BERNARDO BUSUEGO, PETITIONER, VS. HONORABLE COURT OF APPEALS, JOSE LAZARO, ROMEO LAZARO AND VIVENCIO LOPEZ, RESPONDENTS.

In this petition for review on certiorari, petitioner asks
us to set aside the decision of the Court of Appeals in CA-G.R. No. SP-06556,
declaring null and void the judgment by default and the orders issued by the
Court of First Instance of Pasig^[1]
in Civil Case No. 18860.

On 20 January 1974, petitioner Bernardo Busuego commenced action^[2]
before the Pasig Court of First Instance against Jose Lazaro, Romeo Lazaro,
Ernesto Lazaro, and Vivencio Lopez (three of whom are respondents herein), to
recover possession of a parcel of land and a three (3) unit apartment house
standing thereon, situated at No. 260-A, Bonifacio Avenue, Bo. Jesus de la
Pena, Marikina, Rizal.

Immediately thereafter, summons was issued in the name of the
four defendants and per sheriff’s return, was personally served at the address
given in the complaint, upon the defendants “through [defendant] Dr.
Ernesto Lazaro, personally”.

On 13 February 1974, defendants, through Atty. Gerardo B. Roldan Jr., filed a motion for an
extension of fifteen (15) days to file answer, stating that “his [Atty. Roldan’s] services was (sic) secured by
the defendants formally only the other day”, and that he “need[ed]
sufficient time to study the case, before filing any responsive pleading or
pleadings”.^[3]
The motion was granted by the lower court in an order dated 6 March 1974.

On 28 February 1974,
defendants through Atty. Roldan asked for another extension of ten (10) days to
answer, as “[Atty. Roldan] has not yet conferred with all of [the four (4)
defendants] which [was] necessary before any responsive pleading [could be]
filed by him.”^[4]
The lower court granted this second extension in an order dated 14 March 1974.

Notwithstanding the extensions granted, no answer was filed by
the defendants, for which reason, and upon motion of plaintiff Busuego, the
lower court declared the defendants in default in an order dated 20 May 1974.  Subsequently, plaintiff’s case was heard and
his evidence received, and on the basis of that evidence the trial court
rendered its decision^[5]
on 26 August 1974, in favor
of the plaintiff.

Almost two years later, on 12 July 1976, plaintiff filed before the lower court an ex
parte motion for execution of the default judgment, which the lower
court granted in an order dated 16
August 1976.

On 3 September 1976, Romeo Lazaro, one of the defendants and a
respondent herein, “on his [own] behalf and on behalf of other
defendants”, filed emotion to hold
execution in abeyance praying that “for humanitarian reasons, an extension
of 30 days, within which to vacate the premises [be allowed] to give them sufficient time to look for another place where the five families composed mostly of little
children, can reside”.^[6]

On 18
September 1976, the
lower court granted Romeo’s motion and accordingly, the execution of the
default judgment was held in abeyance.

On 28
September 1976, the
defendants through Atty. Roldan filed with the lower court a motion for reconsideration of the judgment by default and/or to
dissolve the writ of execution, solely on the ground that neither the
defendants nor their counsel were ever furnished a copy of the judgment by
default.  This motion was verified by
Romeo Lazaro who described himself as “one of the defendants in the —
case” and as “representing them [the defendants] in the instant
pleadings (sic)”, and stated that “we [the
defendants] have caused the filing of this motion, have read the contents
thereof and that all the allegations [therein] are true and correct to the best
of our knowledge and belief”^[7] (Underscoring and brackets supplied).  Upon opposition, of petitioner, the lower
court denied the motion by order of 11 October 1976, finding the above-motion to be purely dilatory in nature and plain harassment on the part of the
defendants.

On 3 November 1976, the respondents, through their new counsel,
Atty. Oliver Lozano, filed with the same court an omnibus motion, which
included a motion to lift the order of default, a second motion for
reconsideration and a motion to quash the writ of execution issued pursuant to
the default judgment, alleging for the first time that their failure to answer was due to lack of notice.

Petitioner opposed vigorously the above motion contending that,
the defendants could not pretend absence of proper notice after they, through
counsel, had filed the two motions for extension of time to answer.

On 27 December 1976,
the lower court denied the omnibus motion, holding the motion for extension of
time to vacate filed by respondent Romeo Lazaro for all the defendants to be equivalent to waiver
of service of summons.

