ELISEO BOTICANO, PETITIONER, VS. MANUEL CHU, JR., RESPONDENT.

This is a petition for review on certiorari seeking
to reverse and set aside the following:  (a) the decision of the
Court of Appeals^[*]
promulgated on March 31, 1981 in CA-G.R. No. 65287-R
entitled:  “Eliseo Boticano, plaintiff-appellee v. Jaime Sigua,
defendant and Manuel Chu, Jr., defendant-appellant” which holds that the
defendant-appellant was not properly served with summons and (b) the resolution
denying petitioner’s motion for reconsideration of said
decision.

The findings of fact of the trial court are as
follows:

Petitioner Eliseo Boticano is the registered owner of a
Bedford
truck with plate No. QC-870, T-Pilipinas ’77 which he
was using in hauling logs for a certain fee.  At 11:00 o’clock in the evening of September 3, 1971, while loaded with
logs, it was properly parked by its driver Maximo
Dalangin at the shoulder of the national highway in
Barrio Labi, Bongabon, Nueva Ecija when it was hit and bumped at the rear portion by a
Bedford truck bearing plate No.
QK-516, T-Pilipinas, ’77 owned by private respondent
Manuel Chu, Jr. and driven by Jaime Sigua, the former’s co-defendant in this case.  Manuel
Chu, Jr. acknowledged ownership thereof and agreed
with petitioner to shoulder the expenses of the repair of the damaged truck of
the latter.  (Decision, Civil Case
No. 6754, Rollo, pp. 36-37).

When Manuel Chu, Jr. failed to
comply with aforesaid agreement as well as to pay damages representing
lost income despite petitioner’s demands, the latter (plaintiff in
the lower court), filed a complaint on November 24, 1977 at the Court of First Instance of Nuevo Ecija, Branch VII at Cabanatuan
City, against private respondent
Manuel Chu, Jr. (truck owner) and Jaime
Sigua (his driver) both as defendants in Civil Case
No. 6754 “Eliseo Boticano v. Manuel Chu, Jr. and Jaime
Sigua” for damages.  (Record on Appeal,
Rollo, pp. 45-47).

Summons was issued on December 12, 1977 but was returned unserved for defendant Jaime Sigua
because he was no longer connected with San Pedro Saw Mill, Guagua, Pampanga, while another
copy of the summons for Manuel Chu,
Jr. was returned duly served on him thru his wife Veronica Chu at his dwelling house.

On February 15,
1978 petitioner moved to dismiss the case against Jaime Sigua and to declare Manuel Chu,
Jr. in default for failure to file responsive pleadings within the reglementary period.  The motion was granted by
the lower court in an Order dated September 4, 1978, allowing petitioner to
adduce his evidence ex parte on October
17, 1978.  (Petition, Rollo, pp. 8-9).

From the evidence adduced by the plaintiff (petitioner
herein) the trial court found that private respondent Manuel Chu, Jr. is responsible for the fault and
negligence of his driver Sigua under Article 2180 of
the Civil Code, whose negligence and lack of due care was the immediate and
proximate cause of the damage to petitioner’s truck and ruled in favor of
plaintiff-petitioner.

The dispositive portion of the
judgment reads:

“WHEREFORE, judgment is hereby rendered in favor of the plaintiff,
Eliseo Boticano, and against
herein defendant, Manuel Chu, Jr.
ordering the latter as follows:

 (a) To pay the plaintiff the sum of
P6,970.00 representing actual damages;

 (b) To pay the plaintiff the sum of
P73,700.00 representing unrealized income for the non-use of the plaintiff’s
damaged truck for the period of eleven (11) months;

 (c) To pay the plaintiff the sum of
P2,000.00 for and as attorney’s fees; and

 (d) To pay the costs of this suit.

SO ORDERED.

Cabanatuan
City, November 28, 1978.” (Ibid.,
pp. 13-14).

On March 19, 1979 private respondent
Manuel Chu, Jr. filed with
the trial court a “Notice of Appeal” and an Urgent Motion for Extension of Time
to File Record on Appeal which was granted by the trial court on the same
date.

On March 26, 1979, Atty. Hermenegildo D. Ocampo, counsel of
record of private respondent, filed a “Motion to Withdraw as Counsel” while the
new counsel Atty. Wilfredo G. Laxamana entered his appearance on April 18, 1979 and filed
his record on appeal on the same date.

