SALOME M. CASTILLO, PETITIONER, VS. COURT OF FIRST INSTANCE OF BULACAN, BRANCH IV AND FELIBERTO V. CASTILLO, RESPONDENTS.

Petition for certiorari and prohibition to annul the
proceedings in Civil Case No. 1065-B, entitled “Feliberto V. Castillo,
plaintiff, versus Salome M. Castillo, et al, defendants,” which is
pending before the former Court of First Instance of Bulacan, Branch IV.

Private respondent and petitioner are husband and wife. Sometime in
October, 1979 a complaint dated October 8, 1979 was filed by private
respondent against petitioner for administration of conjugal properties,
alleging that in August, 1971 petitioner took possession and
administration of the assets of the conjugal partnership; that they were
separated de facto in the latter part of 1973; and praying,
among others, that the possession and administration of real properties
belonging to the conjugal partnership located in the province of Bulacan
and City of Manila be transferred to him and that the sale of a parcel
of land and building registered in the name of the spouses made by
petitioner be nullified.

Summons was issued by the respondent court. The address of petitioner
as alleged in the complaint and indicated in the summons is 129 or 35
Lapu Lapu Street, Caloocan City, Metro Manila. On October 19, 1979,
Deputy Sheriff Felixberto L. Samonte instead of serving the summons at
the aforesaid address, served it at No. 8 Mango Road, Malabon, Metro
Manila, but was informed by Atty. Jose M. Castillo, a son of the
spouses, that petitioner is not residing in said address and is
presently in the United States of America. When the Deputy Sheriff
inquired the location of 129 Lapu Lapu Street, Caloocan City, Atty.
Castillo accompanied him in said address where his brother, Feliberto M.
Castillo, Jr. is residing. In said address, the Deputy Sheriff was
likewise informed that petitioner is abroad. On October 24, 1979 the
Castillo brothers filed a manifestation before the respondent court that
petitioner is abroad.

In a letter dated December 12, 1979 private respondent requested the
Deputy Sheriff to serve the summons at No. 8 Mango Road, Northern Hills,
Malabon, Metro Manila. On December 14, 1979 the Deputy Sheriff served
the summons on the said address delivering a copy thereof to a certain
Chua Yok, an overseer of one Ngo Kieng, who was the lessee of the
premises belonging to the conjugal partnership of petitioner and private
respondent.

For failure of petitioner to file answer, on March 24, 1980, private
respondent filed a motion to declare the former in default which was
granted by the trial court on April 17, 1980. Private respondent was
allowed to present his evidence ex-parte. As private respondent has
already presented his evidence and the case is pending decision before
the lower court, the present case was instituted raising the sole
question as to whether valid service of summons was made upon
petitioner. On January 11, 1981 a temporary restraining order was
issued by this Court restraining the court a quo from further proceeding with the case.

The petition is meritorious. There was no valid service of summons upon
petitioner. Courts acquire jurisdiction over the person of a party
defendant and of the subject matter of the action by virtue of the
service of summons in the manner required by law. In the present case,
petitioner is a resident temporarily out of the Philippines. Such being
the case, service of summons is governed by Section 18, Rule 14 of the
Rules of Court which states:

“Section 18. – Resident 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.”

Under Section 17, service of summons may, by leave of court, be effected
out of the Philippines by personal service 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. Failure to comply with the above provisions of law, as in
this case, is a fatal defect in the service of summons as to annul the
proceedings taken by the lower court. Chua Yok, a mere overseer of the
lessee of the premises owned by the parties herein, and to whom the
summons was served, is not in anyway authorized to receive any pleading
in behalf of petitioner. Hence, service of summons to him is not proper
and legal.

Non-service of summons upon petitioner constitutes a deprivation of
procedural due process. It is fair and just that she be given her day
in court. It is a jurisdictional defect proper for the present
recourse.

WHEREFORE, the proceedings in Civil Case No. 1065-D is hereby declared
null and void. The now Regional Trial Court, to which the case below
has been assigned, is hereby directed to allow private respondent to
apply for the issuance of an alias summons on petitioner, and after
issues have been joined, to proceed to trial and judgment accordingly.
No costs.

SO ORDERED.

Concepcion, Jr., Guerrero, Abad Santos, and Escolin, JJ., concur.

Makasiar, J., (Chairman), joins Aquino, J., in his concurring opinion.

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CONCURRING OPINION

AQUINO, J.:

Salome Castillo of 2385 Seabright, Long Beach, California, should be
considered already served with summons through Jose M. Castillo, the
lawyer of his mother in this case, the son of the parties, his father’s
opponent, and a resident of 8 Mango Road, Malabon. He should be given
15 days from notice of the finality of the judgment in this case to
answer the complaint in Civil Case No. 1065-D. He should endeavor to
settle the case amicably.