TOPIC:

ISSUES AND PROBLEMS IN THE SERVICE OF

SUMMONS/PROCESSES

by:Hon. Mary Jane B. Dacara-Buenaventura

Presiding JudgeMTCC, Branch 02, City of San Fernando, Pampanga

Aguilar vs. Judge How, et al. [A.M. No. RTJ-03-1783 July 31, 2003]:

“It bears emphasizing that the process server’s duty is vital in the administration of justice because it is through him that defendants learn of the action brought against them by the complainant. More important, it is also through the service of summons by the process server that the trial court acquires jurisdiction over the defendant. It is therefore crucial that summons, writs and other court processes be served expeditiously, consonant with the mandate of speedy dispensation of justice stressed by the Constitution.”

Musni vs. Morales [A.M. No. P-99-1340 promulgated on September 23, 1999]

General Function of a Process Server:

(1) Serves court processes such as subpoena, summons, court order and notice;

(2) Prepares and submits returns of court processes;

(3) Monitors messages and/or delivers court mails;

(4) Maintains and keeps custody of record book of court mail matters received and dispatched by him; and

(4) Performs such other duties as may be assigned to him.

OCA Circular No. 56-2003 dated May 22, 2003

“In Multiple sala court, it is the Branch Clerk of Court who issues the summons.”

“Henceforth, all Clerks of Court in multiple sala courts are ordered to cease and desist from issuing summons to defendants and strict compliance to the aforecited provision is hereby enjoined.”

Section 3, Rule 14 of the 1997 Revised Rules on Civil Procedure, summons may be served by:

(1) The Sheriff;

(2) The Deputy Sheriff;

(3) Other Proper Court Officers or Court-Appointed Personnel e.g. process server;

(4) Any suitable person authorized by the court

RETURN OF SUMMONS:

Section 4, Rule 14, provides that the return of summons shall be:

within 5 days from completion of service.

A copy of the return must be furnished to the plaintiff’s counsel either by mail or

personal service.

Modes of Service of Summons

(1) By personal service;

(2) By Substituted Service;

(3) By Extraterritorial Service.

By Personal Service:

(1) by handing a copy of the summons to the defendant in person, or,

(2) if the defendant refuses to receive and sign for it, by tendering it to him. (Note: physical presence of the defendant is required).

Section 7 of Rule 14 of the 1997 Rules of Civil Procedure:

SEC. 7. Substituted service. – If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section [personal service on defendant], service may be effected (a) by leaving copies of the summons at the defendant’s 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..

In resorting to substituted service, the

process server should be GUIDED by the requirements laid down by the Supreme Court in the decision rendered in the case of Manotoc vs. Hon. Court of Appeals, et al., G.R. No. 130974 promulgated on August 16, 2006, penned by Associate Justice Presbitero J. Velasco, Jr.

Following the decision in the Manotoc case, the provision on Substituted Service under the rules can be broken down into the following requirements to effect a valid substituted service:

(1) Impossibility of Prompt Personal Service;

(2) Specific Details in the Return;

(3) A Person of Suitable Age and Discretion;

(4) A Competent Person in Charge.

(1) Impossibility of Prompt Personal Service:

(a) Attempts were made to personally serve the summons within reasonable time. For this purpose, 30 days is considered a reasonable time;

(b) The attempt was made several times, at least three (3) tries, preferably on at least two (2) different dates;

(c) The reason why such efforts are unsuccessful should be stated.

CERTIFICATIONTHIS IS TO CERTIFY that on many occasions several attempts

were made to serve the summons with complaint and annexes issued by this Honorable Court in the above entitled case, personally upon the defendant IMELDA ‘IMEE’ MARCOS-MANOTOC located at Alexandra Condominium Corpration [sic] or Alexandra Homes E-2 Room 104 No. 29 Merlaco [sic] Ave., Pasig, Metro-Manila at reasonable hours of the day but to no avail for the reason that said defendant is usually out of her place and/or residence or premises. That on the 15th day of July, 1993, substituted service of summons was resorted to in accordance with the Rules of Court in the Philippines leaving copy of said summons with complaint and annexes thru [sic] (Mr) Macky de la Cruz, caretaker of the said defendant, according to (Ms) Lyn Jacinto, Receptionist and Telephone Operator of the said building, a person of suitable age and discretion, living with the said defendant at the given address who acknowledged the receipt thereof of said processes but he refused to sign (emphases supplied).

WHEREFORE, said summons is hereby returned to this Honorable Court of origin, duly served for its record and information.

Pasig, Metro-Manila July 15, 1993.

Umandap v. Sabio, Jr., [G.R. No. 140244, August 29, 200] 339 SCRA 243, 249, held

that:

“ x x x a Sheriff’s Return, which states that “despite efforts exerted to serve said process personally upon the defendant on

several occasions the same proved futile,”* conforms to the requirements of

valid substituted service.”

