LESLIE H. BROWN, REPRESENTED IN THIS PETITION BY HIS ATTORNEY-IN-FACT, MANUEL R. DE CARTAGENA, AND MANUEL R. DE CARTAGENA IN HIS OWN BEHALF, PETITIONERS, VS. SALUD Q. BROWN, AND…

On January 13, 1961, Salud Q. Brown presented a “Petition for
appointment as administratrix of the conjugal assets” of herself and
her husband Leslie H. Brown before the Court of First Instance of
Manila. In the petition, she alleges ‘that she is married to Leslie H.
Brown, a citizen of Canada and a resident of 1218 Penafrancia, Paco,
Manila until December 27,1960, when he went out of the country; that
petitioner and respondent Leslie H. Brown are wife and husband
respectively, having been married in Manila on July 1, 1946, and that
said marriage is still valid and subsisting; that they have four minor
children now in the custody of the petitioner; that in the year 1958,
her husband, respondent Brown, left the conjugal home then at No. 133,
12th Street, Quezon City and began having relations with the other
respondent Pema Lourdes Madrigal Rodriguez, the respondents maintaining
a home at No. 1218 Penafrancia, Paco, Manila; that a criminal action
for concubinage was filed by petitioner against respondent Brown and
that a preliminary investigation was set on December 10, 1960, but the
same could not take place; that at the time of the investigation set
for January 4, 1961, both respondents failed to appear; that the
conjugal partnership of the petitioner and respondent Brown owns a
business known as “Brown Studios and Photo Supply” located at corner
Escolta and T. Pinpin Streets, the income of which is from P500.00 to
P600.00 daily, and that the partnership also had the following motor
vehicles; one Packard Sedan, family car, 1951 Model with 1960 plate No.
13300, Manila, one Dodge Weapon’s carrier, 1960 plate No, 37476, and
one International Pickup Truck, 1959 Plate No. T-2689; that respondent
Brown’s business had decreased in income because of his infidelity;
that the value of the conjugal assets then is about P48,000; that
respondent Brown had fled the country and had appointed M. R. Cartagena
as manager of the business and other properties of the partnership;
that petitioner has the experience and learning to operate the business
and the other partnership properties; and that she is willing, ready
and able to assume the possession, control and management thereof. She,
therefore, prays that she be authorized to take possession, management
and control of the business known as “Brown Studios and Photo Supply”,
that M. R. Cartagena be discharged from the management thereof, and
that she be appointed administratrix of the said conjugal properties.

The record of this case (Case No. 46051) in the Court of First
Instance of Manila, was borrowed from the Clerk of Court to find out
what proceedings took place therein, and the following were found:

The petition dated January 9, 1961 was docketed on January 13, 1961.
Summons was issued to M. R. Cartagena, c/o Brown Studios and Photo
Supply, Cu Unjieng Building, Corner Escolta and T. Pinpin, Manila, and
to him alone. No summons was issued to defendants Leslie H. Brown and
Pema Lourdes Madrigal Rodriguez. The summons was returned by the
sheriff on January 23, 1961, with a certification that the summons was
served on M. R. Cartagena at his address through one, L. Palis,
Secretary. On January 19, 1961 Atty. Romulo L. Chua presented a motion
to dismiss, alleging lack of jurisdiction over the person of the
defendants and failure to state cause of action. This motion to dismiss
was dated January 19, 1961 and was docketed on the same date. On
January 16, 1961, the Clerk of Court issued a notice of hearing to
Atty. Mariano A. Carbonell, for the petitioner, and Mr. M. R,
Cartagena, defendant, setting the case for hearing on January 20, 1961
at 8:00 A. M. On January 20, 1961, the court denied , in open court the
motion to dismiss, and the order of denial is attached to the records
of this case in this Court as Annex “D”. The transcript shows that the
lawyers for the petitioner and for the respondents appeared, and that
after hearing the court required the parties to submit nomination for a
receiver to be appointed by the Court.

The record of the
court below also shows that on January 24, 1961, a copy of the writ of
preliminary injunction issued by us on January 24, 1961 was received in
the afternoon of the same date.

The case before Us, G. R. No. L-17953, is presented by Leslie H.
Brown represented by his; attorney-in-Fact M. R. Cartagena, and M. R.
Cartagena, in his own behalf, against, Salud Q. Brown, and Judge
Bienvenido Tan, respondent for certiorari and prohibition to reverse
and set aside the order of respondent Judge, Taji denying the motion to
dismiss filed in the court below.,by the, petitioner herein, and the
annulment of the proceedings therein conducted, and that a writ of
prohibition issue commanding respondent judge to desist from proceeding
with the case. Upon considering the petition, this Court required the
respondent to answer the petition and ordered the issuance of the Writ,
of preliminary injunction as prayed for in the petition, upon the
filing of a bond in the amount of P500.00

The respondent filed an answer on February 3, 1961 alleging the
facts contained in the original petition in the Court of First Instance
and admitting that summons was never issued to or served upon the
petitioner Leslie H. Brown, and that personal service on him can not be
made for the reason that he is a fugitive from justice. They assert
that the order of the court denying the motion to dismiss is in order;
that the same is interlocutory in nature and not subject to appeal of
review while no final judgment has been entered; and that the court
below had jurisdiction over the person of the respondent M. R.
Cartagena, one of the respondents in the case filed in the court below,
and over the subject matter of the action, and that the court below did
not err in denying the motion to dismiss. At the same time respondent
Salud Q. Brown presented a motion to lift the preliminary injunction,
under which she had been authorized to take immediate possession and
control of the properties.

