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SUMMONS

WELCOME TO THE PHILIPPINE CIVIL PROCEDURES!

 

RULE 14 - SUMMONS

The pivotal issue in this case is whether or not the Court of Appeals committed reversible error in annulling the judgment in Civil Case No. 63117 for want of jurisdiction on the part of the trial court.

In declaring the judgment in Civil Case No. 63117 null and void, the appellate court found from the Sheriff’s Return of Service, 8 [Supra Note 2, at 19.] that summons was served on the spouses Java by substituted service without effort at personal service. The court a quo held that the said service was invalid and the lower court never acquired jurisdiction over the persons of defendants (private respondents herein) in Civil Case No. 63117, thus, the execution sale of the "Thames" vehicle, as well as the sale of Lot 8015 to LMC, and the subsequent sale by the latter to petitioners were null and void.

Petitioners contend that the decision of the Court of Appeals that service of summons was invalid is contradicted by the trial court and is not supported by the evidence. Besides, the judgment had already become final since there were no grounds to annul it.

On the question of the validity of service of summons, pertinent is Rule 14 of the Rules of Court, particularly Sections 7 and 8 which respectively provide:

Sec. 7. Personal service of summons. – The summons shall be served by handing a copy thereof to the defendant in person, or if he refuses to receive it, by tendering it to him. 9 [Now 1997 RULES OF CIVIL PROCEDURE, Rule 14, sec. 6.]

Sec. 8. Substituted service: If 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 in the defendant’s dwelling house or 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. 10 [Now 1997 RULES OF CIVIL PROCEDURE, Rule 14, sec. 7.]

Service of summons upon the defendant is essential for the court to acquire jurisdiction over his person.11 [Arcenas v. Court of Appeals, 299 SCRA 733, 741 (1998).] The modes of service should be strictly followed in order that the court may acquire jurisdiction over the person.12 [Gan Hock v. Court of Appeals, 197 SCRA 223, 232 (1991), Spouses Olar v. Cuna, 90 SCRA 114, 118 (1979).] Thus, it is only when a defendant cannot be served personally "within a reasonable time" that substituted service may be made.13 [Keister v. Navarro, 77 SCRA 209, 215 (1977).]

In the instant case, the Sheriff’s Return of Service reads:

"Respectfully returned to the Clerk of Court, Court of First Instance, Manila, the herein summons of the above-entitled case, copy of which and a copy of the complaint were served on December 9, 1965 at 11:00 o’clock in the morning by substituted service (stress supplied) through Ernesto Elizondo, son-in-law of defendants Lucila Java and Pablo Java and living together with them."14 [Supra Note 7.]

Even the briefest perusal of the aforementioned Return clearly shows no reason why personal service could not be made. Impossibility of prompt, personal service should be shown by stating in the proof of service that efforts were made to find the defendant personally and that said efforts failed, hence the resort to substituted service.15 [Venturanza v. Court of Appeals, 156 SCRA 305, 313 (1987).] Here, no such explanation was made. Failure to faithfully, strictly, and fully comply with the requirements of substituted service renders said service ineffective.16 [Keister v. Navarro, supra.]

Petitioners point to the deposition of Ernesto Elizondo to support their argument that there was valid service of summons.17 [TSN, July 9, 1988, pp. 4-7.] Ernesto Elizondo emphatically testified under oath, however, that at the time he allegedly signed for the summons, he was not living in the same house as his parents-in-law, "although I am living within the compound of my father-in-law."18 [Id. at 5.] Rule 14, Section 8 of the Rules of Court specifically provides that substituted service must be effected by "(a) leaving copies of the summons at the defendant’s dwelling house or residence with some person of suitable age and discretion then residing therein." Since Ernesto Elizondo admitted that he was not living with the spouses Java, the requirement that the summons be left with a person of suitable age residing in the same dwelling house or residence as the defendant, for substituted service to be valid, has not been complied with.

