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REMEDIES OF A PARTY DECLARED IN DEFAULT
OTERO V TAN
GR NO. 200134 AUGUST 15, 2012
Facts:
A complaint for collection of sum of money and damages was filed by Tan
before the MTCC CDO against Otero. Despite receipt of summons and a copy of
the said complaint, Otero failed to file his answer. Tan filed a motion to declare
Otero in default, which the court granted. Tan was allowed to present his evidence
ex parte. MTCC rendered a decision directing Otero to pay his debt and damages.
Otero filed an appeal before RTC, averring that he had been deprived of due
process. RTC affirmed the MTCC decision. Oteros Motion for reconsideration had
been denied. Otero filed a petition for review before the CA. The CA dismissed the
petition. It held that any defense which Otero may have against Tans claim is
already waived due to Oteros failure to his answer, despite being duly served with
summons and his voluntary appearance in court.
Issue:
Did the Court of Appeal err in ruling that by virtue of default, Otero is barred from
alleging whatever defenses he may have against Tan i.e. due execution and
authenticity of the statements of account?
Held:
Yes.
1. a defendant who was declared in default may nevertheless appeal from
the judgement by default albeit on different grounds.
2. While it may be said that by defaulting, the defendant leaves himself at
the mercy of the court, the rules nevertheless see to it that any judgment
against him must be in accordance with the evidence required by law.
a. The evidence of the plaintiff, presented in the defendants
absence, cannot be admitted if it is basically incompetent.
b. Although the defendant would not be in a position to object,
elementary justice requires that only legal evidence should be
considered against him.
1
i. If the same should prove insufficient to justify a
judgment for the plaintiff, the complaint must be
dismissed.
ii. And if a favorable judgment is justifiable, it cannot
exceed in amount or be different in kind from what is
prayed for in the complaint.
LCD: the statement of account was merely hearsay as the genuineness and due
execution of the same were not established, given that during the ex parte
presentation of evidence, Tan did not present anyone who could attest that the
statement of account were genuine and duly executed. Nonetheless, the Court
found for Tan. The statement of accounts, while inadmissible are mere summaries,
that do not disprove Oteros liability. The testimonies of his employees also
established that Otero do not pay whenever he drops by tans Petron outlet to buy
the petroleum products. Lastly, both the MTCC and RTC gave credence to Tans
testimony.
Notes:
1. A defendant who fails to file an answer may, upon motion, be declared by
the court in default.
a. Loss of standing in court, the forfeiture of ones right as a
party litigant, contestant or legal adversary, is the
consequence of an order of default.
b. A party in default loses his right to present his defense,
control the proceedings, and examine or cross-examine
witnesses.
c. He has no right to expect that his pleadings would be
acted upon by the court nor may be object to or refute
evidence or motions filed against him
2. In Lina v. CA, et al., 15 this Court enumerated the remedies available to
party who has been declared in default, to wit:
a. The defendant in default may, at any time after discovery
thereof and before judgment, file a motion, under oath, to
set aside the order of default on the ground that his
failure to answer was due to fraud, accident, mistake or
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excusable neglect, and that he has meritorious defenses;
(Sec 3, Rule 18)
b. If the judgment has already been rendered when the
defendant discovered the default, but before the same has
become final and executory, he may file a motion for new
trial under Section 1(a) of Rule 37;
c. If the defendant discovered the default after the judgment
has become final and executory, he may file a petition for
relief under Section 2 of Rule 38; and
d. He may also appeal from the judgment rendered against
him as contrary to the evidence or to the law, even if no
petition to set aside the order of default has been
presented by him. (Sec. 2, Rule 41)16(Emphasis ours)
3. Indeed, a defending party declared in default retains the right to appeal
from the judgment by default.
a. However, the grounds that may be raised in such an appeal are
restricted to any of the following:
i. first, the failure of the plaintiff to prove the material
allegations of the complaint;
ii. second, the decision is contrary to law; and
iii. third, the amount of judgment is excessive or different
in kind from that prayed for.17
b. In these cases, the appellate tribunal should only consider the
pieces of evidence that were presented by the plaintiff during
the ex parte presentation of his evidence.
4. A defendant who has been declared in default is precluded from raising
any other ground in his appeal from the judgment by default since,
otherwise, he would then be allowed to adduce evidence in his defense,
which right he had lost after he was declared in default. 18
a. Indeed, he is proscribed in the appellate tribunal from adducing
any evidence to bolster his defense against the plaintiffs claim.
2
FILING AND SERVICE OF PLEADINGS AND JUDICIAL PAPERS
Discuss the rule on payment of docket fees.
When an action is filed, the filing must be accompanied by the payment of
requisite docket and filing fees. Jurisdiction over the case is acquired only upon
payment of the prescribed fees. Without payment, complaint is not considered
filed1.
Is the rule absolute?
No. The rule has been applied with liberality as when the payment was allowed
within a reasonable time but not beyond the prescriptive period.
How are pleadings etc filed?
The filing of pleadings, appearances, motions, notices, orders and other papers
with the court shall be made:
1. by filing them personally with the clerk of court or
2. by sending them by registered mail.
If pleadings are filed by mail, what is the date of the filing of the
pleading?
The date of the mailing of motions, pleadings 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.
What do you do with the envelope?
The envelope shall be attached to the record of the case.
What is service of pleading?
1 Nestle Philippines v FY Sons Inc GR No. 150780 May 5, 2006.
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Service of pleading is the act of providing a party with a copy of the pleading or 5. judgments;
paper concerned. 6. other papers.

Distinguish filing from service of pleadings. How is service upon a party made if he is represented by counsel?

Filing is the act of presenting the pleading of other papers to the clerk of court
whereas service of pleadings refers to the act of providing a party with a copy of
the pleading or paper concerned.
What are papers required to be filed and served?
1. If a party has appeared by counsel, service upon him shall be made upon
his counsel, or one of them
a. unless service upon the party himself is ordered by the court.
2. Where one counsel appears for several parties, he shall be entitled to
one copy of any paper served upon him by the opposite side.

1. judgment Note:
2. resolution
3. order 1. when a party is represented by counsel, notice should be made
4. pleading subsequent to the complaint upon the counsel of record at his given address 2. This may be
5. written motion done personally or by leaving a copy at his office with his clerk or
6. notice with a person having charge thereof3.
7. appearance 2. Notice of court processes should be made upon such counsel.
8. demand Notice upon the party himself is not considered in law unless
9. offer of judgement service upon the party is ordered by the court. Courts dismissal
10. similar papers. order of a case does not become final without notice to counsel
of record4.
What are the papers required to be filed?
SERVICE ON COUNSEL IS MANDATORY UNLESS OTHERWISE ORDERED BY THE COURT
1. pleadings
2. appearances IMPROPER SERVICE IS INEFFECTUAL AND DOES NOT BIND THE PARTY
3. motions
4. notices CABILI V BADELLES
5. orders GR NO. L -17786 SEPTEMBER 29, 1962
6. judgments
7. all other papers. Facts:

What are the papers required to be served to the adverse party?

