Академический Документы
Профессиональный Документы
Культура Документы
ANNOTATION
THE FUNDAMENTALS OF SERVICE
IN CIVIL ACTIONS
By
SEVERIANO S. TABIOS
1. Introduction, p. 157.
2. Modes of Service, p. 158.
A. Personal Service, p. 158.
B. Service By Mail, p. 159.
C. Substituted Service, p. 161.
D. Service By Publication, p. 162.
3. Service of Summons in Special Cases, p. 165.
A. Service Upon Associations, p. 165.
B. Service Upon Minors, p. 165.
C. Service Upon Insane or Incompetent or Upon
Prisoners, p. 166.
D. Service Upon Corporations, p. 166.
4. Proof of Service, p. 168.
A. Personal Service, p. 168.
B. Service By Mail, p. 169.
C. Service By Publication, p. 170.
157
157
1. Introduction
Service is the mechanism that brings litigants to court. In
this regard, the complaint merely triggers off the
mechanism1 through which summons are issued to the
defendant, for it is elementary that a court of justice can
not acquire jurisdiction over the person of the
defendant
2
without the latter being served with summons. Thus, until
notice is given to the defendant of the action or proceedings
against him and he is given thereby the opportunity to
appear and be heard, the court has no jurisdiction to
proceed to judgment against him even though the3 court
may have jurisdiction over the subject matter. It is
essential, therefore, to the exercise by the court of its
jurisdiction that process issue serving notice to him whose
rights and interests may be affected except when the
defendant voluntarily appears
or otherwise waives service
4
of said process or summons.
Service is a very important aspect of due process giving
defendant the opportunity to be heard and defend before a
competent tribunal vested with
jurisdiction over the subject
5
matter of the cause of action. Thus, when a party is served
with summons, even if a copy of the complaint is not
attached thereto, the party should appear and plead to the
jurisdiction of the court, otherwise his nonappearance6
would justify the entry of an order of default against him.
Appropriately, where a party has not been served through
its lawyer with a notice of
_______________
1
Under Rule 14, Sec. 1 of the Revised Rules of Court, upon the filing of
the complaint, the clerk of court shall forthwith issue the corresponding
summons to the defendant.
2
Credito Agricola, etc., et. al., 69 Phil. 130 Pacific Commercial Co., vs. Tan
Cuico, 3 Phil. 556 Reyes vs. Paz, 60 Phil. 440.
5
158
158
2. Modes of Service
A. Personal Service
According to the Revised Rules of Court, personal service of
papers consists of delivering personally a copy thereof to
the party or his attorney or leaving it in his office
with his
8
clerk or with a person having charge thereof. However, if
no person is found in the partys or attorneys office, or if
such office is not known, then personal service can be
affected by leaving the copy, between the hours of eight in
the morning and six in the evening, at the partys or
attorneys residence, if known,9 with a person with sufficient
discretion to receive the same.
According to the Supreme Court, the provisions 10on the
modes of service must be complied with strictly. It is
evident therefore that verbal notice in open court of the
11
denial of a motion is not a sufficient service of such notice
but leaving a copy of the paper to be served in the office of
the attorney with his clerk or12 with a person having charge
thereof is deemed sufficient. Moreover, if the copy of the
papers required to be served is left not at the partys or his
attorneys office but at his or his attorneys residence with a
person of sufficient discretion, the presumption is that the
recipient being a normal person possesses
sufficient
13
discretion for purposes of personal service. In this regard,
personal service is complete
_______________
7
Shell Company of the Philippines vs. Enage, et. al., L3011112 Feb.
Ibid.
10
Garcia vs. Manalang, L7460, Nov. 29, 1956 Ferreria vs. Gonzales,
12
13
Vda. de Bacalla vs. Remolete, et. al., 46 O.G. No. 7, Feb. 12, 1965.
159
159
14
B. Service By Mail
Under the Revised Rules of Court, if service of papers
required by the rules to be served is not made personally,
service by registered mail shall be required, if registry
service exists in the locality otherwise, service may be
made by depositing the copy in the post office, in a sealed
envelope, plainly addressed to the party or his attorney at
his office, if known, otherwise at his residence, if known,
with postage fully prepaid, and with instructions to the
postmaster to return15 the mail to the sender after ten (10)
days if undelivered. In this regard, service by ordinary
mail is complete upon the expiration of five (5) days after
mailing unless the court otherwise provides while service
by registered mail is complete upon actual receipt by the
addressee, unless the addressee fails to claim his mail from
the post office within five (5) days from the date of the first
notice of the postmaster, in which case,
service shall take
16
effect at the expiration of such time.
