CIVIL PROCEDURE NOTES Part 2: Summons

CIVIL PROCEDURE

SUMMONS (Rule 14)

Olive Cachapero

Nature of summons (Rule 14)

1.       Summons is the writ by which the defendant is notified of the action brought against him

2.       Fundamentally, it is a notice to the defendant that:

a)      a particular person named therein has commenced an action against him in a particular court.

b)      An important part of that notice according to the Rules (Sec. 2, Rule 14, Rules of Court), is a direction that the defendant answer the complaint within the period fixed by the Rules and that unless he so answers, plaintiff will take judgment by default and may be granted the relief applied for.

Issuance of summons; not discretionary but MANDATORY

The issuance of summons is not discretionary on the part of the court or the clerk of court but is a mandatory requirement. The provisions of Sec. 1 of Rule 14 direct that the clerk of court shall issue the corresponding summons to the defendant upon

a)      the filing of the complaint, and

b)      the payment of the requisite legal fees.

Effect of knowledge of the filing of the action

Knowledge by the defendant or by its agents of an action filed against it does not dispense with the need for summons. Summons must still be issued and served.

Most basic purpose of summons: to satisfy the requirements of procedural due process.

Kinds of summons:

1.       Personal service

2.       By Registered mail

3.       Substituted service

4.       Summons by publication - by publication in a newspaper of general circulation together with a registered mailing of a copy of the summons and the order of the court to the last known address of the defendant.

Purpose of summons in actions in personam

a)      comply with due process

b)      to acquire jurisdiction over the person of the defendant.

Ø  the mere filing of the complaint does not enable the court to acquire jurisdiction over the person of the defendant. By the filing of the complaint and the payment of the required filing and docket fees, the court acquires jurisdiction only over the person of the plaintiff, not over the person of the defendant.

Ø  Service of such writ is the means by which the court acquires jurisdiction over his person and is acquired through coercive process

Purpose of summons in actions in rem and quasi in rem

·         The service of summons or notice to the defendant is not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process requirements.

·         In an action in rem or quasi in rem, jurisdiction over the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res.

Jurisdiction over the res is acquired either

a) by the seizure of the property under legal process, whereby it is brought into actual custody of the law; or

b) as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective.

Voluntary appearance by the defendant

Jurisdiction over the person of the defendant is acquired through coercive process, generally by:

a)      the service of summons issued by the court, or

b)      through the defendant’s voluntary appearance or submission to the court.

Otherwise, there is no valid service of summons, any judgment of the court over the defendant will be null and void for lack of jurisdiction over the defendant (Manotoc v. Court of Appeals, 499 SCRA 21,33; Bar 1999).

An absence of service of summons or even an invalid service of summons will not prevent the court from acquiring jurisdiction over the defendant as long as he performs acts that could be construed as a voluntary appearance (Please refer to discussion in Chapter II on Jurisdiction). This is because under Sec. 20 of Rule 14, the defendant’s voluntary appearance in the action shall be equivalent to service of summons.

 “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.”

There is likewise a need to emphasize that under existing rules, a defending party may file a motion to dismiss a claim for lack of jurisdiction over his person and add to such ground other grounds for dismissal. The defendant may for example, include failure to state a cause of action, prescription, improper venue and other authorized defenses and objections under the Rules, aside from lack of jurisdiction over the person of the defendant. The addition of such grounds aside from lack of jurisdiction over the person of the defendant shall not be considered a voluntary appearance under Sec. 20 of Rule 14.

Example: Because of the rule in Sec. 20 of Rule 14, even assuming that the service of summons was defective, the trial court acquired jurisdiction over the person of the defendant by his own voluntary appearance in the action against him when he filed the “Omnibus Motion for Reconsideration and to Admit Attached Answer.” This was equivalent to service of summons and vested the trial court with jurisdiction over the person of the defendant (Santos v. PNOC Exploration Corporation, 566 SCRA 272, 280).

Who issues the summons: clerk of court issues the summons who shall sign the same under seal.

When summons is issued: upon the filing of the complaint and the payment of the requisite legal fees

To whom summons is directed: to the defendant, not to the plaintiff

Who serves summons (server):

a)     the sheriff, his deputy, or

b)     other proper court officer, or

c)      for justifiable reasons by any suitable person authorized by the court issuing the summons

Contents of the summons

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 the Rules; and

c)       a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief prayed for.

A copy of the complaint (including a copy of an order of appointment of a guardian ad litem, if necessary) shall be attached to the original and each copy of the summons.

