[ G.R. No. 80127. December 06, 1995 ] 321 Phil. 243
THIRD DIVISION
[ G.R. No. 80127. December 06, 1995 ]
ORIENTAL MEDIA, INC., PETITIONER, VS. HON. COURT OF APPEALS, HON. BENJAMIN V. PELAYO, AS PRESIDING JUDGE OF BRANCH 168, RTC, NCJR, PASIG, METRO MANILA AND VOTRA (PHIL.), INC., RESPONDENTS. D E C I S I O N
MELO, J.:
Assailed and sought to be set aside in the instant petition is the decision of respondent Court of Appeals promulgated on September 28, 1987 dismissing herein petitioner Oriental Media’s petition for certiorari impugning an order and a writ of execution issued by the Regional Trial Court of the National Capital Judicial Region, Branch 168 stationed in Pasig City, in its Civil Case No. 53267, entitled “Votra (Phils.) Inc. vs. Oriental Media, Inc”. The useful background facts of the case as gathered from the record are as follows: In April, 1987, Votra filed the complaint in the aforementioned Civil Case No. 53267 of the Pasig Regional Trial Court against Oriental. Summons in said case was served upon Marlyn Lasaya, the Personnel Assistant-Receptionist of the Evening Post who refused to receive or sign for the summons. The trial court, it appearing that Oriental had failed to file any responsive pleading, entered an order of default and authorized the Acting Branch Clerk of Court to receive Votra’s evidence. On July 8, 1986, the trial court rendered a decision against Oriental, the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered in favor of plaintiff and against the defendant, ordering: 1. Defendant to pay plaintiff the sum of P38,412.19, with interest of 20% per annum until fully paid; 2. Defendant to pay plaintiff the amount equivalent to 25% of the amount stated in No. 1, as and by way of attorney’s fees. Finally, defendant is ordered to pay the costs. a copy of which was received by Oriental on July 25, 1986. On August 1, 1986, Oriental filed a motion praying that the order of default and the decision be reconsidered and set aside and that Oriental be allowed to file its answer, and alleging, among other things, that it had already actually paid its obligation to Votra. Said motion for reconsideration was denied by the trial court on October 9, 1986, with Oriental receiving a copy of the denial order on October 27, 1986. On November 4, 1986, Oriental filed a “Petition for Relief from Judgment”, which was dismissed by the trial court for being premature, in its order dated February 24, 1987. A copy of this order was received by Oriental on March 7, 1987. On March 10, 1987, Votra filed a motion for execution of judgment which was opposed by Oriental. Nonetheless, on May 13, 1987, the trial court issued an order granting the motion for execution. On May 27, 1987, 81 days after receipt of the order dismissing its petition for relief from judgment, Oriental filed before this Court a petition for certiorari (G.R. No. 87534), asserting that : A) Respondent Judge did not acquire jurisdiction over petitioner. Petitioner, being a private domestic corporation, the service of summons upon Marlyn Lasaya, a Personnel Assistant-Receptionist of the Evening Post, who is not among the persons to be served with summons mentioned in Section 13, Rule 14 of the Rules of Court, was insufficient. For this reason, the Order of default on May 15, 1986 stated in the Judgment of default, dated July 8, 1986 Annex A, hereto, the Order denying the motion for reconsideration thereof dated October 9, 1986, Annex B hereto, the Order denying the Petition for Relief from Judgment dated February 24, 1987, Annex D hereto, and the Order granting the motion for the execution of the judgment in the aforesaid Civil Case No. 53267 dated May 13, 1987, Annex G hereto are all null and void and should be set aside; B) The order granting the motion for execution is premature, Annex G, because the decision complained of did not become final and executory at the time the motion for execution was filed by reason of the non-finality of the order denying the Petition for Relief from Judgment; C) Respondent Judge should not have dismissed the Petition for Relief from Judgment but should have considered it, by its nature, as a motion for new trial under Rule 37 of the Rules of Court since pleadings should be liberally construed, and that a possible denial of substantive justice due to technicalities of form should have been avoided; D) Petitioner was denied due process; E) A void decision cannot be executed; and F) A void decision can be attacked collaterally. On September 28, 1987, the Court of Appeals, following the referral of the petition to it for proper action, promulgated its decision dismissing the petition for certiorari on the ground that since Oriental’s motion for reconsideration filed in Civil Case No. 53267 not only questioned the jurisdiction of the court over its person as defendant but also prayed that the order of, and decision by, default be set aside and that it be allowed to file its answer, Oriental must be held to have thereby voluntarily submitted itself to the jurisdiction of the trial court. The motion stated that Oriental had a meritorious defense, i.e., payment of the obligation. The appellate court thus held that Oriental abandoned its special appearance to contest jurisdiction over its person and to have voluntarily submitted itself to the jurisdiction of the court, citing Serrano vs. Pelacio (12 SCRA 447) and Flores vs. Zurbito (37 Phil. 746). Thus, the present petition. Oriental fell into and committed serious procedural lapses which resulted not only in the decision of default becoming final and executory but also in the order dismissing the petition for relief from judgment likewise attaining the character of final and executory order, for which reason both are now beyond the reach and review of any appellate court. The proper procedure that Oriental should have taken was an appeal from