SUMMONS

2.
3.
4.

CONCEPT
o

A writ or process issued and served upon the defendant in a civil action for the purpose of securing his
appearance therein.
The service of summons enables the court to acquire jurisdiction over the person of the defendant.
In the absence of service of summons, and unless the defendant waives such defect by his voluntary
appearance in court, any judgment rendered in regard to such defendant is null and void.

o
o

The general rule is that summons is served by the sheriff or the court officer. However, as an exception, the court for
justifiable reason allow any suitable person authorized by the court to serve summons (Sec. 3, Rule 14). An example of an
instance when a suitable person is authorized by the court to serve summons is when the court is overworked and
understaffed or it the court doesnt know the location.

sheriffs deputy
other proper court officer
any suitable person authorized by the court issuing the summons

1.

Personal
a.
handing
b.
tendering occurs when the person refuses (But what do you exactly mean by tendering; is
putting it under the door tendering?)

2.

Substituted This is allowed only when the defendant cannot be served summons by personal service; In
the sheriffs return, there must be a statement that says that personal service is not possible. It must state
the efforts exerted by the sheriff.
a.
Residence with some person of suitable age and discretion residing therein
b.
Office with some competent person in charge thereof

Residence as opposed to domicile is physical. It is possible to have more than one residence.
I.
Form/Directive (R 14, S. 2)
Directed to the defendant
Signed by the Clerk of Court under seal
A.
B.
C.
D.

File and serve

Attach copy of complaint and/or order for appointment of a guardian ad litem, if any
Specification of period within which to answer
Specification of consequence if D fails to answer, i.e., judgment by default and grant of relief prayed for
1.
2.
3.
4.
5.

CONTENTS (R14.2)
Name of the court
Name of the parties to the action
A direction that the defendant answer within the time fixed by Rules
Notice that unless defendant so answers, plaintiff will take judgment by default and may be
granted the relief applied for.
Copy of complaint attached

By other means

What do you mean by other means? Under the Electronic Commerce Act, summons may be
served by fax or even e-mail. However, one cannot serve summons by a pigeon or through
smoke signals. According to Prof. Bautista, registered mail is also one of the other means by
which summons may be served if the court deems it sufficient.

Extraterritorial service is proper only in 4 instances:

1.
2.
3.
4.

Who issues? Clerk of Court (R 14, S. 1) upon filing of complaint and payment of the requisite legal fees

Who serves?
1.

when the action affects the personal status of the plaintiff;

when the action relates to, or the subject of which is property within the Philippines, in which the
defendant has or claims a lien or interest, actual or contingent;
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
when the defendant non-residents property has been attached in the Philippines

For a newspaper to be a newspaper of general circulation, the following elements must concur:
1.
2.
3.

it must be a newspaper, i.e. it published local news and general information, not merely feature
articles;
published at regular intervals (not just occasionally);
published for the general public and not just a specific group of persons

Thus, the Pinoy Times is probably not a newspaper since it does not contain any news articles. It only has
featured articles. (Although as of 1 February 2001, it appears that the Pinoy Times has evolved into a newspaper by now
publishing predominantly news and matters of general interest.) The Supreme Court in one case said that the Daily Record
was a newspaper of general circulation.
In some contracts, like international contracts, the parties may agree as to whom summons should be served.
The return and the proof of service is not conclusive.
III. Where summons effective:

II. Issuance and Service

A.

Read the Laus case (219 SCRA 688). This is the law now. The Supreme Court
set a very strict standard. The standard is such because substituted service is an
extreme case.

4.

___________________,Clerk,
RTC of ____________

When a defendant is merely substituted for the deceased defendant, such as the substitution of the administrator
or the heirs of the deceased, service upon him of the ORDER making him party is sufficient without service of
summons.

Publication

To ___________________________, defendant

When an additional defendant is included in the action, summons should be served upon him.

One cannot leave summons with a receptionist since the person is not in charge of
the office.

3.

Form 2- Summons.

You are hereby summoned and required to file and serve your answer to the complaint, copy of which is hereby served
upon you, within fifteen (15) days after service hereof exclusive of the day of service. If you fail to do so, judgment by
default will be taken against you for the relief demanded in the complaint.

