G.R. No.

L-13105

August 25, 1960

G.R. No. 12502!

August 12, 2002

LUCINA BAITO, plaintiff-appellant, vs. ANATALIO SARMIENTO, defendant-appellee. Failing to secure a reconsideration of the order entered by the Court of First Instance of Samar that dismissed her complaint for support on the ground that it has no jurisdiction, the amount demanded as support being only P7 !, the plaintiff "ucina #aito appeals from the order, contending that the Court has jurisdiction over the action she brought against her husband $natalio Sarmiento. %he only &uestion then to determine is' (hich court has jurisdiction over an action for support if the amount claimed or demanded as support is only P7 !, or not more than P ,!!! )no( P*,!!!+. %he appellant contends that regardless of the amount claimed or demanded jurisdiction is vested e,clusively in Courts of First Instance, because an action for support is not capable of pecuniary estimation. -n the other hand, the appellee maintains that as the demand for support is only P7 ! and not more than P ,!!! )no( P*,!!!+, a justice of the peace or municipal court has jurisdiction over the case. $n action for support does not involve the determination of the amount to be given as support, but also the relation of the parties, the right to support created by the relation, the needs of the claimant, the financial resources of the person from (hom the support is sought, all of (hich are not capable of pecuniary estimation. For this reason, an action for support falls (ithin the original jurisdiction of Courts of First Instance under section ..)a+ of /epublic $ct 0o. 12, as amended by /epublic $ct 0o. 234. %he order appealed from is set aside and the case is remanded to the Court from (hence it came for further proceedings in accord (ith la(, (ithout pronouncement as to costs. Paras, C.J., Bengzon, Bautista Angelo, Labrador, Barrera and Gutierrez David, JJ., concur.

ANITA MANGILA, petitioner, vs. COURT O" A##EALS $%& LORETA GUINA, respondents. CAR#IO, J.: T'( C$s( %his is a petition fore revie( on certiorari under /ule .* of the /ules of Court, see5ing to set aside the 6ecision3of the Court of $ppeals affirming the 6ecision of the /egional %rial Court, #ranch 3!7, Pasay City. %he trial court upheld the (rit of attachment and the declaration of default on petitioner (hile ordering her to pay private respondent P3!1,472.1* plus 37 percent interest per annum, * percent attorney8s fees and costs of suit. T'( "$)ts Petitioner $nita 9angila ):petitioner: for brevity+ is an e,porter of sea foods and doing business under the name and style of Seafoods Products. Private respondent "oreta ;uina ):private respondent: for brevity+ is the President and ;eneral 9anager of $ir S(ift International, a single registered proprietorship engaged in the freight for(arding business. Sometime in <anuary 3177, petitioner contracted the freight for(arding services of private respondent for shipment of petitioner8s products, such as crabs, pra(ns and assorted fishes, to ;uam )=S$+ (here petitioner maintains an outlet. Petitioner agreed to pay private respondent cash on delivery. Private respondent8s invoice stipulates a charge of 37 percent interest per annum on all overdue accounts. In case of suit, the same invoice stipulates attorney8s fees e&uivalent to * percent of the amount due plus costs of suit.4 -n the first shipment, petitioner re&uested for seven days (ithin (hich to pay private respondent. >o(ever, for the ne,t three shipments, 9arch 37, . and 43, 3177, petitioner failed to pay private respondent shipping charges amounting to P3!1, 472.1*..

REYES, .B.L., J., concurring' I concur not only for the reasons stated in the majority opinion but also for the additional reason that the complaint being one to recover future support as (ell as past support overdue, the amount involved is not capable of pecuniary estimation at this time, because it depends on the lifetime of the parties and many other factors and circumstances not appearing in the complaint.

