Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 70661 April 9, 1987
FILMERCO COMMERCIAL CO., INC., SPOUSES JAIME and ANA MARIA
MIGUEL, petitioners,
vs.
HON. INTERMEDIATE APPELLATE COURT; HON. TEOFILO GUADIZ, JR., in his
official capacity as Presiding Judge of Regional Trial Court, National Capital
Judicial Region, Branch 147, Makati Metro Manila; PIOQUINTO VILLAPANA, in
his official capacity as Deputy Sheriff of the Office of the Provincial Sheriff,
National Capital Judicial Region, Makati, Metro Manila; and BANK OF THE
PHILIPPINE ISLANDS,respondents.
Tomacruz, Manguiat & Associates for petitioners.
GUTIERREZ, JR., J.:
The main issue in this petition is whether or not the petitioners were served valid
summons so as to bring their within the jurisdiction of the court.
Filmerco Commercial Co., Inc., (Filmerco) obtained two separate loans from the Bank
of Philippine Islands (BPI) on November 26, 1982 and December 26, 1982
respectively. As security for the payment of the obligation stated in the promissory
notes, spouses Jaime and Ana Maria Miguel executed a deed of continuing suretyship
wherein the Miguels bound themselves jointly and solidarily with Filmerco for the
payment of the latter's obligation under the loan-accounts.
The loans remained outstanding even after they became due and demandable. Hence,
on May 5,1983, BPI filed a complaint docketed as Civil Case No. 2807 for recovery of
a sum of money against Filmerco and spouses Jaime and Ana Maria Miguel before the
Regional Trial Court of Makati, Rizal.
Upon motion of the plaintiff, the defendants were d in default for failure to file an
answer within the reglementary period. The plaintiff was then allowed to present its
evidence ex-parte after which the lower court on June 11, 1984 rendered a decision,
the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered in

favor of the plaintiff and against the defendants, ordering the latter to pay,
jointly and severally, the former:
a) the sum of P308,525.17 plus 10% interest per annum and 12% penalty
fee per annum from May 21, 1984 until the amount is fully paid;
b) the sum equivalent to 20% of the total amount due as and for attorney's
fees;
c) to pay the costs of suit. (p.52, Rollo)
On the ground that the period to appeal expired without any decision having been
appealed, the plaintiff filed a motion for execution of judgment before the lower court.
This motion was granted and a writ of execution was issued against Filmerco and the
Miguels.
Pursuant to the writ of execution, respondent Sheriff Villapana levied on and attached
alleged properties of Filmerco and the Miguels. These properties were scheduled for
sale on September 20, 1984.
On September 25, 1984, the defendants filed a motion to set aside the decision, writ of
execution, notice of levy/attachment and to restrain the holding of the auction sale. The
motion was premised on the ground that the court had no jurisdiction over the
defendants because no valid summons was served on them.
On November 26, 1984, after opposition to motion, reply, rejoinder and sub-rejoinder
had been duly submitted, the lower court issued an order denying the aforesaid
motion.
On December 3, 1984, while the public auction of the attached properties was in
progress, the defendants filed a motion for reconsideration of the November 26, 1984
order.
Without waiting for the resolution of the aforesaid motion for reconsideration, the
defendants filed with the Intermediate Appellate Court a petition for certiorari and
prohibition, injunction and preliminary restraining order against the lower court's
decision and orders.
The appellate court dismissed the petition. A motion for reconsideration was likewise
denied.
Hence, this petition.

The petitioners submit that no valid summons was served upon them. Therefore, they
contend that the lower court had not acquired jurisdiction over their persons thus
resulting in the nullity of its decision.
According to the sheriff's return dated September 7, 1983, summons and copy of the
complaint were not served on the petitioners at 31 Sta. Escolastica Street, Pasay City,
their given principal place of business and had to be returned to the court unserved for
the reason that the "defendants have already vacated the premises and/or addresses
more than a year ago and no definite information could be had regarding their present
whereabouts." Three separate summons for each of the defendants were addressed to
31 Sta. Scholastics Street, Pasay City, Metro Manila.
Upon motion of the private respondent (plaintiff in the case) the lower court issued alias
summons.
According to the sheriff's return dated March 31, 1984, summons were duly served
upon "defendant-spouses Jaime and Ana Maria Miguel at No. 18, Yuchengco Drive,
Pacific Malayan Village, Alabang, Muntinlupa, Metro Manila, thru Mrs. Angle Morger, a
person residing therein of suitable age and discretion to receive service of that nature
and who received the said court processes for and in behalf of the defendants but
refused to sign." It was noted therein that the defendant spouses are "duly served" but
that the other defendant Filmerco was "not and could not be served" and the summons
pertaining to it was " returned unserved."
Petitioner spouses, Jaime and Ana Maria Miguel contend that the substituted service of
summons upon their persons thru Mrs. Angle Morger at No. 18 Yuchengco Drive,
Pacific Malayan Village, Alabang, Muntinlupa, Metro Manila was in- valid for the
following reasons: (1) at the time of the service they were not residents of the said
address, and (2) Mrs. Angle Morger was not authorized to receive papers or
documents for them. They submitted affidavits of Angle Morger to prove their point.
There can be no dispute that service of summons upon the defendant is necessary in
order that a court may acquire jurisdiction over his person. Any judgment without such
service in the absence of a valid waiver is null and void. (Keister v. Navarro, 77 SCRA
209).
Pursuant to Section 7, Rule 14 of the Revised Rules of court, summons must be
served on the defendant. However, when the defendant cannot be served personally
within a reasonable time after efforts to locate him have failed, substituted service may
be made.

