Rule 14, Sec. 23.

Voluntary appearance

Facts:
On 09 March 2000, [Petitioner Henry Oaminal] filed a complaint for
collection against [Respondents Pablito and Guia Castillo] with the Regional
Trial Court [RTC] of Ozamis City.

On 30 May 2000, the summons together with the complaint was served
upon Ester Fraginal, secretary of [Respondent] Mrs. Castillo.

"On 06 June 2000, [respondents] filed their 'Urgent Motion to Declare

Service of Summons Improper and Legally Defective' alleging that the
Sheriff's Return has failed to comply with Section (1), Rule 14 of the Rules of
Court or substituted service of summons.
On 23 August 2001, Judge [Zapatos] rendered a decision in favor of
[petitioner], ordering [respondents] to pay.
During appeal, CA ruled that the trial court did not validly acquire jurisdiction
over respondents, because the summons had been improperly served on
them.
Issue:

Whether the trial court acquired jurisdiction over respondents.

Ruling:
Yes.
Nothing in the records shows that respondents denied actual receipt of the
summons through their secretary, Ester Fraginal. Their "Urgent Motion to
Declare Service of Summons Improper and Legally Defective" 11 did not deny
receipt thereof; it merely assailed the manner of its service. In fact, they
admitted in their Motion that the "summons, together with the complaint,
was served by the Sheriff on Ester Fraginal.

Assuming arguendo that the service of summons was defective, such flaw
was cured and respondents are deemed to have submitted themselves to
the jurisdiction of the trial court when they filed an Omnibus Motion to Admit
the Motion to Dismiss and Answer with Counterclaim, an Answer with
Counterclaim, a Motion to Inhibit, and a Motion for Reconsideration and Plea
to Reset Pre-trial. The filing of Motions seeking affirmative relief -- to admit
answer, for additional time to file answer, for reconsideration of a default
judgment, and to lift order of default with motion for reconsideration -- are
considered voluntary submission to the jurisdiction of the court. 18 Having
invoked the trial court's jurisdiction to secure affirmative relief, respondents
cannot -- after failing to obtain the relief prayed for -- repudiate the very
same authority they have invoked.19

THIRD DIVISION

G. R. No. 152776 - October 8, 2003

HENRY S. OAMINAL, Petitioner, vs. PABLITO M. CASTILLO and GUIA S.

CASTILLO, Respondents.

DECISION

PANGANIBAN, J.:

In the instant case, the receipt of the summons by the legal secretary of the
defendants -- respondents herein -- is deemed proper, because they admit
the actual receipt thereof, but merely question the manner of service.
Moreover, when they asked for affirmative reliefs in several motions and
thereby submitted themselves to the jurisdiction of the trial court, whatever
defects the service of summons may have had were cured.

The Case

Before us is a Petition for Review1 under Rule 45 of the Rules of Court,

seeking to nullify the March 26, 2002 Decision2 of the Court of Appeals (CA)
in CA-GR SP No. 66562. The assailed Decision disposed thus:

"WHEREFORE, the [D]ecision dated 23 August 2001 is

hereby NULLIFIED and SET ASIDE and Civil Case No. OZC-00-13
ordered DISMISSED, without prejudice. Costs against [petitioner]." 3

The Antecedents
The antecedents of the case were narrated by the CA as follows:

"On 09 March 2000, [Petitioner Henry Oaminal] filed a complaint for

collection against [Respondents Pablito and Guia Castillo] with the Regional
Trial Court [RTC] of Ozamis City (Branch 35) x x x. The complaint prayed
that [respondents] be ordered to pay P1,500,000.00 by way of liquidated
damages and P150,000.00 as attorney's fees.

"On 30 May 2000, the summons together with the complaint was served
upon Ester Fraginal, secretary of [Respondent] Mrs. Castillo.

"On 06 June 2000, [respondents] filed their 'Urgent Motion to Declare

Service of Summons Improper and Legally Defective' alleging that the
Sheriff's Return has failed to comply with Section (1), Rule 14 of the Rules of
Court or substituted service of summons.

