502 Phil. 737
CARPIO MORALES, J.:
1. Anhui-Almajose
Hydrogeologic and Well
Drilling Co., IncRm. 304 Maligaya Bldg.,
111 430 E. Rodriguez
Avenue, Quezon City2. Porthos P. Alma Jose Rm. 304 Maligaya Bldg.,
111 430 E. Rodriguez
Avenue, Quezon City3. Ma. Theresa D. Alma Jose Rm. 304 Maligaya Bldg.,
111 430 E. Rodriguez
Avenue, Quezon City
On 29 October 1997, I went to the office and place of business of defendants Anhui-Almajose Hydrogeologic and Well Drilling Co. Inc., Porthos Almajose and Ma. Theresa Almajose at no. 348 M.F. Jocson St., Sampaloc, Manila to serve them personally the summons, complaint and annexes but failed because they were not there.From the July 3, 2000 Resolution of Branch 141 of the Makati RTC to which the complaint was raffled, the following observations of the judge are noted:
Defendants Porthos Almajose and Ma. Theresa Almajose are the officers of defendant corporation.
Again on November 4, 1997 I tried again to serve the summons personally to the aforesaid defendants but I was informed that they were out of the office. I waited for them but my waiting proved futile.
Finally, on November 5, 1997, I went back again on the said address but defendants were again not around. Considering that this was the third time that I endeavor[e]d to serve the summons personally and due to the uncertainty of whether the defendants, who were also officers of defendant corporation, will report to their office, I left the summons together with the copies of the complaint and annexes at their office and place of business thru Shirley Cabangon, a competent person in-charge thereof, who affixed her signature for receipt thereof.
Substituted service availed for the reason above-stated.
The original copy of the summons is hereby returned to the Hon. Court of origin, FULLY SERVED, for its information and guidance. (Emphasis and underscoring supplied).
. . . The record indicated that summons upon the defendants were served thru Atty. Leonides Bernabe who was the Corporate Secretary of defendant Anhui-Alma Jose Hydrogeologic and Well Drilling Co., Inc.. Atty. Leonides Bernabe filed a motion for extension of time to file answer for all the defendants on 9 December 1999. The motion was granted and therefore defendants were granted fifteen (15) days counted from 19 December 1997 to file a responsible pleading. x x x[7] (Emphasis and underscoring supplied)From the same Resolution of the RTC, it is gathered that Atty. Edgardo Alzate, one of the defendants, by way of special appearance, moved to dismiss the complaint on the grounds of lack of jurisdiction over his person, lack of cause of action, lack of jurisdiction over the proceedings, and lack of condition precedent for filing the collection case. The motion was, by Order[8] dated January 26, 1998, denied, but the case against him was eventually dismissed on motion of the plaintiff.
By Resolution[14] of July 3, 2000, the trial court, noting that the petition for relief from judgment was filed out of time and the supporting affidavit did not state a valid defense to the complaint, and discrediting petitioners' claim that Atty. Bernabe's appearance as counsel was unauthorized in this wise:
- setting aside the judgment rendered in [the] case, lifting or canceling the writ of execution and ordering the conduct of a new trial;
- immediately enjoining the Sheriff and the [respondent] from conducting the sale of [petitioners'] levied property;
- after trial, making the injunction above-mentioned permanent.[13]
[Petitioners] could not feign not know[ing] about the filing of this case during its early stage because Atty. Leonides Bernabe who lawyered for them and the defendant corporation was the corporate secretary of the corporation where petitioners were President and Treasurer, respectively. Defendant corporation did not disown the representation of Atty. Leonides Bernabe. This being so and considering that petitioners were key officers of the corporation, they were presumed to have authorized Atty. Bernabe to represent the corporation perforce they are presumed to have gained actual knowledge of the fact that they were sued in this case in their respective personal capacity (Emphasis and underscoring supplied),denied the same.
