Civil Procedure- Midterm Notes

the surrounding circumstances; otherwise, in the courts desire to

make a short cut of the proceedings, it might foster, wittingly or un
wittingly, dangerous collusions to the detriment of justice. It would
then be easy for one lawyer to sell ones rights down the river, by
just alleging that the just forgot every process of the court affecting
his clients, because he was so busy. (Bayog vs Natino, 258 SCRA 378)

Rule 13- Filing and Service of Pleadings

Sec.1 Coverage- see codals

-Where one counsel appears for several parties, he shall only be

entitled to one copy of any paper served upon him by the opposite
side. (Sec.2, Rule 13, ROC)

Sec. 2 Filing and Service, defined

Filing- you present the pleading or other papers to the office of the
clerk of court

-But if the 5 defendants are represented by different lawyers, that is

another story. Every lawyer has to be furnished a copy

Service- you furnish a copy of the pleading or paper concerned to a

party, or if he is represented by a lawyer, you must furnish a copy of
the pleading to the lawyer

Q. Suppose you are represented by three or more lawyers should

every lawyer be served a copy?
A. No, service on one is sufficient. Sec 2 says service shall be made
upon his counsel or one of them Service to one is service to all.
You can do it if you want to but service on one will suffice.

-The GENERAL Rule, when a party is represented by a lawyer, the

service should be to the lawyer and not to the party. Service to the
party in that case is not valid.
*Exception- if the court orders direct service to the party
Reason: the parties, generally, have no formal education or knowledge of the rules of
procedure, specifically, the mechanics of an appeal or availment of legal remedies;
thus, they may also be unaware of the rights and duties of a litigant relative to the
receipt of a decision.

Sec.3 Manner of Filing- see codals

See also Rule 36 Sec 1
2 Modes of Filing

-Usually, service is ordered upon the party himself, instead of upon

his attorney, (1) when it is doubtful who the attorney for such party
is, or (2) when he cannot be located or (3) when the party is directed
to do something personally, as when he is ordered to show cause.
(Retoni, Jr. vs Court of Appeals, 218 SCRA 468)

1.) Personal by presenting the original copy of the pleading,

notice, appearance, motion, order or judgment,
personally to the clerk of court; OR
2.) By registered mail

-Notice to the lawyer who appears to have been unconscionable

irresponsible cannot be considered as notice to his client. The
application to the given case of the doctrine that notice to counsel is
notice to parties should be looked into and adopted, according to
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Registered Mail

A. Prove it by presenting the registry receipt and the affidavit of the

server

-it is filing through the registry service and made by

depositing the pleading in the post office and not through any other
means of transmission

a.) containing a full statement of the date and place of

depositing the mail in the post office in a sealed envelope
addressed to the court;

-if a private carrier is availed of by the party, the date of

actual receipt by the court of such pleading and not the date of
delivery to the private carrier, is deemed to be the date if filing of
that pleading

b.) with postage fully prepaid and

c.) with instructions to the postmaster to return the mail to
the sender after 10 days if undelivered.

IMPORTANCE of Registered Mail

It must be stressed that the affidavit is VERY important!!
-the date of filing is the date of mailing. The date in the
envelope is officially the date if filing
Sec.4 Papers required to be filed and served see codal (focus on the word
SUBSEQUENT)

Filing by Fax Machine

-Filing a pleading by facsimile transmission is NOT sanctioned
by the Rules of Court. A facsimile is not a genuine and authentic
pleading. It is, at best, an exact copy preserving all the marks of an
original. Without the original, there is no way of determining on its
face whether the facsimile pleading is genuine and authentic and
was originally signed by the party and his counsel. It may, in fact, be
a sham pleading. (Garvida vs Sales, Jr. 1997)

Q. Do you mean to tell me the complaint does not have to be served

to the defendant by the plaintiff?
A. Of course not! It is the sheriff who will serve it to the defendant.
So, the plaintiff does not really have to go to the defendant to serve
the complaint.
But if you are the defendants lawyer, you go directly to the
plaintiffs lawyer to serve the answer because an answer is a
pleading subsequent to the complaint.

Sec. 12 Proof of Filing- see codal

Q. Suppose I filed it in court PERSONALLY, but it is not there,
therefore, there is no showing that I filed it in court personally. So
how do I prove it?

Sec.5 Modes of Service-see codal

A. Just show your copy which is duly stamped and received by the
court. Definitely, the fault is not yours but with the clerk of court

How to serve pleading?

Q. If filed by REGISTERED MAIL. Suppose the court has no copy of it,

it had been lost between the post office and the court?