"The scheduled hearing of the Motion on 14 July 2000 did not take place
because x x x [RTC] Judge [Felipe Zapatos] took a leave of absence from
July 17 to 19, 2000[;] hence[,] it was re-scheduled to 16 August 2000.

"On 19 October 2000, [petitioner] filed an Omnibus Motion to Declare

[Respondents] in Default and to Render Judgment because no answer [was]
filed by [the latter].

"[Respondents] forthwith filed the following:

'a. Omnibus Motion Ad Cautelam to Admit Motion to Dismiss and Answer

with Compulsory Counter-claim dated 9 November 2000 which was set for
hearing on 27 November 2000 at 8:30 a.m.;

'b. x x x Urgent Motion to Dismiss also dated 9 November 2000 which was
also set for hearing on 27 November 2000 at 8:30 a.m. The said motion was
anchored on the premise that x x x [petitioner's] complaint was barred by
improper venue and litis pendentia; and

'c. Answer with Compulsory Counter-Claim dated 9 November 2000.'

"On 16 November 2000, x x x [the] judge denied [respondents'] Motion to

Dismiss, admitted [their] Answer, and set the pre-trial [on] 17 January
2001.

"On 24 November 2000, [respondents] filed an 'Urgent Motion to Inhibit Ad

Cautelam' against Judge [Zapatos], 'in the higher interest of substantial
justice and the [r]ule of [l]aw x x x.'
"On 27 December 2000, Judge [Zapatos] denied the motion and transferred
the January 17th pre-trial to 19 February 2001.

"[Respondents] filed an 'Urgent Omnibus Motion for Reconsideration with the

Accompanying Plea to Reset' dated 22 January 2001. The motion requested
that it be set for consideration and approval by the trial court on 05
February 2001 at 8:30 a.m. Said motion in the main prayed 'that an order
be issued by the Honorable Court reconsidering its adverse order dated 16
November 2000, by dismissing the case at bar on the ground of improper
venue or in the alternative, that the Honorable Presiding Judge reconsider
and set aside its order dated December 27, 2000 by inhibiting himself from
the case at hand.'

"On 22 May 2001, Judge [Zapatos] ruled that [respondents'] 'Omnibus

Motion Ad Cautelam to Admit Motion to Dismiss and Answer with
Counterclaim' was filed outside the period to file answer, hence he (1)
denied the Motion to Admit Motion to Dismiss and Answer; (2) declared
[respondents] in default; and (3) ordered [petitioner] to present evidence
ex-parte within ten days from receipt of [the] order, [failing] which, the case
will be dismissed.

"On 23 August 2001, Judge [Zapatos] rendered a decision on the merits,

with the following dispositi[on]:

'WHEREFORE, finding by preponderance of evidence, judgment is hereby

rendered in favor of [petitioner], ordering [respondents] to pay x x x:

1) P1,500,000.00 by way of [l]iquidated [d]amages;

2) P20,000.00 as attorney's fees and litigation expenses; and

3) x x x cost[s].'"4

On September 11, 2001, respondents filed with the CA a Petition

for certiorari, prohibition and injunction, with a prayer for a writ of
preliminary injunction or temporary restraining order (TRO). In the main,
they raised the issue of whether the trial court had validly acquired
jurisdiction over them.

On September 20, 2001, the appellate court issued a TRO to enjoin the
lower court from issuing a writ of execution to enforce the latter's decision.

Ruling of the Court of Appeals

The CA ruled that the trial court did not validly acquire jurisdiction over
respondents, because the summons had been improperly served on them. It
based its finding on the Sheriff's Return, which did not contain any averment
that effort had been exerted to personally serve the summons on them
before substituted service was resorted to. Thus, the appellate court set
aside the trial court's Decision and dismissed, without prejudice, Civil Case
No. OZC-00-13.

Hence, this Petition.5

Issues

Petitioner submits the following issues for our consideration:

"I

Whether respondents' recourse to a Petition for Certiorari [was] appropriate

when the remedy of appeal was available?

"II

Whether the Decision of the trial court attained finality?

