BAC MANUFACTURING AND SALES CORPORATION, PETITIONER, VS. COURT OF APPEALS AND WYNNER GARMENTS MANUFACTURING, INC., RESPONDENTS.

This is an appeal by certiorari under Rule 45 of the Rules
of Court seeking to review and set aside the decision^[1]
of the respondent Court of Appeals in C.A.-G.R. SP No. 15647, promulgated on 7 December 1989, the dispositive portion of which reads:

“WHEREFORE, judgment is rendered:

1.  Declaring the two (2) orders of respondent
Judge dated March 17 and May 20, 1988,
respectively, null and void;

2.  Dismissing private respondent’s complaint;

3.  Dissolving the writ of attachment dated October 10, 1986;

4.  Ordering the Deputy Sheriff Ruben S. Nequinto to deliver to petitioner all its forty (40) levied
and attached machineries per Notice of Levy on Attachment dated December 7,
1987; and

5.  Ordering respondent Judge to desist from
proceeding with this case.

With costs.

SO ORDERED.”

and its
resolution^[2]
of 4 January 1991, which denied petitioner’s motion for the reconsideration of
the decision.

In the resolution of 29 April 1991, We gave due course to the
petition and required the parties to submit their respective memoranda after
the private respondent filed its Comment on 16 April 1991 in compliance with
the Resolution of 27 February 1991.

From the challenged decision and the pleadings of the parties,
the following facts are not controverted:

On 9 October 1986, petitioner, as assignee of certain rights of
one BOFTEX LIMITED under various contracts for ladies shorts, denim pants and
men’s trousers which the latter entered into on various dates in 1985 with the
private respondent, filed a complaint against the latter with the Regional
Trial Court of Makati (Branch 145), National Capital
Judicial Region.  The case was docketed
as Civil Case No. 15095.  Embodied in the
complaint is an application for the issuance of a writ of preliminary
attachment.  Supporting it is an
affidavit of its general manager which is attached to the complaint.  A writ of preliminary attachment was issued on 10 October 1986. 
No summons and a copy of the complaint were, however, served upon
private respondent.

On 11 August 1987,
the trial court issued an Order directing petitioner, as plaintiff, to take the
necessary steps towards the active prosecution of the case, otherwise it would
be dismissed for failure to prosecute. 
On 8 September 1987,
petitioner filed a Request for Alias Summons, and on 10 September
1987, the Clerk of Court of the trial court issued an Alias Summons.^[3]

Then on 7 December 1987,
a levy on attachment was made upon the machineries of private
respondent by Deputy Sheriff Ruben S. Nequinto of the
aforesaid Branch 145 of the trial court a quo.

Neither the Alias Summons nor the order granting the issuance of
the writ of preliminary attachment or the writ of attachment itself was served
on the private respondent before or at the time the levy was made.^[4]

On 16 February 1988,
private respondent filed a motion to dismiss the complaint and to dissolve the
attachment^[5]
for failure of petitioner to prosecute its case for an unreasonable length of
time and that no copies of the summons and order of attachment were served upon
it.  On 14 March 1988, petitioner filed its opposition thereto
alleging therein that it could not, inspite of its
diligent efforts, locate private respondent’s principal office address.^[6]
On 17 March 1988, the trial
court denied the motion to dismiss and ordered
private respondent to file its answer. 
The latter filed a motion
for the reconsideration of the Order, but the trial court denied it in its
order of 20 May 1988.^[7]

On 6 June 1988,
private respondent filed an Answer With Counterclaim^[8]
wherein it prays that the
complaint be dismissed for lack of merit, the writ of attachment be discharged
and the attached properties be returned
to it.  On its counterclaim,
private respondent prays that
petitioner be ordered to pay moral and exemplary damages as may be
determined by the court, attorney’s fees in the sum of P50,000.00 and the litigation expenses and costs in an amount to
be proved at the trial.