On May 4, 1979 petitioner filed with the trial
court a Motion to Dismiss Appeal and for execution which was set for
hearing on May 14, 1979 wherein private respondent’s counsel personally
appeared and opposed petitioner’s motion while on the latter date petitioner
filed his reply to opposition, after which on May 16, 1979 the trial court
issued an order denying aforesaid motion, while on May 22, 1979, the trial court
issued another order approving private respondent’s Record on Appeal. 
(Rollo, pp.
9-10).

After the case was brought to the Court of Appeals and the
parties had filed their respective briefs, said Appellate Court issued its
decision on March 31,
1981, the dispositive portion
of which reads:

“IN VIEW OF THE FOREGOING CONSIDERATIONS the appealed judgment is
hereby set aside, for being null and void.  This case is directed
to be remanded to the court of origin; that appellant be properly served with
summons and a copy of the complaint; and that the necessary and appropriate
proceedings or action be taken thereafter, as the circumstances and the case
will warrant.

With costs against appellee.

SO ORDERED.

Judgment is set aside.” (Rollo,
p. 33)

On April 20, 1981, petitioner filed with
the respondent Court of Appeals a Motion for Reconsideration and on
June 3,
1981 a Supplemental Motion for Reconsideration. 
On August 28,
1981 respondent Court of Appeals issued an order denying
petitioner’s Motion for Reconsideration.  (Rollo, pp. 9-11).

Hence, this petition, with the following assigned
errors:

1.  THE RESPONDENT COURT OF APPEALS COMMITTED A
   MISTAKE IN HOLDING THAT PRIVATE RESPONDENT MANUEL CHU, JR. WAS NOT
   PROPERLY SERVED WITH SUMMONS DESPITE THE FACT THAT THE SUMMONS WAS SERVED TO HIM
   THROUGH HIS WIFE;

2. THE RESPONDENT COURT OF
   APPEALS COMMITTED A MISTAKE IN HOLDING THAT PRIVATE RESPONDENT DID NOT
   VOLUNTARILY SUBMIT HIMSELF TO THE JURISDICTION OF THE TRIAL COURT DESPITE HIS
   VOLUNTARY APPEARANCE, THRU COUNSEL ON A FIXED DATE OF HEARING AND
   BY FILING WITH THE LOWER COURT A NOTICE OF APPEAL, APPEAL BOND, MOTION FOR
   EXTENSION OF TIME TO FILE RECORD ON APPEAL, MOTION FOR WITHDRAWAL OF APPEARANCE,
   NOTICE OF APPEARANCE, AND OPPOSITION TO MOTION TO DISMISS APPEAL AND FOR
   ISSUANCE OF WRIT OF EXECUTION;

3. THE RESPONDENT COURT OF APPEALS ERRED IN NOT FINDING THAT PRIVATE RESPONDENT
   HAS WAIVED ANY QUESTION ON THE TRIAL COURT’S JURISDICTION OVER HIS PERSON BY HIS
   DELIBERATE FAILURE AND REFUSAL TO SEEK RELIEF FROM THE TRIAL COURT.

4. THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN SETTING ASIDE THE JUDGMENT
   IN CIVIL CASE NO. 6754, COURT OF FIRST INSTANCE OF CABANATUAN CITY, BRANCH VII
   AND IN DIRECTING THAT THE CASE BE REMANDED TO THE COURT OF ORIGIN SO THAT
   APPELLANT CAN BE PROPERLY SERVED WITH SUMMONS.

   (Petition, Rollo,
   pp. 12-23)

In compliance with the resolution of the Second Division of this
Court of October 12, 1981 (Rollo, p. 79-A)
private respondent filed his comment on November 13, 1981 (Rollo, pp. 84-87).  Petitioner then
filed a reply thereto in compliance with the resolution of December 7, 1981
(Rollo, p. 39) after which the petition was
given due course in the resolution of February 8, 1982 and the parties were
required to file their respective memoranda (Rollo, p. 43).  Petitioner filed his
memorandum on March 19, 1982
(Rollo, pp. 45-59) while private respondent
filed his memorandum on April 15,
1982 (Rollo, pp. 60-64). 
Thereafter, in the resolution of April 30, 1982, the case was submitted for
decision.  (Rollo, p. 65).