6espite several demands, petitioner never paid private respondent. %hus, on <une 3!, 3177, private respondent filed Civil Case 0o. *77* before the /egional %rial Court of Pasay City for collection of sum of money. -n $ugust 3, 3177, the sheriff filed his Sheriff8s /eturn sho(ing that summons (as not served on petitioner. $ (oman found at petitioner8s house informed the sheriff that petitioner transferred her residence to Sto. 0i?o, ;uagua, Pampanga. %he sheriff found out further that petitioner had left the Philippines for ;uam.* %hus, on September 34, 3177, construing petitioner8s departure from the Philippines as done (ith intent to defraud her creditors, private respondent filed a 9otion for Preliminary $ttachment. -n September 2, 3177, the trial court issued an -rder of Preliminary $ttachment2 against petitioner. %he follo(ing day, the trial court issued a @rit of Preliminary $ttachment.

%he trial court granted the re&uest of its sheriff for assistance from their counterparts in /%C, Pampanga. %hus, on -ctober 7, 3177, Sheriff $lfredo San 9iguel of /%C Pampanga served on petitioner8s household help in San Fernando, Pampanga, the 0otice of "evy (ith the -rder, $ffidavit and #ond.7 -n 0ovember 7, 3177, petitioner filed an =rgent 9otion to 6ischarge $ttachment7 (ithout 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. >ence, petitioner claimed the court had not ac&uired jurisdiction over her person.1 In the hearing of the =rgent 9otion to 6ischarge $ttachment on 0ovember 33, 3177, private respondent sought and (as granted a re-setting to 6ecember 1, 3177. -n that date, private respondent8s counsel did not appear, so the =rgent 9otion to 6ischarge $ttachment (as deemed submitted for resolution.3! %he trial court granted the 9otion to 6ischarge $ttachment on <anuary 34, 3171 upon filing of petitioner8s counter-bond. %he trial court, ho(ever, did not rule on the &uestion of jurisdiction and on the validity of the (rit of preliminary attachment. -n 6ecember 2, 3177, private respondent applied for an alias summons, (hich the trial court issued on <anuary 31, 3171.33 It (as only on <anuary 2, 3171 that summons (as finally served on petitioner.3 -n February 1, 3171, petitioner filed a 9otion to 6ismiss the Complaint on the ground of improper venue. Private respondent8s invoice for the freight for(arding service stipulates that :if court litigation becomes necessary to enforce collection ,,, the agreed venue for such action is 9a5ati, 9etro 9anila.:34 Private respondent filed an -pposition asserting that although :9a5ati: appears as the stipulated venue, the same (as merely an inadvertence by the printing press (hose general manager e,ecuted an affidavit3. admitting such inadvertence. 9oreover, private respondent claimed that petitioner 5ne( that private respondent (as holding office in Pasay City and not in 9a5ati.3* %he lo(er court, finding credence in private respondent8s assertion, denied the 9otion to 6ismiss and gave petitioner five days to file her $ns(er. Petitioner filed a 9otion for /econsideration but this too (as denied. Petitioner filed her $ns(er32 on <une 32, 3171, maintaining her contention that the venue (as improperly laid. -n <une 2, 3171, the trial court issued an -rder setting the pre-trial for <uly 37, 3171 at 7'4! a.m. and re&uiring the parties to submit their pre-trial briefs. 9ean(hile, private respondent filed a 9otion to Sell $ttached Properties but the trial court denied the motion. -n motion of petitioner, the trial court issued an -rder resetting the pre-trial from <uly 37, 3171 to $ugust ., 3171 at 7'4! a.m.. -n $ugust ., 3171, the day of the pre-trial, the trial court issued an -rder37 terminating the pre-trial and allo(ing the private respondent to present evidence ex-parte on September 3 , 3171 at 7'4! a.m.. %he -rder stated that (hen the case (as called for pre-trial at 7'43 a.m., only the counsel for private respondent appeared. =pon the trial court8s second call ! minutes later, petitioner8s counsel (as still no(here to be found. %hus, upon motion of private respondent, the pre-trial (as considered terminated. -n September 3 , 3171, petitioner filed her 9otion for /econsideration of the -rder terminating the pretrial. Petitioner e,plained that her counsel arrived * minutes after the second call, as sho(n by the transcript of stenographic notes, and (as late because of heavy traffic. Petitioner claims that the lo(er

