Civil Procedure

Civil Procedure pc1 Normal RND GROUP 4 14 2002-01-09T09:06:00Z 2002-01-19T09:46:00Z 3 1058 6036 sc 50 12 7412 9.2720 110

2. COURT ACQUIRES JURISDICTION OVER THE PARTIES

While the court acquires jurisdiction over the plaintiff by the latter's voluntary submission to said jurisdiction with the filing of the complaint, the court acquires jurisdiction over the defendant by his voluntary submission to said jurisdiction or the service of summons and a copy of the complaint upon him.

1. Modes of Service of Summons

There are four (4) modes of serving summons:

(a) personal service;

(b) substituted service;

(c) constructive (by publication) service; and

(d) extraterritorial service.

1. Personal Service

Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. 24 If there are two (2) or more defendants, each one of them should be served a copy of the summons and the complaint. 25

2. Substituted Service

If, for justifiable causes, the defendant cannot personally be served with summons within a reasonable time, service may be effected:

(1) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or

(2) by leaving the copies at the defendant's office or regular place of business with some competent person in charge thereof. 26

In substituted service, it is immaterial that the defendant does not in fact receive actual notice. This will not affect the validity of the service. 27

There must be strict compliance with the requirements of substituted service. 28 For substituted service to be valid, the return must show:

(1) the efforts exerted by the sheriff to effect personal service within a reasonable period of time; impossibility of service should be shown by stating the efforts made to find the defendant;

(2) that such personal service cannot be effected for justifiable reasons;

(3) the service of summons was made at the defendant's residence or office or regular place of business at the time of the service, the address of the defendant to whom summons was supposed to have been served must be indicated in the return; and

(4) the service was made with some person of suitable age and discretion residing therein, if effected at defendant's residence, or with some competent person in charge thereof, if effected at defendant's office or regular place of business, at the time of the service. 29

Impossibility of personal service for justifiable reasons must be shown. 30 Otherwise, the service is invalid. 31 The sheriff's certification that he duly served summons on a defendant does not necessarily mean that he validly served the summons. Impossibility of personal service must be established either by the return or by evidence to that effect. 32

2.1 Service on Domestic Private Juridical Entity

Service on an agent of the corporation is not permitted. The designation of persons or officers who are authorized to accept summons for a domestic corporation is limited and more clearly specified. The rule states 'general manager' instead of only 'manager,' 'corporate secretary' instead of 'secretary' and 'treasurer' instead of 'cashier.'

Accordingly, the Court ruled that the service of summons upon the Branch Manager of petitioner at its branch office in Cagayan de Oro City instead of upon the general manager at its principal office in Davao City is improper. Consequently, the trial court did not acquire jurisdiction over the person of the petitioner. The Court stressed the purpose of the strict enforcement of the rule on summons by providing that under Section 20 of Rule 14, the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. Any proceeding undertaken by the trial court will consequently be null and void. 33

2.2 Service on foreign private juridical entity may be allowed only if there are well-pleaded allegations of having transacted or doing business in the Philippines . 34

The fact of doing business in the Philippines must be established by appropriate allegations in the complaint. The court need not go beyond the allegations of the complaint in order to determine whether it has jurisdiction. 35 A determination that the foreign corporation is doing business is only tentative and is made only for the purpose of enabling the local court to acquire jurisdiction over the foreign corporation through service of summons pursuant to Rule 14, Section 12. Such determination does not foreclose a contrary finding should evidence later show that it is not transacting business in the country. 36

3. Constructive Service (By Publication)

Service upon defendant whose identity or whereabouts are unknown. — 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, 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 time as the court may order. 37

When the defendant is a resident of the Philippines, service of summons by publication is allowed in any action.

4. Extraterritorial Service, When Allowed

Extraterritorial service of summons is allowed where the action is against a non-resident defendant who is not found in the Philippines and the action:

(1) affects the personal status of plaintiffs;

(2) relates to or subject of which is property in the Philippines (real or personal), in which the defendant has claim, lien or interest, actual or contingent; or

(3) in which relief demanded consists wholly, or in part, in excluding the defendant from any interest therein; or

(4) property of defendant has been attached in the Philippines. 38

Thus, extraterritorial service of summons is proper only in actions in rem or quasi-in-rem . The remedy against a non-resident defendant who cannot be served with summons in the Philippines is to locate real or personal property and attach the property. The action becomes in rem or quasi-in-rem 39 in which case, service by publication is permissible. Where, however, the attachment is invalid, the service by publication is void. 40 To be effective, extraterritorial service of summons must be with leave of court and only through any of the following means:

(1) Personal service;

(2) By publication (and copy of the summons and order of the court must be sent by registered mail to the last known address);

(3) By publication (and copy of summons and order of the court) must be sent by registered mail at last known address; Any other manner which the court may deem sufficient. 41

Notes: Service of summons on husband is not binding on wife who is a non-resident. 42 However, substituted service 43 or extraterritorial service of summons by leave of court on a resident defendant who is temporarily outside of the Philippines is valid. 44

2. Effect of Lack of Summons

The trial court does not acquire jurisdiction and renders null and void all subsequent proceedings and issuances in the actions from the order of default up to and including the judgment by default and the order of execution. 45 However, lack of summons may be waived as when the defendant fails to make any seasonable objection to the court's lack of jurisdiction over the person of the defendant. 46

24 Rules of Court, Rule 14, Sec. 6.

25 Bello v. Ubo, No. L-30353, September 30, 1982, 117 SCRA 91.

26 Rules of Court, Rule 14, Sec. 7.

27 Montalban v. Maximo, No. L-22997, March 15, 1968, 22 SCRA 1070.

28 Filmerco Commercial Co., Inc. v. Intermediate Appellate Court, No. L-70661, April 9, 1987, 149 SCRA 194.

29 Rules of Court, Rule 14, Sec. 7.

30 Administrative Circular No. 59.

31 Venturanza v. Court of Appeals, No. L-77760, December 11, 1987, 156 SCRA 305.

32 Keister v. Navarro, No. L-29067, May 31, 1977, 77 SCRA 209, Filmerco Commecial Co., Inc. v. Intermediate Appellate Court, supra , note 28.

33 E. B. Villarosa & Partner Co., Ltd. v. Benito, G. R. No. 136426, August 4, 1999, 312 SCRA 65.

34 Rules of Court, Rule 14, Sec. 12.

35 Litton Mills, Inc. v. Court of Appeals, G. R. No. 94980, May 15, 1996, 256 SCRA 696; Signetics Corporation v. Court of Appeals, G. R. No. 105141, August 31, 1993, 225 SCRA 737.

36 Ibid.

37 Rules of Court, Rule 14, Sec. 14.

38 Banco Espa�ol-Filipino v. Palanca, 37 Phil 921 [1918]; Perkins v. Dizon, 69 Phil 186 [1939]; Sahagum v. Court of Appeals, G. R. No. 78328, June 3, 1991, 198 SCRA 44.

39 Filmerco Commercial Co., Inc. v. Intermediate Appellate Court, supra , note 28.

40 Oba�a v. Court of Appeals, G. R. No. 87635, April 27, 1989, 172 SCRA 886.

41 Rules of Court, Rule 14, Sec. 17.

42 Valmonte v. Court of Appeals, G. R. No. 108538, January 22, 1996, 252 SCRA 92.

43 Montalban v. Maximo, supra , note 27.

44 Rules of Court, Rule 14, Sec. 16.

45 Toyota Cubao, Inc. v. Court of Appeals, G. R. No. 126321, October 23, 1997, 281 SCRA 198.

46 Baticano v. Chu, Jr., L-58036, March 16, 1987, 148 SCRA 541.