In the case at bar, there is no question that personal service of summons upon the
defendants could not be made because they moved out from their given address and
their whereabouts were unknown as indicated in the sheriff's return. Hence, the court
resorted to substituted service of summons provided for under Section 8, Rule 14 of
the Revised Rules of Court:
SEC. 8. Substituted service. If the defendant cannot be served within a
reasonable time as provided in the preceding section, service may be
effected (a) by leaving copies of the summons at the defendant's dwelling
house or residence with some person of suitable age and discretion then
residing therein, or (b) by leaving the copies at defendant's office or regular
place of business with some competent person in charge thereof.
In the case of Keister v. Navarro (supra), we construed this rule as follows:
xxx xxx xxx
... [U]nder the controlling decisions, the statutory requirements of
substituted service must be followed strictly, faithfully and fully, and any
substituted service other than that authorized by the statute is considered
ineffective. (Ibid., pp. 1053-1054).
Indeed, the constitutional requirement of due process requires that the
service be such as may be reasonably expected to give the desired notice
to the party of the claim against him. (Perkins v. Dizon, 69 Phil. 186; Dy
Reyes v. Ortega, 16 SCRA 903)
xxx xxx xxx
... The terms "dwelling house" or "residence" are generally held to refer to
the time of service, hence it is not sufficient "to leave the copy at
defendant's former dwelling house, residence, or place of abode, as the
case may be, after his removal therefrom." (72 C.J.S. 1059) They refer to
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. Similary, the terms "office" or "regular place of
business" refer to the office or place of business of defendant at the time of
service. ... (at p. 215)
Applying these principles to the case at bar, we find that no valid service of summons
upon the defendant spouses could be effected thru Mrs. Angle Morger. In her affidavits,
Mrs. Morger manifested that she and her husband are the bona fide residents of 18
Yuchengco Drive, Pacific Malayan Village, Alabang, Metro Manila; that they leased the

said premises from the owner thereof as evidenced by a contract of lease dated
August 8, 1983; that they have been occupying the premises since September 1, 1983;
that on March 31, 1984, Sheriff Villapana attempted to serve the official summons and
a copy of a complaint against spouses Jaime and Ana Maria Miguel and Filmerco
Commercial Inc.; that she informed the sheriff that the Miguels do not reside in the
place and that neither was said residence the dwelling place of the Miguel spouses;
that she does not know Filmerco, Inc.; that despite the fact that she informed the sheriff
that she is not authorized by the spouses and Filmerco to receive any papers for them,
the sheriff left, leaving some documents with her maid, Daday Lopez; that she did not
affix her signature on the documents being then served by the sheriff nor did the maid
affix hers; that the documents left by the sheriff with the maid were not even
ascertained nor read by the affiant. Mrs. Morger's manifestation is not refuted or
rebutted.
Obviously, the address No. 18 Yuchengco Drive, Pacific Malayan Village, Alabang,
Muntinlupa, Metro Manila was neither the "residence" nor the "dwelling house" of the
petitioners at the time summons was served upon them as contemplated by the Rules.
Moreover, Angle Morger is not a proper person with whom the copies of the summons
could be left. The sheriff 's return indicates that she refused to sign the summons and
the same was returned to the court unsigned. This fact adds credence to Angle
Morger's manifestation about her informing the sheriff that she was not authorized to
receive papers in behalf of the defendant-spouses and that she refused to receive
them. We ruled in the case earlier cited:
xxx xxx xxx
... [T]he rule designates the persons to whom copies of the process may be
left. The rule presupposes that such a relation of confidence exists between
the person with whom the copy is left and the defendant and therefore,
assumes that such person win deliver the process to defendant or in some
way give notice thereof. (Keister v. Navarro, supra)
Mrs. Morger's manifestation negates any close relationship between herself and the
defendant-spouses to qualify her as representative of the former to receive summons
in their behalf.
The private respondent merely relies on the sheriff's return that summons
was duly served on the spouses and states that to disregard the return would be
disastrous as "self-serving affidavits" would be preferred over the presumption of
regularity in the discharge of official functions. It urges that the sheriff's return should
be given credence over the affidavit.

A sheriff's certification that he duly served summons on a defendant does not

necessarily mean that he validly served the summons. In this particular case, there is a
strong showing that Mr. and Mrs. Jaime Miguel are notresidents of 18 Yuchengco
Drive, Pacific Malayan Village, Alabang, Muntinlupa. The respondent, itself, states that
the spouses are hiding to escape their obligations. Sworn statements of Mrs. Angle
Morger assert that she and her husband are lessees of the premises and are the
actual residents therein. The respondents claim these statements are self-serving.
Whether self-serving or not, the fact remains that Mrs. Morger was seen by the sheriff
as the then person in that house. The respondents have absolutely no grounds, other
than suspicions, for their contention that the Miguels and not the Morgers are the
actual residents at that address.
In the light of these facts, the appellate court's reliance on the sheriff's return that
summons upon defendant-spouses thru Angle Morger was "duly served" in
consonance with the principle of presumption in favor of regularity of performance of
official functions of a public officer (Section 5, Rule 13, Rules of Court) has no basis.
With regards to the petitioner corporation, the sheriff's return categorically states that
the alias summons was not served upon the corporation. Moreover, the private
respondent filed a motion to declare defendant-spouses Jaime and Ana Maria Miguel
alone, in default without including the petitioner corporation (Annex E, p. 64, Rollo)
These facts not withstanding the trial court declared all the defendants in default and
rendered a decision also against the petitioner corporation. This decision was affirmed
by the appellate court which applied the doctrine of piercing the veil of corporate fiction.
The appellate court stated:
The records disclose that petitioner-spouses are both directors of
respondent-Corporation being the majority stockholder of FILMERCO
(Annex "A," Comment). The records, also, reveal that both petitionerspouses and petitioner-corporation were impleaded as party defendants in
the civil case filed before the lower court. Hence, petitioner-corporation
cannot now claim to have been improperly served with summons. This
Court, therefore, finds justifiable reason for the lower court's order piercing
the veil of corporate fiction. ... (p. 56, rollo)
We have already found that there was no valid summons effected upon petitionerspouses. Since, the appellate court considered service of summons upon the
petitioner-spouses as constituting service of summons upon the petitioner-corporation,
the inevitable conclusion is that no valid summons could have been effected upon the
petitioner-corporation.