Return and proof of service:

1.       When the service has been completed, the server shall, within 5 days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff’s counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service

2.       After the completion of the service, a proof of service is required to be filed by the server of the summons. The proof of service of summons shall be made in writing by the server and shall set forth the:

a)      manner, place, and date of service;

b)      shall specify any papers which have been served with the process and

c)       the name of the person who received the same; and

d)      shall be sworn to when made by a person other than a sheriff or his deputy (made by other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing the summons )

Uniformity of the rules on summons

The rules on summons apply with equal force in actions before the RTC, MTC, MTCT, MeTC because the procedure in the MTCs shall be the same as in the RTc, except

a.       where a particular provision expressly or impliedly applies only to either of said courts, or

b.       in civil cases governed by the Rule on Summary Procedure

Service of summons without copy of the complaint

A defendant is still bound to comply with the summons even if service was made without attaching a copy of the complaint.

In Pagalaran vs. Bal-latan, the defendant was personally served with summons. She was notified of the order to appear before the court and to file her answer and was given a duplicate copy of the order, the receipt of which she acknowledged. The defendant did not appear and file her answer as ordered. The trial declared her in default. ISSUE: WON the proceedings in the trial court should be annulled on the ground that the defendant had never been summoned because she was not served a copy of the complaint. HELD: The SC, while admitting that the service of summons was defective,  treated the defect as having been waived by the defendant’s failure to seasonably challenge the trial court’s jurisdiction over the person. Hence, it sustained the lower court’s decision.

Service upon an entity without a juridical personality

Under Sec. 8 of Rule 14, service may be effected upon all the defendants by serving summons upon:

a.       any one of them, or

b.      upon the person in charge of the office or of the place of business maintained in such name.

This service shall not, however, bind individually any person whose connection with the entity, upon due notice, had been severed before the action was brought. (Bar 2011)

Under Sec. 15 of Rule 3, 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.

Service upon a prisoner

When the defendant is a prisoner confined in a jail or institution, service shall be effected upon the prisoner officer having the management of such jail or institution (jail manager). The jail manager is deemed deputized as a special sheriff.

Service upon a minor and an incompetent

*minor, insane or otherwise an incompetent

a.       upon him personally AND

b.      on his legal guardian if he has one, or if none, upon his guardian ad litem. The appointment of the guardian ad litem shall be applied for by the plaintiff.

c.       If the defendant is a minor, service may be made also upon his father or mother

Service upon a private domestic juridical entity (MEMORIZE!)

(PIT-CMG)

*defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made upon the following persons:

a.       president,

b.      managing partner,

c.       general manager – NOT “manager”

d.      corporate secretary – NOT “secretary”

e.       treasurer – NOT “cashier”

f.        in-house counsel (Sec. 11, Rule 14, Rules of Court).

·          “restricted, limited and exclusive” enumeration

Purpose:

a)      to render it reasonably certain that the corporation will receive prompt and proper notice in an action against it or

b)      to insure that the summons be served on a representative so integrated with the corporation that such person will know what to do with the legal papers served on him. In other words, ‘to bring home to the corporation notice of the filing of the action.

Note: 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. Substantial compliance is no longer applicable and the new rule is re-stricted, limited and exclusive. Service of summons to someone other than those enumerated is not valid.

Service upon a foreign PRIVATE juridical entity which has transacted business in the Philippines may be made on

a.       its resident agent designated in accordance with law for that purpose, or, if there be no such agent,

b.      on the government official designated by law to that effect, or

c.       on any of its officers or agents within the Philippines.

Note: It has been held that when a foreign corporation has designated a person to receive summons on its behalf pursuant to the Corporation Code, that designation is exclusive and service of summons on any other person is inefficacious.

Service upon a PUBLIC corporation

1.       When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General.

2.       When the defendant is a province, city or municipality, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct.

Service upon an UNINCORPORATED government agency: to the SolGen

·         because it is unincorporated, possesses no juridical personality of its own, the suit is against the agency’s principal, i.e., the State. It is clear under the Rules that where the defendant is the Republic of the Philippines, service of summons must be made on the Solicitor General.

Example: Thus, where the complaint for specific performance with damages was filed against DPWH Region III which is a mere agent of the Republic, the summons in this case should have been served on the OSG.

A.     Service in person on defendant

(formerly personal service of summons)

*preferred mode of service of summons under the Rules, is embodied in Sec. 6 of Rule 14 of the Rules of Court which provides:

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.

Note: Sec. 6 of Rule 14 refers to the mode of service therein as “Service in person on defendant,” not ‘personal service.’

Personal service - is a mode by which pleadings, motions, notices, orders, judgments and other papers are served under Sec. 6 of Rule 13 of the Rules of Court.

Service in person on defendant - effected by handing a copy of the summons to the defendant in person. If he refuses to receive and sign for it, the remedy of the server is to tender the summons to the defendant (Sec. 6, Rule 14, Rules of Court).

·         If the defendant refuses the service, the sheriff is not supposed to resort to substituted service immediately. The sheriff or the appropriate officer is required by the Rules to “tender” the summons to the defendant. Tender of summons is not a separate mode of service. It is a part of service in person and applies when the defendant refuses to receive and sign for the summons.

Substituted Service

·         It is only when a defendant cannot be served personally “within a reasonable time” that substituted service may be made. (strict compliance with the rules)

Nature of Substituted service:

Ø  Service is in derogation of the usual method of service.

Ø   It is a method extraordinary in character and hence may be used only as prescribed and in the circumstances authorized by statute.

Requirements of substituted service:

Only if service in person cannot be made promptly can the process server resort to substituted service. Moreover, the proof of service of summons must

a)      indicate the impossibility of service of summons within a reasonable time;

b)      specify the efforts exerted to locate the defendant; and

c)       state that the summons was served upon a person of sufficient age and discretion who is residing in the address, or who is in charge of the office or regular place of business of the defendant.

d)      Facts proving these circumstances be stated in the proof of service or in the officer’s return. The failure to comply faithfully, strictly and fully with all the foregoing requirements of substituted service renders the service of summons ineffective (or cannot be upheld).

Example: Since no such explanation was made, there was a failure to faithfully, strictly, and fully comply with the requirements of substituted service. This rendered said service ineffective.

Example: Failure to find the defendants in their residence on the first and only attempt to effect service in person, does not justify the availment of substituted service. There was no attempt by the sheriff to faithfully comply with the requirements of service in person on the defendant. Worse, substituted service was made through a girl who was only 11 to 12 years old.

Temporarily absent in the Philippines: Defendant may be served by substituted service.

Ø  because a man temporarily out of the country leaves a definite place of residence or a dwelling where he is bound to return.

Ø  He also leaves his affairs to someone who protects his interests and communicates with him on matters affecting his affairs or business.

Ø  he cannot be expectedly served within a reasonable time. The fact that “for justifiable causes, the defendant cannot be served within a reasonable time,” constitutes the operative fact that triggers the application of substituted service.

Ø  This mode of service in the case of a resident temporarily absent from the country is, of course, in addition to the summons by publication authorized by Sec. 16 of Rule 14 in relation to Sec. 15 of Rule 14 of the Rules of Court.

Adverse effects of neffective substituted service:

1. The period to file a motion to dismiss for lack of jurisdiction over the defendant’s person does not commence to run since the court has no jurisdiction to adjudicate the controversy as to him, unless he voluntarily submits to the jurisdiction of the court.
2. The trial court does not acquire jurisdiction over the person of the defendant.

B. Substituted service of summons (Bar 2004; 2006)

When substituted service shall apply: Only if service in person cannot be made promptly can the process server resort to substituted service (Jose v. Boyon).

Afdal v. Carlos 2010

Service of summons upon the defendant shall be by personal service first and only when the defendant cannot be promptly served in person will substituted service be availed of.

We have long held that the impossibility of personal service justifying availment of substituted service should be explained in the proof of service; why efforts exerted towards personal service failed. The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service or Officer’s Return; other-wise, the substituted service cannot be upheld.

In this case: (indispensable requirements)

1. the indorsements failed to state that prompt and personal service on petitioners was rendered impossible.
2. It failed to show the reason why personal service could not be made.
3. It was also not shown that efforts were made to find petitioners personally and that said efforts failed.
4. Nowhere in the return of summons or in the records of the case was it shown that xxx the person on whom substituted service of summons was effected, was a person of suitable age and discretion residing in petitioners’ residence.

“In derogation of personal service”: These requirements are indispensable because substituted service is in derogation of the usual method of service. It is an extraordinary method since it seeks to bind the defendant to the consequences of a suit even though notice of such action is served not upon him but upon another whom the law could only presume would notify him of the pending proceedings. Failure to faithfully, strictly, and fully comply with the statutory requirements of substituted service renders such service ineffective.

