Velayo Fong Vs Velayo

3/24/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 510
320 SUPREME COURT REPORTS ANNOTATED

Velayo-Fong vs. Velayo
*
G.R. No. 155488. December 6, 2006.
ERLINDA R. VELAYO-FONG, petitioner, vs. SPOUSES

RAYMOND and MARIA HEDY VELAYO, respondents.
Remedial Law; Summons; Extrajudicial service of summons apply only

where the action is in rem, that is, an action against the thing itself instead
of against the person, or in an action quasi in rem, where an individual is
named as defendant and the purpose of the proceeding is to subject his
interest therein to the obligation or loan burdening the property.—Thus,
extrajudicial service of summons apply only where the action is in rem, that
is, an action against the thing itself instead of against the person, or in an
action quasi in rem, where an individual is named as defendant and the
purpose of the proceeding is to subject his interest therein to the obligation
or loan burdening the property. The rationale for this is that in in rem and
quasi in rem actions, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court provided that the court
acquires jurisdiction over the res.
Jurisdictions; Where the action is in personam, that is, one brought
against a person on the basis of her personal liability, jurisdiction over the
person of the defendant is necessary for the court to validly try and decide
the case.—Where the action is in personam, that is, one brought against a
person on the basis of her personal liability, jurisdiction over the person of
the defendant is necessary for the court to validly try and decide the case.
When the defendant is a non-resident, personal service of summons within
the state is essential to the acquisition of jurisdiction over the person.
Summons on the defendant must be served by handing a copy thereof to the
defendant in person, or, if he refuses to receive it, by tendering it to him.
This cannot be done, however, if the defendant is not physically present in
the country, and thus, the court cannot acquire jurisdiction over his person
and therefore cannot validly try and decide the case against him.
_______________
* FIRST DIVISION.
321
VOL. 510, DECEMBER 6, 2006 321
http://www.central.com.ph/sfsreader/session/0000016258750f8be061d655003600fb002c009e/t/?o=False 1/14
Process Servers; Presumption of Regularity; To overcome the

presumption of regularity of performance of official functions in favor of
such Officer’s Return, the evidence against it must be clear and convincing.
—Petitioner’s bare allegation that the statement in the “Officer’s Return that
she was personally served summons is inaccurate” is not sufficient. A
process server’s certificate of service is prima facie evidence of the facts as
set out in the certificate. Between the claim of non-receipt of summons by a
party against the assertion of an official whose duty is to send notices, the
latter assertion is fortified by the presumption that official duty has been
regularly performed. To overcome the presumption of regularity of
performance of official functions in favor of such Officer’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 of regularity of performance on the part of the process
server stands.
Words and Phrases; The term meritorious defense implies that the
applicant has the burden of proving such a defense in order to have the
judgment set aside.—When a party files a motion to lift order of default, she
must also show that she has a meritorious defense or that something would
be gained by having the order of default set aside. The term meritorious
defense implies that the applicant has the burden of proving such a defense
in order to have the judgment set aside. The cases usually do not require
such a strong showing. The test employed appears to be essentially the same
as used in considering summary judgment, that is, whether there is enough
evidence to present an issue for submission to the trier of fact, or a
showing that on the undisputed facts it is not clear that the judgment is
warranted as a matter of law. The defendant must show that she has a
meritorious defense otherwise the grant of her motion will prove to be a
useless exercise. Thus, her motion must be accompanied by a statement
of the evidence which she intends to present if the motion is granted and
which is such as to warrant a reasonable belief that the result of the
case would probably be otherwise if a new trial is granted.
322

PETITION for review on certiorari of the decision and resolution of

the Court of Appeals.
The facts are stated in the opinion of the Court.

Singson, Valdez & Associates for petitioner.
Virgilio B. Jara for respondents.
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for review on certiorari under Rule 45

of the 1997 Rules of Civil Procedure seeking the reversal of the
1
1
Decision of the Court of Appeals (CA) dated May 14, 2002 in CA-
G.R. CV No. 54434 which affirmed the Decision of the Regional
Trial Court, Branch 105, Quezon City 2
(RTC) in Civil Case No. Q-
93-17133; and the CA Resolution dated October 1, 2002 which
denied petitioner’s motion for reconsideration.
The procedural antecedents and factual background of the case
are as follows:
On August 9, 1993, Raymond Velayo (Raymond) and his wife,
Maria Hedy Velayo (respondents) filed a complaint for sum of
money and damages with prayer for preliminary attachment against
Erlinda R. Velayo-Fong (petitioner), Rodolfo3 R. Velayo, Jr.
(Rodolfo, Jr.) and Roberto R. Velayo (Roberto). Raymond is the
half-brother of petitioner and her codefendants.
In their Complaint, respondents allege that petitioner, a resident
of 1860 Alamoana Boulevard, Honolulu, Hawaii, USA, and her co-
defendants, who are residents of the Philip-
_______________
1 Penned by Associate Justice Perlita J. Tria-Tirona (now retired) and concurred in