For want of proper service of summons upon defendants, the trial court in Civil Case No. 63117 never acquired jurisdiction over the former and hence, could not render valid judgment over their persons. Hence, the execution sales of the "Thames" vehicle and Lot 8015, pursuant to said void judgment, are void ab initio. A final judgment may be annulled upon either of two grounds: (1) extrinsic fraud, and (2) lack of jurisdiction.19 [Strait Times, Inc. v. Court of Appeals, 294 SCRA 714, 721 (1998); Salonga v. Court of Appeals, 269 SCRA 534, 543 (1997).] In the present case, the trial court did not have jurisdiction. No reversible error was thus committed by the Court of Appeals in annulling the judgment in Civil Case No. 63117 for absence of jurisdiction on the part of the court which rendered the same.

Justice Quisumbing, Second Division, Sps. Miranda and Jogouilon v. CA, Lucila Vda. De Java [G.R. No. 114243. February 23, 2000]

First. Petitioner objects to the application of the doctrine of substantial compliance in the service of summons for two reasons: (1) the enumeration of persons on whom service of summons on a corporation may be effected in Rule 14 §13, is exclusive and mandatory; and (2) even assuming that substantial compliance is allowed, its alleged actual receipt of the summons is based on an unfounded speculation because there is nothing in the records to show that Lynverd Cinches actually turned over the summons to any of the officers of the corporation.9 [Petition, p. 6; Id., pp. 22-25.] Petitioner contends that it was able to file a motion to dismiss only because of its timely discovery of the foreclosure suit against it when it checked the records of the case in the trial court.

The contention is meritorious.

Summons is the means by which the defendant in a case is notified of the existence of an action against him and, thereby, the court is conferred jurisdiction over the person of the defendant.10 [Matanguihan v. Tengco, 95 SCRA 478 (1980); Arcenas v. Court of Appeals, 299 SCRA 733 (1998)] If the defendant is corporation, Rule 14, §13 requires that service of summons be made upon the corporation’s president, manager, secretary, cashier, agent, or any of its directors.11 [As amended, Rule 14, §11 of the 1997 Rules of Civil Procedure now provides:

When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.] The rationale of the rule is that service must be made on a representative so integrated with the corporation sued as to make it a priori presumable that he will realize his responsibilities and know what he should do with any legal papers received by him.12 [Villa Rey Transit, Inc. v. Far East Motor Corporation, 81 SCRA 298 (1978). See also Delta Motor Sales Corp. v. Mancosing, 70 SCRA 598 (1976)]

Petitioner contends that the enumeration in Rule 14, §13 is exclusive and that service of summons upon one who is not enumerated therein is invalid. This is the general rule.13 [See E.N. Villarosa & Partner Co., Ltd. v. Imperial Development Corp., G.R. No. 136426, Aug. 6, 1999. However, it is settled that substantial compliance by serving summons on persons other than those mentioned in the above rule may be justified. In G & G Trading Corporation v. Court of Appeals,14 [158 SCRA 466 (1988)] we ruled that although the service of summons was made on a person not enumerated in Rule 14, §13, if it appears that the summons and complaint were in fact received by the corporation, there is substantial compliance with the rule as its purpose has been attained.

In Porac Trucking, Inc. v. Court of Appeals,15 [183 SCRA 45 (1990)] this Court enumerated the requisites for the application of the doctrine of substantial compliance, to wit: (a) there must be actual receipt of the summons by the person served, i.e., transferring possession of the copy of the summons from the Sheriff to the person served; (b) the person served must sign a receipt or the sheriff's return; and (c) there must be actual receipt of the summons by the corporation through the person on whom the summons was actually served.16 [Id., pp. 48-49.] The third requisite is the most important for it is through such receipt that the purpose of the rule on service of summons is attained.

In this case, there is no dispute that the first and second requisites were fulfilled. With respect to the third, the appellate court held that petitioner's filing of a motion to dismiss the foreclosure suit is proof that it received the copy of the summons and the complaint. There is, however, no direct proof of this or that Lynverd Cinches actually turned over the summons to any of the officers of the corporation. In contrast, in our cases applying the substantial compliance rule,17 [Talsan Enterprises, Inc. v. Baliwag Transit, G.R. No. 126258, July 8, 1999; Pabon v. NLRC, 296 SCRA 7 (1998); Golden Country Farms, Inc. v. Sanvar Development Corp., 214 SCRA 295 (1992); Rebollido v. Court of Appeals, 170 SCRA 800 (1989); G&G Trading Corp. v. Court of Appeals, supra.] there was direct evidence, such as the admission of the corporation's officers, of receipt of summons by the corporation through the person upon whom it was actually served. The question is whether it is allowable to merely infer actual receipt of summons by the corporation through the person on whom summons was served. We hold that it cannot be allowed. For there to be substantial compliance, actual receipt of summons by the corporation through the person served must be shown. Where a corporation only learns of the service of summons and the filing of the complaint against it through some person or means other than the person actually served, the service of summons becomes meaningless. This is particularly true in the present case where there is serious doubt if Lynverd Cinches, the person on whom service of summons was effected, is in fact an employee of the corporation. Except for the sheriff's return, there is nothing to show that Lynverd Cinches was really a draftsman employed by the corporation.