1. Pleadings 2 UERM Employees Assn v. Min of Lavor GR No 75333 August 31,1989.

2. motions; 3 Adamson Ozanam Education Inst Inc v Adamson Univ Faculty & Employees Assn GR No. 86819
3. notices; November 9 1989.
4. orders; 4 Jalorar v. Ytoriaga 80 SCRA

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Badelles filed before the CFI Lanao a petition for quo warranto to juridical entity and
question Cabilis right to hold office. Badelles counsel San Juan, Africa and has no resident
Benedicto filed the petition. Senior Attorney Jose Africa of that firm requested that agent but has an
all pleadings, notices, orders and other papers be served at his office at 480 Padre agent or officer in
Faura Manila. In order to avoid any confusion in the service of pleadings and the PH
orders, he made of record that only service at the given address will be considered Defendant is a within 30 days after receipt of summons by the
as service on Badelles and counsel. The Court took note of Atty Africas request. foreign private home office of the foreign private entity.
juridical entity and
Before the decision was sent by registered air mail on December 24 for has no resident Note: summons is served to SEC, which will then
the firm of atty Africa and received at their Manila office on January 4, Badelles agent or send a copy by registered mail within 10 days to
who was in Illigan, requested the judge for a copy of the decision. Badelles was agent/officer the home office of the foreign private corporation
given a copy but refused to sign receipt. The judge ordered his court interpreter to Service of summons Within the time specified in the order which shall
record the fact of delivery to Badelles. The judge also telegraphed informing them by publication not be less than 60 days after notice
that Badelles has been furnished with his personal copy. Non-resident Not less than 60 days after notice
defendant to whom
Issue: extraterritorial
service of summons
Has there been a proper service? is made
Answer to amended Within 15 days from service of the amended
Held: complaint [ matter of complaint
right]
There was no proper service. When a party appears by an attorney who makes of Answer to amended Within 10 days counted from notice to the court
record his appearance, service of pleadings is required to be made upon said complaint [ not a order admitting the same.
attorney and not upon the party. A notice given to the client and not to his matter of right]
attorney is not notice in law. Service upon counsel is mandatory. Personal Third or fourth party As if an original complaint, 15, 30, or 60 days as
information by a party of the rendition of a decision does not satisfy the right of complaint the case may be
counsel to receive the copy of the decision rendered. Supplemental within 10 days from notice of the order admitting
complaint the same, unless a different period is fixed by the
PERIODS OF FILING PLEADINGS court.

Answer to an original Within 15 days after service of summons, unless a Note:

complaint different period is fixed by the Court
Defendant is a Within 15 days after service of summons Upon motion and on such terms as are just, the court may extend the time to
foreign private plead. The court may also, upon like terms, allow an answer or other pleading to
juridical entity and be filed after the time fixed by law.
has a resident agent
Defendant is a Within 15 days after service of summons to said
foreign private agent or officer

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SERVICE OF PLEADINGS AND COURT PAPERS (OTHER THAN JUDGMENTS, FINAL ORDERS, AND quasi in rem
RESOLUTIONS) MAY BE DONE BY SUBSTITUTED SERVICE IF PERSONAL SERVICE AND SERVICE BY MAIL IS to acquire jurisdiction over Its purpose is not acquire
NOT SUCCESSFUL. the person of the defendant jurisdiction over the
To give notice to the defendant but mainly to
SERVICE OF JUDGMENTS, FINAL ORDERS AND RESOLUTIONS MUST BE PERSONAL OR BY REGISTERED defendant than an action has satisfy the constitutional
MAIL ONLY ( OR BY PUBLICATION WHERE SUMMONS IS SERVED BY PUBLICATION) been commenced against requirement of due process.
him
SERVICE MUST BE ON COUNSEL AS SERVICE ON PARTY IS NOT PERMITTED;
WHERE FINAL ORDER OR JUDGMENT IS NOT SERVED ON PARTY OR LAWYER, SAID JUDGMENT CANNOT
BECOME FINAL AND EXECUTORY.
Note:
SUMMONS
1. Defects of jurisdiction arising from irregularities in the
commencement of the proceedings, defective process or even
What is Summons?
absence of process may be waived by a failure to make
seasonable objections8.
Summons is the writ by which the defendant is notified of the action brought
a. Unlike the question of jurisdiction over the subject
against him5.
matter which may be invoked at any stage of the
proceedings, even on appeal, the issue of jurisdiction
What is the duty of the Clerk of Court upon the filing of the complaint?
over the person must be seasonably raised
i. it can well be pleaded in a motion to dismiss or
Upon the filing of a complaint, the clerk of court shall forthwith issue the
an affirmative defense in the answer,
corresponding summons to the defendants6.
otherwise it shall be deemed waived9.
What is the purpose of summons7?
What do you do if the appointment of guardian ad litem has not been
attached in the summons?
The purpose of summons is to acquire jurisdiction over the person, to give notice
to the defendant that an action has been commenced against him.
Order new summons with a copy the appointment10.
1. The defendant or respondent is thus put on guard as to the
What if the summons does not have a copy of the complaint?
demands of plaintiffs or petitioners.
2. The process is solely for the benefit of the defendant.
If the complaint is not attached, failure to object is waiver11.
Who may serve the summons?
Actions in personam Actions in rem and
8 Baticano v Chu JR 148 SCRA 541 (1987).
5 Republic v Domingo GR No. 175299 December 14, 2011. 9 Cerezo v Tuazon, GR No. 141538 March 23 2004.
6 1997 RULES OF CIVIL PROCEDURE , rule 14, 1. 10 Castanohal v. Castrano 51 OG 690.
7 1 OSCAR M. HERRERA, REMEDIAL LAW 118 (2007 ed.) 11 Pagalaran v. Ballatan 13 PHIL. 135 ( 1905).

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The proper remedy is certiorari.

The summons may be served by the sheriff, his deputy, or other proper court
officer, of for justifiable reasons by any suitable person authorized by the court Note:
issuing the summons.
3. If the defendant has not been properly summoned, the
Note: period to file a motion to dismiss for lack of jurisdiction
over his person does not commence to run until he
1. Policemen no especially authorized by court cannot validly serve voluntarily submits himself to the jurisdiction of the
summons12. court.
4. in substitution of deceased by legal representative, the
True or false. The motion to dismiss was not filed seasonably because it order of substitution is sufficient. There is no need for
was filed beyond the reglementary period. summons.

False. The Statement would have been absolutely true had there been a valid When may summons be served?
service of summons.
Service of summons may be made at night as well as during the day or even a
If summons was wrongfully served, should the case be dismissed? Sunday or holiday because of its ministerial character14.

No. An alias summons can be served on the defendant 13.

RULES ON SERVICE ARE STRICTLY CONSTRUED, HENCE:
In what instances is alias summons applicable?
ACTIONS IN 1. Against residents, service must be personal first then
1. If a summons is returned without being served on any PERSONAM substituted if unsuccessful or publication if whereabouts
or all of the defendants; unknown or temporarily outside the country.
2. if summons has been lost. 2. against non-residents, only personal service within the
state can confer jurisdiction over the defendant
How does alias summons get issued? ACTIONS IN 3. Against residents, service must be personal first then
REM OR QUASI substituted if unsuccessful or publication if whereabouts
The clerk of court issues the alias summons on demand of the plaintiff, IN REM unknown or temporarily outside the country.
provided any of the instances mentioned above are present. 4. against non-residents, only personal service outside the
country with leave of court, or publication with leave of
What would be the remedy in case the court erroneously exercised court
jurisdiction to someone who has not been properly served with ACTIONS Service only on those enumerated in the statute is allowed
summons? AGAINST
DOMESTIC
JURIDICAL
12 Bello v Ubo 117 SCRA 91 (1982).
13 Linger & Fisher GMPH v. IAC 125 SCRA 527 (1983). 14 Laus v CA 219 SCRA 688 (1993).

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PERSONS the father of Violeta Venturaza at 3412 BA Tan St Barrio Obrero Tondo Manila, the
ACTIONS Service must be on resident agent, government regulator, or of address of the sps stated in the complaint. For failure of the sps to answer, MTC
AGAINST any officers, agents within the country. ruled in favour of Senoran. Given that summons cannot be served at the previous
FOREIGN address as the sps were no longer around, the deputy sheriff served it on Violeta
JURIDICAL Venturaza in her office at ADB, Pasay.
ENTITY
The Sps filed a motion to set aside the decision and declare the
Note: proceedings null and void for lack of jurisdiction. They allege that since there had
been an improper and invalid service of summons i.e. serving it at 3412 BA Tan
Although as a rule, modes of service of summons are strictly followed in order that when they have been living in Aurora St, pasay, the court did not acquire
the court may acquire jurisdiction over the person of the defendant, such jurisdiction over them. The motion had been denied.
procedural modes are liberally construed in quasi-judicial proceedings. Substantial
compliance is considered adequate15. On appeal before the RTC, the MTC decision was affirmed with a few
modification i.e. lowering of attorneys fees. A petition for review was filed with the
Under sec 6 Rule 13 ( personal service of pleadings and other papers), personal CA. CA only affirmed the lower courts decision in toto.
service includes not only service on the party or counsel, but also leaving a copy
with the clerk or person having charge of his office or leaving it with a person of Issue:
sufficient age and discretion at the partys or counsels residence 16.
Was summons properly served on the Sps?
Under Sec 6, Rule 14 (service in person of defendant), service is made only on
the defendant himself17. Held:

