Rule 14 Summons

1997 Rules on Civil Procedure 2001 Edition < DRAFT COPY; Please check for errors >
Rule 14 SUMMONS
Rule 14 Summons
Section 1. Clerk to issue summons. Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants. (1a) Ano ang plural ng summons? Meron bang plural yan? Summonses? I think it is still summons, whether singular or plural. The verb is, of course, to summon tawagin mo. Summons is a noun, a legal term. But actually, there is a similarity in meaning because you are being called to answer in a case. Summons in civil cases is the counterpart of warrant of arrest in criminal cases. Under the Rules on Criminal Procedure, when an information is filed in court, the judge will issue a warrant of arrest. In civil cases, when a complaint is filed in court, the court will issue what is known as a summons under Section 1. Section 2 states the contents of a summons: Sec. 2. Contents. The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain: (a) the name of the court and the names of the parties to the action; (b) a direction that the defendant answer within the time fixed by these Rules; (c) a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the summons. (3a) Q: Define Summons. A: SUMMONS it is a writ or process issued and served upon a defendant in a civil action for the purpose of securing his appearance therein. (Ballentines Law Dict., 2nd Ed., p. 1250) Q: What is the purpose of summons? A: The service of summons enables the court to acquire jurisdiction over the person of the defendant. (Echevarria vs. Parsons Hardware, 51 Phil. 980) Q: How does the court acquire jurisdiction over the person of the plaintiff? A: Jurisdiction over the person of the plaintiff is acquired from the moment he files his complaint. Upon filing his complaint in court, he is automatically within the jurisdiction of the court. (MRR Co. vs Atty. Gen. 20 Phil. 523) Q: What is the effect if a defendant is not served with summons? A: The judgment is void. The court never acquired jurisdiction over his person. (Pagalaran vs. Bal-latan, 13 Phil. 135; De Castro vs. Cebu Portland Cement Co., 71 Phil. 479) Q: If a complaint is amended and an additional defendant is included, is there a necessity of issuing new summons on the additional defendant? A: YES. When an additional defendant is included in the action, summons must be served upon him for the purpose of enabling the court to acquire jurisdiction over his person. The case is
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commenced against the additional defendant upon the amendment in the complaint (Fetalino vs. Sanz, 44 Phil. 691) Q: Suppose a defendant, who has already been summoned, died, and there was substitution of party (under Rule 3), his legal representative was substituted in his place, is there a necessity of issuing new summons on the substituted defendant? A: NO. The order of the court ordering him to be substituted is already sufficient. Anyway he is only a continuation of the personality of the original defendant. Just serve the copy of the order, where he is ordered to be substituted. (Fetalino vs. Sanz, 44 Phil. 691) BAR QUESTION: If a defendant is served with summons and later on the complaint is amended by the plaintiff, is there a necessity that another summons be issued and served based on the amended complaint? Or is the summons of the original complaint sufficient? ANS: It depends on whether the amendment was made before or after defendants appearance in the action: Q: What do you mean by the phrase appearance in the action? A: The best example is, whether the defendant files an answer to the complaint. Appearance in civil cases does not mean that you are there and show your face to the judge. That is not the meaning of the word appearance. Appearance means filing something in court which would show that the court has jurisdiction over your person, like the filing of an answer. When the defendant filed an answer through his lawyer, there is now appearance of the defendant. a.) If the defendant has not filed answer to the original complaint there must be another summons issued on the amended complaint. A new summons must be served all over again based on the amended complaint. (Atkins, Kroll & Co. vs. Domingo, 44 Phil. 680) b.) If the defendant has already filed an answer to the original complaint or he has already appeared in the action, and after that the complaint is amended, there is no need of issuing new summons on the amended complaint. (Ibid; Ong Peng vs. Custodio, L-14911, March 1961) Q: Connecting the question with Rule 11 (on periods to file pleadings), suppose the defendant was served with summons on the original complaint and before he could answer, there is now an amended complaint, so there will be new summons on the amended complaint, what is the period to file an answer? A: The period to file an answer is 15 days all over again. there will be another period of 15 days to file an answer to the amended complaint upon receipt of the amended complaint and the summons. Q: Suppose the defendant has already filed an answer to the original complaint and after that there is an amended complaint, what must the plaintiff do? A: This time, there no need of summons. All that the plaintiff has to do is to furnish the defendant a copy of the amended complaint together with the motion to admit it. Just serve the defendant a copy of the amended complaint with a copy of the order admitting the filing of the amended complaint. Q: Suppose that the court allowed the admission of the amended complaint, what is the period for the defendant to file an answer to the amended complaint? A: Going back to Rule 11, ten (10) days only. Ten (10) days, not from the receipt of the amended complaint, but from receipt of the order allowing the amended complaint. 198
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Appearance in an action is best manifested by the filing of an answer by the defendant. However, according to the SC in the case of: PAN ASIATIC TRAVEL CORP. vs. COURT OF APPEALS 164 SCRA 623 HELD: Appearance in the action is not only limited to the filing of an answer. When defendant files a motion for extension of time to file his answer, that is already an appearance in the action. If a defendant files a motion for Bill Of Particulars under Rule 12, that is already considered as an appearance in the action. SEC. 3 By whom served the summons may be served by the sheriff, his deputy, or other proper court officers, or for justifiable reasons by any suitable person authorized by the court issuing the summons (5a) Q: Who can serve summons? Who are authorized by law to serve summons? A: Under Section 3, the following: 1.) Sheriff; 2.) Deputy sheriff; 3.) Other proper court officer (court employees); 4.) For justifiable reasons, by any suitable person authorized by the court NOTE: Policemen cannot validly serve summons unless authorized by court. (Sequito vs. Letrondo, L-11580, July 20, 1959) EXAMPLE: I will sue somebody who is living on top of Mt. Apo. I dont think the sheriff would like to go there. But there are people who go there, like the natives. So Barangay Captain Acelar will be asked to be deputized by the court to serve and he will be taught how to do it. So, he will become a sort of special court officer for that purpose. But there must be a court order. Before, there was a complaint which had to be served in Brgy. Tapak, Paquibato. Have you heard of that place? It is still part of Davao City but I dont think you have been there. To go there you have to pass to Panabo first. You have to get out of Davao City and then re-enter Davao City and then up to certain point land, maglakad na ng isang araw before you can reach that place. Maghorse back ka. Makita mo doon mga natives. I dont think a sheriff would bother to go there. Baka mawala pa siya. He has not even heard of the place. So, he can recommend a barangay captain or a policeman. These are allowed during abnormal situations. SEQUITO vs. LETRONDO L-11580, July 20, 1959 FACTS: The summons was served by a policeman in a remote area and the question that was asked is whether he is authorized. HELD: NO, he is not authorized. The policeman is not a sheriff, he is not a deputy sheriff, and he is not a proper court officer. He belongs to the PNP. And PNP is under the executive branch and not a part of the judiciary.