by Associate Justices Buenaventura J. Guerrero (now retired) and Rodrigo V. Cosico;
CA Rollo, p. 95.
2 CA Rollo, p. 125.
3 Original Records, p. 1.
323
VOL. 510, DECEMBER 6, 2006 323

pines, made it appear that their common father, Rodolfo Velayo, Sr.
(Rodolfo Sr.) and petitioner had filed a complaint against Raymond
before the National Bureau of Investigation (NBI), accusing
Raymond of the crimes of estafa and kidnapping a minor; that
petitioner and her co-defendants also requested that respondents be
included in the Hold Departure List of the Bureau of Immigration
and Deportation (BID) which was granted, thereby preventing them
from leaving the country and resulting in the cancellation of
respondents’ trips abroad and caused all of respondents’ business
transactions and operations to be paralyzed to their damage and
prejudice; that petitioner and her co-defendants also filed a petition
before the Securities and Exchange Commission (SEC) docketed as
Case No. 4422 entitled “Rodolfo Velayo Sr. et al. v. Raymond Velayo
et al.” which caused respondents’ funds to be frozen and paralyzed
the latters’ business transactions and operations to their damage and
prejudice. Since petitioner was a non-resident and not found in the
Philippines, respondents prayed for a writ of preliminary attachment
against petitioner’s properties located in the Philippines.
Before respondents’ application for a writ of preliminary
attachment can be acted upon by the RTC, respondents filed on
September 10, 1993 an Urgent Motion praying that the summons
addressed to petitioner be served to her at Suite 201, Sunset View

Towers Condominium, Roxas Boulevard, Pasay City and 4 at No.
5040 P. Burgos Street, T. Towers Condominium, Makati. In its 5
Order dated September 13, 1993, the RTC granted the said motion.
The Process Server submitted the Officer’s Return, to wit:
“THIS IS TO CERTIFY, that after several failed attempts to serve the copy
of summons and complaint issued in the aboveentitled case at the given
addresses of defendant Erlinda Velayo as mentioned in the Order of this
Court dated September 13, 1993,
_______________
4 Id., at p. 28.
5 Id., at p. 30.
324

finally, on the 23rd day of September, 1993, at the instance of herein

plaintiffs through counsel, undersigned was able to SERVED (sic)
personally upon defendant Erlinda Velayo the copy of summons together
with the thereto attached copy of the complaint, not at her two (2) given
addresses, but at the lobby of Intercontinental Hotel, Makati, Metro Manila,
right in the presence of lobby counter personnel by the name of Ms. A.
Zulueta, but said defendant refused to sign in receipt thereof.
I FURTHER CERTIFY, that on the 27th day of September, 1993, copy of
the same WAS SERVED personally upon the other defendant Rodolfo R.
Velayo, Jr., at No. Block 57, Lots 17 and 19, G. Sanchez Street, BF Resort
Village, Las Piñas, Metro Manila, but who also refused to sign in receipt
thereof.
WHEREFORE, original copy of the summons is now being respectfully
returned to the Honorable Court DULY SERVED.
6
Quezon City, Philippines, September 30, 1993.”
7
Upon ex parte motions of respondents, the RTC in its Order dated
November 23, 1993 and January 5, 1994, declared petitioner and her
co-defendant in default for failure to file an answer
8
and ordered the
ex parte presentation of respondents’ evidence.
On June 15, 1994, the RTC rendered its Decision in respondents’
favor, the dispositive portion of which reads:
“WHEREFORE, premises considered, judgment is hereby rendered

ordering the defendants to pay the plaintiffs:
1. the amount of P65,000.00 as actual damages;

2. the amount of P200,000.00 as moral damages;
3. Attorney’s fees in the amount of P5,000,00 it being a judgment by
default; and
4. cost of suit.
_______________
6 Id., at p. 32; the Officer’s Return on service of summons on defendant Roberto