Irregularities in personal service may be cured by proof that the copies have No.
actually been delivered to the defendant, which is equivalent to service (Moran).
Nonetheless, actual receipt still has to be timely; otherwise the defendant is still 1. In 1984 they were actual residents of 3412 B.A. Tan St., Barrio Obrero
deprived of due process18. Tondo, and Manila and, as correctly reflected in the 1984 Asian
SPS VENTURAZA V CA Development Bank Directory.
GR NO. 77760 DECEMBER 11, 1987 a. However, the change of their address, upon their transfer to
Pasay City in April 1985, could not be reflected in the 1985-86
Facts: PLDT Telephone Directory
i. this directory had already been printed and circulated
Senoran filed a complaint against Sps Venturaza with MTC for collection to the public before their transfer in April 1985 to
of sums of money. On June 10, 1985 summons was issued against Augusto Soan, Aurora St. in Pasay City.
b. The copy of the contract of lease dated April 1985 between
15 Santos v NLRC 254 SCRA 673 (1996) petitioner Romualdo Venturanza as lessee and Linda Galvez as
16 HERRERA supra note 1 at 923. lessor over an apartment unit located at 2511 Aurora St., Pasay
17 Id. City and the affidavit of Augusto Soan dated 29 April 1986
18 Toyota Cubao v CA GR No 126321 October 23 1997. stating that he never told the sheriff that the defendants were

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residing in his house at 3412 B.A. Tan St., Barrio Obrero Tondo,
Manila, sufficiently negate the conclusion of the court that
summons had been served.
2. Upon careful examination of the sheriffs Return dated 10 June 1985,
which purports to serve as proof that summons had been served upon
the defendants, together with a copy of the complaint, through Augusto
Soan, no statement is made that an effort or attempt was exerted
to personally serve the summons on the defendants and that the
same had failed.
a. the Return does not even indicate the address of Sps Venturaza
to whom summons was supposed to have been served.
b. The presumption of regularity in the performance of official
functions by the sheriff is not applicable in this case where it is
patent that the sheriff's return is defective.
Note:
1. Under Rule 14 of the Rules of Court, there are three (3) methods of
service of summons in civil actions, namely:
i. personal service (See. 7);
ii. substituted service (Sec. 8); and
iii. service by publication.
b. Strict compliance with these modes of service is required in
order that the court may require jurisdiction over the person of
the defendant.
c. Service of summons upon the defendant is the means by which
the court acquires jurisdiction over his person.
i. This process is for the benefit of the defendant, and is
intended to afford the latter an opportunity to be heard
on the claim against him.
ii. In the absence of valid waiver trial and judgment,
without such service, are null and void.
2. In an action strictly in personam, personal service of summons within the
forum is essential to the acquisition of jurisdiction over the person of the
defendant who does not voluntarily submit himself to the authority of the
court.
8
3. It is only when a defendant can not be personally served with summons
within a reasonable time that a substituted service may be availed of, the
same to be effected in the following manner:
a. by leaving copies of the summons at the defendants'
dwelling house or residence, with some person of
suitable age and discretion then residing therein, or
b. by leaving the copies at defendant's office or regular
place of business, with some competent person in
charge thereof.
4. The substituted service should be availed only when the defendant
cannot be served promptly in person.
a. Impossibility of prompt service should be shown by stating the
efforts made to find the defendant personally and the failure of
such efforts.
b. The statement should be made in the proof of service.
c. This is necessary because substituted service is in derogation of
the usual method of service.
5. Substituted service is a method extraordinary in character, and hence
may be used only as prescribed in the circumstances authorized by
statute.
a. Thus, the statutory requirements of substituted service must be
followed strictly, faithfully and any substituted service other than
authorized by the statute is considered ineffective.
6. For a substituted service to be valid, summons served at the defendant's
residence must be served at his residence at the time of such service and
not at his former place of residence.
a. The terms "dwelling house" or "residence" are generally held to
refer to the time of service,
i. hence it is not sufficient "to leave the copy at
defendant's former dwelling house, residence, or place
of abode, as the case may be, after his removal
therefrom."
ii. They refer to the place where the person named in the
summons is living at the time when the service is
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made, even though he may be temporarily out of the
country at the time.
b. An effort or attempt should first be made to personally serve the
summons and after this has failed, a substituted service may be
caused upon the defendant, and the same must be reflected in
the proof of service.
The certificate of service of summons by the sheriff is prima facie evidence of the
facts set out in such certificate. To overcome the presumption arising from the
sheriffs return, the evidence must be clear and convincing19.
The absence in the sheriffs return of a statement about the impossibility of
personal service does not conclusively prove that the service is invalid20.
1. proof of prior attempts at personal service may be submitted by the
plaintiff during the hearing of any incident assailing the validity of the
substituted service21.
2. while the sheriffs return carries with it the presumption, albeit disputable,
of regularity i.e. the entries are correct, it does not necessarily follow
that an act done in relation to the official duty for which the return is
made was not done simply because it was not disclosed therein 22.
Impossibility of service may be established by evidence 23.
Dwelling house or residence refers to dwelling house at the time of service.
They refer to the place where the person named in the summons is living at the
time when the service is made, even though he may be temporarily out of the
country at that time.
By the terms of the law, plaintiff is not duty bound to see to it that the person
upon whom the service was actually made delivers the summons to defendant or
informs him about it. The law presumes that for him24.
19 Orosa v. CA 261 SCRA 376 (1996).
20 HERRERA supra note 1 at 927.
21 Id.
22 Id.
23 Id.
24 HERRERA supra note 1 at 929.
SAMARTINO V RAON
GR NO. 131482 JULY 3 2002
Facts:
Raon and Crisostomo instituted a complaint for ejectment against
Regalado Samartino in MTC Cavite. At the time of the service of summons at
Regalados house Regalado was not home, since he was undergoing treatment
and rehabilitation from drug dependency. Summons had been served on Roberto
Samartino, brother of Regalado. On the note, the laiason officer of NBI TRC
appeared before the court with a certification that Regalado cannot answer the
complaint within the reglementary period on the ground that he still has six
months to complete the program.
Notwithstanding the certification, the trial court declared Regalado in
default. After Raon and Crisostomo presented their evidence ex parte, the MTC
ruled in their favour. Since the judgement had become final and executory,
Regalado filed with the RTC a petition for relief from judgement. RTC denied the
petition, as well as Regalados motions for reconsideration.
Regalado filed a petition for certiorari with the CA. the CA only dismissed
the petition.
Issue:
1. Has there been proper service of summons?
2. Did the court acquire jurisdiction over the person of Regalado?
Held:
No.
1. The above return failed to show the reason why personal service
could not be made.
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i. It failed to state that prompt and personal service on
the defendant was rendered impossible.
ii. It was not shown that efforts were made to find the
defendant personally and that said efforts failed;
hence the resort to substituted service.
b. As stated above, these requirements are indispensable because
substituted service is in derogation of the usual method of
service.
i. It is an extraordinary method since it seeks to bind the
defendant to the consequences of a suit even though
notice of such action is served not upon him but upon
another whom law could only presume would notify
him of the pending proceedings.
ii. For this reason, failure to faithfully, strictly, and fully
comply with the requirements of substituted service
renders said service ineffective.[20]
c. Furthermore, nowhere in the return of summons or in the
records of this case is it shown that petitioners brother, on
whom substituted service of summons was effected, was a
person of suitable age and discretion residing at petitioners
residence
2. The trial court did not acquire jurisdiction over the person of
Regalado.
a. the service of summons is not only required to give the court
jurisdiction over the person of the defendant, but also to afford
the latter an opportunity to be heard on the claim made against
him. Thus, compliance with the rules regarding the service of
summons is as much an issue of due process as of jurisdiction.
b. The essence of due process is to be found in the reasonable
opportunity to be heard and submit any evidence one may have
in support of his defense.
10
c. Before a person can be deprived of his property, he should first
be informed of the claim against him and the theory on which
such claim is premised.
Notes:
1. The impossibility of personal service justifying availment of substituted
service should be explained in the proof of service; why efforts exerted
towards personal service failed.
a. The pertinent facts and circumstances attendant to the service
of summons must be stated in the proof of service or Officers
Return;
b. Otherwise, the substituted service cannot be upheld.
2. It is only under exceptional terms that the circumstances warranting
substituted service of summons may be proved by evidence aliunde.
3. Since service of summons, especially for actions in personam, is essential
for the acquisition of jurisdiction over the person of the defendant, the
resort to a substituted service must be duly justified.
a. Failure to do so would invalidate all subsequent proceedings on
jurisdictional grounds.
Any judgment may be annulled based on failure to show in the return impossibility
of personal service within a reasonable time25.
SPS VALMONTE V. CA
GR NO 108538 JANUARY 22 1996
Facts:
Dimalanta filed a complaint for partition of real property and accounting
of rentals against Sps Alfredo and Lourdes Valmonte who are both residents of
90222 Carkeek Drive South Seattle Washington USA. Summons had been served
at Gedisco Center, Unit 304, 1564 A Mabini St Manila where Alfredo Valmonte
holds office. While Alfredo accepted the summons insofar as he is concerned, he
refused to receive the summons against his wife, as he was not authorize to
25 Syjuco v. Castro 175 SCRA 171 (1989).
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receive it in her behalf. The process server left without leaving a copy of the b. this mode of service must be made outside the Philippines, such
summons and complaint for Lourdes. as through the Philippine Embassy in the foreign country where
the defendant resides.[8]
While Alfredo filed his answer with counterclaim, Lourdes failed to do the
same. Dimalanta moved that Lourdes be declared but the Trial court denied the 3. Moreover, there are several reasons why the service of summons on Atty.
motion. Dimalanta filed a petition for certiorari, prohibition and mandamus before Alfredo D. Valmonte cannot be considered a valid service of summons on
the CA. CA reversed the lower courts ruling and declared Lourdes in default. Lourdes A. Valmonte.
a. Service of summons on Alfredo D. Valmonte was not made upon
Issue: the order of the court as required by Rule 14, 17 and certainly
was not a mode deemed sufficient by the court which in fact
Has Lourdes been properly served with summons? refused to consider the service to be valid and on that basis
declare Lourdes A. Valmonte in default for her failure to file an
Held: answer.
b. service in the attempted manner on Lourdes was not made upon
No. prior leave of the trial court as required also in Rule 14, 17. As
provided in 19, such leave must be applied for by motion
1. Partition and accounting under Rule 69, is in the nature of an action in writing, supported by affidavit of the plaintiff or some
quasi in rem. Such an action is essentially for the purpose of affecting the person on his behalf and setting forth the grounds for
defendants interest in a specific property and not to render a judgment the application.
against him. c. Because there was no order granting such leave, Lourdes was
not given ample time to file her Answer which, according to the
2. As Lourdes A. Valmonte is a nonresident who is not found in the rules, shall be not less than sixty (60) days after notice.
Philippines, service of summons on her must be in accordance with Rule 1. It must be noted that the period to file an
14, 17. Answer in an action against a resident
a. Such service, to be effective outside the Philippines, must be defendant differs from the period given in an
made either action filed against a nonresident defendant
1. by personal service; who is not found in the Philippines.
2. by publication in a newspaper of general 2. In the former, the period is fifteen (15) days
circulation in such places and for such time as from service of summons, while in the latter, it
the court may order, in which case a copy of is at least sixty (60) days from notice.
the summons and order of the court should be
sent by registered mail to the last known 4. Lourdes did not appoint her husband as her attorney-in-fact.
address of the defendant; or
3. in any other manner which the court may a. Although she wrote private respondent s attorney that all
deem sufficient. communications intended for her should be addressed to her
husband who is also her lawyer at the latters address in Manila,
no power of attorney to receive summons for her can be inferred
therefrom.