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However, there is no problem if he is the only one in that area whom we can depend on. All you have to do is get a court order deputizing the police officer. So he will fall under no. 3. But without such court order, he is not among those mentioned in Section 3. Q: When summons is served, lets say, by the sheriff, must it be on a weekday and not on Saturday, Sunday, or holiday, and must be within office hours? Can you challenge the validity of the service of summons on the ground that it was not effected on a working day or during office hours? A: In the case of LAUS vs. COURT OF APPEALS 214 SCRA 688 HELD: The service of summon is valid because the service of summons is MINISTERIAL. Service of summons may be made at night as well as during the day, or even on a Sunday or holiday because of its ministerial character. SEC. 4 Return When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiffs counsel and shall return the summons to the clerk who issued it, accompanied by proof of service (6a) The person who served the summons is the sheriff or his deputy. After that, it is the duty of the sheriff to inform the court what has happened was he able to serve the copy of the complaint, together with the summons to the defendant? If so, on what day? The duty of the sheriff after service of summons is that he should make a report to the court as to what happened. That is what is called a sheriff's return. EXAMPLE: Respectfully returned to the court with the information that defendant was personally served with summons on this date and on this time as shown by his signature on the face of this original copy. Or, Respectfully returned to the court with the information that defendant cannot be served with summons because the defendant had already moved from the address indicated in the complaint and therefore he cannot be located. There must be a report because that will determine when the period to file an answer will start to run. Or, if he failed to serve it for one reason or another, like for example, the defendant is no longer residing in that place and you cannot find him, at least you must also return the summons to the court and make a report that you cannot serve the summon. That is what you call the Sheriffs Return under Section 4, Rule 14. He must also furnish a copy of his report to the plaintiffs lawyer so that the plaintiffs lawyer can determine what is the deadline for the defendant to file his answer. SEC. 5 Issuance of Alias Summons if a summons is returned without being served on any or all of the defendants, the server shall also serve a copy of the return on the plaintiffs counsel, stating the reasons for the failure of service, within five (5) days therefrom, in such case, or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias summons (4a) Now Section 5 contains this new requirement that the serving officer shall also serve a copy of the return on the plaintiff's counsel stating the reasons for the failure of service within 5 days therefrom. Because most sheriff, they did not tell the lawyer what happened eh! They should 200
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tell the lawyer what happened so that if the summons was not served, the lawyer can file a motion for issuance of an alias summons, like he cannot serve the summons because the defendant is not already in the address given, lumipat na. That becomes the problem of the plaintiff and his lawyer. So that is now the requirement. Q: What happens if the summons is returned unserved on any or all of the defendants? A: The server shall serve also a copy of the return on the plaintiffs counsel, stating the reasons for the failure of service Q: For what purpose? A: So that the plaintiffs lawyer will have to look now for the defendant and once he finds the correct address, he has to inform the court of the new address so that a new summons can be issued on the new address. The second summons is what lawyers call an ALIAS SUMMONS if the first summons was lost, upon being informed, the clerk of court will issue another summons known as an ALIAS SUMMONS. MODES OF SERVICE OF SUMMONS TO INDIVIDUAL DEFENDANTS: Now lets go to the general modes on service of summons. This is a very important portion of Rule 14. Q: How is summons served? A: There are three (3) modes of service of summons (on individual defendant): 1.) Section 6 Service in person on defendant; 2.) Section 7 Substituted service (Section 7); and 3.) Sections 14, 15, 16 Service by publication; First Mode: SERVICE IN PERSON (Section 6) SEC. 6. Service in person on defendant Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or if he refuses to receive and sign for it, by tendering it to him (7a) Q: How is service in person done? A: It is effected by (a) handing a copy thereof to the defendant in person, or (b) if he refuses to receive and sign for it, by tendering it to him. The summons must be served in person. This is literal, ha? No substitute to the defendant mismo. Hindi puwedeng ibigay sa asawa, sa anak or sa kasambahay. Q: Do you have to serve it to the defendant in his office or in his house? A: NO. You can serve it wherever he may be found. And the law does not care where to do it. EXAMPLE: I am the sheriff. Im looking for you to serve summons in a case and while walking along New York Street, I saw you inside a restaurant. I entered the restaurant and served the summons there. Then you say, Not here. Give it to me at home. Under the law, service is in person. There is no need for me to go to your house. I can serve the summons wherever I find you.
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Q: Now suppose, normally, you give the copy and you ask him to sign the original summons but he refuses, what will I do? A: I will write here in my return that I saw you, I offered but you refused. That is enough. Under the law, you are served. The court has already acquired jurisdiction over your person. The common impression kasi of laymen na pag hindi tanggapin, walang sabit. No, that is of course false. You cannot defeat a court process by refusing to accept it. May mga sheriff pa nga na bastos: Dili ka magtanggap? Basta ilagay ko ito sa tabi mo, i-report ko sa court na binigyan kita, ayaw mong tanggapin, ayaw mong mag-pirma. And under the law, from that moment, you are bound. So, matakot man yang defendant ba. Kunin niya yun tapos mag-consult siya ng lawyer. Then his lawyer will tell him na he is bound despite his refusal to accept it. Now, under the 1964 rules, this mode of service of summons was called PERSONAL SERVICE. Under the 1997 Rules, the personal service was changed to SERVICE IN PERSON. They just changed the words so that it cannot be confused with Rule 13 because in Rule 13, there is also personal service. But that is not service of summons but service of pleadings, motions, etc. Para huwag magkagulo, the personal service was changed to service in person. Because service under Rule 13 is also personal service to the secretary but here in Rule 14, it is literal. That is to avoid confusion. Dapat pinalitan din iyong Section 7 substituted service because in Rule 13, there is also substituted service. Why did they not change to avoid confusion? Maybe they overlooked it. Second Mode: SUBSTITUTED SERVICE (Section 7) What is substituted service? SEC. 7 Substituted Service If, for justifiable causes, the defendant cannot be served within reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendants residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendants office or regular place of business with some competent person in charge thereof (8a) If the defendant cannot be served personally or in person under Section 6, the sheriff may resort to what is known as SUBSTITUTED SERVICE OF SUMMONS under Section 7. This time, you can course it to somebody else. The place is important and the person to whom you will serve it. On service in person under Section 6, it is immaterial where you find the defendant. Basta ang importante, kung saan mo siya nahuli. For example, you want to catch him on a Sunday because he is in the cockpit, eh di i-serve sa cockpit. Basta importante, in person! Hindi ibig sabihin pupunta ka sa bahay lang. No, dahil mahirap mahuli minsan eh. But if you want resort to substituted service under Section 7), you better have to do it: 1.) at the defendants residence with some person of suitable age and discretion there residing therein. This time, the place is important; or 2.) in his office or regular place of business with some competent person in charge thereof, like the manager or the foreman. So, if I cannot serve you the summons personally, I cannot find you, balik-balik ako hindi kita maabutan. Palagi kang wala sa bahay niyo. But everytime I go there, your wife or husband is around, I can leave the summons with your wife or husband, or the housemaid or houseboy, 202
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provided they are of suitable age and discretion. Puwede sa anak? Yes, again basta of suitable age and discretion. Ang sheriff kailangang tantiyahin din niya. Ito bang anak may buot na ni or wala pa? SEQUIOTO vs. LETRONDO L-11580, July 20, 1959 FACTS: Summons was served by the sheriff on the defendants daughter, a 12-year old and a grade four pupil. The child threw the summons away. The father did not receive the summons, and he was declared in default. HELD: The service of summons is void because defendants daughter, under the circumstances, is not a person of suitable discretion. Q: Suppose, the sheriff goes to the defendants house and says, Is this the residence of Mr. Juan dela Cruz? Yes. Is he around? No, he left for work, but he will be back 5 hours from now. The sheriff left the summons to the wife, sufficient of age and discretion. In other words, the sheriff resorted to substituted service of summons under Section 7. Is there a valid substituted service of summons? Can a sheriff resort to Section 7 (substituted service) immediately? A: NO. Section 7 cannot be applied unless you attempt Section 6 (Service in person). The sheriff has to try several times to reach the defendant in person. Sheriff is not allowed to resort to substituted service without attempting service in person several times. The law is very clear if for the justifiable causes, the defendant cannot be served within a reasonable time So, that is the condition. Q: So what is the condition? A: Substituted service of summons can only be applied by the sheriff if there is failure of personal service within reasonable time for justifiable causes [under Rule 14, Section 7]. So is the wife says, come back tomorrow, so you have to come back tomorrow and you cannot yet serve substituted service of summons. Q: But suppose, the sheriff has gone to your house 5 times, everytime he goes there you are not around, is substituted service of summons allowed? A: YES. I will now serve it on you (through your wife) and that is valid. The law prefers service in person than substituted. Substituted service according to SC, should only be resorted to if there is failure of personal service within reasonable time for justifiable causes. (Mapa vs. CA, 214 SCRA 417) MAPA vs. COURT OF APPEALS 214 SCRA 417 HELD: If a sheriff resorts to substituted service under Section 7 and when he makes his return, his return must specify that I have tried many times to resort to personal service, but he cannot do it. He must outline his efforts to apply Section 6, otherwise the return is defective. Impossibility of prompt service should be shown by stating the efforts failed. This statement should be made in the proof of service. This is necessary because substituted service is in derogation of the usual method of service.
