LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. EMEDIES OF A OF A P ARTY DECLARED ARTY DECLARED IN DEFAULT R EMEDIES OTERO V T AN TERO V T GR NO. 200134 A UGUST 15, 2012
i.
"f the same same shou should ld prove prove insuf insuffi ficie cient nt to &ust &ustif ify y a &udgment for the plaintiff, the complaint must be dismissed. ii. And if a favorab favorable le &udgmen &udgmentt is &ustif &ustifiab iable, le, it cannot cannot exceed in amount or be different in *ind from what is prayed for in the complaint.
Facts A complaint for collection of sum of money and damages was filed by Tan before the MTCC CDO against against Otero. Despite receipt of summons summons and a copy of the said complaint, Otero failed to file his answer. Tan filed a motion to declare Otero in default, which the court granted. Tan was allowed to present his evidence ex parte. MTCC rendered a decision directing Otero to pay his debt and damages. Otero filed an appeal before TC, averring that he had been deprived of due process. TC affirmed the MTCC decision. Otero!s Motion for reconsideration had been denied. Otero filed a petition for review before the CA. The CA dismissed the petition. "t held that any defense which Otero may have against Tan!s claim is already waived due to Otero!s failure to his answer, despite being duly served with summons and his voluntary appearance in court.
LCD the statement of account was merely hearsay as the genuineness and due execution execution of the same were not established established,, given that during the ex parte presentation of evidence, Tan did not present anyone who could attest that the statement of account were genuine and duly executed. +onetheless, the Court found for Tan. The statement of accounts, while inadmissible are mere summaries, that do not disprove Otero!s liability. liability. The testimonies testimonies of his employees employees also established that Otero do not pay whenever he drops by tan!s etron outlet to buy the petroleum products. -astly, both the MTCC and TC gave credence to Tan!s testimony. N&t"s
Iss!" Did the Court of Appeal err in ruling that by virtue of default, Otero is barred from alleging alleging whatever defenses he may have against Tan i.e. due execution and authenticity of the statements of account#
%.
#"$% $es. %. '.
a defendant defendant who was was declared declared in default default may neverthe nevertheless less appeal appeal from the &udgement by default albeit on different grounds. (hile itit may be said said that by by defaulting, defaulting, the the defendant defendant leaves leaves himself himself at the mercy of the court, the rules nevertheless see to it that any &udgment against him must be in accordance with the evidence re)uired by law. a. The The evid eviden ence ce of the the plai plaint ntiff iff,, pres presen ente ted d in the the defen defenda dant nt!s !s absence, cannot be admitted if it is basically incompetent. b. Althou Although gh the defend defendant ant would would not be in a position position to ob&ect, ob&ect, elementary &ustice re)uires that only legal evidence should be considered against him.
'.
A defendant defendant who fails fails to file an answer answer may, may, upon motion, motion, be declared declared by by the court in default. a. -oss of standing standing in court, court, the the forfeiture forfeiture of one!s one!s right right as a party party litiga litigant, nt, contest contestant ant or legal legal advers adversary ary,, is the conse)uence of an order of default. b. A party in defaul defaultt loses loses his right right to present present his defen defense, se, control the proceedings, and examine or crossexamine witnesses. c. /e has no right right to expe expect ct that that his his pleadi pleading ngss would would be acted upon by the court nor may be ob&ect to or refute evidence or motions filed against him "n -ina v. CA, et al.,%0 this Court enumerated the remedies available to party who has been declared in default, to wit1 a.
The defendant defendant in in default default may, may, at any time after after discovery discovery thereof and before &udgment, file a motion, under oath, to set aside the order of default default on the ground ground that that his failure to answer was due to fraud, accident, mista*e or
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO.
b.
c.
d.
5.
9.
excusable neglect, and that he has meritorious defenses2 34ec 5, ule %67 "f the &udg &udgme ment nt has alread already y been been rendere rendered d when when the defendant discovered the default, but before the same has become final and executory, he may file a motion for new trial under 4ection %3a7 of ule 582 "f the defenda defendant nt discovered discovered the default default after after the &udgm &udgment ent has become final and executory, he may file a petition for relief under 4ection ' of ule 562 and /e may also appea appeall from the &udgmen &udgmentt rendered rendered against against him as contrary to the evidence or to the law, even if no petiti petition on to set aside the order order of default default has been been presented by him. 34ec. ', ule 9%7%:3;mphasis ours7
"ndeed, "ndeed, a defending defending party declared declared in default default retains retains the right right to appeal appeal from the &udgment by default. a. /owever, /owever, the grounds grounds that may may be raised raised in in such an appeal appeal are restricted to any of the following1 i. first, first, the failure failure of the plainti plaintiff ff to prove the materi material al allegations of the complaint2 ii. second, second, the decision decision is contrary contrary to law2 law2 and iii. third, the the amount amount of &udgment &udgment is excessi excessive ve or different different in *ind from that prayed for.%8 b. "n these these cases, the appella appellate te tribunal tribunal should should only only consider consider the pieces of evidence that were presented by the plaintiff during the ex parte presentation of his evidence. A defendant defendant who who has been been declared declared in default default is precluded precluded from raising raising any other ground in his appeal from the &udgment &udgment by default default since, otherwise, he would then be allowed to adduce evidence in his defense, which right he had lost after he was declared in default.%6 a. "ndeed, "ndeed, he is proscrib proscribed ed in the the appellate appellate tribunal tribunal from adducing adducing any evidence to bolster his defense against the plaintiff!s claim.
ILING AND SERVICE OF PLEADINGS AND LEADINGS AND 'UDICIAL P APERS FILING AND
D(sc!ss t)" *!$" &+ a-"+t &/ %&c"t /""s. (hen (hen an action action is filed, filed, the filing filing must be accomp accompani anied ed by the payment payment of re)uisite doc*et and filing fees.
1 Nestle P!l!""!#es $ FY S%#s I#& GR N%. 1'(7)( M*+ ', -((.
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. 4ervice of pleading is the act of providing a party with a copy of the pleading or paper concerned. D(st(+!(s) /($(+ /*& s"*(c" &/ $"a%(+s. =iling is the act of presenting the pleading of other papers to the cler* of court whereas service of pleadings refers to the act of providing a party with a copy of the pleading or paper concerned. 6)at a*" a"*s *"7!(*"% t& " /($"% a+% s"*"% %. '. 5. 9. 0. :. 8. 6. >. %?.
&udgme nt r eso lut io n order pleading subse)uent to the complaint written motion notice a pp ea ra nc e demand offer of &udgement similar papers.
0. :.
&u dgm en ts2 other papers.
#& (s s"*(c" !&+ a a*t- a%" (/ )" (s *"*"s"+t"% - c&!+s"$ %.
"f a party has appeared by counsel, service upon him shall be made upon his counsel, or one of them a. unless service upon the party himself is ordered by the court. '. (here one counsel appears for several parties, he shall be entitled to &+" c&- of any paper served upon him by the opposite side. N&t" %.
'.
when a party is represented by counsel, notice should be made upon the counsel of record at his given address '. This may be done personally or by leaving a copy at his office with his cler* or with a person having charge thereof 5. +otice of court processes should be made upon such counsel. +otice upon the party himself is not considered in law unless service upon the party is ordered by the court. Court!s dismissal order of a case does not become final without notice to counsel of record9.
6)at a*" t)" a"*s *"7!(*"% t& " /($"% SERVICE ON COUNSEL IS MANDATORY UNLESS OT#ER6ISE ORDERED 8Y T#E COURT %. '. 5. 9. 0. :. 8.
pleadings a pp ea ra nc es motions notices orders &u dg me nt s all other papers.
