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EXPLANATIONS AND EXAMPLES RULE 11 (Sections 1-11) WHEN TO FILE RESPONSIVE PLEADINGS SEC 1 Sec 1 is the GR the defendant

t has a period of 15 days after service of summons w/in w/c to file his answer. And let us say on Dec. 15 or 5 days thereafter, your motion was denied, you receive a copy of the order of the denial.

The procedure is when a plaintiff files a complaint in court, the court will issue summons (w/c is the counterpart of warrant of arrest in criminal cases). The sheriff of the court will look for the defendant and serve him a copy of the complaint. From that day on, the defendant has 15 days to file his answer.

So your deadline to file your notice to appeal is Dec. 21. You filed your motion to dismiss on Dec. 10. Therefore, Dec. 10, is not counted bec. it is already interrupted. So actually, you did not consume 10 days but only 9 days. That is the explanation of the SC in the case of Labitad the day you filed your motion to dismiss is already excluded. So you only count Dec. 1 to 9. Nov. 30 Defendant received Summons Dec. 10 Defendant filed a Motion to Dismiss Dec. 15 Motion to Dismiss is denied Dec. 21 Deadline to file the Answer.

The rule says, unless a different period is fixed by the court.

SEC 2 That would be the EXCEPTION to the 15-day period to file his answer. The instances when the court may fix a different period are those mentioned in: Rule 14, Sections 14, 15 and 16 (called as service of summons by publication)

Meaning, the defendant here is a foreign corporation doing business in the Phils. In the 1st place, you cannot sue a foreign private corp. w/c is not doing business in the Phils. bec. there is no way that the court can acquire jurisdiction over the person of such corp.

In computing the period,

you follow the rule known as exclude the first, include the last day rule under Art 13 of the NCC (Ex. Received on Jan. 13 last day to file Jan. 2). It is also found in Sec. 1 of Rule 22 on Computation of Time. Sec. 2 of Rule 22 on the Effect of Interruption A good example of this is period to file an answer w/c is 15 days.And then you filed a motion to dismiss under Rule 16 somewhere in between. The filing of the motion to dismiss will now be interrupt the running period of the 15-day period. And when your motion is denied, if you receive the order of the denial now,

Q. What is the period to answer when the defendant is a foreign private corp. doing business in the Phils? A. It DEPENDS:

a)

When the foreign corp. (FC) has a designated resident agent,

the summons shall be served to the resident agent, and he has 15 days to answer, just like any defendants in Sec 1.

b)

On the other hand, if the FC does not have any designated resident agent in the Phils, - then under the Corporation Code, the summons shall be served to the govt official designated by law to receive the same, who is duty bound to transmit it to the head office of the corporation abroad. And the corp now has 30 days from receipt of summons to file its answer.

So, it is EITHER 15 or 30 days. you continue computing the balance w/in the remaining period to file your answer. Q. Who is this proper govt official designated by law to receive summons? A. GENERALLY, it is the Sec. of the DTI. But some types of business, the law may designate any other official. Like the FC to be sued is a foreign insurance co.,

The day of the act that caused the interruption shall be excluded in the computation of the period.

The meaning of this is exemplified in the case of LABITAD vs CA (July 17, 1995). For example: We will assume on Nov. 30, you were served w/ summons by the court. So you have 15 days to file your answer from Nov. 30. Let us say, on Dec. 10, you filed a motion to

under the Insurance Code, you serve it to the Insurance Commissioner.

Or if it is a foreign bank w/c has branch here,

dismiss under Rule 16. So, the remaining of the period to file an answer is interrupted.

you serve the summons to

the Superintendent of the BSP.

SEC 3 Q. What is the period to file an answer to an amended complaint? A. Under Sec 3, Rule 11, there are 2 periods. It is EITHER 15 days or 10 days. As a Matter of Right The complaint is amended as a matter of right bec. defendant has not yet filed an answer. Meaning, the complaint is served on you and even before you answer it was amended and another complaint is served, then

SEC 4 Q. What happens if the plaintiff does not answer to the COUNTERCLAIM of the DEFENDANT? A. He can be declared in default. He has still standing to prove his cause of action in the main case but he loses his standing to defend himself in the counterclaim. Q. Are there instances where an answer to a counterclaim is optional? A. YES, that is when the counterclaim

you have 15 days to file your answer counted from the day of service of the amended complaint. So forget the original period and you have 15 days all over again.

is so intertwined w/ the main action they are so intertwined that if the plaintiff would answer the counterclaim, it would only be a repetition of what he said in his complaint. In this case, even if the plaintiff will not answer, he cannot be declared in default.

As a Matter of Judicial Discretion The defendant has already answered the original complaint and then the plaintiff decides to amend his complaint w/c under the previous rule, is a matter of judicial discretion. Now, suppose the court issued an order admitting the amended complaint and the defendant is furnished of the copy of the order admitting the amended complaint. Therefore, if he wants to answer the amended complaint, he has 10 days to do it and not 15 days. The 10-day period will be counted from service of the order admitting the amended complaint, not from the service of the amended complaint bec the same may not be admitted. You wait for the order of the court admitting the amended complaint.

EXAMPLE: The plaintiff filed a case against the defendant for damages arising from a vehicular accident. Accdg. to the plaintiff, bec of the negligence of the defendant, the plaintiffs vehicle was damaged amounting to that much. So the cause is quasidelict. Now in his answer, defendant says no and he denied the liability and he files a counterclaim saying, As a matter of fact, it is the plaintiff who is negligent. And since my vehicle was damaged, I am now claiming damages against him. So practically, the issue on negligence is thrown back. Now, the plaintiff is not required to file an answer bec if you do so it would only be a repetition of what he said in his complaint. This is one of the exceptions. Therefore, he cannot be declared in default. SEC 7

So there are 2 periods to file an answer to an amended complaint.

Q. Suppose I will not file an answer to the amended complaint. I filed an answer to the original complaint but I did not file an answer to the amended complaint, can I be declared in default? A. NO, bec. Sec 3 of Rule 11 provides that the answer earlier filed may serve as an answer to the amended complaint if no answer is filed. In other words, my defenses to the original complaint is still applicable. So the principle is: if NO ANSWER IS FILED to the amended complaint, - the answer to the original complaint AUTOMATICALLY serves as the answer to the amended complaint and therefore the defendant CANNOT be declared in default.

If you want to file a reply,

you have 10 days to file. But as a GR, the filing of reply is optional.

SECS 9 and 10 These illustrate the distinction bet an amended pleading to a supplemental pleading. If the counterclaim/cross-claim was acquired by a party after serving his pleading,

he may raise it by way of SUPPLEMENTAL PLEADING.