the decision of the trial court after Oriental’s motion for reconsideration of the default judgment was denied. The Rules of Court expressly provide that a party who has been declared in default may appeal from the judgment rendered against him. (Section 2, Rule 41, Rules of Court). Petitioners would seem to be under the impression that a judgment rendered in default is immediately executory. This is not true for, said judgment is appealable, although a motion to set aside the order of default, upon the ground of fraud, accident, error, or excusable neglect, was necessary prior to 1964. Respondents’ petition for relief from judgment, dated August 28, 1964, was to that effect. Since January 1, 1964, when the present Rules of Court became effective, even said motion to set aside the order of default has been dispensed with, by explicit provision of the last paragraph of Section 2, Rule 41, of said Rules. (De Guzman vs. Cloribel, 22 SCRA 39, 44 [1968]). Under Rule 41, section 2, paragraph 3, a party who has been declared in default may likewise appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition for relief to set aside the order of default has been presented by him in accordance with Rule 38. (Antonio vs. Jacinto, 14 SCRA 364, 367 [1965] The judgment by default being appealable, Oriental should have perfected its appeal within 15 days from receipt of copy of the order denying its motion for reconsideration of the default judgment (Sec. 29, B.P. Blg. 129; Sec. 19(a), Interim Rules of Court), minus, of course the period expended from receipt of the decision to the filing of the motion for reconsideration. As aforestated, petitioner received a copy of the decision on July 25, 1986, but filed on August 1, 1986, or 7 days thereafter, a motion for reconsideration. The motion was denied in an order dated October 9, 1986, a copy of which was received by petitioner on October 27, 1986. Petitioner, therefore, had until November 5, 1986 within which to perfect an appeal. However, instead of appealing, petitioner filed a petition for relief from judgment on November 4, 1986, which is within the period for appealing. Said petition, as the trial court found, was clearly premature for which reason it was properly dismissed. But more importantly, said petition being the wrong remedial recourse at the time it was filed, did not interrupt the running of the period for appealing. Inevitably, therefore, the judgment by default became final and executory on November 6, 1986. Came then now the second fatal error of Oriental. After the rejection of its petition for relief from judgment, Oriental should have appealed the order of dismissal (Vda. de Borromeo vs. Court of Appeals and Borromeo, 110 Phil. 155 [1960]); Duran vs. Court of Appeals, 84 SCRA 61 [1978]). Despite, however, Oriental’s receipt of the order of dismissal on March 7, 1987, with the period for appealing thus expiring on March 22, 1987, Oriental chose to remain immobile. Oriental began to stir only on May 27, 1987, or 81 long days after receipt of the order of dismissal of its petition for relief, when petitioner filed the instant petition. We have reiterated in many cases that certiorari is not a substitute for appeal (Sy vs. Romero, 214 SCRA 187 [1992]; Aqualine Corporation vs. Court of Appeals, 214 SCRA 307 [1992]; Salas vs. Castro, 216 SCRA 198 [1992]), especially a lost appeal. Certiorari should not be allowed where the petitioner has — or had — other remedies available (Yap vs. Intermediate Appellate Court, 220 SCRA 245 [1993]). The remedies of appeal and certiorari are mutually exclusive and not alternative or successive (Federation of Free Workers vs. Inciong, 208 SCRA 157 [1992]). Petitioner’s resort to the instant petition for certiorari, instead of an appeal, is clearly of its own volition and resolution. There is nothing in the record to show that private respondent misled, prevented, or obstructed petitioner from pursuing an appeal. Surely, there are cases, where certiorari was allowed although appeal was the proper remedy. The Court has in a number of cases given due course to a petition for certiorari although the proper remedy is appeal especially where the equities warrant such recourse and considering that dismissals on technicalities are viewed with disapproval (Rosario vs. Court of Appeals, 211 SCRA 384 [1992]). Where an appeal would not be an adequate remedy under the circumstances, since it would not promptly relieve the petitioner from the injurious effects of the acts of the inferior court or tribunal, e.g., the court has authorized execution of the judgment, a resort to the special civil action of certiorari may exceptionally be allowed (Presidential Commission on Good Government vs. Sandiganbayan, 210 SCRA 138 [1992]), especially so if the petition is filed while the period for appeal has not expired. In the case at bar, there was no urgency or need for Oriental to resort to the extraordinary remedy of certiorari for when it learned of the case and the judgment against it on July 25, 1986, due to its receipt of a copy of the decision by default, no execution had as yet been ordered by the trial court. As aforementioned, Oriental had still the time and the opportunity to file a motion for reconsideration, as was actually done. Upon the denial of its motion for reconsideration in the first case, or at the latest upon the denial of its petition for relief from judgment, Oriental should have appealed. Oriental should have followed the procedure set forth in the Rules of Court for — Rules of procedure are intended to ensure the orderly administration of justice and the protection of substantive rights in judicial and extrajudicial proceedings. It is a mistake to purpose that substantive law and adjective law are contradictory to each other or, as has often been suggested, that enforcement of procedural rules should never be