IMPROPER SERVICE IS INEFFECTUAL AND DOES NOT 8IND T#E PARTY C A8ILI V 8 ADELLES GR NO. L 91::;< S EPTEM8ER 2=, 1=<2 Facts
6)at a*" t)" a"*s *"7!(*"% t& " s"*"% t& t)" a%"*s" a*t- %. '. 5. 9.
leadings motions2 notic es2 orders2
- UERM E/"l%+ees Ass# $. M!# %0 L*$% GR N% 7'333 A22st 31,14)4. 3 A5*/s%# O6*#*/ E52&*t!%# I#st I#& $ A5*/s%# U#!$ F*&2lt+ E/"l%+ees Ass# GR N%. ))14 N%$e/8e 4 14)4. 9 :*l%* $. Yt%!** )( SCRA
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. @adelles filed before the C=" -anao a petition for )uo warranto to )uestion Cabili!s right to hold office. @adelles! counsel 4an
!*(%(ca$ "+t(t- a+% )as a *"s(%"+t a"+t D"/"+%a+t (s a /&*"(+ *(at"
(ithin %0 days after service of summons, unless a different period is fixed by the Court (ithin %0 days after service of summons
(ithin %0 days after service of summons to said agent or officer
>!*(%(ca$ "+t(t- a+% )as +& *"s(% "+t a " +t ! t )a s a + a"+t &* &//(c"* (+ t)" P# D"/"+%a+t (s a /&*"(+ *(at" >!*(%(ca$ "+t(t- a+% )as +& *"s(% "+t a"+t &* a"+t?&//(c"* S"*(c" &/ s!&+s - !$(cat(&+ N&+9*"s(%"+t %"/"+%a+t t& )& "@t*at"**(t&*(a$ s"*(c" &/ s!&+s (s a%" A+s"* t& a"+%"% c&$a(+t att"* &/ *()tB A+s"* t& a"+%"% c&$a(+t +&t a att"* &/ *()tB T)(*% &* /&!*t) a*tc&$a(+t S!$""+ta$ c&$a(+t
within 5? days after receipt of summons by the home office of the foreign private entity. N&t" summons is served to 4;C, which will then send a copy by registered mail within %? days to the home office of the foreign private corporation (ithin the time specified in the order which shall not be less than :? days after notice +ot less than :? days after notice
(ithin %0 days from service of the amended complaint (ithin %? days counted from notice to the court order admitting the same. As if an original complaint, %0, 5?, or :? days as the case may be within %? days from notice of the order admitting the same, unless a different period is fixed by the court.
N&t" pon motion and on such terms as are &ust, the court may extend the time to plead. The court may also, upon li*e terms, allow an answer or other pleading to be filed a/t"* t)" t(" /(@"% - $a.
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. 4;B"C;
O= -;AD"+4 A+D COT A;4
3OT/;
T/A+ <DM;+T4, ="+A- OD;4, A+D
7!as( (+ *" to ac)uire &urisdiction over "ts purpose is not ac)uire the person of the defendant &urisdiction over the To give no tic e to the defendant but mainly to the constitutional defendant than an action has satisfy been commenced against re)uirement of due process. him
;4O-T"O+47 MA$ @; DO+; @$ 4@4T"TT;D 4;B"C; "= ;4O+A- 4;B"C; A+D 4;B"C; @$ MA"- "4 +OT 4CC;44=-.
4;B"C;
O= <DM;+T4, ="+A- OD;4 A+D ;4O-T"O+4 M4T @; ;4O+A- O @$ ;"4T;;D
MA"- O+-$ 3 O @$ @-"CAT"O+ (/;; 4MMO+4 "4 4;B;D @$ @-"CAT"O+7
4;B"C; M4T @; O+ CO+4;- A4 4;B"C; O+ AT$ "4 (/;; ="+A- OD; O <DM;+T "4 +OT 4;B;D O+ @;COM; ="+A- A+D ;;CTO$ .
+OT ;M"TT;D2 AT$ O -A($; , 4A"D <DM;+T CA++OT
N&t"
SUMMONS
%.
6)at (s S!&+s 4ummons is the writ by which the defendant is notified of the action brought against him0. 6)at (s t)" %!t- &/ t)" C$"* &/ C&!*t !&+ t)" /($(+ &/ t)" c&$a(+t pon the filing of a complaint, the cler* of court shall forthwith issue the corresponding summons to the defendants :. 6)at (s t)" !*&s" &/ s!&+s : The purpose of summons is to ac)uire &urisdiction over the person, to give notice to the defendant that an action has been commenced against him. %. '.
The defendant or respondent is thus put on guard as to the demands of plaintiffs or petitioners. The process is solely for the benefit of the defendant.
Act(&+s (+ "*s&+a
Defects of &urisdiction arising from irregularities in the commencement of the proceedings, defective process or even absence of process may be waived by a failure to ma*e seasonable ob&ections6. a. nli*e the )uestion of &urisdiction over the sub&ect matter which may be invo*ed at any stage of the proceedings, even on appeal, the issue of &urisdiction over t)" "*s&+ must be s"as&+a$- *a(s"% i. it can well be pleaded in a motion to dismiss or an affirmative defense in the answer, otherwise it shall be deemed waived>.
6)at %& -&! %& (/ t)" a&(+t"+t &/ !a*%(a+ a% $(t" )as +&t ""+ attac)"% (+ t)" s!&+s Order new summons with a copy the appointment %?. 6)at (/ t)" s!&+s %&"s +&t )a" a c&- &/ t)" c&$a(+t "f the complaint is not attached, failure to ob&ect is waiver%%. 6)& a- s"*" t)" s!&+s
Act(&+s (+ *" a+%
' Re"28l!& $ D%/!#% GR N%. 17'-44 De&e/8e 19, -(11. 1447 R ULES OF CIVIL PROCEDURE , 2le 19, ;1. 7 1 OSCAR M.
) B*t!&*#% $ C2 :R 19) SCRA '91 =14)7>. 4 Cee6% $ T2*6%#, GR N%. 191'3) M*& -3 -((9. 1( C*st*#%*l $. C*st*#% '1 OG 4(. 11 P**l**# $. B*ll*t*# 13 P.
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. The proper remedy is certiorari. The summons may be served by the sheriff, his deputy, or other proper court officer, of for &ustifiable reasons by any suitable person a!t)&*("% by the court issuing the summons.
N&t" 5.
N&t" %.
olicemen no especially authoriEed by court cannot validly serve summons%'. 9.
T*!" &* /a$s". T)" &t(&+ t& %(s(ss as +&t /($"% s"as&+a$- "ca!s" (t as /($"% "-&+% t)" *"$""+ta*- "*(&%. =alse. The 4tatement would have been absolutely true had there been a valid service of summons. I/ s!&+s as *&+/!$$- s"*"%, s)&!$% t)" cas" " %(s(ss"%
"f the defendant has not been properly summoned, the period to file a motion to dismiss for lac* of &urisdiction over his person does not commence to run until he voluntarily submits himself to the &urisdiction of the court. in substitution of deceased by legal representative, the order of substitution is sufficient. There is no need for summons.
6)"+ a- s!&+s " s"*"% 4ervice of summons may be made at night as well as during the day or even a 4unday or holiday because of its ministerial character%9.
+o. An alias summons can be served on the defendant%5. R ULES
ON SERVICE ARE STRICTLY CONSTRUED , #ENCE
I+ )at (+sta+c"s (s a$(as s!&+s a$(ca$" %. '.
"f a summons is returned without being served on any or all of the defendants2 if summons has been lost.
#& %&"s a$(as s!&+s "t (ss!"% The cler* of court issues the alias summons on demand of the plaintiff, provided any of the instances mentioned above are present. 6)at &!$% " t)" *""%- (+ cas" t)" c&!*t "**&+"&!s$- "@"*c(s"% >!*(s%(ct(&+ t& s&"&+" )& )as +&t ""+ *&"*$- s"*"% (t) s!&+s
ACTIONS PERSONAM
IN
%.
'. ACTIONS
IN
REM OR
UASI
IN
5.
REM
9.
ACTIONS
4ervice
Against residents, service must be personal first then substituted if unsuccessful or publication if whereabouts un*nown or temporarily outside the country. against nonresidents, only personal service within the state can confer &urisdiction over the defendant Against residents, service must be personal first then substituted if unsuccessful or publication if whereabouts un*nown or temporarily outside the country. against nonresidents, only personal service outside the country with leave of court, or publication with leave of court only on those enumerated in the statute is allowed
AGAINST DOMESTIC
'URIDICAL
1- Bell% $ U8% 117 SCRA 41 =14)->. 13 L!#e F!se GMP< $. IAC 1-' SCRA '-7 =14)3>.
19 L*2s $ CA -14 SCRA )) =1443>.
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. PERSONS
ACTIONS AGAINST
4ervice must be on resident agent, government regulator, or of any officers, agents within the country.
FOREIGN
'URIDICAL
the father of Bioleta BenturaEa at 59%' @A Tan 4t @arrio Obrero Tondo Manila, the address of the sps stated in the complaint. =or failure of the sps to answer, MTC ruled in favour of 4enoran. iven that summons cannot be served at the previous address as the sps were no longer around, the deputy sheriff served it on Bioleta BenturaEa in her office at AD@, asay.