*Note: Such general statement no longer suffice (Manotoc Case)*

GENERALLY COUCHED PHRASES:(*no longer accepted)

(a) “on many occasions several attempts were made to serve the summons x x x personally,”;

(b) “at reasonable hours during the day,” and;

(c) “to no avail for the reason that the said defendant is usually out of her place and/or residence or premises.” *Manotoc case

(2) Specific Details in the Return

The Return of Service should clearly state in detail or in particularity the facts and circumstances of:

(a) The detail on the number of attempts made at personal service;

(b) The dates and times of the attempts; © The inquiries to locate the defendant; (d) The names of occupants of the alleged residence; and

(e) The reasons for the failure to personally serve the summons to the defendant. It must satisfactorily show the efforts undertaken, and those resulted in failure, would prove impossibility of prompt personal service.

(3) Person of suitable Age and Discretion:

(a) A person who must be found in the dwelling or residence of defendant;

(b) A person of legal age or who has attained the age of full legal capacity (18 years old);

(c) A person with enough discernment to understand the importance of a summons;

(d) A person who knows how to read and understand English to comprehend the import of the summons;

(e) A person who have the “relation of confidence” to the defendant

“Discretion” is defined as – “the ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed”.

(a) A competent person in charge of the office or defendant’s regular place of business;

(b) A person who is managing the office or business of defendant, e g. president or manager;

© A person of sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons

(4) A Competent Person in Charge

Four (4) instances:

(1) when the action affects the personal status of the plaintiff;

(2) when the action relates to, or the subject of which is property, within the Philippines, in which the defendant claims a lien or an interest, actual or contingent; (3) 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

(4) when the defendant non-resident’s property has been attached within the Philippines.

Extraterritorial Service:(Section 15, Rule 14)

(a) personal service out of the country, with leave of court;

(b) publication, also with leave of court; or (c) any other manner the court may deem sufficient.

In these instances, service of summons may be effected by:

Mangudadatu vs. HRET et al., [G.R. No. 179813, December 18, 2008], which held that:

“Service by registered mail is not allowed on jurisdictional and due process grounds.”

SEC. 11. Service upon domestic private juridical entity. — When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.

Section 11 of Rule 14 of the Rules of Court :

(1) Residents temporarily out of the Philippines - e.g. seaman, OFW’s(a) personal service;(b) substituted service;© extraterritorial service:

c.1. personal service out of the Phils.c.2. publication (quasi in rem)

(2) Prisoner – service is made thru the Jail Warden or Chief/Head of the jail or institution as they are deemed designated as “special sheriff”; (3) Minor – personally upon the minor and his/her father or mother;

(4) Incompetent – personally upon the incompetent and legal guardian, if none, the guardian ad litem

SERVICE OF SUMMONS UPON OTHER NATURAL PERSONS

Section 11, Rule 14:For Domestic private juridical

entity, service of summons shall be made upon the:

Defendant, which is a: (a) corporation; (b) partnership or; © association –:

President *President

Managing partner *Manager

General Manager *Any Director

Corporate Secretary *Secretary

Treasurer, or *Cashier

In-house Counsel *Agent*Old Rule – Section 13, Rule 14

Take Note:

The Enumeration under Section 11, Rule 14:

restrictedlimited

exclusive

(*expressio unios est exclusio alterius*)

(1) Attys. Douglas V. Santiago, Cypres Agbayani-Santiago & Roy Philippe Talao, petitioners, vs. Hon. Presiding Judge Normandie B. Pizarro, Br. 101, RTC, Quezon City and Jose S. Tidon, doing business under the name & style of Suprema Lex Credit Collection Services, respondents. [[CA GR SP No. 85680. February 21, 2005], it was held that service of summons upon the defendant partnership thru a mere office secretary cannot be given valid effect;

(2) Orion Security Corporation vs. Kalfam Enterprises, Inc. [G.R. No. 163287, April 27, 2007], it was held in this case that service of summons by leaving the summons and a copy of the complaint at respondent-corporation’s office through respondent’s security guard, but refused to acknowledge receipt thereof, was not valid.

Selected decisions on the validity of service of summons upon domestic private juridical entity:

(3) ACY Transport Corporation, petitioner, vs. Hon. Delia H. Panganiban, in her capacity as Presiding Judge of Branch 64, Regional Trial Court of Makati, and the Heirs of Ligaya Mojar, represented by Romeo T. Mojar, respondents. [CA-G.R. SP No. 73050. February 16, 2005], it was held that the substituted service of summons to defendant-corporation, through Mr. Domingo Padilla Jr., a personnel manager/dispatcher, was improper.

Notably, it was further held that: “substituted service of summons under Section 7 of Rule 14 applies only when the defendant is a natural person who could not be served summons within a reasonable time.” In view of the unavailability of the President of the defendant-corporation, summons on the same should have been effected upon its other officers, as enumerated in Section 11 of Rule 14 of the 1997 Rules of Civil Procedure.

Selected decisions on the validity of service of summons upon domestic private juridical entity:

(4) E..B. Villarosa & Partner Co., Ltd. vs., 312 SCRA 65, 73.[5 ] In said case, the service of summons upon the branch manager of the corporation was held to be improper as the designation of persons or officers who are authorized to accept summons for a domestic corporation or partnership is now limited and more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil Procedure.