11
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b. In fact the letter was written seven months before the filing of
this case below, and it appears that it was written in connection
with the negotiations between her and her sister, respondent
Rosita Dimalanta, concerning the partition of the property in
question.
c. As is usual in negotiations of this kind, the exchange of
correspondence was carried on by counsel for the parties.
d. But the authority given to Alfredo in these negotiations certainly
cannot be construed as also including an authority to represent
her in any litigation.
Notes:
1. In action in rem or quasi in rem, jurisdiction over the person of the
defendant is not essential for giving the court jurisdiction so long as the
court acquires jurisdiction over the res.
2. What gives the court jurisdiction in an action in rem or quasi in rem is
that it has jurisdiction over the res, i.e. the personal status of the plaintiff
who is domiciled in the Philippines or the property litigated or attached.
a. Service of summons in the manner provided in 17 is not for the
purpose of vesting it with jurisdiction but for complying with the
requirements of fair play or due process, so that he will be
informed of the pendency of the action against him and the
possibility that property in the Philippines belonging to him or in
which he has an interest may be subjected to a judgment in
favor of the plaintiff and he can thereby take steps to protect his
interest if he is so minded
b. Strict compliance with these requirements alone can assure
observance of due process.
i. That is why in one case, [9]although the Court
considered publication in the Philippines of the
summons (against the contention that it should be
made in the foreign state where defendant was
residing) sufficient, nonetheless the service was
considered insufficient because no copy of the
summons was sent to the last known correct address in
the Philippines.
12
3. The cases of De Leon v. Hontanosas and Gemperle v. Schenker were not
applied in this case since:
a. The husband was in the conjugal home when the summons was
served, on top of the finding that the wife was only temporarily
absent in De leon;
b. The wife had been appointed as her husbands representative
and attorney in fact in Gemperle.
4. the period to file an Answer in an action against a resident defendant
differs from the period given in an action filed against a nonresident
defendant who is not found in the Philippines.
a. In the former, the period is fifteen (15) days from service of
summons, while in the latter, it is at least sixty (60) days from
notice.
1. Ownership of house is synonymous with dwelling26.
2. Substituted service to wife is valid, but not when they are
not residents of the same place27.
3. Service with only one copy of complaint on two
defendants is irregular28.
4. Service of summons on a co-owner of is not binding on
the others29.
Napolyn is the sister of Tweetie. After her death, summons was served
on her. Was there a proper service?
None, because there was no representative of Napolyn, hence any proceedings
held or judgment rendered is void. Service of summons upon the defendant is the
means by which the court acquires jurisdiction over the person. This process is for
26 Arevalo v. Quilatan 117 SCRA 700 ( 1982).
27 Daran v. Angco 20 SCRA 1127 (1967).
28 Valmonte v. CA 252 SCRA 92 (1996).
29 Bello v. Ubo GR No. L-30353 September 30 1982.
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the benefit of the defendant, and is intended to afford the latter an opportunity to
be heard on the claim against him30.
1. A resident defendant in an action in personam who cannot be personally
served with summons may be summoned either by means of substituted
service in accordance with Rule 14, sec 8
2. it is when the action in personam is against a non-resident defendant
who cannot be found in the PH and does not voluntarily submit
himself to the jurisdiction of PH that summons by publication cannot be
made upon him for purposes of acquiring jurisdiction.
a. Personal service of summons within the state is essential to the
acquisition of jurisdiction over his person.
3. for service of summons to be valid in actions in personam against a resident
defendant who is temporarily outside of the Philippines, the residence must
be at the PH at the time of service of summons
a. Former residence is not sufficient.
ASIAVEST MERCHANT BANKERS V CA
GR NO. 110263 JULY 20 2001
Facts:
Asiavest sought to enforce the decision of the High Court of Malaya
ordering PNCC to pay (1) the indemnity of the performance bond it had put up in
favour of PNCC to guarantee the completion of the Felda project and (2) the loan
it extended to Asiavest-CDP Sdn Bhd for the completion of Hanai and Kuantan By-
Pass project.
PNCC questions the judgment insofar as there has been an improper
service of summons.
Issue:
What law determines the matters of remedy and procedure?
Held:
30 Keister v. Navarro GR No L-29067 May 31 1977.
13
Malaysian law.
1. the recognition to be accorded a foreign judgment is not necessarily
affected by the fact that the procedure in the courts of the country in
which such judgment was rendered differs from that of the courts of
the country in which the judgment is relied on.[42]
2. Ultimately, matters of remedy and procedure such as those relating
to the service of summons or court process upon the defendant, the
authority of counsel to appear and represent a defendant and the
formal requirements in a decision are governed by the lex fori or the
internal law of the forum,[43] i.e., the law of Malaysia in this case.
3. In this case, it is the procedural law of Malaysia where the judgment
was rendered that determines the validity of the service of court
process on private respondent as well as other matters raised by it.
a. As to what the Malaysian procedural law is, remains a
question of fact, not of law.
b. It may not be taken judicial notice of and must be pleaded
and proved like any other fact. Sections 24 and 25 of Rule 132
of the Revised Rules of Court provide that it may be evidenced
by an official publication or by a duly attested or authenticated
copy thereof.
c. It was then incumbent upon private respondent to present
evidence as to what that Malaysian procedural law is and to
show that under it, the assailed service of summons upon a
financial officer of a corporation, as alleged by it, is invalid. It
did not.
d. Accordingly, the presumption of validity and regularity of
service of summons and the decision thereafter rendered by
the High Court of Malaya must stand
PHILIPPINE AMERICAN LIFE & GENERAL INSURANCE CO V. BREVA
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GR NO. 147937 NOVEMBER 11, 2004
Facts:
Morales filed a complaint for damages and reimbursement of insurance
premiums against Philam before the RTC. Summons was served on PhilAms
Regional Office and received by its Insurance Officer, Ruthie Babael. Phil Am filed
a motion to dismiss on the ground of lack of jurisdiction over its persons as the
said officer was not among the officers upon whom the service of summons may
be properly made. Morales filed an amended complaint, alleging that summons
and other court processes could also be served in Philam life Building UN avenue
Manila, through its president or any of its officers authorized to receive summons.
RTC denied the MTD and directed the issuance of the alias summons to
be served in its main office in Manila. It held that the improper service of summons
is not a ground for dismissal of the complaint, considering that the case was still in
its initial state. It ruled that the remedy was to issue an alias summons served at
the principal office of Phil Am. Phil Am filed a motion for reconsideration, but the
lower court denied it. Pending resolution of the motion for reconsideration, Phil Am
received the alias summons together with a copy of the amended complaint. Phil
Am filed with the CA a petition for certiorari and prohibition.
The CA dismissed the petition. It ruled that the trial court should have
ordered the issuance of an original summons, not an alias summons. It also
treated the alias summons as a matter of nomenclature, considering that the
rationale behind the service of summons to make certain that the corporation
would promptly and properly receive notice of the filing of an action against it has
been served in this case.
Issue:
Did the lower court err when it denied the MTD filed by Phil Am?
Held:
No.
14
1. The complaint was amended after the Phil Am filed the motion to dismiss.
The trial court even acknowledged this when it rendered its order denying
the motion to dismiss and ordered the issuance of an alias summons. The
Rules on Civil Procedure provide that the amended complaint supersedes
the complaint that it amends.[21]
2. Contrary to the Phil Ams claim, the summons issued on the amended
complaint does not become invalid.
a. In fact, summons on the original complaint which has already
been served continues to have its legal effect.
b. Thus, where the defendant has already been served summons
on the original complaint, the amended complaint may be served