1.) Personally
2.) By mail
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3.) Substituted service in case of failure of the personal service or by

registered mail

Sec. 7 Service by Mail

-You can also serve your pleadings by mail. You will notice this time
although the law prefers service by registered mail, however, the last
sentence of Section 7 says, If no registry service is available in the
locality of either the sender or the addressee, service may be done
by ordinary mail.

Sec. 6 Personal Service- see codal. Focus: office, residence, not the same with
serving of summons
-preferred mode of service
-When recourse is made to the other modes, a written explanation
why service or filing was not done personally becomes indispensable.
If no explanation is offered to justify resorting to the other modes,
the discretionary power of the court to expunge the pleading comes
into play.

-Take note, comparing Section 7 with Section 3, service by ordinary

mail may be allowed for purposes of service (Section 7), but for
purposes of filing (Section 3), the law does not recognize the
ordinary mail.
When is service by mail deemed complete?

NAPOCORs notice of appeal was served and filed by registered maildue to lack of manpower to effect personal service. This explanation
is acceptable for it satisfactorily shows why personal service was not
practicable. (Marinduque Mining and Industrial Corp Case, GR#
161219)

-Service by ORDINARY MAIL is complete upon the expiration

of ten days after mailing, unless the court otherwise provides
-Service by REGISTERED MAIL is complete upon the actual
receipt by the addressee OR, after 5 days from the date he
received the first notice of the postmaster

-Service upon a lawyer must be effected at the exact given address

of the lawyer and not in the vicinity or at a general receiving section
for an entire multi-storied building with many offices. (PLDT vs
NLRC, 128 SCRA 402)

-The rule on service by registered mail contemplates 2

situations:
1.) Actual Service- the completeness of which is
determined upon receipt by the addressee of the
registered mail;

-While it is true that the service was improper, but the trouble is, it
was going on for some time and you are not complaining. So, the
ground floor becomes your adopted address. They cannot now
disown this adopted address to relieve them from the effects of their
negligence, complacency or inattention. Service, therefore, of the
notice of judgment at the ground floor of the building, should be
deemed as effective service. (PCI Bank vs Ortiz, 150 SCRA 680)

2.) Constructive Service- the completeness of which is

determined upon the expiration of 5 days from the date
of first notice of the postmaster without the addressee
having claimed the registered mail. (Santos vs CA, 293
SCRA 147)

When is Personal Service complete?

-Completed by ACTUAL delivery (handling a copy to the
defendant; or tendering him a copy if he refuses)
3

c.) The registry return card shall be filed immediately

upon its receipt by the sender, OR in lieu thereof, of
the unclaimed letter together with the certified or
sworn copy of the notice given by the postmaster
that is constructive service

CONSTRUCTIVE SERVICE
-service is deemed to have been completed
-There is NO constructive service because there is no
certification by the postmaster that is claimed.xxx
Certification should include the details of delivery and not
just state that notice was issued. A certification from the
postmaster would be the best evidence to prove that the
notice has been validly sent.xxx The postmaster should
certify not only that the notice was issued or sent but also as
to how, when and to whom the delivery thereof was made.
(Johnson and Johnson Phils. vs CA, 201 SCRA 768)

There must be an affidavit of the person who mailed it. The

surrender of a registry receipt alone is not sufficient because if
you send the registry receipt, it is not reflected to whom that
letter is addressed

Sec. 9 Service of judgments, final orders or resolutions

3 Modes of Serving COURT ORDERS or JUDGMENTS
1.) Personal
2.) Registered Mail
3.) Service by Publication, if a party is summoned by
publication and has failed to appear in the action

Sec.8 Substituted Service

-this mode is availed of only when there is failure to effect service
personally or by mail. This failure occurs when the office and residence of the
party or counsel is unknown

NOTE: NO substituted service

Sec. 11Priorities in modes of service of filing

Sec. 13 Proof of Service

-Take note that courts are not covered by Section 11. It only applies
to lawyers and parties. The court does not have to explain why it
resorted to registered mail because Section 11 says, Whenever
practicable, the service and filing of pleadings and other papers shall
be done personally EXCEPT with respect to papers emanating from
the court.

PERSONAL SERVICE- proof of personal service shall consist of

a written admission of the party served, or the official return
of the server, or the affidavit of the party serving, containing
a full statement of the date, place and manner of service
ORDINARY MAIL- proof thereof shall consist of an affidavit of
the person mailing of facts showing compliance with Section
7

Solar Team Entertainment vs Ricafort

293 SCRA 661

REGISTERED MAIL- proof shall consist of:

Pursuant to Section 11 of Rule 13, service and filing of pleadings and

other papers MUST, whenever practicable, be done personally; and
if made through other modes, the party concerned must provide a
written explanation as to why the service or filing was not done

a.) Affidavit of the mailer AND

b.) Registry Receipt issued by the mailing office

CANCELATION of Notice of Lis Pendens

personally.

