G. SUMMONS Flashcards
Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem
[IN PERSONAM]
Purpose of summons
a. To acquire jurisdiction over the person of the defendant in a civil case
b. To give notice to the defendant that an action has been commenced against him. [1 Riano 376, 2011 Ed.]
[IN REM and QUASI IN REM]
Purpose of summons in actions in rem and quasi in rem
a. Not to acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process
b. Jurisdiction over the defendant is not required
c. The court acquires jurisdiction over an action as long as it acquires jurisdiction over the res that is the subject matter of the action. [Macasaet v. Co, Jr., G.R. No. 156759 (2013)]
Clerk to issue summons (S1)
Clerk of court must issue the summons upon court direction
Contents (S2)
- Summons shall be
a. Directed to the defendant, and
b. Signed by the clerk of court under seal - Summons shall contain
a. The name of the court, and the names of the parties to the action;
b. When authorized by the court upon ex parte motion, an authorization for the plaintiff to serve summons to the defendant;
Note: The plaintiff may serve summons together with the sheriff, only when the sheriff, his deputy or proper court officer fails to serve summons, or if the summons is to be served outside the judicial region of the court. In the latter case, there would be no need for the sheriff, his deputy, or the proper court officer to have first failed to serve the summons before the plaintiff may be authorized by court to serve summons. [Sec. 3, Rule 14]
c. A direction that the defendant answer within the time fixed by the ROC; and
d. A notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for
- The following shall be attached to the original and each copy of the summons
a. A copy of the complaint, and
b. An order for appointment of guardian ad litem, if any. [Sec. 2, Rule 14]
By whom served (S3)
Who may serve summons
- The sheriff,
- His or her deputy,
- Other proper court officer, or
- The plaintiff together with the sheriff. [Sec. 3, Rule 14]
The enumeration of persons who may validly serve summons is exclusive. [1 Regalado 245, 2010 Ed.]
If the plaintiff is a juridical entity
- It shall notify the court, in writing, name its authorized representative, and
- A board resolution or secretary’s certificate must be attached stating that such representative is duly authorized to serve the summons on behalf of the plaintiff
If the plaintiff misrepresents that the defendant was served summons, and it is later proved that no summons was served:
a. The case shall be dismissed with prejudice,
b. The proceedings shall be nullified, and
c. The plaintiff shall be meted appropriate sanctions.
If summons is returned without being served on any or all the defendants,
The court shall order the plaintiff to cause the service of summons by other means available under the Rules.
• Failure to comply with the order shall lead to dismissal without prejudice. [Sec. 3, Rule 14]
When summons shall be served, return
The server shall complete its service within 30 calendar days from issuance of summons by the clerk of court and receipt of such. [Sec. 20, Rule 14]
Within 5 calendar days from service of summons, the server shall:
- File with the court a copy of the return, and
- Serve a copy of the return to the plaintiff’s counsel personally, by registered mail, or by electronic means authorized by the rules. [Sec. 20, Rule 14]
Contents of the return when substituted service was availed of
- The impossibility of prompt personal service within 30 calendar days from issue and receipt of summons;
- The date and time of the 3 attempts on at least 2 different dates to cause personal service and the details of the inquiries made to locate the defendant; and
- Information on the person to whom the summons was served:
a. The name of the person at least 18 years of age and of sufficient discretion residing thereat,
b. The name of the competent person in charge of the defendant’s office or regular place of business, or
c. The name of the officer of the homeowners’ association or condominium corporation or its chief security officer in charge of the community or building where the defendant may be found. [Sec. 20, Rule 14]
When counsel may be deputized bythe court to serve summons on his client
- Where summons is improperly served, and
- A lawyer makes a special appearance on behalf of the defendant to question the validity of service of summons. [Sec. 13, Rule 14]
Validity of summons and issuance of alias summons (S4)
Valid until duly served UNLESS recalled by court.
In case of loss/destruction, court may upon motion issue an alias summons.
Personal service (S5)
- By handing a copy to the defendant in person and informing the defendant that he or she is being served, or
- If he or she refuses to receive and sign for it, by leaving the summons within the view and in the presence of the defendant. [Sec. 5, Rule 14]
Substituted service (S6)
Substituted service may be availed of when for justifiable reasons, the defendant cannot be served personally after at least 3 attempts on 2 different dates. [This reflects the ruling in the case of Manotoc v. CA, 499 SCRA 21 (2006)]
Note: As per Sec. 20, Rule 14, the attempts must be done within the 30 calendar day period provided for the completion of service of summons.
How done [Sec. 6, Rule 14]
1. By leaving copies of the summons at the defendant’s residence to a person at least eighteen (18) years of age and of sufficient discretion residing therein;
• To be of sufficient discretion, a person must know how to read and understand English to comprehend the import of the summons, and fully realize the need to deliver the summons and complaint to the defendant at the earliest possible time for the person to take appropriate action. [Prudential Bank v. Magdamit, G.R. No. 183795 (2014)]
- By leaving copies of the summons at the defendant’s office or regular place of business with some competent person in charge thereof.
• A competent person includes, but is not limited to, one who customarily receives correspondences for the defendant;
• Must be the one managing the office or business of the defendant, such as the president or manager; and such individual must have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons. [Prudential Bank v. Magdamit, G.R. No. 183795 (2014)] - By leaving copies of the summons, if refused entry upon making his or her authority and purpose known, with any of the officers of the homeowners’ association or condominium corporation, or its chief security officer in charge of the community or the building where the defendant may be found [This reflects the ruling in the case of Robinson v. Miralles, G.R. No. 163584 (2006)]; and
- By sending an electronic mail to the defendant’s electronic mail address, if allowed by the court. [Sec. 6, Rule 14]
Service consistent with international convention (S9)
Service may be made through methods which are consistent with established international conventions to which the Philippines is a party.
Return (S20)
Within 5 calendar days from service of summons, the server shall:
- File with the court a copy of the return, and
- Serve a copy of the return to the plaintiff’s counsel personally, by registered mail, or by electronic means authorized by the rules. [Sec. 20, Rule 14]
Proof of service (S21)
- Written by server
- Set forth the manner, place, and date of service; any papers which have been served with the process, and the name of the person who received the papers served
- Be sworn to when made by a person, other than the sheriff or his or her deputy.
If email:
- Printout
- Affidavit of mailer
Proof of service by publication (S22)
- Affidavit of publisher/business/ad manager
- Copy of publication
- Affidavit showing deposit of a copy of summons and order for publication in the post, postage prepaid, directed to the defendant by registered mail to his or her last known address
Service upon prisoners (S8)
Service shall be effected upon him by the officer having the management of such jail or institution.
Such officer is deemed a special sheriff
He or she shall file a return within 5 calendar days from service of summons. [Sec. 8, Rule 14]
Service upon minors and incompetents (S10)
Where the defendant is a minor, insane, or incompetent person, service of summons shall be made:
a. Upon him or her personally, and
b. On his or her legal guardian
i. If none, on his or her guardian ad litem whose appointment shall be applied for by the plaintiff
ii. In the case of a minor, on his or her parent or guardian. [Sec. 10, Rule 14]