“Reasonable time”

The pertinent provision of the Rules of Court (Sec. 7, Rule 14, Rules of Court) provides that substituted service may be availed of if “for justifiable causes, the defendant cannot be served within a reasonable time.” What exactly is a reasonable time?

“Within a reasonable time” (Longer than “prompt” but within a justifiable time frame as would be necessary to bring defendant within the jurisdiction of the court)

Ø  contemplates a period of time longer than that demarcated by the word “prompt,” and presupposes that a prior attempt at personal service, within a justifiable time frame as would be necessary to bring the defendant within the jurisdiction of the court, had failed.

Manotoc v. CA, 499 SCRA 21:

1. Reasonable time is defined as so much time as is necessary under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that should be done. . . Under the Rules, the service of summons has no set period. . .

a)      To the plaintiff, “reasonable time” means no more than 7 days since an expeditious processing of the complaint is what the party wants.

b)      To the sheriff “reasonable time means 15 to 30 days because at the end of the month, it is a practice for the branch clerk to require the sheriff to submit a return of the summons assigned to the sheriff for service. The Sheriffs Return provides data to the clerk of court, which the clerk uses in the Monthly Report of Cases to be submitted to the Office of the Court Admin-istrator within the first ten (10) days of the succeeding month. Thus one month from the issuance of summons can be considered “reasonable” with regard to personal service on the defendant.”

2. The Court has set stringent conditions prior to the availment of substituted service.

Manotoc thus, stresses: “. . . since the defendant is expected to try to avoid and evade service of summons, the sheriff must be:

a)      resourceful, persevering, canny, and diligent in serving the process on the defendant.”

b)      For sub-stituted service to be available there must be several at-tempts by the sheriff to personally serve the summons within a reasonable period [of one month] which eventually resulted in failure to prove impossibility of prompt service. “Several attempts” means at least 3 tries, preferably on at least two different dates.

c)       In addition the sheriff must cite why such efforts where unsuccessful. It is only then that impossibility of service can be confirmed or accepted.

The sheriff must describe in the Return of Summons:

1.       the facts and circumstances surrounding the attempted personal service.

2.       The efforts made to find the defendant and the reasons behind the failure must be clearly narrated in detail in the Return.

o    impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts which should be made in the proof of service.”

3.       The date and time of the attempts on personal service,

4.       the inquiries made to locate the defendant,

5.       the name/s of the alleged occupants of the alleged residence or house of defendant and all other acts done, though futile, to. serve the summons on the defendant must be specified in the Return to justify substituted service.

6.       The form on Sheriffs Return of Summons on Sub-stituted Service prescribed in the Handbook for Sheriffs published by the Philippine Judicial Academy requires a narration of the efforts made to find the defendant per-sonally and the fact of failure.

Note:

a.       A mere general claim or statement in the Sheriffs Return that the server had made “several attempts” to serve the summons, without making reference to the details of facts and circumstances surrounding such attempts, does not comply with the rules on substituted service.

b.      A return which merely states the alleged whereabouts of the defendants without indicating that such information was verified and without specifying the efforts exerted to serve the summons is not enough for compliance. So is a mere general statement that such efforts were made.

How substituted service is made

Sec. 7 of Rule 14 provides the server with options, to wit:

a)      leaving copies of the summons at the defendant’s residence -  leaving the same with a person of suitable age and discretion residing therein.

o    A person of suitable age and discretion is one who has attained the full age of full legal capacity (18 years old) and is considered to have enough discernment to understand the importance of summons.

b)      leaving copies of the summons at the defendant’s office or regular place of business - with some competent person in charge thereof

(Note: The ff. matters(#1 & 2) must be clearly and specifically described in the Return of Summons)

1. Suitable age and discretion

The Manotoc case explains:

Discretion is defined as the ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed.

(Note: The ff. matters must be clearly and specifically described in the Return of Summons)

Thus, to be of sufficient age and discretion, such person must:

1. know how to read and understand English to comprehend the import of the summons, and
2. fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action.

Thus, the person must have a “relation of confidence” to the defendant, ensuring that the latter would receive or at least be notified of the receipt of summons. The sheriff must therefore, determine if the person found in the alleged dwelling or residence of defendant is of:

a)      legal age,

b)      what the recipient’s relationship with the defendant is, and

c)       whether said person comprehends the significance of the receipt of the summons and his duty to deliver it to the defendant or at least notify the defendant of said receipt of summons and his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons.”

2. Person in Charge

A competent person in charge of the office or regular place of business must:

a)      be the one managing the office or business of defendant, such as the president or manager; and

b)      such individual must have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons.