"III

Whether the Honorable Third Division of the Court of Appeals [was] correct
in entertaining and in granting the Writ of Certiorari when the facts clearly
establish[ed] that not only was [an] appeal available, but x x x there were
other plain, speedy and adequate remedies in the ordinary course of law?

"IV

Whether the Honorable Third Division of the Court of Appeals had jurisdiction
to nullify and set aside the Decision of the trial court and dismiss the case?

"V

[Whether] receipt by a legal secretary of a summons [is deemed] receipt by

a lawyer in contemplation of law?"6

Simply stated, the issues boil down to the following: (1) whether the Petition
for certiorari before the CA was proper; and (2) whether the trial court
acquired jurisdiction over respondents.
Since the Petition for certiorari was granted by the CA based on the trial
court's alleged lack of jurisdiction over respondents, the second issue shall
be discussed ahead of the former.

The Court's Ruling

The present Petition is partly meritorious.

First Issue:

Jurisdiction over Defendants

Petitioner contends that the trial court validly acquired jurisdiction over the
persons of respondents, because the latter never denied that they had
actually received the summons through their secretary. Neither did they
dispute her competence to receive it.

Moreover, he argues that respondents automatically submitted themselves

to the jurisdiction of the trial court when they filed, on November 9, 2000,
an Omnibus Motion to Dismiss or Admit Answer, a Motion to Dismiss on the
grounds of improper venue and litis pendentia, and an Answer with
Counterclaim.

On the other hand, respondents insist that the substituted service of

summons on them was improper. Thus, they allege that the trial court did
not have the authority to render its August 23, 2001 Decision.

We clarify.

Service of Summons

In civil cases, the trial court acquires jurisdiction over the person of the
defendant either by the service of summons or by the latter's voluntary
appearance and submission to the authority of the former. Where the action
is in personam and the defendant is in the Philippines, the service of
summons may be made through personal or substituted service in the
manner provided for by Sections 6 and 7 of Rule 14 of the Revised Rules of
Court, which read:

"Section 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.
"Section 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."

Personal service of summons is preferred over substituted service. Resort to

the latter is permitted when the summons cannot be promptly served on the
defendant in person and after stringent formal and substantive requirements
have been complied with.7cräläwvirtualibräry

For substituted service of summons to be valid, it is necessary to establish

the following circumstances: (a) personal service of summons within a
reasonable time was impossible; (b) efforts were exerted to locate the
party; and (c) the summons was served upon a person of sufficient age and
discretion residing at the party's residence or upon a competent person in
charge of the party's office or regular place of business. 8 It is likewise
required that the pertinent facts proving these circumstances are stated in
the proof of service or officer's return.

In the present case, the Sheriff's Return9 failed to state that efforts had been
made to personally serve the summons on respondents. Neither did the
Return indicate that it was impossible to do so within a reasonable time. It
simply stated:

"THIS IS TO CERTIFY that on the 30th day of May 2000, copies of the
summons together with the complaint and annexes attached thereto were
served upon the defendants Pablito M. Castillo and Guia B. Castillo at their
place of business at No. 7, 21st Avenue, Cubao, Quezon City thru MS. ESTER
FREGINAL, secretary, who is authorized to receive such kind of process. She
signed in receipt of the original as evidenced by her signature appearing on
the original summons.

"That this return is submitted to inform the Honorable x x x Court that the
same was duly served."10

Nonetheless, nothing in the records shows that respondents denied actual

receipt of the summons through their secretary, Ester Fraginal. Their
"Urgent Motion to Declare Service of Summons Improper and Legally
Defective"11 did not deny receipt thereof; it merely assailed the manner of its
service. In fact, they admitted in their Motion that the "summons, together
with the complaint, was served by the Sheriff on Ester Fraginal, secretary of
the defendants at No. 7, 21st Avenue, Cubao, Quezon City on 30 May
2000."12cräläwvirtualibräry

That the defendants' actual receipt of the summons satisfied the

requirements of procedural due process had previously been upheld by the
Court thus:

"x x x [T]here 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.'"13

There is likewise no showing that respondents had heretofore pursued the

issue of lack of jurisdiction; neither did they reserve their right to invoke it in
their subsequent pleadings. If at all, what they avoided forfeiting and
waiving -- both in their Omnibus Motion ad Cautelam to Admit Motion to
Dismiss and Answer with Compulsory Counter-Claim14 and in their Motion to
Dismiss15 -- was their right to invoke the grounds of improper venue and litis
pendentia. They argued therein:

"3. x x x. To be sure, the [respondents] have already prepared a finalized

draft of their [M]otion to [D]ismiss the case at bar, based on the twin
compelling grounds of 'improper venue' and [the] additional fact that 'there
exists a case between the parties involving the same transaction/s covered
by the plaintiff's cause of action.' x x x;

"4. That as things now stand, the [respondents] are confronted with the
dilemma of filing their [M]otion to [D]ismiss based on the legal grounds
stated above and thus avoid forfeiture and waiver of these rights as provided
for by the Rules and also file the corresponding [M]otion to [A]dmit x x x
[A]nswer as mandated by the Omnibus Rule.

x x x "16

Verily, respondents did not raise in their Motion to Dismiss the issue of
jurisdiction over their persons; they raised only improper venue and litis
pendentia. Hence, whatever defect there was in the manner of service
should be deemed waived.17

Voluntary Appearance and Submission

Assuming arguendo that the service of summons was defective, such flaw
was cured and respondents are deemed to have submitted themselves to
the jurisdiction of the trial court when they filed an Omnibus Motion to Admit
the Motion to Dismiss and Answer with Counterclaim, an Answer with
Counterclaim, a Motion to Inhibit, and a Motion for Reconsideration and Plea
to Reset Pre-trial. The filing of Motions seeking affirmative relief -- to admit
answer, for additional time to file answer, for reconsideration of a default
judgment, and to lift order of default with motion for reconsideration -- are
considered voluntary submission to the jurisdiction of the court. 18 Having
invoked the trial court's jurisdiction to secure affirmative relief, respondents
cannot -- after failing to obtain the relief prayed for -- repudiate the very
same authority they have invoked.19

Second Issue:

Propriety of the Petition for Certiorari

Petitioner contends that the certiorari Petition filed by respondents before

the CA was improper, because other remedies in the ordinary course of law
were available to them. Thus, he argues that the CA erred when it took
cognizance of and granted the Petition.

Well-settled is the rule that certiorari will lie only when a court has acted
without or in excess of jurisdiction or with grave abuse of discretion. 20 As a
condition for the filing of a petition for certiorari, Section 1 of Rule 65 of the
Rules of Court additionally requires that "no appeal nor any plain, speedy
and adequate remedy in the ordinary course of law" must be available. 21 It is
axiomatic that the availability of the right of appeal precludes recourse to
the special civil action for certiorari.22cräläwvirtualibräry

Here, the trial court's judgment was a final Decision that disposed of the
case. It was therefore a fit subject of an appeal.23 However, instead of
appealing the Decision, respondents filed a Petition for certiorari on
September 11, 2001.

Be that as it may, a petition for certiorari may be treated as a petition for

review under Rule 45. Such move is in accordance with the liberal spirit
pervading the Rules of Court and in the interest of substantial justice,
especially (1) if the petition was filed within the reglementary period for
filing a petition for review;24 (2) errors of judgment are averred;25 and (3)
there is sufficient reason to justify the relaxation of the rules. 26 Besides, it is
axiomatic that the nature of an action is determined by the allegations of the
complaint or petition and the character of the relief sought. 27 The Court
explained:

"x x x. It cannot x x x be claimed that this petition is being used as a

substitute for appeal after that remedy has been lost through the fault of
petitioner. Moreover, stripped of allegations of 'grave abuse of discretion,'
the petition actually avers errors of judgment rather than of jurisdiction,
which are the subject of a petition for review."28cräläwvirtualibräry

The present case satisfies all the above requisites. The Petition
for certiorari before the CA was filed within the reglementary period of
appeal. A review of the records shows that respondents filed their Petition on
September 11, 2001 -- four days after they had received the RTC Decision.
Verily, there were still 11 days to go before the lapse of the period for filing
an appeal. Aside from charging grave abuse of discretion and lack of
jurisdiction, they likewise assigned as errors the order and the judgment of
default as well as the RTC's allegedly unconscionable and iniquitous award of
liquidated damages.29 We find the latter issue particularly significant,
considering that the trial court awarded P1,500,000 as liquidated damages
without the benefit of a hearing and out of an obligation impugned by
respondents because of petitioner's failure to pay.30 Hence, there are enough
reasons to treat the Petition for certiorari as a petition for review.

