BOTICANO v CHU (1987)

Paras, J. | Defaults
Petitioner: Eliseo Boticano
Respondent: Manuel Chu
Summary: Petitioner files a complaint for damages against respondent. Respondent was
declared in default. On appeal, respondent argues that service of summons on his wife
at their dwelling instead of on himself personally was improper. Court rules that
jurisdiction over the person of the defendant was properly acquired. It also discussed the
different effects of appealing the default judgment, which depends on whether or not the
party has asked the RTC to set aside the declaration of default.
Doctrine: If an appeal is made without first asking the RTC to set aside the declaration of
default, and the appellate court sets aside said declaration, all he can get is a review of
the RTC's default judgment without the opportunity of having the higher court consider
defense evidence. But if the defendant first asks the RTC to set aside the declaration of
default, and he is able to prevail, the declaration will be set aside, and he will now have
the opportunity to present his evidence in the RTC. Thus, even if he finally loses in the
RTC's subsequent decision, his defense can be considered when appeal is made to the
appellate tribunal.
Facts
 Boticano’s truck was hit by Chu’s. The latter agreed to shoulder the repair. When
Chu failed to comply, a complaint for damages was filed in CFI Nueva Ecija against
Chu and driver Sigua.
 Summons was returned unserved for Sigua, while another copy of the summons
for Chu was returned duly served on him thru his wife Veronica at his home.
 Petitioner moved to dismiss the case against Sigua and to declare Chu in default
for failure to file responsive pleadings within the reglementary period. The motion
was granted, allowing petitioner to adduce his evidence ex parte.
 CFI ruled for Boticano. Chu filed an appeal, raising the issue of jurisdiction over
his person for the first time. He argues that service of said summons on the wife
of private respondent at their dwelling instead of on private respondent himself
personally was improper. CA agreed and ordered the case be remanded. Boticano
files petition for review on certiorari to SC.
Issues, Ratio
Was jurisdiction over the person of defendant properly acquired? YES
 Question of jurisdiction over the person of the defendant cannot be raised for the
first time on appeal.
 While the failure to question the lower court's jurisdiction may not be accounted
against Chu for he was declared in default (and hence he was given no chance to
 participate in the court deliberations), he could have done so in the subsequent
pleadings he filed.
 Besides, even assuming that such failure cannot be taken against him, the fact is
he had VOLUNTARILY submitted himself to the court's jurisdiction.
o He filed a Notice of Appeal, Appeal Bond, Motion for Extension of Time to
File Record on Appeal, Record on Appeal, Motion for Withdrawal of
Appearance, Notice of Appearance and Opposition to Plaintiff's Motion to
Dismiss Appeal and for Issuance of a Writ of Execution. Not only did he
submit pleadings and motions, he likewise appeared in person thru counsel
and orally argued in open court on the pending incident.
o Under Section 23, Rule 14 of the Rules of Court, the defendant's voluntary
appearance in the action shall be equivalent to service.
 Chu also insists that there was no valid service of summons because private
respondent is a partner and general manager in San Pedro Sawmill.
Consequently, the wife of private respondent to whom summons and complaint
were allegedly served cannot receive the same under Section 13 of Rule 14.
o But the title of the case both in the trial court, in the CA and in this Court
shows that the partnership is not a party. And Chu himself assumed the
responsibility of the accident and is now estopped to disclaim.

If the defendant in the RTC has been declared in default, may he appeal the default
judgment that may subsequently be rendered even if he has not asked the RTC to set
aside the declaration of default? YES, but the effect depends.
 A. If an appeal is made without first asking the RTC to set aside the declaration of
default, and the appellate court sets aside said declaration, all he can get is a
review of the RTC's default judgment without the opportunity of having the higher
court consider defense evidence (because no evidence was even adduced by him
in the RTC).
 B. If the defendant first asks the RTC to set aside the declaration of default, and
he is able to prevail, the declaration will be set aside, and he will now have the
opportunity to present his evidence in the RTC. Thus, even if he finally loses in the
RTC's subsequent decision, his defense can be considered when appeal is made
to the appellate tribunal.
 There is no question that summons was timely issued and received by private
respondent. He never denied actual receipt of such summons but confined himself
to the argument that the sheriff should prove that personal service was first made
before resorting to substituted service.

GRANTED. CFI decision, reinstated.