But if a pleader fails to set up a counterclaim/cross-claim w/c is already matured when he filed his pleading due to the inadvertence or excusable neglect,

then he may raise it by way of AMENDED PLEADING.

Sec 11 Q. Is the 15-day period extendible? A. YES, upon motion and on such terms as may be just, the court may extend the time to plead. When you file you Motion for Extension, do it w/in the original 15-day period. Do not file your motion on the 16th day bec there is nothing to extend. So the extension is usually filed w/in the 15-day period. Q. What happens if the lawyer files to such a motion? A. The lawyer can use the second paragraph of Sec 11 of Rule 11, The court may also, upon like terms, ALLOW an answer/other pleading to be filed after the time fixed by these Rules. The correct motion is MOTION TO ADMIT LATE ANSWER. SUMMARY OF TIME TO FILE RESPONSIVE PLEADING PLEADING PERIOD 1. Answer 2. Answer of a private foreign corporation a. w/ designated Phil representative b. no designated Phil representative 3. Answer to an amended complaint a. if as a matter of right b. if as a matter of judicial discretion 4. Answer to a counterclaim/cross-claim 5. Answer to a 3rd (4th, etc.) party complaint 6. Reply 7. Answer to a supplemental complaint RULE 12 (Sections 1 6) BILL OF PARTICULARS SEC 1 BILL OF PARTICULARS 15 d 15 d 30 d 15 10 10 15 10 10

Q: What is your remedy?

A. The remedy is, instead of answering, you file a


Motion for a Bill of Particulars and accdg. to Sec 1, Rule 12, your motion will point out the defects complained of, the paragraphs where they are contained and the details desired. Bec. accdg. to you, the allegations are not averred w/ sufficient definiteness/ particularity to enable you properly to prepare your responsive pleading that is what it is all about. So the defendant resorts to the BOPBill of Particulars if the allegations of ultimate facts in the complaint are vague and ambiguous that the defendant had difficulty in preparing his answer. So, he cannot understand and will ask for more details to clear the ambiguities. BAR QUESTION Q. Suppose a complaint is ambiguous, uncertain, indefinite or vague, can the defendant file a Motion to Dismiss? A. NO. A complaint cannot be dismissed simply bec. it is vague, ambiguous. The correct remedy is for the defendant to file a Motion for Bill of Particulars, w/c will ask for more details on these vague portions of the complaint. Accdg. to the SC, the primary purpose of bill of particulars

is to apprise the adverse party of what a plaintiff wants. To preclude the latter from springing a surprise attack later. Bec. the plaintiff may deliberately make his allegations vague. Now, the other party should thwart that by asking for a BOP to compel the plaintiff to make the allegations of his cause of action clearer. So, that is what the BOP is all about.

PROBLEM Suppose the pleader says in his complaint that he has been in the possession of the litigated property continuously for 40 yrs. The defendant filed a Motion for BOP. The allegations is very broad, very general, very vague. Please tell by way of particulars what are the improvements you introduced for the past 40 years. I would like to ask for these details to clarify your allegations that you have been in continuous possession of the land for 40 yrs. Q. Is that a proper Motion for a Bill of Particulars? A. NO, because it is asking for evidentiary matters. In the first place, the plaintiff has no obligation to state the evidentiary matters in his complaint. It should only state ultimate facts. So, it is not allowed in the pleading. You cannot ask for that by way of particulars.

is a more definite statement of any matter w/c is not averred w/ sufficient definiteness or particularity in a pleading so as to enable the opposing party to prepare his responsive pleading.

FACTS: The plaintiff filed a complaint against you and you are now furnished w/ a copy by the lawyer of the plaintiff. So, you have to file your answer. You have to understand what the cause of action is all about. You noticed that the allegations are vague, ambiguous, and uncertain. You have a hard time preparing your answer. Now

you do not want to answer something that you cannot understand.

What is sought to be remedied are vague and ambiguous statements of ultimate facts. But you cannot used it to fish for evidentiary matters. Evidentiary facts cannot be the subject of a Motion for a BOP.

Q. But is it not fair that before trial I should know your evidentiary matters? A. I believe it is fair for the defendant to compel the plaintiff to reveal the details of his ultimate facts but not under Rule 12. You better avail of the modes of discovery under R. 23, depositions, request for admission, etc. But you cannot convert R. 12 into a mode of discovery. Each Rule has its own functions. SEC 3 PROBLEM The plaintiff will sue the defendant for annulment of contract on the ground that the defendant employed FRAUD in getting the consent of the plaintiff. The plaintiff said, He got my consent to the contract by fraud. The defendant filed a Motion for a BOP That the defendant employed fraud in getting plaintiffs consent is vague. So, Im asking the plaintiff give more specific. Q. Is the Motion for a BOP meritorious? A. YES, bec allegations of fraud must be stated w/ particularity. So, you go back in Rule , Section 5. Q. Suppose, it is the answer w/c is vague. Can the plaintiff file a Motion for a BOP to compel the defendant to clarify or particularize his vague answer? A. YES, bec the plaintiff can say, I want to file a reply but I cant file a reply unless I understand what is your defense. Q. Sup., it is the reply of the plaintiff to the answer w/c is vague or ambiguous. Can the defend-ant file a Motion for a BOP to clarify the vague reply? A. YES. Accdg to Sec 1, the motion is to be filed w/in 10 days. So even if the reply is vague, it can still be the subject of the BOP w/in 10 days bec there is no more responsive pleading here. So, every pleading w/c is vague the other party can always compel you to make it clearer. Q. Is this remedy applicable in criminal cases? A. YES. If it is the information which is vague, you cannot understand the allegations in the information, you cannot plead. In this case, the accused can file a Motion for a BOP to require the prosecution to clarify vague portions of a complaint /information. SEC 2 Q. What is the reason behind Sec 2? Why do you think is this provision here, w/c is not found in the old rules? A. Many lawyers have abuse Rule 12. A complaint is filed. The allegations are clear. But he will file a Motion for a BOP that he cannot understand. Then, he will set the hearing 2 weeks from now. Then the motion is denied bec it has no merit, then SEC 4

So in order to prevent that kind of dilatory tactic, when the motion is filed, the court is now authorized to immediately act on the motion w/o delaying the filing of the answer. That is the reason why this provision was inserted bec the filing of the motion for BOP can cause delay.

Q. Suppose the court grants the motion and the defendant or the plaintiff will be required to submit the BOP. How will you comply w/ the order to file a BOP? A. There are 2 ways: 1. Just submit the details of the vague paragraphs; or 2. Amend the whole complaint and clarify the vague paragraphs.