On 10 January 1977, defendants, through their new counsel, filed
what in effect was a third motion
for reconsideration of the judgment
by default, alleging that:  the lower
court never acquired jurisdiction over their persons because of lack of proper
service of summons:  and that the motion
for extension of time to vacate the premises, filed by their co-defendant Romeo
Lazaro, after the judgment by default had become executory, was not equivalent
to waiver of summons.

The third motion for reconsideration having been denied,
defendants brought a petition for certiorari before the Court of Appeals, asserting that the orders,
judgment and writs complained of were all void for want of jurisdiction over
their persons.

On 13 July 1978,
the Court of Appeals promulgated its decision^[8],
basically upholding the respondents’ contention and providing, in its dispositive portion, as follows:

“WHEREFORE, this Court
hereby renders judgment as follows:

(a)     insofar
as the petitioner Ernesto Lazaro
is concerned, dismissing the petition; and

(b)     insofar as the
petitioners Romeo Lazaro, Jose Lazaro and Vivencio Lopez are concerned,
granting the petition and the writs prayed for, declaring null and void the
order of default, judgment by default, order of execution, writ of execution,
notice to vacate, order of December 27, 1976, and order of March 21, 1977,
issued in Civil Case No. 18860 of the court below (Annexes B, D, E, I and M,
petition and Annexes 6-A and 9, answer), and making permanent the restraining
order heretofore issued in these proceedings.”

Hence, the petition before us.

In their respective briefs, the parties posed the following issues:

1.  whether or not there
was a valid service of summons upon the Persons of respondents Romeo Lazaro,
Jose Lazaro and Vivencio Lopez.

2.  whether or not there
was voluntary appearance by the respondents as defendants below, through Atty.
Gerardo B. Roldan and their co-respondent Romeo Lazaro.

The issues raised may be further simplified into whether or not
jurisdiction was lawfully acquired by the court a quo over the persons
of the respondents Jose Lazaro, Romeo Lazaro and Vivencio Lazaro.

Basically, there are two (2) ways by which a court acquires
jurisdiction over the person of the defendant or respondent:  (a) by service of summons upon the defendant;
and (b) by voluntary appearance of the defendant in court and his submission to
its authority.

With respect to service of summons, the Revised Rules of Court
prescribe that a copy of the summons be served personally upon the defendant by
“handing him a COPY thereof
in person or if he refuses to receive it, by tendering it to him”.^[9]
Personal service, however, may be dispensed with and substituted service may be
availed of if the defendant cannot be served personally “within a
reasonable time”.^[10]

In the present case, it appears that the sheriff had availed of
substituted service in seeking to serve the summons upon all the defendants by
serving a copy thereof “through Dr. Ernesto Lazaro personally”.  Perusal, however, of the sheriff’s return^[11]
reveals that the sheriff failed to specify therein what prior efforts, if any,
had been exerted to serve summons upon the other defendants personally within a
reasonable period of time, and the lack of success of such efforts, before
proceeding to substituted service.  Such
specification in the sheriff’s return is essential for enforcement of the rule
under the Revised Rules of Court that substituted service may be resorted to
only where it is not possible to serve the defendant or defendants promptly in
person.  As this Court ruled in Keister
vs. Navarro^[12],

“[T]he impossibility of prompt
service in person should be shown by stating the efforts made to find the
defendant personally and the fact that  such efforts failed.  This statement should be made in the proof of
service.  This is necessary because
substituted service is in derogation of the usual method of service – – –
.”

We therefore uphold the respondent appellate court’s finding
that, while Ernesto Lazaro was validly served, with respect to respondents Jose
Lazaro, Romeo Lazaro and Vivencio Lopez, there was no valid service of summons effected.  We are,
nonetheless, unable to sustain its conclusion that the trial court never
acquired jurisdiction over the persons of the said respondents.