The main issue presented before Us is, Has the court below acquired
jurisdiction over the person and property of petitioner herein Leslie
H. Brown, such that it can grant the petition,to have the respondent
herein Salud Q. Brown appointed administratrix, or a receiver of the
conjugal properties appointed by the court below?

From the allegations of the original petition for the appointment of
administratrix filed by herein respondent Salud Q. Brown in the cburt
belowi we find that Leslie H. Brown separated from his wife, Salud Q.
Brown, in the year 1958, when the husband abandoned the conjugal home
established at 133, 12th Street, Quezon City; that when Leslie H. Brown
left the conjugal home in 1958, he began to live with Pema Lourdes
Madrigal as husband and wife at 1218 Penafrancia, Paco, Manila; that
Leslie H. Brown has failed to appear during the continuation of the
preliminary investigation being set for hearing on January 4, 1961. On
the other hand, we find from the records of the case in the court below
that no summons was ever issued to petitioner Leslie H. Brown, perhaps.
because of the allegations contained in the petition of the absence of
Leslie H. Brown from the country.

It is an elementary rule or
principle in the procedure that before the rights of an absentee or
non-resident over properties existing in the Philippines may qome under
the jurisdiction of Philippine courts and become subject to their
orders, summons must served upon said absentee or non-resident, thus:

“Sec. 17.—When the defendant does not reside and is
not found in the Philippines and the action affects; the personal
status of the plaintiff or relates to, or the subject of which is,
property within. the Philippines, in which the defendant has or claims
a lien or interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the defendant from
any interest therein, or the property of the defendant has been
attached within the Philippines, service may, by leave of court, be
affected out of the Philippines by personal service as under section 7;
or by registered mail; or by publication in such places and for such
time as the court may order, in which case a copy of the summon and
order of the court shall be sent by ordinary, mail to the last known
address of the defendant; or in any other manner the court may deem
sufficient. Any order granting such leave shall specify a reasonable
time, which shall hot be less than sixty (60) days after notice, within
which the defendant must answer.” (Sec. 17, Rule 7)

The action instituted in the case at bar is an action quasi in rem as explained by this Court in Banco Espanol Filipino vs.
Palanca, 37 Phil., 921 in which “an individual is named as defendant,
and the purpose of the proceeding is to subject his interest therein to
the obligation or lien burdening the property”. In the case at bar the
property or res is made subject to the alleged right thereto of the
wife as co-owner of the conjugal property, to administer the same
during the absence of her husband.

Before Leslie H. Brown disappeared from the Philippines, he was a
resident thereof, and according to the petitioner in the lower court,
respondent herein Salud Q. Brown, he had abandoned the conjugal home
and established a residence at 1218 Penafrancia, Paco, Manila. But
according to the petition in the lower court, Leslie H. Brown had
abandoned the Philippines since 1960 and did not even appear during the
preliminary investigation of his case in 1961. Under these facts, it
can not be said that Leslie H. Brown is still a resident of the
Philippines because he has escaped to his country and is therefore an
absentee in the Philippines. In accordance with the above-quoted
provision of the Rules and the decision of this Court in the case of
Bank of the Philippines vs. De Koster, 47 Phil. 594, Leslie H. Brown
should be summoned in the same manner as one who does not reside or is
not found in the Philippines.

The court below would seem to believe that the service of the
summons upon the person to whom the properties of the non-resident was
entrusted, is sufficient to confer jurisdiction to the court. In the
first place the Rules require that actions foe brought in the name of
or against the real party in interest (Rule 3, Sec. 2). An apoderado or
attorney-in-fact is not the real party in interest. (Arroyo vs. Granada, 18 Phil. 484; Marcelo vs.
De Leon, 105 Phil., 1195; 56 Off. Gaz., [37] 5738.) (Note: Copy of the
appointment of Cartagena does not appear in the record.) In the second
place service upon the attorney-in-fact did not have the effect of
service on his principal. No rule allows service of summons upon an
agent. Service must be made on the petitioner herein Leslie H. Brown
himself, by substituted service or by registered mail, or by
publication, if his properties are desired to be affected by the
proceedings. (Banco Espanol Filipino vs. Palanca, 37 Phil. 921; Idonah Slade Perkins vs. Dizon, et al., 69 Phil. 186; Ng Si Choc vs. Vera, 64 Phil. 1066).

Consequent to the above rule and principle, that the court below did
not acquire jurisdiction over the petitioner herein Leslie H. Brown in
Civil Case No. 46051 or over his properties, all the proceedings
conducted in that court, such as the hearings, consideration of the
motion to dismiss, order for appointment of receiver etc. are hereby
declared null and void and of no effect. Before the court below can act
upon the original petition of Salud Q. Brown, which seeks to deprive
the petitioner herein Leslie H. Brown, or his attorney-in-fact of the
possession, management and control of the properties of the conjugal
partnership, the court must first have the summons served upon the
respondent Leslie H. Brown, in accordance with the provisions of the
Rules.

Wherefore, the orders entered by the court below, especially that
for the appointment of a receiver, are hereby set aside, and the case
remanded to the court below with the instructions that summons first be
served upon Leslie H. Brown before the case can proceed. Without costs.

Bengzon, C. J., Bautista Angela, Paredes, Dizon, and De Leon, JJ., concur.