Moreover, even if we assume that there was valid service of summons upon the
petitioner-spouses, it does not necessarily follow that there was also valid service of
summons upon the petitioner-corporation.
We have explained the doctrine of piercing the veil of corporate fiction in the following
manner:
The doctrine that a corporation is a legal entity distinct and separate from
the members and stockholders who compose it is recognized and
respected in all cases which are within reason and the law. (Borja v.
Vasquez, 74 Phil. 56), When the fiction is urged as a means of perpetrating
a fraud or an illegal act or as a vehicle for the evasion of an existing
obligation, the circumvention of statutes, the achievement or perfection of a
monopoly or generally the perpetration of knavery or crime, (Koppel Phil. v.
Yatco, 77 Phil. 496; Lidell & Co. v. Collector, G.R. No. L-9687, June 30,
1961; Commissioner v. Norton & Harrison Company, G.R. No. L- 17618,
Aug. 31, 1964; and Guevarra, Phil. Corp. Law, 1961 ed., p. 7) the veil with
which the law covers and isolates the corporation from the members or
stockholders who compose it will be drifted to allow for its consideration
merely as an aggregation of individuals. (Villa Rey Transit, Inc. v. Ferrer, 25
SCRA 845-857).
In effect, this doctrine refers to determination of liability and not to determination of
jurisdiction.
This is so because the doctrine of piercing the veil of corporate fiction comes to play
only during the trial of the case after the court has already acquired jurisdiction over the
corporation. Hence, before this doctrine can be applied, based on the evidence to be
presented, it is imperative that the court must first have jurisdiction over the
corporation. For the court to acquire jurisdiction over a domestic corporation such as
the petitionercorporation, summons must be served upon it through the officers of the
corporation enumerated in Section 13, Rule 14 of the Revised Rules of Court. There is
not even a semblance of any effort to serve summons upon an officer as such Since,
the summons intended for the petitioner-corporation was "not and could not be served"
as certified in the sheriff's return, the lower court never acquired jurisdiction over the
petitioner-corporation. It follows that the judgment against the petitioner-corporation is
null and void
The allegations that the petitioners deliberately concealed their whereabouts to escape
the payment of just and valid obligations appear to have some basis. However,
allegations such as these do not justify the appellate court's upholding a judgment
wherein the trial court has not acquired jurisdiction over the persons of the defendants.

The private respondent has chosen to employ a procedure which is strictly in

personam. As indicated in the cases of Citizens Surety and Insurance, Inc. v.
Melencio-Herrera (38 SCRA 369) and Magdalena Estate, Inc. v. Nieto(125 SCRA 758)
it is also possible to use proceedings in rem or quasi in rem to achieve the same
desired ends. There may be other ways which, if utilized, would insure that the courts
acquire jurisdiction over defendants in recovery of money cases but the shortcut
method approved by the respondent court is not one of them.
WHEREFORE, the instant petition is hereby GRANTED. The lower court's decision in
Civil Case No. 2807 is SET ASIDE. The case is remanded to the trial court for proper
service of summons and trial.
SO ORDERED.

THIRD DIVISION
[G.R. No. 147530. June 29, 2005]

PABLO B. CASIMINA, then General Manager of the Philippine Fisheries

Development Authority, petitioner, vs. HON. EMILIO B. LEGASPI, in his
capacity as Presiding Judge of RTC of Iloilo, Branch 22 and EMMANUEL T.
ILLERA, respondents.
DECISION
CORONA, J.:

Before us is a petition for review under Rule 45 of the Rules of Civil Procedure for the
nullification of the decision dated August 18, 2000 of Hon. Emilio B. Legaspi, presiding
judge of the Regional Trial Court of Iloilo City, Branch 22 in Civil Case No. 00-26187,

directing petitioner to desist from giving effect to the re-assignment of private respondent
from his permanent station in Iloilo City to the Quezon City office.
The facts follow.
Private respondent Emmanuel T. Illera was the Port Manager of the Iloilo Fishing Port
Complex (IFPC) while petitioner Pablo B. Casimina was the then General Manager of the
Philippine Fisheries Development Authority (PFDA) with offices in Quezon City.
On March 17, 2000, petitioner Casimina issued Special Order No. 82 re-assigning
private respondent from Iloilo to the central office in Quezon City:
[1]

17 March 2000
SPECIAL ORDER
No. 82
Series of 2000
Subject: REASSIGNMENT OF PERSONNEL
In the exigency of the service, Mr. EMMANUEL T. ILLERA, Port Manager of the Iloilo Fish Port
Complex (IFPC) is hereby reassigned to the Central Office of the General Manager effective 03
April 2000. To assume responsibility of over-all port administration, Engr. TITO C. COSEJO, Port
Manager, Navotas Fish Port Complex (NFPC) is hereby re-assigned and designated as Acting Port
Manager of the Iloilo Fish Port Complex.
Mr. Illera and Engr. Cosejo should immediately clear themselves of their administrative
accountabilities before proceeding to their new place of assignment.
This Order shall remain effective until revoked in writing by the undersigned.
(SGD.) PABLO B.
CASIMINA
General Manager
On March 22, 2000, private respondent sent a memorandum to petitioner praying for
a reconsideration of the above order. He wrote
[2]