Q. Suppose the motion is granted, the court ordered the plaintiff to submit a BOP. The plaintiff refused to comply w/ the order. What is now the remedy? A. The court may order the striking out of the pleading or portions thereof w/c is the object of the BOP. Like for example, you will not clarify your complaint. Alright, I will now issue an order to strike out the entire complaint. It is as of the complaint was never filed. Practically, your complaint was dismissed. In effect your complaint was dismissed bec. if the complaint was ordered stricken out, then it is equivalent to dismissal of the case itself. SEC 5 Q. What is the effect for a motion for a BOP when you file a motion? What is the effect on that on the 15-day period to file the answer? A. The 15-day period to answer is stopped or interrupted upon the filing of the motion for BOP. The period continues to run from the date that you received the BOP, if your motion is granted, or from the receipt of the order denying your motion if it was denied. From there, the period to answer will run again so you have to file your answer or w/in the balance of the remaining period.

you file an answer. In other words, the period to file for an answer has been delayed. The defendant has succeeded in delaying the period for filing an answer by pretending that he cannot understand but actually it is clear.

ILLUSTRATION: I have 15 days to file an answer. On the 8th day, I filed a motion for a BOP. On that day, the running period automatically stops and then after several days, you receive the order. For example, denying your motion, you will have 7 days to go bec. the period during w/c your motion was pending will not be counted. The running of the 15-day period was interrupted. Q. Suppose, you file your motion for a BOP on the 14 day and your motion is denied. You received the order today. How many days more to file an answer?
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SEC 2 FILING SERVICE

is the act of presenting the pleading or other paper to the clerk of court.

is the act of providing party w/ a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.

A. Five (5) days. You are guaranteed a minimum of 5 days. Even if it has 1 day remaining period. So, it is 5 days or more but never less than 5 days. Therefore, if a defendant filed the motion for BOP w/in 15 days, he cannot be declared in default. The plaintiff cannot declare the defendant in default for failure to answer bec. 15 days had already lapse. It will be interrupted by the filing of the motion and the period commences to run again from the time he received the BOP or the order denying his motion but not less than 5 days in any event. SEC 6 When you file a BOP clarifying the paragraphs in the complain w/c are vague,

you present the pleading in the office of the clerk of court.

you furnish a copy of the pleading to the party concerned, or if he is represented by a lawyer, you must furnish a copy of the pleading to the lawyer.

the BOP becomes part of the complaint w/ its supplements.

GENERAL RULE: When a party is represented by a lawyer,

RULE 13 (Sections 1 14) FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS SEC 1 As a general rule, service of all pleadings is governed by Rule 13. This rule governs pleadings except those for w/c a different mode of service is prescribed. Rule 13 applies to all pleadings except complaint.

the service should be to the lawyer and not to the party. Service to a party is not valid. What is valid is service to the counsel. Service to the lawyer binds the party. But service to the party does not bind the lawyer, unless the court orders direct service to the party.

Q. What is the reason for requiring service upon the lawyer if the party is so represented? A. The reason for the rule is to do away w/ the subsequent objection w/c the party served may raise to the effect that he knows nothing about court procedure and also to maintain a uniform procedure calculated to place in competent hands the orderly prosecution of a partys case. So, the purpose there is to avoid any complaint later that the party did not know what to do. Since the lawyer is presumed to know the rules, at least it is on competent hands. But if you serve to the party

himself, the problem is he might start complaining later.

Q. When the client volunteered to get the copy of the decision. But he failed to give it to his lawyer. Is the lawyer bound, or is the party is also bound? A. No, bec. the rule is service to a lawyer binds the client and not the other way around. So, to avoid all these problems, there must be a uniform rule UNLESS, the law says, SERVICE UPON PARTY HIMSELF IS ORDERED BY THE COURT. Usually, service is ordered upon the party himself, instead of upon his attorney,

PERSONAL FILING

FILING BY REGISTERED MAIL - By sending them by registered mail.

shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court. The clerk of court shall endorse on the pleading the date and hour of filing.

- The date of the


mailing of motions, pleading, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case.

1. 2. 3.

when it is doubtful who the attorney for such party is, or when he cannot be located, or when the party is directed to do something personally, as when he is ordered to show cause.

CIRCUMSTANCES WHERE SERVICE TO THE LAWYER DOES NOT BIND THE CLIENT. These are cases of negligence:

1. 2.

where the lawyer is in bad faith for gross negligence; where he deliberately prejudiced his client

Q. Suppose I will file my pleading through messengerial service like LBC or JRS Express delivery, or by ordinary delivery. What is the rule if instead of the registered service of the Post Office, you availed the private messengerial service or by ordinary mail? A. The mailing in such cases is considered as personal filing and the pleading is not deemed filed until it is received by the court itself. When it is registered mail,

So it is unfair that the party may be bound by the service to the lawyer bec. of those circumstances. Q. If there are 5 defendants in the same case and there is only 1 lawyer for all, is the lawyer entitled to 5 copies also? A. NO, the lawyer is not entitled to 5 copies but only 1. In the last sentence of Sec. 2 of Rule 13, Where one counsel appears for several parties, he shall only be entitled to 1 copy of any paper served upon him by the opposite side. But if the 5 defendants are represented by different lawyers, that is another story. Every lawyer has to be furnished a copy. Q. Suppose you are represented by 3 or more lawyers. Such as collaborating lawyers. Are each lawyers must have copies? A. NO, service on 1 is sufficient. Section 2 says ...service shall be made upon his counsel or one of them... Service to 1 is service to all. You can do it if you want to but service on 1 will suffice. SEC 3 Q. How do you file pleadings? A. Under Section 3 of Rule 13, there are 2 modes of filing either

the date of mailing as shown by the Post Office stamp is considered as the date of filing. The envelope is attached. The post office is automatically a representative of the court for the purpose of filing. In other words, the law treats the messengerial company only as your process helper.

Q. Is the filing of pleadings through fax machine valid? A. Filing a pleading by facsimile transmission is NOT sanctioned by the Rules of Court. A facsimile is NOT a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a SHAM pleading.

1. 2.

personally; or by registered mail

SEC 12 Q. How do you prove that really the pleading was filed, personally or registered mail, when it was not there in the court? A. If filed in court PERSONALLY just show your copy w/c is duly stamped and received by the court. Definitely, the fault is not yours but w/ the clerk of court.

