PEDRO REYES, PETITIONER, VS. JESUS M. PAZ AND THE JUDGE OF COURT OF FIRST INSTANCE OF CAMARINES SUR, RESPONDENTS.

It appears from the petition, and not controverted in the answer,
that the respondent judge of the Court of First Instance of Camarines
Sur, in civil case No. 5649 of said court, in which the respondent
Jesus M. Paz was the plaintiff and the petitioner Pedro Reyes was the
defendant on October 18, 1932, rendered a judgment by default against
the defendant condemning the defendant to pay to the plaintiff the sum
of P1,302.50 with legal interest; that the defendant in said case
(petitioner here) entered no voluntary appearance in said case; that
due summons was issued on June 20, 1932, requiring the defendant to
appear and answer within twenty days after service of such summons. The
deputy sheriff, Monico Imperial, made the following returns of service
which was filed in said case:

“UNITED STATES OF AMERICA
“PHILIPPINE ISLANDS

“PROVINCE OP CAMARINES SUR

“I have this day served a copy of the within
complaint and process upon Chino Yu Chan for the absence of the
defendant Chino Pedro Reyes.

It is manifest at a glance that this return shows no legal service
of summons in compliance with section 396, paragraph 6, of the Code of
Civil Procedure. Therefore, the court acquired no jurisdiction over the
defendant and the judgment rendered against the defendant in said civil
case No. 5649 is void.

The defendant Reyes was apparently absent in China when said
judgment was rendered and learned of it for the first time on or about
June 23, 1934. Upon the allegation of his petition that a writ of
execution on said judgment was about to be issued, this court granted a
temporary injunction restraining the respondents from enforcing said
judgment until the further order of this court.

Section 513 of the Code of Civil Procedure provides in part:

“* * * The court shall summarily on notice to both
parties hear such petition, upon oral or written testimony as it shall
direct, and the judgment shall be set aside and a trial upon the merits
granted, upon such terms as may be just, if the facts set forth in the
complaint are found to be true, otherwise the complaint shall be
dismissed with costs.”

In view of the complete record which we have before us as set out
in the petition and in the answer with the accompanying exhibits, we
have deemed it unnecessary to grant the motion of the petitioner that a
commissioner be appointed and testimony taken. The judgment complained
of being void is hereby set aside, vacated and held for naught, and it
is directed that a trial upon the merits of said cause be had when said
court shall have acquired jurisdiction over the defendant either by his
voluntary appearance or by compulsory process lawfully served as shown
by a proper return, with costs in this instance against the respondent
Jesus M. Paz.

Malcolm, Villa-Real, Imperial, and Goddard, JJ, concur.