G.R. No. 19993. March 24, 1923

This is an appeal from an order of the Court of First Instance dismissing the
action for want of jurisdiction over the person of the defendant.

The action is brought for the recovery of the possession of five parcels of
land situated in the barrio of Calatrava, municipality of Badajoz, subprovince
of Romblon, Province of Capiz, of which the deceased Pedro Sanz is alleged to
have taken possession unlawfully in the year 1908. It was originally brought
against Enriqueta Perez as administratrix of the estate of the said Pedro Sanz;
but on August 8, 1917, the plaintiff, upon discovering that Enriqueta Perez was
not legally appointed administratrix, filed a motion asking that an
administrator be appointed and that, thereupon, he be granted permission to
amend the complaint making such administrator the defendant. The motion was
granted and one Sebastian Felices was appointed special administrator and the
case partly tried on August 9, 1917; it was thereupon continued for the purpose
of enabling the plaintiff to have a survey made of the land in question as well
as of the “Hacienda de Sanz” in which the defendant claimed that the lands in
question were included.

Subsequently, the estate of Pedro Sanz was distributed among the heirs, a
scheme of partition having been approved by the Court of First Instance of
Romblon. Upon discovering that the distribution had been made, the plaintiff
filed a motion on January 12, 1918, setting forth that the five parcels in
question had been awarded to Francisco Sanz, one of the heirs of Pedro Sanz, and
asking that said Francisco Sanz be made a party defendant. Two days later the
administrator, Felices, presented a motion for the dismissal of the case as to
the estate of Pedro Sanz on the ground that as the property had been awarded to
Francisco Sanz, the administrator of the estate had no further interest
therein.

On January 9, 1918, in ruling on the two motions last mentioned, the court
ordered that Francisco Sanz be substituted for Sebastian Felices as defendant
and that Sebastian Felices be excluded (descartado) from the complaint.
The plaintiff did not except to this order, but on August 8, 1919, his attorney
filed an affidavit in which he states that he, on July 2, 1918, forwarded a
communication by registered mail to Francisco Sanz, which communication was
accompanied by an order of the court of January 19, 1918, together with
certified copies of all proceedings filed in the case; that said certified
copies were received by Francisco Sanz on the 23d of August, 1918, according to
certain telegrams received from the postmaster of the City of Manila.

On January 6, 1920, the plaintiff filed a motion asking that the case be set
down for hearing for the presentation of a plan of the “Hacienda de Sanz” and
for the taking of testimony of the surveyor by whom it was made.

On the same date Sebastian Felices, represented by his attorney, Jose
Altavas, filed a motion asking that the case be dismissed with costs against the
plaintiff, and on the same day Manuel Terrencio, as attorney for Francisco Sanz,
presented the following motion:

“Comes now Francisco Sanz, through his undersigned attorney, for the sole
purpose of objecting to the jurisdiction of this court over his person and to
this end makes the following motion;

” ‘The court of First Instance of Romblon has no jurisdiction over the person
of Mr. Francisco Sanz in the above entitled case.’

“GROUNDS

“Mr. Francisco Sanz was not duly summoned to appear before this court. The
court acquires jurisdiction by the service of summons.

“Mr. Francisco Sanz was not heard in this case. The court cannot adjudicate a
case without granting the party to be affected a previous hearing of his
defense.”

Both motions were opposed by the plaintiff and on February 5, 1920, the
court, upon hearing, denied the motion of Sebastian Felices, but granted the
motion of Francisco Sanz in the following language:

“It being an elementary principle of law that a court of justice cannot
acquire jurisdiction over the person of the defendant, without the latter being
served with summons, and it not appearing in the record that the movant,
Francisco Sanz, was ever served with summons, or that he has ever appeared at
any stage of this case; it being a principle of constitutional law that ‘no
person shall be deprived of his life or property rights without being previously
heard,’ the motion of Francisco Sanz is hereby granted, and it is ordered that
the whole proceeding be set aside without special finding as to
costs.”

The plaintiff duly excepted to this order and also to a subsequent order
denying the motion for a reconsideration and brought this appeal.

The appellant presents two assignments of error:

(1) The court below erred in dismissing the case, and

(2) That the court erred in not fixing a day for the presentation of the plan
of the “Hacienda Sanz,” the only evidence lacking for the final determination of
the case.

The first assignment of error is well taken and must be sustained. The
appellee Francisco Sanz is a transferee pendente lite of the property
involved in the case. As such he stands exactly in the shoes of his predecessor
in interest, the original defendant, and is bound by the proceedings had in the
case before the property was transferred to him. He is a proper, but not an
indispensable, party as he would, in any event, have been bound by the judgment
against his predecessor. (See 31 Cyc., 473.)

The court below erred in excluding the administrator Sebastian Felices from
the complaint; the proper procedure would have been to continue the action
against the administrator and simply join Francisco Sanz as a party defendant.
But no exception was taken to the order excluding the administrator and the
error can therefore not be considered here.

We agree with the court below that Francisco Sanz was not properly summoned.
The service upon a person of a copy of the order of the court making him a party
defendant, together with a copy of the complaint and other pleadings, is not the
process required for bringing him into court. There may be exceptions where it
is sought to bring in the administrator of a deceased party defendant in
substitution of the deceased, and it has also been held in at least one case
(Emeric vs. Alvarado, 64 Cal., 529) that where upon the decease of an
original defendant his infant heirs are made parties the service of the order
making them parties is sufficient without service of summons, but the present
case does not fall within any of these exceptions.

But in view of the fact that Francisco Sanz had been impleaded as a party
defendant, opportunity should have been given to have him summoned so as to
enable the court to decide the case on its merits. To avoid the retaking of
testimony and to prevent unnecessary discussions of the effect of the Statute of
Limitations upon the action, it is especially important that the action should
be continued as originally commenced. (See 25 Cyc, 1304.) It was the duty
of the clerk of the Court of First Instance to issue the summons and the
responsibility for his failure to do so should not be laid at the door of the
plaintiff. As hereinbefore intimated, the court below erred in dismissing the
complaint.

The order appealed from is therefore reversed and the record is remanded to
the court below with the direction that the defendant Francisco Sanz be summoned
as provided for in the Code of Civil Procedure. The trial of the case will then
proceed without the necessity for reintroducing the evidence already presented
and as if the defendant Francisco Sanz had been a party to the action from its
inception. No costs in this instance. So ordered.

Araullo, C.J., Street,
Malcolm, Avanceña, Johns, and Romualdez, JJ., concur.