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Now, of course, if I tried several times to serve you personally but I failed, and then I make a return but I did not explain, there is still a valid service but you must explain in court. There is a presumption that you did not exert efforts. To make it a complete return, you must outline several attempts to make personal service. [Substituted service of summons may still be considered as VALID even if the sheriff failed to state in his return of the facts of the impossibility of prompt service if the server subsequently explains in court, by giving testimony, the facts why he resorted to a substituted service. The plaintiff should not be made to suffer for the lapses committed by an officer of the court] TOYOTA CUBAO INC. vs. COURT OF APPEALS October 23, 1997 HELD: A law prescribing the manner in which the service of summons should be effected is jurisdictional in character and its proper observance is what dictates the courts ability to take cognizance of the litigation before it. Compliance therewith must appear affirmatively in the return. It must so be as substitute service is a mode that departs or deviates from the standard rule. Substitute service must be used only in the way prescribed, and under circumstances authorized by law. DISTINCTIONS BETWEEN SERVICE OF PLEADINGS [RULE 13] AND SERVICE OF SUMMONS [RULE 14] Now, do not confuse substituted service of summons under Rule 14 with substituted service of pleadings, orders and other papers under Rule 13. Let us read Section 6, Rule 13: Rule 13, SEC. 6. Personal service. - Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein. (4a) FIRST DISTINCTION: In Rule 13, that is known as personal service. In Rule 14, that is known as substituted service. Service of summons is governed by a different rule (Rule 14) from service of pleadings, judgments and other papers (Rule 13). Now, what is substituted service in Rule 13? Let us go back to Section 8, Rule 13. Rule 13, SEC. 8. Substituted service. - If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery. (6a)
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SECOND DISTINCTION: In Rule 14, substituted service means if you cannot serve the defendant in person, then you serve the summons at the residence of the defendant with some person of suitable age and discretion residing therein or by leaving copies at the defendants office or regular place of business with some competent person in charge thereof. That is substituted service of summons under Rule 14. But in Rule 13, substituted service of other pleadings, judgments, orders, etc., if personal service or service by registered mail have failed, then serve it on the clerk of court. And that is known as substituted service. In Rule 14, there is NO such thing as service of summons through registered mail. So how can a summons be served to a defendant in Manila? The Davao sheriff will mail the summons to the Manila sheriff who will serve the summons to the defendant in Manila. So, iba ang meaning. That is why I am emphasizing this to avoid confusion. Nakakalito, eh because of the similarity of terms. Substituted service of summons in Rule 14 is different from substituted service of pleadings, judgments and other papers in Rule 13. Third Mode: SERVICE OF SUMMONS BY PUBLICATION : (Sections 14, 15, and 16) SERVICE BY PUBLICATION UNDER SECTION 14 (Suing an Unknown Defendant) Going back to Section 9, Rule 13: Rule 13, SEC. 9. Service of judgments, final orders or resolutions. - Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. (7a) Under Rule 13, when a party summoned by publication has failed to appear in the action, meaning the defendant failed to file an answer, the decision can also be served upon him by publication. Q: What are the instances where a defendant may be served with summons by publication? A: Sections 14, 15 & 16 of Rule 14. And the first one is service upon defendant whose identity or whereabouts are unknown. That is what you call suing an unknown defendant. Or, the defendant is known pero hindi na makita. He may be in Davao, Cebu or in Manila. Bali-balita lang. But definitely, he is in the Philippines. That is the important condition. So, let us read Section 14: Sec. 14. Service upon defendant whose identity or whereabouts are unknown. In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, 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 time as the court may order. (16a)
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Under this provision, service of summons is allowed:
Rule 14 Summons
1.) where the defendant is designated as unknown owner. Well, we have discussed that in Rule 3 when you file a case against an unknown defendant is allowed. But of course, he is unknown, you have no idea where he is staying; and 2.) where the defendant is known but his whereabouts are unknown and cannot be ascertained by diligent inquiry. EXAMPLE: If you want to file a case against somebody, and you can no longer find him. You do not know where he moved. Maybe you have been receiving reports that he is in Manila or Cebu but the exact address is unknown and you want to sue him. Q: In the above case, is the plaintiff authorized to have the summons effected by publication? A: Take note that to avail of summons by publication, there must be leave of court. You must file a motion, under Rule 14, for permission to have defendant summoned by publication and the court will issue an order allowing the defendant be served with summons by publication where the complaint and the summons be ordered published. The service may be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. Of general circulation and in such places and for such time as the court may order. Hindi naman kailangan sa Daily Inquirer. Puwede man sa local paper, ba. For example, sabihin mo: We learned that he is in Cebu pero saan sa Cebu, we do not know. The court may order the publication to be published in a local newspaper of general circulation in Cebu. Of course, kasama diyan ang complaint. How many times? Bahala na ang court. Say, tatlong issues. So, every Monday for three weeks. Basta the presumption is mabasa yan ng defendant or at least somebody who must have read it will inform the defendant. So, the law requires that you must file a motion and ask the court to allow service of summons by publication. Now, one thing that you have to remember is, the whereabouts of the defendant is unknown, but he is in the Philippines. That is the condition. If he is in the United States, this will not apply. What is contemplated by Section 14 is that the address of the defendant is unknown but it is positive that he is in the Philippines. ILLUSTRATION: Suppose your friend borrowed money from you. Never paid you and just disappeared and the last time you heard, he is residing somewhere in General Santos City. So you wanted to sue by having the summons under Section 14 because his exact whereabouts is unknown. So you file a motion for leave to serve summons by publication under this rule. The question is, should the court allow it? Of course the tendency is to say yes because his whereabouts is unknown and cannot be ascertained by diligent inquiry. Q: Now what kind of an action is an action to collect an unpaid loan where the defendant cannot be located anymore? A: That is an action in personam. Q: If the defendant is in the Philippines and his whereabouts is unknown and the action is in personam, can the plaintiff resort to service summons by publication? A: In the cases of FONTANILLA vs. DOMINGUEZ 73 Phil. 579
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HELD: In this case, SC said service of summons is possible even if the action is in personam because service by publication when the whereabouts of the defendant is unknown is allowed whether the case is in personam or in rem. It is proper in all actions without distinction provided, the defendant is residing in the Philippines but his identity is unknown or his address cannot be ascertained. So if we will follow this case what will be our answer? YES, because it is allowed in any action without distinction. PANTALEON vs. ASUNCION 105 Phil 755 HELD: NO, because service of summons by publication under this section is allowed only where the action is in rem or quasi in rem, not in personam. In order to bind the defendant there must be service of summons on him. Personal, he must know. But in actions in rem quasi in rem, pwede. It is a well settled rule in constitutional law that an action in personam, personal service of summons within the Philippines (forum) is essential in the acquisition of jurisdiction over the person of the defendant who does not voluntarily submit himself to the authority of the court. In other words, summons by publication is not consistent with the due process clause of the bill of rights because it confers court jurisdiction over said defendant who is not in the Philippines. So service of summons by publication of the defendant who cannot be found in the Philippines will be violative of the due process clause that he must be informed personally. He must be given a chance under due process to be deprived of his property with due process of law. So if we will follow the ruling in this case, the answer would be NO because the action is in personam (collection case). So nag-conflict na. CITIZENS INSURANCE SURETY vs. MELENCIO-HERRERA 38 SCRA 369 ISSUE: What is the remedy if you are a creditor and you want to sue your debtor and serve summons by publication but you cannot do it because your case is in personam? HELD: (Reiterates Pantaleon vs. Asuncion) You convert your case from in personam to in rem or quasi in rem. How? If you cannot find the defendant but he has properties left, you can have that properties attached under Rule 57, Section 1 so that you can acquire a lien over said properties. Now that it is attached, civil action is converted from in personam to quasi in rem because you already acquire a lien over the property so it is quasi in rem. You can now ask the court to effect summons by publication.. The proper recourse for a creditor in the same situation as petitioner is to locate properties, real or personal, of the resident defendant debtor with unknown address and cause them to be attached under Rule 57, Sec. l(f), in which case, the enactment converts the action into a proceeding in rem or quasi in rem and the summons by publication may then accordingly be deemed valid and effective. So kahit isang bisekleta para lang maconvert ang action. MAGDALENA ESTATE INC. vs. NIETO 125 SCRA 758