GR: The notice of lis pendens under the rules cannot be

removed without the order from the court and generally the
court cannot issue the order until the case is finished or until
the final issue of the case is determined

If only to underscore the mandatory nature of this innovation to our

set of adjective rules requiring personal service whenever
practicable, Section 11 then gives the court the discretion to consider
a pleading or paper as not filed if the other modes of service or filing
were resorted to and no written explanation was made as to why
personal service was not done in the first place.

Exception: After proper showing that the notice is: (a) For
the purpose of molesting the adverse party; or (b) it is not
necessary to protect the rights of the party who caused it to
be recorded.

Henceforth, whenever personal service or filing is practicable, in

light of the circumstances of time, place and person, personal service
or filing is MANDATORY. Only when personal service or filing is not
practicable may resort to other modes be had, which must then be
accompanied by a written explanation as to why personal service or
filing was not practicable to begin with.

While a notice of lis pendens cannot ordinarily be cancelled

for as long as the action is pending and unresolved, the
proper court has the authority to determine whether to
cancel it under peculiar circumstances, e.g., where the
evidence so far presented by the plaintiff does not bear out
the main allegations in the complaint.

Sec. 14Notice of Lis Pendens

-is a notice of pending action or litigation between the parties
involving title to or right of possession over real property

Rule 14-Summons

REQUISITES:

-Summons is the writ by which the defendant is notified of the action

brought against him

1.) Action affects the title or the right of possession of real property;
2.) Affirmative relief is claimed;
3.) Notice shall contain the name of the parties and the object of
the action or defense and a description of the property affected
thereby; and
4.) Action in Rem

-Section 1 directs that the clerk of court shall issue the

corresponding summons to the defendant upon (a) the filing of the
complaint, and (b) the payment of the requisite legal fees. The use of
the term shall leaves no doubt as to the mandatory character of
service of summons

-this serves as a warning to all persons that a particular real property

is in litigation, and that one who acquires an interest over said
property does so at his own risk, or that he gambles on the result of
the litigation over said property
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Purpose of Summons

amended complaint as the original complaint was deemed

withdrawn upon such amendment (Atkins vs Domingo, GR# L-19565)

-Jurisdiction over the person of the defendant in a civil case

is acquired either by his voluntary appearance or service of summons
upon him (Minucher vs CA, GR# 142963)

-In an action IN REM or QUASI IN REM, jurisdiction over the

defendant is not mandatory and the court acquires jurisdiction over
an action as long as it acquires jurisdiction over the res. The purpose
of summons in these actions is not the acquisition of jurisdiction over
the defendant but mainly to satisfy the constitutional requirements
of DUE PROCESS (Gomez vs CA, 420 SCRA 98)

-By the filing of the complaint and the payment of the required filing
and docket fees, the court acquires jurisdiction only over the person
of the defendant. Acquisition of jurisdiction over the latter is
accomplished by a valid service of summons upon him assuming he
does not make a prior voluntary appearance in the action

Sec.2 Contents- see codal

Service of Summons without copy of the complaint

-Service of summons is required even if the defendant is aware of

the filing of the action against him. His knowledge of the existence of
a case is not one of the modes by which a court acquired jurisdiction
over the person of the defendant (Haban vs Vamenta)

-the SC, while admitting that the service of summons was

defective, treated the defect as having been WAIVED by the
defendants failure to seasonably challenge the trial courts
jurisdiction over her person. She should have appeared to
challenge the jurisdiction of the court (Pagalaran vs Ballatan, 13 Phil 135)

Effect of Non- Service

-non service or irregular service of summons renders null
and void all subsequent proceedings and issuances in the action
from the order of default up to and including the judgment by
default and the order of execution

Q. Suppose a defendant, who has already been summoned, died,

and there was substitution of party (under Rule 3), his legal
representative was substituted in his place, is there a necessity of
issuing new summons on the substituted defendant?
A. NO. The order of the court ordering him to be substituted is
already sufficient. Anyway he is only a continuation of the
personality of the original defendant. Just serve the copy of the
order, where he is ordered to be substituted. (Fetalino vs Sanz, 44
Phil 691)

-Where the defendant has already been served with summons on

the original complaint, no further summons is required on the
amended complaint if it does not introduce new causes of action
(Ong Peng vs Custodio, GR# 14911)
-But where the defendant was declared in default on the original
complaint and the plaintiff subsequently filed an amended
complaint, new summons must be served on the defendant on the

Q. If a defendant is served with summons and later on the complaint

is amended by the plaintiff, is there a necessity that another
summons be issued and served based on the amended complaint?
6

of the amended complaint with a copy of the order admitting the

filing of the amended complaint.

