PABLO C. MONTALBAN, ET AL., PLAINTIFFS-APPELLEES, VS. GERARDO MAXIMO, DEFENDANT-APPELLANT.

Chronologically, following are the events that spawned the
present case:

August 15,
1958.  Plaintiffs
commenced suit^[1]
against Fr. Gerardo Maximo who, according to the complaint, was residing at the
parish church at Concepcion, Malabon, Rizal. 
Plaintiffs’ cause of action for damages sprang from a motor vehicle
accident which occurred at Padre Faura St.,
Manila, on December 16, 1957. 
Paul Hershell Montalban, son of plaintiffs, suffered injuries.

August 15,
1958.  On this same
day that the complaint was filed, summons was served on defendant Fr. Gerardo
Maximo at the parish church of Concepcion,
Malabon, Rizal, through Fr. Arsenio Bautista – a priest in the same parish
church.

August 23,
1958.  Fr. Arsenio
Bautista sent a letter (dated August 21) to Macario M. Ofilada, Clerk of Court
of the Court of First Instance of Manila, informing him that defendant Fr.
Gerardo Maximo left for Europe on August 7, and “will be back on the first
week of November.”  Actually, Fr.
Maximo returned from abroad “about the second week of October, 1958.”^[2]

September 20,
1958.  The lower court
declared defendant in default, on plaintiffs’ motion of September 13, 1958.

June 8, 1959.  Upon plaintiffs’ evidence, the court rendered
judgment sentencing defendant to:

“1.  Pay plaintiff Paul Hershell Montalban the
amount of P10,000.00 as actual damages for loss of his spleen;

“2.  Pay plaintiff Paul Hershell Montalban the
amount of P10,000.00 for loss or impairment of earning capacity, talents and
physical strength;

“3.  Pay plaintiff Paul Hershell Montalban the
amount of P5,000.00 as moral damages;

“4.  Pay plaintiffs Pablo C. Montalban and Regina
Barretto the amount of P5,000.00 as moral damages;

“5.  Pay plaintiffs the amount of P1,000.00 as
exemplary damages; and

“6.  Pay plaintiffs attorney’s fees [in] the amount
of P3,000.00 and the cost of litigation.”

December 16,
1959.  Plaintiffs
themselves wrote defendant Fr. Gerardo Maximo, at the Malabon Catholic Church,
informing the latter of the lower court’s decision, giving the data:  “Re Civil Case No. 37202 (in which the
foregoing judgment was rendered) Montalban vs. Maximo,” quoting therein
the dispositive part of the decision just transcribed, requesting prompt
compliance there­with and suggesting that he communicate with or personally see
their lawyer, Jose W. Diokno, at the latter’s address, 332 Regina Building,
Escolta, Manila.

December 20,
1959.  Defendant,
through his legal counsel, Dr. Nicanor T. Santos, answered the foregoing letter
expressing regret that he could not comply with plaintiffs’ request, because he
(defendant) was not aware of the said civil case, and that, in the criminal
action arising out of the same incident, said defendant was acquitted by the
Municipal Court of Manila.^[3]

January 14
1960.  Deputy Sheriff
Liberato C. Manalo of Rizal notified defendant of the issuance of the writ of
execution dated January 7, 1960,
and demanded payment of the amount set forth therein.  The Sheriff’s return to the writ shows that
in response to such demand, defendant alleged that he was then
“financially hard up,”^[4]
and that the Sheriff found no property that could be subject to execution.

January 30,
1962.  An alias
writ of execution was issued.  Copy
thereof was received by defendant on February
9, 1962.

February 1,
1962.  The Deputy
Sheriff attached and levied on a residential house located in Caloocan
City and purportedly belonging to
defendant.

February 20,
1962.  Two years and
two months after defendant admittedly learned of the lower court’s decision
from counsel for plaintiffs herein, said defendant, by counsel, filed a
verified motion in the same case praying for the annulment of the entire
proceedings.  His ground is this:  Summons was not duly served upon him “as
provided under Sec. 7, Rule 7 of the Rules of Court”;^[5]
accordingly, the lower court “did not acquire jurisdiction over his
person”; and “the trial and decision by default” are “null
and void.”^[6]

March 3 1962.  The court denied this motion.

March 24 1962.  Defendant’s move to reconsider was rejected
by the court.

Hence, this appeal from the orders of March 3 and March 24, 1962, duly certified to
this Court by the Court of Appeals.

September 2,
1965.  After the case
was submitted for decision, defendant’s lawyer informed this Court of the death
of defendant on August 1, 1965.