upon him without need of another summons.
i. Conversely, when no summons has yet been validly
served on the defendant, new summons for the
amended complaint must be served on him.
3. Since at the time the complaint was amended no summons had been
properly served on Phil Am and it had not yet appeared in court, new
summons should have been issued on the amended complaint.
[23]
a. technically, the trial court should have ordered the issuance of
an original summons, not an alias summons.[24]
b. After all, an alias summons is merely a continuation of the
original summons.
4. In this case, however, there was no sense in issuing an alias summons on
the original complaint since the complaint had already been amended.
a. The trial court should have instead issued a new summons on
the amended complaint.
5. It is not pertinent whether the summons is designated as an original or
an alias summons as long as it has adequately served its purpose.
a. What is essential is that the summons complies with the
requirements under the Rules of Court and it has been duly
served on the defendant together with the prevailing complaint.
b. In this case, the alias summons satisfies the requirements under
the Rules, both as to its content and the manner of service.
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i. It contains all the information required under the rules,
and it was served on the persons authorized to receive
the summons on behalf of the petitioner at its principal
office in Manila.
ii. Moreover, the second summons was technically not an
alias summons but more of a new summons on the
amended complaint.
iii. It was not a continuation of the first summons
considering that it particularly referred to the amended
complaint and not to the original complaint.
BPI V SANTIAGO
GR NO. 169116 MARCH 28 2007
Facts:
Sps Santiago and Centrogen filed a complaint seeking the issuance of
TRO, injunction and in the alternative, the annulment of Real Estate Mortgage with
BPI. BPI filed a motion to dismiss, claiming that the branch manager of Sta Cruz
Branch is not among those authorized to received summons on its behalf. The
lower court denied the motion to dismiss and emphasized that the nature of the
case merited its removal from the purview of Section 11, Rule 14 of the Rules of
court. Citing 5 Rule 58, the RTC declared the order dismissing the MTD valid
binding given the presence of extreme urgency.
The RTC issued an order enjoining the provincial sheriff from proceeding
with the extrajudicial of the property subject of real estate mortgage. It also
ordered service of new summons to BPI which is to be served at BPI head office
and received by the corporate secretary. Later on, the lower court granted the
application for the issuance of a writ of Preliminary injunction. Upon denial of BPIs
motion for reconsideration, it filed a petition for certiorari with the CA.
The CA affirmed the orders of the RTC. It also declared that jurisdiction
was acquired upon the service of new summons.
Issue:
Did the trial court acquire jurisdiction over BPI?
15
Held:
yes.
1. the service of summons on BPIs Branch Manager did not bind the
corporation for the branch manager is not included in the enumeration of
the statute of the persons upon whom service of summons can be validly
made in behalf of the corporation. Such service is therefore void and
ineffectual.
2. However, upon the issuance and the proper service of new
summons on 11 March 2003, before the Writ of Preliminary Injunction
was issued on 20 March 2003, whatever defect attended the service
of the original summons, was promptly and accordingly cured.
a. on 7 March 2003, the Branch Clerk of Court issued a new
summons which was properly served upon BPIs Corporate
Secretary on 11 March 2003, as evidenced by the Sheriffs
Return.
b. The subsequent service of summons was neither disputed nor
was it mentioned by BPI except in a fleeting narration of facts
and therefore enjoys the presumption that official duty has been
regularly performed.[20] The Process Servers Certificate of Service
of Summons is a prima facie evidence of facts set out in that
certificate
3. The fact that the original summons was invalidly served is of no moment
since jurisdiction over BPI was subsequently acquired by the service of a
new summons.
Notes:
1. Citing Phil Am life v Brevea
A case should not be dismissed simply because an
original summons was wrongfully served. It should
be difficult to conceive, for example, that when a
defendant personally appears before a Court complaining
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that he had not been validly summoned, that the case
against him should be dismissed. An alias summons
can be actually served on said defendant.
2. There is no hard and fast rule pertaining to the manner of service of
summons. Rather, substantial justice demands that every case should be
viewed in light of the peculiar circumstances attendant to each.
a. In explaining the test on the validity of service of summons,
Justice Florenz Regalado[24] stressed that substantial justice must
take precedence over technicality and thus stated:
i. The ultimate test on the validity and sufficiency on
service of summons is whether the same and the
attachments thereto where ultimately received by the
corporation under such circumstances that no undue
prejudice is sustained by it from the procedural lapse
and it was afforded full opportunity to present its
responsive pleadings.
ii. This is but in accord with the entrenched rule that the
ends of substantial justice should not be subordinated
to technicalities and, for which purpose, each case
should be examined within the factual milieu peculiar to
it.
SAN PEDRO V. WILLY ONG AND NORMITA CABALLES
GR NO. 177598 OCTOBER 17, 2008
Facts:
San Pedro filed with the RTC a petition for nullification of mortgage with
damages against sps Narciso, Dela Pea, Landayan, Ong and Caballes. RTC issued
them summons, directing them to file their answers. All but Sps Dela Pea filed their
answers. After the sheriff employed substituted service, Dela Pea was declared in
default.
The RTC ruled in favour of San Pedro. Without filing a motion for
reconsideration, Ong and Caballes appealed to the Court of Appeals, citing lack of
16
jurisdiction over Dela Pea, an indispensable party, which rendered all the
proceedings fatally defective.
The CA ruled in favour of Ong and Caballes. CA held that the substituted
service of summons was improper absent any showing that Dela Pea could not be
served personally with summons within a reasonable time
. Since Dela Pea is an indispensable party no final determination can be
had if the court did not acquire jurisdiction over him. San Pedro filed a Motion for
Reconsideration, which had been denied by the CA.
Issue:
has the lower court acquired jurisdiction over San Pedro?
Held:
Yes.
1. The civil case is an action to quiet title.
a. San Pedro alleged in his Petition in Civil Case No. 515-M-99 that
the mortgages in favor of Ong may, at first, appear valid and
effective, but are actually invalid or voidable for having been
made without the knowledge and authority of the spouses
Narciso, the registered owners of the subject properties and San
Pedros predecessors-in-interest.
b. In asking the cancellation of the mortgages on the TCTs of the
subject properties, San Pedro was ultimately asking the RTC to
remove a cloud on his title to the same.
2. in actions in rem or quasi in rem like actions to quiet title, jurisdiction
over the person of the defendant is not a prerequisite to confer
jurisdiction on the court provided that the court acquires jurisdiction over
the res, although summons must be served upon the defendant in order
to satisfy the due process requirements
a. Jurisdiction over the res is acquired either
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i. by the seizure of the property under legal process,
whereby it is brought into actual custody of the law; or
ii. as a result of the institution of legal proceedings,
in which the power of the court is recognized
and made effective.
3. The improper service of summons on Dela Pea did not void the
proceedings for lack of jurisdiction. In quasi in rem proceedings, the court
need not acquire jurisdiction over the persons of the defendants, for as
long as it has acquired jurisdiction over the res.
a. The defect in the service of summons merely infringed Dela Peas
right to due process that precluded the RTC from rendering a
valid judgment with respect to her personal liability.
b. Since Dela Peas right to due process is personal and pertains to
her alone, it could not be invoked by her other co-defendants so
as to escape the judgment of liability against them.
Notes:
1. Summons is a writ by which the defendant is notified of the action
brought against him. Service of such writ is the means by which the
court may acquire jurisdiction over his person. Any judgment without
such service in the absence of a valid waiver is null and void
2. To provide perspective, it is crucial to determine first whether the action
is in personam, in rem, or quasi in rem because the rules on service of