court erred in allo(ing private respondent to present evidence ex-parte since there (as no -rder considering the petitioner as in default. Petitioner contends that the -rder of $ugust ., 3171 did not state that petitioner (as declared as in default but still the court allo(ed private respondent to present evidence e,-parte.37 -n -ctober 2, 3171, the trial court denied the 9otion for /econsideration and scheduled the presentation of private respondent8s evidence ex-parte on -ctober 3!, 3171.1 p!i1.n"t -n -ctober 3!, 3171, petitioner filed an -mnibus 9otion stating that the presentation of evidence exparte should be suspended because there (as no declaration of petitioner as in default and petitioner8s counsel (as not absent, but merely late. -n -ctober 37, 3171, the trial court denied the -mnibus 9otion.31 -n 0ovember !, 3171, the petitioner received a copy of the 6ecision of 0ovember 3!, 3171, ordering petitioner to pay respondent P3!1,472.1* plus 37 percent interest per annum, * percent attorney8s fees and costs of suit. Private respondent filed a 9otion for A,ecution Pending $ppeal but the trial court denied the same. T'( Ru*+%g o, t'( Cou-t o, A..($*s -n 6ecember 3*, 311*, the Court of $ppeals rendered a decision affirming the decision of the trial court. %he Court of $ppeals upheld the validity of the issuance of the (rit of attachment and sustained the filing of the action in the /%C of Pasay. %he Court of $ppeals also affirmed the declaration of default on petitioner and concluded that the trial court did not commit any reversible error. Petitioner filed a 9otion for /econsideration on <anuary *, 3112 but the Court of $ppeals denied the same in a /esolution dated 9ay !, 3112. >ence, this petition. T'( Issu(s %he issues raised by petitioner may be re-stated as follo(s' I. @>A%>A/ /ASP-06A0% C-=/% A//A6 I0 0-% >-"6I0; %>$% %>A @/I% -F $%%$C>9A0% @$S I9P/-PA/"B ISS=A6 $06 SA/CA6D II. @>A%>A/ %>A/A @$S $ C$"I6 6AC"$/$%I-0 -F 6AF$="%D III. @>A%>A/ %>A/A @$S I9P/-PA/ CA0=A. IC. @>A%>A/ /ASP-06A0% C-=/% A//A6 I0 6AC"$/I0; %>$% PA%I%I-0A/ IS -#"I;A6 %- P$B P3!1, 472.1*, P"=S $%%-/0AB8S FAAS. !