22 March 2000
M E M O R AN D U M

F O R: The General Manager, PFDA

T H R U: The Asst. General Manager, PFDA
F R O M: The Port Manager, PFDA-IFPC
SUBJECT: REASSIGNMENT
In the late afternoon of 21 March 2000, S.O. no. 82 s. 2000 was faxed to my office. I was surprised
when my staff gave this communication to me the next day because considering my transfer or any
employees transfers for that matter would have far reaching official and personal consequences as
well, I expected that this matter should have at least first been discussed with me. As it is I do not
know for what reasons if any I am being reassigned or even what I am supposed to be doing in your
office when I get there. The S.O. itself is silent on these matters.
My situation becomes quite ironic when we look at S.O. no. 81 s. 2000 which is dated 14 March
2000. Before this Order referring to Ms. Irma Catains detail to Central Office was even prepared,
Ms. Catain first talked to you, me and Atty. Paz to whose office she will be assigned. When we
accepted her personal reasons for reassignment our offices worked out the details of her transfer
and so the Special Order was issued. If you will recall, last 18 January 2000 an undated S.O. No.
024 was issued transferring Engr. P. Zapanta, the IFPC Acting EMD chief to General Santos and no
prior consultation was also done. I thought with the procedure observed in Ms. Catains case all that
was behind us.
In view therefore of the above I am requesting that S.O. No. 82 s.2000 be reconsidered.
(SGD.) EMMANUEL T.
ILLERA
On March 29, 2000, petitioner issued a memorandum to private respondent stating
therein the reason for the re-assignment. He explained
[3]

29 March 2000
M E M O R AN D U M
T O: The Port Manager, IFPC
F R O M: The General Manager
SUBJECT: Reassignment to Central Office
Your response dated 22 March 2000 to Special Order No. 82 Series of 2000 regarding your
reassignment to the Central Office is noted.

While in the Central Office, you are expected to help review and formulate credit and collection
policies that would negate the accumulation of uncollected accounts receivables, in addition to the
other duties that may be assigned to you in the interest of the service.
In this connection, you are hereby ordered to cease and desist from the further performance of your
duties as Port Manager of the Iloilo Fish Port Complex effective 03 April 2000 and to assume
duties and responsibilities as stated.
For strict compliance.
(SGD.) PABLO B.
CASIMINA
After receiving the memorandum, private respondent immediately filed a case for
injunction with prayer for temporary restraining order and a writ of preliminary injunction
against petitioner in the RTC of Iloilo, Branch 22 docketed as Civil Case No. 00-26187, to
restrain petitioner from transferring him to the central office in Quezon City.
On April 14, 2000, petitioner, through counsel, filed an omnibus motion for the
dismissal of the complaint on the grounds of lack of jurisdiction over his person and the
subject matter, and lack of cause of action. He averred that he never received any
summons or copy of the complaint against him, hence, the court never acquired
jurisdiction over his person. He further contended that the case involved personnel
movement of a government employee in the public service and should have been
appealed to the Civil Service Commission instead of the regular courts.
The trial court denied petitioners motion to dismiss the complaint against him and
granted the writ of preliminary injunction prayed for by private respondent ordering
petitioner to desist from giving effect to the re-assignment of plaintiff (herein private
respondent) from his permanent station in Iloilo City to the Quezon City office.
[4]

Petitioner moved for a reconsideration of the above decision but it was denied, hence,
this appeal. He raises the following as the issues for our consideration:
A. Whether or not public respondent, Hon. Emilio B. Legaspi, in his capacity as Presiding Judge of the
Regional Trial Court of Iloilo, Branch 22, exercised grave abuse of discretion which is tantamount
to lack of or in excess of jurisdiction in deciding the case when the said trial court has not acquired
jurisdiction over the person of the petitioner and the subject matter of the case;
B. Whether or not the instant case should be dismissed for lack of cause of action on the ground of
private respondents failure to exhaust administrative remedies.[5]

Petitioner contends that the court a quo did not acquire jurisdiction over his person
because the summons, together with a copy of the complaint, was not personally served
on him. He argues that the summons was served by the sheriff in the PFDA office in the

Iloilo Fishing Port Complex while his office was in Quezon City. He further contends that
when Assistant Government Corporate Counsel Reynaldo R. Tansioco, Government
Corporate Attorney Ruben S. de la Paz and Government Corporate Attorney Mariano C.
Alojado appeared in court during the hearing of the motion for the issuance of a
preliminary injunction on April 18, 2000, they did so only to inform the court that they had
filed an omnibus motion to dismiss the complaint against petitioner on the ground of lack
of jurisdiction over his person and over the subject matter of the case.
We find the petition meritorious.
A court acquires jurisdiction over a person either through a valid service of summons
or the persons voluntary appearance in court. A court must necessarily have jurisdiction
over a party for the latter to be bound by a court decision.
[6]

Generally accepted is the principle that no man shall be affected by any proceeding to which he is a
stranger, and strangers to a case are not bound by judgment rendered by the court.
[7]

Summons is a writ by which the defendant is notified of the action brought against him.
Service of such writ is the means by which the court may acquire jurisdiction over his
person. As a rule, summons should be personally served on the defendant. It is only
when summons cannot be served personally within a reasonable period of time that
substituted service may be resorted to. The Rules specify two modes for effecting
substituted service of summons, to wit:
[8]

[9]

[10]

a) by leaving copies of the summons at the defendants residence with some person of suitable age
and discretion then residing therein, or
b) by leaving the copies at defendants office or regular place of business with some competent person
in charge thereof.[11]

Here, petitioner never received the summons against him, whether personally or in his
office. The records show that petitioners official address as the General Manager of the
Philippine Fisheries Development Authority (PFDA) was in Quezon City. Yet, the
summons, together with a copy of the complaint, was served not in his Manila office but in
PFDAs Iloilo branch office and received by the records receiving officer there. We have
held that the failure to faithfully, strictly and fully comply with the requirements of
substituted service renders the service ineffective.
[12]

