SPOUSES ANDRES OLAR AND SERAPIA GERMANO, SPOUSES DEMETRIO SALI AND AGRIPINA OLAR, AND POLICARPO OLAR, PETITIONERS, VS. HON. FORTUNATO B. CUNA, CFI JUDGE OF BAYBAY, LEYTE, SPOUSE…

Petition for certiorari to annul and set aside the order of
default and judgment by default in Civil Case No. B-674 of the Court of First
Instance of Leyte.

On December 3, 1976,
the private respondents filed with the Court of First Instance of Leyte, Branch III, presided over by respondent Judge, a
complaint,^[1]
for recovery of possession and damages against the petitioners, docketed there­in
as Civil Case No. B-674.

For failure of the petitioners to file their answer within the reglementary period, private respondents filed an “EX?PARTE MOTION TO DECLARE DEFENDANTS IN DEFAULT”,^[2]
alleging among others:

x x
x              x
x x                 x x x

“2.  That the summons, together with the copies of
the complaint, were furnished the defendants, by registered mail, which were
all received by the Postmaster of Bato, Leyte, on December 8, 1976;

“3.  That one of the defendants, Demetrio Sale, who is known personally by the Postmaster,
was informed by the latter that he had a registered mail containing the summons
of this Honorable Court, but the said Demetrio Sale
refused to receive the same;

“4.  That inspite of
notices, and the knowledge of all the defendants herein, that they had
registered mail containing the summons of this Court, they defiantly refused to
receive them;

“5.  That in order to comply with his duties, the
Postmaster of Bato, Leyte,
personally went to barrio Amagos, together with an
employee of his office on December 22, 1976, to deliver the registered summons
sent by the Clerk of Court of this Court to the defendants, but the latter
adamantly and defiantly refused to received said summons;

x x
x              x
x x                 x x x

“7. That since
December 22, 1976, the date when the summons were served upon all the
defendants by the Postmaster of Bato, Leyte, up to the date of the filing of this motion today,
February 17, 1977, a period of FIFTY SEVEN (57) DAYS have lapsed, and the
record shows that not one of the defendants have filed their answer;

“8.  That because of the failure of the defendants
to file their answer to plaintiffs complaint, plaintiff moves that the former
be declared in default in accordance with Section 1 of Rule 18 of the Rules of
Court.”

x x
x              x
x x                 x x x

On February 22, 1977,
respondent Judge issued an order^[3]
granting the private respondents’ motion and declared the petitioners in
default.

Thereafter, on October
24, 1977, respondent Judge rendered a decision^[4]
in favor of private respondents, the dispositive
portion of which reads as follows:

“WHEREFORE, judgment is hereby rendered (1) ordering the
defendants to recognize the plaintiffs Policronia Saludo Lumapas and Genara Saludo Cuyno
as absolute owners thereof and to respect such ownership; (2) directing the
plaintiffs to refer all issues affecting tenancy relationship to Secretary of
Agrarian Reforms or his authorized representative.”

Hence, on March 14, 1978,
the petitioner interposed the present petition, claiming that they were not
duly served with summons and that respondent Judge acted with grave abuse of
discretion in declaring them in default and in rendering the judgment by
default.

The private respondents filed their comment^[5]
on the petition on June 10, 1978,
while the petitioners filed their reply^[6]
thereto on November 16, 1978;
thereafter, on December 15, 1978,
respondents’ comment was considered as answer, and the case was deemed
submitted for decision.^[7]

The only issue to be resolved in the instant case is whether the
petitioners had been duly served with summons or, in other words, whether the
trial court acquired jurisdiction over them.

In granting the private respondents’ motion to declare
petitioners in default and in granting the said motion, the respondent Judge
reasoned out as follows:

“x x x.  It appears from the record that all
registered mail containing the complaint and the summons in this case have been
sent to these defendants but they have been sent back to this Court with the
notation of the Postmaster as refused.

“The Postmaster of Bato, Leyte, Mr. Felomino
Yap, was presented in Court and he testified that registry notices were sent by
the post office of Bato, Leyte, to these defendants.  The Postmaster testified that the first
registry notices sent to these defendants were sent on December 8, 1976, and it
was followed by a second registry notices which are now marked as Exhibits ‘A’,
‘A-1’ to ‘A-5’ in the records.  In view
of the failure of the said defendants to claim their registered mail from the
post office, the Postmaster of Bato, Leyte went personally to the house of Demetrio
Sale in Barrio Amagos, Bato,
Leyte, and in the presence of the other defendants,
Mr. Andres Olar, and Agripina
Olar, Serapia Germano, Policarpo Olar and Demetrio Sale, the
Postmaster explained to them that they have to get their registered mail from
the Court, but in spite of the explanation of said Postmaster these defendants
refused to receive the letters, in view of the fact that they have no advice
from their lawyer.

“In view of the foregoing, this Court considers these
defendants to have been served by the summons and the complaint in view of the
provisions of Section 8, Rule 13 of the Rules of Court.  Up to this date no answer has been filed in
this complaint.”

x x
x              x
x x                 x x x

We disagree.  The
respondent Judge’s reliance on the provisions of Section 8, Rule 13 of the
Revised Rules of Court,^[8]
is erroneous.  Rule 13 applies only to
service of pleadings and other papers subsequent to the complaint and not to
the service of summons which is governed by Rule 14 of the Rules of Court.  Under the said Rule, the methods of service
of summons in civil cases are:  (1)
personal service;^[9]
(2) substituted service;^[10]
and (3) service by publication.^[11]
Strict compliance with these modes of service is required in order that the
court may acquire jurisdiction over the person of the defendant.^[12]

In the case at bar, the summons were served by registered mail,
which is not among the modes of service under Rule 14 of the Revised Rules of
Court.  Besides, under Section 5 of
aforesaid rule, the summons “may be served by the sheriff or other proper
officer of the province in which the service is to be made, or for special
reasons by any person especially authorized by the judge of the court issuing
the summons.” The postmaster of Bato, Leyte, not being a sheriff or court officer,
or a person authorized by the court to serve the summons cannot validly serve
the summons.  The peti­tioners,
therefore, were not duly served with the summons in Civil Case No. B-674.

“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.  Trial and judgment without such
service are null and void.”^[13]

WHEREFORE, the trial court’s order of default and the
judgment by default are set aside.  The
court a quo is directed to require the petitioners to file their
answer to the complaint within ten (10) days after notice of the entry of
judgment in this case, and to conduct further proceedings for its adjudication.  Without costs.

SO ORDERED.

Barredo, (Acting Chairman), Aquino, Santos, and Abad Santos, JJ., concur.

Antonio, J., concurs.  The summons were not served and the return
was not made by the proper officer pursuant to sections 5, 6, and 7, Rule 14,
of the Rules of Court.

^[1] Rollo, Annex “A”, p. 8.

^[2] Ibid.,
Annex “C”, p. 15.

^[3] Ibid.,
Annex “D”, p. 17.

^[4] Ibid.,
Annex “E”, p. 19.

^[5] Ibid.,
p. 37.

^[6] Ibid.,
p. 115.

^[7] Ibid.,
p. 109.

^[8]
The cited Section of Rule 13, reads as follows:

“Section 8.  Completeness of service.  – Personal service is complete upon actual
delivery.  Service by ordinary mail is
complete upon the expiration of five (5) days after mailing unless the court
otherwise provides.  Service by registered
mail is complete upon actual receipt by the addressee; but if he fails to claim
his mail from the post office within five (5) days from the date of the first
notice of the postmaster, service shall take effect at the expiration of such
time.”

^[9]
Revised Rules of Court, Rule 14, Section 7.

^[10] Ibid.,
Section 8.

^[11] Ibid.,
Sections 16, 17 and 18.

^[12]
Martin, Rules of Court, 1972 ed., Vol. I, p. 473, citing Pantaleon
vs. Asuncion, 105 Phil. 761;
Sequito vs. Letrondo,
105 Phil. 1139.

^[13] Sy Y Ang vs. Navarro, et
al., L-44909, January 31, 1978, 2 PHILAJUR 446, 449-­450,
81 SCRA 458, 461, citing 1 Moran’s Comments on the
Rules of Court, 1970 Ed., p. 438; Dultra vs.
Court of First Instance of Agusan, L-27682, April 30,
1976, 70 SCRA 465, 469.