R. Velayo is found on p. 32.
7 Id., at pp. 35 and 38.
8 Id., at pp. 37 and 41.
325
VOL. 510, DECEMBER 6, 2006 325

9
SO ORDERED.”
On September 1, 1994, petitioner filed a Motion to Set Aside Order

of Default claiming that she was prevented from filing a responsive
pleading and defending herself against respondents’ complaint
because of fraud, accident or mistake; that contrary to the Officer’s
Return, no summons was served upon her; that she has valid and 10
meritorious defenses to refute respondents’
11
material allegations.
Respondents opposed said Motion.
In its Order dated May 29, 1995, the RTC denied petitioner’s
Motion ruling that the presumption of regularity in the discharge of
the function of the Process Server was not sufficiently overcome by
petitioner’s allegation to the contrary; that there was no evident
reason for the Process Server to make a false narration regarding the 12
service of summons to defaulting defendant in the Officer’s Return.
On September
13
4, 1995, respondents filed a Motion for
Execution. On September 22, 1995, petitioner filed an Opposition
to Motion for Execution contending that she has not yet received
14
the
Decision and it is not yet final and executory as against her.
In its Order dated January 3, 1996, the RTC, finding that the
Decision dated June 15, 1994 and the Order dated May 29, 1995
were indeed not furnished or served upon petitioner, denied
respondents’ motion for execution against petitioner 15and ordered
that petitioner be furnished the said Decision and Order.
_______________
9 Id., at p. 124.
10 Id., at p. 173.
11 Id., at p. 193.
12 Id., at p. 201.
13 Id., at p. 206.
14 Id., at p. 212.
15 Id., at p. 222.
326

On March 28, 1996, the RTC issued an Order directing 16 the issuance
of the writ of execution against petitioner’s codefendant.
On May 23, 1996, petitioner, through her counsel, finally
received the
17
Decision dated June 15, 1994 and the Order dated May
29, 1995.
Petitioner filed an appeal with the CA questioning the propriety
and validity of the service of summons made upon her. Respondents
opposed the appeal, arguing that the petition should be dismissed
since it raised pure questions of law, which is not within the CA’s
jurisdiction to resolve under Section 2 (c) of Rule 41 of the Revised
Rules of Court; that, in any case, petitioner’s reliance on the rule of
extraterritorial service is misplaced; that the judgment by default has
long been final and executory since as early as August 1994
petitioner became aware of the judgment by default when she
verified the status of the case; that petitioner should have filed a
motion for new trial or a petition for relief from judgment and not a
motion to set aside the order of default since there was already a
judgment by default.
On May 14, 2002, the CA 18rendered its Decision affirming the
Decision and Order of the RTC ruling that it (CA) has jurisdiction
since the petition raised a question of fact, that is, whether petitioner
was properly served with summons; that the judgment by default
was not yet final and executory against petitioner since the records
reveal and the RTC Order dated January 3, 1996 confirmed that she
was not furnished or served a copy of the decision; that petitioner
was validly served with summons since the complaint for damages
is an action in personam and only personal, not extraterritorial
service, of summons, within the forum, is essential for the
acquisition of jurisdiction over her person; that petitioner’s
_______________
16 Id., at p. 231.
17 Id.
18 CA Rollo, p. 95.
327
VOL. 510, DECEMBER 6, 2006 327

allegations that she did not know what was being served upon her
and that somebody just hurled papers at her were not substantiated
by competent evidence and cannot overcome the presumption of
regularity of performance of official functions in favor of the
Officer’s Return. 19
Petitioner filed a Motion for Reconsideration
20
but the CA denied
it in its Resolution dated October 1, 2002.
Hence, the present petition anchored on the following grounds:
THE COURT OF APPEALS PATENTLY ERRED IN NOT RULING

THAT PETITIONER WAS NOT VALIDLY SERVED WITH SUMMONS.
II
THE COURT OF APPEALS PATENTLY ERRED IN NOT RULING

THAT PETITIONER WAS PREVENTED FROM FILING RESPONSIVE
PLEADING AND DEFENDING AGAINST RESPONDENTS’
21
COMPLAINT BECAUSE OF FRAUD, ACCIDENT AND MISTAKE.
Parties filed their respective Memoranda on September 8 and 9,