In view of the foregoing, we rule that the Petition effectively tolled the
finality of the trial court Decision.31 Consequently, the appellate court had
jurisdiction to pass upon the assigned errors. The question that remains is
whether it was correct in setting aside the Decision and in dismissing the
case.

Trial Court's Default Orders Erroneous

A review of the assailed Decision reveals that the alleged lack of jurisdiction
of the trial court over the defendants therein was the reason why the CA
nullified the former's default judgment and dismissed the case without
prejudice. However, we have ruled earlier that the lower court had acquired
jurisdiction over them. Given this fact, the CA erred in dismissing the case;
as a consequence, it failed to rule on the propriety of the Order and the
judgment of default. To avoid circuitousness and further delay, the Court
deems it necessary to now rule on this issue.
As much as possible, suits should be decided on the merits and not on
technicalities.32 For this reason, courts have repeatedly been admonished
against default orders and judgments that lay more emphasis on procedural
niceties at the expense of substantial justice. 33 Not being based upon the
merits of the controversy, such issuances may indeed amount to a
considerable injustice resulting in serious consequences on the part of the
defendant. Thus, it is necessary to examine carefully the grounds upon
which these orders and judgments are sought to be set
aside.34cräläwvirtualibräry

Respondents herein were declared in default by the trial court on May 22,
2001, purportedly because of their delay in filing an answer. Its unexpected
volte face came six months after it had ruled to admit their Answer on
November 16, 2000, as follows:

"That with respect to the Motion to Admit Answer, this Court is not in favor
of terminating this case on the basis of technicality for failure to answer on
time, hence, as ruled in the case of Nantz v. Jugo and Cruz, 43 O.G. No. 11,
p. 4620, it was held:

'Lapses in the literal observance of a rule of procedure will be overlooked

when they do not involve public policy, when they arose from an honest
mistake or unforeseen accident, when they have not prejudiced the adverse
party and have not deprived the court ot its authority. Conceived in the best
traditions of practical and moral justice and common sense, the Rules of
Court frown upon hairsplitting technicalities that do not square with their
liberal tendency and with the ends of justice unless something in the nature
of the factors just stated intervene. x x x'

"WHEREFORE, x x x in the interest of justice, the Answer of the

[respondents] is hereby admitted."35cräläwvirtualibräry

Indiana Aerospace University v. Commission on Higher Education 36 held that

no practical purpose was served in declaring the defendants in default when
their Answer had already been filed -- albeit after the 15-day period, but
before they were declared as such. Applying that ruling to the present case,
we find that respondents were, therefore, imprudently declared in default.

WHEREFORE, the Petition is hereby GRANTED IN PART, and the Decision of

the Court of Appeals MODIFIED. The trial court's Order of Default dated May
22, 2001 and Judgment of Default dated August 23, 2001 are ANNULLED,
and the case remanded to the trial court for further proceedings on the
merits. No costs.
SO ORDERED.

Puno, (Chairman), Sandoval-Gutierrez and Carpio Morales, JJ., concur.

Corona, J., on leave.