T'( Ru*+%g o, t'( Cou-t Improper Issuance and Service of Writ of Attachment Petitioner ascribes several errors to the issuance and implementation of the (rit of attachment. $mong petitioner8s arguments are' first, there (as no ground for the issuance of the (rit since the intent to defraud her creditors had not been establishedD second, the value of the properties levied e,ceeded the value of private respondent8s claim. >o(ever, the cru, of petitioner8s arguments rests on the &uestion of the validity of the (rit of attachment. #ecause of failure to serve summons on her before or simultaneously (ith the (rit8s implementation, petitioner claims that the trial court had not ac&uired jurisdiction over her person and thus the service of the (rit is void. $s a preliminary note, a distinction should be made bet(een issuance and implementation of the (rit of attachment. It is necessary to distinguish bet(een the t(o to determine (hen jurisdiction over the person of the defendant should be ac&uired to validly implement the (rit. %his distinction is crucial in resolving (hether there is merit in petitioner8s argument. %his Court has long settled the issue of (hen jurisdiction over the person of the defendant should be ac&uired in cases (here a party resorts to provisional remedies. $ party to a suit may, at any time after filing the complaint, avail of the provisional remedies under the /ules of Court. Specifically, /ule *7 on preliminary attachment spea5s of the grant of the remedy "at the commencement of the action or at any time thereafter." 3 %his phrase refers to the date of filing of the complaint (hich is the moment that mar5s :the commencement of the action.: %he reference plainly is to a time before summons is served on the defendant, or even before summons issues. In Davao Light & Po er !o." Inc. v. !ourt of Appea#s" this Court clarified the actual time (hen jurisdiction should be had' :It goes (ithout saying that (hatever be the acts done by the Court prior to the ac&uisition of jurisdiction over the person of defendant - issuance of summons, o-&(- o, $tt$)'/(%t $%& 0-+t o, $tt$)'/(%t - these do not and cannot $ind and affect the defendant unti# and un#ess %urisdiction over his person is eventua##y o$tained $y the court" either by service on him of summons or other coercive process or his voluntary submission to the court8s authority. >ence, (hen the sheriff or other proper officer commencesi#ple#entation of the (rit of attachment, it is essential that he serve on the defendant not only a copy of the applicant8s affidavit and attachment bond, and of the order of attachment, as e,plicitly re&uired by Section * of /ule *7, but also the su//o%s addressed to said defendant as (ell as a copy of the complaint ,,,.: )Amphasis supplied.+ Furthermore, (e have held that the grant of the provisional remedy of attachment involves three stages' first, the court issues the order granting the applicationD second, the (rit of attachment issues pursuant to the order granting the (ritD and third, the (rit is implemented. &or the initia# t o stages" it is not necessary that %urisdiction over the person of the defendant $e first o$tained. 1o0(2(-, once the imp#ementation of the rit commences" the court must have ac&uired jurisdiction over the defendant for (ithout such jurisdiction, the court has no po(er and authority to act in any manner against the defendant. $ny order issuing from the Court (ill not bind the defendant. 4 In the instant case, the @rit of Preliminary $ttachment (as issued on September 7, 3177 and implemented on -ctober 7, 3177. 'o ever" the a#ias summons as served on#y on January 26, ()*) or a#most three months after the imp#ementation of the rit of attachment.

%he trial court had the authority to issue the @rit of $ttachment on September 7 since a motion for its issuance can be filed :at the commencement of the action.: >o(ever, on the day the (rit (as implemented, the trial court should have, previously or simultaneously (ith the implementation of the (rit, ac&uired jurisdiction over the petitioner. Bet, as (as sho(n in the records of the case, the summons (as actually served on petitioner several months after the (rit had been implemented. Private respondent, nevertheless, claims that the prior or contemporaneous service of summons contemplated in Section * of /ule *7 provides for e,ceptions. $mong such e,ceptions are :(here the summons could not be served personally or by substituted service despite diligent efforts or (here the defendant is a resident temporarily absent therefrom , , ,.: Private respondent asserts that (hen she commenced this action, she tried to serve summons on petitioner but the latter could not be located at her customary address in Eamuning, FueGon City or at her ne( address in ;uagua, Pampanga. . Furthermore, respondent claims that petitioner (as not even in PampangaD rather, she (as in ;uam purportedly on a business trip. Private respondent never sho(ed that she effected substituted service on petitioner after her personal service failed. "i5e(ise, if it (ere true that private respondent could not ascertain the (hereabouts of petitioner after a diligent in&uiry, still she had some other recourse under the /ules of Civil Procedure. %he rules provide for certain remedies in cases (here personal service could not be effected on a party. Section 3., /ule 3. of the /ules of Court provides that (henever the defendant8s :(hereabouts are un5no(n and cannot be ascertained by diligent in&uiry, service may, by leave of court, be effected upon him by publication in a ne(spaper of general circulation , , ,.: %hus, if petitioner8s (hereabouts could not be ascertained after the sheriff had served the summons at her given address, then respondent could have immediately as5ed the court for service of summons by publication on petitioner. * 9oreover, as private respondent also claims that petitioner (as abroad at the time of the service of summons, this made petitioner a resident (ho is temporarily out of the country. %his is the e,act situation contemplated in Section 32, 2 /ule 3. of the /ules of Civil Procedure, providing for service of summons by publication. In conclusion, (e hold that the alias summons belatedly served on petitioner cannot be deemed to have cured the fatal defect in the enforcement of the (rit. %he trial court cannot enforce such a coercive process on petitioner (ithout first obtaining jurisdiction over her person. %he preliminary (rit of attachment must be served after or simultaneous (ith the service of summons on the defendant (hether by personal service, substituted service or by publication as (arranted by the circumstances of the case. 7 %he subse&uent service of summons does not confer a retroactive ac&uisition of jurisdiction over her person because the la( does not allo( for retroactivity of a belated service. Improper +enue Petitioner assails the filing of this case in the /%C of Pasay and points to a provision in private respondent8s invoice (hich contains the follo(ing' :4. If court litigation becomes necessary to enforce collection, an additional e&uivalent )sic+ to *H of the principal amount (ill be charged. %he agreed venue for such action is 9a5ati, 9etro 9anila, Philippines.: 7

