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Summons

Is it necessary? Yes, why?

In accion in personam- to acquire jurisdiction upon the defendant

2 ways how jurisdiction may be had by the court:


1) Voluntary appearance
2) Valid service of summons

When do you serve summons?


Not stated by law, but

 You file your complaint, then the defendant files a motion to dismiss, do you need a
service of summons?
o It depends, on the ground of the motion to dismiss. The filing of a motion to
dismiss might mean that the movant submitted his self to the jurisdiction of the
court.
o When a defendant has moved for affirmative relief, the defendant has submitted
himself to the jurisdiction of the court.

 How do you serve summons?


o Personal Service- ( if you see the person in the night spot can you serve
summons upon him? Yes, as long as it is practicable for the server, because you
might not see the server again!)Place of business, place of resident, anywhere.
No hierarchy basically you can serve anywhere you see the defendant. You can
do this by handing the copies to the defendant, if he fails to accept then you can
tender the summons to the defendant.

o Substituted service- when Personal service cant be done. Cannot be served


within a reasonable time. Where? Place of business, or place of residence. How?
By leaving copies of summons at the place of business. Who? To some
competent person person incharge there of

o Publication- when allowed? May be done in any action.


Note: in in rem and quasi in rem there is already jurisdiction over the res that is why
only publication is needed, the summons to the defendant is only for due process

Extraterritorial service of summons


o Defendant is absent but he is a resident of the Ph. How? Personal if possible if he
shows his self or if whereabout is unknown then you can serve through publication.
Substituted means is possible. Or any manner the court may deem fit
o Defendant is a non-resident? Can you maintain a suit against him? Yes, Voluntary
appearance or Valid service of summons within ph and through substituted service
only f the spouse of the non-resident is residing in the ph and the spouse was
appointed attorney-in-fact in the previous cases of the non-resident, but not in any
other kind of substituted service or publication.

 Determine the nature of the action,


o Accion in personam- Personal first(must be then for several times), then after failure
of this, Substituted
o Accion in rem- may be by publication

o Real or personal- to determine venue/ In rem or in personam – how to determine


the modes of service of summons

o Accion in personam- action against a specific defendant

o Accion in rem- binding against the whole world

o Accion quasi-in rem- binding on the whole world but specifically targeting the rights
of the defendant

o Why do we have these distinctions(accion)? To know how you can serve the
summons

 Alias summons- Secondary summons issued for failure of the server to serve such
summons. You have it when the sheriff fails to serve the summons against 1 or all the
defendants or such summons are lost.

 How do you serve service of summons to a corporation?

o Where? The place of business of the corporation


o Who? Those enumerated by the court

Rule 16 ( MTD)

 Dismissal is made by the defendant


 Are any of the ground in Rule 16 waivable?
o Yes, some of the ground are waivable.
 Can you file an MTD even after a responsive pleading?
o If you are relying on the ground under Rule 16 then you can only file MTD before
responsive pleading except for the 4 exceptions ( Res judicata, litis pendencia,
prescription, lack of jurisdiction over the subject matter)
 Ground of rule 16 goes into the suffiency of the complaint.
 Grounds:
o Lack of jurisdiction over the person
o Lack of jurisdiction over the SM
o Litis pendencia
 Difference with forum shopping is that in forum shopping it is always
petitioner who files the cases, while in litis pendencia it may either be the
plaintiff or the defendant that filed the 2 cases
 Rationale is because there may arise 2 conflicting judgements.
 Will the ruling in one case solve the other case? The question that you must
ask to know if there is litis pendencia
o
 How do you know that a motion to dismiss is submission to the jurisdiction of the court?
o The ground is other than questioning the jurisdiction of the court, then
submitted.

 If together with your challenge on the lack of jurisdiction over your person you include
other ground, will you have submitted yourself?
Rule 17 (Dismissal of Action)
 Dismissal upon motion by the plaintiff or by the act of the plaintiff.