Note: It is not necessary that the person in charge of the defendant’s regular place of business be specifically authorized to receive the summons. It is enough that he appears to be in charge.

Effect if defendant does not actually receive the summons (substituted service)

Where the substituted service has been validly served, its validity is not affected by the defendant’s failure to actually receive the summons from the person with whom the summons had been left. It is immaterial that the defendant does not in fact receive actual notice.

• The rule does not require the sheriff or any authorized server to verify that the summons left in the defendant’s residence or office was actually delivered to the defendant.

Montalban v. Maximo is emphatic:

“It is immaterial then that defendant does not in fact receive actual notice. This will not affect the validity of the service. Accordingly, the defendant may be charged by a judgment in personam as a result of legal proceedings upon a method of service which is not personal, “which in fact may not become actual notice to him” and which may be accomplished in his lawful absence from the country. For, the rules do not require that papers be served on defendant personally or a showing that the papers were delivered to defendant by the person with whom they were left.”

When defendant prevents service of summons

What if diligent efforts were undertaken by the Sheriff to serve summons upon the defendant but he was prevented from effecting such service by the defendant himself?

Robinson v. Miralles, 510 SCRA 678.

Here, the plaintiff filed a complaint for a sum of money against the defendant. Summons was served on the defendant at her given address but per return of service of the sheriff it was learned that the defendant no longer resided at such address. Later, the trial court issued an alias summons to be served at the defendant’s new address. Again, the summons could not be served on the defendant. The Sheriff explained:

“The Security Guard assigned at the gate of Alabang Hills refused to let me go inside the subdivision so that I could effect the service of the summons to the defendant in this case. The security guard alleged that the defendant had given them instructions not to let anybody proceed to her house if she is not around. I explained to the Security Guard that I am a sheriff serving the summons to the defendant, and if the defendant is not around, summons can be received by any person of suitable age and discretion living in the same house. Despite of all the explanation, the security guard by the name of A.H. Geroche still refused to let me go inside the subdivision and serve the summons to the defendant. The same thing happened when I attempted to serve the summons previously.

Therefore, the summons was served by leaving a copy thereof together with the copy of the complaint to the security guard by the name of A.H. Geroche, who refused to affix his signature on the original copy thereof, so he will be the one to give the same to the defendant.”

• Trial court: declared petitioner in default.
• Defendant: claimed that summons was improperly served upon her, thus, the trial court never acquired jurisdiction over her and that all its proceedings are void. The defendant contended that the service of summons upon the subdivision security guard is not in compliance with Sec. 7, Rule 14 since he is not related to her or staying at her residence. Moreover, he is not duly authorized to receive summons for the residents of the village. Hence, the substituted service of summons is not valid and that the trial court never acquired jurisdiction over her person.

HELD: Obviously, it was impossible for the sheriff to effect personal or substituted service of summons upon petitioner. We note that she failed to controvert the sheriffs declaration. Nor did she deny having received the summons through the security guard. We agree with the trial court that summons has been properly served upon petitioner and that it has acquired jurisdiction over her.” The summons was therefore, properly served.

C.    Summons by publication

Modes of service of summons:

1. Resident – service in person of defendant (Sec. 6, Rule 14)
2. Defendant cannot be served within a reasonable time - substituted service (Sec. 7, Rule 14)
3. Extraterritorial Service - applies “When the defendant does not reside and is not found in the Philippines. This has no application to residents of the Philippines.
4. Nonresident within the Philippines - service upon his person while said defendant is within the Philippines. It is a long standing rule that when the defendant is a nonresident, personal service of summons in the state is essential to the acquisition of jurisdiction over his person. This is in fact the only way of acquiring jurisdiction over his person if he does not voluntarily appear in the action.

o    Summons by publication against a non-resident in an action in personam is not a proper mode of service.

GR: Summons by publication is available only in actions in rem or quasi in rem. It is not available as a means of acquiring jurisdiction over the person of the defendant in an action in personam.

When summons by publication against a resident in an action in personam is permissible:

1. Section 14 of Rule 14 (where the identity or whereabouts of the defendant are unknown);
2. Section 16 of Rule 14 (when the defendant is a resident temporarily out of the Philippines).

·         Both provisions apply to “any action” which necessarily includes an action in personam. Both must be by leave of court.

Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear and decide it.

Ø  Publication is likewise not a mode of service in an action in personam against a resident defendant except under Secs. 14 and 16 of Rule 14.