There is no dispute as to the facts of this case, as shown by the
admission of private respondent to the extent of making an agreement with
petitioner to shoulder the expenses of the repair of the damaged truck of
the latter and the findings of the Court of Appeals that petitioner’s evidence
fully supports the findings of facts of the trial court as well as its judgment
under appeal.

Neither does private respondent deny receipt of the summons in
question.  The bone of contention appears to be in the manner of
service of said summons on the wife of private respondent at their dwelling
instead of on private respondent himself personally.

Petitioner contends in favor of validity of such service while
private respondent maintains the opposite view which was sustained by respondent
Court of Appeals to the effect that the Sheriff resorted to substituted service
under Section 8, Rule 14 of the Rules of Court, without first complying with the
mode of personal service required under Section 7 of the same Rule.

Thus, the principal issue which arises in this case which involves
an inquiry into procedural due process, is whether or
not the question of jurisdiction over the person of the defendant can be raised
for the first time on appeal.

The question has been answered in the negative by the Supreme
Court in a long line of decisions.  In fact, one of the
circumstances considered by the Court as indicative of waiver by the
defendant-appellant of any alleged defect of jurisdiction over his person
arising from defective or even want of process, is his failure to raise the
question of jurisdiction in the Court of First Instance and at the first
opportunity.  It has been held that upon general principles,
defects in jurisdiction arising from irregularities in the commencement of the
proceedings, defective process or even absence of process may be waived by a
failure to make seasonable objections.  (Castro v. Cebu
Portland Cement Co., 71 Phil. 481 [1941] citing Machan v. De la
Trinidad, 3 Phil. 684; Vergara v. Laciapag, 28 Phil. 439;
U.S. v. Inductivo, 40 Phil. 84; Soriano v. Ramirez, 44 Phil. 519). 
More recently, in reiteration of the same principle, the Court ruled in
Dalman v, City Court of Dipolog City, Branch II, that as to the dismissal of the
criminal case, the question of jurisdiction which was never raised
in said case before the trial court cannot be done at this stage and level (134
SCRA 244 [1985]).

Coming to the case at bar, it has been pointed
out that during the stages of the proceedings in the court below,
defendant-appellant could have questioned the jurisdiction of the lower court
but he did not.

It can of course be argued that the failure to question the lower
court’s jurisdiction cannot be accounted against Chu
for his having been declared in default gave him no chance to participate in the
court deliberations and therefore no chance to raise the jurisdictional issue,
but then, he could have done so, in the subsequent pleadings he filed. 
Besides, even assuming that such failure cannot be taken against him, the
fact is he had VOLUNTARILY submitted himself to the court’s jurisdiction.

On the contrary, private respondent voluntarily appeared thru
counsel in the trial court.  He filed a Notice of Appeal, Appeal
Bond, Motion for Extension of Time to File Record on
Appeal, Record on Appeal, Motion for Withdrawal of Appearance, Notice of
Appearance and Opposition to Plaintiff’s Motion to Dismiss Appeal and for
Issuance of a Writ of Execution.  Not only did he submit pleadings
and motions, but he likewise appeared in person, thru counsel in the hearing
held on May 14, 1979 at
8:30 a.m. and orally argued in open
court on the pending incident. (Rollo, pp. 53-54).

Under Section 23, Rule 14 of the Rules of Court, the
defendant’s voluntary appearance in the action shall be equivalent to
service.  Thus, under this principle, it has been consistently held
by the Supreme Court that the defect of summons is cured by the
voluntary appearance of the defendant.  (Infante v. Toledo and
Lanting; 44 Phil. 834 [1918]; Aguilos v. Sepulvede, 53 SCRA 274 [1973]; J.
M. Tuazon & Co. v. Estabillo, 62 SCRA 1;
Castro v. Cebu Portland Cement Co.,
supra).

The Court of Appeals is however of the view that from
all the actions and steps taken by the appellant no presumption can
arise that he voluntarily submitted himself to the jurisdiction of
the Court.  In fact according to said Court, all of these actions
taken by the appellant are geared and mustered towards contesting the court’s
jurisdiction over his person, or of attacking the validity of the judgment
on jurisdictional grounds.  (Decision, CA, G.R. No. 65287-R; Rollo, p. 31).

It will be noted however, that the Notice of Appeal (Rollo, p. 38) unmistakably indicates the reason for
the appeal, which reads:

“2.     That, the herein defendant is not
contented with the aforesaid Decision for it is contrary to the
evidence and the law and the award of damages is so
excessively unsupported by any evidence to warrant the same;
hence, he is appealing said Decision to the Hon. Court of
Appeals, Manila, both on questions of facts and
law.”

