Mangila v. CA & Guina

Facts:

Petitioner Anita Mangila is an exporter of sea foods and doing business under the name and style of Seafoods Products. Private respondent Loreta Guina is the President and General Manager of Air Swift International, a single registered proprietorship engaged in the freight forwarding business.

Petitioner contracted the freight forwarding services of private respondent for shipment of petitioner's products, such as crabs, prawns and assorted fishes, to Guam where petitioner maintains an outlet. Petitioner agreed to pay private respondent cash on delivery. Private respondent's invoice stipulates a charge of 18 percent interest per annum on all overdue accounts. In case of suit, the same invoice stipulates attorney's fees equivalent to 25 percent of the amount due plus costs of suit.

On the first shipment, petitioner requested for seven days within which to pay private respondent. However, for the next three shipments, petitioner failed to pay private respondent shipping charges amounting to P109, 376.95.4

Despite several demands, petitioner never paid private respondent. Thus, private respondent filed a civil case before the RTC Pasay for collection of sum of money.

The sheriff filed his Sheriff's Return showing that summons was not served on petitioner. A woman found at petitioner's house informed the sheriff that petitioner transferred her residence to Sto. Niño, Guagua, Pampanga. The sheriff found out further that petitioner had left the Philippines for Guam.

Private respondent filed a Motion for Preliminary Attachment. The trial court issued a Writ of Preliminary Attachment.

Sheriff Alfredo San Miguel of RTC Pampanga served on petitioner's household help in San Fernando, Pampanga, the Notice of Levy with the Order, Affidavit and Bond.

Petitioner filed an Urgent Motion to Discharge Attachment without submitting herself to the jurisdiction of the trial court. She pointed out that up to then, she had not been served a copy of the Complaint and the summons. Hence, petitioner claimed the court had not acquired jurisdiction over her person.

The trial court granted the Motion to Discharge Attachment upon filing of petitioner's counter-bond. The trial court, however, did not rule on the question of jurisdiction and on the validity of the writ of preliminary attachment.

Private respondent applied for an alias summons, which the trial court issued on January 19, 1989. It was only on January 26, 1989 that summons was finally served on petitioner.

Petitioner filed a Motion to Dismiss the Complaint but was denied. Petitioner filed a Motion for Reconsideration but this too was denied.

On the day of the pre-trial, the trial court issued an Order terminating the pre-trial and allowing the private respondent to present evidence ex-parte.

Petitioner filed her MR of the Order terminating the pre-trial but was denied and scheduled the presentation of private respondent's evidence ex-parte on October 10, 1989.

Petitioner filed an Omnibus Motion stating that the presentation of evidence ex-parte should be suspended because there was no declaration of petitioner as in default and petitioner's counsel was not absent, but merely late but was denied.

Petitioner received a copy of the Decision ordering petitioner to pay respondent P109,376.95 plus 18 percent interest per annum, 25 percent attorney's fees and costs of suit. Private respondent filed a Motion for Execution Pending Appeal but the trial court denied the same.

CA affirmed the trial court’s decision. MR was denied.

Issue:

Whether respondent court erred in not holding that the writ of attachment was improperly issued and served.

Held:

As a preliminary note, a distinction should be made between issuance and implementation of the writ of attachment. It is necessary to distinguish between the two to determine when jurisdiction over the person of the defendant should be acquired to validly implement the writ. This distinction is crucial in resolving whether there is merit in petitioner's argument.

This Court has long settled the issue of when jurisdiction over the person of the defendant should be acquired in cases where a party resorts to provisional remedies. A party to a suit may, at any time after filing the complaint, avail of the provisional remedies under the Rules of Court. Specifically, Rule 57 on preliminary attachment speaks of the grant of the remedy "at the commencement of the action or at any time thereafter." This phrase refers to the date of filing of the complaint which is the moment that marks "the commencement of the action." The reference plainly is to a time before summons is served on the defendant, or even before summons issues.

In Davao Light & Power Co., Inc. v. Court of Appeals, this Court clarified the actual time when jurisdiction should be had:

"It goes without saying that whatever be the acts done by the Court prior to the acquisition of jurisdiction over the person of defendant - issuance of summons, order of attachment and writ of attachment - these do not and cannot bind and affect the defendant until and unless jurisdiction over his person is eventually obtained by the court, either by service on him of summons or other coercive process or his voluntary submission to the court's authority. Hence, when the sheriff or other proper officer commences implementation of the writ of attachment, it is essential that he serve on the defendant not only a copy of the applicant's affidavit and attachment bond, and of the order of attachment, as explicitly required by Section 5 of Rule 57, but also the summons addressed to said defendant as well as a copy of the complaint xxx." (Emphasis supplied.)

Furthermore, we have held that the grant of the provisional remedy of attachment involves three stages: first, the court issues the order granting the application; second, the writ of attachment issues pursuant to the order granting the writ; and third, the writ is implemented. For the initial two stages, it is not necessary that jurisdiction over the person of the defendant be first obtained. However, once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant for without such jurisdiction, the court has no power and authority to act in any manner against the defendant. Any order issuing from the Court will not bind the defendant.

In the instant case, the Writ of Preliminary Attachment was issued on September 27, 1988 and implemented on October 28, 1988. However, the alias summons was served only on January 26, 1989 or almost three months after the implementation of the writ of attachment.

The trial court had the authority to issue the Writ of Attachment on September 27 since a motion for its issuance can be filed "at the commencement of the action." However, on the day the writ was implemented, the trial court should have, previously or simultaneously with the implementation of the writ, acquired jurisdiction over the petitioner. Yet, as was shown in the records of the case, the summons was actually served on petitioner several months after the writ had been implemented.

Private respondent, nevertheless, claims that the prior or contemporaneous service of summons contemplated in Section 5 of Rule 57 provides for exceptions. Among such exceptions are "where the summons could not be served personally or by substituted service despite diligent efforts or where the defendant is a resident temporarily absent therefrom x x x." Private respondent asserts that when she commenced this action, she tried to serve summons on petitioner but the latter could not be located at her customary address in Kamuning, Quezon City or at her new address in Guagua, Pampanga. Furthermore, respondent claims that petitioner was not even in Pampanga; rather, she was in Guam purportedly on a business trip.

Private respondent never showed that she effected substituted service on petitioner after her personal service failed. Likewise, if it were true that private respondent could not ascertain the whereabouts of petitioner after a diligent inquiry, still she had some other recourse under the Rules of Civil Procedure.

In conclusion, we hold that the alias summons belatedly served on petitioner cannot be deemed to have cured the fatal defect in the enforcement of the writ. The trial court cannot enforce such a coercive process on petitioner without first obtaining jurisdiction over her person. The preliminary writ of attachment must be served after or simultaneous with the service of summons on the defendant whether by personal service, substituted service or by publication as warranted by the circumstances of the case. The subsequent service of summons does not confer a retroactive acquisition of jurisdiction over her person because the law does not allow for retroactivity of a belated service.