In ruling that there was a valid service of summons, respondent judge presumed that
the said Records Receiving Officer (was) authorized to receive the communication or court
processes addressed to the defendant. He further surmised and held that:
[13]

One thing sure is, he forwarded it to their Manila, Quezon City Central Office. In fact, Engr. Tito
Cosejo who briefly acted as the Department Manager of the Iloilo Fishing Port Complex, appeared
in Court during the summary hearing on the plaintiffs prayer for the issuance of the TRO on April

4, 2000 and informed the Court that the summons was received by their Central Office when
defendant was on his way to the province. There was therefore substantial compliance of the rule
on service of summons.
We disagree.
The doctrine of substantial compliance requires that for there to be a valid service of
summons, actual receipt of the summons by the defendant through the person served
must be shown. We further require that where there is substituted service, there should
be a report indicating that the person who received the summons in the defendants behalf
was one with whom petitioner had a relation of confidence ensuring that the latter would
receive or would be notified of the summons issued in his name. None of these was
observed in the case at bar.
[14]

[15]

We cannot infer actual receipt of summons by petitioner from the fact that the
government corporate counsel filed a motion to dismiss the case against him and Mr.
Cosejo appeared on his behalf during the summary hearing for the issuance of a
temporary restraining order to ask for the postponement of the case. It is well-settled that
a party who makes a special appearance in court challenging the jurisdiction of said court
based on the ground of invalidity of summons, among others, cannot be considered to
have submitted himself to the jurisdiction of the court. Even the assertion of affirmative
defenses, aside from lack of jurisdiction over the person of the defendant, cannot be
considered a waiver of the defense of lack of jurisdiction over such person.
[16]

[17]

Since the trial court did not acquire jurisdiction over the person of petitioner, he could
not have been bound by the decision of respondent judge ordering him to desist from
transferring private respondent from his station in Iloilo City to the central office in Quezon
City. Any decision rendered without jurisdiction is a total nullity and may be struck down at
any time, even on appeal, before this Court.
On the issue of lack of jurisdiction over the subject matter, we agree with petitioner that
this case falls within the jurisdiction of the Civil Service Commission (CSC) because it
involves the movement of government personnel to promote order and efficiency in public
service. The 1987 Constitution specifically mandates that:
Section 3. The Civil Service Commission, as the central personnel agency of the government, shall
establish a career service and adopt measures to promote morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merits
and rewards system, integrate all human resources development programs for all levels and ranks,
and institutionalize a management climate conducive to public accountability. It shall submit to the
President and the Congress an annual report on its personnel programs. (emphasis ours)
[18]

Personnel actions, i.e., appointments, promotions, transfers, re-assignments, etc., are

specifically provided for in Section 26 (3), Chapter 5, Book V, Subtitle A, of Executive
Order No. 292, or the Administrative Code of 1987. Thus,
Section 26. Personnel Actions. xxx any action denoting the movement or progress of personnel in
the civil service shall be known as personnel action. Such action shall include appointment through
certification, promotion, transfer, reinstatement, re-employment, detail, reassignment, demotion,
and separation. All personnel actions shall be in accordance with such rules, standards, and
regulations as may be promulgated by the Commission.
xxx xxx xxx
(3) Transfer. A transfer is a movement from one position to another which is of equivalent rank,
level, or salary without break in service involving the issuance of an appointment.
It shall not be considered disciplinary when made in the interest of public service, in which
case, the employee concerned shall be informed of the reason therefore. If the employee believes
that there is no justification for the transfer, he may appeal his case to the
Commission. (emphasis ours)
xxx xxx xxx
While we are aware that the power to transfer and re-assign government employees
from one office to another can be abused by some unscrupulous government officials, not
all transfers, however, amount to removal from office.
[19]

(N)either does illegality attach to the transfer of an employee from his assigned station to the main
office, effected in good faith and in the interest of the service pursuant to Sec. 32 of the Civil
Service Act.
[20]

Here, petitioner ordered the transfer of private respondent from the Iloilo branch to the
main office in Manila in the exigency of the service and in order to
help review and formulate credit and collection policies that would negate the accumulation of
uncollected accounts receivables, in addition to the other duties that may be assigned to (him) in the
interest of the service.
[21]

There is nothing to show from the facts presented to us that the order transferring
private respondent to Manila was done in bad faith or motivated by ill will. We thus find his
refusal to transfer to the main office to be without basis.
In any event, if private respondent believed that his transfer was unjustified, his
remedy was to appeal to the Civil Service Commission. It was therefore wrong for the
[22]

trial court to take cognizance of the case without private respondent first exhausting the
administrative remedies available to him.
WHEREFORE, foregoing premises considered, the petition is hereby GRANTED. The
decision in Civil Case No. 00-26187, and the order denying the motion for its
reconsideration, are hereby ANNULLED AND SET ASIDE.
SO ORDERED.

FIRST DIVISION
[G.R. No. 164041. July 29, 2005]

ROSENDO ALBA, minor, represented by his mother and natural guardian, Armi
A. Alba, and ARMI A. ALBA, in her personal capacity, petitioners, vs.
COURT OF APPEALS and ROSENDO C. HERRERA, respondents.
DECISION
YNARES-SANTIAGO, J.:

Assailed in this petition for certiorari[1] are the February 27, 2004 decision[2] and the
May 14, 2004 resolution[3] of the Court of Appeals in CA-G.R. SP No. 61883, which
dismissed petitioners original action for annulment of judgment [4] of the Regional Trial
Court of Manila, Branch 37, and denied the motion for reconsideration, respectively.