Service upon a defendant whose identity or whereabouts are unknown (for “any case”)

Where the defendant is:

a)      designated as an unknown owner, or the like, or

b)      whenever his whereabouts are unknown and cannot be ascertained despite a 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 (Sec. 14, Rule 14, Rules of Court).

Service upon a resident temporarily out of the Philippines

*applies in any action

Service of summons upon a resident of the Philippines who is temporarily out of the country, may, by leave of court be effected out of the Philippines as under the rules on extraterritorial service in Sec. 15 of Rule 14.

Note: This rule authorizing summons by publication appears superfluous and unnecessary. Without such provision, a resident defendant temporarily outside of the Philippines may still be served through the substituted service under Sec. 7 of Rule 14.

Modes of service upon a resident defendant is temporarily out of the country:

1. By publication under the rules on extraterritorial service in Sec. 15 of Rule 14.
2. If he has a residence or place of business in the Philippines, and because he cannot be served within a reasonable time because of his absence in the Philippines, this absence would now trigger the application of the rule on substituted service of summons

Montalban v. Maximo,

A man temporarily absent from this country leaves a definite place of residence, a dwelling where he lives, a local base, so to speak, to which any inquiry about him may be directed and where he is bound to return. Where one temporarily absents himself, he leaves his affairs in the hands of one who may be reasonably expected to act in his place and stead; to do all that is necessary to protect his interests; and to communicate with him from time to time any incident of importance that may affect him or his business or his affairs. It is usual for such a man to leave at his home or with his business associates information as to where he may be contacted in the event a question that affects him crops up.

Extraterritorial service of summons (Sec. 15 of Rule 14)

General Rule:

Requisites:

a)      the defendant is a nonresident;

b)      he is not found in the Philippines; and

c)       the action against him is either in rem or quasi in rem.

Note: Extraterritorial service of summons does not apply:

a)      to a defendant who is a resident of the Philippines.

b)      to an action in personam.

Exception: Application to residents temporarily out of the Philippines in “any action,” hence, either in rem or in personam. (Sec. 16 of Rule 14)

Requisites when extraterritorial service of summons is proper:

(for actions which are either in rem or quasi in rem involving a nonresident are)

a)      actions that affect the personal status of the plaintiff;

b)      actions which relate to, or the subject matter of which is property within the Philippines, in which the defendant claims a lien or interest, actual or contingent;

c)       actions in which the relief demanded consists, wholly or in part, in excluding the defendant from an interest in property located in the Philippines; and

d)      when the defendant’s property has been attached in the Philippines.

Why extrajudicial service of summons apply only where the action is:

e)      in rem, an action against the thing itself instead of against the person

f)        action quasi in rem, where an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or loan burdening the property.

This is so inasmuch as, in in rem and quasi in rem actions, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res.

Service of summon to a non-resident defendant inan action in personam cannot be done because: Summons on the defendant must be served by handing a copy thereof to the defendant in person, or, if he refuses to receive it, by tendering it to him. This cannot be done, however, if the defendant is not physically present in the country, and thus, the court cannot acquire jurisdiction over his person and therefore cannot validly try and decide the case against him.”

Ø  extraterritorial service of summons will not be available. There is no extraterritorial service of summons in an action in personam.

An action for injunction is a personal action as well as an action in personam, not an action in rem or quasi in rem. As a personal action, personal or substituted service of summons on the defendants, not extraterritorial service, is necessary to confer jurisdiction on the court. In an action for injunction, extraterritorial service of summons and complaint upon the non-resident defendants cannot subject them to the processes of the RTCs which are powerless to reach them outside the region over which they exercise their authority.

Modes of extraterritorial service (Bar 2008)

(all of which require a prior leave of court)

a)      By personal service as provided for in Sec. 6 of Rule 14 governing ‘service in person on defendant; 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 the order of the court shall be sent by registered mail to the last known address of the defendant; or

b)      In any manner the court may deem sufficient (Sec. 15, Rule 14, Rules of Court).

Servive upon a non-resident defendant in extraterritorial service (personal service)

·         acquisition of jurisdiction over the person of the defendant is not possible if the defendant is not within the country.

·         This service is only in compliance with the requirements of due process, not for the purpose of acquiring jurisdiction over the person of the defendant

·         Example: So when the action is for the recovery of a sum of money against the non-resident defendant, the summons by publication is ineffective for the trial court to acquire jurisdiction over the person of the defendant. Any judgment rendered against him is, therefore, null and void for lack of jurisdiction over the defendant

·          There is a settled rule that a nonresident defendant who refuses to come to the country voluntarily remains beyond the personal processes of the court which, therefore, cannot acquire jurisdiction over him.

