WBench1

THIRD DIVISION

[G.R. No. 140244. August 29, 2000]

JOEL R. UMANDAP, petitioner, vs. HON. JUDGE JOSE L. SABIO, JR., and DOMINGO F. ESTOMO, respondents.

D E C I S I O N

GONZAGA-REYES, J.:

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking the reversal of the June 7, 1999 Decision of the Court of Appeals[1] in CA-G.R. SP No. 51294 and the September 30, 1999 Resolution denying the motion to reconsider said decision. The challenged decision dismissed, for lack of merit, the petition for certiorari, to annul the Resolutions dated October 2, 1998 and January 18, 1999 of the Regional Trial Court of Misamis Oriental (Branch 23) in Civil Case No. 97-559 which, respectively, denied the motion to set aside judgment by default and quash writ of execution; and denied the motion for reconsideration.

The facts are summarized by the Court of Appeals in this wise:

"In August, 1997, private respondent Domingo Estomo filed against petitioner Joel Umandap an action for damages based on breach of contract. On February 3, 1998, Process Server Marmolejo effected substituted service of the summons and copy of the Complaint upon petitioner, by leaving a copy thereof at petitioner's home and office address to a certain Joseph David who refused to receive and acknowledge the same (Officer's Return, Rollo, p. 27).

Petitioner failed to file his Answer and, on motion of private respondent, was declared in default. Thereafter, private respondent was allowed to adduce his evidence ex parte. On May 8, 1998, the trial court rendered a judgment against petitioner, the dispositive portion of which reads:

"WHEREFORE, premises above-considered and pursuant to applicable law on the matter and plaintiff having proven by preponderance of evidence his right to the relief prayed for, judgment is hereby rendered in favor of the plaintiff and against the defendant Joel R. Umandap holding the latter liable to plaintiff and ordering the defendant to pay to the plaintiff:

"1. The amount of P304,393.25 representing the unremitted collections from MORESCO/NEA received by defendant;

2. The amount of P200,000.00 as reimbursement of interest incurred and paid by plaintiff to finish the contracted project;

"3. P50,000.00 as moral damages;

"4. P75,000.00 as attorney's fees;

"5. Litigation expenses of P5,547.00; and

"6. Cost of this suit.

"SO ORDERED."

(Rollo, p. 33).

On July 8, 1998, a Writ of Execution was issued and petitioner's deposit and receivables were garnished. On August 3, 1998, petitioner filed a Motion to Set Aside Judgment by Default and Quash Writ of Execution which respondent Court denied in an Order dated October 2, 1998. Petitioner's motion for reconsideration was likewise denied in the Court’s order of January 18, 1999. xxx.”[2]

Aggrieved, petitioner filed with the Court of Appeals a Petition for Certiorari under Rule 65 of the Rules of Court assailing the resolutions of the trial court dated October 2, 1998 and January 18, 1999.

Petitioner argued before the Court of Appeals that the trial court never acquired jurisdiction over his person because there has been no valid service of summons; that the substituted service of summons was improper and invalid since the process server's return failed to show on its face the impossibility of personal service.

In dismissing the petition, the Court of Appeals found that the process server's Return is "valid and regular on its face, and readily reveals that earnest efforts were exerted to find the defendant personally but such efforts failed." The Court of Appeals also held that the "return is clothed with the mantle of presumption of regularity under Section 3[m], Rule 131 of the New Rules on Evidence; and that said presumption is not overcome by petitioner's unsubstantiated and self-serving assertion that the process server went to his home and office address only once."

Hence, this recourse to this Court.

In his Memorandum, petitioner raises the following issues:

1. Whether or not the substituted service of summons made on petitioner through Joseph David on February 3, 1998 was valid and regular.

2. On the assumption that the service of summons made on petitioner was valid, whether or not the Court of Appeals acted in accord with law and the applicable decisions of this Court when it refused to set aside the default judgment rendered against petitioner in Civil Case No. 97-559 (RTC-Misamis oriental, Branch 23; Cagayan de Oro City) and giving the latter a chance to present his evidence therein so as to rebut or even defeat private respondent's claim.[3]

The main issue in this petition is whether or not petitioner was served valid summons so as to bring him within the jurisdiction of the court.