Rule 135 (1997)

sheriff

Sec. 3 - Process of superior courts enforced throughout RP

Sec. 4 - Process of inferior courts enforceable within the province where the municipality or city lies. May
be served outside province with the approval of the RTC Judge of said province & only in the ff cases:
i)

when order for DELIVERY OF PERSONAL PROPERTY lying outside the province is to
be complied with;

ii)

when an ATTACHMENT of REAL property lying outside the province is to be made;

D does not resident and is not found in RP AND

action :

affects the PERSONAL STATUS of the plaintiff OR

relates to or the subject matter of which is PROPERTY W/IN RP in which

the D has or claims a lien or interest, actual or contingent, OR

in which the RELIEF demand consists, wholly or in part, in EXCLUDING D

from any interest therein OR

property of D has already been attached w/in RP

iii) when the action is against 2 or more defendants residing in different provinces; and

** in cases falling under extraterritorial service [R 14(15)], service by

publication must be COUPLED with sending of summons and order of the court by
REGISTERED MAIL to the last known address of the D

iv) when the place where the case has been brought is that specified in a contract in writing
between the parties, or is the place of the execution of such contract as appears
therefrom.

*Registered mail note the numbering

machine has a lock to prevent tampering

BP 129, as amended (1980)

Sec. 38 (2) - Judgments and processes issued by the METC, MTC and MCTC , in cases falling under their
jurisdictions, may be served ANYWHERE in the Philippines without the necessity of certification by the
Judge of the RTC.

2.3.1. Resident temporarily outside of RP (but resort to substituted service first**)

Any other manner the court may deem sufficient

IV. Modes of Service of Summons

Q: Can summons be served by fax/e-mail?

A: SC has allowed it. R 14, S. 15: summons may be sent in any other manner the court
may deem sufficient.

Note: Important if service is jurisdictional.

Handing it to defendant
Personal
Tendering it if D refuses to receive it
Handing v. Tender note that in both of these modes of personal service , location is not important, so service could be
done anywhere, no need for it to be made at the residence of the D
WHERE
residence
Substituted
**when D cant be
served within
reasonable time

office or place
of business

WITH WHOM
suitable age & discretion &
residing therein

Laus v. CA 219 SCRA 688

substituted service allowed only if there is JUSTIFIABLE CAUSE

Sheriff must exercise REASONABLE EFFORT to give the summons personally

Sheriff must substantiate his reasonable efforts (must be thorough)

Summons
Pleadings & Other papers
Mode of Service

1.

Personal
*
Handing
*
tendering

1.

substituted
*
residence: with
resident
of
sufficient age &
discretion
*
office/regular
place of business:
some competent
person in charge
thereof

competent person in
charge thereof

Justifiable reasons for substituted service:

(a)
(b)
(c)

staff not available (understaffed)

distance
identification of person to be sued
e..g. Tatalon estate; squatters area/houses with no numbers

2.
*
3.

1.
2.

Publication
2.3.1. D whose identity or whereabouts unknown {R 14 (14)}
2.3.2. Extraterritorial
q
HOW DONE?
By leave of court
Either by:
a)
personal service OR
b)
publication in a newspaper of general circulation in such places and for such
time as the court may order, copy of summons and order of court sent by
registered mail to last known address.
q
Order granting such leave shall specify reasonable time within w/c def must
answer must not be less than 60 days

1.
*

Mode of Filing

1.

n/a

publication
any other means

1.
2.

Final Orders & Judgments

personal
delivery
to
party/counsel
leaving it in office
with clerk or person in
charge
leaving
it
in
residence of party or
counsel from 8 am to
6 pm
substituted
with clerk of court
after personal service
fails
mail

registered (date of
mailing is date of
filing)

ordinary

1.
2.

personal
registered mail
registered
ordinary

1.
2.

3.

personal
mail
*
registered
publication
if
summoned
publication
fails
appear in action

Personal
Mail

Specific Rules:
ENTITY WITHOUT JURIDICAL PERSONALITY - service effected upon all the defs by serving upon:
any one of them; or
person in charge of the office or place of business maintained in such name. (R14.8)

D
by
to

r
r

NOTE: Service shall not bind any person whose connection with the entity has, upon due notice, been severed
before the action was brought.
1.

ASSOCIATIONS
a.

DOMESTIC PRIVATE JURIDICAL PERSONS (R14.11)

*
*
*
*
*
*

President;
Managing partner;
General Manager;
Corporate Secretary;
Treasurer; or
In-house counsel

Note: This list is EXCLUSIVE! Thus, one cannot leave summons with the Vice President or Personnel Manager.
The case of Summit Trading answered whether or not summons may be left with the
secretary of the President.
b.

3.

FOREIGN PRIVATE JURIDICAL ENTITY (R14.12)

(1)
Resident Agent designated in accordance with law; or
(2)
If no resident agent:
Govt official designated by law; or
Any of its officers or agents within the Phil.

PUBLIC CORPORATIONS (R14.13)

a. If defendant is the Republic
On Solicitor General
b. If defendant is a province, city, municipality or like public corps
On Executive Head ;or
Other officer/s as the law or the court may direct

3.

3.

3.

3.