summons under Rule 14 of the Revised Rules of Court apply according to
the nature of the action.
3. According to Section 6, Rule 14 of the Revised Rules of Court, summons
on the defendant in actions in personam must be served by handing a
copy thereof to the defendant in person, or, if he refuses to receive it, by
tendering it to him.[28]
4. Meanwhile, in actions in rem or quasi in rem, jurisdiction over the person
of the defendant is not a prerequisite to confer jurisdiction on the court
provided that the court acquires jurisdiction over the res, although
summons must be served upon the defendant in order to satisfy the due
process requirements
17
5. Personal service of summons is preferred to substitute service.
a. Only if the former cannot be made promptly can the process
server resort to the latter.
b. Moreover, the proof of service of summons must
i. indicate the impossibility of service of summons within
a reasonable time;
ii. specify the efforts exerted to locate the defendant; and
iii. state that the summons was served upon a person of
sufficient age and discretion who is residing in the
address, or who is in charge of the office or regular
place of business, of the defendant.
c. It is likewise required that the pertinent facts proving these
circumstances be stated in the proof of service or in the officers
return.
d. The failure to comply faithfully, strictly and fully with all the
foregoing requirements of substituted service renders the service
of summons ineffective.
SANTOS JR. V PNOC
GR NO. 170943 SEPTEMBER 23, 2008
Facts:
PNOC-EC filed a complaint for sum of money against Santos in RTC to
collect the unpaid balance of the car loan it advanced while Santos was still a
member of the Board of directors. Personal service to Santos failed, since he could
not be located in his last known address despite efforts to do so. On PNOCs
motion, the trial court allowed service of summons by publication. PNOC caused
the publication of the summons in Remate, a newspaper of general circulation in
the Philippines. He also submitted the affidavit of publication of the advertising
manager, and the affidavit of PNOC employee who sent the summons by
registered mail at Santos last known address. When Santos failed to file his
answer within the reglementary period, PNOC moved for the ex parte presentation
and formal offer of evidence. The court granted the motion.
After the court submitted the case for decision, Santos filed an omnibus
motion for reconsideration and to admit attached answer. He pointed out that the
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affidavit of service failed to comply with sec 19 Rule 14 of the Rules of Court as it
was not executed by the clerk of court. He also claimed that he was denied due
process when he was not notified of the PNOCs motion for ex parte presentation
of evidence.
PNOC opposed the motion. It pointed out that it complied with the rules
on service by publication.
The court denied Santos motion for reconsideration. It held that the rules
did not require the affidavit of complementary service by registered mail to be
executed by the clerk of court. It also noted that due process had been observed
as the copy of the order had been mailed to him at his last known address.
Santos filed a petition for certiorari before the Court of Appeals. It only
sustained the findings of the lower court.
Issue:
1. Is service of summons by publication proper?
2. is the affidavit of complementary service executed by the clerk of court
necessary?
Held:
1. yes.
a. since Santos could not be personally served with summons
despite diligent efforts to locate his whereabouts, PNOC-EC
sought and was granted leave of court to effect service of
summons upon him by publication in a newspaper of general
circulation. Santos was properly served with summons by
publication.
b. In contrast to Santos position that substituted service may only
be availed of in an actions in rem, the present rule expressly
states that it applies in any action where the defendant is
designated as an unknown owner, or the like, or whenever his
whereabouts are unknown and cannot be ascertained by diligent
inquiry.
18
i. It now applies to any action, whether in personam, in
rem, or quasi in rem.
2. no.
a. Service of summons by publication is proved by the affidavit of
the printer, his foreman or principal clerk or of the editor,
business or advertising manager of the newspaper which
published the summons.
i. The service of summons by publication is
complemented by service of summons by registered
mail to the defendants last known address.
ii. The complementary service is evidenced 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 last
known address.
b. The rules do not require that the affidavit of complementary
service be executed by the clerk of court.
i. While the trial court ordinarily does the mailing of
copies of its orders and processes, the duty to make
the complementary service is imposed on the party who
resorts to service by publication.
LCD: assuming the summons was defective, the court still acquired jurisdiction
over Santos because of his voluntary appearance in court.
Note:
1. service may, by leave of court, be effected upon him by publication in a
newspaper of general circulation and in such places and for such times as
the court may order in any action:
a. where the defendant is designated as an unknown owner, or
the like, or
b. Whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry.
2. this rule applies [i]n any action where the defendant is designated as an
unknown owner, or the like, or whenever his whereabouts are unknown
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and cannot be ascertained by diligent inquiry. Thus, it now applies
to any action, whether in personam, in rem or quasi in rem.[
3. The rules do not require that the affidavit of complementary service be
executed by the clerk of court. While the trial court ordinarily does the
mailing of copies of its orders and processes, the duty to make the
complementary service by registered mail is imposed on the party who
resorts to service by publication.
Sec 14 ( Service upon defendant whose identity or whereabouts are unknown)
covers two distinguishable situations:
(1) where the identity of the defendant is unknown and
(2) where the address of the defendant is unknown.
a. It must therefore be shown that the address was unknown and
that such address cannot be ascertained wby diligent inquiry.
Section 14 allows summons by publication in any action. It is section 15
(extraterritorial service) in actions against non-resident defendants who cannot be
found in the philippines that limits summons by publication only to actions
quasi in rem and in rem31.
KAWASAKI PORT SERVICE CORPORATION V. AMORES
GR NO. L-58340 JULY 16 1991
Facts:
CF Sharp Inc filed a complaint for injunction and/or declaratory relief with
CFI Manila against 75 Japanese Corporation. As alternative to injunction, CF
prayed for a judicial declaration that being a separate and independent
corporation, it is not liable for the liabilities of CF Sharp Kabushiki Kaisha. As the
Japanese companies are non-residents, without business addresses in the
Philippines but in Japan, CF sharp prayed for leave of court to effect extraterritorial
service of summons. CF Sharp also filed an ex parte motion for extraterritorial
service by registered mail, with return cards. CFI granted the motion.
31 HERRERA supra note 1 at 957.
19
The companies argue that the lower court did not acquire jurisdiction
over their persons as the action do not fall to any of the cases contemplated in Sec
17, Rule 14.
Issue:
1. is the complaint for injunction and/or declaratory relief within the purview
of the provisions of Sec 16, Rule 14 of the Rules?
2. is the extraterritorial service proper?
Held:
No.
1. The complaint is an action in personam.
a. Monetary obligations do not, in any way, refer to status, lights
and obligations.
i. What is sought is a declaration not only that CF Sharp
Inc is a corporation separate and distinct from C.F.
Sharp Kabushiki Kaisha and therefore, not liable for the
latter's indebtedness.
b. there is no action relating to or the subject of which are the
properties of the defendants in the Philippines
i. where a declaratory judgment as to a disputed fact
would be determinative of issues rather than a
construction of definite stated rights, status and other
relations, commonly expressed in written instrument,
the case is not one for declaratory judgment
ii. a declaratory relief proceeding is unavailable where
judgment would have to be made, only after a judicial
investigation of disputed issues.
c. there is no action relating to or the subject of which are the
properties of the corporations in the Philippines
i. they merely demanded or attempted to demand from
private respondent payment of the monetary
obligations of C.F. Sharp K.K.,
ii. No action in court has as yet ensued. Verily, the fact
that C.F. Sharp Philippines is an entity separate and
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distinct from C.F. Sharp K.K., is a matter of defense
that can be raised by the former at the proper time.
d. As regards the prayer for injunction, It was not prayed that the