There can be no dispute that service of summons upon the defendant is necessary in order that a court may acquire jurisdiction over his person. Any judgment without such service in the absence of a valid waiver is null and void.[4]

Pursuant to Section 6, Rule 14 of the Revised Rules of Court, the general rule in this jurisdiction is that summons must be served personally on the defendant, it reads:

"SEC. 6. Service in person on defendant. - Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him."

However, when the defendant cannot be served personally within a reasonable time after efforts to locate him have failed, substituted service may be made. Section 7, Rule 14 of the Revised Rules of Court reads:

"SEC. 7. Substituted Service. - If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof."

In fine, the two modes for effecting substituted service of summons are: (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion; and (b) by leaving copies at defendant's office or regular place of business with some competent person in charge thereof. Among these two modes of substituted service, the sheriff or the process server may choose that which will more likely insure the effectiveness of the service.[5]

In Venturanza vs. Court of Appeals,[6] this Court described how the impossibility of personal service should be shown:

"The substituted service should be availed only when the defendant cannot be served promptly in person. Impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts. The statement should be made in the proof of service. This is necessary because substituted service is in derogation of the usual method of service. Substituted service is a method extraordinary in character, and hence may be used only as prescribed in the circumstances authorized by statute. Thus, the statutory requirements of substituted service must be followed strictly, faithfully, and any substituted service other than that authorized by the statute is considered ineffective."

The proof of service alluded to is the return required by Section 4 of Rule 14 which reads:

"SEC. 4. Return. - When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff's counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service."

Central to the instant controversy is the process server's return which petitioner relies upon to show the invalidity of the substituted service of summons. He points to the following alleged defects: (1) it does not state the efforts exerted or the alleged occasions on which attempts were made to personally serve the summons upon petitioner; (2) it does not state that Joseph David, to whom the process server left or tendered the summons and a copy of the complaint was a person of suitable age and discretion then residing therein or a competent person in charge of petitioner's residence or office; and, (3) it is not entitled to the presumption of regularity since there is no compliance with the rules on substituted service.

We find petitioner's contentions to be devoid of merit.

The process server's return reads in full:

OFFICER'S RETURN

"THIS IS TO CERTIFY, that on the 3rd day of February 1998, undersigned served copy of the summon with the copy of the complaint and its annexes, upon the defendant Joel R. Umandap Jofel Construction, at No. 14-3rd St., New Manila, Quezon City by leaving/tendering the copy to Joseph David receiving of said office, but he refused to sign in receipt of the copy.

That despite efforts exerted to serve said process personally upon the defendant on several occasions the same proved futile, for the reason that herein defendant was not around, thus substituted service was made in accordance with the provision of Section 8, Rule 14 of the Revised Rules of Court, and that this return is now being submitted to the Court of origin with the information DULY SERVED.

Quezon City, Metro Manila, February 13, 1998.

FOR THE EX-OFFICIO SHERIFF

RUCIO C. MARMOLEJO

RTC/Process Server"

We are inclined to uphold the view of the Court of Appeals that the presumption of regularity in the performance of official functions holds in this case. Indeed, in the absence of contrary evidence, a presumption exists that a sheriff has regularly performed his official duty.[7] To overcome the presumption arising from the sheriff’s certificate, the evidence must be clear and convincing.[8]

In the instant case, no proof of irregularity in the process server's return was presented by petitioner. On the contrary, a perusal of the process server's return in the instant case shows compliance with the requirements of substituted service in accordance with the requirements set forth in Laus vs. Court of Appeals,[9] enumerated as follows: (a) indicate the impossibility of service of summons within a reasonable time, (b) specify the efforts exerted to locate the petitioners and (c) state that it was served on a person of sufficient age and discretion residing therein.

First. The return indicates the location or address of the defendant where the summons was served. Second. It indicates the efforts and/or prior attempts at personal service made by the process server and that such attempts had proved futile, prompting the latter to resort to substituted service. Third. It indicates that summons was left or tendered to Joseph David "receiving of said office."

As it turns out, petitioner's allegation that the process server went to his home and office address only once is, as correctly pointed out by the Court of Appeals, "unsubstantiated and self-serving assertion of the petitioner." We have no reason to disbelieve or disregard the statement in the return that personal service of summons was attempted on several occasions. It is likewise not denied that the address stated therein, No. 14-3^rd St., New Manila, Quezon City, is both the residence and office address of petitioner at the time the summons was served. Thus, the place of service is not in issue. Significantly, petitioner admitted receipt by Joseph David, nephew of his wife, of the summons and the complaint.[10] He claims; however, that his nephew misplaced the same and ultimately failed to inform defendant thereof. The return indicates that Joseph David was the "receiving of said office", which sufficiently conveys that he was a person of sufficient age and discretion residing therein, tasked as he is to receive for the office. In any event, petitioner never alleged in any of his pleadings filed before the lower and appellate courts, and even in this Court, that Joseph David was incompetent to receive the summons and a copy of the complaint and that he was not a resident therein. The presumption that the process server left or tendered the summons upon a person of sufficient age and discretion stands unrebutted.

In light of these facts, the appellate court's reliance on the process server's return that summons upon petitioner through Joseph David was validly served in consonance with the principle of presumption in favor of regularity of performance of official functions of a public officer rests on a firm basis. The requirements of substituted service as emphasized in the Laus case[11] were all complied with.

Finally, petitioner's argument that assuming the summons was validly served the Court of Appeals should have nevertheless set aside the default judgment rendered against him invoking the liberal construction of the rules is clearly untenable. Liberal construction of the Rules may be invoked in situations wherein there may be some excusable formal deficiency or error in a pleading, provided that the same does not subvert the essence of the proceeding and connotes at least a reasonable attempt at compliance with the Rules.[12] In the instant case, we agree with the trial court's observations of petitioner's resort to technicalities in an apparent attempt to frustrate the ends of justice. We quote:

"In the case at bar, defendant never rebutted the fact that they received copies of the summons and its annexes but rather questioned the process in which summons was served by the sheriff. Certificate of service of summons by the sheriff is prima facie evidence of the facts set out in such certificate and to overcome the presumption arising from the sheriff's return, the evidence must be clear and convincing. But petitioner failed to overcome this presumption. (Ramon Orosa, et al., vs. CA, et al., G. R. No. 118698, September 3, 1996). Besides, respondent judge had the right to rely on the sheriff's return because there is the presumption of regularity in the performance of their duties. (Claridad vs. Santos, January 27, 1998; Sec. 39m) Rule 131 of the Rules of Court).

Defendant Umandap could hardly feign ignorance of the existence of this instant case considering the fact that he received a copy of order of this Court under date March 18, 1998 declaring him in default as evidenced by the Return and attached to the records of this case dated March 27, 1998. Likewise, defendant received a copy of the judgment of this Court Order dated May 8, 1998 as evidenced by Registry Return Slip dated May 29, 1998 attached to the records of this case. Isn't this a case of a person who feigned to be asleep but who is really awake?

Defendant Umandap in his affidavit of merit admitted that Joseph David (the person to whom RTC Process Server Marmolejo gave the summons) was his wife's nephew. Defendant never rebutted the fact that he received a copy of the judgment of this Court through a certain Bobby Santiago, the Auditor of his company.

It is very clear that defendant Umandap is guilty of laches for failure to seasonably act on those lawful Order he received from this Court. It was only when his receivables were garnished that defendant filed these motions. This Court cannot help but conclude that all the allegations made by defendant as to the regularity of service of notice are feeble and desperate attempts to prevent the garnishment of his funds. Based on existing fact and jurisprudence on the matter, they hardly deserve any consideration by the Court.”[13]

Considering that petitioner received a copy of the Order dated March 18, 1998 declaring him in default on March 27, 1998 and a copy of the judgment dated May 8, 1998 on May 29, 1998, as evidenced by registry return receipts, he could have protected his rights by availing himself of several avenues of redress, including, filing a motion to set aside the order of default in accordance with Sec. 3 (b), Rule 9 of the Rules of Court; or he could have taken an ordinary appeal to the Court of Appeals in accordance with Sec. 2 (a), Rule 41 of the Rules of Court questioning the judgment of the trial court.

WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.