2005.
Petitioner argues that summons should have been served through
extraterritorial service since she is a non-resident; that the RTC
should have lifted the order of default since a default judgment is
frowned upon and parties should be given their day in court; that she
was prevented from filing a responsive pleading and defending
against respondents’ complaint through fraud, accident or mistake
considering that the statement in the Officer’s Return that she was
personally
_______________
19 CA Rollo, p. 109.
20 Supra, note 2.
21 Rollo, p. 159.
328

served summons is inaccurate; that she does not remember having

been served with summons during the said date but remembers that
a man hurled some papers at her while she was entering the elevator
and, not knowing what the papers were all about, she threw back the
papers to the man before the elevator closed; that she has a valid and
meritorious defense to refute the material allegations of respondents’
complaint.
On the other hand, respondents contend that petitioner was
validly served with summons since the rules do not require that
service be made upon her at her place of residence as alleged in the
complaint or stated in the summons; that extraterritorial service
applies only when the defendant does not reside and is not found in
the Philippines; that petitioner erred in filing a motion to set aside
the order of default at the time when a default judgment was already
rendered by the RTC since the proper remedy is a motion for new
trial or a petition for relief from judgment under Rule 38; that the
issue on summons is a pure question of law which the CA does not
have jurisdiction to resolve under22
Section 2 (c) of Rule 41 of the
1997 Rules of Civil Procedure.
The Court finds it proper to resolve first whether the issue

involved in the appeal filed with the CA is a question of law and
therefore not within the jurisdiction
23
of the CA to resolve.
In Murillo v. Consul, which was later adopted by the 1997
Rules of Civil Procedure, the Court clarified the three modes of
appeal from decisions of the RTC, namely: (a) ordinary
_______________
22 Section 2.—Modes of Appeal.
xxx
c) Appeal by certiorari.—In all cases where only questions of law are raised or involved,
the appeal shall be to the Supreme Court by petition for review on certiorari in accordance
with Rule 45.
23 Resolution of the Court En Banc in UDK-9748, March 1, 1990.
329
VOL. 510, DECEMBER 6, 2006 329

appeal or appeal by writ of error, where judgment was rendered in a

civil or criminal action by the RTC in the exercise of original
jurisdiction; (b) petition for review, where judgment was rendered
by the RTC in the exercise of appellate jurisdiction; and (c) petition
for review to the Supreme Court.
The first mode of appeal, governed by Rule 41, is taken to the
Court of Appeals on questions of fact or mixed questions of fact and
law. The second mode of appeal, covered by Rule 42, is brought to
the Court of Appeals on questions of fact, of law, or mixed questions
of fact and law. The third mode of appeal, provided for by Rule 45,
is elevated to the Supreme Court only on questions of law.
A question of law arises when there is doubt as to what the law is
on a certain state of facts, while there is a question of fact when
24
the
doubt arises as to the truth or falsity of the alleged facts. For a
question to be one of law, the same must not involve an examination
of the probative
25
value of the evidence presented by the litigants or
any of them. The resolution of the issue must rest solely on what
the law provides on the given set of circumstances. Once it is clear
that the issue invites 26a review of the evidence presented, the question
posed is one of fact. Thus, the test of whether a question is one of
law or of fact is not the appellation given to such question by the
party raising the same; rather, it is whether the appellate court can
determine the issue raised without reviewing or
_______________
24 Olave v. Mistas, G.R. No. 155193, November 26, 2004, 444 SCRA 479, 490;
Western Shipyard Services, Inc. v. Court of Appeals, G.R. No. 110340, May 28, 2001,
358 SCRA 257, 264.
25 Land Bank of the Philippines v. Monet’s Export and Manufacturing
Corporation, G.R. No. 161865, March 10, 2005, 453 SCRA 173, 184; Skippers
Pacific, Inc. v. Mira, 440 Phil. 906, 920; 392 SCRA 371, 382 (2002).
26 Cucueco v. Court of Appeals, G.R. No. 139278, October 25, 2004, 441 SCRA
290, 299; Microsoft Corporation and Lotus Development Corp. v. Maxicorp, Inc.,
G.R. No. 140946, September 13, 2004, 438 SCRA 224, 231.
330