By Decision[20] of July 31, 2001, the CA dismissed the petition for certiorari upon a finding that the trial court did not commit grave abuse of discretion when it denied the petition for relief from judgment becauseA
THE RESPONDENT COURT, WITH DUE RESPECT, ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO EXCESS OF ITS JURISDICTION WHEN PETITIONERS' WERE DECLARED IN DEFAULT DESPITE THE FACT THAT IT HAS NOT ACQUIRED JURISDICTION OVER THEM.[18]B
ASSUMING WITHOUT ADMITTING THAT ATTY. LEONIDES BERNABE WAS THE COUNSEL FOR THE REMIANING DEFENDANTS INCLUDING THE PETITIONERS HEREIN, THE RESPONDENT COURT, WITH DUE RESPECT, ACTED WITH GRAVE ABUSE OF ITS DISCRETION, AMOUNTING TO EXCESS OF ITS JURISDICTION WHEN IT DENIED THE LATTER'S PETITION FOR RELIEF FROM JUDGMENT AND DID NOT CONSIDER THE GROSS INACTION, AND/OR RECKLESSNESS OF THEIR COUNSEL AS TANTAMOUNT TO EXCUSABLE NEGLIGENCE.[19] (Emphasis and underscoring supplied).
x x x the Rules are very clear that such a petition [for certiorari] is not the proper remedy to resort to when a party alleges lack of jurisdiction over him and the remedy of a petition for relief from judgment is no longer available without his fault. If petitioners were deprived of due process when a decision was rendered against them [in]spite of the court a quo's lack of jurisdiction over them as they allege but a petition for relief from judgment is not anymore available, they were not without remedy. In other words, petitioners were not deprived of a remedy. But apparently, petitioners did not resort to the proper mode of procedure, though they could have very well resorted to it, to redress what they allege to be a violation of their right to due process. x x x (Underscoring supplied).On February 4, 2002, petitioners filed with the CA a "Petition for Annulment of Judgment, Annulment of Sale and Damages with Prayer for Temporary Restraining Order and/or Writ of Preliminary Injunction"[21] anchored on the following arguments:
By Resolution[25] of February 11, 2002, the CA, drawing attention to "(. . . Justice Jose Y. Feria, 1997 Rules of Civil Procedure, Philippine Legal Studies, Series No. 5 [Rule 47, Annulment of Judgment or Final Orders or Resolutions], 1999 Ed. (Reprinted), p. 186)," held that since petitioners had already availed of the remedy of petition for relief from judgment which was denied by the trial court as was their petition for certiorari by the CA assailing the trial court's denial, they may no longer institute a petition for annulment of judgment. It additionally held that since the trial court's judgment sought to be annulled had long become final and executory, it could no longer be set aside, absent any showing that a party had been deprived of due process or that the judgment was procured by extrinsic or collateral fraud.
- Respondent Regional Trial Court [h]ad no jurisdiction over the person of herein petitioners since they were not properly served with summons in accordance with the Rules of Court.[22]
- Atty. Leonides Bernabe is not the counsel of defendants-petitioners; he was never hired nor contracted to represent them. Neither did Atty. Bernabe inform the defendant-petitioners of the pendency of a case against them.[23]
- The petitioners have good a valid defense.
- The case against petitioners was prematurely filed.
- No cause of action since (1) The Bureau of Customs agreed that the drilling tools and equipment, subject matter of the bond be surrendered; and (2) it will not therefore go against the Bond.
- To grant the private respondent its claim of indemnity gives rise to unjust enrichment.[24] (Underscoring supplied)
The petition is meritorious.
- The respondent Regional Trial Court [h]ad no jurisdiction over the persons of herein petitioners since they were not properly served with summons. Hence the Court of Appeals erred in affirming the court a quo's Decision.[27]
- The enforcement of the indemnity agreement and consequently the subjection of the petitioners' conjugal home to the corporation's obligation is an action in personam as well as a personal action thus, personal service of summons is necessary to confer jurisdiction on the court.[28]
- Impropriety of the service of summons voided the default judgment. The same was not a judgment in the contemplation of law, hence, it never bec[a]me final and executory and any action to declare its nullity does not prescribe.[29]
- Atty. Leonides Bernabe is not the counsel of petitioners [as] he was never hired nor contracted to represent them. Neither did he inform petitioners of the pendency of the case against them.[30]
- To hold the petitioners liable to the respondent corporation for the amount herein sought to be recovered would result in undue enrichment to the benefit of Intra Strata but to the prejudice of the petitioners because the basis of their alleged liability was already cancelled.[31]
(Underscoring supplied)
Section 2. Grounds for annulment. - The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction.As the 2nd paragraph of the above-quoted rule clearly provides, it is only extrinsic fraud, not lack of jurisdiction, which is excluded as a valid ground for annulment "if it was availed of, or could not have been availed of, in a motion for new trial or petition for relief."
Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief. (Emphasis and underscoring supplied).