PARAMOUNT INSURANCE CORPORATION, PETITIONER, VS. HON. ARTEMON D. LUNA, PRESIDING JUDGE, BRANCH XXXII, CFI, MANILA, CITY SHERIFF & DEPUTY SHERIFF SALVADOR DACUMOS, CITY HALL, ARR…

The instant petition for Certiorari with preliminary
injunction and Prohibition assails the Decision dated September 24, 1981 and the
Writ of Execution dated February 18, 1982 issued by respondent Judge Artemon D. Luna, Presiding Judge of the Court of First
Instance of Manila, Branch XXXII in Civil Case No. 122209 entitled “Doroteo Espiritu versus Romeo M. Hechanova and
Paramount Insurance Corporation.”

Hereunder are the background proceedings:

On March 8, 1979 herein private respondent Dr. Doroteo Espiritu filed a complaint
for damages against petitioner Paramount Insurance Corporation, as surety and
Romeo Hechanova as principal, in the Court of First
Instance of Manila, docketed as Civil Case No. 122209, and assigned to the sala of respondent Judge, alleging, among other things that
“in accordance with his undertaking under the Construction Agreement, Hechanova posted in favor of Dr. Espiritu, on October 20, 1978, a Performance Bond issued by
Paramount Insurance Corporation through Speedbond
Insurance Center, denominated as PSIC Bond No. 0169.”

On May 15,
1979, petitioner Paramount Insurance Corporation through Atty.
Reynaldo A. Pineda filed its Answer with Cross-claim and attaching thereto a
copy of the Indemnity Agreement entered into by it and Romeo Hechanova.

On January 16,
1980, respondent Judge, upon motion of the plaintiff declared Hechanova in default for failure to file his answer.

On July 25, 1980, counsel for Paramount Insurance Corporation
failed to appear despite due notice and so plaintiff was allowed to present his
evidence ex-parte without prejudice, however, to cross-examination set
on September 18, 1980 and October 1, 1980, both at 8:30 a.m.

On September 18, 1980, counsel for Paramount Insurance Corporation
again failed to appear notwithstanding due notice, and therefore
the respondent Judge issued an order cancelling and
resetting the scheduled hearing on that day as well as that on October 1, 1980
to November 5 and 14, 1980 at 8:30 a.m.

On November 5,
1980, counsel for Paramount Insurance Corporation did not appear for
the third time despite notice.  Hence, the respondent Judge
cancelled and re-set the trial to November 14, 1980 as previously scheduled.

On November 14, 1980 plaintiff Dr. Espiritu was allowed to continue with the direct examination
of the same witness ex-parte, without prejudice to cross-examination by
Paramount Insurance Corporation set for January 14, 1981 at 8:30 a.m.

On January 14, 1981, in view of the unjustified absence of both
the Paramount Insurance Corporation and counsel, the respondent Judge issued an
order declaring the cross-examination of plaintiff’s witness as waived and
giving plaintiff ten (10) days within which to make a formal offer of evidence
and the defendant was given a like period of time to submit comments and/or
objections thereto.

On January 30, 1981, plaintiff filed a “Motion to Admit Formal
Offer of Evidence” together with the “Formal Offer of Evidence”, copies of which
were furnished to the defendant Paramount Insurance Corporation itself at
Paramount Building, 434 Quintin Paredes St., Manila, and were actually received by said
defendant as shown by its rubber stamp on it.  As there was
no objection on the part of the defendant, the respondent Judge ordered
the admission in evidence of plaintiff’s exhibits and set the reception of
defendant’s evidence on April 3,
1981 at 8:30 a.m.

On April 3, 1981, defendant and counsel were absent for trial and
so, the scheduled hearing was cancelled and re-set to June 17, 1981 which was
likewise cancelled and postponed to July 1, 1981 with a warning issued by the
respondent Judge that if counsel and defendant persisted in being absent, the
Court would be constrained to consider the case submitted for decision.

Finally, on July 1,
1981, due to the Unexplained absence of
defendant and counsel, the respondent Judge issued an order submitting the case
for decision.