HELD: While it is true that the service was improper, but the trouble is, it was going on for some time and you are not complaining. So, the ground flr becomes your adopted address. They cannot now disown this adopted address, the ground floor, to relieve them from the effects of their negligence, complacency or inattention. Service, therefore, of the notice of judgment of the ground flr of the bldg, should be deemed as effective service. Q. When is personal service or service by mail deemed complete? A. It is deemed complete upon actual delivery. Section 10 of Rule 13. SEC 9 3 Modes of Serving Court Orders/judgments to parties: 1. 2. 3. SEC 11 Q. What the law requires when you served the opposing counsel papers emanating fr the court by mail? A. The law requires that you must give an explanation why you resorted to mail & not to personal service. Q. Suppose I will file it without any explanation. A. The law says, A violation of this rule may be cause to consider the paper as not filed. SEC 13 PROOF OF SERVICE
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If filed by REGISTERED MAIL

Prove it by presenting the registry receipt and the affidavit of the server, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court. It must be stressed that the affidavit is very important.

SEC 5 Q. How do you SERVE a pleading to the opposite party? A. Either: 1. 2. 3. Personally (Sec 6); By mail (Sec 7) ; or substituted service under Sec 8 in case of failure of the personal service or by registered mail

Personally; Registered mail; or Service by publication

SEC 6 FACTS: The office of the lawyer is on the 9th floor of the bldg. The process server left the copy of the judgment to the receiving station at the ground floor. ISSUE: Was there a valid service? HELD: NO. The address of the lawyer is at the 9 floor. So, you serve it on the 9th floor and not at the ground floor w/ somebody who is not even connected w/ the law office. Notices to counsel should properly be sent to the address of record in the absence of due notice to the court of change of address. The service of decision at the ground floor of a partys bldg. And not at the address of record of the partys counsel on record at the 9th floor of the bldg. cannot be considered a valid service. Service upon a lawyer must be effected at the exact given address of the lawyer and not in the vicinity or at a general receiving section for an entire multistoried bldg w/ many offices. FACTS:

If by PERSONAL SERVICE It is through the written admission of the party as admitted that he had been furnished w/ a copy. The other alternative is that you file the affidavit of your employee, or messenger, that he served the copy in the office of so and so, containing full statement of facts. Or, the official return of the server. If it is by ORDINARY MAIL

Proof thereof shall consist of an affidavit of a person mailing of facts showing compliance w/ Sec 7 of Rule 13.

If it is by REGISTERED MAIL

The office of the lawyer is located on the 5th floor. The process server just approached the receiving station on the ground floor. The receiving clerk, every time the lawyer passes by, gave it to the lawyer. And the lawyer here did not question the practice. Now, when a decision against the PCI was served, the lawyer claimed they are not bound bec there was no proper service. ISSUE: Was there proper service?

Proof shall consist of the affidavit of the mailer and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender. Or, in lieu thereof, of the unclaimed letter together w/ the certified or sworn copy of the notice given by the postmaster.

SEC 14 NOTICE OF LIS PENDENS NOTICE OF LIS PENDENS notice of pending action/ litigation.

RULE 14 (Sections 1 20) SUMMONS SEC 1 CLERK TO ISSUE SUMMONS Summons vs Warrant of Arrest

is part of the Property Registration Law. The essence of notice of lis pendens is a notice against the whole world against sale or mortgage of the property under litigation. And whoever deals w/ it is accepting the risk. Anybody who buys it is gambling on the outcome of the case. He cannot claim he is the mortgagee or buyer in good faith because there is a notice.

1. Summons in civil cases is the counterpart of


warrant of arrest in criminal cases.

2. Under the Rules on Criminal Procedure, when an

info 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 of Rule 14.

GR: As GR, the one who registers a notice of lis pendens is the plaintiff. EXCEPTION: Q. Under Sec 14, can the defendant register a notice of lis pendens? A. YES. The law states that The plaintiff and the defendant may register when affirmative relief is claimed in this answer. In such case, a defendant may register and normally it is done when there is a counterclaim. The defendant is also interposing a defense w/ the same property. The action in this case affects the right of possession over real property. Q. How is a notice of lis pendens cancelled? A. GR: The notice of lis pendens under the rules CANNOT BE REMOVED without the order of the court and generally the COURT CANNOT issue the order UNTIL the case is finished or UNTIL the final issue of the case is determined. EXCEPTION: But is some rare instances, the SC has authorized the cancellation of the notice of lis pendens even when the case is not yet terminated. One of w/c is contemplated under Sec 14 of Rule 13: After proper showing that the notice is:

SEC 2 CONTENTS OF SUMMONS SUMMONS Definition:

A writ or process issued and served upon a defendant in a civil action for the purpose of securing his appearance therein.

Purpose:

The service of summons enables the court to acquire jurisdiction over the person of the defendant.

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 w/in the jurisdiction of the court. 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. 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 commenced against the additional defendant upon the amendment in the complaint.

a) For the purpose of molesting the adverse


party; or

b) It is not necessary to protect the rights of the


party who caused it to be recorded. FACTS: Plaintiff filed a case against the defendant to recover a pc of land registered in the name and possessed by the defendant. The case has been going on for more than 1 yr, the plaintiff has been presenting evidence but he has not yet shown that he has right over the land. HELD:

So there is no more basis of notice of lis pendens bec your purpose is to harass the defendant for over a yr litigation w/o showing right over the land. While a notice of lis pendens cannot ordinarily be cancelled for as long as the action is pending and unresolved, the proper court has the authority to determine whether to cancel it under peculiar circumstances, e.g., where the evidence so far presented by the plaintiff does not bear out the main allegations in the complaint.

Q. Suppose a defendant, who has already been summoned, died, and there was substitution of a 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.

BAR QUESTION: If a defendant is served w/ summons and later on the complaint is amended by 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?

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. APPEARANCE IN ACTION

A. It DEPENDS on whether the amendment was


made before or after defendants appearance in the action: Q. What do you mean by the 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

is best manifested by the filing of an answer by the defendant. However, it is not only limited to the filing of an answer. When the defendant files a motion for extension of time to file his answer, that is already an appearance in action. If the defendant files a motion for BOP under Rule 12, that is already considered as an appearance in action.

means filing something in court w/c 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. If the defendant has not filed an answer to the original complaint

SEC 3 BY WHOM SERVED Q. Who can serve summons? Who are authorized by law to serve summons? A. Under Section 3 of Rule 14, the following: 1. 2. 3. 4. Sheriff; Deputy Sheriff; Other proper court officer (court employees); For justifiable reasons, by any suitable person authorized by the court

a)

there must be another summons issued on the amended complaint. A new summons must be served all over again based on the amended complaint.

b)

If the defendant 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.