evaluating the evidence, in which 27

case, it is a question of law;
otherwise it is a question of fact.
Respondents’ claim that the issues raised by petitioner before the
CA are pure legal questions is not tenable.
A scrutiny of petitioner’s petition before the CA reveals that it
raised two issues: (a) the propriety of the service effected on a non-
resident; and (b) the validity of the service made upon her. The first
is a question of law. There is indeed a question as to what and how
the law should be applied. The second is a question of fact. The
resolution of said issue entails a review of the factual circumstances
that led the RTC to conclude that service was validly effected upon
petitioner. Therefore, petitioner properly brought the case to the CA
via the first mode of appeal under the aegis of Rule 41.
How may service
28
of summons be effected on a nonresident?
Section 17, Rule 14 of the Rules of Court provides:
“Section 17. Extraterritorial service.—When the defendant does not reside

and is not found in the Philippines and the action affects the personal status
of the plaintiff or relates to, or the subject of which, is property within the
Philippines, in which the defendant has or claims a lien or interest, actual or
contingent, or in which relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the property of the
defendant has been attached in the Philippines, service may, by leave of
court, be effected out of the Philippines by personal service as under section
7; or 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 shall be sent by registered mail to the last known
address of the defendant, or in any other manner the court may deem
sufficient. Any order granting such leave shall spec
_______________
27 Crisologo v. Globe Telecom, Inc., G.R. No. 167631, December 16, 2005, 478
SCRA 433, 441; Central Bank of the Philippines v. Castro, G.R. No. 156311,
December 16, 2005, 478 SCRA 235, 244.
28 Now Sec. 15, Rule 14 of the 1997 Rules of Civil Procedure.
331
VOL. 510, DECEMBER 6, 2006 331

ify a reasonable time, which shall not be less than sixty (60) days after
notice, within which the defendant must answer.”
Under this provision, when the defendant is a nonresident and he is

not found in the country, summons may be served extraterritorially.
There are only four instances when extraterritorial service of
summons is proper, namely: (a) when the action affects the personal
status of the plaintiffs; (b) when the action relates to, or the subject
of which is property, within the Philippines, in which the defendant
claims a lien or interest, actual or contingent; (c) when the relief
demanded in such action consists, wholly or in part, in excluding the
defendant from any interest in property located in the Philippines;
and (d) when the defendant’s property has been attached within the
Philippines. In these instances, service of summons may be effected
by (a) personal service out of the country, with leave of court; (b)
publication, also with leave of court; or (c) any other manner the
court may deem sufficient.
Thus, extrajudicial service of summons apply only where the
action is in rem, that is, an action against the thing itself instead of
against the person, or in an action quasi in rem, where an individual
is named as defendant and the purpose of the proceeding is to
subject his interest therein to the obligation or loan burdening the
property. The rationale for this is that in in rem and quasi in rem
actions, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on 29the court provided that the
court acquires jurisdiction over the res.
Where the action is in personam, that is, one brought against a
person on the basis of her personal liability, jurisdiction over the
person of the defendant is necessary for the court to validly try and
decide the case. When the defendant is a non-resident, personal
service of summons within the
_______________
29 Asiavest Limited v. Court of Appeals, 357 Phil. 536, 554; 296 SCRA 539, 554
(1998); Valmonte v. Court of Appeals, 322 Phil. 96, 106; 252 SCRA 92, 100 (1996).
332

30
state is essential to the acquisition of jurisdiction over the person.
Summons on the defendant must be served by handing a copy
thereof to the defendant
31
in person, or, if he refuses to receive it, by
tendering it to him. This cannot be done, however, if the defendant
is not physically present in the country, and thus, the court cannot
acquire jurisdiction over his person

32
and therefore cannot validly try
and decide the case against him.
In the present case, respondents’ cause of action in Civil Case
No. Q-93-17133 is anchored on the claim that petitioner and her co-
defendants maliciously instituted a criminal complaint before the
NBI and a petition before the SEC which prevented the respondents
from leaving the country and paralyzed the latters’ business
transactions. Respondents pray that actual and moral damages, plus
attorney’s fees, be awarded in their favor. The action instituted by
respondents affect the parties alone, not the whole world. Any
judgment 33therein is binding only upon the parties properly
impleaded. Thus, it is an action in personam. As such, personal
service of summons upon the defendants is essential
34
in order for the
court to acquire jurisdiction over their persons.
The Court notes that the complaint filed with the RTC alleged
that petitioner is a non-resident who is not found in the Philippines
for which reason respondents initially prayed that a writ of
preliminary attachment be issued against her properties within the
Philippines to confer jurisdiction upon the
_______________
30 Banco Do Brasil v. Court of Appeals, 389 Phil. 87, 100; 333 SCRA 545, 557
(2000); The Dial Corporation v. Soriano, G.R. No. L82330, May 31, 1988, 161
SCRA 737, 743.
31 Section 7, Rule 14 of the Revised Rules of Court, now Sec. 15 of Rule 14 of the
1997 Rules of Civil Procedure.
32 Asiavest Limited v. Court of Appeals, supra, at p. 554.
33 Paderanga v. Buissan, G.R. No. 49475, September 28, 1993, 226 SCRA 786,
790.
34 Arcenas v. Court of Appeals, 360 Phil. 122, 130; 299 SCRA 733, 741 (1998).
333
VOL. 510, DECEMBER 6, 2006 333