The trial court set the pre-trial of the case on 25 July 1988.^[9]

However, private respondent filed with this Court a petition to
annul the aforesaid Orders of 17 March and 20 May 1988.^[10]
This Court referred the petition to the respondent Court of Appeals,^[11]
which the latter docketed as C.A.-G.R. SP No. 15647.  In said petition, the private respondent
herein contends that the trial court: 
(a) has not acquired jurisdiction over it as it has not been duly served
with summons, and (b) petitioner’s failure to cause summons to be served upon
private respondent for an unreasonable length of time warrants the dismissal of
the complaint for failure to prosecute.

In its challenged decision, the respondent Court sustains the
private respondent, ruling that:  (a)
Since private respondent was not validly
or properly served with summons, the court below did not acquire jurisdiction
over it.^[12]
The fact that the Sheriff and the petitioner herein could not locate the
principal office of private respondent is of no consequence, for whenever the
address of a defendant is unknown and cannot be ascertained by diligent
inquiry, service of summons may, by leave of court, be effected by publication
pursuant to Section 16 of Rule 14 of the Rules of Court.  The trial court then acted with grave abuse
of discretion when he ordered the attachment of the property of private respondent.  (b) Settled is the rule that where plaintiff
fails to prosecute his action for an unreasonable length of time, the action
may be dismissed upon motion of defendant or upon the court’s own motion.^[13]
In the instant case, from 9 October
1986, when the complaint was filed, “up to the present or for
more than three (3) years,” petitioner and the sheriff of the lower court
have not served the summons on private respondent and no effort has been
exerted by petitioner to have it served. 
The trial court should have dismissed the complaint for failure to
prosecute; courts should not brook undue delays in the ventilation and
determination of cases.  It should be
their constant effort to assure that litigations are prosecuted and resolved
with dispatch.^[14]
In holding that an unreasonable length of time exists in this case, respondent
court makes reference to various cases where this Court sustained dismissals
for failure to prosecute for a period of more than one year,^[15]
or for less than three (3)
months^[16]
or for even less than two (2) months.^[17]

On the strength of the foregoing, the respondent Court granted
the petition of private respondent and entered the judgment quoted at the
exordium of this decision.

Petitioner sought to reconsider the above decision in its motion
filed on 4 January 1990 alleging therein that (a) private respondent’s
voluntary appearance via the filing of its answer and motion to dismiss has
rendered the petition, which is founded on lack of summons and failure to
prosecute, moot and academic, and (b) private respondent’s reliance on
technicalities cannot defeat the ends of substantial justice whose issues have
been joined by the filing of the answer. 
The respondent court denied this motion in its resolution of 4 January
1991 on the grounds that the issues raised therein have been submitted to,
passed upon and resolved in the decision in question and that, even granting
the validity of the first issue raised, still the motion fails to touch upon
the other basis of the decision, namely, that the petitioner failed to
prosecute its case for an unreasonable length of time.

Unsatisfied with the decision and resolution, petitioner filed
the instant petition on 14 February
1991 and urges Us to set them aside because the respondent Court
erred in finding that (a) the trial court did not acquire jurisdiction over the
person of private respondent, and (b) that petitioner failed to prosecute its
case for an unreasonable length of time. 
As to the first, petitioner contends that the filing by private respondent
of an answer in June 1988 and a motion to dismiss on 16 February 1988 constituted a voluntary appearance and rendered
moot and academic the issue of lack of service of summons, for, pursuant to
Section 23 of Rule 14 of the Rules of Court, voluntary appearance is equivalent
to service of summons.^[18]
Moreover, as was held in Tenchavez vs. Escaño,^[19]
even if private respondent objected to the jurisdiction of the court over its
person, considering that it filed an answer with counterclaim, which makes it
also a plaintiff, it thereby invoked the jurisdiction of the court in the same
action and submitted to it.  It further
claims that the failure to serve summons upon private respondent was largely
due to the latter’s fraudulent act of concealing its whereabouts, “even up
to this day”, and despite having been apprised of petitioner’s difficulty
of locating private respondent’s offices, the latter and its counsel refused to
disclose its address.

As regards the second ground, petitioner contends that the
failure to serve summons on private respondent is solely attributable to the
fact that despite diligent efforts on its
part and the sheriff, the principal office of respondent could not be
located.  It has exhausted means to
locate it.  Furthermore, after the trial court granted its
application for a writ of attachment, it posted, without unnecessary delay, the
bond and forthwith implemented the writ of attachment through the sheriff.  In any event, as held in many cases,
dismissal of actions on purely
technical grounds should be frowned upon by the courts.  At the risk of some delay, a court should not
dismiss a complaint where it appears that the plaintiff has a meritorious
claim.  And since in this case, private
respondent has in fact filed its answer, and the issues have been joined, it is
proper that the case be allowed to proceed to trial.

In its Comment, private respondent sustains the challenged
decision but does not meet squarely the issue of its voluntary appearance, or
waiver of service of summons by the filing of the motion to dismiss and the
answer.

We have carefully studied the pleadings in this case and upon due
deliberation thereon, We find no reversible error which could be attributed to
respondent Court.

The first assigned error is merely impressive on its face.  In reality, it is hollow.  The motion to dismiss the complaint and to
dissolve the writ of attachment filed by private respondent on 16 February 1987
was precisely based on failure to prosecute for an unreasonable length of time
because summons has not been served even up to that point in time and on the
nullity of the attachment for failure to serve summons on private respondent
and to furnish it with copies of the writ of attachment and the notice
thereof.  It claims that failure to serve the summons is sufficient to vacate or annul the
writ.

Obviously, this appearance of private respondent was not,
contrary to the claim of petitioner,
a general appearance, and did
not operate as waiver of service
of summons.  Petitioner’s recourse to or reliance on Salmon
and Pacific Commercial
Co. vs. Tan Cueco,
supra., and Tenchavez vs. Escaño, supra., is completely
misplaced — although not for the disquisitions made by private
respondent.  In the former, there was a general
appearance made by Salmon by virtue of the filing of
an answer.  In the
latter, Escaño did, in fact, file an answer with the
counterclaim and the matter of jurisdiction over the person because she is a
non-resident defendant was only
raised as a special defense.  Moreover,
after that issue was unfavorably ruled upon by the trial court, it was not
properly ventilated either on appeal or by special remedy or even in her brief
as appellee.

Also, the filing of the Answer by private respondent does not
appear to have been squarely raised in the proceedings
before the respondent court.  The
petition in C.A.-G.R. SP No. 15647^[20]
does not refer to it.  Petitioner makes no direct and specific
allegation in its petition in the instant case that it had initially raised and
pursued with vigor this matter in any of the pleadings it filed before the
promulgation of the challenge decision. 
The latter does not mention it. 
Not having been properly and seasonably raised, the respondent Court
could not have considered the legal effects of the filing of the Answer in its
decision of 7 December 1989.  Moreover, as impliedly ruled by respondent
Court in its resolution of 4 January
1991, the filing of the Answer did not affect the issue of failure
to prosecute for an unreasonable length of time.  We agree with the respondent Court in this
regard for to rule otherwise is to
reward petitioner for its inaction and to punish private respondent for
complying with the trial court’s order of 20 May 1988 which denied the motion to reconsider the
Order of 17 March 1988 and
required it to file its Answer.  That its
answer was filed solely for that purpose is made manifest by its filing of a
petition for certiorari precisely to annul said Order and the previous
Order of 17 March 1988
denying the motion to dismiss and to dissolve the writ of attachment.  A dismissal for failure to prosecute for an unreasonable length of time puts an
end to the case and it would be unjust and unfair to compel a defendant to
abort such a result by filing an answer. 
As a matter of fact, the trial court committed grave abuse of discretion
when it ordered private respondent to file the Answer despite the fact that it
was not yet served with summons and a copy of the complaint.

The trial court then did not validly acquire jurisdiction over
the person of private respondent.  And
the implementation of the writ of attachment against the property of private
respondent is null and
void.  While it is true that under
Section 1 of Rule 57 of the Rules of Court the property of the defendant may be
attached, as security for the satisfaction of any judgment that may be
recovered in the cases therein enumerated, upon application by the plaintiff at
the commencement of the action or at any time thereafter, a court which has not acquired jurisdiction
over the person of the defendant cannot
bind the defendant, whether in the main case or in the proceedings for
the ancillary remedy of attachment.  In
the relatively recent case of Sievert vs.
Court of Appeals,
et al.,^[21] We
ruled:

“Attachment is an ancillary remedy.  It is not sought for its own sake but rather
to enable the attaching party to realize upon relief sought and expected to be
granted in the main or principal action. 
A court which has not acquired jurisdiction over the person of the
defendant, cannot bind that defendant whether in the main case or in any
ancillary proceeding such as attachment proceedings.  The service of a petition for preliminary
attachment without the prior or simultaneous service of summons and a copy of
the complaint in the main case – and that is what happened in this case – does
not of course confer jurisdiction upon the issuing court over the person of the
defendant.

Ordinarily, the prayer in a petition for a writ of preliminary
attachment is embodied or incorporated in the main complaint itself as one of
the forms of relief sought in such complaint. 
Thus, valid service of summons and a copy of the complaint will in such
case vest jurisdiction in the court over the defendant both for purposes of the
main case and for purposes of the ancillary remedy of attachment.  In such case, notice of the main case is at
the same time notice of the auxiliary proceeding in attachment.  Where, however, the petition for a writ of
preliminary attachment is embodied in a discrete pleading, such petition must
be served either simultaneously with service of summons and a copy of the main
complaint, or after jurisdiction over the defendant has already been acquired
by such service of summons.  Notice of
the separate attachment petition is not notice of the main action.  Put a little differently, jurisdiction
whether ratione personae or ratione materiae in
an attachment proceeding is ancillary to jurisdiction ratione
personae or ratione materiae
in the main action against the defendant. 
If a court has no jurisdiction over the subject matter or over the
person of the defendant in the principal action, it simply has no jurisdiction
to issue a writ of preliminary attachment against the defendant or his
property.”

The second assigned error is equally without merit.  We are not unmindful of the rule that the
dismissal of an action for failure to prosecute for an unreasonable length of
time rests upon the sound discretion of the court,^[22]
and that as to what constitutes “unreasonable length of time”, this
Court has ruled that it depends upon the circumstances of each particular case;
and that the sound discretion of the court in the determination of said
question will not be disturbed in the absence of patent abuse.^[23]
We agree with the respondent court — although not necessarily for the
authorities cited since a closer examination thereof reveal that they do not
involve similar factual background or causes of action as this case — that it
was error for the trial court not to dismiss petitioner’s complaint for failure
to prosecute for an unreasonable length of time.