ENTITY
N&t" Although as a rule, modes of service of summons are strictly followed in order that the court may ac)uire &urisdiction over the person of the defendant, such procedural modes are liberally construed in )uasi&udicial proceedings. 4ubstantial compliance is considered ade)uate %0. nder sec : ule %5 3 personal service of pleadings and other papers7, personal service includes not only service on the party or counsel, but a$s& leaving a copy with the cler* or person having charge of his office or leaving it with a person of sufficient age and discretion at the party!s or counsel!s residence%:. nder 4ec :, ule %9 3service in person of defendant7, service is made &+$- &+ t)" %"/"+%a+t )(s"$/ 1:. I**"!$a*(t("s in personal service may be cured by proof that the copies have actually been delivered to the defendant, which is e)uivalent to service 3Moran7. +onetheless, actual receipt still has to be timely2 otherwise the defendant is still deprived of due process%6. SPS V ENTURAA V CA GR NO. :::<0 D ECEM8ER 11, 1=;: Facts 4enoran filed a complaint against 4ps BenturaEa with MTC for collection of sums of money. On 60 summons was issued against Augusto 4oan,
1' S*#t%s $ NLRC -'9 SCRA 73 =144> 1
The 4ps filed a motion to set aside the decision and declare the proceedings null and void for lac* of &urisdiction. They allege that since there had been an improper and invalid service of summons i.e. serving it at 59%' @A Tan when they have been living in Aurora 4t, pasay, the court did not ac)uire &urisdiction over them. The motion had been denied. On appeal before the TC, the MTC decision was affirmed with a few modification i.e. lowering of attorney!s fees. A petition for review was filed with the CA. CA only affirmed the lower court!s decision in toto. Iss!" (as summons properly served on the 4ps# #"$% +o. %.
"n %>69 they were actual residents of 59%' @.A. Tan 4t., @arrio Obrero Tondo, and Manila and, as correctly reflected in the %>69 Asian Development @an* Directory. a. /owever, the change of their address, upon their transfer to asay City in April %>60, could not be reflected in the %>606: -DT Telephone Directory i. this directory had already been printed and circulated to the public before their transfer in April %>60 to Aurora 4t. in asay City. b. The copy of the contract of lease dated April %>60 between petitioner omualdo BenturanEa as lessee and -inda alveE as lessor over an apartment unit located at '0%% Aurora 4t., asay City and the affidavit of Augusto 4oan dated '> April %>6: stating that he never told the sheriff that the defendants were
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. residing in his house at 59%' @.A. Tan 4t., @arrio Obrero Tondo, Manila, sufficiently negate the conclusion of the court that summons had been served. '.
pon careful examination of the s)"*(//s R"t!*+ dated %? 60, which purports to serve as proof that summons had been served upon the defendants, together with a copy of the complaint, through Augusto 4oan, +& stat""+t (s a%" t)at a+ "//&*t &* att"t as "@"*t"% t& "*s&+a$$- s"*" t)" s!&+s &+ t)" %"/"+%a+ts a+% t)at t)" sa" )a% /a($"%. a. the eturn does not even indicate the address of 4ps BenturaEa to whom summons was supposed to have been served. b. The presumption of regularity in the performance of official functions by the sheriff is not applicable in this case where it is patent that the sheriffFs return is defective.
3.
"t is only when a defendant can not be personally served with summons within a reasonable time that a substituted service may be availed of, the same to be effected in the following manner1 a. by leaving copies of the summons at the defendantsF dwelling house or residence, with some person of suitable age and discretion then residing therein, or b. by leaving the copies at defendantFs office or regular place of business, with some competent person in charge thereof.
4.
The substituted service should be availed only when the defendant cannot be served promptly in person. a. "mpossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts. b. The statement should be made in the proof of service. c. This is necessary because substituted service is in derogation of the usual method of service.
5.
4ubstituted service is a method extraordinary in character, and hence may be used only as prescribed in the circumstances authoriEed by statute. a. Thus, the statutory re)uirements of substituted service must be followed strictly, faithfully and any substituted service other than authoriEed by the statute is considered ineffective.
<.
=or a substituted service to be valid, summons served at the defendantFs residence must be served at his residence at the time of such service and not at his former place of residence. a. The terms Gdwelling houseG or GresidenceG are generally held to refer to the time of service, i. hence it is not sufficient Gto leave the copy at defendantFs former dwelling house, residence, or place of abode, as the case may be, after his removal therefrom.G ii. They refer to the place where the person named in the summons (s $((+ at t)" t(" )"+ t)" s"*(c" (s
N&t" 1.
2.
nder ule %9 of the ules of Court, there are three 357 methods of service of summons in civil actions, namely1 i. personal service 34ee. 872 ii. substituted service 34ec. 672 and iii. service by publication. b. 4trict compliance with these modes of service is re)uired in order that the court may re)uire &urisdiction over the person of the defendant. c. 4ervice of summons upon the defendant is the means by which the court ac)uires &urisdiction over his person. i. This process is for the benefit of the defendant, and is intended to afford the latter an opportunity to be heard on the claim against him. ii. "n the absence of valid waiver trial and &udgment, without such service, are null and void. "n an action strictly in personam, personal service of summons within the forum is essential to the ac)uisition of &urisdiction over the person of the defendant who does not voluntarily submit himself to the authority of the court.
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO.
b.
a%", even though he may be temporarily out of the country at the time. An effort or attempt should first be made to personally serve the summons and after this has failed, a substituted service may be caused upon the defendant, and the same must be reflected in the proof of service.
The certificate of service of summons by the sheriff is prima facie evidence of the facts set out in such certificate. To overcome the presumption arising from the sheriff!s return, the evidence must be clear and convincing%>. The absence in the sheriff!s return of a statement about the impossibility of personal service %&"s +&t c&+c$!s("$- *&" that the service is invalid'?. %.
'.
proof of prior attempts at personal service may be submitted by the plaintiff during the hearing of any incident assailing the validity of the substituted service'%. while the sheriff!s return carries with it the presumption, albeit disputable, of regularity i.e. the entries are correct, (t %&"s +&t +"c"ssa*($- /&$$& that an act done in relation to the official duty for which the return is made was not done simply because it was not disclosed therein ''.
I&ss(($(t- &/ s"*(c" a- " "sta$(s)"% - "(%"+c" 23. HDwelling houseI or HresidenceI refers to dwelling house at the time of service. They refer to the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the country at that time. @y the terms of the law, plaintiff is not duty bound to see to it that the person upon whom the service was actually made delivers the summons to defendant or informs him about it. The law presumes that for him'9.
14 O%s* $. CA -1 SCRA 37 =144>. -(
S AMARTINO V R AON GR NO. 1314;2 ' ULY 3 2002 Facts aon and Crisostomo instituted a complaint for e&ectment against egalado 4amartino in MTC Cavite. At the time of the service of summons at egalado!s house egalado as +&t home , since he was undergoing treatment and rehabilitation from drug dependency. 4ummons had been served on oberto 4amartino, brother of egalado. On the note, the laiason officer of +@" TC appeared before the court with a certification that egalado cannot answer the complaint within the reglementary period on the ground that he still has six months to complete the program. +otwithstanding the certification, the trial court declared egalado in default. After aon and Crisostomo presented their evidence ex parte, the MTC ruled in their favour. 4ince the &udgement had become final and executory, egalado filed with the TC a petition for relief from &udgement. TC denied the petition, as well as egalado!s motions for reconsideration. egalado filed a petition for certiorari with the CA. the CA only dismissed the petition. Iss!" %. '.
/as there been proper service of summons# Did the court ac)uire &urisdiction over the person of egalado#
#"$% +o. %.
The above return failed to show the reason why personal service could not be made.
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. i. "t failed to state that prompt and personal service on the defendant was rendered impossible. ii. "t was not shown that efforts were made to find the defendant personally and that said efforts failed2 hence the resort to substituted service. b.
As stated above, these re)uirements are indispensable because substituted service is in derogation of the usual method of service. i. "t is an extraordinary method since it see*s to bind the defendant to the conse)uences of a suit even though notice of such action is served not upon him but upon another whom law could only presume would notify him of the pending proceedings.
c.
N&t"s 1.
2. 3.
ii. =or this reason, failure to faithfully, strictly, and fully comply with the re)uirements of substituted service renders said service ineffective.J'?K c.