Respondent casts doubt on petitioner's claim that it came to know about the summons and the complaint against it only after it learned that there was a pending foreclosure of its mortgage. There is nothing improbable about this claim. Petitioner was in default in the payment of its loan. It had received demand letters from respondent. Thus, it had reason to believe that a foreclosure suit would be filed against it. The appellate court was, therefore, in error in giving weight to respondent's claims. Receipt by petitioner of the summons and complaint cannot be inferred from the fact that it filed a Motion to Dismiss the case.

Justice Mendoza, Second Division, MILLENIUM INDUSTRIAL COMMERCIAL CORPORATION, petitioner, vs. JACKSON TAN, respondent, [G.R. No. 131724. February 28, 2000]

 

 
The impossibility of personal service justifying availment of substituted service should be explained in the proof of service; why efforts exerted towards personal service failed. 

Anent the first issue, petitioners theorize that there was no valid service of summons because the substituted service of summons effected by Deputized Process Server Jose Manabat on JULIETA was improper, absent any proof of impossibility of personal service as required under Section 6, Rule 14 of the Rules of Court.

In upholding the questioned substituted service of summons, the Court of Appeals opined that "the averments in the Officer’s Return dated December 20, 1993, coupled with the finding by the lower Court that as early as July 1, 1993, there had been earlier attempts to serve summons upon the petitioner, are sufficient compliance with the requirements for substituted service."

Section 6, Rule 14 of the Rules of Court, reads:

Sec. 6. "Service in person or in 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."

The aforecited rule in point requires that summons must be served personally on the defendant. However, should personal service be unattainable, substituted service may be availed of under Section 7, Rule 14, which provides:

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 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 a long line of cases,8 [Regalado, Florenz. Rules of Civil Procedure, 1997 ed., p. 219, citing the cases of Busuego vs. CA, et. al., 151 SCRA 376; Arevalo vs. Quilatan, 116 SCRA 700; Venturanza vs. CA, 156 SCRA 305.] this Court held that the impossibility of personal service justifying availment of substituted service should be explained in the proof of service; why efforts exerted towards personal service failed. The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service or Officer’s Return; otherwise, the substituted service cannot be upheld. It bears stressing that since service of summons, especially for actions in personam, is essential for the acquisition of jurisdiction over the person of the defendant,9 [Keister vs. Navarro, 77 SCRA 209.] the resort to a substituted service must be duly justified. Failure to do so would invalidate all subsequent proceedings on jurisdictional grounds.

Administrative Circular No. 59 10 [SUBJECT: Service of Summons

Delays in court proceedings have been caused by faulty and erroneous implementation of Section 8, Rule 14, Rules of Court on Substituted Service of Summons.

The Trial Judges of all lower courts, as well as the Clerks of Court in their capacity as Ex-Officio Sheriffs together with the Deputy Sheriffs are reminded of the provision of Section 8, Rule 14, Rules of Court on substituted service as follows:

xxx

The manner of effecting substituted service as prescribed in Venturanza vs. Court of Appeals, 156 SCRA 305, must be strictly complied with, thus:

‘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 authorized by the statute is considered ineffective.’

For immediate compliance."] was precisely issued by this Court to stress the importance of strict compliance with the requisites for a valid substituted service.