On September 24,
1981, the respondent Judge rendered his decision, the dispositive portion of which reads:

“ACCORDINGLY, judgment is hereby rendered in favor of the plaintiff
and against the defendants Romeo Hechanova and
Paramount Insurance Corporation, ordering the said defendants, jointly and
severally, to pay plaintiff:

1. P22,796.00 as actual and compensatory damages;
2. P5,000.00 as exemplary damages;
3. P5,000.00 as attorney’s fees; and
4. To pay the costs

SO ORDERED.”

No appeal having been taken from the above decision, it became
final and executory, hence, plaintiff filed a motion
for execution on November 14, 1981 which was set for hearing on November 18,
1981 at 8:30 a.m.

Before respondent Judge could act on plaintiff’s motion for
execution, a fire broke out on November 19, 1981 and gutted the entire fourth floor of
the City Hall of
Manila wherein some branches of the
Court of First Instance of Manila including Branch XXXII were
housed.  Most unfortunately, not a single record of Civil
Case No. 122209 was saved.  Hence, a motion for reconstitution was
filed by the plaintiff on January 7,
1981, docketed as Civil Case No. R-82-1624.

On February 18,
1982, the respondent Judge issued an order granting plaintiff’s
motion for reconstitution as well as his motion for execution.

Then on July 29,
1982, the petitioner Paramount Insurance Corporation filed a petition
for relief from the decision of September 24, 1981, in the Court of First Instance of
Manila, docketed as Civil Case No. 82-11372 and assigned to Branch II
thereof.  The petition however was not given due course and
therefore was dismissed, for not being sufficient in form and substance,
in the order of the presiding Judge of Branch II dated August 3, 1982. 
Petitioner’s motion for reconsideration was denied, hence, on August 16, 1982, petitioner filed
before this Court the instant petition for certiorari with preliminary
injunction and prohibition.

The question is thus poised:  whether or not the
present action which seeks to invalidate the decision and the writ of execution
issued by respondent Judge in Civil Case No. 122209, is the proper remedy considering that the decision
here sought to be voided has already become final and executory.

For this procedural problem, the solution lies in the
determination of the validity of the assailed decision, for against a void
judgment, petitioner’s recourse would be proper. (Macabingkil vs. People’s Homesite and Housing
Corporation 72 SCRA 326).

The petitioner maintains that the court in Civil Case No. 122209
did not acquire jurisdiction over its person because it was not duly served with
summons.  Consequently, the decision rendered by it is allegedly
null and void.

Jurisdiction over the person of the defendant in
civil cases is acquired either by his voluntary appearance in court and his
submission to its authority or by service of summons. 
The purpose of summons is to give notice to the defendant or
respondent that an action has been commenced against it.  The
defendant or respondent is thus put on guard as to the demands of the plaintiff
or petitioner.

In the case at bar, the record indicates beyond doubt
that petitioner was adequately given in the case below the necessary
notice.  It was validly served with summons together with a copy of
the complaint.  It filed its answer to the complaint through counsel Atty. Reynaldo Pineda and even invoked the
jurisdiction of the court for affirmative relief against its co-defendant, Romeo
Hechanova.  Such filing of answer with
crossclaim against Romeo Hechanova is equivalent to voluntary appearance and cured
the defect if any, of the summons, (Sec. 23, Rule 15, Rules of Court).

Petitioner’s now belated assertion that Atty. Reynaldo Pineda was
not authorized to appear for and in its behalf is untenable, for the following
reasons:

a) The mere filing of the answer with crossclaim raised a presumption of authority to appear for
petitioner Paramount Insurance Corporation in favor of Atty. Reynaldo Pineda, in
accordance with Section 21, Rule 138 of the Rules of Court.  Such
presumption is rebuttable, but only by clear and
positive proof for obvious reasons.  In the absence of such clear
and positive proof thereof, the presumption of authority in favor of Atty.
Reynaldo Pineda should prevail over the petitioner’s self-serving denial of such
authority.