Nothing on record supports the claim of petitioner that it had
exerted diligent efforts to serve the summons and a copy of the complaint on
private respondent.  All that it can
offer to invite a sympathetic ear are the self-serving claim that it had
exerted such efforts to locate private respondent’s principal office address
and an insinuation that private respondent and its counsel deliberately
concealed such address from petitioner and the court.  The claim and the reality are oceans
apart.  There is absolutely no showing at
all that an attempt was made to serve both the original summons with a copy of
the complaint and the alias summons, which petitioner asked to be issued not on
its own accord as indication of a sincere effort to bring the defendant within
the jurisdiction of the court, but as a reluctant reaction to the trial court’s
order of 11 August 1987 directing petitioner to take the necessary steps toward
the active prosecution of the case, otherwise it would be dismissed for failure
to prosecute.  The standard practice in
trial courts, which is in conformity with Rule 14 of the Rules of Court, is for the Clerk of Court to issue at once the summons upon the
filing of the complaint.  It is the duty
of a plaintiff or his counsel to see to it that the sheriff or a process server
immediately cause its service, together with a copy of the complaint, on the
defendant.  Moreover, plaintiff is
invariably furnished with a copy of the return of service.  If no such return is furnished him, it is
incumbent upon plaintiff or his counsel to inquire from the Clerk of Court as
to the status of the summons not only to take appropriate action if it had not
been served, but to know when the period to answer expired if service was
properly made.  In the instant case,
petitioner did not make any concrete appropriate step to have the alias summons
served.  Under Section 13 of Rule 14 of
the Rules of Court, service of summons on a defendant corporation may be made
on the president, manager, secretary, cashier, agent or any of its
directors.  Petitioner should have
verified from the Securities and Exchange Commission as to the names of the
officers and directors of the private respondent and as to its principal office
address.  It did not assert in the
petition that it did.  Moreover, it could
have availed itself of the procedure provided for in Section 16 of the same
Rule on summons by publication.  It
cannot place the blame on private respondent or its counsel, for if indeed
petitioner were genuinely serious about knowing from either the principal
office address of private respondent, petitioner could have, if it could not
get it through an informal request, filed a motion for an order directing private
respondent and/or its counsel to give to
petitioner such principal office address. 
It does not appear, however, that petitioner did so.  From its allegations, it seems clear that it
merely waited for private respondent or its counsel to volunteer the information.  Worse, even after private respondent filed
its motion to dismiss precisely on the ground of failure to prosecute for an
unreasonable length of time because of the non-service of summons, petitioner
did nothing — absolutely nothing
— to remedy the situation.

WHEREFORE, the instant petition is DENIED for lack of
merit with costs against petitioner.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr.,
Feliciano, and Bidin,
JJ., concur.

^[1]
Annex “A” of Petition; Rollo 31-34. 
Per Associate Justice Hector
C. Fule, and concurred in by Associate Justices Nathanael P. de Pano, Jr. and Asaali S. Isnani.

^[2]
Annex “G” of Petition; Rollo,
81-82.

^[3]
Rollo, 31.

^[4]
Id., 32.

^[5]
Annex “C” of Petition; Id.,
48-52.

^[6]
Rollo, 16.

^[7]
Id., 32.

^[8]
Annex “D” of Petition; Id.,
53-58.

^[9]
Id., 17.

^[10]
Annex “E” of Petition; Id.,
59-69.

^[11]
Id., 32.

^[12]
Citing Paramount Insurance Corp. vs. Luna, 148 SCRA 478; Trimica, Inc. vs. Polaris Marketing Corp., 60 SCRA
321.

^[13]
Citing Lirag vs. Galano,
G.R. No. 46244, August 18, 1988;
Olivares vs. Gonzales, G.R. No. 34500, March 18, 1988; Section 3, Rule 17, Rules of Court.

^[14]
Citing Padua vs. Ericta, G.R. No. 38570, 24 May 1988.

^[15]
Citing Ortega vs. de Guzman, 19 SCRA 391; Villanueva vs.
Secretary of Public Works and Communications, 16 SCRA 422; Chuan vs. De
la Fuente, 90 Phil. 813.

^[16]
Citing Montejo vs. Urotia,
40 SCRA 41; Masiglat vs. Mayor of Pasay City,
55 O.G. 9660; Sunico vs. Villapando,
14 Phil. 352.

^[17]
Citing Montejo vs. Urotia,
supra., citing Bautista vs. Teodoro,
101 Phil. 701.

^[18]
Citing Salmon and Pacific
Commercial Co. vs. Tan Cueco, 36 Phil. 556.

^[19]
17 SCRA 674.

^[20]
Annex “E” of Petition; Rollo,
59-69.

^[21]
168 SCRA 692.

^[22]
Smith Bell & Co. vs. American President Lines, Inc., 94 Phil. 880;
Bautista vs. Teodoro, 101 Phil. 701; Montelibano vs. Banares,
103 Phil. 106; Flores vs. Philippine Alien Property Administrator, 107
Phil. 773; Montejo vs. Urotia,
supra.

^[23]
Montejo vs. Urotia, supra.