October 18,
1967.  Following
extensive efforts to have the deceased defendant substituted by any of his
heirs or the executor or administrator of his estate, which were to no avail,
this Court appointed the Clerk of Court of the Court of First Instance of
Manila, representative of the deceased defendant.

1. A question of transcendental importance which necessarily
involves an inquiry into procedural due process is whether summons in a suit in
personam against a resident of the Philippines
temporarily absent therefrom may be validly effected by substituted service
under Section 8, Rule 14 (formerly Section 8, Rule 7) of the Rules of
Court.  A head-on collision of views
becomes inevitable considering the diametrically opposing positions taken by
plaintiffs, on the one hand, and defendant, on the other.  For, plaintiffs make the point that even with
defendant temporarily abroad, substituted service is valid under Section 8 by
leaving a copy of the summons “at the defendant’s dwelling house or
residence with some person of suitable age and discretion then residing therein.”

Plaintiffs argue that if the ordinary method prescribed by the
rules, that is, personal service under Section 7, Rule 14, is not feasible,
then the substituted service in Section 8 aforesaid comes into play.  Section 8 says:

“SEC. 8. 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.”

Upon the other hand, defendant advances the theory that in a
situation like the present, where defendant was temporarily abroad, the sole
and exclusive method of service of summons in a case in personam is that
set forth in Section 18, Rule 14 of the Rules (for merely Section 18, Rule 7),
which reads:

“SEC. 18. Residents temporarily out of
the Philippines. – When an action is commenced against a
defendant who ordinarily resides within the Philip­pines, but who is
temporarily out of it, service may, by leave of court, be effected out
of the Philip­pines, as under the preceding section.”^[7]

Section 17 referred to in Section 18
(Section 17, Rule 7 in the old Rules) in turn states:

“SEC. 17. Extraterritorial service. – 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 effected out of the Phil­ippines by personal
service as under section 7; or by publication in a newspaper of general
circulation in such places and for such time as the court may order, in which
case a copy of the summons and order of the court shall be sent by registered
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 not be less
than sixty (60) days after notice, within which the defendant must
answer.”

Historically, in its common-law origin, the jurisdiction of
courts to render judgments in personam was grounded on their de
facto power over defendant’s person. 
Jurisdiction was based on the power to seize and imprison defendant.^[8]  If a defendant was absent from the territory,
the fact that he was a citizen would not enable the court’s officers to seize
him and service could not represent this power.^[9]
Hence, his presence within the territorial juris­diction was a prerequisite to
the rendition of a judgment personally binding against him.  Anglo-American law then emphasized the power
concept of jurisdiction.^[10]

Continental law, however, was somewhat different.  It had two fundamental principles of Roman
origin:  (1) in suits in personam
and those relating to movables, courts of the domicile of the defendant have
general jurisdiction – actor rei forum sequitur; and (2)
in actions concerning immovables, the courts of the situs have exclusive
jurisdiction.^[11]

In the development of the law, the variance between anglo­-american
law and continental law became “less and less clear-cut” because
“American law has had to yield to the increasing necessity of enlarging
more and more the catalogue of forums available to the plaintiff.”^[12]

Thus it is, that American cases forged the doctrine, now long
recognized, that domiciliaries of a state, though temporarily out of its
territorial jurisdiction, are always amenable to suits in personam
therein.^[13]  And this precept is the foundation for the
American rule that declares substituted service binding on absent
residents.  The leading case of Milliken
vs. Meyer,^[14]
furnishes the rationale:”

“x x x the authority of a state over one of its citizens is not
terminated by the mere fact of his absence from the state.  The state which accords him privileges and
affords protection to him and his property by virtue of his domicile may also
exact reciprocal duties.  ‘Enjoyment of
the privileges of residence within the state, and the attendant right to invoke
the protection of its laws, are inseparable’ from the various incidences of
state citizenship.  x x x The
responsibilities of that citizenship arise out of the relationship to the state
which domicile creates.  That
relationship is not dissolved by mere absence from the state.  The attendant duties, like the rights and
privileges incident to domicile, are not dependent on continuous presence in
the state.  One such incident
of domicile is amenability to suit within
the state even during sojourns without
the state, where the state has provided
and employed a reasonable method for apprising
such an absent party of the proceedings
against him.”

There should be no doubt, therefore, that in suits in personam,
courts have jurisdiction over residents temporarily out of the country.

