G.R. No. 73531. April 6, 1993.
DOLORES DELOS SANTOS, NICOLAS DELOS SANTOS and RICARDO DELOS SANTOS, petitioners, vs. HON. JUDGE CAMILO MONTESA, JR. and JUANA DELOS SANTOS, respondents.

FACTS

Private respondent Juana delos Santos filed a suit for desahucio (ejectment) against petitioners Dolores, Nicolas, and Ricardo delos Santos, alleging ownership of a portion of Lot 39 covered by Original Certificate of Title No. U-7924, which petitioners occupied. Summons was served through substituted service upon petitioners’ mother after the process server failed to locate them. Petitioners failed to answer, leading to a judgment under the rules on summary procedure, ordering them to vacate the lot, pay reasonable rental from 1985, and pay attorney’s fees and costs. Upon learning of the decision, petitioners filed a motion for reconsideration, arguing that they were not served notice of barangay conciliation or summons, that they occupied a different lot (Lot No. 3568 owned by Nicolas), and that Dolores’ husband should have been impleaded. The motion was denied. On appeal, the Regional Trial Court granted private respondent’s motion for execution pending appeal due to petitioners’ failure to post a supersedeas bond. Petitioners then filed this petition, claiming deprivation of their day in court.

ISSUE

1. Whether the service of summons was valid.
2. Whether petitioners voluntarily submitted to the court’s jurisdiction.
3. Whether the factual claim of occupying a different lot is reviewable.
4. Whether execution pending appeal was properly granted without prior notice to petitioners.

RULING

1. On service of summons: The Court noted that the proof of service did not indicate impossibility of personal service, a condition for substituted service. However, any defect in service was cured when petitioners’ counsel filed a motion for reconsideration and later appealed to impede execution. Such actions constitute voluntary appearance equivalent to service of summons under Section 23, Rule 14 of the Revised Rules of Court, absent a clear protest against the court’s jurisdiction.
2. On voluntary submission: The motion for reconsideration cannot be treated as a special appearance solely challenging invalid service of summons because it raised additional grounds, such as failure to state a cause of action due to alleged bypass of barangay conciliation. Thus, petitioners voluntarily submitted to the court’s jurisdiction.
3. On factual claim: Petitioners’ claim that they occupy a different lot is a factual question not reviewable under Rule 45, which allows only questions of law. Their notice of appeal stated the grievance would focus “fully on a question of law,” barring the Court from examining factual premises.
4. On execution pending appeal: Petitioners’ argument that execution pending appeal was ordered without prior notice is without merit. The duty to serve notice lies with the prevailing party moving for execution under Section 2, Rule 39 of the Revised Rules of Court, not the court. The record shows private respondent served the motion by personal delivery on petitioners’ counsel.
The petition was dismissed for lack of merit, and the restraining order issued on April 28, 1986 was lifted.