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SC traced the history of this questionwe reiterate CITIZEN and PANTALEON, the action must be in rem or quasi in rem. [That is why just read this case because it is a complete summary of what the SC said earlier. And of course after it, from time to time, this issue re-surfaces.] CONSOLIDATED PLYWOOD vs. BREVA 166 SCRA 589 (Davao case) HELD: Judge Breva fell into the error of allowing service of summons by publication by allowing it in an ordinary collection case. SC said you cannot do that, the action must be in rem or quasi in rem. Therefore the default judgment was rendered null and void because of lack of proper service of summons to the defendant. Q: What is the important doctrine based from the foregoing cases? A: The SC said that Section 14 can only be availed of when the action is in rem or quasi in rem. If the action is in personam, like of collection of a sum of money, service of summons by publication to the defendant is improper. The action should be action in rem or quasi in rem. Q: Therefore if your action is in personam, like collection of an unpaid obligation, and you cannot find the defendant and you want to avail of Section 14, what is you remedy? A: As explained by the SC, you convert the action to in rem or quasi in rem. How? By looking for any property of the said defendant and have it attached under Rule 57 [i], the last ground for attachment. Now, your action is converted to quasi in rem. You can now file a motion for service of summons by publication. (Pantaleon vs. Asuncion, 105 Phil. 765; Citizens Surety & Insurance Co., vs. Melencio-Herrera, 38 SCRA 369; Magdalena Estate, Inc. vs. Nieto, 125 SCRA 758; Plywood Industries vs Breva, 166 SCRA 589) In all these cases, the SC ruled that to validly serve summons by publication on a defendant who is in the Philippines but whose name is not known or whereabouts is not known, the action must be in rem or quasi in rem. But a minor insignificant amendment to Section 14 has cast doubt on the validity of those doctrine. Why? You read the opening of Section 14: In any action you notice, in any action where the defendant is designated as an unknown You look at the old rules. Can you find the phrase in any action? You look and compare it. Let us look the 1964 Rules: 1964 Rules, Rule 14, SEC. 16 Whenever the defendant is designated as an unknown owner, or the like, or whenever the address of a defendant is unknown and cannot be ascertained by diligent inquiry, 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 time as the court may order. In other words, there is a case and the defendant is unknown, but what kind of cases? It is not stated there (Section 16, old rules). Kaya nga, it was clarified in the cases of MAGDALENA ESTATE, PANTALEON, etc. that the action must be in rem or quasi in rem. But look at the new rule on Section 14 in any action. What does that mean na puwede na ang action in personam? Is the intention of this clause to abrogate the previous ruling in PANTALEON, MAGDALENA ESTATE, CONSOLIDATE PLYWOOD? If that is the intention, we are going 208
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back to the original ruling laid down in the earlier case of FONTANILLA vs. DOMINGUEZ which preceded all the other cases. In the FONTANILLA case, the SC said that service of summons by publication is proper in all actions without distinctions provided the defendant is residing in the Philippines but he is unknown or his address cannot be ascertained. But the FONTANILLA ruling was abrogated by PANTALEON vs. ASUNCION, CITIZENS SURETY, MAGDALENA ESTATE cases. That is why to me, this is a very controversial issue whether Section 14 of Rule 14 applies only to cases in rem or quasi in rem in these decisions or it is now obsolete, or it is now applicable whether in personam or in rem or quasi in rem. Actually, I asked that question in remedial law review. I dont care how they answered it. I just want to find out if they can detect the amendment ba. Pagsabi nila it is only applicable in rem, OK, tama ka. Pagsinabi nila in any action, OK, tama ka rin. Some even said, based on decided cases but there is an amendment in the law, in other words nakita niya. But 70% did not say the issue. Kung ano-anu ang sinagot! 30% saw the point. Some answered based on MAGDALENA, some on FONTANILLA by saying with the amendment, the ruling in MAGDALENA is wala na yan. To my mind, either way, I will take it as a completely correct answer because it is not pointed out what is the really correct answer. So I was wondering what is the meaning of this in any action whether there is an intent to return to the old rule and cancel the rulings in MAGDALENA. To me, this is a question mark. Even Justice Jose Feria, in his note, cannot answer it. Sabi niya, in any action but there is a case, decided in MAGDALENA... He is the author, one of the authors, but he cannot explain the intention. Sabi niya: the SC earlier ruled I asked, but why did you insert that? Kaya to my mind, it is still a question mark. Maybe it is just an inadvertent amendment without any intention to abrogate the ruling in MAGDALENA, PANTALEON, etc. But maybe that is the intention. So, let us wait for the proper case at the right time to find what is the intention of the phrase in any action. BALTAZAR vs. COURT OF APPEALS December 8, 1988 FACTS: Good Earth Enterprises, a domestic corporation was sued. Sheriff went to the address of the corporation but the corporation was no longer there. It moved to another place. Subsequently, the sheriff returned the summons to the court. Plaintiff Baltazar filed a motion for leave to serve the summons and a copy of the complaint upon defendant Good Earth by publication ISSUE: Can there be a proper service by publication in this case? HELD: NO. Service by Publication (Section 14) will not apply because there was no diligent inquiry made by the sheriff. Under Section 14, therefore, petitioner must show that the address of Good Earth was unknown and that such address could not be ascertained by diligent inquiry. More importantly, We do not believe that the acts of the sheriff satisfied the standard of diligent inquiry established by Section 14 of Rule 14. The sheriff should have known what every law school student knows, that Good Earth being a domestic corporation must have been registered with the Securities and Exchange Commission and that the SEC
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records would, therefore, reveal not just the correct address of the corporate headquarters of Good Earth but also the addresses of its directors and other officers. SERVICE BY PUBLICATION UNDER SECTION 15 (Extraterritorial Service) When the defendant is not residing in the Philippines and he is not physically around he must be served with summons even if he is abroad and that is what is called extraterritorial service. We go back to the basic question: Q: Can you sue in the Philippines a defendant who is not residing in the Philippines and who is not around physically? A: NO, you cannot because there is no way for the court to acquire jurisdiction over his person EXCEPT when action is in rem or quasi in rem, like when the action is the personal status of the plaintiff who is in the Philippines or the properties of the defendant are in the Philippines. And the venue is where the plaintiff resides or where the property is situated. That is found in Section 3, Rule 4: Rule 4, SEC. 3. Venue of actions against nonresidents If any of the defendants do not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found. Q: If the defendant who is not around and is not residing in the Philippines can be sued under Rule 4, how will you serve summons? A: This is answered by Section 15: Sec. 15. Extraterritorial service. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or 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 shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (17a) Q: In what instances can you sue in the Philippine courts a defendant who does not reside and is not found in the Philippines? The other way of asking is, when may a defendant be sued and served with summons by extraterritorial service?
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A: Let us break up Section 15. There are four (4) instances when a defendant who does not reside and is not found in the Philippines may be sued and summons served by extraterritorial service, provided the case is in rem or quasi in rem: 1.) the action affects the personal status of the plaintiff; EXAMPLE: A child left behind files a case against his father for compulsory recognition or acknowledgement at least to improve his status because the res is the status of the plaintiff. 2.) when the action relates to or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent; 3.) when the action relates to or the subject of which is, property within the Philippines in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein; or 4.) When the property of the defendant has been attached within the Philippines that is the MAGDALENA case. NOTE: The action must be either action in rem or quasi in rem. So an action in personam can never be filed against a non-resident defendant. That is the similarity between Section 14 and 15 on the assumption of the ruling in the MAGDALENA is still intact. Even if the defendant is not in the Philippines, the action must be in rem or quasi in rem. That is their similarity the action must be classified as in rem or quasi in rem. That is if we follow the MAGDALENA ESTATE ruling. Q: What is the difference between Section 14 and Section 15? A: The difference between Section 14 and 15 is that in Section 14, the defendant is in the country but his exact whereabouts is unknown, whereas in Section 15, he is really out of the country and is no longer residing here. MODES OF EXTRATERRITORIAL SERVICE Q: How do you serve summons for such a defendant in Sect. 15? A: Service may, with leave of court, be effected in the Philippines: a.) By personal service under Section 6; b.) 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 shall be sent by registered mail to the last known address of the defendant; or c.) In any other manner the court may deem sufficient. (Carriaga vs. Malaya, 143 SCRA 441) a.) modes of extraterritorial service; PERSONAL SERVICE c.f. Section 6 Rule 14 Sheriff, deputy sheriff, officer of the court, other persons authorized by court with valid order. The court will order that he will be served with summons just like in Section 6. Paano? We will ask the court to allow summons to be served outside the Philippines by personal service by sending the sheriff to America. Bigyan siya ng visa, round trip ticket with pocket money. That is personal service. But that is very expensive. That could be done pero impractical.