permitted if it will result in prejudice to the substantive rights of the litigants. This is not exactly true; the concept is much misunderstood. As a matter of fact, the policy of the courts is to give effect to both kinds of law, as complementing each other, in the just and speedy resolution of the dispute between the parties. Observance of both substantive rights is equally guaranteed by due process whatever the source of such rights, be it the Constitution itself or only a statute or a rule of court. (Limpot vs. Court of Appeals, 170 SCRA 367; 369-370 [1989].) What makes matters worse is the fact that the instant petition does not seem to limit itself to the dismissal by the Court of Appeals of Oriental’s petition for certiorari contesting the dismissal of Oriental’s petition for relief from judgment, but assails as well the almost decade-old judgment by default rendered in the collection case. We cannot overstress the fact that by filing a motion for reconsideration of the decision of default, yes, by questioning the trial court’s jurisdiction, but fatally, by praying for affirmative reliefs and by putting up defenses against the claim of Votra, specifically the payment of its obligation to Votra, and after the denial of the motion, by filing a petition for relief from judgment, petitioner waived the defense of lack of jurisdiction. We find the appeal untenable. Assuming, arguendo, that the court below originally did not acquire jurisdiction over petitioner Soriano, the latter certainly submitted to it when he filed his first motion for reconsideration and for annulment of previous proceedings on 14 March 1960. Therefore, the denial of that motion, by the order of 19 March 1960, was binding on petitioner Soriano. His counsel, who was served copy of the order of denial On 25 March 1960 (see back of fol. 66, original record of case No. 4534), could have appealed from it. But as no appeal therefrom was perfected within the 30 days immediately following, the order denying reconsideration and annulment of the previous proceedings became final on 25 April 1960. (Soriano vs. Palacio, 12 SCRA, 447, 449 [1964]) 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 said jurisdiction. If the appearance is for any other purpose, the defendant is deemed to have submitted himself to the jurisdiction of the court. Such an appearance gives the court jurisdiction over the person (Flores v. Zurbito, 37 Phil. 746 [1918]). We have likewise ruled that even though the defendant objects to the jurisdiction of the court, if at the same time he alleges any non-jurisdictional ground for dismissing the action, the court acquires jurisdiction over him (Far East International Import and Export Corporation v. Nankai Kogyo, Co., Ltd., 6 SCRA 725 [1962]). (Palma vs. Court of Appeals, 232 SCRA 714, 720 [1994]) The case cited in the dissent of Justice Vitug, La Naval Drug Corporation vs. Court of Appeals, (236 SCRA 78 [1994]), does not seems to find applicability in the present case. The controlling events in La Naval transpired after the occurrence of the essential events in the present case. In the La Naval case, the appointment of the arbitrator was made on May 6, 1989, by respondent therein and on June 5, 1989 by petitioner therein, while in the case at bench, private respondent Votra filed Civil Case No. 53267 in April, 1987. The orders assailed in La Naval were issued on April 26, 1990, and on June 22, 1990, while in the present case, the decision of the trial court was rendered on July 8, 1986, and the decision of respondent Court of Appeals was promulgated on April 28, 1987. The ruling, therefore, in La Naval, which was decided on August 31, 1994 should not be applied retroactively to the present case. Moreover, it should be noted that even if it was held in La Naval that the assertion of affirmative defenses (in a motion to dismiss or in an answer — not in a motion for reconsideration as what happened herein) shall not be construed as an estoppel or as a waiver of want of jurisdiction over the person of the defendant, there was the last intimation that a special appearance questioning jurisdiction may now be dispense with. Stated otherwise, I understand La Naval as holding that a defendant may raise the issue of want of jurisdiction over his person together with affirmative defenses and a prayer for affirmative reliefs, as long as this done, as held in numerous previous cases, in a special appearance. Regretably, however, for petitioner, it did not file a special appearance, but filed instead a motion for reconsideration of the default decision against him. Then too, petitioner squandered its opportunities to question and assail the decision dated July 8, 1986 of the trial court and the order dated February 24, 1987 of the trial court dismissing its petition for relief from judgment. Petitioner, as aforestated, filed a motion for reconsideration of the decision dated February 24, 1987, which was denied by the trial court in its order dated October 9, 1986. After receiving the denial order, petitioner did not avail itself of the right to appeal; rather, a petition for relief from judgment was filed and when said petition was dismissed in the order of February 24, 1987, petitioner did not interpose an appeal therefrom which it had every right to do so. It is now much too late in the day to resort to the present petition to set aside said decision and orders which have become final and executory. There is, thus, no question that the trial court acquired jurisdiction over the person of petitioner Oriental. Perforce, the case cannot be reopened at this late stage. Oriental may explore the feasibility of setting up the alleged discharge of the obligation at the execution stage. WHEREFORE, the petition is hereby DENIED. SO ORDERED. Feliciano, (Chairman), Romero, and Panganiban, JJ., concur. Vitug, J., dissenting opinion.