This brings us to the question of procedural due process.  Sub­stituted service such as one contemplated
in Section 8 upon a tempo­rarily absent resident, it has been held, is wholly
adequate to meet the requirements of due process.^[15]  The constitutional requirement of due process
exacts that the service be such as may be reasonably expected to give the
notice desired.  Once the service
provided by the rules reasonably accomplishes that end, the requirement of
justice is answered; the traditional notions of fair play are satisfied; due
process is served.

In American jurisprudence, whether a defendant be in another
state under the federal system or is abroad in Europe,^[16]
sub­stituted service is still considered to be valid.^[17]  The language in Milliken vs. Meyer,
supra, is expressive:   “Its
adequacy so far as due process is concerned is dependent on whether or not the
form of substituted service provided for such cases and employed is reasonably
calculated to give him actual notice of the proceedings and an
opportunity to be heard.  If it is, then
traditional notions of fair play and substantial justice (McDonald vs. Mabee, supra)
implicit in due process are satisfied.”^[18]

When the framers of our Rules adapted Section 8, it is to be
implied that they intended to give the provision the same meaning shaped out by
the jurisprudence of the jurisdiction from whence it was patterned. Section 8
is to be viewed in the same context it is understood in the American legal
system.  The word “defendant”
in that provision is to be construed as including any resident of this
country.  By comparative construction,
Section 8 is to be applied to all resident defendants – without distinction as
to whether he is physically present in this country or not.

Chief Justice Moran shares this view.  Commenting on Section 18, Rule 14, he
states:  “Since the defendant is
residing in the Philippines, jurisdiction over his person may be acquired by
Philippine courts by substituted service of summons under section 8.  But extraterritorial service is allowed also
by leave of court according to the above provision [Section 18].”^[19]
Justice Martin regards the word “residence” in Section 8 as “the
place where the person named in the summons is living at the time when the
service is made, even though he may be temporarily out of the state at the
time.”^[20]

This construction is but fair. 
It is in accord with substantial justice.  The burden on a plaintiff is not to be
enlarged with a restrictive construction as desired by defendant here.  Under the rules, a plaintiff, in the initial
stage of suit, is merely required to know the defendant’s “dwelling house
or residence” or his “office or regular place of business” – and
no more.  He is not asked to inves­tigate
where a resident defendant actually is, at the precise moment of filing
suit.  Once defendant’s dwelling house or
residence or office or regular place of business is known, he can expect valid
service of summons to be made on “some person of suitable age and
discretion then residing” in defendant’s dwelling house or residence, or
on “some competent person in charge” of his office or regular place of
business.  By the terms of the law,
plaintiff is not even duty-bound to see to it that the person upon whom service
was actually made delivers the summons to defendant or informs him about it.  The law presumes that for him.

It is immaterial then that defendant does not in fact receive
actual notice.  This will not affect the
validity of the service.^[21]  Accordingly, the defendant may be charged by
a judgment in personam as a result of legal proceedings upon a
method of service which is not personal, “which in fact
may not become actual notice to him,”
and which may be accomplished in his lawful absence from the country.^[22]  For, the rules do not require that papers be
served on defendant per­sonally or a showing that the papers were delivered to
defendant by the person with whom they were left.^[23]

Reasons for the views just expressed are not wanting.  A man temporarily absent from this country
leaves a definite place of residence, a dwelling where he lives, a local base,
so to speak, to which any inquiry about him may be directed and where he is
bound to return.  Where one temporarily
absents himself, he leaves his affairs in the hands of one who may be
reasonably expected to act in his place and stead; to do all that is necessary
to protect his interests; and to communicate with him from time to time any
incident of importance that may affect him or his business or his affairs.  It is usual for such a man to leave at his
home or with his business associates information as to where he may be
contacted in the event a question that affects him crops up.  If he does not do what is expected of him,
and a case comes up in court against him, he cannot in justice raise his voice
and say that he is not subject to the processes of our courts.  He cannot stop a suit from being filed
against him upon a claim that he cannot be summoned at his dwelling house or
residence or his office or regular place of business.

Not that he cannot be reached within a reasonable time to enable
him to contest a suit against him.  There
are now advanced facilities of communication. 
Long distance telephone calls and cablegrams make it easy for one he
left behind to communicate with him.

In the light of the foregoing, we find ourselves unwilling to
concede that substituted service provided in Section 8 may be down­graded as an
ineffective means to bring temporarily absent residents within the reach of our
courts.

As we go back to the case at hand, there is the temporarily
absent defendant who was a parish priest. 
Summons upon him was served upon Fr. Bautista who lived in the same
convent where defendant resided.  Fr.
Bautista, we must assume, is a responsible person.  Service upon him is effective.