RTC. However, respondents did not pursue its application for said
writ when petitioner was subsequently found physically present in
the Philippines and personal service of summons was effected on
her.
Was there a valid service of summons on petitioner? The answer
is in the affirmative.
Petitioner’s bare allegation that the statement in the “Officer’s
Return that she was personally served summons is inaccurate” is not
sufficient. A process server’s certificate of service35
is prima facie
evidence of the facts as set out in the certificate. Between the claim
of non-receipt of summons by a party against the assertion of an
official whose duty is to send notices, the latter assertion is fortified
36
by the presumption that official duty has been regularly performed.
To overcome the presumption of regularity of performance of
official functions in favor of such Officer’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 of regularity of performance on the part of
the process server stands.
The Court need not make a long discussion on the propriety of
the remedy adopted by petitioner in the RTC of filing a motion to set
aside the order of default at a time when there was already a
judgment by default. As aptly held by the CA, since petitioner was
not furnished or served a copy of the judgment of default, there was
no notice yet of such judgment as against her. Thus, the remedy of
filing a motion to set aside the order of default in the RTC was
proper.
Petitioner’s argument that the RTC should have set aside the
order of default and applied the liberal interpretation of rules with a
view of affording parties their day in court is not
_______________
35 Romualdez-Licaros v. Licaros, 449 Phil. 824, 836; 401 SCRA 762, 771 (2003);
Spouses Madrigal v. Court of Appeals, 377 Phil. 345, 352; 319 SCRA 331, 337
(1999).
36 Section 3(m), Rule 131 of the Revised Rules on Evidence.
334

tenable. While indeed default orders are not viewed with favor, the
party seeking to have the order of default lifted must first show that
her failure to file an answer or any other responsive pleading was
due to fraud, accident, mistake, or excusable neglect 37and then she
must show that she has a valid and meritorious defense.
In this case, petitioner failed to show that her failure to file an
answer was due to fraud, accident, mistake or excusable neglect.
Except for her bare unsupported allegation that the summons were
only thrown to her at the elevator, petitioner did not present any
competent evidence to justify the setting aside of the order of
default.
Moreover, when a party files a motion to lift order of default, she
must also show that she has a meritorious defense or that38something
would be gained by having the order of default set aside. The term
meritorious defense implies that the applicant has the burden of
proving such a defense in order to have the judgment set aside. The
cases usually do not require such a strong showing. The test
employed appears to be essentially the same as used in considering
summary judgment, that is, whether there is enough evidence to
present an issue for submission to the trier of fact, or a showing
that on the undisputed facts 39it is not clear that the judgment is
warranted as a matter of law. The defendant must show that she
has a meritorious defense otherwise the grant of her motion will

prove to be a useless exercise. Thus, her motion must be
accompanied by a statement of the evidence which she intends to
present if the motion is granted and which is such as to warrant
a reasonable
_______________
37 Section 3 of Rule 18 of the Revised Rules of Court, now Section 3(b) of Rule 9
of the 1997 Rules of Civil Procedure.
38 Villareal v. Court of Appeals, 356 Phil. 826, 846; 295 SCRA 511, 531 (1998);
Carandang v. Hon. Cabatuando, 153 Phil. 138, 153; 53 SCRA 383, 392 (1973).
39 Villareal v. Court of Appeals, supra; RESTATEMENT OF THE LAW, 2d, ON
JUDGMENTS, §67, Comment.
335
VOL. 510, DECEMBER 6, 2006 335

belief that the result40of the case would probably be otherwise if a

new trial is granted.
In the present case, petitioner contented herself with stating in
her affidavit of merit that the cases against 41
respondent Raymond
were filed at the instance of her father. Such allegation is a
conclusion rather than a statement of facts showing a meritorious
defense. The affidavit failed to controvert the facts alleged by the
respondents. Petitioner has not shown that she has a meritorious
defense.
Thus, since petitioner failed to show that her failure file an
answer was not due to fraud, accident, mistake, or excusable
neglect; and that she had a valid and meritorious defense, there is no
merit to her prayer for a liberal interpretation of procedural rules.
WHEREFORE, the instant petition is DENIED. The assailed
Decision and Resolution of the Court of Appeals are AFFIRMED.
Costs against petitioner.
SO ORDERED.
Panganiban (C.J., Chairperson), Ynares-Santiago, Callejo,