According to the Supreme Court, a notice served
by mail
17
is presumed to have arrived at its destination. Thus, in a
case where a notice of an order was sent by registered mail
to the address of the counsel in Manila, it was presumed
that the notice of the arrival of the letter at the Manila
Post Office was delivered to the counsels office, there being
no intimation that said address was erroneous nor was
there anything in the court record to show that the postal
18
authorities did not perform their duties properly.
However, if the receipt of a court order by the counsel of a
party in a case is disputed, the court cannot justly attribute
actual knowledge of such order through the registered mail
received by said counsel, in the absence of a
_______________
14
15
16
17
18
160
Sapida, et. al. vs. Court of Appeals, et. al., L27673, Nov. 24, 1972, 48
SCRA 19, 2930 Cayetano vs. Ceguerra, L18831, January 30, 1965, 13
SCRA 73.
20
21
22
23
Ortaliz vs. Court of Appeals, et. al., L36088, May 16, 1973, 51 SCRA
24
3.
161
161
26
27
Ibid.
28
29
A comparison of the provisions of Rule 13, Sec. 4 and Rule 14, Sec. 8
of the Revised Rules of Court shows a striking similarity between the two.
162
162
Sequito, et. al. vs. Leonardo, L11588, July 30, 1959, 56 O.G. No. 43,
p. 6631.
31
J. M. Tuason & Co., Inc. vs. Fernandez, L19556, Oct. 30, 1964, 12
33
34
163
36
37
38
39
Bachrach Garage and Taxi Co. vs. Hotchkiss and Co., 34 Phil. 506
41
Ibid.
164
164
Philippines but who at the time of the case left the country
be served with summons at his former address or should
summons by publication be made? In this regard, the
Supreme
Court in the case of Brown, et. al. vs. Brown, et.
42
al., wherein the wife of defendant who had left for abroad
sought to be appointed administratrix of their conjugal
properties in a petition submitted to the Court of First
Instance of Manila which issued summons not to defendant
husband who had left the country but to the manager of his
business in the country, declared that it is an elementary
rule or principle in the procedure that before the rights of
an absentee or nonresident over properties existing in the
Philippines may come under the jurisdiction of Philippine
courts and become subject to their orders, summons must
be served upon said absentee or nonresident in accordance
with Sec. 17, Rule 7 (now Sec. 17, Rule 14) of the Rules of
Court. According to the Supreme Court, the court below
would seem to believe that the service of summons upon
the person to whom the properties of the nonresident was
entrusted is sufficient to confer jurisdiction to the court but
since no rule allows service of summons upon an agent,
service must therefore be made on the defendant himself
but substituted service or by registered mail, or by
43
Brown, et. al. vs. Brown, et. al., L17953, October 31, 1961, 3 SCRA
451, 456457 citing the cases of Banco Espaol Filipino vs. Palanca, 37
Phil. 921 Idonah Slade Perkins vs. Dizon, et. al., 69 Phil. 186 Ng Si Choc
vs. Vera, 64 Phil. 1066.
165
165
Bahena vs. Alacreto. et. al., CAG.R. No. 24483R, May 17, 1966, 63
46
47
48
166
50
51
52
53
54
167
56
57
58
General Corporation of the Phil., et. al. vs. Union Insurance Society
Poizat vs. Negros Philippine Lumber Co., et. al., 28 Phil. 597.
60
168
4. Proof of Service
A. Personal Service
Proof of personal service shall consist of a written
admission of the party served, or the affidavit of the party
serving, containing a
full statement of the date, place and
61
manner of service. If the process being served is a
62
63
64
65
169
B. Service By Mail
If the service of papers is by ordinary mail, proof thereof
shall consist of an affidavit of the person mailing66of facts
showing compliance with section 5 of this rule, which
requires that copy of the papers shall be deposited in the
post office in a sealed envelope, plainly addressed to the
67
68
69
Ibid.
70
71
170
Ibid.
73
Aramburo, et. al. vs. Court of Appeals, et. al., L50711, Nov. 17, 1980.
74
75
5745.
171
Copyright2016CentralBookSupply,Inc.Allrightsreserved.