G.R. No. 108538 January 22, 1996 Valmonte vs. CA

 

FACTS:

Petitioners Lourdes A. Valmonte and Alfredo D. Valmonte are husband and wife. They are both residents of 90222 Carkeek Drive South Seattle, Washington, U.S.A. 

 

On March 9, 1992, respondent Rosita Dimalanta, sister of petitioner Lourdes, filed a complaint for partition of real property and accounting of rentals against named spouses before the Regional Trial Court of Manila.

 

Apparently, the foregoing averments were made on the basis of a letter previously sent by petitioner, Lourdes, to private respondent's counsel in which, in regard to the partition of the property in question, she referred private respondent's counsel to her husband as the party to whom all communications intended for her should be sent. Service of summons was then made upon petitioner, Alfredo, who accepted the summons, insofar as he was concerned, but refused to accept the summons for his wife, on the ground that he was not authorized to accept the process on her behalf. 

 

Petitioner (husband) thereafter filed his Answer with Counterclaim. Petitioner (wife), however, did not file her Answer. For this reason private respondent moved to declare her in default. Petitioner (husband) entered a special appearance in behalf of his wife and opposed the private respondent's motion.

 

The trial court, denied respondent's motion to declare petitioner, Lourdes, in default. Respondent filed a petition for certiorari, prohibition and mandamus with the Court of Appeals.

 

The Court of Appeals rendered a decision granting the petition and declaring Lourdes in default. Hence, this petition.

ISSUE: 

Whether or not petitioner Lourdes A. Valmonte was validly served with summons.

 

HELD:

No valid service on petitioner Lourdes A. Valmonte in this case. The decision appealed from is reversed and the orders dated July 3, 1992 and September 23, 1992 of the Regional Trial Court are reinstated.

 

As petitioner Lourdes A. Valmonte is a nonresident who is not found in the Philippines, service of summons on her must be in accordance with Rule 14, Section 15 (17a). 

There are several reasons why the service of summons on Atty. Alfredo D. Valmonte cannot be considered a valid service of summons on petitioner Lourdes. First, service of summons on petitioner Alfredo  was not made upon the order of the court as required by Rule 14, Sec. 17 and certainly was not a mode deemed sufficient by the court. Second, service in the attempted manner on petitioner was not made upon prior leave of the trial court as required also in Rule 14, Sec. 17. As provided in Sec. 19, such leave must be applied for by motion in writing, supported by affidavit of the plaintiff or some person on his behalf and setting forth the grounds for the application. And finally, and most importantly, because there was no order granting such leave, petitioner Lourdes was not given ample time to file her Answer which, according to the rules, shall be not less than sixty (60) days after notice. 

 

Principles:

Service of summons, to be effective outside the Philippines, must be made either 

(1) by personal service; 

(2) by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court should be sent by registered mail to the last known address of the defendant; or

 (3) in any other manner which the court may deem sufficient.