ii. Substituted

SUBSTITUTED SERVICE

Substituted service can only be made if personal service CANNOT be made within a reasonable time for justifiable causes.

Section 6. Substituted service. — If, for justifiable causes, the defendant cannot be served personally after at least three (3) attempts on two (2) different dates, service may be effected:

(a) By leaving copies of the summons at the defendant's residence to a person at least eighteen (18) years of age and of sufficient discretion residing therein;

(b) By leaving copies of the summons at the defendant's office or regular place of business with some competent person in charge thereof. A competent person includes, but is not limited to, one who customarily receives correspondences for the defendant;

(c) By leaving copies of the summons, if refused entry upon making his or her authority and purpose known, with any of the officers of the homeowners’ association or condominium corporation, or its chief security officer in charge of the community or the building where the defendant may be found; and

(d) By sending an electronic mail to the defendant’s electronic mail address, if allowed by the court. (7a)

The failure to comply faithfully, strictly and fully with all the foregoing requirements of substituted service renders the service of summons ineffective. (San Pedro v. Ong, G.R. No. 177598, 2008)

A plain and simple reading of the above provisions indicates that personal service of summons should and always be the first option, and it is only when the said summons cannot be served within a reasonable time can the process server resort to substituted service. (Constantino A. Pascual v. Lourdes S. Pascual, G.R. No.171916, 2009)

“Exerted Efforts”

Without specifying the details of the attendant circumstances or of the efforts exerted to serve the summons, a general statement that such efforts were made will not suffice for purposes of complying with the rules of substituted service of summons. (Guiguinto Credit Cooperative, Inc. v. Torres, G.R. No. 170926, 2006)

“Several Attempts”

For substituted service of summons to be available, there must be several attempts 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 three (3) tries, preferably on at least two different dates. In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of service can be confirmed or accepted. (Imelda Manotoc v. Court of Appeals, G.R. No. 130974, 2006)

NOTE: The above concepts are all covered by the rules now.

Effect of Ineffective Substituted Service

The Court does NOT acquire jurisdiction over the person of the accused and the judgment against him must perforce be nugatory and without legal effect.” (Litonjua v. CA, G.R. No. L-46255, October 28, 1977)

Furthermore, in the 1993 decision in Laus v. Court of Appeals, G.R. No. 101256, 1993, the period to file motion to dismiss for lack of jurisdiction over the defendant’s person does not commence to run since court has no jurisdiction to adjudicate the controversy as to him, unless he voluntarily submits to the jurisdiction of the court.

Effect of Substituted Service Validly Served but Not Received by Defendant

Where the substituted service has been validly served, its validity is NOT affected by the defendant’s failure to receive the summons from the person with whom the summons had been left.

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, summons shall be deemed PROPERLY served and that the court has acquired jurisdiction over the person of the defendant. (Robinson v. Miralles, G.R. No. 163584, 2006)

No preference for legal representative of the deceased

The heirs may be allowed to be substituted for the deceased without requiring the appointment of an administrator or executor. However, if within the specified period a legal representative fails to appear, the court may order the opposing counsel, within a specified period, to process the appointment of an administrator or executor who shall immediately appear for the estate of the deceased (San Juan v. Cruz, G.R. No. 167321, 2006)

It Is Possible That the Court May Order the Opposing Party to Procure the Appointment of an Executor or Administrator for the Estate of the Deceased When:

• The counsel for the deceased does not name a legal representative; or
• There is a representative named but he fails to appear within the specified period. (Rule 3, Sec. 16)

All court charges in procuring such appointment, if defrayed by the opposing party may be recovered as costs. (Rule 3, Sec. 16)

SUBSTITUTED SERVICE

If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made in either personal service or registered mail, 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.