To determine whether there was such an observance and substituted service was warranted under the premises, it is necessary for the Court to carefully peruse and evaluate the Sheriff’s Return 11 [Supra.] which reported: (1) That on several occasions, at reasonable hours of the day, the Deputized Process Server, Jose T. Manabat, tried to serve upon MARIANO the summons together with the complaint; (2) That diligent efforts were exerted by the said Deputized Process Server; (3) That service of summons was then made on MARIANO’s wife, JULIETA, a person of suitable age and discretion who acknowledged receipt thereof.12 [Rollo, Annex "F", p. 23 of Court of Appeals Records.]

The Sheriff’s certificate of service of summons is prima facie evidence of the facts therein set out. To overcome the presumption of regularity of performance of official functions in favor of such Sheriff’s Return, the evidence against it must be clear and convincing. Petitioner having been unable to come forward with the requisite quantum of proof to the contrary, the presumption 13 [Orosa vs. Court of Appeals, 261 SCRA 376, citing Vargas and Co. vs. Chan Hang Chiu, 29 Phil 446 (1915)] of regularity of performance on the part of the Sheriff in the case stands.

MARIANO theorized that he was completely unaware of subject action brought against him and he only learned about it when his sister-in-law handed to him a brown envelope containing a copy of the Decision rendered on October 9, 1995 by Branch 139 of the Regional Trial Court of Makati City. According to him, he was separated from his wife, JULIETA, at the time of service of summons, and was then a stay-in employee of Via Marine Corporation. To buttress his submission, he attached a Certification issued by his said employer.14 [Petition, p. 2; Rollo, p. 14.]

To support his Motion to Set Aside Order of Default, MARIANO should have produced enough evidence to negate the presumption of regularity featuring the Process Server’s Return. The aforesaid certification issued by Via Marine Corporation is purely self-serving and did not suffice to establish that he was truly a stay-in employee.

As between the Sheriff’s Return on the substituted service, which carries with it a presumption of regularity, and MARIANO’s self-serving assertion that he only came to know of the case against him, when his sister-in-law delivered to him the decision of the lower court, the Sheriff’s Return is undoubtedly more deserving of faith and credit.

To save his cause, MARIANO invited attention that the subject Sheriff’s or Process Server’s Return is couched in broad and general terms, and does not state the material dates when the Process Server tried to serve the summons.

While the Sheriff’s Return of December 23, 1993 is silent on the facts and circumstances engendering the impossibility of personal service of summons upon MARIANO, within a reasonable time, it can be deduced therefrom that alias summons had to be issued. Under the Rules of Court, alias summons is issued when the summons is returned without being served on any of the defendants.15 [Rule 14, Sec. 5. ISSUANCE OF ALIAS SUMMONS. - If a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiff’s counsel, stating the reasons for the failure of service, within (5) days therefrom. In such a case, or if the summons has been lost, the clerk, on demand of the plaintiff may issue an alias summons.]

Petitioners’ reliance on the ruling in Venturanza vs. Court of Appeals, 156 SCRA 305, is misplaced. In that case, the Sheriff’s Return was declared invalid for failure to include material statements on the address of the person on whom substituted service was effected, and on the fact that diligent efforts were exerted to locate the defendant. Conformably, the Court ruled that "the presumption of regularity of performance of official functions by the sheriff is not applicable in this case wherein it is patent that the sheriff’s return is defective."

Granting ex-gratia argumenti that the substituted service under scrutiny was not valid, MARIANO’s cause could not prosper just the same, since the remedy he opted to avail of is not the proper recourse under the attendant circumstances. The next to resolve therefore, is the second issue raised by petitioners.  

Justice Purisima, Third Division, SPOUSES MARIANO MADRIGAL AND JULIETA MADRIGAL, petitioners vs. THE HONORABLE COURT OF APPEALS, THE HONORABLE PRESIDING JUDGE, BR. 139, RTC, CITY OF MAKATI & SPOUSES JOSEPH AND JOSEFINA AQUINO, respondents. [G.R. No. 129955. November 26, 1999]

 

 

The lack of jurisdiction over the person of the defendant may be waived either expressly or impliedly. When a defendant voluntarily appears, he is deemed to have submitted himself to the jurisdiction of the court. If he so wishes not to waive this defense, he must do so seasonably by motion for the purpose of objecting to the jurisdiction of the court; otherwise, he shall be deemed to have submitted himself to that jurisdiction. The decisions promulgated heretofore by this Court would likewise seemingly apply estoppel to bar the defendant from pursuing that defense by alleging in his answer any other issue for dismissing the action.