#ased on this provision, petitioner contends that the action should have been instituted in the /%C of 9a5ati and to do other(ise (ould be a ground for the dismissal of the case. @e resolve to dismiss the case on the ground of improper venue but not for the reason stated by petitioner. %he /ules of Court provide that parties to an action may agree in (riting on the venue on (hich an action should be brought. 1 >o(ever, a mere stipulation on the venue of an action is not enough to preclude parties from bringing a case in other venues.4! %he parties must be able to sho( that such stipulation is ex$lusive. %hus, absent (ords that sho( the parties8 intention to restrict the filing of a suit in a particular place, courts (ill allo( the filing of a case in any venue, as long as jurisdictional re&uirements are follo(ed. Cenue stipulations in a contract, (hile considered valid and enforceable, do not as a rule supersede the general rule set forth in /ule . of the /evised /ules of Court.43 In the absence of &ualifying or restrictive (ords, they should be considered merely as an agreement on additional forum, not as limiting venue to the specified place.4 In the instant case, the stipulation does not limit the venue e,clusively to 9a5ati. %here are no &ualifying or restrictive (ords in the invoice that (ould evince the intention of the parties that 9a5ati is the :only or e,clusive: venue (here the action could be instituted. @e therefore agree (ith private respondent that 9a5ati is not the only venue (here this case could be filed. 0evertheless, (e hold that Pasay is not the proper venue for this case. =nder the 3117 /ules of Civil Procedure, the general rule is venue in personal actions is :(here the defendant or any of the defendants resides or may be found, or (here the plaintiff or any of the plaintiffs resides, at the election of the plaintiff.:44 %he e,ception to this rule is (hen the parties agree on an e,clusive venue other than the places mentioned in the rules. #ut, as (e have discussed, this e,ception is not applicable in this case. >ence, follo(ing the general rule, the instant case may be brought in the place of residence of the plaintiff or defendant, at the election of the plaintiff )private respondent herein+. In the instant case, the residence of private respondent )plaintiff in the lo(er court+ (as not alleged in the complaint. /ather, (hat (as alleged (as the postal address of her sole proprietorship, $ir S(ift International. It (as only (hen private respondent testified in court, after petitioner (as declared in default, that she mentioned her residence to be in #etter "iving Subdivision, Para?a&ue City. In the earlier case of %& v. '&son (nterprises, )n$.,4. the reverse happened. %he plaintiff in that case (as %yson Anterprises, Inc., a corporation o(ned and managed by 6ominador %i. %he complaint, ho(ever, did not allege the office or place of business of the corporation, (hich (as in #inondo, 9anila. @hat (as alleged (as the residence of 6ominador %i, (ho lived in San <uan, /iGal. %he case (as filed in the Court of First Instance of /iGal, Pasig. %he Court there held that the evident purpose of alleging the address of the corporation8s president and manager (as to justify the filing of the suit in /iGal, Pasig instead of in 9anila. %hus, the Court ruled that there (as no &uestion that venue (as improperly laid in that case and held that the place of business of %yson Anterpises, Inc. is considered as its residence for purposes of venue. Furthermore, the Court held that the residence of its president is not the residence of the corporation because a corporation has a personality separate and distinct from that of its officers and stoc5holders. In the instant case, it (as established in the lo(er court that petitioner resides in San Fernando, Pampanga4*(hile private respondent resides in Para?a&ue City.42 >o(ever, this case (as brought in Pasay City, (here the business of private respondent is found. %his (ould have been permissible had