“Jurisdiction over the person of the defendant, if acquired at all in such an action, is obtained by the voluntary submission of the defendant or by the personal service of process upon him within the territory where the process is valid. If however, the defendant is a non-resident and, remaining beyond the range of the personal process of the court, refuses to come in voluntarily, the court never acquires jurisdiction over the person at all.” (Banco Espanol-Filipino, supra, 930).

Application of principles (Examples)

Example No. 1: An American tourist while in the Philippines, incurred hotel bills of P2 million. Without paying his bills, he surreptitiously left the country. The hotel filed an action for a sum of money and with leave of court effected summons by publication. The defendant made no appearance in any form (no voluntary appearance) and judgment by default was rendered against him. Is he bound by the judgment? Answer: He is not bound by the judgment because the same was rendered without jurisdiction over his person. The summons by publication did not enable the court to acquire jurisdiction over him. Here, the action is one in personam.

Example No. 2: Mr. D is a balikbayan, a former Filipino, and a naturalized Canadian citizen. He visited the country to attend the funeral of his father from whom he inherited a parcel of land. He obtained a loan while in the Philippines and executed a REM on his inherited land. He left without paying the debt. An action to foreclose the mortgage was filed. How may the court obtain jurisdiction over the person of Mr. X? Answer: There is no way. He is already out of the country. However, jurisdiction over the person of the defendant is not necessary and, hence, irrelevant under the facts of the case because the action for foreclosure is not an action in personam. A foreclosure suit is a quasi in rem action. In this kind of action, jurisdiction over the person of the defendant is not required. Summons by publication or other modes of extraterritorial service under Sec. 15 of Rule 14 is enough to acquire jurisdiction over the res. May the court therefore validly render a judgment in the foreclosure proceedings? The court can. It has jurisdiction over the res as long as summons by any of the means allowed under the rules on extraterritorial service is effected (Sec. 15, Rule 14, Rules of Court).

Example No. 3: Mexicano, a tourist in the Philippines, by his employment of force and intimidation, contracted a marriage with Filipina, a hotel receptionist. When Mexicano left for Mexico to visit his parents, Filipina filed an action for annulment of the marriage with damages of P3 million. With leave of court, extraterritorial service of summons by publication in a newspaper of general circulation was effected. A copy of the summons and the order of the court were also sent by registered mail to the last known address of Mexicano. The manner of summons was determined by the court to be the most sufficient under the circumstances. Mexicano did not appear in the action. The court later decreed the annulment of the marriage and awarded damages after all procedural and substantive requirements were complied with. Was the judgment validly rendered?

HELD: (Action for annulment of marriage is an in rem proceeding and one affecting the ersonal status of the plaintiff) The judgment was validly rendered in so far as the decree of annulment is concerned. In this kind of action, jurisdiction over the res is sufficient. Jurisdiction over the person of the defendant is not essential in this case, so whether or not there was jurisdiction over Mexicano, this fact did not affect the authority of the court to decide on the issue of annulment.

(Action for damages is an action in personam) However, the judgment of the court awarding damages to Filipina is void as to the defendant. By its nature, a claim for damages is in personam. The court is without jurisdiction to award damages unless it has first acquired jurisdiction over the person of Mexicano. How to acquire jurisdiction over Mexicano’s person: The only way by which this type of jurisdiction may be acquired in the case at bar is either through:

a)      service in person upon Mexicano in the Philippines or

b)      by his voluntary appearance in the action.

Example No. 4: In Valmonte v. Court of Appeals, 252 SCRA 92, the defendants are husband and wife in a complaint for partition filed by the plaintiff. They are both residents of the USA. The husband is a member of the Philippine bar and practices his profession in the Philippines. For this purpose, he commutes between his residence abroad and Manila where he has an office.

·         Service of summons was served upon the husband who was at the time in Manila but he refused to accept the summons for his wife on the ground of lack of authority from the latter.

·         The sheriff left without leaving a copy of the summons and complaint for the defendant wife.

The plaintiff later moved to declare the defendant wife in default for her failure to file her answer to the complaint.

·         The defendant husband, appearing as counsel for his wife, made a special appearance to oppose the motion.

·         The motion of the plaintiff was denied by the trial court.

·         The Court of Appeals declared the defendant wife in default.