corporations be excluded from any property located in the
Philippines, nor was it alleged, much less shown, that their
properties if any, have been attached.
2. no.
Since the complaint does not involve the personal status of plaintiff, nor
any property in the Philippines in which defendants have or claim an
interest, or which the plaintiff has attached, but purely an action for
injunction, it is a personal action as well as an action in personam, not an
action in rem or quasi in rem. As a personal action, personal or
substituted service of summons on the defendants, not extraterritorial
service, is necessary to confer jurisdiction on the court.
Notes:
1. Status means a legal personal relationship, not temporary in nature nor
terminable at the mere will of the parties, with which third persons and
the state are concerned
2. extraterritorial service of summons is proper only in four (4) instances,
namely:
a. when the action affects the personal status of the plaintiffs:
b. when the action 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;
c. when the relief demanded in such action consists, wholly or in
part, in excluding the defendant from any interest in property
located in the Philippines; and
d. when the defendant non-resident's property has been attached
within the Philippines."
SANSIO PHILIPPINES V. SPOUSES MOGOL JR.
GR NO. 177007 JULY 14, 2009
Facts:
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Sansio Philippines filed a complaint for sum of money and damages
against Mogol before MeTC. At the request of Sansio, the process server of MeTC
Manila served the summons and the copy of the complaint on sps Mogol at the
courtroom of MeTC Manila BR 24, while they are waiting for the hearing of Alicia
Mogols case for BP 22. After being informed of the summons and the complaint,
counsel of Sps Mogol took hold of the summons and complaint and read them. The
counsel advised the process server that the summons and copy of the complaint
be served only at the address stated in both documents and not anywhere else.
The lawyer also advised the sps not receive the documents. The process server
indicated the what transpired when he served it and declared the summons
unserved.
Sansio moved that sps Mogol be declared in default. The sps parried,
citing Sec 3 Rule 6 of the Rules. They argued that the service should have been
done first in the stated address. They aver that only when it cannot be done within
a reasonable time can the process server resort to substituted service.
MTC declared the sps in default. It stated that Section 6, rule 14 does not
specify where service is to be effected. Since service of summons is made by
handing a copy thereof on the defendant in person, it may done whenever the
defendant may be found. The return indicating unserved should not be taken to
mean that the sps had not been served with summons.
After the denial of Sps MR, they filed a petition for certiorari, prohibition
and/or injunction before RTC. RTC dismissed the petition, holding that sec 6 Rule
14 does not mandate that the summons be served strictly at the address provided
by the plaintiff in the complaint. It also added that same provision states that
service may be made wherever possible and practicable.
On appeal, the Court reversed the findings of the lower courts. It based
its findings on the return of the sheriff stating that the summons are unserved.
Issue:
Was there a valid service of summons?
Held:
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Yes.
1. Already accomplished was the operative act of handing a copy of the
summons to respondent spouses in person. Thus, jurisdiction over the
persons of the respondent spouses Mogol was already acquired by the
MeTC of Manila, Branch 25. That being said, the subsequent act of the
counsel of respondent spouses of returning the summons and the copy of
the complaint to the process server was no longer material.
a. Section 6, Rule 14 of the Rules of Court does not require that
the service of summons on the defendant in person must be
affected only at the latters residence as stated in the summons.
b. Said provision is crystal clear that, whenever practicable,
summons shall be served by handing a copy thereof to the
defendant; or if he refuses to receive and sign for it, by
tendering it to him. Nothing more is required.
i. the service of the copy of the summons and the
complaint inside the courtroom of the MeTC of Manila,
Branch 24 was the most practicable act under the
circumstances, and the process server need not wait for
respondent spouses Mogol to reach their given
address, i.e., at 1218 Daisy St., Employee Village,
Lucena City, before he could serve on the latter the
summons and the copy of the complaint.
ii. Due to the distance of the said address, service therein
would have been more costly and would have entailed
a longer delay on the part of the process server in
effecting the service of the summons.
c. Axiomatically, Sections 6 and 7 of Rule 14 of the Rules of Court
cannot be construed to apply simultaneously. Said provisions do
not provide for alternative modes of service of summons, which
can either be resorted to on the mere basis of convenience to
the parties.
i. Service of summons to be done personally does not
mean that service is possible only at the defendants
actual residence.
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1. It is enough that the defendant is handed a
copy of the summons in person by anyone
authorized by law.
2. This is distinct from substituted service under
Section 7, Rule 14 of the Rules of Court.
ii. the fact that the summons was returned to the process
server and respondent spouses Mogul subsequently
declined to sign for them did not mean that the service
of summons in the persons of respondent spouses was
a failure, such that a further effort was required to
serve the summons anew. A tender of summons, much
less, a substituted service of summons, need no longer
be resorted to in this case.
2. the reliance to the statement unserved in the sheriffs return is
misplaced.
a. The facts stated in the first paragraph of the Return on Service
of Summons i.e. that the summons and the copy of the
complaint were already validly served on the said
respondents. They merely refused to receive or obtain a copy of
the same were not at all disputed by the respondent spouses
Mogol.
Notes:
1. A summons is a writ by which the defendant is notified of the action
brought against him or her.
a. In a civil action, jurisdiction over the defendant is acquired either
upon a valid service of summons or the defendant's voluntary
appearance in court.
b. When the defendant does not voluntarily submit to the court's
jurisdiction, or when there is no valid service of summons, any
judgment of the court, which has no jurisdiction over the person
of the defendant, is null and void
2. Personal service of summons most effectively ensures that the notice
desired under the constitutional requirement of due process is
accomplished.[29]The essence of personal service is the handing or
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tendering of a copy of the summons to the defendant himself, [30]wherever
he may be found; that is, wherever he may be, provided he is in the
Philippines
3. Under our procedural rules, service of summons in the persons of the
defendants is generally preferred over substituted service. [32]
a. Substituted service derogates the regular method of personal
service. It is an extraordinary method, since it seeks to bind the
respondent or the defendant to the consequences of a suit, even
though notice of such action is served not upon him but upon
another whom the law could only presume would notify him of
the pending proceedings
4. Sections 6 and 7 of Rule 14 of the Rules of Court cannot be construed to
apply simultaneously. Said provisions do not provide for alternative
modes of service of summons, which can either be resorted to on the
mere basis of convenience to the parties.
a. Service of summons to be done personally does not mean that
service is possible only at the defendants actual residence.
i. It is enough that the defendant is handed a copy of the
summons in person by anyone authorized by law.
ii. This is distinct from substituted service under Section 7,
Rule 14 of the Rules of Court.
1. Service to be done personally does not mean that service is possible at
the defendants actual residence. It is enough that defendant is handed a
copy of the summons in person by anyone authorized by law32.
2. This is distinct from substituted service under Sec 7 Rule 14 which
requires that summons be served at the defendants residence in the
event personal service is not possible within a reasonable time for
justifiable reasons33.
3. In substituted service, the validity of service does not depend upon actual
receipt. But irregularity in service may be cured by proof of actual receipt.
a. Thus, where summons was in fact received by the defendant, his
32 HERRERA supra note 1 at 922.
33 Id.
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argument that the sheriff should have tried first to serve