private respondent8s business been a corporation, just li5e the case in %& v. '&son (nterprises, )n$. >o(ever, as admitted by private respondent in her Complaint47 in the lo(er court, her business is a sole proprietorship, and as such, does not have a separate juridical personality that could enable it to file a suit in court.47 In fact, there is no la( authoriGing sole proprietorships to file a suit in court.41 $ sole proprietorship does not possess a juridical personality separate and distinct from the personality of the o(ner of the enterprise..! %he la( merely recogniGes the e,istence of a sole proprietorship as a form of business organiGation conducted for profit by a single individual and re&uires its proprietor or o(ner to secure licenses and permits, register its business name, and pay ta,es to the national government..3 %he la( does not vest a separate legal personality on the sole proprietorship or empo(er it to file or defend an action in court.. %hus, not being vested (ith legal personality to file this case, the sole proprietorship is not the plaintiff in this case but rather "oreta ;uina in her personal capacity. In fact, the complaint in the lo(er court ac5no(ledges in its caption that the plaintiff and defendant are "oreta ;uina and $nita 9angila, respectively. %he title of the petition before us does not state, and rightly so, Anita *angila v. Air % i+t )nternational, but rather Anita *angila v. Loreta Guina. "ogically then, it is the residence of private respondent ;uina, the proprietor (ith the juridical personality, (hich should be considered as one of the proper venues for this case. $ll these considered, private respondent should have filed this case either in San Fernando, Pampanga )petitioner8s residence+ or Para?a&ue )private respondent8s residence+. Since private respondent )complainant belo(+ filed this case in Pasay, (e hold that the case should be dismissed on the ground of improper venue. $lthough petitioner filed an =rgent 9otion to 6ischarge $ttachment in the lo(er court, petitioner e,pressly stated that she (as filing the motion (ithout submitting to the jurisdiction of the court. $t that time, petitioner had not been served the summons and a copy of the complaint..4 %hereafter, petitioner timely filed a 9otion to 6ismiss.. on the ground of improper venue. /ule 32, Section 3 of the /ules of Court provides that a motion to dismiss may be filed :I@Jithin the time for but before filing the ans(er to the complaint or pleading asserting a claim.: Petitioner even raised the issue of improper venue in his $ns(er.* as a special and affirmative defense. Petitioner also continued to raise the issue of improper venue in her Petition for /evie(.2 before this Court. @e thus hold that the dismissal of this case on the ground of improper venue is (arranted. %he rules on venue, li5e other procedural rules, are designed to insure a just and orderly administration of justice or the impartial and evenhanded determination of every action and proceeding. -bviously, this objective (ill not be attained if the plaintiff is given unrestricted freedom to choose (here to file the complaint or petition..7 @e find no reason to rule on the other issues raised by petitioner.1 p!i1.n"t 31ERE"ORE, the petition is GRANTE4 on the grounds of improper venue and invalidity of the service of the (rit of attachment. %he decision of the Court of $ppeals and the order of respondent judge denying the motion to dismiss are RE5ERSE4 and SET ASI4E. Civil Case 0o. *77* is hereby dismissed (ithout prejudice to refiling it in the proper venue. %he attached properties of petitioner are ordered returned to her immediately. SO OR4ERE4.