2. The view we take of this case sweeps away defendant’s argument
that Section 18 is the sole provision that governs summons upon a defendant
temporarily absent in an action in personarm, as here. Indeed,
defendant’s posture strikes at the very language employed by this reglementary
provision cited by him. The word “may” – in the statement in Section
18 that “service may, by leave of court, be effected out of
the Philippines,”
as under Section 17 – will not support the deduction, without more, that
Section 18 is the only provision controlling in this case.  On the contrary, the phrase­ology of the rule
is a recognition of the fact that substituted service – out of the Philippines
– under Section 17 is but one of the modes of effective service to bring a
defendant in court.  And upon the basic
concepts under which our rules governing processes operate, the normal method
of service of summons on one temporarily absent is by substituted service set
forth in Section 8.  And this, because
personal service outside the country and service by publication are not
ordinary means of summoning defendants.

In practical terms, we perceive that – in suits in personam
the more circuitous procedure delineated in Sections 17 and 18 is resorted
to by a plaintiff if defendant’s dwelling house or residence or place of
business in this country is not known; or, if known, service upon him cannot be
had thereat upon the terms of Section 8. 
Here, since personal service is impossible, resort to substituted
service becomes a necessity.  A
comparison between the service in Section 8 and that in Sections 17 and 18 is
beside the point.  They both provide for
substituted service.  Anyway, as Goodrich
observed: “[I]f a substitute is to be made where an actual personal
service is impossible, ‘the best is none too good.'”^[24]

3. The judgment has long since become final.  It enjoys the presumption of regularity. It
is, unless stricken down, entitled to respect. 
Non quieta movere. Because “[p]ublic policy
and sound practice demand that, at the risk of occasional errors, judgments of
courts should become final at some definite date fixed by law.”^[25]

The norm of conduct observed by defendant would not, we believe,
tilt the scales of justice in his favor. 
We go to the background facts. 
Logic and common sense tell us that Fr. Bautista who received the
summons and who took interest in the case
must have informed defendant, one way or another of the suit, at the latest
upon his return in October, 1958.  By
then there was still time for him to move to
set aside the default order of September
20, 1958.  Defendant did not
move.  It is well to remember also that
judgment by default was not rendered against defendant until June 8, 1959, or almost nine (9)
months after the default order was issued. 
Again, defendant did nothing. 
According to defendant, he learned of that judgment on December 20, 1959.  The full impact of the judgment totalling
P34,000 must have by then left an indelible mark in his mind.  A judgment of a court of justice is no
piddling matter.  It should not be
trifled with.  Especially so when the
amount is big, as it is here.  That same
day -December 20 – his attorney took a hand on the matter, wrote back
plaintiffs refusing payment of the claim. 
The first writ of execution was served on defendant on January 14, 1960,
That time he did not’ pay, because according to the Sheriff’s return, defendant
then stated that he was “financially hard up.”

Defendant did not bestir himself until February 20, 1962, i.e., not less than two years
and two months after he learned – by his own admission – of the judgment.  And, that was shortly after levy was made on
his house in Caloocan.  It is in this factual environment that then
CFI Judge Magno Gatmaitan, in his order of March 24, 1962, correctly observed that “the Court
once again believes that this solution (denial of the motion to reconsider the
appealed order) is just because of the apparent intentional inaction of
defendant since 20 December, 1959.”

Indeed, it was not right that defendant should have supinely sat
on the decision, and deliberately disregarded the import thereof.  Neither was it correct for him to have waited
so long, slept on his rights, and only put plaintiffs to task when his own
property was threatened because of the levy and execution thereon.

The decision below may not thus be annulled.  Plaintiffs may not be compelled to file a
fresh suit.  Because, prejudice to
plaintiffs, which could have been avoided by defendant, will become a
reality.  The additional expense, trouble
and anxiety need not be essayed.  The
accident took place on December 16,
1957.  The lower court’s
decision made mention of two eyewitnesses and two doctors of medicine who
testified as to injuries.  To bring back
those witnesses to court becomes a serious problem.  Plaintiffs will have to search for them and
if found, they may not be able to present to the court a narrative as
accurately as they had done before.  Time
has an unfortunate tendency of obliterating occurrences from a witness’ memory.
Recollections are apt to be blurred. 
Human memory can even be treacherous. 
Lapse of time may also carry with it dissipation of other evidence.  Surely, there is great validity to the
statement that the march of time is truth in flight.^[26]  These, in broad outlines, give life to the
salutary policy on which laches is founded.

WHEREFORE, the orders appealed from dated March 3, 1962 and March 24, 1962 are hereby affirmed.