ISSUE:

a)     WON under the facts, the defendant wife could be validly served with summons through her husband. NO.

b)     determination of the nature of the action. Is it in personam? Is it in rem? Is it quasi in rem?  QUASI IN REM.

If the action is in rem or quasi in rem jurisdiction over the person of the defendant is not essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res.

The res refers to the:

a)      personal status of the plaintiff who is domiciled in the Philippines (as in an action to annul a marriage filed by a resident of the Philippines), or

b)      to the property subject of litigation in the Philippines (as in partition).

Now, if the defendant is a nonresident and is not found in the Philippines and the action is in rem or quasi in rem, summons may be served following the rules on extraterritorial service. Under this provision, summons may be served by:

(a) personal service

 (b) publication and mailing of summons and order of the court by registered mail, and

(c) in any manner deemed sufficient by the court.

Service of summons in the manner provided for under Sec. 15 of Rule 14 is for the purpose of complying with the requirements of fair play and due process.

ISSUE: What then is the nature of an action for partition and accounting?

HELD: action for partition and accounting  is one quasi in rem. The purpose of this kind of action is not to render a judgment directly against the defendant but to render a judgment affecting his interest in a specific property.

ISSUE: Since the defendant wife was not summoned by either of the first two modes of summons under Sec. 15, the next matter to be resolved is WON summons intended for the wife may be served on her husband under the theory htat the summons couldfall under the third mode- “in any other manner the court may deem sufficient.”

HELD: NO. The Supreme Court ruled that the service of summons upon the husband could not fall within the ambit of the third mode.

·         First, it was certainly not deemed sufficient by the trial court as shown by its denial of the motion to declare the defendant in default.

·         Second, it was not made upon order of the court and with leave of court as required by the rule.

·         Third, the husband was not appointed as an attomey-in-fact of the wife and was not authorized by the wife to receive summons for her

Gemperle v. Schenker

The Supreme Court considered service of summons to the resident wife in the Philippines as service to the non-resident husband because the wife had been appointed by the defendant husband as his attorney-in-fact in a prior civil case, was given authority to sue in his behalf and represent him in suits filed against him and the second case

Remedy of attachment against non-resident defendants not found in the Philippines

There are situations where a non-resident defendant has properties in the Philippines probably because he used to be either a citizen or a resident of the country.

Ø  If the suit is in personam, as when the suit is for a sum of money, and the non-resident defendant is no longer found in the Philippines – extraterritorial service of summons would be ineffective to acquire jurisdiction over his person. This would be available only in an action in rem or quasi in rem.

Remedy: Being an action in personam, the remedy is to:

1.       file the suit and

2.       at the same time avail of the provisional remedy of attachment. Under Sec. l[f] of Rule 57, one ground upon which the writ of preliminary attachment may issue is in “an action against a party who does not reside and is not found in the Philippines.”

Note: (Writ of preliminary attachment_ action quasi in rem) Jurisdiction over the person of the defendant would no longer be required when there is a writ of preliminary attachment of the defendant’s properties because the suit has assumed the character of an action quasi in rem which merely requires jurisdiction over the res. After availing of extraterritorial service of summons, the suit can then proceed despite the absence of the defendant because in this case, the property of the defendant would now be the object of the judicial power.

Ø  The service of summons in this case (which may be by publication coupled with the sending by registered mail of the copy of the summons and the court order to the last known address of the defendant), is no longer for the purpose of acquiring jurisdiction but for the compliance with the requirements of due process.

Summons when complaint is amended

·         Sec. 8 of Rule 10 declares that an amended pleading supersedes the pleading that it amends.

·         When a pleading is amended, the original one is deemed abandoned. Hence, the amended pleading replaces the original one which no longer forms part of the record and the trial of the case is made on the basis of the amended pleading only.

Should another summons be served upon the defendant if the complaint is amended?

Vlason Enteprises v. Court of Appeals:

Here, the Court held that it does not ipso facto follow that the service of a new summons is required whenever a complaint is amended.

a)      Where the defendant has already appeared before the trial court by virtue of a summons on the original complaint, the amended complaint may be served upon them without need for another summons, even if new causes of actions are alleged.

b)      When the defendant has not yet appeared in court and no summons had been validly served, new summons on the amended complaint must be served on them.

·         It is not the change in the cause of action that gives rise to the need to serve another summons for the amended complaint, but rather the acquisition of jurisdiction over the person of the defendant. If the trial court has not yet obtained jurisdiction over them, a new service of summons for the amended complaint is required.