Substituted Service of Summons: When Filing a Motion Waives Improper Service

The service of summons is the means by which a court acquires jurisdiction over a defendant. When service is defective, a defendant may question it — but only if done properly and promptly. The Supreme Court's 1996 decision in Orosa v. Court of Appeals (G.R. No. 118696) clarifies an important rule: filing certain motions can waive objections to improper service, even if the service itself was flawed.

Facts of the Case

Bertan Press and Antonio J. Bertoso filed a sum of money complaint against Ramon S. Orosa and several co-defendants before the Regional Trial Court of Manila. The sheriff's return dated 8 February 1993 showed that summons was served on 6 February 1993. For four of the petitioners, service was made through their secretary; for the fifth, through an employee.

On 24 February 1993, the petitioners filed a motion for additional time to file their answer. The trial court later declared them in default for failure to answer within the reglementary period. Their motion for reconsideration was denied, and their answer was expunged from the records. The Court of Appeals affirmed, prompting the petitioners to elevate the case to the Supreme Court.

The Issue

The petitioners argued that the substituted service of summons was invalid because the sheriff's return did not show that earnest efforts were made to serve them personally. They claimed the trial court never acquired jurisdiction over them. They also contended that they actually received the summons only on 9 February 1993, making their motion for additional time timely filed.

The Ruling on Waiver

The Supreme Court acknowledged that the sheriff's return was "bereft of any particulars on the impossibility of personal service." Under Sections 7 and 8, Rule 14 of the Rules of Court, substituted service is allowed only when the defendant cannot be served personally within a reasonable time. The return should state the efforts made to serve the defendant personally.

However, the Court held that the petitioners waived any defect in service. Instead of entering a special appearance to question the court's jurisdiction, they filed a motion for additional time to file their answer. This act constituted voluntary submission to the jurisdiction of the court. By doing so, they deemed any flaw in the mode of service waived.

The Ruling on the Sheriff's Return

The Court also rejected the petitioners' claim that they received summons only on 9 February 1993. The sheriff's return is prima facie evidence of the facts stated in it. To overcome this presumption, the evidence must be clear and convincing. The petitioners failed to present such evidence. Thus, the motion for additional time was filed beyond the 15-day reglementary period.

The Court further noted that granting a motion for additional time is discretionary upon the trial court. Since the petitioners failed to show grave abuse of discretion, the denial of their motion and the order declaring them in default stood.

Practical Takeaways

• Special appearance matters. A defendant who wishes to question defective service of summons must enter a special appearance for that sole purpose. Filing a motion for additional time to answer, or any other motion seeking relief from the court, constitutes voluntary appearance and waives objections to service.
• Sheriff's returns carry weight. The sheriff's return of service is presumed correct. A defendant challenging it must present clear and convincing evidence to overcome that presumption.
• Timeliness is critical. The reglementary period to file an answer runs from the date of service indicated in the sheriff's return, not from the date the defendant claims to have actually received the summons.
• Default is a real risk. Failure to answer within the reglementary period, without a valid motion for extension granted by the court, exposes a defendant to an order of default under Section 1, Rule 18 of the Rules of Court.
• Courts are not bound to grant extensions. Parties should not assume that courts will grant the time they pray for. A motion not acted upon in due time is deemed denied.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.