Costs against defendant-appellant.

 SO ORDERED.

Reyes, Acting C.J., Dizon, Bengzon, Zaldivar,  Castro, and
Angeles, JJ., concur.

Makalintal, J., in the result.

Concepcion, C.J., on leave.

Fernando, J., no part.

^[1] Civil
Case No. 37202, Court of First Instance of Manila, entitled “Pablo C.
Montalban and Regina Barretto, in their own behalf and as natural guardians, in
behalf of minor Paul Hershell B. Montalban, Plaintiffs, vs. Gerardo
Maximo, Defendant.”

^[2]
Defendant’s motion of February 20,
1962, infra, Record on Appeal, p. 25.

^[3]
Record on Appeal, pp. 40-42.  Counsel
refers to the sentence of acquittal (Record on Appeal, p. 31) in Criminal Case
No. J-070083 of the City Court of Manila, for serious physical injuries thru
reckless imprudence, entitled “The People of the Philippines,
Plaintiff, vs. Gerardo Maximo de Leon, Accused.”

^[4]
Record on Appeal, p. 21.

^[5]
Now Section 7, Rule 14 of the new Rules.

^[6]
Record on Appeal, pp. 21-26.

^[7]
Emphasis supplied.

^[8]
Michigan Trust Co. vs. Ferry, 228 U.S. 346, 353, 57 L. ed. 867, 874;
International Shoe Co. vs. Washington, 326 U.S. 310, 316, 90 L. ed. 95,
101-102, citing cases.

^[9]
Stimson, Conflict of Laws, 1963 ed., p. 247.

^[10]
Lorenzen, Cases on Conflict of Laws, 1951 ed., p. 16.

^[11] Ibid.

^[12] Ibid,
at p. 17.

^[13]
Blackmer vs. U.S.,284
U.S. 421, 438,
76 L. ed. 375, 383. See also: 
42 Am. Jur., p. 58; 72 C.J.S., p. 997.

^[14]
311 U.S. 457, 463, 85 L. ed. 278, 283; emphasis supplied.

^[15]
Mc Donald vs. Mabee, 243 U.S.
90, 91, 61 L. ed. 608, 609.

^[16]
Camden Safe-Deposit & Trust Co. vs. Barbour, 48 A. 1008-1009, where
defendant was in Europe and
service was made at the dwelling house
at Monmouth Beach, New
Jersey, where his wife
and family lived.

^[17]
Missell vs. Hayes, et al., 85 A. 818-819, where summons was left at the
father’s home in New Brunswick, New Jersey, while defendant was a student at a
college in Maryland in preparation for the ministry; Verdenburgh, et al., vs.
Weidmann, 183 A. 459-460, where summons was left at the father’s house in New
Jersey while defendant was a student at Yale Law School in New Haven; Skidmore vs.
Green, 33 F. Supp. 529-530, where summons and complaint were served on a
brother’s home, con­sidered defendant’s usual place of abode since defendant’s
life was of a migratory nature; Rovinski vs. Rowe, 131 F. 2d 687-693,
where service had been made upon defendant’s mother at her residence in
Michigan, although defendant had actually been living in various places in
other states for a number of years; Blaw-Knox Co. vs. Miller’s Gold Seal
Dairy, Inc., 14 Fed. Rules Serv. 4d. 122, Case 1, pp. 16-17, where summons was
left with defendant’s wife at his usual place of abode (Ohio), to which he
returned from time to time, although he took employment at another state
(Wisconsin) without any intention to return and the wife was going to follow
him when accom­modations could be found.

^[18]
Emphasis supplied

^[19]
1 Moran, Comments on the Rules of Court, 1963 ed., p. 396; emphasis supplied.

^[20]
1 Martin, Rules of Court in the Philippines,
1963 ed., pp. 398-399, citing 127 ALR 1273, 1274.

^[21]
72 C.J.S., p. 1054.

^[22]
126 A.L.R. 1486; emphasis supplied.

^[23]
Smith vs. Kincaid, 249 F. 2d 243, 245, citing Milliken vs.
Meyer, supra; U.S.
vs. Stabler, 169 F. 2d 995, 997; Maher vs. Deam, 137 N.E. 2d 149.

^[24]
Goodrich, Conflict of Laws, 1938 ed., p. 160, citing McDonald vs. Mabee,
supra.

^[25]
Dy Cay vs. Crossfield & O’Brien, 38 Phil. 521, 526.

^[26]
Pangasinan Transportation Co., Inc. vs. Workmen’s Compensation
Commission, G.R. No. L-16490, January
30, 1964.