There is sufficient basis to establish that the trial court has validly acquired jurisdiction over the person of private respondent Emilio Tuason. The records show that private respondent did voluntarily submit himself to the court's jurisdiction. Several pleadings have been filed by him that, in fact, accounted for a number of interlocutory orders issued by the trial court; viz:

(1) Order dated 14 March 1994, ruling on Emilio R. Tuason's "Motion to Remove Guardianship" [Certified True Copy, Rollo, p. 38];

(2) Order dated 28 November 1994 ruling on Emilio R. Tuason's Urgent Omnibus Motion [Certified True Copy, Rollo, on. 39-41];

(3) Order dated 21 December 1994 ruling on Emilio R. Tuason's Urgent Motion for the Issuance of Temporary Restraining Order and/or Injunction [Certified True Copy, Rollo, p. 42];

(4) Order dated 26 December 1994, resetting the case for presentation of evidence anent Emilio R. Tuason's application for injunction [Certified True Copy, Rollo, p. 43];

(5) Order dated 15 March 1995, denying Emilio R. Tuason's Motion for Reconsideration [Certified True Copy, Rollo, p. 44]; and

(6) Order dated 25 July 1996, setting the hearing for Emilio R. Tuason's motion for a restraining order or preliminary injunction and granting him twenty (20) days temporary restraining order [Certified True Copy, Rollo, p. 45].

In not a single instance, in the foregoing incidents, did private respondent appear to have seriously objected to the jurisdiction of the court.

Voluntary appearance could cure a defect in the service of summons. In La Naval Drug Corporation vs. Court of Appeals 1 [21236 SCRA 78.]  this Court has ruled:

The lack of jurisdiction over the person of the defendant may be waived either expressly or impliedly. When a defendant voluntarily appears, he is deemed to have submitted himself to the jurisdiction of the court. If he so wishes not to waive this defense, he must do so seasonably by motion for the purpose of objecting to the jurisdiction of the court; otherwise, he shall be deemed to have submitted himself to that jurisdiction. The decisions promulgated heretofore by this Court would likewise seemingly apply estoppel to bar the defendant from pursuing that defense by alleging in his answer any other issue for dismissing the action.

A citation of a few of our decisions might be apropos.

In Wang Laboratories, Inc. vs. Mendoza [156 SCRA 44], this Court has ruled that if the defendant, besides setting up in a motion to dismiss his objection to the jurisdiction of the court, alleges at the same time any other ground for dismissing the action, he is deemed to have submitted himself to the jurisdiction of the court. In the process, it has equated the matter to a situation where, such as in Immaculata vs. Judge Navarro, et al. [146 SCRA 5], the defendant invokes an affirmative relief against his opponent.

When the appearance is by motion for the purpose of objecting to the jurisdiction of the court over the person, it must be for the sole and separate purpose of objecting to the jurisdiction of the court. If his motion is for any other purpose than to object to the jurisdiction of the court over his person, he thereby submits himself to the jurisdiction of the court. A special appearance by motion made for the purpose of objecting to the jurisdiction of the court over the person will be held to be a general appearance, if the party in said motion should, for example, ask for a dismissal of the action upon the further ground that the court had no jurisdiction over the subject matter. [Syllabus, Flores vs. Zurbito, supra, at page 751. That rule was followed in Ocampo vs. Mina and Arejola, 41 Phil. 308].2  [At pp. 86-87.]

The case of Yangco vs. CFI of Manila, 3 [29 Phil. 183.] cited by the appellate court, is not really in point. The petitioner therein, Yangco, did not seek any affirmative relief, instantly taking, instead, an exception from the trial court's jurisdiction over his person. In the case at bench, Rule 15, Section 23 of the Rules of Court:
 

Sec. 23. What is equivalent to service.  The defendant's voluntary appearance in the action shall be equivalent to service.

is clearly applicable.

Justice Vitug, First Division, ROSARIO R. TUASON, Petitioner, HON. COURT OF APPEALS and EMILIO R. TUASON, Respondents.  G.R. No. 124553, February 10, 1997

 

On September 24, 1986, the trial court issued an order denying for lack of merit Gelhaar's motion to dismiss and to quash the summons. It held that Gelhaar was doing business in the Philippines, and that the service of summons on Gelhaar was therefore valid. Gelhaar filed a motion for reconsideration, but its motion was denied.  Gelhaar then filed a special civil action of certiorari with the Court of Appeals, which on August 20, 1990, set aside the orders of the trial court. The appellate court held that proof that Gelhaar was doing business in the Philippines should have been presented because, under the doctrine of Pacific Micronesian, this is a condition sine qua non for the service of summons under Rule 14, Section 14 of the Rules of Court, and that it was error for the trial court to rely on the mere allegations of the complaint.

The appellate court held that neither did the trial court acquire jurisdiction over Gelhaar through voluntary submission because the authority of Atty. Noval to represent Gelhaar had been questioned. Pursuant to Rule 138, Section 21, the trial court should have required Atty. Noval to prove his authority.
Consequently, the appellate court ordered the trial court to issue a new summons to be served on Empire Sales Philippines Corporation, after the allegation in the complaint that Gelhaar was doing business in the Philippines had been established.

Hence this petition.

Litton contends that jurisdiction over Gelhaar was acquired by the trial court by the service of summons through Gelhaar's agent and, at any rate, by the voluntary appearance of Atty. Remie Noval as counsel of Gelhaar.

We sustain petitioner's contention based on the first ground, namely, that the trial court acquired jurisdiction over Gelhaar by service of summons upon its agent pursuant to Rule 14, Section 14.

First. The appellate court invoked the ruling in Pacific Micronesian, in which it was stated that the fact of doing business must first be established before summons can be served in accordance with Rule 14, Section 14. The Court of Appeals quoted the following portion of the opinion in that case:

The above Section [referring to Rule 14, Section 14] provides for three modes of effecting service upon a private corporation, namely: [enumerates the three modes of service of summons]. But, it should be noted, in order that service may be effected in the manner above stated said section also requires that the foreign corporation be one which is doing business in the Philippines. This is a sine qua non requirement. This fact must first be established in order that summons can made and jurisdiction acquired. [Emphasis by the Court of Appeals).] 2 [Rollo, p. 26.

In the later case of Signetics Corporation v. Court of Appeals, 3 [225 SCRA 737, 742-43 [1993].] however, We clarified the holding in Pacific Micronesian, thus:

The petitioner opines that the phrase, "the fact [of doing business in the Philippines] must first be established in order that summons be made and jurisdiction acquired," used in the above pronouncement, would indicate that a mere allegation to that effect in the complaint is not enough  there must instead be proof of doing business. In any case, the petitioner points out, the allegations themselves did not sufficiently show the fact of its doing business in the Philippines.

It should be recalled that jurisdiction and venue of actions are, as they should so be, initially determined by the allegations of the complaint. Jurisdiction cannot be made to depend on independent pleas set up in a mere motion to dismiss, otherwise jurisdiction would become dependent almost entirely upon the defendant. The fact of doing business must then, in the first place, be established by appropriate allegations in the complaint. This is what the Court should be seen to have meant in the Pacific Micronesian case. The complaint, it is true, may have been vaguely structured but, taken correlatively, not disjunctively, as the petitioner would rather suggest, it is not really so weak as to be fatally deficient in the above requirement.

Hence, a court need not go beyond the allegations in the complaint to determine whether or not a defendant foreign corporation is doing business for the purpose of Rule 14, Section 14. In the case at bar, the allegation that Empire, for and in behalf of Gelhaar, ordered 7,770 dozens of soccer jerseys from Litton and for this purpose, Gelhaar caused the opening of an irrevocable letter of credit in favor of Litton, is a sufficient allegation that Gelhaar was doing business in the Philippines.

Second. Gelhaar contends that the contract with Litton was a single, isolated transaction and that it did not constitute "doing business." Reference is made to Pacific Micronesian in which the only act done by the foreign company was to employ a Filipino as a member of the crew on one of its ships. This Court held that the act was an isolated, incidental or casual transaction, not sufficient to indicate a purpose to engage in business.

It is not really the fact that there is only a single act done that is material. The other circumstances of the case must be considered. Thus, in Wang Laboratories, Inc. v. Mendoza,  4 [156 SCRA 44 [1987]] it was held that where a single act or transaction of a foreign corporation is not merely incidental or casual but is of such character as distinctly to indicate a purpose on the part of the foreign corporation to do other business in the state, such act will be considered as constituting doing business. 5 [Citing Far East International Export and Import Corp. v. Nankai Kogyo Co., Ltd., 6 SCRA 725 [1962].]This Court referred to acts which were in the ordinary course of business of the foreign corporation.

In the case at bar, the trial court was certainly correct in holding that Gelhaar' s act in purchasing soccer jerseys to be within the ordinary course of business of the company considering that it was engaged in the manufacture of uniforms. The acts noted above are of such a character as to indicate a purpose to do business.

In accordance with Rule 14, Section 14, service upon Gelhaar could be made in three ways:

[1] by serving upon the agent designated in accordance with law to accept service of summons;

[2] if there is no resident agent, by service on the government official designated by law to that effect; and

[3] by serving on any officer or agent of said corporation within the Philippines. 6 [See Far East International Export and Import Corp. v. Nankai Kogyo Co., Ltd., 6 SCRA 725 [1962].] Here, service was made through Gelhaar's agent, the Empire Sales Philippines Corp. There was, therefore, a valid service of summons on Gelhaar, sufficient to confer on the trial court jurisdiction over the person of Gelhaar.

Third. On the question, however, of whether the appearance of Atty. Noval in behalf of Gelhaar was binding on the latter, We hold that the Court of Appeals correctly ruled that it was not.

Atty. Noval admits that he was not appointed by Gelhaar as its counsel. What he claims is simply that Gelhaar knew of the filing of the case in the trial court and of his representation but Gelhaar did not object. Atty. Noval contends that there was thus a tacit confirmation of his authority.

Gelhaar claims, however, that it was only sometime in December, 1994, when it found out that the answer which Atty. Noval had filed in June was also made in its behalf. Gelhaar in fact sent a telex message dated January 15, 1985 to its counsel, the Sycip Law Firm stating:

WE NEVER AUTHORIZED THE RETENTION OF MR. NOVAL ON OUR BEHALF. WE HAVE NEVER EXCHANGED CORRESPONDENCE NOR HAD ANY TELEPHONE CONVERSATIONS WITH HIM RE ANY ASPECT OF THIS CASE, INCL. HIS FEES. WE ARE TOLD THAT HE HAS FILED AN ANSWER TO LTN'S [Litton's] COMPLT. PURPORTEDLY ON OUR BEHALF BUT HE HAS NEVER DISCUSSED THAT ANSWER WITH US NOR EVEN SENT US A DRAFT OR THE FINAL VERSION OF SUCH ANSWER. WE ARE SENDING SWORN AFFIDAVITS TO THIS EFFECT BY COURIER. 7 [Records, p. 200.]

Atty. Noval has not denied any of these statements. He claims that the advisory opinions he had rendered in the case was sent to Gelhaar by the President of Empire, Enoch Chiu; and that he was informed by Chiu that Gelhaar had been advised on all developments in the case and the necessity of filing an answer, and that a copy of the answer he had filed was furnished Gelhaar.

All this is, however, merely hearsay. Noval does not claim that he ever directly conferred with Gelhaar regarding the case. There is no evidence to show that he notified Gelhaar of his appearance in its behalf or that he furnished Gelhaar with copies of pleadings or the answer which he filed in its behalf.

No voluntary appearance by Gelhaar can, therefore, be inferred from the acts of Atty. Noval. Nor can Atty. Noval's representations in the answer be considered binding on Gelhaar. Gelhaar should be allowed a new period for filing its own answer.

WHEREFORE, the decision of the Court of Appeals is reversed. The order of the trial court denying the motion to dismiss is hereby reinstated, with the modification that Gelhaar is given a new period of ten [10] days for the purpose of filing its answer.

Justice Mendoza, Second Division, LITTON MILLS, INC., Petitioner vs.  COURT OF APPEALS and GELHAAR UNIFORM COMPANY, INC., Respondents,  G. R. No. 9498, May 15, 1996  

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