e. Return

RETURN

When the service has been completed, the server shall, within five (5), serve a copy of the return, to the plaintiff's counsel, and shall return the summons to the clerk, who issued it, accompanied by proof of service.

Contents of the return

The respondent shall file a verified written return together with supporting affidavits within five (5) working days from service of the writ. This period may be extended by the court for justifiable reasons.

Execution of writ

The officer to whom the writ is directed shall convey the person imprisoned or restrained before the court allowing the writ and on such date and time specified in the writ unless such person cannot be produced without danger by reason of some sickness or infirmity.

The officer shall make due return of the writ, together with the day and cause of the caption and restraint of such person. (R102, S8)

The sheriff must therefore determine

• If the person found in the alleged dwelling or residence of defendant is of legal age,
• What the recipient’s relationship with the defendant is, and
• Whether said person comprehends the significance of the receipt of the summons and his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons.

These matters must be clearly and specifically described in the Return of Summons. (Imelda Manotoc v. Court of Appeals, G.R. No. 130974, 2006) AND (Constantino Pascual v. Lourdes Pascual, G.R. No. 171916, 2009)

Return shall be in writing and shall state:

• Whether he has or has not the party in his custody or power, or under restraint;
• The authority and the true and whole cause of restraint, set forth at large, with a copy of the writ, order execution, or other process, if any, upon which the party is held;
• If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be bought before the court or judge;
• If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. (R102, S10)

The return or statement shall be signed and sworn to by the person who makes it if the prisoner is not produced, unless the return is made and signed by a sworn public officer in his official capacity. (R102, S11)

When to file return

Within 72 hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits.

The period to file cannot be extended except on highly meritorious grounds.

Hearing upon return

When the writ is returned before the judge, he may forthwith hear and examine the return and such other matters as are submitted for consideration. (R102, S12)

What is the effect of failure to file a return

In case the respondent fails to file a return, the court shall proceed to hear the petition ex parte (R7, S10)

The return shall contain:

Lawful defenses;

• The steps or actions taken to determine the fate or whereabouts of the aggrieved party;
• All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and
• If the respondent is a public official or employee, the return shall further state acts:
• To verify identity of aggrieved party
• To recover and preserve evidence
• To identify and collect witness statements
• To determine cause, manner, location, and time of death or disappearance
• To identify and apprehend persons involved
• Bring suspected offenders before a competent court (Sec. 9, A.M. No. 07-9- 12-SC)

Note: General denial is not allowed.

Effect of failure to file a return

Failure of petitioners to file a return of the writ warrants dismissal of the petition. Unless the allegations in the return are controverted, they are deemed to be true or admitted. (Florendo v. Javier, G.R. No. L-36101, 1979)

When return evidence of cause of restraint and when only a plea of facts; effect of petitioner’s failure to file a reply to the return or to controvert statements in the return during the hearing.

If the return is filed by an officer who is the respondent detaining the person concerned - if the prisoner is in custody under a warrant of commitment (public authority) in pursuance of law, the return is considered prima facie evidence of the legality of the commitment, imprisonment or restraint. (R102, S13)

Thus, the failure of petitioners to file a reply to the return or controvert the matters stated in the return, warrants dismissal of the petition. Unless the allegations in the return are controverted, they are deemed to be true or admitted (Florendo v. Javier, G.R. No. L-36101, 1979)

If the return is filed by an officer in case the prisoner is restrained by a private authority or person - the return is considered only a plea of facts, and the party claiming the custody must prove such facts. Failure to reply to the return or controvert the return is not fatal to the petition. (R102, S13)

EFFECTS OF FAILURE TO FILE RETURN

The Court or justice shall proceed to hear the petition ex parte. (Sec. 12, A.M. No. 07-9-12-SC).

OMNIBUS WAIVER RULE

All defenses shall be raised in the return, otherwise, they shall be deemed waived (Sec. 10, A.M. No. 07- 9-12-SC).

CONTENTS OF THE RETURN

PEREMPTORY WRIT AND PRELIMINARY CITATION

Procedure When There is Surplus

It is the duty of the mortgagee to return to the mortgagor any surplus in the selling price during the foreclosure sale. (Sulit v. CA, G.R. No. 119247, 1997)

Return of Writ of Execution

The writ of execution shall be returnable to the court immediately after the judgment has been satisfied in part or in full.

If the judgment cannot be satisfied in full within thirty (30) days after receipt of the writ, the officer shall report to the court and state the reason therefor. (Rule 39, Sec. 4)

Sheriff’s Return

The sheriff, after paying the obligee, shall make a return in writing to the court of his proceedings and furnish the parties with copies thereof. (Id.).