b) The authority of Atty. Reynaldo Pineda to appear for
petitioner was disclosed by no less than Atty. Pineda himself.  His
legal services, according to him, were engaged by petitioner Paramount Insurance
Corporation through its agent, the Speedbond Insurance
Center.  (Annex ‘5’, Answer) It is the same agent who issued
Performance Bond No. 0169, subject matter of Civil Case No. 12209.

c) Another circumstance that strongly militates against
petitioner’s assertion that Atty. Pineda was not authorized to appear in Civil
Case No. 122209, is the well-prepared answer with crossclaim filed by said counsel.  Consisting
of eleven (11) pages, the answer is replete with material and relevant details
and supported by a document, the Performance Bond.  An explanation
is conspicuously absent as to how and why these vital details and document came
to the knowledge and possession of Atty. Pineda.  Moreover, the
eleven-page document contains nothing prejudicial to the rights and interest of
petitioner.  Significantly, it alleges numerous defenses against
the complaint, one of which is the alleged novation of
the contract which has been adopted by petitioner in its present
petition.d)  Interestingly, the “Motion to Admit Formal Offer of
Evidence” together with the “Formal Offer of Evidence” reveals that petitioner,
contrary to its pretense is fully aware of Civil Case No. 122209, as shown by
the rubber stamp mark bearing its name showing that it actually received copies
thereof on January 30,
1981.  Despite this knowledge, petitioner did not take
steps to repudiate the representation taken in its behalf by Atty. Pineda.

“Insolvency proceedings were instituted against Tan Lua and her children and grandchildren.  Tan
Lua was at the time, and had been for a year, in
Amoy,
China.  Chua
Chito, her eldest son, who was in
Manila, employed Attorney Gregorio
Perfecto to represent him, his mother and her various descendants in the
insolvency proceedings.  Tan Lua appeared to have full
knowledge thereof, but did not take steps to repudiate the representation taken
in her behalf by Atty. Perfecto.  Tan Lua and her
correspondents were declared insolvent debtors.  Tan Lua subsequently instituted action for relief from the
effects of the judgment, on the proceedings and that the attorney who
represented her was not authorized by her to appear in her behalf.

The Court overruled plaintiff’s contention, holding that under the
facts as above-stated, she was represented in the insolvency proceedings by the
attorney with proper authority.

“If the attorney chosen by her son had no authority to represent her
in the insolvency proceedings, she should at least have acted with due
diligence, and by not so acting, she must be taken to have acquiesced in the
employment of the attorney.  By so doing she must also be said to
have ratified the act.  It must be remembered that authority to
employ an attorney does not have to be proved by a public document, nor even by
a paper writing.  Its existence may be
inferred from circumstantial evidence, and in law it is even assumed prima
facie that every attorney who appears in court does so with sufficient
authority.  Of course this is not a conclusive presumption, and in
a timely direct attack upon the judgment a person may undoubtedly establish
that, in a particular case, the authority did not in fact exist. 
But the security of judicial proceedings requires that the evasions and
tergiversations of unsuccessful litigants should not be received in such a
matter with undue favor.” (Tan Lua vs. O’Brien, 55 Phil. 53)
(Underscoring supplied.)”

Under the foregoing circumstances, it is evident that the trial
court acquired jurisdiction over the petitioner, then defendant Paramount
Insurance Corporation.  It follows that its judgment, dated
September 21, 1981, may not
be corrected, much less annulled in the instant proceeding.  If the
court has jurisdiction of the subject matter and of the person, the orders and
rulings upon all questions pertaining to the cause are orders and rulings within
its jurisdiction and cannot be corrected by certiorari.

Finally, the reopening and remand of the case to the trial court
will not serve any useful purpose because the petition fails to state a good and
substantial defense to justify a new trial.  Paraphrasing what this
court stated in Paner vs. Yatco, 87
Phil. 271 cited in Arcilla vs.
Arcilla, 138 SCRA 560, it would be pointless to re-open this case, “for
like a mirage it would merely raise false hopes and in the end avail her (him)
nothing.”

WHEREFORE, the instant petition for certiorari is
hereby DISMISSED.  Costs against
petitioner.

SO
ORDERED.

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