To deputize/authorize another person to serve summons there must be a court order deputizing/authorizing such person. 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 w/in 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. The service of summons is valid because the service of summons is MINISTERIAL. Service of summons may be made at night as well as during the day, even on a Sunday or holiday because of its ministerial character.

Q. Connecting the question w/ Rule 11 (on periods to file pleadings), suppose the defendant was served w/ summons on the original complaint and before he could answer, there is now and 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 on the amended complaint reckoned upon the 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 is no need of summons. All that the plaintiff has to do is to furnish the defendant a copy of the amended complaint w/ a copy of the order admitting the filing of the amended complaint.

SEC 4 RETURN The duty of the sheriff AFTER service of summons

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. 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 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. SEC 7 SUBSTITUTED SERVICE Q. What is substituted service? A. If, for justifiable causes, the defendant cannot be served w/in reasonable time as provided in the preceding section, service may be effected

Is that he should make a report to the court as to what happened. That is what is called a SHERIFFS RETURN. 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.

REASON: There must be a report bec that

1. 2.

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, at least you must also return the summons to the court and make that you cannot serve the summons.

a)
SEC 5 ISSUANCE OF ALIAS SUMMONS The serving officer shall also serve a copy of the return on the plaintiffs counsel stating the reasons for the failure of service

By leaving copies of the summons at the defendants residence w/ some person of suitable age and discretion then residing therein, or By leaving the copies at defendants office or regular place of business w/ some competent person in charge thereof.

b)

w/in 5 days therefrom.

They should tell the lawyer what happened so that if the summons was NOT served,

If the defendant cannot be served personally or in person under Sec 6,

the lawyer can file a motion for the issuance of an alias summons, like he cannot serve the summons bec the defendant is not already in the address given.

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.

Q. For what purpose the server should also serve a copy of the return on the plaintiffs counsel? 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 2nd summons is what lawyers call an ALIAS SUMMONS. MODES OF SERVICE OF SUMMONS TO INDV. DEFENDANTS

Q. Suppose, the sheriff goes to the defendants house and says, Is this the residence of Mr. X? Yes. Is he around? No, he left for work, but he will be back for 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 Sec 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

1. Service in person on defendant (Sec. 6, Rule 14); 2. Substituted Service (Sec. 7, Rule 14); and 3. Service by Publication (Secs. 14, 15 and 16, Rule 14) Q. How is SERVICE IN PERSON done? A. It is effected by a) handling 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. No substitute to the defendant himself. Not even to his wife, child or anybody else in their house.

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 w/o attempting service in person several times. The law is very clear if, for justifiable causes, the defendant cannot be served w/in 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 w/in reasonable time for justifiable causes (under Rule 14, Sec. 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, every time 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 the SC, should only be resorted to if there is failure of personal service w/in reasonable time for justifiable causes. DISTINCTIONS BETWEEN SERVICE OF PLEADINGS A (RULE 13) AND SERVICE OF SUMMONS (RULE 14) SERVICE OF PLEADINGS A (R. 13) SERVICE OF SUMMONS (RULE 14)

SERVICE OF SUMMONS BY PUBLICATION (Secs. 14, 15 and 16) SEC 14 SERVICE UPON DEFENDANT WHOSE IDENTITY/ WHEREABOUTS ARE UNKNOWN Under this provision, service of summons is allowed: 1. Where the defendant is designated as unknown owner. You have no idea where he is staying; or 2. Where the defendant is known but his whereabouts are unknown and cannot be ascertained by diligent inquiry. FACTS: 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. 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 w/ 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 publication and in such places and for such time as the court may order. SEC 15 EXTRATERRITORIAL SERVICE Q. Can you sue in the Phils. a defendant who is not residing in the Phils. and who is not around physically? A. NO, you cannot bec there is NO way for the court to acquire jurisdiction over his person. EXCEPT when action in rem or quasi in rem, like when the action is the personal status of the plaintiff who is in the Phils. or the properties of the defendant are in the Philippines. And the venue is where the plaintiff resides of where the property is situated. That is found in Section 3, Rule 4. Q. If the defendant who is not around and is not

1. In Rule 13, Sec. 6 is


known as personal service

1.

In Rule 14, it is known as substituted service. Service of summons is governed by Rule 14.

Service of pleadings, judgments and other papers is governed by Rule 13.

2. 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.

2.

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 w/ some person of suitable age and discretion residing therein or by leaving copies at the defendants office or regular place of

business w/ some competent person in charge thereof. In Rule 14, there is NO such thing as service of summons through registered mail. 1.

residing in the Phils. can be sued under Rule 4, how will you serve summons? A. This is answered by Section 15, Rule 14.

Q. In what instances can you sue in the Phil. Courts a defendant who does not reside and is not found in the Phils? When may a defendant be sued and served w/ summons by extraterritorial service? A. In Section 15, Rule 14, there are 4 instances when a defendant who does not reside and is not found in the Phils. may be sued and summons served by extraterritorial service, provided the case is in rem or quasi in rem:

Q. Is extraterritorial service of summons under Sec. 15 a mode of acquiring jurisdiction over the person of the defendant? A. NO, even if you will publish the summons a hundred times in a newspaper, still the Phil court will not acquire jurisdiction over the person of the defendant bec. it is simply out of the country. Even if he is served w/ summons, our processes have no effect outside Phil. 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 the plaintiff. Q. 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? A. To comply w/ the requirement of due process. He should be informed before he loses his property in the Phils. 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 in the Philis. So, the judgment will not e useless and it can be enforced. But at least, the owner who is abroad should be informed about it. FACTS:

1) The action affects the personal status of the


plaintiff; Ex. A child left behind files a case against his father for compulsory recognition or acknowledgment at least to improve his status bec the res is the status of the plaintiff.

2) When the action relates to or the subject of w/c is,


property w/in the Phils., in w/c the defendant has or claims a lien/ interest, actual/contingent;

3) When the action relates to or the subject of w/c is,


property w/in the Phils in w/c 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 w/in the Phils.

So an action in personam can never be filed against a non-resident defendant. Q. What is the difference bet. Sec. 14 and Sec. 15? A. The difference bet. Sec. 14 and 15 is that in Sec. 14,

I will file a case against a non-resident defendant for recovery of a piece of land and damages. HELD: The claim for recovery of land is IN REM. The claim for damages is IN PERSONAM. He is summoned by publication and the SC ruled that 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. The relief IS LIMITED to the RES so there could be NO

the defendant is in the country but his exact whereabouts is unknown,

whereas in Sec. 15,

he is really out of the country and is no longer residing here.