'.
=urthermore, nowhere in the return of summons or in the records of this case is it shown that petitioners brother, on whom substituted service of summons was effected, was a person of suitable age and discretion residing at petitioners residence
The trial court did not ac)uire &urisdiction over the person of egalado. a.
b.
the service of summons is not only re)uired to give the court &urisdiction over the person of the defendant, but also to afford the latter an opportunity to be heard on the claim made against him. Thus, compliance with the rules regarding the service of summons is as much an issue of due process as of &urisdiction. The essence of due process is to be found in the reasonable opportunity to be heard and submit any evidence one may have in support of his defense.
@efore a person can be deprived of his property, he should first be informed of the claim against him and the theory on which such claim is premised.
The impossibility of personal service &ustifying availment of substituted service should be explained in the proof of service2 why efforts exerted towards personal service failed. a. The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service or Officers eturn2 b. Otherwise, the substituted service cannot be upheld. "t is only under exceptional terms that the circumstances warranting substituted service of summons may be proved by e vidence aliunde. 4ince service of summons, especially for actions in personam, is essential for the ac)uisition of &urisdiction over the person of the defendant, the resort to a substituted service must be duly &ustified. a. =ailure to do so would invalidate all subse)uent proceedings on &urisdictional grounds.
Any &udgment may be annulled based on failure to show in the return impossibility of personal service within a reasonable time'0. ALMONTE V . CA SPS V GR NO 10;53; ' ANUARY 22 1==<
Facts Dimalanta filed a complaint for partition of real property and accounting of rentals against 4ps Alfredo and -ourdes Balmonte who are both residents of >?''' Car*ee* Drive 4outh 4eattle (ashington 4A. 4ummons had been served at edisco Center, nit 5?9, %0:9 A Mabini 4t Manila where Alfredo Balmonte holds office. (hile Alfredo accepted the summons insofar as he is concerned, he refused to receive the summons against his wife, as he was not authoriEe to
-' S+?2&% $. C*st% 17' SCRA 171 =14)4>.
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. .
receive it in her behalf. The process server left without leaving a copy of the summons and complaint for -ourdes. (hile Alfredo filed his answer with counterclaim, -ourdes failed to do the same. Dimalanta moved that -ourdes be declared but the Trial court denied the motion. Dimalanta filed a petition for certiorari, prohibition and mandamus before the CA. CA reversed the lower court!s ruling and declared -ourdes in default.
5.
Iss!" /as -ourdes been properly served with summons# #"$% +o. %.
artition and accounting under ule :>, is in the nature of an action )uasi in rem. 4uch an action is essentially for the purpose of affecting the defendants! interest in a specific property and not to render a &udgment against him.
'. As -ourdes A. Balmonte is a nonresident who is not found in the hilippines, service of summons on her must be in accordance with ule %9, %8. a. 4uch service, to be effective outside the hilippines, must be made either %. by personal service2 '. 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 should be sent by registered mail to the last *nown address of the defendant2 or 5. in any other manner which the court may deem sufficient.
9.
this mode of service must be made outside the hilippines, such as through the hilippine ;mbassy in the foreign country where the defendant resides.J6K
Moreover, there are several reasons why the service of summons on Atty. Alfredo D. Balmonte ca++&t be considered a valid service of summons on -ourdes A. Balmonte. a. 4ervice of summons on Alfredo D. Balmonte was not made upon the order of the court as re)uired by ule %9, %8 and certainly was not a mode deemed sufficient by the court which in fact refused to consider the service to be valid and on that basis declare -ourdes A. Balmonte in default for her failure to file an answer. . service in the attempted manner on -ourdes was not made upon prior leave of the trial court as re)uired also in ule %9, %8. As provided in %> , s!c) $"a" !st " a$("% /&* - &t(&+ (+ *(t(+, s!&*t"% - a//(%a(t &/ t)" $a(+t(// &* s&" "*s&+ &+ )(s ")a$/ a+% s"tt(+ /&*t) t)" *&!+%s /&* t)" a$(cat(&+. c. @ecause there was no order granting such leave, -ourdes was not given ample time to file her Answer which, according to the rules, shall be not less than sixty 3:?7 days after notice. %. "t must be noted that the period to file an Answer in an action against a resident defendant differs from the period given in an action filed against a nonresident defendant who is not found in the hilippines. '. "n the former, the period is fifteen 3%07 days from service of summons, while in the latter, it is at least sixty 3:?7 days from notice. -ourdes did not appoint her husband as her attorneyinfact. a.
Although she wrote private respondent s attorney that all communications intended for her should be addressed to her husband who is also her lawyer at the latters address in Manila, no power of attorney to receive summons for her can be inferred therefrom.
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. .
c. %.
"n fact the letter was written seven months before the filing of this case below, and it appears that it was written in connection with the negotiations between her and her sister, respondent osita Dimalanta, concerning the partition of the property in )uestion. As is usual in negotiations of this *ind, the exchange of correspondence was carried on by counsel for the parties. @ut the authority given to Alfredo in these negotiations certainly cannot be construed as also including an authority to represent her in any litigation.
N&t"s %.
"n action in rem or )uasi in rem, &urisdiction over the person of the defendant is not essential for giving the court &urisdiction so long as the court ac)uires &urisdiction over the res.
'.
(hat gives the court &urisdiction in an action in rem or )uasi in rem is that it has &urisdiction over the res, i.e. the personal status of the plaintiff who is domiciled in the hilippines or the property litigated or attached. a. 4ervice of summons in the manner provided in %8 is not for the purpose of vesting it with &urisdiction but for complying with the re)uirements of fair play or due process, so that he will be informed of the pendency of the action against him and the possibility that property in the hilippines belonging to him or in which he has an interest may be sub&ected to a &udgment in favor of the plaintiff and he can thereby ta*e steps to protect his interest if he is so minded b. 4trict compliance with these re)uirements alone can assure observance of due process. i. That is why in one case,J>Kalthough the Court considered publication in the hilippines of the summons 3against the contention that it should be made in the foreign state where defendant was residing7 sufficient, nonetheless the service was considered insufficient because no copy of the summons was sent to the last *nown correct address in the hilippines.
5.
The cases of De -eon v. /ontanosas and emperle v. 4chen*er were not applied in this case since1 a. The husband was in the con&ugal home when the summons was served, on top of the finding that the wife was only temporarily absent in De leon2 b. The wife had been appointed as her husband!s representative and attorney in fact in emperle.
9.
the period to file an Answer in an action against a resident defendant differs from the period given in an action filed against a nonresident defendant who is not found in the hilippines. a. "n the former, the period is fifteen 3%07 days from service of summons, while in the latter, it is at least sixty 3:?7 days from notice.
1. -. 3. 9.
Ownership of house is synonymous with dwelling ':. 4ubstituted service to wife is valid, but not when they are not residents of the same place'8. 4ervice with only one copy of complaint on two defendants is irregular'6. 4ervice of summons on a coowner of is not binding on the others'>.
Na&$-+ (s t)" s(st"* &/ T""t(". A/t"* )"* %"at), s!&+s as s"*"% &+ )"*. 6as t)"*" a *&"* s"*(c" +one, because there was no representative of +apolyn, hence any proceedings held or &udgment rendered is void. 4ervice of summons upon the defendant is the means by which the court ac)uires &urisdiction over the person. This process is for
- Ae$*l% $. @2!l*t*# 117 SCRA 7(( = 14)->. -7 D**# $. A#&% -( SCRA 11-7 =147>. -) V*l/%#te $. CA -'- SCRA 4- =144>. -4 Bell% $. U8% GR N%. L3(3'3 Se"te/8e 3( 14)-.
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. the benefit of the defendant, and is intended to afford the latter an opportunity to be heard on the claim against him5?. %.
'.
5.
A resident defendant in an action in personam who cannot be personally served with summons may be summoned either by means of substituted service in accordance with ule %9, sec 6 it is when the action in personam is against a +&+9*"s(%"+t %"/"+%a+t who ca++&t " /&!+% (+ t)" P# a+% %&"s +&t &$!+ta*($- s!(t himself to the &urisdiction of / that summons by publication cannot be made upon him for purposes of ac)uiring &urisdiction. a. ersonal service of summons within the state is essential to the ac)uisition of &urisdiction over his person. for service of summons to be valid in actions in personam against a resident defendant who is temporarily outside of the hilippines, the residence !st " at t)" P# at the time of service of summons a. =ormer residence is not sufficient.