summons on him personally, before resorting to substituted
service of summons to his wife, is not meritorious 34.
GUIGUINTO CREDIT COOPERATIVE V TORRES
GR NO. 170926 SEPTEMBER15, 2006
Facts:
Guinoguinto Credit filed a complaint before RTC for collection of sum of
money against its members Torres et al. Summons had been served through a
certain Pagtalunan referred to as Torres et al secretary at the given address.
Guinoguinto filed a motion to declare Torres et al in default, which RTC granted.
The RTC ruled in favour of Guinoguinto. The Court of Appeals annulled the
judgment of the court. It ruled that the Lower Court did not acquire jurisdiction
over Torres et al, they were not served with summons or voluntarily appeared in
court. It also added that no explanation why resort to substituted service of
summons was made, in violation of Sec 6 Rule 14.
Issue:
1. Has summons been properly served?
2. Did the RTC acquire jurisdiction?
Held:
1. no.
a. since substituted service was availed of in lieu of personal
service, there should be a report stating that Pagtalunan was
one with whom respondents had a relationship of trust and
confidence that would ensure that the latter will receive or be
notified of the summons issued in their names.
b. the process server hastily and capriciously resorted to
substituted service of summons without ascertaining the
whereabouts of the respondents.
34 Boticano v. Chu 148 SCRA 541 ( 1987).
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c. Such service of summons is not binding upon Nonilo and Sheryl
Ann Torres whose relationship with Pagtalunan was neither
readily ascertained nor adequately explained in the Return of
Summons.
d. Also, no earnest efforts were made to locate respondent Aida
Torres who was allegedly working abroad at the time summons
was served on her person.
e. No explanation why substituted service was resorted to through
Pagtalunan was stated in the Return.
f. The Return of Summons by the process server showed that no
effort was exerted and no positive step was taken to locate and
serve the summons personally on respondents.
i. Without specifying the details of the attendant
circumstances or of the efforts exerted to serve the
summons, a general statement that such efforts were
made will not suffice for purposes of complying with the
rules of substituted service of summons.
2. No. Since the substituted service was not validly effected, the trial court
did not acquire jurisdiction over the persons of the respondents. The
order of default, the judgment by default, the writ of execution issued by
it, as well as the auction sale of the respondents properties levied on
execution are, therefore, null and void.
Notes:
1. Such requirements under Sections 6 and 7 of Rule 14 must be followed
strictly, faithfully and fully in order not to deprive any person of his
property by violating his constitutional right to due process. T
a. he statutory requirements of substituted service must be strictly
construed since it is an extraordinary method of service in
derogation of personal service of summons, availed of only
under certain conditions imposed by the Rules of Court.
b. Any substituted service other than that authorized under Section
7 is deemed ineffective and contrary to law.
2. Without specifying the details of the attendant circumstances or of the
efforts exerted to serve the summons, a general statement that such
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efforts were made will not suffice for purposes of complying with the
rules of substituted service of summons.
3. Personal service of summons is the mode which must be adopted
whenever practicable. It ought to be effected either by handing a copy
thereof to the defendant in person, or if he refuses, by tendering it to
him.
4. The pre-condition that substituted service may be resorted to only if
personal service cannot be made within a reasonable time must be strictly
followed.
Within a reasonable time presupposes that a prior attempt at personal service,
within a justifiable time frame as would be necessary to bring the defendant within
the jurisdiction of the court has failed35.
POTENCIANO II V. BARNES
GR NO. 159421 AUGUST 20, 2008.
Facts:
Potenciano filed a complaint for damages against Barnes the owner and
president of GP Barnes Group for alleged harassment and maltreatment. Mr.
Herrera, a representative of E Himan Law office secured from the court copies of
the complaint with annexes and summons intended for Mr. Barnes. He indicated
that E Himan was Barnes counsel. On that date, the deputy sheriff issued a return
of summons.
Potenciano filed a motion to declare Barnes in default. E Himan Law office
manifested by way of special appearance solely for the purpose of questioning the
jurisdiction of the court over Barnes, that the law office does not represent Barnes
as he has not engaged the services of the law office. Hence, the law office has no
authority to bind Barnes.
The trial court declared Potenciano in default. E Himans motion for
reconsideration was denied. Soon enough, the trial court ruled in favour of
Potenciano. After Barnes denial of MNT with Diores Law Offices as counsel, he filed
35 HERRERA supra note 1 at 923.
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a petition for certirorari, prohibition and mandamus praying for the nullification of Office who came to the office of the trial court
the lower courts decision. The CA granted the petition. claiming that E. Himan Law Office was the
counsel of Barnes.
The Court of Appeals held that there was no valid service of summons 2. Giving a copy of the summons to a messenger
since neither Mr. Herrera nor E. Himan Law Office was the defendant. When Mr. of a law firm, which was not even the counsel
Herrera, as a representative of E. Himan Law Office, received a copy of the of the defendant, cannot in any way be
summons, Barnes had not yet engaged the services of E. Himan Law Office. The construed as equivalent to service of summons
Court of Appeals ruled that the sheriff did not exert any effort to comply with on the defendant.
Section 6, Rule 14 of the Rules of Court, either by handing a copy of the summons 2. No.
to Barnes in person and should Barnes refuse to receive and sign the summons, by a. Since there was no service of summons on Barnes, the trial court
tendering it to him. Since there was no valid service of summons on Barnes, the never acquired jurisdiction over Barnes and the trial courts order
trial court therefore did not acquire jurisdiction over Barnes. of default and the judgment by default are void.
b. There was no voluntary appearance.
Issue: i. There is no evidence on record that Barnes authorized
E. Himan Law Office to represent him in the case.
1. Has summons been properly served? 1. In fact, E. Himan Law Office filed a
2. Did the RTC acquire jurisdiction? Comment/Manifestation to the Motion to
Declare Defendant in Default, alleging that
Barnes had not yet engaged the services of E.
Held: Himan Law Office, which could not therefore
represent Barnes.
1. No. 2. Thus, the receipt of the summons by E. Himan
a. There was no service of summons on Barnes himself. Law Office and its filing of a
b. There was no attempt whatsoever on the part of the deputy Comment/Manifestation to the Motion to
sheriff to serve the summons on Barnes himself, who was the Declare Defendant in Default cannot be
defendant in the complaint. The deputy sheriff just handed a considered as voluntary appearance on the
copy of the summons, complaint, and the annexes to a certain part of Barnes.
Mr. Herrera who is a representative of E. Himan Law Office, ii. It was only on 15 August 2001 that Barnes made his
which claimed to be the counsel of Barnes. first appearance in the trial court by filing a Motion for
c. The handing of a copy to Mr. Herrera cannot even qualify as New Trial through his counsel of record, Diores Law
substituted service under Section 7 of Rule 14. Offices. The motion was precisely to question the
i. In this case, the deputy sheriff never made any effort validity of the order of default and the subsequent
to serve the summons on Barnes himself. judgment for lack of jurisdiction over the person of the
ii. Neither was the copy of the summons served at Barnes defendant.
residence nor at his office or regular place of business,
as provided under Section 7 of Rule 14. Notes:
1. The deputy sheriff just handed a copy of the
summons to a messenger of E. Himan Law

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1. Service of summons should be made on the defendant himself. However,

if for justifiable reasons the defendant cannot be served in person within
a reasonable time, substituted service of summons is proper.
2. Giving a copy of the summons to a messenger of a law firm, which was
not even the counsel of the defendant, cannot in any way be construed
as equivalent to service of summons on the defendant.
3. Other than valid service of summons on the defendant, the trial court can
still acquire jurisdiction over the defendant by his voluntary
appearance,11 in accordance with Section 20, Rule 14 of the Rules of
Court.

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