G.R. No. L-6606. September 29, 1954

From the record we gather the following facts. Perfecto Guillen and
eleven others were employed by petitioner Jose M. Lezama in his fishing
business. Claiming that they had not been paid their wages to May 28,
1952, they filed Civil Case No. R-1916 in the Court of First Instance
of Cebu to collect said pay, and for other relief. At that time Lezama
would appear to be residing in the City of Iloilo, although his Manager
Juan B. Cesar lived in the City of Cebu. Because Cesar could not be
found in Cebu at the time that the complaint was filed the
corresponding summons together with a copy of the complaint were sent
to the Provincial Sheriff of Iloilo for service on Lezama and were
received by said Sheriff on May 31, 1952. On petition of plaintiffs
Guillen et al., a writ of attachment was issued against the fishing
boat M/L CATALINA belonging to Lezama. Manager Cesar then already in
Cebu was notified of this writ of attachment and he must have notified
his employer Lezama because the latter for the purpose of lifting the
writ, from Iloilo on June 5, 1952, sent a telegram to Judge Piccio who
was hearing the case asking him to telegraph to him collect if he was
agreeable to his filing of a P5,000.00 counter-bond and also asking
that the clerk of court send to him a copy of the complaint via airmail
(Appendix A). Judge Piccio answered by telegram on the same date to the
effect that a P5,000.00 counter-bond would be approved. On June 13,
1952, Lezama filed the corresponding counter-bond in the amount of
P5,000.00 which was approved by the judge.

On October 11, 1952, Judge Piccio issued the following order:

“Defendant not having filed his answer to the
complaint within the statutory period, as prayed for, this court hereby
declares the defendant in default.

“Plaintiffs may, therefore, introduce their evidence at any convenient date.

“So ordered.”

It would seem however that the Provincial Sheriff of Iloilo had not
in the meantime served the summons and the copy of the complaint on
Lezama in Iloilo, despite the fact that he (Sheriff) received said
summons as early as May 31, 1952. On November 28, 1952, the Cebu clerk
of court wired said sheriff requesting him to inform the court of the
date a,copy of the complaint in Civil Case No. R-1916 was served on the
defendant. No answer was received. On December 8, 1952, Judge Piccio
himself telegraphed the Iloilo Provincial Sheriff to answer by telegram
collect and inform him if he had summoned defendant in said case.
Still, no answer. But two days after, that is, on December 10th, said
sheriff served the summons on Lezama,

On December 22, 1952, Judge Piecio rendered judgment in favor of
Guillen and his eleven co-plaintiffs in civil case No. R-1916 and
against defendant Lezama. On December 23, 1952, Lezama filed a motion
for reconsideration asking that the order of default be reconsidered,
and that he be allowed to answer the complaint, at the same time
enclosing a copy of his answer, alleging that it was only on December
10, 1952, that he received the summons and a copy of the complaint.
According to respondents, Guillen et al., this motion was denied by the
court on January 3, 1953; and the answer attached to the motion was
dismissed on the same date. Then, in an undated petition for relief but
bearing the month of January and the year 1953, defendant Lezama
claiming that he had a “good and strong evidence to counteract
plaintiffs’ claim, if the former is given a chance to be heard,” asked
that the judgment rendered against him be set aside and that a new
trial be ordered, at the same time contending that his filing of a counter-bond to dissolve the writ of attachment did not constitute a
voluntary appearance nor did it confer upon the court jurisdiction over
his person be- cause he was not regularly served with summons.

According to Lezama this petition for relief was never acted upon by
the court, and according to respondents, copy of said petition for
relief was never served on them or upon their attorney. Lezama has now
come to this tribunal with a petition for certiorari, prohibition and
mandamus, asking that the decision of Judge Piccio as well as the
proceedings had in his court be declared null and void, and that the
case be remanded to that court for trial on the merits.

One question involved in the present case is whether the action
taken by Lezama in asking the trial court by means of a telegram to fix
the amount of a counter-bond to dissolve the writ of attachment and his
subsequent filing of the counter-bond fixed by the court constituted a
voluntary appearance which according to rule 7, section 23 of the Rules
of Court is equivalent to service of summons. If it is, then the
fifteen (15) days period provided by rule 9, section 1, of the Rules of
Court within which a defendant shall file his answer should be computed
not from December 10, 1952, when Lezama was actually and formally
served with summons by the Iloilo Sheriff but from June 5, 1952, when
Lezama sent the telegram to Judge Piccio or at the latest from June 13,
1952, when he filed his counterbond. And if this be the case, then
Lezama was properly and correctly declared in default for his1 failure
to file an answer on time.

In the case of Flores vs. Zurbito, 37 Phil., 746, 750, this court said the following:

“* * *. While the formal method of entering an
appearance in a cause pending in the courts is to deliver to the clerk
a written direction ordering him to enter the appearance of the person
who subscribes it, an appearance may be made by simply filing a formal
motion, or plea or answer. This formal method of appearance is not
necessary. He may appear without such formal appearance and thus submit
himself to the jurisdiction of the court. He may appear by presenting a
motion, for example, and unless by such appearance he specifically
objects to the jurisdiction of the court, he thereby gives his asset to
the jurisdiction of the court over his person.”

In the case of Monteverde vs. Jaranilla, 60 Phil., 306, this court
said that a special appearance in which the jurisdiction of the court
over the person of the defendant is not expressly impugned and in which
the dissolution of an attachment is asked upon the filing of a counter-bond, is equivalent to a general appearance.

And in the case of Marquez Lim Cay vs. Del Rosario, 55 Phil., 962,
this court also held that “the filing of a motion praying for the
dissolution of an attachment without objecting to the jurisdiction of
the court over the place where the property is situated, by means of a
special appearance;” and “the giving of a bond for the dissolution of
said attachment, imply a submission to the jurisdiction of the court *
* *.”

On the strength of the authorities above cited we could hold that
petitioner Lezama was properly declared in default because he should
have filed his answer within fifteen days, not from December 10, 1952,
when he was actually served with summons in Iloilo, but from June 5,
1952, or at the latest, from June 13, 1952, when he filed with the Cebu
court the corresponding counter-bond in the amount fixed by said court
at his request and instance, all of which could be regarded as a
voluntary appearance, equivalent to service of summons, an appearance
in which the jurisdiction of the trial court was not impugned. But
there is one aspect of the case, by no means unimportant, which must be
considered, namely, the delay in the service of summons on Lezama. The
Iloilo Sheriff served the summons on him only on December 10, that is,
about two months after the order of default. It will be remembered that
in Lezama’s telegram to Judge Piccio on June 5, he asked that the Cebu
Clerk of Court send him a copy of the complaint by airmail. That shows
that Lezama was anxious to see a copy of the complaint, apprise himself
of the court action against him and put up a defense. But apparently,
said copy of the complaint was never sent to him. Besides, according
to him, and judging from a copy of his answer, he had a good defense,
provided of course that he can prove his allegations in it. We believe
and hold that under the circumstances, Lezama should be given his day
in court.

In view of the foregoing, the petition is granted, the order of
default and the decision are hereby set aside, and the trial court is
directed to reopen the case, admit Lezama’s answer and hear and decide
the case anew. No costs.

We cannot overlook the long delay in the service of the summons by
the Provincial Sheriff of Iloilo. Said Sheriff received said summons
from Cebu on May 31, 1952. On November 28, 1952, the Cebu Clerk of
Court wired him asking for information about the date the summons was
served on the defendant in said civil case No. R-1916. The Sheriff
apparently did not deign to answer the telegram. On December 8, 1952,
Judge Piccio himself telegraphed said Sheriff of Iloilo asking if he
had already served summons on the defendant. The Sheriff again failed
to answer; but apparently spurred by said two telegrams and realizing
the necessity of some action, on December 10, 1952, he actually served
the summons on the defendant. According to the answer of respondents,
said sheriff actually cashed the money order covering his fees as
sheriff, as early as June 1952, meaning that he collected his fees long
before he rendered services on December 10, 1952 when he served the
summons. The attention of the Department of Justice and the Presiding
Judge of the court of Iloilo are invited to this incident for purposes
of investigation if they deem one necessary, so that a similar case of
long, unexplained, and obnoxious delay in the service of summons will
not be repeated.

Paras, C.J., Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Concepcion and Reyes, J.B.L., JJ., concur.