Malaysian law. %.
the recognition to be accorded a foreign &udgment is not necessarily affected by the fact that the procedure in the courts of the country in which such &udgment was rendered differs from that of the courts of the country in which the &udgment is relied on.J9'K
'.
ltimately, matters of remedy and procedure such as those relating to the service of summons or court process upon the defendant, the authority of counsel to appear and represent a defendant and the formal re)uirements in a decision are governed by the lex fori or the internal law of the forum,J95K i.e ., the law of Malaysia in this case.
5.
"n this case, it is the procedural law of Malaysia where the &udgment was rendered that determines the validity of the service of court process on private respondent as well as other matters raised by it.
ASIAVEST MERC#ANT 8 ANERS V CA GR NO. 1102<3 ' ULY 20 2001
a.
As to what the Malaysian procedural law is, remains a )uestion of fact, not of law.
Facts
b.
Asiavest sought to enforce the decision of the /igh Court of Malaya ordering +CC to pay 3%7 the indemnity of the performance bond it had put up in favour of +CC to guarantee the completion of the =elda pro&ect and 3'7 the loan it extended to AsiavestCD 4dn @hd for the completion of /anai and Luantan @y ass pro&ect.
"t may not be ta*en &udicial notice of and must be pleaded and proved li*e any other fact. 4ections '9 and '0 of ule %5' of the evised ules of Court provide that it may be evidenced by an official publication or by a duly attested or authenticated copy thereof.
c.
"t was then incumbent upon private respondent to present evidence as to what that Malaysian procedural law is and to show that under it, the assailed service of summons upon a financial officer of a corporation, as alleged by it, is invalid. "t did not.
d.
Accordingly, the presumption of validity and regularity of service of summons and the decision thereafter rendered by the /igh Court of Malaya must stand
+CC )uestions the &udgment insofar as there has been an improper service of summons. Iss!" (hat law determines the matters of remedy and procedure# #"$%
P#ILIPPINE AMERICAN LIFE H GENERAL INSURANCE CO V . 8REVA
3( e!ste $. N*$*% GR N% L-4(7 M*+ 31 1477.
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. GR NO. 14:=3: N OVEM8ER 11, 2004
%.
The complaint was amended after the hil Am filed the motion to dismiss. The trial court even ac*nowledged this when it rendered its order denying the motion to dismiss and ordered the issuance of an alias summons. The ules on Civil rocedure provide that the amended complaint supersedes the complaint that it amends. J'%K
'.
Contrary to the hil Am!s claim, the summons issued on the amended complaint does not become invalid. a. "n fact, summons on the original complaint which has already been served continues to have its legal effect. b. Thus, where the defendant has already been served summons on the original complaint, the amended complaint may be served upon him without need of another summons. i. Conversely, when no summons has yet been validly served on the defendant, new summons for the amended complaint must be served on him.
5.
4ince at the time the complaint was amended no summons had been properly served on hil Am and it had not yet appeared in court, +" s!&+s s)&!$% )a" ""+ (ss!"% &+ t)" a"+%"% c&$a(+t .
Facts Morales filed a complaint for damages and reimbursement of insurance premiums against hilam before the TC. 4ummons was served on hilAms egional Office and received by its "nsurance Officer, uthie @abael. hil Am filed a motion to dismiss on the ground of lac* of &urisdiction over its persons as the said officer was not among the officers upon whom the service of summons may be properly made. Morales filed an amended complaint, alleging that summons and other court processes could also be served in hilam life @uilding + avenue Manila, through its president or any of its officers authoriEed to receive summons. TC denied the MTD and directed the issuance of the alias summons to be served in its main office in Manila. "t held that the improper service of summons is not a ground for dismissal of the complaint, considering that the case was still in its initial state. "t ruled that the remedy was to issue an alias summons served at the principal office of hil Am. hil Am filed a motion for reconsideration, but the lower court denied it. ending resolution of the motion for reconsideration, hil Am received the alias summons together with a copy of the amended complaint. hil Am filed with the CA a petition for certiorari and prohibition.
J'5K
a. The CA dismissed the petition. "t ruled that the trial court should have ordered the issuance of an original summons, not an alias summons. "t also treated the alias summons as a matter of nomenclature, considering that the rationale behind the service of summons to ma*e certain that the corporation would promptly and properly receive notice of the filing of an action against it has been served in this case.
b.
technically, the trial court should have ordered the issuance of an original summons, not an alias summons. J'9K After all, an alias summons is merely a continuation of the original summons.
9.
"n this case, however, there was no sense in issuing an alias summons on the original complaint since the complaint had already been amended. a. The trial court should have instead issued a new summons on the amended complaint.
0.
"t is not pertinent whether the summons is designated as an original or an alias summons as long as it has ade)uately served its purpose. a. (hat is essential is that the summons complies with the re)uirements under the ules of Court and it has been duly served on the defendant together with the prevailing complaint. b. "n this case, the alias summons satisfies the re)uirements under the ules, both as to its content and the manner of service.
Iss!" Did the lower court err when it denied the MTD filed by hil Am# #"$% +o.
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. i.
"t contains all the information re)uired under the rules, and it was served on the persons authoriEed to receive the summons on behalf of the petitioner at its principal office in Manila. ii. Moreover, the second summons was technically not an alias summons but more of a new summons on the amended complaint. iii. "t was not a continuation of the first summons considering that it particularly referred to the amended complaint and not to the original complaint. 8PI V S ANTIAGO GR NO. 1<=11< M ARC# 2; 200:
#"$% yes. %.
the service of summons on @"s @ranch Manager did not bind the corporation for the branch manager is not included in the enumeration of the statute of the persons upon whom service of summons can be validly made in behalf of the corporation. 4uch service is therefore void and ineffectual.
'.
/owev er, !&+ t)" (ss!a+c" a+% t)" *&"* s"*(c" &/ +" s!&+s on %% March '??5, before the (rit of reliminary "n&unction was issued on '? March '??5, )at""* %"/"ct att"+%"% t)" s"*(c" &/ t)" &*((+a$ s!&+s, as *&t$- a+% acc&*%(+$- c!*"%. a. on 8 March '??5, the @ranch Cler* of Court issued a new summons which was properly served upon @"s Corporate 4ecretary on %% March '??5, as evidenced by the 4heriffs eturn. b. The subse)uent service of summons was neither disputed nor was it mentioned by @" except in a fleeting narration of facts and therefore en&oys the presumption that official duty has been regularly performed.J'?K The rocess 4ervers Certificate of 4ervice of 4ummons is a prima facie evidence of facts set out in that certificate
5.
The fact that the original summons was invalidly served is of no moment since &urisdiction over @" was subse)uently ac)uired by the service of a new summons.
Facts 4ps 4antiago and Centrogen filed a complaint see*ing the issuance of TO, in&unction and in the alternative, the annulment of eal ;state Mortgage with @". @" filed a motion to dismiss, claiming that the branch manager of 4ta CruE @ranch is not among those authoriEed to received summons on its behalf. The lower court denied the motion to dismiss and emphasiEed that the nature of the case merited its removal from the purview of 4ection %%, ule %9 of the ules of court. Citing 0 ule 06, the TC declared the order dismissing the MTD valid binding given the presence of extreme urgency. The TC issued an order en&oining the provincial sheriff from proceeding with the extra&udicial of the property sub&ect of real estate mortgage. "t also ordered service of new summons to @" which is to be served at @" head office and received by the corporate secretary. -ater on, the lower court granted the application for the issuance of a writ of reliminary in&unction. pon denial of @"!s motion for reconsideration, it filed a petition for certiorari with the CA. The CA affirmed the orders of the TC. "t also declared that &urisdiction was ac)uired upon the service of new summons. Iss!" Did the trial court ac)uire &urisdiction over @"#
N&t"s %.
Citing hil Am life v @revea A cas" s)&!$% +&t " %(s(ss"% s($- "ca!s" a+ &*((+a$ s!&+s as *&+/!$$- s"*"%. "t should be difficult to conceive, for example, that when a defendant personally appears before a Court complaining
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. that he had not been validly summoned, that the case against him should be dismissed. A+ a$(as s!&+s ca+ " act!a$$- s"*"% &+ sa(% %"/"+%a+t.J '.
There is no hard and fast rule pertaining to the manner of service of summons. ather, substantial &ustice demands that every case should be viewed in light of the peculiar circumstances attendant to each. a.
