3. Service

F. Summons (Rule 14)

• Nature and Purpose
• Who May Serve
• Valid Service of Summons; Alias Summons
• Service of Summons
• Personal Service
• Substituted Service
• Constructive Service
• Extraterritorial Service
• Proof of Service
• Voluntary Appearance

> RULE 14 SUMMONS Section 1. Clerk to issue summons. – Unless the complaint is on its face dismissible under Section 1, Rule 9, the court shall, within five (5) calendar days from receipt of the initiatory pleading and proof of payment of the requisite legal fees, direct the clerk of court to issue the corresponding summons to the defendants. (1a) Section 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) When authorized by the court upon ex parte motion, an authorization for the plaintiff to serve summons to the defendant; (c) A direction that the defendant answer within the time fixed by these Rules; and (d) 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. (2a)

Section 3. By whom served. – The summons may be served by the sheriff, his or her deputy, or other proper court officer, and in case of failure of service of summons by them, the court may authorize the plaintiff - to serve the summons - together with the sheriff.

In cases where summons is to be served outside the judicial region of the court where the case is pending, the plaintiff shall be authorized to cause the service of summons. If the plaintiff is a juridical entity, it shall notify the court, in writing, and name its authorized representative therein, attaching a board resolution or secretary’s certificate thereto, as the case may be, stating that such representative is duly authorized to serve the summons on behalf of the plaintiff. If the plaintiff misrepresents that the defendant was served summons, and it is later proved that no summons was served, the case shall be dismissed with prejudice, the proceedings shall be nullified, and the plaintiff shall be meted appropriate sanctions. If summons is returned without being served on any or all the defendants, the court shall order the plaintiff to cause the service of summons by other means available under the Rules. Failure to comply with the order shall cause the dismissal of the initiatory pleading without prejudice. (3a) Section 4. Validity of summons and issuance of alias summons[.] – Summons shall remain valid until duly served, unless it is recalled by the court. In case of loss or destruction of summons, the court may, upon motion, issue an alias summons. There is failure of service after unsuccessful attempts to personally serve the summons on the defendant in his or her address indicated in the complaint. Substituted service should be in the manner provided under Section 6 of this Rule. (5a) Section 5. Service in person on defendant. – Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person and informing the defendant that he or she is being served, or, if he or she refuses to receive and sign for it, by leaving the summons within the view and in the presence of the defendant. (6a) 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)

Section 7. 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 filed. (8a) Section 8. Service upon prisoners. – When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him or her by the officer having the management of such jail or institution who is deemed as a special sheriff for said purpose. The jail warden shall file a return within five (5) calendar days from service of summons to the defendant. (9a) Section 9. Service consistent with international conventions. – Service may be made through methods which are consistent with established international conventions to which the Philippines is a party. (n) Section 10. Service upon minors and incompetents. – When the defendant is a minor, insane or otherwise an incompetent person, service of summons shall be made upon him or her personally and on his or her legal guardian if he or she has one, or if none, upon his or her guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service shall be made on his or her parent or guardian. (10a) Section 11. Service upon spouses. – When spouses are sued jointly, service of summons should be made to each spouse individually. (n) Section 12. 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 of the corporation wherever they may be found, or in their absence or unavailability, on their secretaries. If such service cannot be made upon any of the foregoing persons, it shall be made upon the person who customarily receives the correspondence for the defendant at its principal office. In case the domestic juridical entity is under receivership or liquidation, service of summons shall be made on the receiver or liquidator, as the case may be. Should there be a refusal on the part of the persons above-mentioned to receive summons despite at least three (3) attempts on two (2) different dates, service may be made electronically, if allowed by the court, as provided under Section 6 of this Rule. (11a) Section 13. Duty of counsel of record. – Where the summons is improperly served and a lawyer makes a special appearance on behalf of the defendant to, among others, question the validity of service of summons, the counsel shall be deputized by the court to serve summons on his or her client. (n) Section 14. Service upon foreign private juridical entit[ies]. – When the defendant is a foreign private juridical entity which has transacted or is doing business in the Philippines, as defined by law, 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, agents, directors or trustees within the Philippines. If the foreign private juridical entity is not registered in the Philippines, or has no resident agent but has transacted or is doing business in it, as defined by law, such service may, with leave of court, be effected outside of the Philippines through any of the following means:

(a) By personal service coursed through the appropriate court in the foreign country with the assistance of the [D]epartment of [F]oreign [A]ffairs; (b) By publication once in a newspaper of general circulation in the country where the defendant may be found and by serving a copy of the summons and the court order by registered mail at the last known address of the defendant; (c) By facsimile; (d) By electronic means with the prescribed proof of service; or (e) By such other means as the court, in its discretion, may direct. (12a) Section 15. 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. (13a)

Section 16. 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 or her whereabouts are unknown and cannot be ascertained by diligent inquiry, within ninety (90) calendar days from the commencement of the action, service may, by leave of court, be effected upon him or her by publication in a newspaper of general circulation and in such places and for such time as the court may order. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) calendar days after notice, within which the defendant must answer. (14a) Section 17. 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 [S]ection [5]; or as provided for in international conventions to which the Philippines is a party; 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) calendar days after notice, within which the defendant must answer. (15a)

Section 18. 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 [S]ection. (16a) Section 19. 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 [or her] behalf, setting forth the grounds for the application. (17a) Section 20. Return. – Within thirty (30) calendar days from issuance of summons by the clerk of court and receipt thereof, the sheriff or process server, or person authorized by the court, shall complete its service. Within five (5) calendar days from service of summons, the server shall file with the court and serve a copy of the return to the plaintiff’s counsel, personally, by registered mail, or by electronic means authorized by the Rules.

Should substituted service have been effected, the return shall state the following: (1) The impossibility of prompt personal service within a period of thirty (30) calendar days from issue and receipt of summons; (2) The date and time of the three (3) attempts on at least two (2) different dates to cause personal service and the details of the inquiries made to locate the defendant residing thereat; and (3) The name of the person at least eighteen (18) years of age and of sufficient discretion residing thereat, name of competent person in charge of the defendant’s office or regular place of business, or name of the officer of the homeowners’ association or condominium corporation or its chief security officer in charge of the community or building where the defendant may be found. (4a)

Section 21. 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 or her deputy. If summons was served by electronic mail, a printout of said e-mail, with a copy of the summons as served, and the affidavit of the person mailing, shall constitute as proof of service. (18a) Section 22. Proof of service by publication. – If the service has been made by publication, service may be proved by the affidavit of the publisher, 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 or her last known address. (19a)

Section 23. 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 be deemed a voluntary appearance. (20a)

8. Service upon

a. Entity without juridical personality b. Prisoners c. Consistent with international conventions [The Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters] d. Minors and Incompetents e. Spouses (relate to Sec. 4, Rule 3) f. Domestic Private Juridical Entity g. Foreign Private Juridical Entity h. Public corporations i. Defendant whose identity or whereabouts unknown j. Residents temporarily out of the Philippines

Summons

A writ by which the defendant is notified of the action brought against him/her. Service of such writ is the means by which the court may acquire jurisdiction over his/her person. (Cano-Gutierrez v. Gutierrez, G.R. No. 138584, 2000)

Although respondent had indeed filed numerous pleadings, these pleadings were precisely for the purpose of contesting the jurisdiction of the court over the person of respondent on the ground that there was no valid service of summons on him. It would be absurd to hold that respondent, by making such appearance, thereby submitted himself to the jurisdiction of the court.

Furthermore, as the office is not respondent’s regular place of business, it cannot be said that the person who received the service of summons was authorized to receive service of process on behalf of the respondent. (UCPB v. Ongpin, G. R. 146593, 2001)

NON-SERVICE OR IRREGULAR SERVICE OF SUMMONS may be a ground for dismissal for lack of jurisdiction over the person of the defending party.

Service of such writ is the means by which the court acquires jurisdiction over his person. Any judgment without such service in the absence of a valid waiver is null and void. (Gomez v. Court of Appeals, G.R. No. 127692, 2004)

Summons May be Served ONLY by

• Sheriff;
• Sheriff’s deputy; or
• Other proper court officers; or
• For justifiable reasons, by any suitable person authorized by the court issuing the summons (Rule 14, Sec. 3)

Section 3. By whom served. — The summons may be served by the sheriff, his or her deputy, or other proper court officer, and in case of failure of service of summons by them, the court may authorize the plaintiff - to serve the summons - together with the sheriff.

In cases where summons is to be served outside the judicial region of the court where the case is pending, the plaintiff shall be authorized to cause the service of summons.

If the plaintiff is a juridical entity, it shall notify the court, in writing, and name its authorized representative therein, attaching a board resolution or secretary’s certificate thereto, as the case may be, stating that such representative is duly authorized to serve the summons on behalf of the plaintiff.

If the plaintiff misrepresents that the defendant was served summons, and it is later proved that no summons was served, the case shall be dismissed with prejudice, the proceedings shall be nullified, and the plaintiff shall be meted appropriate sanctions.

If summons is returned without being served on any or all the defendants, the court shall order the plaintiff to cause the service of summons by other means available under the Rules.

Failure to comply with the order shall cause the dismissal of the initiatory pleading without prejudice. (3a)

Purpose

• Notify defendant of action against him/her; and
• Acquire jurisdiction over defendant’s person in a civil case.

Jurisdiction over the defendant, without service of summons, cannot be acquired even if the defendant has knowledge of the case against him. (Habana v. Vamenta, G.R. No. L-27091, 1970)

Even if jurisdiction was not originally acquired due to defective service of summons, court acquires jurisdiction over his person by his act of subsequently filing a motion for reconsideration. (Soriano v. Palacio, G.R. No. L-17469, 1964)

In case of death of defendant before the service of summons, the 1976 en banc decision in the case of Dumlao v. Quality Plastic Products Inc., G.R. No. L27956, 1976, held that:

“The lower court's judgment against deceased is void for lack of jurisdiction over his person.

Deceased was not, and could not have been, validly served with summons. He had no more civil personality. His juridical capacity, which is the fitness to be the subject of legal relations, was lost through death.”

Service of the writ

Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service. (R102, S7)

Substantial Compliance

Requisites for the application of the doctrine of substantial compliance:

• There must be actual receipt of the summons by the person served, i.e., transferring possession of the copy of the summons from the Sheriff to the person served;
• The person served must sign a receipt or the sheriffs return; and
• There must be actual receipt of the summons by the corporation through the person on whom the summons was actually served. The third requisite is the most important for it is through such receipt that the purpose of the rule on service of summons is attained. (Porac Trucking, Inc. v. Court of Appeals G.R. No. 81093, 1990)

For there to be substantial compliance, actual receipt of summons by the corporation through the person served must be shown. Where a corporation only learns of the service of summons and the filing of the complaint against it through some person or means other than the person actually served, the service of summons becomes meaningless. (Millenium Industrial Commercial Corporation v. Tan, G.R. No. 131724, 2000)

Proof of Service by Publication may be proved by:

• Affidavit of the –
• Printer, his foreman or principal clerk OR
• Editor, business or advertising manager, to which affidavit a copy of the publication shall be attached AND
• 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.

When new service of summons is required

When defendants have not yet appeared in court and no summons has been validly served, new summons for the amended complaint must be served on them.[85] It is not the change of 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 persons of the defendants. (Vlason Enterprises v. CA, G.R. No. 121662-64, 1999)

• AMENDMENTS BY LEAVE OF COURT

2.

SERVICE

The act of providing a party with a COPY of the pleading or paper concerned.

SERVICE OF JUDGMENTS, FINAL ORDERS, AND RESOLUTIONS

How Made

• By personal service;
• By registered mail;
• By publication;
• NO substituted service.

WHEN SERVICE IS DEEMED COMPLETE

• Personal service - Upon actual delivery
• Ordinary mail Upon expiration of 10 days after mailing
• Registered mail - Upon actual receipt by the addressee OR five (5) days from the date he received first notice from postmaster
• Substituted service At the time of such delivery of the copy to the clerk of court

Effect of Writ of Replevin That Has Been Improperly Served

Service of the writ upon the adverse party is mandatory in line with the constitutional guaranty on procedural due process and as safeguard against unreasonable searches and seizures. The writ or order of replevin should comply with all the requirements as to matters of form or contents prescribed by the Rules of Court. The writ must also satisfy proper service in order to be valid and effective, i.e., it should be directed to the officer who is authorized to serve it; and it should be served upon the person who not only has the possession or custody of the property involved but who is also a party or agent of a party to the action. Consequently, a trial court is deemed to have acted without or in excess of its jurisdiction with respect to the ancillary action of replevin if it seizes and detains a personalty on the basis of a writ that was improperly served.

The proper remedy of the person being served with the writ should be to file a motion to quash the writ of replevin or a motion to vacate the order of seizure. It now becomes imperative for the trial court to restore the parties to their former positions by returning the seized property to petitioner and by discharging the replevin bond filed by respondent. (Rivera v. Vargas, G.R. No. 165895, 2009).