Endnotes:
1
 Rollo, pp. 8-33.
2
 Penned by Justice Buenaventura J. Guerrero (Division chairman), with the
concurrence of Justices Rodrigo V. Cosico and Eliezer R. de los Santos
(members); rollo, pp. 35-44.
3
 CA Decision, p. 10; rollo, p. 44.
4
 Id., pp. 2-5 & 36-39.
5
 The case was deemed submitted for decision on May 15, 2003, upon the
Court's receipt of petitioner's Memorandum signed by Atty. Sam Norman G.
Fuentes. Respondents' Memorandum, signed by Atty. Pablito M. Castillo, was
received by this Court on March 4, 2003.
6
 Petitioner's Memorandum, pp. 4-5; rollo, pp. 180-181. Original in upper
case.
7
 Sandoval v. House of Representatives Electoral Tribunal (HRET), GR No.
149380, July 3, 2002; Spouses Miranda v. CA, 383 Phil. 163, February 23,
2000; Ang Ping v. CA, 369 Phil. 607, July 15, 1999.
8
 Umandap v. Sabio Jr., 339 SCRA 243, August 29, 2000; Laus v. CA, 219
SCRA 688, March 8, 1993.
9
 Rollo, p. 45.
10
 Ibid.
11
 CA rollo, pp. 42-44.
12
 Urgent Motion to Declare Service of Summons Improper and Legally
Defective, par. 1, p. 1; id., p. 42.
13
 Boticano v. Chu Jr., 148 SCRA 541, 551, March 16, 1987, per Paras, J.
14
 CA rollo, pp. 47-51.
15
 CA rollo, pp. 52-54.
16
 Omnibus Motion ad Cautelam to Admit Motion to Dismiss and Answer with
Compulsory Counterclaim dated November 9, 2000; id., pp. 47-48.
17
 Ibid.
18
 Europa v. Hunter Garments Manufacturing (Phil.), Inc., 175 SCRA 394,
July 18, 1989; Orosa v. CA, 330 Phil. 67, September 3, 1996; Villareal v.
CA, 356 Phil. 826, September 17, 1998; Navale v. CA, 324 Phil. 70,
February 20, 1996, citing Soriano v. Hon. Palacio and Medenilla, 120 Phil.
1244, November 28, 1964.
19
 American Inter-Fashion Corporation v. Glorious Sun Fashion Garments
Manufacturing (Phils.) Co., Inc., 335 Phil. 723, February 13, 1997; citing St.
Luke's Medical Center, Inc. v. Torres, 223 SCRA 779, June 29, 1993.
20
 Section 1 of Rule 65 of the Rules of Court.
21
 National Steel Corporation v. CA, 381 Phil. 219, January 31,
2000; Province of Bulacan v. CA, 359 Phil. 779, November 27, 1998.
22
 Ley Construction & Development Corporation v. Hyatt Industrial
Manufacturing Corporation, 339 SCRA 223, August 29, 2000; Raymundo v.
CA, 374 Phil. 95, September 29, 1999.
23
 See Section 2 of Rule 36 of the Rules of Court.
24
 Republic v. CA, 379 Phil. 92, January 18, 2000; Eternal Gardens Memorial
Park v. CA, 347 Phil. 232, December 9, 1997.
25
 Delsan Transport Lines, Inc. v. CA, 335 Phil. 1066, February 20, 1997.
26
 Banco Filipino Savings and Mortgage Bank v. CA, 389 Phil. 644, June 23,
2000.
27
 Ten Forty Realty and Development Corp. v. Cruz, GR No. 151212,
September 10, 2003; Chico v. CA, 348 Phil. 37, January 5, 1998; Cañiza v.
CA, 335 Phil. 1107, February 24, 1997.
28
 Delsan Transport Lines, Inc. v. CA, supra, p. 1075, per Mendoza, J.
29
 Respondents' Petition for Certiorari before the CA, p. 16; CA rollo, p. 17.
30
 Id., pp. 3 & 4.
31
 Under Section 4 of Rule 39 of the Rules of Court, only "[j]udgments in
actions for injunction, receivership, accounting and support, and such other
judgments as are now or may hereafter be declared to be immediately
executory, shall be enforceable after their rendition and shall not be stayed
by an appeal taken therefrom, unless otherwise ordered by the trial court. x
x x."
32
 Spouses Diaz v. CA, 387 Phil. 314, April 28, 2000.
33
 Sarmiento v. Juan, 205 Phil. 335, January 28, 1983; cited in Philippine
Transmarine Carriers, Inc. v. CA, 382 Phil. 777, February 18, 2000.
34
 Spouses Ampeloquio v. CA, 389 Phil. 13, June 15, 2000.
35
 CA rollo, p. 88.
36
 356 SCRA 367, April 4, 2001.