MINORS (R14.10)
Upon minor personally; AND
Legal guardian, if he has one, or if none, upon guardian ad litem (appointment to be applied for by plaintiff);
Mother or father optional
INSANE, INCOMPETENTS (R14.10)
Upon insane or incompetent personally; AND
Legal guardian, if he has one, or if none, upon guardian ad litem (appointment to be applied for by plaintiff);
PRISONERS (R14.9)
Served upon prisoner by the officer having the management of such jail or institution; Said officer
deemed deputized as a special sheriff for said purpose
Officer = Jail warden
UNKNOWN DEFENDANT (R14.14) by publication
o With leave of court, by publication in a newspaper of general circulation in such places and for such time
as the court may order

3.
RESIDENTS TEMPORARILY OUT OF THE PHIL. (R14.16)
By leave of court, service may be effected out of the Phil:
a)
by personal service; or
b)
by publication in a newspaper of general circulation in such places and for such time as the court may order,
Copy of summons and order of court sent by registered mail to last known address.
BUT REGALADO SAYS: USE SUBSTITUTED SERVICE MUNA before service by publication
3.

NON-RESIDENT - Extra-territorial service (See Above R14.15))

WAIVER OF SERVICE (R14.20)

Defendants voluntary appearance equivalent to service of summons.

Inclusion in a motion to dismiss (R16) of other grounds aside from lack of jurisdiction over the person of the
defendant shall NOT be deemed a voluntary appearance. (R14.20)

PROOF OF SERVICE; ALIAS SUMMONS

R14, S4-5
FORM/CONTENT
In writing
Set forth the MANNER, PLACE AND DATE OF SERVICE
Specify any paper which have been served with the process
Name of the person who received it
Sworn to when made by a person other than a sheriff or his deputy
PROOF OF SERVICE BY PUBLICATION (R14.19)
1) Affidavit of:
o the printer, his foreman or principal clerk, or
o the editor, business or advertising manager
2) Attach copy of the publication; AND
3) Affidavit showing the deposit of a copy of the summons and order of publication in the post office, postage pre-paid,
directed to the defendant by registered mail to his last known address.
RETURN OF SERVICE (R14.4)
WHO MAKES THE RETURN: Server (Sheriff, deputy sheriff, or person deputized)
WHEN: Within 5 DAYS from completion of service
HOW:
Serve copy of return, personally or by registered mail, to the plaintiffs counsel,
Return summons to the Clerk who issued it, accompanied by proof of service.
GEN RULE: Return of service of summons immediately shifts burden of evidence (that summons was served) from plaintiff
to defendant since theres a presumption of regularity.

Without return of service - burden is on plaintiff

XCP: Return was patently irregular
XCP to XCP: DOCTRINE OF SUBSTANTIAL COMPLIANCE (i.e., if defendant actually received summons and
complaint)
ALIAS SUMMONS (R14.5)
Issued by Clerk of Court, upon demand of plaintiff, when:
a)

summons returned without being served:

Server to make a return within 5 days stating reason for failure of service
Copy of return served also on plaintiffs counsel; OR

B) summons lost.
PROBLEMS ON SERVICE OF SUMMONS:
Q: A lawyer was a D in an action for collection. When sheriff went to his house to serve summons, the only person
he found was Ds daughter who was VISITING the latter. Can summons be served on the daughter?
A: NO! Rule requires that the person to whom summons may be served must be RESIDING in the Ds dwelling
house/residence, not merely a visitor.
Q: Defendant is a RP resident. He lives in Forbes park and has an office in Salcedo Village. He left for a five-month
vacation in Europe. An action for collection was filed against him. How can he be served with summons.
A: By extraterritorial service, Rule 14, S. 16..Residents temporarily out of the Phil.

Q: What to do if service of summons not valid?