Sr. and Chico-Nazario, JJ., concur.
Petition denied, assailed decision and resolution affirmed.
Note.—The rules on the service of summons differ depending on

the nature of the action. An action in personam is lodged against a
person based on personal liability; an action in rem is directed
against the thing itself instead of the person; while an action quasi in
rem names a person as defen-
_______________
40 Villareal v. Court of Appeals, supra; Group Developers and Financiers v.
Policarpio, G.R. No. L-73421, November 29, 1988, 168 SCRA 154, 160.
41 Original Records, p. 178.
336

Roque, Jr. vs. Torres
dant, but its object is to subject that person’s interest in a property to

a corresponding lien or obligation. (Ramos vs. Ramos, 399 SCRA 43
[2003])
——o0o——
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3/24/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 510

320 SUPREME COURT REPORTS ANNOTATED

ERLINDA R. VELAYO-FONG, petitioner, vs. SPOUSES

Remedial Law; Summons; Extrajudicial service of summons apply only

VOL. 510, DECEMBER 6, 2006 321

Process Servers; Presumption of Regularity; To overcome the

322 SUPREME COURT REPORTS ANNOTATED

PETITION for review on certiorari of the decision and resolution of

The facts are stated in the opinion of the Court.

Before the Court is a petition for review on certiorari under Rule 45

1 Penned by Associate Justice Perlita J. Tria-Tirona (now retired) and concurred in

VOL. 510, DECEMBER 6, 2006 323

addressed to petitioner be served to her at Suite 201, Sunset View

324 SUPREME COURT REPORTS ANNOTATED

ﬁnally, on the 23rd day of September, 1993, at the instance of herein

“WHEREFORE, premises considered, judgment is hereby rendered

1. the amount of P65,000.00 as actual damages;

6 Id., at p. 32; the Ofﬁcer’s Return on service of summons on defendant Roberto

VOL. 510, DECEMBER 6, 2006 325

On September 1, 1994, petitioner ﬁled a Motion to Set Aside Order

326 SUPREME COURT REPORTS ANNOTATED

VOL. 510, DECEMBER 6, 2006 327

THE COURT OF APPEALS PATENTLY ERRED IN NOT RULING

THE COURT OF APPEALS PATENTLY ERRED IN NOT RULING

Parties ﬁled their respective Memoranda on September 8 and 9,

328 SUPREME COURT REPORTS ANNOTATED

served summons is inaccurate; that she does not remember having

The Court ﬁnds it proper to resolve ﬁrst whether the issue

22 Section 2.—Modes of Appeal.

23 Resolution of the Court En Banc in UDK-9748, March 1, 1990.

VOL. 510, DECEMBER 6, 2006 329

appeal or appeal by writ of error, where judgment was rendered in a

330 SUPREME COURT REPORTS ANNOTATED

evaluating the evidence, in which 27

“Section 17. Extraterritorial service.—When the defendant does not reside

VOL. 510, DECEMBER 6, 2006 331

Under this provision, when the defendant is a nonresident and he is

332 SUPREME COURT REPORTS ANNOTATED

acquire jurisdiction over his person

VOL. 510, DECEMBER 6, 2006 333

ofﬁcial functions in favor of such Ofﬁcer’s Return, the evidence

334 SUPREME COURT REPORTS ANNOTATED

has a meritorious defense otherwise the grant of her motion will

VOL. 510, DECEMBER 6, 2006 335

belief that the result40of the case would probably be otherwise if a

Panganiban (C.J., Chairperson), Ynares-Santiago, Callejo,

Petition denied, assailed decision and resolution afﬁrmed.

Note.—The rules on the service of summons differ depending on

336 SUPREME COURT REPORTS ANNOTATED

dant, but its object is to subject that person’s interest in a property to

© Copyright 2018 Central Book Supply, Inc. All rights reserved.

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