As earlier noted, jurisdiction over the person of the defendant
can also be acquired by his voluntary appearance in court and his submission to
its authority, for voluntary appearance is equivalent to service of summons.^[13]

As long ago as 1918,
the essence of voluntary appearance was explained by this Court through Mr. Justice
Johnson in Flores vs. Zurbito,^[14]
as follows:

“A voluntary appearance is a waiver of the necessity of a
formal notice.  An appearance in
whatever form, without explicitly objecting to the jurisdiction of the court
over the person, is a submission to the jurisdiction of the court over the
person.  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
assent to the jurisdiction of the court over his person.  When the appearance is by motion objecting to
the jurisdiction of the court over his person, it must be for the sole
and separate purpose of objecting to the jurisdiction of the court.  If his motion is for any other purpose
than to object to the jurisdiction of the court over his person, he thereby
submits himself to the jurisdiction court. 
x x x”

In the case before us,
the defendants appeared before the trial court a number of times without
raising any objection to the improper service of summons:  (1) the defendants, through Atty. Gerardo
Roldan, appeared in court and filed two successive motions for extension of
time, to file an answer to the complaint; (2) more than two years after
rendition of the judgment by default by the trial court, defendants; through
their co-defendant Romeo Lazaro, filed a motion for extension of time within
which to vacate the premises involved and to look for another place to live in,
raising no question concerning the jurisdiction of the trial court over the
persons of the defendants; and (3) the defendants, through their counsel Atty.
Roldan, moved for reconsideration of the judgment of the trial court and for
dissolution of the writ of execution, again without contesting the jurisdiction
of the court over their persons.  We hold
that by anyone or more of these acts, and certainly by the whole series of
acts, the defendants, respondents herein, effectively waived the initial lack
of jurisdiction over their persons and submitted to the authority of the trial
court.

The respondents assert
that only voluntary appearance during trial is equivalent to waiver of
service, and that therefore, the motion for extension of time within which to
vacate the premises filed by Romeo Lazaro after trial and after
rendition of judgment, was not equivalent to waiver of summons.

We are not persuaded by
this argument of the respondents.  In Soriano
vs. Palacio^[15], this Court, speaking through Mr. Justice
J.B.L. Reyes, held that:

“Assuming, aguendo, that the
court below origin­ally did not acquire jurisdiction over petitioner Soriano, the
latter certainly submitted to it when he filed his first motion for
reconsideration and for annulment of previous proceedings on 14 March 1960.  Therefore, the denial of that motion, by the
order of 19 March 1960, was
binding on petitioner Soriano.”

The respondents also cite
a joint affidavit dated 5 February 1977 executed by some of them:  Jose Lazaro, Ernesto Lazaro and Vivencio
Lopez, stating that they had not authorized Atty. Roldan nor
Romeo Lazaro to file any pleading on their behalf.^[16] In another joint affidavit dated 10
January 1977, Jose
Lazaro and Romeo Lazaro asserted that Romeo Lazaro had no authority to file the
motion of 3 September 1976 seeking “for humanitarian reasons”
an extension of time to vacate the premises in question.  In a third affidavit dated 5
February 1977, Atty.
Roldan in effect repudiates the motion for extension of time that he had filed
on 14 February 1974 with the trial court.  In his
1977 affidavit, Atty. Roldan states that he had instructed Mr. Romeo Lazaro to
secure the conformity of the other defendants to his serving as their counsel before agreeing to
represent them, that he had asked for an extension of time to file an answer
without the knowledge of the defendants to gain time to confer with them and
obtain a written agreement with respect to his “proposed legal
service”; that when the defendants again failed to meet with him, he filed
his second motion for extension to file an answer to have “another
opportunity to find out if the said defendants would agree that [he) represent
them”; that he eventually abandoned the idea of representing the
defendants.^[17]

We are unable to give the
above affidavits any credence or weight. 
They appear to us as very late second thoughts, transparently devised to
conform with the posture of “no voluntary
appearance” adopted by the defendants’ subsequent counsel.  Those affidavits were submitted too late in
the day, as it were, to avoid the effect of their voluntary appearance before
the trial court.  The affidavits
concerning lack of authority of respondent Romeo Lazaro to file the motion
pleading “for humanitarian reasons” for an
extension of time to locate an alternative residence are thoroughly
unpersuasive.  We note, in this
connection, that all the defendants were not only immediate neighbors residing
in adjacent units of a single apartment house but also members of the same
family.  Ernesto Lazaro is the father of
respondents Jose Lazaro and Romeo Lazaro. 
Thus, the natural tendency of Ernesto Lazaro, upon receipt of the summons
issued by the trial court must have been to inform his children living beside
him about the summons; similarly, the natural tendency of Romeo Lazaro must
have been to inform his father and brother and other relatives living in the
same apartment house about the steps taken to defer their ejectment.