A: Make a SPECIAL APPEARANCE for the LIMITED and EXCLUSIVE PURPOSE of questioning the validity of service of
summons, to quash it and move to dismiss on the ground of lack of jurisdiction over the person of D. If you add other
grounds (e.g. prescription /failure to state a c/a, etc.), you are deemed to have waived the ground because that would be
tantamount to an ADMISSION of the jurisdiction of the court . This is because of the OMNIBUS MOTION RULE ( R 9, S.
1. Defenses and objections not -pleaded in a MTRD or in the answer are deemed waived.)
Q: Is return of the sheriff of the service of summons conclusive on the court?
A: NO! it is not conclusive because the recital of the sheriff in the return are FINDINGS OF FACT (e.g. in the service to the
private domestic corporation, the sheriff served it on one of the persons mentioned in Rule). These are very serious factual
issues which even have a heavy legal element. These are reviewable by the court. They cannot take these out of judicial
review. But there is a presumption of regularity.
Q: Can summons be served by registered mail alone?
A: NO. Generally, in extra-territorial service, service may, by leave of court be effected out of RP by personal service as
under Sec. 6 OR by publication in a newspaper of general circulation in such places and for 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 (so in addition to
publication) to the last known address of the defendant, OR in any other manner as the court may deem sufficient (R 14, S.
15) Note that there must be publication first.
HOWEVER, in Cariaga Jr. v. Malaya (143 SCRA 441), where extra-territorial service was done by REGISTERED MAIL, the
trial judge gave validity to the service of summons, hence, Cariaga filed a petition for certiorari. SC said:
There is no question that the requirement of due process has been met as shown by the fact that
defendants ACTUALLY RECEIVED the summons and copies of the complaint and as evidenced by
the Registry Return Card x x x . Whatever defect there may have been in the service of summons was
aptly corrected by the court a quo in its assailed order x x x which gave said defendants 90 days from
receipt of order within which to file their respective pleadings. Defendants have no reason to complain
that they were unaware of the action filed against them or claim that they were denied due process.
Sir Bautistas interpretation: Extraterritorial service can be made by:
a)
personal service
b)
publication
c)
Any other manner the court may deem sufficient (includes bus and easy call)
d)
Registered mail
Incidentally, Bautista said SEC issued an order that service by bus is valid service.
Q: Suppose a motion to dismiss was filed on the ground of lack of jurisdiction over the person because the
summons was allegedly improperly served and because of improper venue. Is the first ground waived by being
conjoined with the second ground?
A: Yes but this puts the D in a quandary. Under the omnibus motion rule (R. 15, S. 8, i.e., motion attacking a pleading or a
proceeding shall include all objections then available for objections not so included are deemed waived), D had to include all
objections open to him but the Rule on the other hand says that if he raises a ground other than improper service or
summons or lack of jurisdiction over his person, he is deemed to have submitted himself to the jurisdiction of the court.
Q: Can you serve summons issued by a court?
A: Siempre hindi unless I am authorized.

Q: How about the policeman in the municipality where the court sits?
A: Same answer. Siyempre, he is likewise not authorized.
Note: In Bello v. Ubo (117 SCRA 91), the court said the enumeration of who could serve summons is EXCLUSIVE. Hence,
aside from the sheriff, his deputy or other proper court officer, all others have to be specially authorized or else service is
invalid. In the Bello case, summons was not validly served because the POLICE SERGEANT who was not a sheriff or a
court officer was not authorized by the court to deliver the summons. Similarly, in Olay v. Anna (90 SCRA 114) where the
POSTMASTER of Bato, Leyte was not qualified , service was deemed invalid.
Q: Can the sheriff be authorized to serve summons in Canada? In what cases can be serve summons in Canada?
Can we not serve summons to Mrs. Marcos?
A: No. Process of the courts effective only within the Philippines just as our judgment cannot be enforced abroad (R. 135,
Secs. 3 and 4 & BP 129)
Q: An English professor came to you for advice. Final judgement against her was made for a sum of money.
Actually, the case was against her husband. Evidently, her lawyer filed a petition in the SC to annul the judgment.
According to her, the sheriffs return read like this:
Summons was served on her maid, 15 years old, Grade 5 education, in her cottage in Area 2.
She then said that the maid gave her the summons five (5) months later.Was there a valid service of
summons?
A: NO! The maid is NOT of sufficient age and discretion. She could not have appreciated the importance of the document
given her. Note however that this defect is curable by proof that the summons was ACTUALLY DELIVERED to the
defendant as when D files a motion to dismiss. (Bautista appealed to the CA on the ground that the service was invalid
since the husband is an immigrant (not residing in RP) and service should be by extraterritorial service (by publication).
Q: In one case, a lawyer was sued. He was declared in default. He sought to set aside the order of default, even
called a psychiatrist to testify. Summons was served on his 21 yr ols son who, according to him, was mentally
retarded. He service was made in the 1st floor of his house which was a sari-sari store. Was service valid?
A: SC said YES & scolded the lawyer. SC said that son was of sufficient age and discretion because although mentally
retarded, he was tending the store. If he was smart enough to tend the store, he is smart enough to understand the
significance of summons.
Q: What about substituted service on a receptionist?
A: NO. Rule 14, S 7 says it must be with some competent person in charge of the office or regular place of business.
Q: If the complaint is amended, is there a need for issuance of summons?
Answer: It depends.
NO if the D 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 v. Custodio, 3/25, 1961);
Yes if 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 D on the amended complaint as the original complaint was
deemed withdrawn upon such amendment (Atkins, Knoll and Co. v Domingo 44 Phil 680).