The antecedent facts show that on October 21, 1996, private respondent Rosendo C.
Herrera filed a petition[5] for cancellation of the following entries in the birth certificate of
Rosendo Alba Herrera, Jr., to wit: (1) the surname Herrera as appended to the name of
said child; (2) the reference to private respondent as the father of Rosendo Alba Herrera,
Jr.; and (3) the alleged marriage of private respondent to the childs mother, Armi A. Alba
(Armi) on August 4, 1982 in Mandaluyong City. He claimed that the challenged entries are
false and that it was only sometime in September 1996 that he learned of the existence of
said birth certificate.
Private respondent alleged that he married only once, i.e., on June 28, 1965 with
Ezperanza C. Santos and never contracted marriage with Armi nor fathered Rosendo Alba
Herrera, Jr. In support thereof, he presented certifications from the Civil Registrar of
Mandaluyong City[6] and the National Statistics Office,[7] both stating that they have no
record of marriage between private respondent and Armi.
On November 12, 1996, private respondent filed an amended petition, [8] impleading
Armi and all the persons who have or claim any interest in th[e] petition.[9]
On November 27, 1996, the trial court issued an Order setting the petition for hearing
on January 24, 1997, and directed the publication and service of said order to Armi at her
address appearing in the birth certificate which is No. 418 Arquiza St., Ermita, Manila, and
to the Civil Registrar of the City of Manila and the Solicitor General. The full text of the
order, reads:
In a verified Amended Petition for Correction of Entry, the Petitioner prays, inter alia, that the
following entries appearing in the subject Certificate of Live Birth be deleted:
1. All informations having reference to him as the father of the child mentioned therein;
2. The surname Herrera appended to the childs name;
3. His alleged marriage with the natural mother of the child.
Finding the Petition to be sufficient in form and substance, let the Petition be set for hearing on
January 24, 1997 at nine oclock in the morning before this Branch at Rooms 447-449, Fourth Floor,
Manila City Hall. All interested parties are hereby notified of the said hearing and are ordered to
show cause why the Petition should not be granted.
Let a copy of this Order be published at the expense of the Petitioner, once a week for three (3)
consecutive weeks, in a newspaper of general circulation in the City of Manila, and raffled pursuant
to P.D. 1079.
Furnish the Office of the Solicitor General and the Office of the Local Civil Registrar of the City of
Manila with copies of the Petition and of this Order.

Let the same be likewise furnished the Private Respondent Armi Alba Herrera at the address
indicated in the subject Certificate of Live Birth.
SO ORDERED.[10]
On January 13, 1997, before the scheduled January 24, 1997 hearing, the trial court
issued an Amended Order[11] with substantially the same contents, except that the hearing
was re-scheduled to February 26, 1997. A copy of said Amended Order was published in
Today, a newspaper of general circulation in Manila in its January 20, 27, and February 3,
1997 issues. Copies thereof were also sent to Armi at No. 418 Arquiza St., Ermita, Manila,
on January 17, 1997, the Local Civil Registrar of Manila and the Solicitor General.
At the scheduled hearing on February 26, 1997, the counsel from the Office of the
Solicitor General appeared but filed no opposition to the petition. Armi, on the other hand
was not present. The return of the notice sent to her had the following notation:
This is to certify that on January 17, 1997, the undersigned [process server] personally served a
copy of the Amended Order in Sp. Proc. No. 96-80512 dated January 13, 1997 to the private
respondent, Armi Alba Herrera at 418 Arquiza St., Ermita, Manila, but failed and unavailing for
reason that (sic), private respondent is no longer residing at said given address.[12]
On April 1, 1997, the court a quo rendered a decision which became final and
executory on June 2, 1997.[13] The dispositive portion thereof, states:
ACCORDINGLY, and pursuant to Rule 108 of the Revised Rules of Court, judgment is hereby
rendered ordering the correction of the entries in the Certificate of Live Birth of Rosendo Alba
Herrera, Jr., in such a way that the entry under the name of the child, the surname Herrera, Jr.[,] is
ordered deleted, and the child shall be known as ROSENDO ALBA; and that the entry under the
date and place of marriage, the date August 4, 1982, Mandaluyong, MM is likewise ordered deleted
or cancelled.
Let a copy of this Decision be furnished the Local Civil Registrar of Manila for proper correction
and entry. SO ORDERED.[14]
Private respondent filed a motion[15] for amendment of the decretal portion of the
decision to include the cancellation of all entries having reference to him as the father of
petitioner minor. This was granted in the August 11, 1997 order of the trial court as follows:
ACCORDINGLY, and pursuant to Rule 108 of the Revised Rules of Court, judgment is hereby
rendered ordering the correction of the entries in the Certificate of Live Birth of Rosendo Alba
Herrera, Jr., in such a way that the entries under the name of the child, the surname Herrera, Jr., and
the name of the father Rosendo Caparas Herrera are ordered deleted, and the child shall be known
as ROSENDO ALBA; and the entry under the date and place of marriage, the date August 4, 1982,
Mandaluyong, MM is likewise ordered deleted or cancelled. SO ORDERED. [16]

On November 24, 2000, Armi and petitioner minor filed a petition for annulment of
judgment before the Court of Appeals on the grounds of extrinsic fraud and lack of
jurisdiction over their person. She allegedly came to know of the decision of the trial court
only on February 26, 1998, when San Beda College, where her son was enrolled as a
high school student, was furnished by private respondent with a copy of a court order
directing the change of petitioner minors surname from Herrera to Alba.
Armi averred that private respondent was aware that her address is at Unit 302 Plaza
Towers Condominium, 1175 Lorenzo Guerrero St., Ermita, Manila, because such was her
residence when she and private respondent cohabited as husband and wife from 1982 to
1988; and her abode when petitioner minor was born on March 8, 1985. Even after their
separation, private respondent continued to give support to their son until 1998; and that
Unit 302 was conveyed to her by private respondent on June 14, 1991 as part of his
support to petitioner minor. According to Armi, her address i.e., No. 418 Arquiza St.,
Ermita, Manila, as appearing in the birth certificate of their son, was entered in said
certificate through the erroneous information given by her sister, Corazon Espiritu. She
stressed that private respondent knew all along that No. 418 Arquiza St., is the residence
of her sister and that he deliberately caused the service of notice therein to prevent her
from opposing the petition.
In his answer, private respondent denied paternity of petitioner minor and his
purported cohabitation with Armi. He branded the allegations of the latter as false
statements coming from a polluted source.[17]
On February 27, 2004, the Court of Appeals dismissed the petition holding, among
others, that petitioner failed to prove that private respondent employed fraud and
purposely deprived them of their day in court. It further held that as an illegitimate child,
petitioner minor should bear the surname of his mother.[18] Petitioners filed a motion for
reconsideration but was denied.
Hence, the instant petition.
Under Section 2, Rule 47 of the 1997 Revised Rules of Civil Procedure, judgments
may be annulled on the grounds of lack of jurisdiction and extrinsic fraud.[19]
Whether or not the trial court acquired jurisdiction over the person of petitioner and her
minor child depends on the nature of private respondents action, that is, in personam, in
rem orquasi in rem. An action in personam is lodged against a person based on personal
liability; an action in rem is directed against the thing itself instead of the person; while an
action quasi in rem names a person as defendant, but its object is to subject that persons
interest in a property to a corresponding lien or obligation.[20]

Hence, petitions directed against the thing itself or the res,[21] which concerns the status
of a person,[22] like a petition for adoption,[23] annulment of marriage,[24] or correction of
entries in the birth certificate,[25] as in the instant case, are actions in rem.
In an action in personam, jurisdiction over the person of the defendant is necessary for
the court to validly try and decide the case. In a proceeding in rem or quasi in rem,
jurisdictionover the person of the defendant is not a prerequisite to confer jurisdiction on
the court, provided that the latter has jurisdiction over the res. Jurisdiction over the res is
acquired either (a) by the seizure of the property under legal process, whereby it is
brought into actual custody of the law; or (b) as a result of the institution of legal
proceedings, in which the power of the court is recognized and made effective. [26] The
service of summons or notice to the defendant is not for the purpose of vesting the court
with jurisdiction but merely for satisfying the due process requirements.[27]
In the case at bar, the filing with the trial court of the petition for cancellation vested the
latter jurisdiction over the res. Substantial corrections or cancellations of entries in
civil registry records affecting the status or legitimacy of a person may be effected through
the institution of a petition under Rule 108 of the Revised Rules of Court, with the proper
Regional Trial Court.[28] Being a proceeding in rem, acquisition of jurisdiction over the
person of petitioner is therefore not required in the present case. It is enough that the trial
court is vested with jurisdiction over the subject matter.
The service of the order at No. 418 Arquiza St., Ermita, Manila and the publication
thereof in a newspaper of general circulation in Manila, sufficiently complied with the
requirement of due process, the essence of which is an opportunity to be heard. Said
address appeared in the birth certificate of petitioner minor as the residence of Armi.
Considering that the Certificate of Birth bears her signature, the entries appearing therein
are presumed to have been entered with her approval. Moreover, the publication of the
order is a notice to all indispensable parties, including Armi and petitioner minor, which
binds the whole world to the judgment that may be rendered in the petition. An in
rem proceeding is validated essentially through publication.[29] The absence of personal
service of the order to Armi was therefore cured by the trial courts compliance with Section
4, Rule 108, which requires notice by publication, thus:
SEC. 4. Notice and publication. Upon the filing of the petition, the court shall, by an order, fix the
time and place for the hearing of the same, and cause reasonable notice thereof to be given to the
persons named in the petition. The court shall also cause the order to be published once a week for
three (3) consecutive weeks in a newspaper of general circulation in the province.
In Barco v. Court of Appeals, the trial court granted a petition for correction/change of
entries in a minors birth certificate to reflect the name of the minors real father as well as
to effect the corresponding change of her surname. In seeking to annul said decision, the
other children of the alleged father claimed that they are indispensable parties to the

petition for correction, hence, the failure to implead them is a ground to annul the decision
of the trial court. The Court of Appeals denied the petition which was sustained by this
Court on the ground, inter alia, that while petitioner is indeed an indispensable party, the
failure to implead her was cured by the publication of the order of hearing. Thus
Undoubtedly, Barco is among the parties referred to in Section 3 of Rule 108. Her interest was
affected by the petition for correction, as any judicial determination that June was the daughter of
Armando would affect her wards share in the estate of her father. It cannot be established whether
Nadina knew of Mary Joys existence at the time she filed the petition for correction. Indeed, doubt
may always be cast as to whether a petitioner under Rule 108 would know of all the parties whose
interests may be affected by the granting of a petition. For example, a petitioner cannot be
presumed to be aware of all the legitimate or illegitimate offsprings of his/her spouse or paramour.
The fact that Nadina amended her petition to implead Francisco and Gustilo indicates earnest effort
on her part to comply with Section 3 as quoted above.
Yet, even though Barco was not impleaded in the petition, the Court of Appeals correctly pointed
out that the defect was cured by compliance with Section 4, Rule 108, which requires notice by
publication, thus:
Section 4. Upon the filing of the petition, the court shall, by order, fix the time and place for the
hearing of the same, and cause reasonable notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published once a week for three (3) consecutive
weeks in a newspaper of general circulation in the province.
The purpose precisely of Section 4, Rule 108 is to bind the whole world to the subsequent
judgment on the petition. The sweep of the decision would cover even parties who should
have been impleaded under Section 3, Rule 108, but were inadvertently left out. The Court of
Appeals correctly noted:
The publication being ordered was in compliance with, and borne out by the Order of January 7,
1985. The actual publication of the September 22, 1983 Order, conferred jurisdiction upon the
respondent court to try and decide the case. While nobody appeared to oppose the instant petition
during the December 6, 1984 hearing, that did not divest the court from its jurisdiction over the
case and of its authority to continue trying the case. For, the rule is well-settled, that jurisdiction,
once acquired continues until termination of the case.
Verily, a petition for correction is an action in rem, an action against a thing and not against a
person. The decision on the petition binds not only the parties thereto but the whole world. An in
rem proceeding is validated essentially through publication. Publication is notice to the whole
world that the proceeding has for its object to bar indefinitely all who might be minded to make an
objection of any sort against the right sought to be established. It is the publication of such notice
that brings in the whole world as a party in the case and vests the court with jurisdiction to hear and
decide it.[30]

Furthermore, extrinsic fraud, which was private respondents alleged concealment of

Armis present address, was not proven. Extrinsic fraud exists when there is a fraudulent
act committed by the prevailing party outside of the trial of the case, whereby the defeated
party was prevented from presenting fully his side of the case by fraud or deception
practiced on him by the prevailing party. Here, Armi contended that private respondent is
aware of her present address because they lived together as husband and wife in the
condominium unit from 1982 to 1988 and because private respondent continued to give
support to their son until 1998. To prove her claim, she presented (1) private respondents
title over the condominium unit; (2) receipts allegedly issued to private respondent for
payment of homeowners or association dues; (2) a photocopy of a January 14, 1991 deed
of sale of the subject unit in favor of Armi; and (3) the subsequent title issued to the latter.
However, these documents only tend to prove private respondents previous ownership of
the unit and the subsequent transfer thereof to Armi, but not the claimed live-in
relationship of the parties. Neither does the sale prove that the conveyance of the unit was
part of private respondents support to petitioner minor. Indeed, intimate relationships and
family relations cannot be inferred from what appears to be an ordinary business
transaction.
Although the January 14, 1991 deed of sale[31] stated that Armi resides at 1175 L.
Guerrero St., Ermita, Manila, the same is not sufficient to prove that private respondent
has knowledge of Armis address because the former objected to the offer of the deed for
being a mere photocopy.[32] The counsel for petitioners even admitted that they do not
have the original of the deed and that per certification of the Clerk of Court, the Notary
Public who notarized the deed of sale did not submit a copy of the notarized document as
required by the rules.[33] The deed cannot thus be the basis of ascribing knowledge of
Armis address to private respondent inasmuch as the authenticity thereof was neither
admitted by private respondent nor proven by petitioners.
While Armi presented the alleged love letters/notes from private respondent, they were
only attached as annexes to the petition and not formally offered as evidence before the
Court of Appeals. More importantly, said letters/notes do not have probative value
because they were mere photocopies and never proven to be an authentic writing of
private respondent. In the same vein, the affidavits [34] of Armi and her sister, Corazon
Espiritu, are of no evidentiary weight. The basic rule of evidence is that unless the affiants
themselves are placed on the witness stand to testify on their affidavits, such
affidavits must be rejected for being hearsay. Stated differently, the declarants of written
statements pertaining to disputed facts must be presented at the trial for crossexamination.[35] Inasmuch as Armi and her sister were not presented before the Court of
Appeals to affirm the veracity of their affidavits, the same are considered hearsay and
without probative value.
Ei incumbit probotio qui dicit, non qui negat. He who asserts, not he who denies, must
prove.[36] Armis claim that private respondent is aware of her present address is anchored

on the assertion of a live-in relationship and support to her son. Since the evidence
presented by Armi is not sufficient to prove the purported cohabitation and support, it
follows that private respondents knowledge of Armis address was likewise not proven.
Thus, private respondent could not have deliberately concealed from the court that which
was not shown to be known to him. The Court of Appeals therefore correctly dismissed the
petition for annulment of judgment on the ground of failure to establish extrinsic fraud.
The proper remedy of a party aggrieved by a decision of the Court of Appeals in an
action to annul a judgment of a Regional Trial Court is a petition for review
on certiorari under Rule 45 of the Revised Rules of Civil Procedure, where only questions
of law may be raised. The resort of petitioner to the instant civil action for certiorari under
Rule 65 is therefore erroneous. The special civil action of certiorari will not be allowed as a
substitute for failure to timely file a petition for review under Rule 45, which should be
instituted within 15 days[37] from receipt of the assailed decision or resolution. The wrong
choice of remedy thus provides another reason to dismiss this petition.[38]
Finally, petitioner failed to establish the merits of her petition to annul the trial courts
decision. In an action for annulment of judgment, the petitioner must convince the court
that something may indeed be achieved should the assailed decision be annulled.
[39]
Under Article 176[40] of the Family Code as amended by Republic Act (RA) No. 9255,
which took effect on March 19, 2004, illegitimate children shall use the surname of their
mother, unless their father recognizes their filiation, in which case they may bear the
fathers surname. In Wang v. Cebu Civil Registrar,[41] it was held that an illegitimate child
whose filiation is not recognized by the father, bears only a given name and his mothers
surname. The name of the unrecognized illegitimate child identifies him as such. It is only
when said child is recognized that he may use his fathers surname, reflecting his status as
an acknowledged illegitimate child.
In the present case, it is clear from the allegations of Armi that petitioner minor is an
illegitimate child because she was never married to private respondent. Considering that
the latter strongly asserts that he is not the father of petitioner minor, the latter is therefore
an unrecognized illegitimate child. As such, he must bear the surname of his mother.
In sum, the substantive and procedural aspects of the instant controversy do not
warrant the annulment of the trial courts decision.
WHEREFORE, the petition is DISMISSED. The February 27, 2004 decision and the
May 14, 2004 resolution of the Court of Appeals in CA-G.R. SP No. 61883 are
AFFIRMED.
SO ORDERED.