summon dated
February 14, 2019. Therefore the implementation of the writ of Preliminary Attachment
should have been granted.

X.RELIEF

WHEREFORE, the premises considered, Plaintiff-Appellants respectfully pray that this

Honorable court:

a) Annul the decision dated May 29, 2019 dismissing the complaint filed
by the Appellant for collection of a sum of money against Appellee.

b) Find the Defendant-Appellee liable to pay Plaintiff-Appellant the amount

of ONE MILLION (Php 1,000,000.00), plus the amount of P100, 000 by
way of interests from 01 January 2005 until 01 July 2005, until fully paid.

c) Issue, upon filing of this Brief, Writ of Preliminary Attachment against

Defendant, requiring the sheriff to attach properties of the Defendant
which are not exempt from execution or so much thereof as may be
sufficient to satisfy Plaintiff’s demand.

Other just and equitable relief is likewise prayed for.

Zamboanga City, Philippines, this 27th day of November 2019.

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H.B. Zachry Co., International vs CA, SCAD 207, 223, 232, SCRA 329, 345 (1994)

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 XI. APPENDIX

Copy of the appealed order of the Regional Trial Court, Branch 15, Zamboanga City,
dated May 29 2019 ( Appendix A).

By: Appellants Counsel

Atty. George T. Clooney

Counsel for Plaintiff
Clooney Law Office Rm.10 2F XYZ bldg.,
San Jose Gusu, Zamboanga City
PTR No. 789325 1/10/14 ZC
IBP No. 101555 1/5/14 ZC
MCLE Comp. No. IV-0006675 1/9/10

EXPLANATION
(Pursuant to Sec. 11, Rule 13 of the 1997 Rules of Civil Procedure)

The foregoing Appellant’s Brief is being served by registered mail since personal
service is not practicable, because of distance and limited number of messengers in the
undersigned’s office.

COPY FURNISHED:
(2 COPIES)

Adam S. Seff
Counsel for Appellee Samuel L. Clemens
Seff Law Office Rm.5 2F ABC bldg.,
Upper Calarian, Zamboanga City, Philippines

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