A. Qualification: it depends on whether the amendment was made

before or after the defendants appearance* in the action.
*Appearance means filing something in court which would show that the court has
jurisdiction over your person, like the filing of an answer, motion for extension of
time to file answer, motion for Bill of Particulars. When the defendant filed an
answer through his lawyer, there is now appearance of the defendant

Q. Suppose that the court allowed the admission of the amended

complaint, what is the period for the defendant to file an answer to
the amended complaint?

a.) If the defendant has NOT filed answer to the original

complaint there must be another summons issued on the amended
complaint. A new summons must be served all over again based on
the amended complaint (Atkins Case)

A. Going back to Rule 11, 10 days only. Ten days, not from the
receipt of the amended complaint, but from receipt of the order
allowing the amended complaint.

b.) If the defendant has already filed an answer to the original

complaint or he has already appeared in the action, and after that
the complaint is amended, there is no need of issuing new summons
on the amended complaint. (Ong Peng Case)

Sec.3 By Whom Served

Who are authorized by law to serve summons?
1.)
2.)
3.)
4.)

Q. Suppose the defendant was served with summons on the original

complaint and before he could answer, there is now an amended
complaint, so there will be new summons on the amended
complaint, what is the period to file an answer?
A. There will be another period of 15 days to file an answer to the
amended complaint upon receipt of the amended complaint and the
summons

Sheriff;
Deputy Sheriff;
Other proper court officer (court employees); or
For justifiable reasons, by any suitable person authorized
by the court issuing the summons

-Summons may be made at night as well as during the day, or even

on a Sunday or holiday because of its ministerial character
Sec. 4 Return- When the service has been completed, the server shall, within 5
days therefrom, serve a copy of the return, personally or by registered mail,
to the plaintiffs counsel and shall return the summons to the clerk who issued
it, accompanied by proof of service.

Q. Suppose the defendant has already filed an answer to the original

complaint and after that there is an amendment complaint, what
must the plaintiff do?

-There must be a report because that will determine when the

period to file an answer will start to run.

A. This time, there is no need of summons. All that the plaintiff has
to do is to furnish the defendant a copy of the amended complaint
together with the motion to admit it. Just serve the defendant a copy
7

The summons must be served in person. This is literal, the summons must be
served upon the defendant himself not to anybody else.

-He must also furnish a copy of his report to the plaintiffs lawyer so
that the plaintiffs lawyer can determine what is the deadline for the
defendant to file his answer

-if the defendant refuses the service, the server should not resort to
substituted service immediately. He must tender the summons to him.
Tender of summons is not a separate mode of service. It is a part of service in
person.

Sec. 5 Issuance of Alias Summons

-the serving officer shall also serve a copy of the return on the
plaintiffs counsel stating the reasons for the failure of service within
5 days therefrom. They should tell the lawyer what happened so that
if the summons was not served, the lawyer can file a motion for
issuance of an ALIAS SUMMONS

Sec. 7 Substituted Service

-if, for justifiable causes, the defendant cannot be served within
reasonable time

-so that the plaintiffs lawyer will have to look now for the defendant
and once he finds the correct address, he has to inform the court of
the new address so that a new summons can be issued on the new
address

-If you want to resort to substituted service, you better have to do it

by leaving copies of the summons:
1.) at the defendants residence with some person of
SUITABLE age and discretion residing therein; OR

-Alias Summons- one issued when the original has not produced its
effects because of a defect in the form or in the manner of service
and when issued supersedes the first writ

2.) in his office or regular place of business with some

COMPETENT person in charge thereof, like the manager or
the foreman
-so, if the server cannot serve you the summons personally, because
he cannot find you despite several attempts, then he can serve it on
your wife or child, who is around, or the housemaid or houseboy,
PROVIDED they are of suitable age and discretion

3 Modes of Service of Summons

1.) Service in person on defendant
2.) Substituted Service
3.) Service by Publication

Substituted Service of Summons- Requisites

Sec. 6 Service in person of defendant
1.) The impossibility of the personal service of summons
within a reasonable time;
2.) The efforts exerted to locate the person to be served;
and
3.) Service upon a person of sufficient age and discretion
residing in the same place as defendant OR some

How?
-it is effected by (a) handing a copy thereof to the defendant
in person, or (b) if he refuses to receive and sign for it, by tendering it to him.
8

COMPETENT person in charge of his office or regular

place of business

-must be the one managing the office or business of

defendant, such as the president or manager; and such individual
must have sufficient knowledge to understand the obligation of the
defendant on the summons, its importance, and the prejudicial
effects arising from inaction on the summons. Again, the details
must be contained in the Return

-For substituted service to be available there must be several

attempts by the Sheriff to personally serve the summons within a
reasonable period Several Attempts means at least 3 tries,
preferably on at least two different dates. In addition the sheriff
must cite why such efforts were unsuccessful. It is only then that
impossibility of service can be confirmed or accepted.

-It is not necessary that the person in charge of the

defendants regular place of business be specifically authorized to
receive the summons. It is enough that he appears to be in charge.
(Guanzon vs Arradaza, 510 SCRA 309)

-The date and time of the attempts on personal service, the inquiries
made to locate the defendant, or the name/s of the alleged
occupants of the alleged residence or house of the defendant and all
other acts done, though futile, to serve the summons on the
defendant must be specified in the Return to justify substituted
service.

Effects when substituted service is valid but defendant failed to

actually receive summons
-Where the substituted service has been validly served, its
validity is not affected by the defendants failure to actually receive
the summons from the person with whom the summons had been
left.

A person of suitable age and discretion

-a person of suitable age and discretion is one who has
attained the full age of full legal capacity (18 y/o) and is considered
to have enough discernment to understand the importance of
summons

-The rule does not require the sheriff or any authorized

server to verify that the summons left in the defendants residence
or office was actually delivered to the defendant.

-Thus, to be of sufficient age and discretion, such 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. Thus, the person
must have a relation of confidence to the defendant, ensuring that
the latter would receive or at least be notified of the receipt of
summons

When defendant prevents service of summons

-In his return, the sheriff declared that he was refused entry
by the security guard in the subdivision. The latter informed him that
petitioner prohibits him from allowing anybody to proceed to her
residence whenever she is out. Obviously, it was impossible for the
sheriff to effect personal or substituted service of summons upon
petitioner. We note that she failed to controvert the sheriffs
declaration. Nor did she deny having received the summons through
the security guard. X x x Considering her strict instruction to the
security guard, she must bear its consequences. Thus, we agree with

A Competent person in charge of the office or regular place of

business

the trial court that summons has been properly served upon
petitioner and that it has acquired jurisdiction over her. (Robinson vs
Miralles, 510 SCRA 678)

When is Service of Summons by publication allowed?

1.) Where the defendant is designated as unknown owner;
and
2.) Where the defendant is known but his whereabouts are
unknown and cannot be ascertained by diligent inquiry.

-A. No. Section 7 cannot be applied unless you attempt Section 6

(Service in Person). The sheriff has to try several times to reach the
defendant in person. Sheriff is not allowed to resort to substituted
service without attempting service in person several times.

-Section 14 allows service of summons by publication, if the

whereabouts of the defendant is unknown, after diligent inquiry and
with leave of court. However, Section 17 requires that the
application for leave to effect service by publication must be
accompanied by a motion in writing, supported by an affidavit
setting forth the grounds for the application (Pacana-Gonzales vs
CA, GR# 150908)

Distinctions between service of PLEADINGS (Rule 13) and service of

Summons (Rule 14)
FIRST DISTINCTION: In Rule 13, that is known as PERSONAL SERVICE.
In Rule 14, that is known as Substituted service. Service of Summons
is governed by a different rule (Rule 14) from service of pleadings,
judgments and other papers (Rule 13).

-Summons by way of publication may with leave of court be availed

of where a defendant involved in any action (in rem, quasi in rem,
and in personal) is designated as an unknown owner or whenever his
whereabouts are unknown and cannot be ascertained. The summons
shall be effected through publication in a newspaper of general
circulation and in such places and for such time as the court sets.

SECOND DISTINCTION: In Rule 14, substituted service means if you

cannot serve the defendant in person, then you serve the summons at
the residence of the defendant with some person of suitable age and
discretion residing therein or by leaving copies at the defendants
office or regular place of business with some competent person in
charge thereof. That is substituted service of summons under Rule
14.

-In Santos vs PNOC, GR# 170943, the SC held that the in rem/ in
personame distinction was significant under the old rule because it
was silent as to the kind of action to which the rule was applicable.
Because of this silence, the court limited the application of the old
rule to in rem actions only. This has been changed. The present rule
expressly states that it applied to any action where the defendant is
designated as unknown and cannot be ascertained by diligent
inquiry. Thus, it now applies to any action, whether in personam, in
rem or quasi in rem.

But in Rule 13, substituted service of other pleadings, judgments,

orders, etc., if personal service or service by registered mail have
failed, then serve it on the clerk of court.

Service by Publication
Q. Can you sue in the Phils a defendant who is not residing in the
Philippines and who is not around physically?

Sec. 14Service upon defendant whose identity or whereabouts are

unknown
10

A. NO, you cannot because there is no way for the court to acquire
jurisdiction over his person EXCEPT when action is in rem or quasi in
rem, like when the action is the personal status of the plaintiff who is
in the Philippines or the properties of the defendant are in the
Philippines. And the venue is where the plaintiff resides or where the
property is situated.

The claim for damages is personam. He is summoned by publication

and based on the Sahagun Ruling, the court can only render
judgment insofar as the land is concerned. It cannot render
judgment on the damages because that is in personam. But if he files
an answer, he is now submitting his person to the jurisdiction of the
court. There could now be a valid judgment not only on the res but
also on the damages. That was the explanation in the case of
Sahagun.

Sec. 15 Extraterritorial Service

Extraterritorial Service of Summons- Requisites
a.) Defendant is a NON- RESIDENT;
b.) He is not found in the Philippines; and
c.) The action of against him is either in rem or quasi in rem

The non resident is given not less than 60 days to file an answer. It is
given a longer period in order to give him more time. This is related
with Sec. 1 Rule 11: The defendant shall file his answer to the
complaint within 15 days after service of summons, UNLESS a
different period is fixed by the court.

Modes of Extraterritorial Service

a.) By personal service under Section 6;
b.) By publication in a newspaper of general circulation in
such places andfor such time as the court may order, in
which case a copy of the summons and order of the
court shall be sent by registered mail to the last known
address of the defendant; or
c.) In any other manner the court may deem sufficient (e.g.
Service of Summons by Registered mail as was held in
the case of Carriaga, Jr. vs Malaya, 143 SCRA 441)

Sec. 8 Service upon entity without juridical personality

Q. Since you can sue someone without juridical personality, how do
you serve summons upon him?
A. Under Sec. 8, by serving summons upon anyone of them, that is
sufficient. Service upon any of those defendants is service for the
entire entity already. You may also serve summons upon the person
in charge of the office of the place of business. He may not
necessarily be the owner but in-charge of the office, he can be
served with summons

Sahagun vs CA
198 SCRA 44
In fine, while there is no prohibition against availing of a foreign
newspaper in extraterritorial service of summons, neither should
such publication in a local newspaper of general circulation be
altogether interdicted since, after all, the rule specifically authorizes
the same to be made in such places and for such time as the court
concerned may order.

Sec. 9 Service upon prisoners

-Under Sec. 9, summons shall be served through the person in
charge of the jail like the jail warden. The jail warden is automatically
11

considered as deputized to serve it to the prisoner. It is not necessary for the

court officer to go into the jail and look for the prisoner

Q. What is the period to file answer?

A. Under Rule 11, Section 2, the period to file an answer is longer if
summons is served on a government official designated by law for
that purpose, the period is 30 days. But if the foreign corporation
has a designated resident agent in the Philippines and summons is
served on him, the period to answer is only 15 days just like any
other defendant

Sec. 10 Service upon minors and incompetents- see codal

-service upon the minor AND his legal guardian
-in any event, if the minor or incompetent has no legal guardian, the
PLAINTIFF must obtain the appointment of a guardian ad litem for
him

-A litigant or process server who has not gone through the records
of the SEC cannot claim to have carried out the diligent inquiry
required under the law for valid service of summons by publication
upon a domestic corporation (Baltazar vs CA, 168 SCRA 354)

Sec. 11 Service upon domestic private juridical entity- see codal

-president, managing partner, general manager, corporate secretary,
treasurer, or in-house counsel (list is exclusive)

-if a foreign corporation is not doing business in the Philippines, it

cannot be sued, just like a non-resident defendant because the court
can never acquire jurisdiction over that person or foreign
corporation

-notably, under the new rules, service of summons upon an AGENT

of the corp. is no longer authorized

Doing Business

-a strict compliance with the mode of service is necessary to confer

jurisdiction of the court over a corporation. The officer upon whom
service is made must be one who is named in the statute; otherwise
the service is insufficient

-construed to mean such continuity of conduct and intention

to establish a continuous business. An isolated transaction or
transactions which are occasional, incidental or casual and which do
not evince intent to conduct continuous business do not constitute
doing business in the Philippines.

Sec. 12 Service upon foreign private juridical entity

-doing business in the Phils

Sec. 13 Service upon public corporations

-RP- serve to Solicitor General

-service may be made on its:

-Province, City, or Municipality, or like public corporation- executive

heads (e.g. Provincial Governor, Municipal or City Mayor), or such
other officers as the law or the court may direct

a.) resident agent designated in accordance with law for that

purpose; OR
b.) if there be no such agent, on the GOVERNMENT OFFICIAL
designated by law to that effect; OR

Sec. 18 Proof of Service

c.) any of its officers or agents within the Philippines

-Sheriffs Return where the sheriff will state the manner (personal, or
substituted, publication); place and date; to who served
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Q. Must the return be sworn to?

Sec. 2 Motions must be in writing- All motions shall be in writing except those
made in open court or in the course of a hearing or trial.

A. NO NEED, except when made by a person other than a sheriff or

his deputy.

Sec. 3 Contents
Content of a Motion

Sec. 19 Proof of Service by publication

1.) The relief sought to be obtained;

2.) The ground upon which it is based; and
3.) If required by the Rules or necessary to prove facts alleged
therein, shall be accompanied by supporting affidavit and other
papers

Sec. 20 Voluntary Appearance

-even when there is no service of summons, or if there is improper
service of summons, if the defendant files an answer, then in effect,
he is submitting himself to the jurisdiction of the court and the court
acquires jurisdiction over his person by voluntary appearance

Q. Is it necessary that a motion be accompanied by supporting

affidavits and other papers?

-any form of appearance in court, by the defendant, by his agent

authorized to do so, or by attorney, is equivalent to service of
summons, EXCEPT where such appearance is precisely to object to
the jurisdiction of the court over the person of the defendant (this is
called SPECIAL APPEARANCE.

A. No, unless required by the Rules or necessary to prove facts

alleged therein.
Example of a Motion where supporting affidavits are required

Rule 15 Motions

-motion for new trial or motion to lift order of default on the

ground of FAME

Sec. 1 Motion defined- A motion is an application for relief other than by a

pleading.

- Motion for NT needs Affidavit of Merits. If there is none,

motion will be denied

Motion Ex Parte- made w/o the presence or notification to the other

party because the question generally presented is not debatable, like a
Motion for Extension of Time to File Pleadings

- When you are moving for the postponement of the trial

because your client is sick, the best supporting paper would
be a medical certificate for that matter

General Rule: A motion cannot pray for Judgment

Exception

-When you move to declare the adverse party in default, there is no

need to support your motion with affidavits because anyway the
court can look at the records, particularly the sheriffs return, to
check when the defendant was served with summons

1.) Motion for Judgment to the Demurrer to Evidence

2.) Motion for Judgment on the Pleadings
3.) Motion for Summary Judgment

Sec. 4 Hearing of Motion- see codal

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Requisite of a Motion

-The court may refuse to take action on a motion which does not
comply with the rule requiring a three day notice to the adverse
party, unless the court for good cause sets the hearing on shorter
notice. Usually these are urgent motions such as moving for
postponement because your witness got sick one day or hours
before the trial

1.) Must be in writing except those made in open court or in

the course of hearing or trial;
2.) It shall state the relief sought to be obtained and the
ground upon which it is based;
3.) It must be accompanied by supporting affidavits and
other papers, if required by these Rules or necessary to
prove facts alleged therein. HOWEVER, if the facts are
already stated on record, the court can check the
records
4.) There must be a notice of hearing attached to the
motion and the adverse party must receive the motion
at least 3 days before the date of hearing, UNLESS the
court for good cause sets the hearing on shorter notice

Sec. 5 Notice of Hearing

Notice of hearing shall be addressed to all parties concerned. Date of
Hearing must not be later than 10 days from the filing of the motion.
Q. What happens if a motion does not contain a notice of hearing?
A. A motion that does not contain a notice of hearing is but a mere
scrap of paper

(Three Day Notice Rule- the reason there is to prevent surprise upon
the adverse party and to enable the latter to study the motion and
files his opposition)

-A notice of hearing addressed to the Clerk of Court and not to the

parties is no notice at all (Prado vs Veridiano II, 204 SCRA 654)

5.) There must be notice of hearing addressed to all parties

concerned, and shall specify the time and date of the
hearing which must not be later than ten days after the
filing of the motion; and
6.) There must be proof of service of the motion on the
adverse party.

-It is now very clear that it must not be later than 10 days after the
filing of the motion. And see to it that the party receives it 3 days
before the hearing because of Section 4
-Service of a copy of a motion containing a notice of the time and the
place of hearing of that motion is a mandatory requirement, and the
failure of movants to comply with these requirements render their
motions fatally defective

-Any motion that does not comply with Section 4, 5, and 6 is

a mere scrap of paper. It does not interrupt the
reglementary period for the filing of the requisite pleading.
Exception to the 3 Day Notice Rule

Sec. 6 Proof of service necessary- No written motion set for hearing shall be
acted upon by the court without proof of service thereof.

1.) Ex Parte Motions

2.) Urgent Motions
3.) Motions agreed upon by the parties to be heard on
shorter notice or jointly submitted by the parties; and
4.) Motions for summary judgment which must be served at
least 10 days before its hearing

-a party may be authorized to litigate his action, claim or defense as

an indigent upon ex-parte motion together with the complaint and a
hearing. Therefore, there is no need to furnish copy of the motion to
the other party
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Sec. 7 Motion day

Rule 16 Motion to Dismiss

-Motion hearings are scheduled on Friday afternoons, or if Friday is a

non-working day, in the afternoon of the next working day EXCEPT
those motion which require urgent

-while filing of a motion to dismiss is not prohibited, the remedy

being an integral part of the Rules of Court, the current policy of the
SC is not to encourage the filing of such motion but to instead file an
answer to the complaint. Thus, effective August 26, 2004, within one
day from receipt of the complaint, summons shall contain a
reminder to the defendant to observe restraint in filing a motion to
dismiss and INSTEAD allege the grounds thereof as defences in the
answer. (A.M. No. 03-1-09 SC, July 13, 2004)

-No motion day in SC

Sec. 8 Omnibus Motion

Omnibus- all embracing or all encompassing
Omnibus Motion -is one attacking a pleading, order, judgment, or a
proceeding which shall include all objections then available and
objections not so include shall not be deemed waived

-A motion to dismiss hypothetically admits the truth of the factual

allegations of the complaint. Only deemed hypothetically admitted
are material allegations, not conclusions. Thus, an allegation that a
contract is an equitable mortgage is a conclusion and not a
material allegation. Hence, it is not deemed admitted by the motion
to dismiss.

Example:
Motion to Dismiss
Exception to the Omnibus Motion Rule (Sec. 1, Rule 9)
1.)
2.)
3.)
4.)

-When a motion to dismiss is filed, all grounds available at the time

the motion is filed must be invoked in the motion. This is required
under the omnibus motion rule. Grounds not so invoked are
deemed waived. The grounds not waived however, are lack of
jurisdiction over the subject matter, litis pendentia, res judicata, and
prescription.

Lack of jurisdiction over the subject matter;

Litis pendentia;
Res Judicata; and
Prescription

They are not deemed waived even if you do not raise them in
a motion to dismiss

-Where no motion to dismiss is filed, the grounds for a motion to

dismiss may be availed of as affirmative defenses in the answer. No
defense is waived because no motion to dismiss was filed.

Sec. 9 Motion for leave

-Under the PRESENT RULE, when you file a motion, the pleading to
be admitted must already be included in your motion

General Rule
A court may not motu proprio dismiss a case unless a
motion to that effect is filed by a party thereto

Sec. 10 Form- see codal

Exception
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1.) Those cases where the court may dismiss a case motu proprio
(lack of jurisdiction over the subject matter, litis pendentia, res
judicata, prescription)
2.) Failure to Prosecute (S.3, R17)
3.) Rule on Summary Procedure

4.) Plaintiff has no legal capacity to sue

-2 possible meanings
1.) when the plaintiff does not possess the necessary
qualifications to appear at the trial such as when the plaintiff
is not in the full exercise of his civil rights like when he is a
minor, or insane; AND

When do you file a motion to dismiss?

2.) When the plaintiff does not have the character or

representation which he claims like he claims to be a
guardian when in reality he is not

-Within the time for but before filing the answer. Within the
15 day period

-A motion to dismiss is available not only for the purpose of

dismissing the complaint but also for dismissing a counterclaim, a
cross-claim, a third party complaint because the law says before
filing the answer to the complaint or pleading asserting a claim.

5.) That there is another action pending between the same parties
for the same cause

Grounds
1.) Court has no jurisdiction over the person of the defending party
2.) The court has no jurisdiction over the subject matter of the claim
-Jurisdiction over the subject matter is determined by the allegations in
the complaint. They are not determined by the allegations of the
defendant in his motion to dismiss.
-jurisdiction over the subject matter, once acquired by the court upon the
filing of the complaint, the court retains the jurisdiction over that case
until that case is terminated. EXCEPTION when the new statute is intended
to be curative in character
-while jurisdiction as a rule may be raised at any stage of the proceedings,
a party may be estopped from raising such questions if he has actively
taken part in the very proceedings which he questions, belatedly objecting
to the courts jurisdiction in the event that the judgment or order
subsequently rendered is adverse to him (Alday vs FGU Insurance, 350
SCRA 113)

3.) Venue is improperly laid

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