MODES OF EXTRATERRITORIAL SERVICE Service may, with leave of court, be effected in the Phils.:

RELIEF for damages UNLESS he voluntarily submits himself to the jurisdiction of the court. 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 w/ Sec. 1, Rule 11: The defendant shall file his answer to the complaint w/in 15 days AFTER service of summons, UNLESS a different period is fixed by the court.

1. By personal service under Sec. 6 2. By publication in a newspaper of general


circulation in such places and for such time as the court may order, in w/c 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.

3.

SEC 17 LEAVE OF COURT

SERVICE OF SUMMONS BY PUBLICATION UNDER S16 SEC 16 RESIDENTS TEMPORARILY OUT OF THE PHILS Q. Distinction bet. Sec 15 and Sec 16 A. In Sec 15, defendant

The plaintiff or some person in his behalf must file a motion to effect service of summons by publication. The court will then issue an order.

FACTS: VALMONTE vx. CA X is a foreign resident, residing abroad. Her husband, Y, who is also her atty., has a law office in the Phils. Now the sister of X filed a case against her for partition of real property. The summons intended for X was served on her husband in the latters law office. ISSUE: Was there a valid service of summons on X? HELD: There is NONE. There was no valid service of summons. REASONS: 1.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 X is a nonresident who is not found in the Phils., summons on her must be in accordance w/ Rule 14, Section 15. So, you must follow the modes of service under Sec. 15 bec. the action is QUASI IN REM. In this case, the service of summons was not effected personally. There was also no publication. The only possibility is the 3rd one, in any other manner the court may deem sufficient. But the 3rd mode applies only when you are serving the summons abroad. You cannot apply this when you are serving the summons in the Phils. So it does not fall under the 3rd mode. This mode of service, like the 1st 2, must be made outside of the Phils. such as through the Phil. Embassy in the foreign country where the defendant resides. 2. Under Sec 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, no motion was filed here. There was no

Is residing abroad and not even found in the Phils,

while Sec 16, defendant

Is residing in the Phils but temporarily out of the Phils

To serve the summons to the defendant, you can serve them just like in Sec 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.

SECTIONS 14 AND 15 SEC 16 The action is IN PERSONAM. The service of summons could be also substituted service of summons (Sec 7) in addition to Section 15 The action MUST be in REM or QUASI in REM.

FACTS: MONTALBAN vs. MAXIMO The defendant is residing in the Phils but on a world tour and he will be out for so many months. So, the sheriff served upon the person in charge the

also order of the court authorizing it. So, it does NOT comply with Sections 15 and 17. 3. When the defendant is a non-resident and being served abroad under Sec 15, the law guarantees a minimum of 60 days to answer the complaint pursuant to Sec 15. And here, she was only given 15 days to file the answer. Therefore, there was an erroneous computation on the period to answer.. Finally and most importantly, bec there was no order granting such leave, X was NOT given ample time to file her Answer, w/c according to the rules, shall be NOT less than 60 days after notice. It must be noted that the period to file an Answer in an action against a resident (15 days from service of summons) differs from the period given in an action filed against a non-resident defendant who is not found in the Phils. (at least 60 days from notice). So, those are the 3 main reasons cited by the SC on why there was IMPROPER service of summons on X under the rules.

summons. So, the sheriff resorted to SUBSTITUTED SERVICE under Sec 7. And there was a default judgment. When the defendant came back, he was already in default, execution was made. He question the service of summons bec under Sec 16, in relation to Sec 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 Phils but temporarily out? HELD: YES. Substituted service is also applicable. Unlike Sec 15 where the defendant has no residence here, in this case you have a residence here. The sheriff resorted to substituted service by leaving it to the person in charge, a person of sufficient age and discretion bec for justifiable reasons, substituted service is also applicable even if the defendant is outside of the Phils.

It is true that personal service is preferred. BUT if the personal service CANNOT be effected WITHIN a reasonable time, the sheriff CAN resort to substituted service. In this case, the sheriff CANNOT serve personally bec the defendant will be out for the country for the next 4 or 5 months. So, the sheriff HAS to resort to substituted service. ISSUE 2: CAN THE JUDGMENT BE SET ASIDE IN THE NAME OF EQUITY FOR IT IS UNFAIR THAT HE HAD NO KNOWLEDGE ABOUT THE CASE? 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 call up perhaps the person left could notify you about the summons. You are very irresponsible? To rule otherwise is to award your being irresponsible. So the case of Montalban provides that the service of summons under Sec 16 on the defendant DOESNT prevent the application of Section 7(Substituted Service) in addition to Section 15 (Extraterritorial Service). Summons can be served abroad just like Sec 15 BUT it does NOT MEAN to say that you cannot apply Sec 7 bec anyway it does NOT say MUST, it uses MAY. SERVICE OF SUMMONS IN EXCEPTIONAL CASES 1. 2. 3. 4. 5. 6. Service Service Service Service Service Service upon upon upon upon upon upon entity w/o juridical personality (Sec 8) prisoners (Sec 9) minors and incompetents (Sec 10) domestic private juridical entity (Sec 11) foreign private juridical entity (Sec 12) public corporations (Sec 13)

RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS When response to the following pleadings must be filed 1. main complaint, third or fourth party complaint within 15 days after service of summons, unless a different period is fixed by the court 2. if defendant is a foreign private juridical entity and service of summons is made on the government official so designated by law within 30 days after receipt of summons by the foreign entity 3. amended claims 1. 15 days from service of amended complaint, if amended as a matter of right 2. 10 days from notice of admission of amended complaint, if amended with leave of court (An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed) 3. answer, counterclaim or cross-claim within 10 days from service 4. supplemental complaint within 10 days from notice of the admitting court order, unless a different period is fixed by the court (answer to the complaint shall serve as the answer to the supplemental complaint if no new or supplemental answer is filed). Grounds to admit an omitted counterclaim or cross-claim by amendment(before judgment) 1. oversight 2. inadvertence 3. excusable neglect 4. justice requires RULE 12 BILL OF PARTICULARS Bill of particulars definite statement of any matter which is not averred with sufficient definiteness or particularity to enable the adverse party properly to prepare his responsive pleading. Procedure in bill of particulars 1. application by an adverse party before responding to a pleading, or within 10 days from service of the reply 2. clerk of court brings it to the attention of the court 3. (no hearing necessary) the court either 1. deny it outright 2. grant it outright 3. allow the parties the opportunity to be heard 4. If the motion is granted, the compliance therewith must be effected within 10 days from notice of the order, unless a different period is fixed by the court. 5. The bill of particulars may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party 6. After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party may file his responsive pleading within the period to which he was entitled at the time of filing his motion, which shall not be less than 5 days in any event. 7. If the order is not obeyed, or in case of insufficient compliance, the court may order the striking out of the pleading or the portions thereof to which the order was directed or make such other order as it deems just. 8. A bill of particulars becomes part of the pleading for which it is intended. RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS Filing the act of presenting the pleading or other paper to the clerk of court. Service the act of providing a party with a copy of the pleading or paper concerned. 1. If any party has appeared by counsel, service should be upon his counsel, unless service upon the party himself is ordered by the court. 2. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. Papers required to be filed and served 1. judgment 2. resolution 3. order 4. pleading subsequent to the complaint 5. written motion 6. notice 7. appearance 8. demand 9. offer of judgment 10. or similar papers Except court papers, resort to modes other than personal service must be accompanied by a written explanation why the service or filing was not done personally, otherwise it is ground to consider the paper as not filed. Two ways of filing 1. personally presenting the original copies to the clerk of court, who shall endorse on the pleading the date and hour of filing 2. sending the original copies by registered mail, the date of the mailing as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing Note that filing may not be by ordinary mail or substituted service. These methods are available only on service of papers, not filing. Proof of filing 1. its existence in the record of the case 2. If it is not in the record, but is claimed to have been filed 1. Personally written or stamped acknowledgment of its filing by the clerk of court on a copy 2. registered mail by the

1) registry receipt, and 2) affidavit of the person who did the mailing, containing a full statement of a) the date and place of depositing the mail in the post office b) in a sealed envelope c) addressed to the court d) with postage fully prepaid e) with instructions to the postmaster to return the mail to the sender after 10 days if not delivered Four modes of service of papers 1. personal complete upon delivery 2. Registered mail complete upon actual receipt, or after 5 days receipt of first notice of the postmaster, whichever is earlier 3. ordinary mail complete upon expiration of 10 days after mailing, unless the court otherwise provides 4. substituted service complete upon delivery to the clerk of court Priorities in personal service of papers 1. leaving it in his office with his clerk or with a person having charge thereof 2. if not possible, then by leaving the copy, between 8 a.m. to 6 p.m. at his residence, with a person of sufficient age and discretion then residing therein Priorities in service by mail of papers 1. registered mail to office, if known 2. otherwise registered mail to residence, if known 3. If no registry service is available in the locality of either the sender or the addressee, service may be done by ordinary mail. Requisites for substituted service of papers 1. service can not be made personally or by mail 2. the office and residence of the party or his counsel being unknown 3. deliver a copy to the clerk of court 4. with proof of failure of both personal service and service by mail (certified or sworn copy of the notice given by the postmaster to the addressee) Sec. 13. Proof of service. Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. RULE 14 SUMMONS Contents of a summons 1. names of the court and parties to the action 2. a direction that the defendant answer within the time fixed by these Rules 3. a notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. 4. copy of the complaint and order for appointment of guardian ad litem, if any Procedure in summons 1. filing of the complaint and the payment of the requisite legal fees 2. the clerk of court issues the corresponding summons to the defendants 3. summons served by 1. the sheriff 2. his deputy 3. other proper court officer, or 4. any suitable person authorized by the court issuing the summons, for justifiable reasons 5. If 1. service has been completed within 5 days from service, the server shall 1) serve a copy of the return, personally or by registered mail, to the plaintiffs counsel and 2) return the summons to the clerk who issued it, accompanied by proof of service 1. If a summons is returned without being served on any or all of the defendants 1) server shall serve a copy of the return on the plaintiffs counsel, stating the reasons for the failure of service within 5 days therefrom 2) the clerk, on demand of the plaintiff, may issue an alias summons (also if summons has been lost) the rules on summons on defendant who is a 1. resident 1. Present in the Philippines 1) Personal service (Rule 14, Sec. 6) 2) Substituted service (Rule 14, Sec. 7) 3) Publication, but only if a) his identity or whereabouts is unknown (Rule 14, Sec. 14), AND b) the action is in rem or quasi in rem [Citizen Surety v. Melencio-Herrera, 38 SCRA 369 (1971)] 1. Absent from the Philippines 1) Substituted service (Rule 14, Sec. 7) 2) Extraterritorial service {Rule 14, Sec. 16 and 15; action need not be in rem or quasi in rem [Valmonte v. CA, 252 SCRA 92 (1996)]} 1. non-resident 1. Present in the Philippines 1) Personal service (Rule 14, Sec. 6) 2) Substituted service (Rule 14, Sec. 7) 1. Absent from the Philippines 1) Action in rem or quasi in rem only Extraterritorial service (Rule 14, Sec. 15) 2) Action in personam, and judgment can not be secured by attachment (e.g. action for injunction) a) wait for the defendant to come to the Philippines and to serve summons then b) bait the defendant to voluntarily appear in court (Rule 14, Sec. 20) c) plaintiff can NOT resort to extraterritorial service of summons [Kawasaki Port Services v. Amores, 199 SCRA 230 (1991), and Dial Corporation v. Soriano, 161 SCRA 737 (1988)]. Requisites for service by publication 1. the action is in rem or quasi in rem 2. defendants identity or whereabouts 1. are unknown and 2. cannot be ascertained by diligent inquiry 3. with leave of court Requisites for extraterritorial service 1. Either 1. defendant does not reside and is not found in the Philippines, or 2. defendant ordinarily resides within the Philippines, but who is temporarily out of it 3. action either 1. affects the personal status of the plaintiff or 2. relates to, or the subject of which is, property within the Philippines

1) in which the defendant has or claims a lien or interest, or 2) in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or 3) belongs to the defendant and has been attached 1. leave of court 2. the order shall specify a reasonable time, which shall not be less than 60 days after notice, within which the defendant must answer Actions in rem or quasi in rem 1. affects the personal status of the plaintiff or 2. relates to, or the subject of which is, property within the Philippines 1. in which the defendant has or claims a lien or interest, actual or contingent, or 2. in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or 3. belonging to the defendant and has been attached How extraterritorial service of summons effected with leave of court 1. by personal service out of the Philippines 2. by publication with copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or 3. in any other manner the court may deem sufficient

1.

e.g. service by registered mail where registry return shows actual receipt [Carriaga, Jr. v. Malaya, 143 SCRA 441 (1986)]

2.

must be made outside the Philippines [Valmonte v. CA, 252 SCRA 92 (1996)] RULE 16 MOTION TO DISMISS Section 1. Grounds. Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: (a) That the court has no jurisdiction over the person of the defending party; (b) That the court has no jurisdiction over the subject matter of the claim; (c) That venue is improperly laid; (d) That the plaintiff has no legal capacity to sue; (e) That there is another action pending between the same parties for the same cause; (f) That the cause of action is barred by a prior judgment or by the statute of limitations; (g) That the pleading asserting the claim states no cause of action; (h) That the claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and (j) That a condition precedent for filing the claim has not been complied with. RULE 17 DISMISSAL OF ACTIONS Grounds for dismissal that bar refiling 1. cause of action is barred by a prior judgment 2. cause of action is barred by the statute of limitations 3. claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished 4. claim is unenforceable under the statute of frauds Grounds to 1. 2. 3. 4. cause dismiss that the court may invoke motu proprio the action is barred by a prior judgment the action is barred by statute of limitations no jurisdiction over the subject matter there is another action pending between the same parties for the same

RULE 18 PRE-TRIAL Section 1. When conducted. After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial. (5a, R20) It is now the plaintiff who moves ex parte that the case be set for pre-trial. Sec. 2. Nature and purpose. The pre-trial is mandatory. The court shall consider: (a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; (b) The simplification of the issues; (c) The necessity or desirability of amendments to the pleadings; (d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; (e) The limitation of the number of witnesses; (f) The advisability of a preliminary reference of issues to a commissioner; (g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; (h) The advisability or necessity of suspending the proceedings; and (i) Such other matters as may aid in the prompt disposition of the action. Grounds for excused absence of a party at the pre-trial 1. valid cause is shown, or 2. a representative appears in his behalf fully authorized in writing to 1. enter into an amicable settlement 2. submit to alternative modes of dispute resolution, and 3. enter into stipulations or admissions of facts and of documents

Distinctions between pretrial in civil and criminal cases


Civil Pre-trial Mandatory Presence of defendant and counsel mandatory Amicable settlement is discussed Criminal Pre-trial Mandatory Accused need not be present, but his counsel must be present, otherwise he may be sanctioned Amicable settlement is not discussed, unless the criminal case is covered by summary procedure

Agreement included in pre-trial order need Agreements or admissions must be written and not be in writing signed by the accused and counsel to be admissible against him. Can have proffer of evidence Proffer of evidence only after trial

RULE 21 SUBPOENA Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum. Grounds for quashing a subpoena duces tecum

1. unreasonable and oppressive, or 2. relevancy of the object does not appear, or 3. the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production of the object 4. witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served Grounds for quashing a subpoena ad testificandum 1. the witness is not bound thereby 2. witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served RULES 23 29: MODES OF DISCOVERY Kinds of depositions 1. Depositions Pending Actions 2. Depositions Before Action or Pending Appeal 3. Interrogatories to Parties 4. Admission by Adverse Party 5. Production or Inspection of Documents of Things 6. Physical and Mental Examination of Persons The deponent may be examined regarding any matter 1. not privileged, and 2. is relevant to the subject of the pending action After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and for good cause shown, the court in which the action is pending may make an order that 1. deposition shall not be taken 2. it may be taken only at some designated place other than that stated in the notice 3. it may be taken only on written interrogatories 4. certain matters shall not be inquired into 5. the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel 6. after being sealed the deposition shall be opened only by order of the court 7. secret processes, developments, or research need not be disclosed 8. the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court 9. any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. Requisites for a court order to terminate or limit the scope and manner of taking of the deposition 1. motion or petition of any party or of the deponent 2. At any time during the taking of the deposition 3. showing that the examination is being conducted in bad faith or to unreasonably to annoy, embarrass, or oppress the deponent or party 4. issued by the court in which the action is pending or the RTC of the place where the deposition is being taken If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable. The deposition may be used against any party who 1. was present or represented at the taking of the deposition, or 2. who had due notice When deposition may be used 1. At the trial or 2. upon the hearing of 1. a motion or 2. an interlocutory proceeding Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness. Instances when the deposition of any witness may be used by the adverse party for any purpose 1. the deponent is a party 2. the deponent, at the time of taking the deposition, was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party Instances when the deposition of any witness may be used by any party for any purpose 1. the witness is dead; or 2. the witness resides at a distance more than 100 kilometers from the place of trial or hearing 3. the witness is out of the Philippines, unless it appears that his absence was procured by the offeror 4. the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment 5. offeror has been unable to procure the attendance of the witness by subpoena; or 6. upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; 7. if only part of a deposition is offered in evidence by a party RULES 30-32: TRIAL Order of trial the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows 1. plaintiff shall adduce evidence in support of his complaint 2. defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third-party complaint 3. third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint; 4. fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them; 5. parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court; 6. The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and 7. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. Exceptions to the order of trial 1. when separate trial of any claim or issue is ordered 2. court otherwise directs for special reasons 3. as determined by the court in case of several defendants or third-party defendants, and so forth, having separate defenses who appear by different counsel RULE 33 DEMURRER TO EVIDENCE

Distinguish demurrer to evidence in civil and criminal

cases
Demurrer to Evidence in Civil Cases Ground is: Facts and law show no right to relief On motion If denied he has right to present evidence, no prior leave of court required; If granted but reversed on appeal it is a waiver of the right to present evidence Demurrer to Evidence in Criminal Cases ground is: Insufficient evidence On motion or motu proprio If denied and MTD was filed without leave of court waiver of right to present evidence; If denied and MTD was filed with leave of court the accused may adduce evidence in his defense

RULE 35 SUMMARY JUDGMENT Procedure in summary judgments 1. motion served at least 10 days before the time specified for the hearing 2. any opposing affidavits, depositions, or admissions must be served by the adverse party at least 3 days before the hearing 3. hearing 4. judgment sought shall be rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show that 1. except as to the amount of damages, there is no genuine issue as to any material fact and 2. the moving party is entitled to a judgment as a matter of law. 3. if judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court ascertains what material facts 1. exist without substantial controversy, and 2. are actually and in good faith controverted 4. Court makes an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. 5. The facts specified as without substantial controversy shall be deemed established, and the trial shall be conducted only on the controverted facts.

Distinguish between judgment on the pleadings and summary judgment


Judgment on the Pleadings Available only a claimant There is no tender of issue Judgment based on pleadings only Summary Judgment Available to both claimant and defending parties There is no genuine issue Judgment based on pleadings, affidavits, depositions, admissions

Motion for judgment on the pleadings must Motion for summary judgment must be served be served at least 3 days prior to the at least 10 days prior to the scheduled hearing scheduled hearing RULES 37-39 POST JUDGMENT Grounds for new trial Within the period for taking an appeal when the following causes materially affects the substantial rights of the aggrieved party 1. FAME which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; or 2. Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. Grounds for reconsideration Within the same period 1. the damages awarded are excessive 2. the evidence is insufficient to justify the decision or final order, or 3. the decision or final order is contrary to law