"n explaining the test on the validity of service of summons,
&urisdiction over Dela ea, an indispensable party, which rendered all the proceedings fatally defective. The CA ruled in favour of Ong and Caballes. CA held that the substituted service of summons was improper absent any showing that Dela ea could not be served personally with summons within a reasonable ti me . 4ince Dela ea is an indispensable party no final determination can be had if the court did not ac)uire &urisdiction over him. 4an edro filed a Motion for econsideration, which had been denied by the CA. Iss!" has the lower court ac)uired &urisdiction over 4an edro# #"$% $es. %.
The civil case is an action to )uiet title. a.
S AN PEDRO V . 6ILLY ONG AND NORMITA C A8ALLES GR NO. 1::5=; O CTO8ER 1:, 200; b. Facts 4an edro filed with the TC a petition for nullification of mortgage with damages against sps +arciso, Dela ea, -andayan, Ong and Caballes. TC issued them summons, directing them to file their a nswers. All but 4ps Dela ea filed their answers. After the sheriff employed substituted service, Dela ea was declared in default. The TC ruled in favour of 4an edro. (ithout filing a motion for reconsideration, Ong and Caballes appealed to the Court of Appeals, citing lac* of
'.
4an edro alleged in his etition in Civil Case +o. 0%0M>> that the mortgages in favor of Ong may, at first, appear valid and effective, but are actually invalid or voidable for having been made without the *nowledge and authority of the spouses +arciso, the registered owners of the sub&ect properties and 4an edros predecessorsininterest. "n as*ing the cancellation of the mortgages on the TCTs of the sub&ect properties, 4an edro was ultimately as*ing the TC to remove a cloud on his title to the same.
i n a ct io ns in rem or )uasi in rem li*e actions to )uiet title, &urisdiction over the person of the defendant is not a prere)uisite to confer &urisdiction on the court provided that the co urt ac)uires &urisdiction over the res , although summons must be served upon the defendant in order to satisfy the due process re)uirements a.
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. i. by the seiEure of the property under legal process, whereby it is brought into actual custody of the law2 or ii. as a *"s!$t &/ t)" (+st(t!t(&+ &/ $"a$ *&c""%(+s, (+ )(c) t)" &"* &/ t)" c&!*t (s *"c&+("% a+% a%" "//"ct(". 5.
0.
The improper service of summons on Dela ea did not void the proceedings for lac* of &urisdiction. "n )uasi in rem proceedings, the court need not ac)uire &urisdiction over the persons of the defendants, for as long as it has ac)uired &urisdiction over the res. a. The defect in the service of summons merely infringed Dela eas right to due process that precluded the TC from rendering a valid &udgment with respect to her personal liability. b. 4ince Dela eas right to due process is personal and pertains to her alone, it could not be invo*ed by her other codefendants so as to escape the &udgment of liability against them.
N&t"s %.
4ummons is a writ by which the defendant is notified of the action brought against him. 4ervice of such writ is the means by which the court may ac)uire &urisdiction over his person. Any &udgment without such service in the absence of a valid waiver is null and void
ersonal service of summons is preferred to substitute service. a. Only if the former cannot be made promptly can the process server resort to the latter. b. Moreover, the proof of service of summons must i. indicate the impossibility of service of summons within a reasonable time2 ii. specify the efforts exerted to locate the defendant2 and iii. state that the summons was served upon a person of sufficient age and discretion who is residing in the address, or who is in charge of the office or regular place of business, of the defendant. c. "t is li*ewise re)uired that the pertinent facts proving these circumstances be stated in the proof of service or in the officers return. d. The failure to comply faithfully, strictly and fully with all the foregoing re)uirements of substituted service renders the service of summons ineffective.
S ANTOS 'R . V PNOC GR NO. 1:0=43 SEPTEM8ER 23, 200; Facts
'.
To provide perspective, it is crucial to determine first whether the action is in personam , in rem, or )uasi in rem because the rules on service of summons under ule %9 of the evised ules of Court apply according to the nature of the action.
5.
According to 4ection :, ule %9 of the evised ules of Court, summons on the defendant in actions in personam 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.J'6K
9.
Meanwhile, in actions in rem or )uasi in rem, &urisdiction over the person of the defendant is not a prere)uisite to confer &urisdiction on the court provided that the court ac)uires &urisdiction over the res , although summons must be served upon the defendant in order to satisfy the due process re)uirements
+OC;C filed a complaint for sum of money against 4antos in TC to collect the unpaid balance of the car loan it advanced while 4antos was still a member of the @oard of directors. ersonal service to 4antos failed, since he could not be located in his last *nown address despite efforts to do so. On +OC!s motion, the trial court allowed service of summons by publication. +OC caused the publication of the summons in emate, a newspaper of general circulation in the hilippines. /e also submitted the affidavit of publication of the advertising manager, and the affidavit of +OC employee who sent the summons by registered mail at 4antos! last *nown address. (hen 4antos failed to file his answer within the reglementary period, +OC moved for the ex parte presentation and formal offer of evidence. The court granted the motion. After the court submitted the case for decision, 4antos filed a n omnibus motion for reconsideration and to admit attached answer. /e pointed out that the
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. affidavit of service failed to comply with sec %> ule %9 of the ules of Court as it was not executed by the cler* of court. /e also claimed that he was denied due process when he was not notified of the +OC!s motion for ex parte presentation of evidence.
i. "t now applies to any action, whether in personam, in rem, or )uasi in rem. '.
no. a.
+OC opposed the motion. "t pointed out that it complied with the rules on service by publication. The court denied 4antos! motion for reconsideration. "t held that the rules did not re)uire the affidavit of complementary service by registered mail to be executed by the cler* of court. "t also noted that due process had been observed as the copy of the order had been mailed to him at his last *nown address. 4antos filed a petition for certiorari before the Court of Appeals. "t only sustained the findings of the lower co urt. Iss!" %. '.
b. "s service of summons by publication proper# is the affidavit of complementary service executed by the cler* of court necessary#
4ervice of summons by publication is proved by the affidavit of the printer, his foreman or principal cler* or of the editor, business or advertising manager of the newspaper which published the summons. i . T he servic e of summons by publicati on is complemented by service of summons by registered mail to the defendants last *nown address. ii. The complementary service is evidenced by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last *nown address. The rules do not re)uire that the affidavit of complementary service be executed by the cler* of court. i. (hile the trial court ordinarily does the mailing of copies of its orders and processes, the duty to ma*e the complementary service is imposed on the party who resorts to service by publication.
#"$% LCD assuming the summons was defective, the court still ac)uired &urisdiction over 4antos because of his voluntary appearance in court. %.
yes. a.
b.
since 4antos could not be personally served with summons despite diligent efforts to locate his whereabouts, +OC;C sought and was granted leave of court to effect service of summons upon him by publication in a newspaper of general circulation. 4antos was properly served with summons by publication. "n contrast to 4antos position that substituted service may only be availed of in an actions in rem, the present rule expressly states that (t a$("s (+ a+- act(&+ where the defendant is designated as an un*nown owner, or the li*e, or whenever his whereabouts are un*nown and cannot be ascertained by diligent in)uiry.
N&t" %.
service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such times as the court may order in any action1 a. where the defendant is designated as an un*nown owner, or the li*e, or b. (henever his whereabouts are un*nown and cannot be ascertained by diligent in)uiry.
'.
this rule applies JiKn any action where the defendant is designated as an un*nown owner, or the li*e, or whenever his whereabouts are un*nown
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. and cannot be ascertained by diligent in)uiry. Thus, it now applies to a+- action, whether in personam , in rem or )uasi in rem .J 5.
The rules do not re)uire that the affidavit of complementary service be executed by the cler* of court. (hile the trial court ordinarily does the mailing of copies of its orders and processes, the duty to ma*e the complementary service by registered mail is imposed on the party who resorts to service by publication.
The companies argue that the lower court did not ac)uire &urisdiction over their persons as the action do not fall to any of the cases contemplated in 4ec %8, ule %9. Iss!" %. '.
4ec %9 3 4ervice upon defendant whose identity or whereabouts are un*nown7 covers two distinguishable situations1 3%7 where the identity of the defendant is un*nown and 3'7 where the address of the defendant is un*nown. a. "t must therefore be shown that the address was un*nown and that such address cannot be ascertained wby diligent in)uiry. 4ection %9 allows summons by publication (+ a+- act(&+. "t is section %0 3extraterritorial service7 in actions against nonresident defendants who cannot be found in the philippines that $((ts s!&+s - !$(cat(&+ &+$- t& act(&+s 7!as( (+ *" a+% (+ *" 31. A6ASAI PORT SERVICE CORPORATION V . AMORES GR NO. L95;340 ' ULY 1< 1==1
Facts C= 4harp "nc filed a complaint for in&unction andor declaratory relief with C=" Manila against 80
31
is the complaint for in&unction andor declaratory relief within the purview of the provisions of 4ec %:, ule %9 of the ules# is the extraterritorial service proper#
#"$% +o. %.
The complaint is an action in personam. a. Monetary obligations do not, in any way, refer to status, lights and obligations. i. (hat is sought is a declaration not only that C= 4harp "nc is a corporation separate and distinct from C.=. 4harp Labushi*i Laisha and therefore, not liable for the latterFs indebtedness. b. there is no action relating to or the sub&ect of which are the properties of the defendants in the hilippines i. where a declaratory &udgment as to a disputed fact would be determinative of issues rather than a construction of definite stated rights, status and other relations, commonly expressed in written instrument, the case is not one for declaratory &udgment ii. a declaratory relief proceeding is unavailable where &udgment would have to be made, only after a &udicial investigation of disputed issues.
&.
there is no action relating to or the sub&ect of which are t)" *&"*t("s &/ t)" corporations in the hilippines i. they merely demanded or attempted to demand from private respondent payment of the monetary obligations of C.=. 4harp L.L., ii. +o action in court has as yet ensued. Berily, the fact that C.=. 4harp hilippines is an entity separate and
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO.
d.
'.
distinct from C.=. 4harp L.L., is a matter of defense that can be raised by the former at the proper time. As regards the prayer for in&unction, "t was not prayed that the corporations be excluded from any property located in the hilippines, nor was it alleged, much less shown, that their properties if any, have been attached.
no. 4ince the complaint does not involve the personal status of plaintiff, nor any property in the hilippines in which defendants have or claim an interest, or which the plaintiff has attached, but purely an action for in&unction, it is a personal action as well as an action in personam , not an action in rem or )uasi in rem . As a personal action, personal or substituted service of summons on the defendants, not extraterritorial service, is necessary to confer &urisdiction on the court.
4ansio hilippines filed a complaint for sum of money and damages against Mogol before MeTC. At the re)uest of 4ansio, the process server of MeTC Manila served the summons and the copy of the complaint on sps Mogol at the courtroom of MeTC Manila @ '9, while they are waiting for the hearing of Alicia Mogol!s case for @ ''. After being informed of the summons and the complaint, counsel of 4ps Mogol too* hold of the summons and complaint and read them. The counsel advised the process server that the summons and copy of the complaint be served only at the address stated in both documents and not anywhere else. The lawyer also advised the sps not receive the documents. The process server indicated the what transpired when he served it and declared the summons HunservedI. 4ansio moved that sps Mogol be declared in default. The sps parried, citing 4ec 5 ule : of the ules. They argued that the service should have been done first in the stated address. They aver that only when it cannot be done within a reasonable time can the process server resort to substituted service.
N&t"s %.
'.
4tatus means a legal personal relationship, not temporary in nature nor terminable at the mere will of the parties, with which third persons and the state are concerned extraterritorial service of summons is proper only in four 397 instances, namely1 a. when the action affects the personal status of the plaintiffs1 b. when the action relates to, or the sub&ect of which is, property within the hilippines, in which the defendant has or claims a lien or interest, actual or contingent2 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 hilippines2 and d. when the defendant nonresidentFs property has been attached within the hilippines.G
MTC declared the sps in default. "t stated that 4ection :, rule %9 does not specify where service is to be effected. 4ince service of summons is made by handing a copy thereof on the defendant in person, it may done whenever the defendant may be found. The return indicating HunservedI should not be ta*en to mean that the sps had not bee n served with summons. After the denial of 4ps M, they filed a petition for certior ari, prohibition andor in&unction before TC. TC dismissed the petition, holding that sec : ule %9 does not mandate that the summons be served strictly at the address provided by the plaintiff in the complaint. "t also added that same provision states that service may be made wherever possible and practicable. On appeal, the Court reversed the findings of the lower courts. "t based its findings on the return of the sheriff stating that the summons are unserved. Iss!"
S ANSIO P#ILIPPINES V . SPOUSES MOGOL 'R . GR NO. 1::00: ' ULY 14, 200=
(as there a valid service of summons#
Facts
#"$%
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. %.
"t is enough that the defendant is handed a copy of the summons in person by anyone authoriEed by law. '. This is distinct from substituted service under 4ection 8, ule %9 of the ules of Court. ii. the fact that the summons was returned to the process server and respondent spouses Mogul subse)uently declined to sign for them did not mean that the service of summons in the persons of respondent spouses was a failure, such that a further effort was re)uired to serve the summons anew. A tender of summons, much less, a substituted service of summons, need no longer be resorted to in this case.
$es. %.
Already accomplished was the operative act of handing a copy of the summons to respondent spouses in person. Thus, &urisdiction over the persons of the respondent spouses Mogol was already ac)uired by the MeTC of Manila, @ranch '0. That being said, the subse)uent act of the counsel of respondent spouses of returning the summons and the copy of the complaint to the process server was no longer material. a. 4ection :, ule %9 of the ules of Court does not re)uire that the service of summons on the defendant in person must be affected only at the latters residence as stated in the summons. . 4aid provision is crystal clear that, whenever practicable, summons shall be served by handing a copy thereof to the defendant2 or if he refuses to receive and sign for it, by tendering it to him. N&t)(+ &*" (s *"7!(*"%. i. the service of the copy of the summons and the complaint inside the courtroom of the MeTC of Manila, @ranch '9 was the most practicable act under the circumstances, and the process server need not wait for respondent spouses Mogol to reach their given address, i.e., at %'%6 Daisy 4t., ;mployee Billage, -ucena City, before he could serve on the latter the summons and the copy of the complaint. ii. Due to the distance of the said address, service therein would have been more costly and would have entailed a longer delay on the part of the process server in effecting the service of the summons. c. Axiomatically, 4ections : and 8 of ule %9 of the ules of Court cannot be construed to apply simultaneously. 4aid provisions do not provide for alternative modes of service of summons, which can either be resorted to on the mere basis of convenience to the parties. i. 4ervice of summons to be done personally does not mean that service is possible only at the defendant!s actual residence.
'.
the reliance to the statement HunservedI in the sheriff!s return is misplaced. a. The facts stated in the first paragraph of the eturn on 4ervice of 4ummons i.e. that the summons and the copy of the complaint were already validly served on the said respondents. They merely refused to receive or obtain a copy of the same were not at all disputed by the respondent spouses Mogol.
N&t"s %.
'.
A summons is a writ by which the defendant is notified of the action brought against him or her. a. "n a civil action, &urisdiction over the defendant is ac)uired either upon a valid service of summons or the defendantFs voluntary appearance in court. b. (hen the defendant does not voluntarily submit to the courtFs &urisdiction, or when there is no valid servic e of summons, any &udgment of the court, which has no &urisdiction o ver the person of the defendant, is null and void ersonal service of summons most effectively ensures that the notice desired under the constitutional re)uirement of due process is accomplished.J'>K The essence of personal service is the handing or
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO.
5.
9.
%.
'.
5.
tendering of a copy of the summons to the defendant himself, J5?K wherever he may be found2 that is, wherever he may be, provided he is in the hilippines nder our procedural rules, service of summons in the persons of the defendants is generally preferred over substituted service.J5'K a. 4ubstituted service derogates the regular method of personal service. "t is an extraordinary method, since it see*s to bind the respondent or the defendant to the conse)uences of a suit, even though notice of such action is served not upon him but upon another whom the law could only presume would notify him of the pending proceedings 4ections : and 8 of ule %9 of the ules of Court cannot be construed to apply simultaneously. 4aid provisions do not provide for alternative modes of service of summons, which can either be resorted to on the mere basis of convenience to the parties. a. 4ervice of summons to be done personally does not mean that service is possible only at the defendant!s actual residence. i. "t is enough that the defendant is handed a copy of the summons in person by anyone authoriEed by law. ii. This is distinct from substituted service under 4ection 8, ule %9 of the ules of Court. 4ervice to be done personally does not mean that service is possible at the defendant!s actual residence. "t is enough that defendant is handed a copy of the summons in person by anyone authoriEed by law5'. This is distinct from substituted service under 4ec 8 ule %9 which re)uires that summons be served at the defendant!s residence in the event personal service is not possible within a reasonable time for &ustifiable reasons55. "n substituted service, the validity of service does not depend upon actual receipt. @ut irregularity in service may be cured by proof of actual receipt.
*.
Thus, where summons was in fact rece ived by the defendant, his
3-
argument that the sheriff should have tried first to serve summons on him personally, before resorting to substituted service of summons to his wife, is not meritorious59. GUIGUINTO CREDIT COOPERATIVE V TORRES GR NO. 1:0=2< S EPTEM8ER 15, 200< Facts uinoguinto Credit filed a complaint before TC for collection of sum of money against its members Torres et al. 4ummons had been served through a certain agtalunan referred to as Torres et al secretary at the given address. uinoguinto filed a motion to declare Torres et al in default, which TC granted. The TC ruled in favour of uinoguinto. The Court of Appeals annulled the &udgment of the court. "t ruled that the -ower Court did not ac)uire &urisdiction over Torres et al, they were not served with summons or voluntarily appeared in court. "t also added that no explanation why resort to substituted service of summons was made, in violation of 4ec : ule %9. Iss!" %. '.
/as summons been properly served# Did the TC ac)uire &urisdiction#
#"$% %.
no. a.
b.
since substituted service was availed of in lieu of personal service, there should be a report stating that agtalunan was one with whom respondents had a relationship of trust and confidence that would ensure that the latter will receive or be notified of the summons issued in their names. the process server hastily and capriciously resorted to substituted service of summons without ascertaining the whereabouts of the respondents.
39 B%t!&*#% $. C2 19) SCRA '91 = 14)7>.
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. c.
'.
4uch service of summons is not binding upon +onilo and 4heryl Ann Torres whose relationship with agtalunan was neither readily ascertained nor ade)uately explained in the eturn of 4ummons. d. Also, no earnest efforts were made to locate respondent Aida Torres who was allegedly wor*ing abroad at the time summons was served on her person. e. +o explanation why substituted service was resorted to through agtalunan was stated in the eturn. f. The eturn of 4ummons by the process server showed that no effort was exerted and no positive step was ta*en to locate and serve the summons personally on respondents. i. (ithout specifying the details of the attendant circumstances or of the efforts exerted to serve the summons, a general statement that such efforts were made will not suffice for purposes of complying with the rules of substituted service of summons. +o. 4ince the substituted service was not validly effected, the trial court did not ac)uire &urisdiction over the persons of the respondents. The order of default, the &udgment by default, the writ of execution issued by it, as well as the auction sale of the respondents properties levied on execution are, therefore, null and void.
N&t"s %.
'.
4uch re)uirements under 4ections : and 8 of ule %9 must be followed strictly, faithfully and fully in order not to deprive any person of his property by violating his constitutional right to due process. T a. he statutory re)uirements of substituted service must be strictly construed since it is an extraordinary method of service in derogation of personal service of summons, availed of only under certain conditions imposed by the ules of Court. b. Any substituted service other than that authoriEed under 4ection 8 is deemed ineffective and contrary to law. (ithout specifying the details of the attendant circumstances or of the efforts exerted to serve the summons, a general statement that such
5.
9.
efforts were made will not suffice for purposes of complying with the rules of substituted service of summons. ersonal service of summons is the mode which must be adopted whenever practicable. "t ought to be effected either by handing a copy thereof to the defendant in person, or if he refuses, by tendering it to him. The precondition that substituted service may be resorted to only if personal service cannot be made within a reasonable time must be strictly followed.
H(ithin a reasonable timeI presupposes that a prior attempt at personal service, within a &ustifiable time frame as would be necessary to bring the defendant within the &urisdiction of the court has failed50. POTENCIANO II V . 8 ARNES GR NO. 15=421 A UGUST 20, 200;. Facts otenciano filed a complaint for damages against @arnes the owner and president of @arnes roup for alleged harassment and maltreatment. Mr. /errera, a representative of ; /iman -aw office secured from the court copies of the complaint with annexes and summons intended for Mr. @arnes. /e indicated that ; /iman was @arnes! counsel. On that date, the deputy sheriff issued a return of summons. otenciano filed a motion to declare @arnes in default. ; /iman -aw office manifested by way of special appearance solely for the purpose of )uestioning the &urisdiction of the court over @arnes, that the law office does not represent @arnes as he has not engaged the services of the law office. /ence, the law office has no authority to bind @arnes. The trial court declared otenciano in default. ; /iman!s motion for reconsideration was denied. 4oon enough, the trial court ruled in favour of otenciano. After @arnes denial of M+T with Diores -aw Offices as counsel, he filed
3'
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. a petition for certirorari, prohibition and mandamus praying for the nullification of the lower court!s decision. The CA granted the petition. The Court of Appeals held that there was no valid service of summons since neither Mr. /errera nor ;. /iman -aw Office was the defendant. (hen Mr. /errera, as a representative of ;. /iman -aw Office, received a copy of the summons, @arnes had not yet engaged the services of ;. /iman -aw Office. The Court of Appeals ruled that the sheriff did not exert any effort to comply with 4ection :, ule %9 of the ules of Court, either by handing a copy of the summons to @arnes in person and should @arnes refuse to receive and sign the summons, by tendering it to him. 4ince there was no valid service of summons on @arnes, the trial court therefore did not ac)uire &urisdiction over @arnes.
'.
'.
+o. a.
b. Iss!" %. '.
/as summons been properly served# Did the TC ac)uire &urisdiction#
#"$% %.
+o. a. b.
c.
There was no service of summons on @arnes himself. There was no attempt whatsoever on the part of the deputy sheriff to serve the summons on @arnes himself, who was the defendant in the complaint. The deputy sheriff &ust handed a copy of the summons, complaint, and the annexes to a certain Mr. /errera who is a representative of ;. /iman -aw Office, which claimed to be the counsel of @arnes. The handing of a copy to Mr. /errera cannot even )ualify as substituted service under 4ection 8 of ule %9. i. "n this case, the deputy sheriff never made any effort to serve the summons on @arnes himself. ii. +either was the copy of the summons served at @arnes! residence nor at his office or regular place of business, as provided under 4ection 8 of ule %9. %. The deputy sheriff &ust handed a copy of the summons to a messenger of ;. /iman -aw
N&t"s
Office who came to the office of the trial court claiming that ;. /iman -aw Office was the counsel of @arnes. iving a copy of the summons to a messenger of a law firm, which was not even the counsel of the defendant, cannot in any way be construed as e)uivalent to service of summons on the defendant.
4ince there was no service of summons on @arnes, the trial court never ac)uired &urisdiction over @arnes and the trial court!s order of default and the &udgment by default are void. There was no voluntary appearance. i. There is no evidence on record that @arnes authoriEed ;. /iman -aw Office to represent him in the case. %. "n fac t, ;. /iman -aw Offic e filed a CommentManifestation to the Motion to Declare Defendant in Default, alleging that @arnes had not yet engaged the services of ;. /iman -aw Office, which could not therefore represent @arnes. '. Thus, the receipt of the summons by ;. /iman -aw Office and its filing of a CommentManifestation to the Motion to Declare Defendant in Default cannot be considered as voluntary appearance on the part of @arnes. ii. "t was only on %0 August '??% that @arnes made his first appearance in the trial court by filing a Motion for +ew Trial through his counsel of record, Diores -aw Offices. The motion was precisely to )uestion the validity of the order of default and the subse)uent &udgment for lac* of &urisdiction over the person of the defendant.
LCD DIGESTS SESSION IV [UNTIL 3.7 OF CIVIL PROCEDURE SYLLABUS] REMEDIAL LAW REVIEW ATTY CUSTODIO. %.
'.
5.
4ervice of summons should be made on the defendant himself. /owever, if for &ustifiable reasons the defendant cannot be served in person within a reasonable time, substituted service of summons is proper. iving a copy of the summons to a messenger of a law firm, which was not even the counsel of the defendant, cannot in any way be construed as e)uivalent to service of summons on the defendant. Other than valid service of summons on the defendant, the trial court can still ac)uire &urisdiction over the defendant by his voluntary appearance,%% in accordance with 4ection '?, ule %9 of the ules of Court.