As clearly shown in the foregoing, the above-stated
conclusion of the Court of Appeals has evidently no basis.

Of equal importance is the question:  if the
defendant in the Regional Trial Court (RTC) has been
declared in default, may he appeal the default judgment that may subsequently be
rendered even if he has not asked the RTC to set aside the
declaration of default?  The answer is in the
affirmative.  However a distinction must be made as to the
effects of such appeal:

(a) If an
appeal is made without first asking the RTC to set aside
the declaration of default, and the appellate court sets aside on
said declaration, all he can get is a review of the RTC’s default judgment without the opportunity of
having the higher court consider defense evidence (for the simple reason that no
evidence was even adduced by him in the RTC) (See Rule 41, sec. 2, par. 3, Rules
of Court).

(b) If upon the other hand, the
defendant first asks the RTC to set aside the declaration of default (See Rule
18, secs. 2 and 3, Rules of Court), and he is able to
prevail, the declaration will be set aside, and he will now have the opportunity
to present his evidence in the RTC.  Thus, even if he finally loses
in the RTC’s subsequent decision, his defense can be
considered, when appeal is made to the appellate tribunal.  Of
course, even if the default declaration is not set aside despite his
motion for the setting aside, he will be entitled to all notices in the court
proceedings, and can file any pleading he may wish to file, including the notice
of appeal.  (See Rule 13, sec. 9, Rules of Court).

Incidentally, the afore-mentioned rules apply to default
declarations in the Metropolitan Trial Courts, the Municipal Trial Courts, and
the Municipal Circuit Trial Courts, for under Batas Pambansa Bilang
129, the said inferior courts will follow the rules in the
RTC.  Note however that in summary proceedings, there can be no
default declarations.

In the case at bar, there is no question that summons was timely
issued and received by private respondent.  In fact, he never
denied actual receipt of such summons but confined himself to the
argument that the Sheriff should prove that personal service was first made
before resorting to substituted service.

This brings to the fore the question of procedural due
process.  In Montalban v. Maximo (22 SCRA 1077 [1968]
the Court ruled that “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.”

Indeed, such construction is but fair, and in accord with
substantial justice.  The burden on a plaintiff is not to be
enlarged with a restrictive construction desired by the defendant. 
(Ibid., p. 1078).

Finally in a last ditch effort, private respondent insists that
there was no valid service of summons because private respondent is
a partner and general manager in San Pedro Sawmill.  Consequently
the wife of private respondent to whom summons and complaint were allegedly
served not being partnership, cannot receive the same under Section 13 of Rule
14 of the Rules of Court.

It has however been settled that actions must be brought by the
real parties in interest and against the persons who are bound by the judgment
obtained therein.  (Salmon and Pacific
Commercial Company v. Tan Cueco, 36 Phil. 557-558 [1917]).

The title of the case both in the trial court, in the Court of
Appeals and in this Court shows that the partnership is not a
party.  On the contrary, as previously stated private respondent
himself assumed the responsibility of the accident and is now estopped to disclaim the liabilities pertaining thereto.

From what has been discussed the following conclusions are hereby
made:  jurisdiction was properly acquired by the trial court
over the person of respondent thru both service of summons and voluntary
appearance in court; he was therefore properly declared in default for not
having filed any answer; despite respondent’s failure to file a motion to set
aside the declaration of default, he has the right to appeal the default
judgment but in the appeal only the evidence of the petitioner may be
considered, respondent not having adduced any defense evidence; We agree with
the findings of fact by the trial court, the same being unrebutted.

WHEREFORE, the assailed decision and resolution of the
Court of Appeals are REVERSED and SET ASIDE, and the decision of the then Court
of First Instance (now Regional Trial Court) of Nueva
Ecija, Cabanatuan City in
Civil Case No. 6754 “Eliseo Boticano v. Manuel Chu, Jr. and Jaime
Sigua” is hereby REINSTATED.  No costs.

SO
ORDERED.

Fernan, (Chairman), Alampay,
Gutierrez, Jr., Padilla, Bidin, and Cortes, JJ.,
concur.

---

^[*] Penned by Justice Elias B.
Asuncion concurred in
by Justices Porfirio V. Sison and Juan A. Sison.