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Or, I would like to sue a defendant who is there. I have a friend who is a balikbayan and he knows where that defendant is residing. So I will ask the court that the defendant who is residing in California be served with summons personally through this person. As if he is deputized or he can send the summons to the Philippine embassy with a request for an employee of the embassy to serve the summons personally. b.) modes of extraterritorial service; 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 SHALL BE SENT BY REGISTERED MAIL TO THE LAST KNOWN ADDRESS OF THE DEFENDANT The second manner is by publication which is similar to Section 14. The court will order the summons and complaint to be published 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 shall be sent by registered mail to the last known address of the defendant. So, aside from publication, another copy will be sent by registered mail to his last known address. So, meron ng publication, meron pang registered mailing of copy of the summons. SAHAGUN vs. COURT OF APPEALS 198 SCRA 44 FACTS: Defendant is residing permanently in LA, this is an action in rem. By leave of court, summons was served through publication by ordering to be published for 3 weeks in the Philippine Daily Inquirer. Another copy will be sent to his last address. Here defendant questioned the publication. According to him, publication should be in a newspaper in LA, not the Philippines. How can I be expected to read it when it is published in the Philippines, nobody will bring it to my attention. But if it is published here, the probability that I read it is stronger or my neighbor will bring it to my attention. ISSUE #1: Is the contention of the defendant correct? HELD: NO, he is wrong because nothing in the law requires the publication to be in a foreign newspaper. What is says is a newspaper of general circulation in such places and for such time as the court may order. Well, if the court will order that it should be published in a newspaper in LA, puwede rin. If it orders that it should be in a local newspaper, puwede rin because the law does not say only such places. ISSUE #2: What would happen if we will follow the argument of the defendant which is wrong? HELD: Another reason why the defendant is wrong is, if we will require courts to order the publication in a foreign newspaper, then we will require the court to have a list of all the newspaper in LA and our courts will be required to know the rules and rates of publication in LA and suppose the same thing happens to a defendant in San Francisco, the courts are required to have a list, rules and rates of publication in said place. And you can imagine if we have to do that in every city in every country in the world. Naloko na. Imagine the trouble? It is requiring the court too much. In fine, while there is no prohibition against availing of a foreign newspaper in extraterritorial service of summons, neither should such publication in a local newspaper of general circulation be altogether interdicted since, after all, the rule specifically authorizes the same to be made in such places and for such time as the court concerned 212
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may order. If the trial court should be required to resort to publication in a foreign newspaper it must have at hand not only the name and availability of such newspaper or periodical. we can very well anticipate the plethora of problems that would arise if the same question on nonresident defendants is replicated in the other countries of the world. ISSUE #3: Is extraterritorial service of summons under Section 15 a mode of acquiring jurisdiction over the person of the defendant? HELD: NO, even if you will publish the summons a hundred times in a newspaper, still the Philippine court will not acquire jurisdiction over the person of the defendant because it is simply out of the country. Even if he is served with summons, our processes have no effect outside Philippine territory. Actually, there is no need to acquire jurisdiction over the person of the defendant. What is important is that res is in the country so we can enforce the judgment so that ownership may be transferred to plaintiff. So, hindi kailangan ang jurisdiction over his person. ISSUE #4: What is then the purpose of the requirement of publication? Why will I be required to publish but just the same the court will not acquire jurisdiction over his person? HELD: The purpose of publication is to comply with the requirement of due process. He should be informed before he loses his property. Remember that he has properties in the Philippines which you can want to take away form him. Remember the principle that if there is no way for the court to acquire jurisdiction over the person of the defendant, the substitute is jurisdiction over the res, and the res is property here. So, the judgment will not be useless and it can be enforced. But at least, the owner who is abroad should be informed about it. Service of summons on a nonresident defendant who is not found in the country is required, not for purposes of physically acquiring jurisdiction over his person but simply in pursuance of the requirements of fair play, so that he may be informed of the pendency of the action against him and the possibility that property in the Philippines belonging to him or in which he has an interest may be subjected to a judgment in favor of a resident, and that he may thereby be accorded an opportunity to defend in the action, if he be so minded. The only relief that may be granted in such an action against such a nonresident defendant, who does not choose to submit himself to the jurisdiction of the Philippine court, is limited to the res. That is why also in the case of SAHAGUN, the SC emphasized that if the summons is served by publication, any judgment that the court can render is only good for the res. But if he submits now to the jurisdiction of the court by filing an answer or by hiring a lawyer in the country, the court can now render also a judgment in personam against him. But if he will not submit, ok lang because anyway, the res is here. [bahala siya kung san siya masaya, ti suportahan ta!] EXAMPLE: I will file a case against a non-resident defendant for recovery of a piece of land and damages. Well, the claim for recovery of land is in rem. The claim for damages is in personam. He is summoned by publication and based on the SAHAGUN ruling, the court can only render judgment insofar as the land is concerned. It cannot render judgment on the damages because that is in personam. But if he files an answer, he is now submitting his person to the jurisdiction of the court. There could now be a valid judgment not only on the res but also on the damages. That was the explanation in the case of SAHAGUN.
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The relief is limited to the res so there could be no relief for damages unless he voluntarily submits himself to the jurisdiction of the court. c.) modes of extraterritorial service; IN ANY OTHER MANNER WHICH THE COURT MAY DEEM SUFFICIENT That is a very general term. A good example of that was what happened in the case of CARRIAGA, JR. vs. MALAYA 143 SCRA 441 FACTS: Plaintiff files a case against his father in the US who has no intention of coming back in the Philippines, for compulsory acknowledgement or recognition as an illegitimate child. And he is suing as an indigent litigant. My golly! How can you ask him to resort to publication? He cannot even pay the filing fee! Suppose the court will say, Do you know the address of your father in the U.S.? Plaintiff, Yes, and I even know the zip code. Judge, If we will mail the complaint and the summons by registered mail in the post office, that will cost you P15 to P30. Kaya mo ba? Plaintiff, Siguro. I will raise that amount. That is what happened in the case of MALAYA. They mailed the summons abroad and the defendant received it. The defendant questioned. ISSUE: Is there a valid service of summons under Section 15 through registered mail? HELD: YES. It would fall under In any other manner the court may deem sufficient. And that is what exactly happened in this case at bar where the court allowed the service of summons abroad by a registered mail. Of course, the defendant received the letter but still challenged the jurisdiction of the court, the manner of service of summons on the ground that it is not by personal service or publication but by registered mail. And since the defendant has received the summons, due process has been served and the case can now proceed. So in other words, it is very queer. The SC said extraterritorial service of summons by registered mail may fall under the third mode of service under Section 17 (now, Section 15) In any other manner the court may deem sufficient. There is no denial of due process to be informed because you were informed so you cannot resort to technicality. Q: Is there such a thing as service of summons by registered mail under Rule 14? A: NONE. Only personal service or by publication. Unlike in Rule 13, when you serve and file a pleading there is such a thing as service by registered mail. Q: But how come in MALAYA case it is allowed? A: Because it was considered as falling under the general phrase, In any other manner the court may deem sufficient not because it is allowed but the court considered it as deemed covered under the phrase. Q: If the court allows service of summons abroad, then what is the period to file an answer? A: The non-resident is given not less than 60 days to file an answer. It is given a longer period in order to give him more time. This is related with Section 1 rule 11: The defendant shall file his
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answer to the complaint within 15 days after service of summons, UNLESS a different period is fixed by the court. And take note that under Section 17, there must be a motion to effect service of summons by publication. Sec. 17. Leave of court. Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. (19) He must file a motion under Section 17 to effect service of summons by publication. The court will then issue an order. Now in 1996, there was a case decided by the SC on the extraterritorial service of summons. The case of VALMONTE vs. COURT OF APPEALS 252 SCRA 92 [1996] J. Mendoza FACTS: Here, the defendant is Lourdes Valmonte who is a foreign resident. She is residing abroad. Her husband, Alfredo Valmonte, who is also her attorney, has a law office in the Philippines. He is Atty. Valmonte yung mga Valmonte sa checkpoint cases in Constitutional law. He is an activist-lawyer. So, his wife is residing abroad but he is here, because he is practicing in the Philippines. Now, the sister of Mrs. Valmonte filed a case against her for partition of real property. You know that you have to implead all the co-owners. The summons intended for Lourdes was served on her husband in the latters law office because anyway, the husband is here. ISSUE : Was there a valid service of summons on Lourdes Valmonte? HELD: There is NONE. There was no valid service of summons. REASON #1: First of all, the case at bar is an action for partition and accounting under Rule 69. So, it is an action quasi in rem. Since this is an action quasi in rem and Lourdes Valmonte is a non-resident who is not found in the Philippines, summons on her must be in accordance with Rule 14, Section 15. So you must follow the modes of service under Section 15 because the action is quasi in rem. In this case, the service of summons was not effected personally because it was served on the husband. There was also no publication. The only possibility is the third one, in any other manner the court may deem sufficient. But the third mode applies only when you are serving the summons abroad. You cannot apply this when you are serving the summons in the Philippines. So it does not also fall under the third mode. This mode of service, like the first two, must be made outside of the Philippines such as through the Philippine Embassy in the foreign country where the defendant resides.
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REASON #2: Under Section 17, leave of court is required when serving summons by publication. There must be a motion where the court will direct that the summons be served in that manner. In this case, was there any motion filed here? Wala man ba. Was there any order of the court authorizing it? Wala rin. So it does not comply with Sections 15 and 17. REASON #3: The third most important reason is that, when the defendant is a non-resident and being served abroad under Section 15, the law guarantees a minimum of sixty (60) days to answer the complaint pursuant to Section 15. And here, she was only given fifteen (15) days to file the answer. Therefore, there was an erroneous computation of the period to answer. Finally, and most importantly, because there was no order granting such leave, Lourdes Valmonte was not given ample time to file her Answer which, according to the rules, shall be not less than sixty (60) days after notice. It 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 Philippines. In the former, the period is fifteen (15) days from service of summons, while in the latter, it is at least sixty (60) days from notice. So those are the three main reasons cited by the SC on why there was improper service of summons on Lourdes Valmonte under the rules. SERVICE OF SUMMONS BY PUBLICATION UNDER SECTION 16 Sec. 16. Residents temporarily out of the Philippines. When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. (18a) Q: What is the main difference between defendant in Section 15 and in Section 16? A: In section 15, defendant is residing abroad and not even found in the Philippines, while in Section 16 defendant is residing in the Philippines but temporarily out of the Philippines. EXAMPLE: Suppose Ms. Torres is in a world tour. She is considered a resident defendant temporarily out of the Philippines. I can sue her but it will take months before she come back. The problem is, your action will already prescribe. Q: How will you serve summons to him? A: According to Section 16, you can serve summons just like in Section 15 through personal service, by publication, and in any other manner the court may deem sufficient. So one option is to wait for him to come back and then serve the summons personally. One of the leading case on this type of defendant was in the old case of: MONTALBAN vs. MAXIMO 22 SCRA 1070
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FACTS: In this case, the defendant is residing in the Philippines but on a world tour and he will be out for so many months. Naga-tour ba! It was at that time when the summons was served in his residence. Well of course, he is not there. But there was somebody left in the house. So, the sheriff said, Who are you? And the person said that he is the one in charge here. When is your boss coming back? Mga four or five months pa. So, the sheriff served upon the person in charge the summons. So, the sheriff resorted to substituted service under Section 7. And there was a default judgment. Pagbalik ng tao, defaulted na siya, meron ng execution. So he questioned the service of summons because under Section 16, in relation to Section 15, summons must be served with leave of court by personal, publication or in any other manner. ISSUE #1: Can substituted service of summons be applied to a defendant who is residing in the Philippines but temporarily out? HELD: YES. Substituted service is also applicable. Unlike Section 15 where the defendant has no residence here, you have a residence man. The sheriff resorted to substituted service by leaving it to the person in charge, a person of sufficient age and discretion because for justifiable reasons, substituted service is also applicable even if the defendant is outside of the Philippines. It is true that personal service of summons is preferred. But if the personal service cannot be effected within a reasonable time, the sheriff can resort to substituted service. And in your case, the sheriff cannot serve personally because you will be out of the country for the next four or five months. So the sheriff has to resort to substituted service. ISSUE #2: Second, sabi niya, Equity na lang. That is unfair, eh, because I really had no knowledge about the case. I failed to answer because you see, during the five months when I was abroad, I never had the opportunity to call up the one I left behind. So there was no opportunity for me to ask him what has been happening there. He has also no opportunity to tell me about what happened because he does not know where I was. So I only learned about it after five months. So in the name of equity please set aside the judgment. HELD: In the name of equity, we will not set aside the judgment. You did not even bother to call and tell the person left where you were. When you called up perhaps the person left could notify you about the summons. You are very irresponsible! What kind of a person are you? You will leave for abroad and you will not even bother to call up to find out what is going on. So, wala! So the case of MONTALBAN provides that the service of summons under Section 16 on the defendant doesnt prevent the application of Section 7 in addition to Section 15. Summons can be served abroad just like in Section 15 but it does not mean to say that you cannot apply Section 7 because anyway it does not say MUST, it uses MAY. And one thing that you will notice in Section 16 is that the action is IN PERSONAM. It is purely an action for damages. So in Section 16, when residents are temporarily outside of the Philippines, there could be also substituted service of summons in addition to Section 15 and the action could be in personam as distinguished from Sections 14 and 15 where the action must be in rem or quasi in rem. So the action in Section 16 need not be an action in rem or quasi in rem because he is actually residing in the Philippines and only temporarily out.
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Sec. 8. Service upon entity without juridical personality. When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was brought. (9a) Section 8 is related to Rule 3, Section 15: Rule 3, Sec. 15. Entity without juridical personality as defendant. When two or more persons not organized as an entity with juridical personality enter into a transaction, they may be sued under the name by which they are generally or commonly known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed. (15a) Q: Since you can sue someone without juridical personality, how do serve summons upon him? A: Under Section 8, by serving summons upon anyone of them, that is sufficient. Service upon any of those defendants is service for the entire entity already. You may also serve summons upon the person in charge of the office of the place of business. He may not necessarily be the owner but in-charge of the office, he can be served with summons. 2.) SERVICE OF SUMMONS UPON SOMEBODY WHO IS A PRISONER Sec. 9. Service upon prisoners. When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by the officer having the management of such jail or institution who is deemed deputized as a special sheriff for said purpose. (12a) Q: How do you serve summons to somebody who is a prisoner? A: Under Section 9, summons shall be served through the person in-charge of the jail like the jail warden. The jail warden is automatically considered as deputized to serve it to the prisoner. It is not necessary for the court officer to go into the jail and look for the prisoner. 3.) SERVICE OF SUMMONS UPON MINORS AND INCOMPETENTS Sec. 10. Service upon minors and incompetents. When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In
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the case of a minor, service may also be made on his father or mother. (10a, 11a) Relate this to Rule 3, Section 3 on Representatives as Parties trustee of a trust, guardian, administrator, etc. Q: When you sue a minor or an insane, how is summons served? A: You serve the summons to the father or mother in the case of minor. For a legal guardian, in the case of incompetent people or to the minor himself. Q: The law says that service shall be made upon him (the minor) personally when he may not understand what it is all about? Baka itatapon lang niya iyon. A: Because under Rule 3, he is the real party in interest. 4.) WHEN SERVICE OF SUMMONS ON DOMESTIC PRIVATE JURIDICAL ENTITY. Sec. 11. Service upon domestic private juridical entity. When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel. (13a) What do you mean by domestic? A corporation or association organized under Philippine laws. Majority of our corporations in the Philippines, almost 95%, are domestic private corporation. Like banks BPI, Security Bank - they can be sued because they are persons in the eyes of the law. Now, how do you serve summons to a corporation? Actually, they have no physical existence, they only exist by legal friction. Ordinarily summons must be served to a human being, to somebody who is supposed to be the representatives. Therefore, common sense will tell that in case of a corporation, you have to serve the summons through people who run the corporation. Q: To whom do you serve summons if it is a corporation? A: In the case of a corporation, summons is served upon its officers. Q: Who are these officers? A: President, managing partner, general manager, corporate secretary, treasurer, in-house counsel. PRESIDENT. Sometimes, the president of a corporation is called the Chief Executive Officer or CEO. MANAGING PARTNER. This is in case of a partnership. GENERAL MANAGER. Under the prior law, the word there is simply manager. Now they added the word general. But even in the old law, the word manager is interpreted as general manager. In a corporation, there are so many managers like branch managers. General manager is the over-all manager of the corporation throughout the Philippines. He is usually based in the head office.
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CORPORATE SECRETARY. The prior law only used the word secretary but it has been interpreted as corporate secretary, not the typist secretary. The corporate secretary is the custodian of the records of the corporation. He is also a stockholder, because you cannot be a corporate secretary unless you are a stockholder. The new law has already emphasized corporate secretary. Before illiterate sheriffs used to serve summons on secretary-typist. TREASURER. The prior law says cashier now they have changed the word to treasurer. It is because treasurer is actually an officer also. He is just like a budget secretary of the government. Cashiers are ordinary employees which is more on clerical works. IN-HOUSE COUNSEL. He is the lawyer of the company. He is actually employed by the corporation. He takes care of the legal problems. In Manila, for instance, most of the corporations there have in-house counsels. Not so much here in Davao. Like Ayala Corporation in Manila, they have internal legal counsel more or less 10 while Bank of Philippine Island has around 15. But these corporations hire lawyers from the outside when it comes to sensitive cases. They are referred as external legal counsel. The rule that summons may be served on internal legal counsel, although appearing for the first time in the 1997 rules, is actually an old rule. It has been ruled already in some cases that service of summons upon an in-house counsel of a corporation is valid. It binds the corporation under the ruling in the case of PHILIPPINE OIL MKTG. CORP. vs. MARINE DEVT CORP. (117 SCRA 879) and FAR CORPORATION vs. FRANCISCO(145 SCRA 197) that the in-house counsel if served with summons, there is a valid service, because anyway, if you serve it to the general manager or the President, chances are it will also be referred to him kay siya man ang abogado. So the in-house counsel is new and it confirms what the SC said. Two (2) Persons in the OLD RULE not mentioned in the new rules: But here is the change. In the previous law, you can serve the summons on any of the directors of the corporation MEMBERS of the BOARD ba. Now, wala na yan ngayon. I think the only member of the Board here is the Corporate Secretary. So, the directors, hindi na puwede. But here is the most radical change. The word AGENT, nawala na! Did you notice under the old law, there is agent. The word agent was so broad and so general that the SC has actually included there so many people. Like in the case of R TRANSPORT CORPORATION vs. CA, (241 SCRA 77 [1995]), the summons was served to the Operations Manager of the corporation and the SC said the service was valid because he is considered as an agent. In the 1993 case of GESULGON vs. NLRC (219 SCRA 561), the summons was served on the Assistant General Manager of the corporation and the SC said that the service was valid because he is an agent. In the case of FAR CORPORATION vs. FRANCISCO (146 SCRA 197), the summons was served on the Chief of Finance and Administrative Section of the corporation and the SC said that he will fall under the word agent. In the cases of DELTA MOTORS vs. MASAGUN (70 SCRA 598) and ATM TRUCKING vs. BUENCAMINO (124 SCRA 434) the service of summon an employee employed in a corporation
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does not bind the corporation because an ordinary employee who is not an officer is not considered as agent. However, there are cases were the service of summons to an ordinary employee who is not an officer was valid. Among which are: The case of SUMMIT TRADING vs. ABENDANO (135 SCRA 397 [1985]), the summons was served on the confidential secretary of the President and the SC said the service is valid. She is qualified as agent. And in the cases of J AND J CORPORATION vs. CA (158 SCRA 466), reiterated in the case of GOLDEN FARMS vs. SUN BAR DEVELOPMENT CORPORATION (214 SCRA 295), the summons was served on a mere clerk of the corporation. So, he is not even an officer. But the clerk gave it to the President. The SC said that the defect is cured. The clerk could be considered as an agent. The need for speedy justice must prevail over technicality. So, the word agent has become very broad and it practically covers all corporate officers who are presumed to be responsible. Now, in the 1997 rules, the word agent disappeared. And the law is very clear: President, managing partner, general manager, corporate secretary, treasurer, in-house counsel. Now, suppose you will serve it to the Branch manager? Of course the corporation will say that there is no valid service of summons. OK, it is void. But look at the case of GESULGON, etc. But that is under the 1964 rules when you are deemed to be an agent. But now, it is very specific. The intention of the new rules is to limit the service to anyone of these. That is why they removed the word agent. And if that interpretation prevails that the intention of the rules is to limit to these people, it is now very difficult to sue a corporation based in Makati if you are here in Davao because your summons has to be coursed through them. And these people are not here! The President is not here; The General Manager, etc. They are all based in the head office. Corporate Secretary, treasure, inhouse counsel Doon man ang opisina nila ba. The ones based here are branch managers and they are now disqualified. If that is the intention of the law, my golly! That is another headache! It can be argued both sides eh. Despite this, we should stick to the principle that technicalities should not give way. Suppose I will serve it on the Branch Manager. He forwarded it to their President in Manila. Eh ano pa ngayon ang reklano ninyo? Anyway you already acquired it, you learned about it. Can you insist that the court has no jurisdiction when actually you are well aware already of the suit? You can say, let us go to reality. But it can also be argued under the old law. Precisely, if the intention is to make everybody a responsible officer, then the word agent should have been retained. The intention of the law is to limit only to these people. So, both sides can be defended. Section 11 thus becomes another controversial provision. Whether this change has abrogated GESULGON, FAR EAST CORP., SUMMIT TRADING na pwede. All those doctrines have now been rendered obsolete because of this change. All those cases were decided based on the word agent are they agents? At least there is basis, eh. Now, the word agent is no longer there. That is why this is a controversial provision. E.B. VILLAROSA LTD vs. BENITO 312 SCRA 65 [Aug. 6, 1999] 221
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FACTS: E.B. Villarosa & Partners is a limited partnership with principal office address at 102 Juan Luna St., Davao City and with branch offices at Paraaque and Cagayan de Oro City (CDO). Villarosa and Imperial Development (ID) executed an Agreement wherein Villarosa agreed to develop certain parcels of land in CDO belonging to ID into a housing subdivision. ID, filed a Complaint for Breach of Contract and Damages against Villarosa before the RTC allegedly for failure of the latter to comply with its contractual obligation. Summons, together with the complaint, were served upon Villarosa, through its Branch Manager Wendell Sabulbero at the address at CDO but the Sheriffs Return of Service stated that the summons was duly served "E.B. Villarosa & Partner thru its Branch Manager at their new office Villa Gonzalo, CDO, and evidenced by the signature on the face of the original copy of the summons." Villarosa prayed for the dismissal of the complaint on the ground of improper service of summons and for lack of jurisdiction over the person of the defendant. Villarosa contends that the RTC did not acquire jurisdiction over its person since the summons was improperly served upon its employee in its branch office at CDO who is not one of those persons named in Sec. 11, Rule 14 upon whom service of summons may be made. ID filed a Motion to Declare Villarosa in Default alleging that Villarosa has failed to file an Answer despite its receipt allegedly on May 5, 1998 of the summons and the complaint, as shown in the Sheriff's Return. HELD: We agree with Villarosa. Earlier cases have uphold service of summons upon a construction project manager; a corporation's assistant manager; ordinary clerk of a corporation; private secretary of corporate executives; retained counsel; officials who had charge or control of the operations of the corporation, like the assistant general manager; or the corporation's Chief Finance and Administrative Office. In these cases, these persons were considered as "agent" within the contemplation of the old rule. Notably, under the new Rules, service of summons upon an AGENT of the corporation is NO LONGER authorized. The designation of persons or officers who are authorized to accept summons for a domestic corporation or partnership is now limited and more clearly specified in Section 11, Rule 14. The rule now states "general manager" instead of only "manager"; "corporate secretary" instead of "secretary"; and "treasurer" instead of "cashier." The phrase "agent, or any of its directors" is conspicuously deleted in the new rule. A strict compliance with the mode of service is necessary to confer jurisdiction of the court over a corporation. The officer upon whom service is made must be one who is named in the statute; otherwise the service is insufficient. . . The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal requirements as to the manner in which summons should be served on a domestic corporation. . Service of summons upon persons other than those mentioned in Section 13 of Rule 14 (old rule) has been held as improper. Accordingly, we rule that the service of summons upon the branch manager of Villarosa at its branch office at CDO, instead of upon the GM at its principal office at Davao City is improper. Consequently, the RTC did not acquire jurisdiction over the person of Villarosa. The fact that Villarosa filed a belated motion to dismiss did not operate to confer jurisdiction upon its person. There is no question that the Villarosas voluntary appearance in the action is equivalent to service of summons. Before, the rule was that a party may challenge the jurisdiction of the court over his person by making a special appearance through a motion to dismiss and if in the same motion, the movant raised other grounds or invoked affirmative relief which necessarily involves the exercise of the jurisdiction of the court, the party is deemed to have submitted himself to the jurisdiction of the court. This doctrine has been abandoned in the 222
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case of La Naval Drug Corporation vs. CA which became the basis of the adoption of a new provision in Section 20 of Rule 14. Section 20 now provides that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. The emplacement of this rule clearly underscores the purpose to enforce strict enforcement of the rules on summons. Accordingly, the filing of a motion to dismiss, whether or not belatedly filed by the defendant, his authorized agent or attorney, precisely objecting to the jurisdiction of the court over the person of the defendant can by no means be deemed a submission to the jurisdiction of the court. There being no proper service of summons, the trial court cannot take cognizance of a case for lack of jurisdiction over the person of the defendant. Any proceeding undertaken by the trial court will consequently be null and void. WHEREFORE, the petition is hereby GRANTED. The assailed Orders of the public respondent trial court are ANNULLED and SET ASIDE. 5.) SERVICE OF SUMMONS UPON FOREIGN PRIVATE JURIDICAL ENTITY Sec. 12. Service upon foreign private juridical entity. When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines. (14a) Q: What is the difference between corporation or entity in Section 11 and Section 12? A: The entity or corporation under Section 11 is domestic while under Section 12, the corporation is a foreign corporation but doing business in the Philippines because the law says, when the defendant is a foreign private juridical entity which transacted business in the Philippines When a foreign corporation is not doing business in the Philippines, it cannot be sued, just like a non-resident defendant. The best example of a foreign corporation doing business in the Philippines are air line companies, foreign banks. Q: To whom do you serve summons in this case? A: Well, that is already touched in Rule 11, Section 2. If it has a designated resident agent, you must serve it to him. If it has none, then to the appropriate Philippine government officer who will transmit it to the head office. Q: What is the period to file answer? A: Under Rule 11, Section 2, the period to file an answer is longer if summons is served on a government official designated by law for that purpose, the period is 30 days. But if the foreign corporation has a designated resident agent in the Philippines and summons is served on him, the period to answer is only 15 days just like any other defendant. NORTHWEST ORIENT AIRLINES vs. COURT OF APPEALS 241 SCRA 192 [1995] HELD: When there is a designated resident agent to receive summons, service of summons to that person is exclusive. He is the only one to be served with summons in
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behalf of the corporation sued. So, if there is a designated agent, siya lang. He is the only person authorized to receive the summons. If a foreign corporation has designated an agent to receive summons the designation is exclusive. Service of summons is without force and gives to a court no jurisdiction unless made upon him. BALTAZAR vs. COURT OF APPEALS 168 SCRA 354 [1988] FACTS: The summons was to be served on the corporation at an address. But when the sheriff went to that address, he was told by the security guard that the corporation was no longer holding office there. Lumipat na sa ibang lugar. Therefore, we do not know already. So, ni-report niya, Hindi ko makita. Therefore, the plaintiff filed a motion in court to be allowed to serve summons by publication under Section 14 when the whereabouts of the defendant is unknown. So there was service of summons by publication. ISSUE: Was there a valid service of summons by publication? HELD: There was NONE. The deputy sheriff should have known what every law school student knows! that defendant, being a domestic corporation must have been registered with the SEC and that the SEC records would therefore reveal, not just the correct address of the corporate headquarters of the defendant, but also the address of its officers. A litigant or process server who has not gone through the records of the SEC cannot claim to have carried out the diligent inquiry required under the law for valid service of summons by publication upon a domestic corporation. So there was no diligent inquiry. You should have gone to the SEC and look at the records kung saan lumipat. Also with the address of the officers like the President, you can go to his place and serve the summons to him. So there was improper service of summons by publication. Another case was REBULIDO vs. COURT OF APPEALS 170 SCRA 800 FACTS: A corporation committed a wrong and then pagdemanda, dissolved na. When the action was filed, the corporation was already dissolved wala ng juridical personality. ISSUE #1: Can you still sue a dissolved corporation? HELD: YES. Otherwise, if we will say that a corporation which is already dissolved can no longer be sued, it is very easy for a corporation to avoid liability by simply dissolving itself after it commits a wrong. And secondly, under the Corporation Law, even if you are already dissolved, there is still a period for winding up where you can collect. So, it is still functioning. And to say that it is already dissolved or that it is no longer functioning is not also true. ISSUE #2: If that is so, to whom will you now serve the summons?
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HELD: You serve it on the last set of officers. The same people mentioned there must be a last President or a last Corporate Secretary, etc. They are the people who whom summons should be served. When a corporation was placed under a Voting Trust Agreement (VTA), the summons should be served on the trustee. The President has no more personality that is an exception to Section 11. So, when a corporation is placed under VTA, the summons should be served on the person in whose favor the VTA was executed because the officers of the corporation have no more personality to manage the affairs of the corporation. FOREIGN ENTITY TRANSACTING BUSINESS IN THE PHILIPPINES Finally, going back to foreign private juridical entity, take note that under the law, the foreign private juridical entity is one doing business in the Philippines. So, if a foreign corporation is not doing business in the Philippines, it cannot be sued, just like a non-resident defendant because the court can never acquire jurisdiction over that person or foreign corporation. We know that no? And the perennial debate is, when is a foreign private corporation doing or not doing any business in the Philippines? I think the Corporation Law has so many cases along that line. EXAMPLE: A Filipino businessman wanted to buy machines where there is only one manufacturer and supplier which is a corporation in Europe. This corporation has no office in the Philippines. The Filipino businessman contracted with the foreign corporation. He ordered machineries. The foreign corporation sent its people to deliver the machineries. They stayed in the Philippines gor a while to check the machines and to teach the Filipinos how to run it. Q: Now, can that corporation be used in the Philippine courts? A: NO, because that foreign corporation is not doing business in the Philippines. Section 12 does not refer to a foreign corporation with a single isolated, casual transaction. In the cases of PACIFIC MICRONISIAN LINE, INC. vs. DEL ROSARIO G.R. No. L-7154. October 23, 1954 HELD: Doing business is construed to mean such continuity of conduct and intention to establish a continuous business. An isolated transaction, or transactions which are occasional, incidental or casual and which do not evince intent to conduct continuous business do not constitute doing business in the Philippines. In order that a foreign corporation may be regarded as doing business in the Philippines, there must be continuity of conduct and intention to establish a continuous business, such as the appointment of a local agent, and not one of a temporary character. FAR EAST INTERNATIONAL vs. NANKAI KOGYO CO., LTD. November 30, 1962 HELD: Where a single act or transaction of a foreign corporation is not merely incidental or casual, but is of such character as distinctly to indicate a purpose on the part of the corporation to do other business in the Philippines, and to make the Philippines a 225
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base of operations for the conduct of a part of the corporations ordinary business, the corporation may be said to be doing business in the Philippines. So, under the rules, a foreign corporation not doing business in the Philippines cannot be sued. If it enters into a contract with a Filipino business man, it is not actually doing business. Isa lang eh! So, technically, that foreign corporation cannot be sued in the Philippines. Your remedy is to go to Europe and sue that corporation there. In the case of LINGER AND FISCHER vs. IAC 125 SCRA 522 FACTS: A Philippine corporation entered into a contract with a foreign corporation and then their agreement says the foreign corporation agrees to be sued in the Philippines. So practically, puwede. And the problem now is, to whom will you serve the summons? When a foreign corporation not doing business in he Philippines agrees to be sued in the Philippines, how do you serve summons? Is Section 12 applicable? HELD: NO, Section 12 is not applicable because in Section 12, the premise is, the foreign private corporation is doing business in the Philippines. So Section 12 does not apply. So, how shall we serve the summons? In the first place, the foreign corporation, which cannot be sued, agrees to be sued. Their agreement is similar to venue where we can agree on the venue of the case. Now, since it is not doing business, it is more accurate to apply the rules on Section 15 on extraterritorial service of summons on a non-resident defendant who is not physically here. So, summons should be served not in accordance with Section 12 but in accordance with Section 15 on extraterritorial service. 6.) SERVICE OF SUMMONS UPON PUBLIC CORPORATION Sec. 13. Service upon public corporations. When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. (10a) An example of a public corporation is the Republic of the Philippines. As a rule, they cannot be sued. But in cases where it can be sued, summons may be effected on the Solicitor General being the representative of the Republic. Kung provinces, cities or municipalities, like the City of Davao, service may be effected on the executive heads such as the provincial governor, municipal or city mayor. Summons may also be effected on such other officer or officers as the law or the court may direct. So the court may order that the summons be served on the city legal officer. Here, there is still a valid service of summons.
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Sec. 18. Proof of service. The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy. (20) This is called a SHERIFFS RETURN where the sheriff will state the manner (personal or substituted, publication); place and date; to whom served. Then you specify that you serve also the complaint. Name of person who received the same. Q: Must the return be sworn to? A: NO NEED, except when made by a person other than a sheriff or his deputy. Remember that summons can be served by other person authorized by the court to do so. Sec. 19. Proof of service by publication. If the service has been made by publication, service may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit a copy of the publication shall be attached, and 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 known address. (21) VOLUNTARY AND SPECIAL APPEARANCE Sec. 20. Voluntary appearance. The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a) The first mode of acquiring jurisdiction over the person of the defendant is service of summons. However, even when there is no service of summons, or if there is improper service of summons, if the defendant files an answer, then in effect, he is submitting himself to the jurisdiction of the court and the court acquires jurisdiction over his person by voluntary appearance. Voluntary appearance is not necessary an answer. Like a motion for an extension of time to file an answer, or a motion for bill of particulars that is indicative of his submission to the jurisdiction of the court. That is why we said, lack of jurisdiction over the person of the defendant because of absence of service of summons or improper service of summons, can be waived by voluntary appearance. That is the second mode. Now, of course, when a defendant files a motion to dismiss on the ground that the court has not acquired any jurisdiction over his person, that is not a voluntary appearance. That is a SPECIAL APPEARANCE precisely to question the jurisdiction of the court over his person. A special appearance is not indicative of the intention to submit to the jurisdiction of the court. Otherwise, it becomes absurd if I will file a motion to dismiss questioning the jurisdiction of the court over my person and then the court will say, Well, by filing the motion to dismiss, you are also 227
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voluntarily submitting to the jurisdiction of the court. Definitely, that is not the appearance contemplated by Section 20. Now, the second sentence, The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. What is the meaning of that? Well, that principle is taken from the ruling of the SC in the leading case of LADAVAL DRUG CORPORATION vs. CA, 236 SCRA 28, which we will discuss more in detail when we reach Rule 16 on Motion to Dismiss.
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1997 Rules on Civil Procedure 2001 Edition < DRAFT COPY; Please check for errors >

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