(5) Mason vs. Court of Appeals,[6] Benito [G.R. No. 144662. October 13, 2003], 413 SCRA 303, 311: it was held that service through Ayreen Rejalde, a mere filing clerk of private respondent-corporation and not one of those enumerated under Section 11, Rule 14, is invalid. In this case, it reiterated the ruling in E. B. Villarosa & Partner Co., Ltd vs. Benito, supra, which held that the enumeration in Section 11, Rule 14 of the officers of the corporation upon whom summons may be served is restricted, limited and exclusive, following the rule in statutory construction that expressio unios est exclusio alterius. Absent a manifest intent to liberalize the rule, strict compliance with Section 11, Rule 14 of the 1997 Rules of Civil Procedure was stressed.

Selected decisions on the validity of service of summons upon domestic private juridical entity:

(6) Bank of the Philippine Islands, petitioner, vs. Spouses Willie and Julie L. Evangelista and LTS Philippines Corporation, respondents. [G.R. 146553. November 27, 2002], it was held that “The return of the summons served upon respondent-corporation failed to indicate the designation or title of the recipient, who should be the corporation’s president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.” The case was remanded to the court of origin for further proceedings. Those proceedings shall include a determination of whether there was actually a valid service of summonses.

Selected decisions on the validity of service of summons upon domestic private juridical entity:

(7) DOLE PHILIPPINES, INC. (TROPIFRESH DIVISION), petitioner versus HON. REINATO G. QUILALA in his capacity as pairing judge of Branch 150, RTC-Makati City, and ALL SEASON FARM, CORP.[G.R. No. 168723. July 9, 2008], in this case, it appears that on April 23, 2003, Marifa Dela Cruz, a legal assistant, received the alias summons.[12] Contrary to private respondent’s claim that it was received upon instruction of the president of the corporation as indicated in the Officer’s Return, such fact does not appear in the receiving copy of the alias summons which Marifa Dela Cruz signed. There was no evidence that she was authorized to receive court processes in behalf of the president. Considering that the service of summons was made on a legal assistant, not employed by herein petitioner and who is not one of the designated persons under Section 11, Rule 14, the trial court did not validly acquire jurisdiction over petitioner.

Selected decisions on the validity of service of summons upon domestic private juridical entity:

Service may be made on:

(a) Designated resident agent; (b) If no such agent, on the government official designated by law or on any of its officers or agents within the Philippines.

Foreign Private Juridical Entity

If Defendant is:

(a) Republic of the Phils. – Solicitor General; (b) Local Government Units – Chief Executive Head or designated officer under the law e.g. Governor, Mayor, etc.

© Other Public Corporation – officer/s as the law or the court may direct.

Public Corporation

Section 6, Rule 21:

Service of a subpoena shall be made in the same manner as personal or substituted service of summons.

SUBPOENA

Section 10, Rule 141, Rules of Court, as amended by the Supreme Court en Banc Resolution dated July 20, 2004 in A.M. No. 04-2-04-SC,

SERVICE TRUST FUND

In addition to the fees hereinabove fixed, the amount of One Thousand (P1,000.00) Pesos shall be deposited with the Clerk of Court upon filing of the complaint to defray the actual travel expenses of the Sheriff, Process Server or other court-authorized persons in the service of summons, subpoena and other court processes that would be issued relative to the trial of the case. In case the initial deposit of One Thousand (P1,000.00) Pesos is not sufficient, then the plaintiff or petitioner shall be required to make an additional deposit. The Sheriff, Process Server or other court-authorized person shall submit to the court for its approval a Statement of the Estimated Travel Expenses for service of summons and court processes. Once approved, the Clerk of Court shall release the money to said sheriff or process server. After service, a statement of liquidation shall be submitted to the court for approval. After rendition of judgment by the court, any excess from the deposit shall be returned to the party who made the deposit.”

“Sec. 10. Sheriffs, PROCESS SERVERS and other persons serving processes. X x x

“In case a request to serve the summons and other court processes is made to the Clerk of Court and Ex-Officio Sheriff who has jurisdiction over the place where the defendant or the person subject of process resides, a reasonable amount shall be withdrawn from said deposit by the Clerk of Court issuing the process for the purchase of a postal money order to cover the actual expenses of the serving sheriff.”

Sec. 10 …… con’t

Steps:

(a) Prepare and submit the Statement of Estimated Travel Expenses (SETE) to the Court;

(b) Secure the approval of the SETE by the Presiding Judge;

© Submit SETE to the Clerk of Court;

(d) Clerk of Court to release the requested amount.

Before Service of Summons

Steps:

(a) Make and submit a Return within 5 days from completion of service, copy furnished the plaintiff;

(b) Submit to the Court a Statement of Liquidation (SOL):b.1. Signed by the Process Server; andb.2. Certified by the Branch Clerk of Court/Clerk of

Court as to the proper and completeness of the supporting documents;

© Secure from the Presiding Judge a Certification as to the duly accomplished cash advance and purpose of travel.

After Service of Summons

(a) Statement of Estimated Travel Expenses (SETE)

(b) Disbursement Voucher;

© Itinerary of Travel;

(d) Statement of Liquidation (SOL):

(e) Certificate of Travel Completed

Sample Forms for: