VICENTE S. DY REYES, ET AL., PLAINTIFFS AND APPELLANTS, VS. FRUCTUOSO ORTEGA AND NAGA CITY SHERIFF, DEFENDANTS AND APPELLEES.

This
case has been certified to us by the Court of Appeals, only questions
of law being raised in the appeal, interposed by the spouses Vicente S.
Dy Reyes and Remedios P. Reyes, from a decision of the Court of First
Instance of Camarines Sur, dismissing their petition in Civil Case No.
5109 of said court.

The record shows that sometime in
November, 1960, defendant Fructuoso Ortega filed unlawful detainer case
No. 1805 of the Municipal Court of Naga City against plaintiff Vicente
Dy Reyes, to oust the latter from a house of the former in Naga City,
Camarines Sur, and recover rentals allegedly unpaid, as well as
attorney’s fees and costs. Reyes was not personally served with summons
in said case. Instead, the summons was published in the Bicol Examiner
on November 12, 19 and 26, 1960. As Reyes did not know of the
institution of said case and, hence, did not appear before the court on
December 8, 1960, the date set for the hearing thereof, Reyes was then
declared in default. Moreover, Ortega introduced his evidence and the
municipal court rendered judgment sentencing Reyes to pay P2,080.00 to
Ortega, with interest at the legal rate, from the date of the filing of
the complaint, plus P100 a month, from June, 1960, until the house
involved in the case shall have been vacated, and the further sum of
P500, as attorney’s fees. A writ of execution of said judgment having
been subsequently issued, on January 10, 1961, the Sheriff of Naga City
levied upon a gasoline station building belonging to Reyes and his wife
and issued a notice to the effect that said property would be sold at
public auction on January 19, 1961.

On
the latter date, Reyes and his wife instituted Civil Case No. 5109 of
the Court of First Instance of Camarines Sur, against Ortega and said
Sheriff. In the petition therein filed, dated January 18, 1961, the
Reyeses prayed that the defendants therein be immediately enjoined from
executing said judgment of the municipal court, that said judgment be
set aside and a new trial ordered and that such other relief as may be
just and equitable under the premises be granted. This prayer was
predicated upon allegations to the effect that the aforementioned
non-appearance of Reyes at the municipal court, his declaration of
default in Case No. 1805, and the aforementioned judgment therein were
due to fraud, accident, mistake or excusable negligence on the part of
Ortega, who knew that the Reyeses are and have been permanent residents
of Manila, since 1959; that they had not known of the judgment in Case
No. 1805 until January 11, 1961; and that they had a good and valid
defense against the complaint therein, as attested to by two (2)
affidavits attached to the petition.

After
appropriate proceedings, the Court of First Instance of Camarines Sur
rendered a decision in said Case No. 5109 declaring that the Municipal
Court of Naga City had not acquired jurisdiction over the person of
Reyes as defendant in detainer Case No. 1805, because the summons by
publication therein was defective, copy of the summons and of the order
for its publication not having been deposited in the post office
postage prepaid, directed to Reyes by ordinary mail to his last known
address and that, accordingly, the decision in said Case No. 1605 was
void. This, notwithstanding, said court dismissed the petition in Case
No. 5109, upon the ground that the proper remedy for Reyes is not to
seek a relief under Section 1, Rule 38, of the Rules of Court, but to
bring an action to enjoin the execution of the judgment of the
municipal court, if not already carried into effect, or if property had
already been disposed of in compliance therewith, to institute an
action for the recovery of said property. Hence this appeal by the
Reyeses.

We
are unable to agree with the conclusion thus reached in the decision
appealed from. To begin with, the decision of the municipal court had
not, as yet, been executed when the present case was filed on January
19, 1961. It should be noted that the petition herein was prepared on
January 18, 1961 and that the sale of the gasoline station building of
the Reyeses was to take place on January 19, 1961. Hence, petitioners
prayed that the defendants be immediately enjoined from executing the
decision in the detainer case, and consequently, from proceeding with
said sale. Besides, even if it took place on said date, the sale would
not be definite until sometime thereafter, in that it would be subject
to redemption within 12 months (Rule 39, Section 30, of the Rules of
Court). Accordingly, the court of first instance could still have
seasonably exercised its authority under Rule 38 of the Rules of Court,
considering particularly that the Reyeses had commenced this
proceedings well within the period set forth in Section 3 of said Rule.

What
is more, it should have exercised said authority, not only because
Ortega had not specifically denied in his answer to the petition herein
the truth of the allegation in paragraph 5 thereof, to the effect that
he and his counsel knew petitioner’s address in Manila, but, also,
because the lower court had found the decision in the detainer case to
be null and void, for lack of jurisdiction of the municipal court over
the person of the defendant therein. Indeed, the summons therein served
by publication was defective for the reason adverted to above, as
pointed out in the decision appealed from. But, even if there had been
no such defect, it would not have conferred jurisdiction over the
person of the defendant, because a detainer case is an action in personam,
whereas summons by publication cannot satisfy the requirements of due
process, insofar as the acquisition of said jurisdiction, except in
actions in rem or quasi in rem. (Pantaleon vs. Asuncion, 105 Phil., 761; Nelson vs. Platon, 58 Phil., 913.)

Wherefore, the decision appealed from is hereby reversed, and another one shall be
entered declaring that the decision of the Municipal Court of Naga City
in said case No. 1805 and the auction sale made in connection
therewith, are null and void, with the costs of this proceedings
against defendant Fructuoso Ortega. It is so ordered.

Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., and Sanchez, JJ., concur.