The affidavit of Atty. Roldan is particularly deplorable.  An attorney is presumed to be authorized by
his client in a case in which he appears.^[18]
Thus, Atty. Roldan was correctly presumed by the trial court to have been
authorized by the defendants below to appear on their behalf when he filed the
motions for extension of time to answer and what is more, when he filed the
first motion for reconsideration of the judgment of the trial court.  Either Atty. Roldan’s 1977 affidavit is plain
perjury or he was misleading and trifling with and imposing upon the trial
court back in 1974.  Even when an
attorney is employed by an unauthorized person to represent a client, the client
will be bound where he has knowledge of the fact that he is being represented
by an attorney in a particular litigation and takes no prompt measure to
repudiate the assumed authority.  The
security and finality of judicial proceedings are matters of insistent public
policy and require that the evasions and tergiversations of unsuccessful
litigants and their counsel be firmly rejected and not permitted to overcome the presumption of authority the part
of an attorney.^[19]

WHEREFORE, the decision of the Court of Appeals is hereby
REVERSED and SET ASIDE insofar as concerns respondents Romeo Lazaro, Jose
Lazaro and Vivencio Lopez.  With respect,
however, to defendant Ernesto Lazaro,
same decision is hereby AFFIRMED. 
This decision is immediately executory.  Costs against respondents.

Furthermore, Atty. Gerardo B. Roldan, Jr. and Atty. Oliver O.
Lozano are hereby required to
show cause, within ten (10) days from notice hereof, why they should not be
subject to disciplinary action
for abusing court proceedings.

SO ORDERED.

Yap, (Chairman), Narvasa, Melencio-Herrera,
Cruz, Gancayco, and Sarmiento, JJ., concur.

^[1]
Judge Reynaldo P. Honrado, presiding.

^[2]
Complainant alleged that he was the registered owner of a piece of land with an
apartment house consisting of three units; that respondents have been occupying
the said apartment house for more than a year without paying the corresponding
rentals; and that despite repeated demands, the respondents consistently
refused and failed to pay the necessary rentals and vacate the premises.

^[3]
As quoted in the Brief for Petitioner, p.
10.

^[4]
As quoted in the Brief for Petitioner, p. 12.

^[5]
The Court ordered each defendant to pay a rental of P200.00 a month, except for
Vivencio Lopez whose rental was P100.00, a month, from 24 January 1973 until
they vacate the premises occupied by them; to vacate the premises particularly
the apartment house consisting of three units located at No. 260 A Bonifacio
Avenue, Bo. Jesus de la Pena, Marikina, Rizal and restore possession thereof to
petitioner; and to pay P500.00 each to petitioner as attorney’s fees plus
expenses of litigation and costs.

^[6]
As quoted in the Brief for the Respondents, p. 37.

^[7]
As quoted in the Brief for the
Petitioner, p. 19.

^[8]
The decision was written by Busran, J. with San Diego
and Jimenez, JJ., concurring.

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

^[10]
Section 8, Rule 14, Revised Rules of Court pro­vides:

“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.”

^[11]
The sheriff’s return reads:  “that
on January 31, 1974, copy of the herein summons and complaint addressed to Jose Lazaro, Romeo Lazaro, Dr.
Ernesto Lazaro and Vivencio Lazaro at No. 260 A. Bonifacio, Bo. Jesus de la
Pena, Marikina, Rizal issued by the
Honorable Court in the above-entitled case was caused to be served personally
upon him/her it at the address therein designated.  (through Dr. Ernesto Lazaro personally), a
person/officer, working/ residing therein and of sufficient age and discretion
duly authorized to receive service of this nature) as shown by the signature
appearing thereon.” See Brief for Petitioner, pp. 8-9.

^[12]
77 SCRA 209 at 215 (1977); underscoring
supplied.

^[13]
Rule 14, Section 23,
Revised Rules of Court.

^[14]
37 Phil. 746, at 750; underscoring supplied.  See also, Menghra vs. Tarachund and
Rewachand 67 Phil. 286 (1939); Ocampo v. Mina and Arejola 41 Phil. 308
(1920); Sharruf v. Bubla 12 SCRA 79 (1964); Tenchavez v. Escano 17 SCRA 684 (1966).

^[15]
12 SCRA 447, at 449
(1965); Underscoring supplied.

^[16]
Brief for the Respondents, p. 54-55.

^[17]
Brief for Respondents, p. 59-61.

^[18]
Rule 27, Section
20, Revised Rules of Court.

^[19]
Tan Lua vs. O’Brien, 55 Phil. 53 (1930); see also Ramos vs.
Manalac 89 Phil. 270 at 274 (1951).