FORTUNATO GOMEZ v. CA, GR No.

127692, 2004-03-10
Facts:
An action for specific performance and/or rescission filed by herein petitioners, spouses
Fortunato and Aurora Gomez, against the heirs of Jesus J. Trocino, Sr., which include herein
respondents and their mother Caridad Trocino.
the spouses Jesus and Caridad Trocino mortgaged two parcels of land
The mortgage was subsequently foreclosed and the properties sold at public auction on July
11, 1988, and before the expiry of the redemption period, the spouses Trocino sold the
property to petitioners on December 12, 1989, who in turn, redeemed the same from Dr.
Yujuico.  The spouses Trocino, however, refused to convey ownership of the properties to
petitioners, hence, the complaint.
he defendants, through their counsel Atty. Expedito P. Bugarin, filed their Answer. 
Defendant Caridad A. Trocino, respondents' mother, verified said pleading
RTC rendered its decision judgment is hereby rendered in favor of the plaintiffs and against
the defendants.
respondents Adolfo and Mariano Trocino filed with the Court of Appeals, a petition for the
annulment of the judgment rendered by the RTC-Cebu
Private respondents alleged that the trial court's decision is null and void on the ground that
it did not acquire jurisdiction over their persons as they were not validly served with a copy
of the summons and the complaint.
According to them, at the time summons was served on them, Adolfo Trocino was already in
Ohio, U.S.A., and has been residing there for 25 years, while Mariano Trocino was in Talibon,
Bohol, and has been residing there since 1986.
the Court of Appeals issued the assailed Decision granting the petition and annulling the
decision of the RTC-Cebu
Their motion for reconsideration having been denied by the Court of Appeals, petitioners
filed the present petition,
Issues:
whether or not summons was effectively served on respondents.  If in the affirmative, the
trial court had validly acquired jurisdiction over their persons and therefore its judgment is
valid.
Ruling:
To resolve whether there was valid service of summons on respondents, the nature of the
action filed against them must first be determined.
In actions in personam, summons on the defendant must be served by handing a copy
thereof to the defendant in person, or, if he refuses to receive it, by tendering it to him.   This
is specifically provided in Section 7, Rule 14 of the Rules of Court
If efforts to find defendant personally makes prompt service impossible, substituted service
may be effected by leaving copies of the summons at the defendant's dwelling house or
residence with some person of suitable age and discretion then residing therein, or by
leaving the copies at the defendant's office or regular place of business with some
competent person in charge thereof.[15] In substituted service, it is mandated that the fact
of impossibility of personal service should be explained in the proof of service.
When the defendant in an action in personam is a non-resident who does not voluntarily
submit himself to the authority of the court, personal service of summons within the State is
essential to the acquisition of jurisdiction over his person.  This cannot be done if the
defendant is not physically present in the country, and thus, the court cannot acquire
jurisdiction over his person and therefore cannot validly try and decide the case against him.
[17] An exception was accorded in Gemperle vs. Schenker wherein service of summons
through the non-resident's wife, who was a resident of the Philippines, was held valid, as the
latter was his representative and attorney-in-fact in a prior civil case filed by the non-
resident, and the second case was merely an offshoot of the first case
Meanwhile, in actions in rem or quasi in rem, jurisdiction over the person of the defendant is
not a prerequisite to confer jurisdiction on the court provided that the court acquires
jurisdiction over the res, although summons must be served upon the defendant in order to
satisfy the due process requirements.[19] Thus, where the defendant is a non-resident who
is not found in the Philippines, and (1) the action affects the personal status of the plaintiff;
(2) the action relates to, or the subject matter of which is property in the Philippines in which
the defendant has or claims a lien or interest; (3) the action seeks the exclusion of the
defendant from any interest in the property located in the Philippines; or (4) the property of
the defendant has been attached in the Philippines, summons may be served
extraterritorially by (a) personal service out of the country, with leave of court; (b)
publication, also with leave of court; or (c) any other manner the court may deem sufficient.
The complaint they filed for specific performance and/or rescission is not an action in rem
An action in personam is an action against a person on the basis of his personal liability,
while an action in rem is an action against the thing itself, instead of against the person.
Hence, a real action may at the same time be an action in personam and not necessarily an
action in rem.
Civil Case No. CEB-11103 is an action in personam because it is an action against persons,
namely, herein respondents, on the basis of their personal liability.  As such, personal service
of summons upon the defendants is essential in order for the court to acquire of jurisdiction
over their persons.
A distinction, however, must be made with regard to service of summons on respondents
Adolfo Trocino and Mariano Trocino.  Adolfo Trocino, as records show, is already a resident
of Ohio, U.S.A. for 25 years.  Being a non-resident, the court cannot acquire jurisdiction over
his person and validly try and decide the case against him.
Consequently, the judgment sought to be executed against respondents were rendered
without jurisdiction as there was neither a proper service of summons nor was there any
waiver or voluntary submission to the trial court's jurisdiction.  Hence, the same is void, with
regard to private respondents except Caridad Trocino.
This Court's decision is therefore applicable to all the defendant heirs with the exception of
defendant Caridad Trocino considering that it was the latter who entered into the alleged
sale without the consent of her husband.  She is therefore estopped from questioning her
own authority to enter into the questioned sale.  Moreover, Caridad Trocino was validly
served with summons and was accorded due process the petition for review is DENIED