Civil Procedure Rule 13-15 Notes

7/25/2019 Civil Procedure Rule 13-15 Notes

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Civil Procedure- Midterm Notes

Rule 13- Filing and Service of Pleadings

Sec.1Coverage- see codals

Sec.2FilingandService,defined

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

clerk of court

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

-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:theparties,generally,havenoformaleducationorknowledgeoftherulesof

procedure,specifically,themechanicsofanappealoravailmentoflegalremedies;

thus,theymayalsobeunawareoftherightsanddutiesofalitigantrelativetothe

receiptofadecision.

-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)

-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 isnotice to parties should be looked into and adopted, according to

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)

-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)

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

another story. Every lawyer has to be furnished a copy

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.

Sec.3MannerofFiling-seecodals

SeealsoRule36Sec1

2 Modes of Filing

1.) Personalby presenting the original copy of the pleading,

notice, appearance, motion, order or judgment,

personally to the clerk of court; OR

2.) By registered mail


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Registered Mail

-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

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

IMPORTANCE of Registered Mail

-the date of filing is the date of mailing. The date in the

envelope is officially the date if filing

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)

Sec.12ProofofFiling-seecodal

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?

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

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?

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

server

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;

b.) with postage fully prepaid and

c.) with instructions to the postmaster to return the mail to

the sender after 10 days if undelivered.

ItmustbestressedthattheaffidavitisVERYimportant!!

Sec.4Papersrequiredtobefiledandservedsee codal (focus on the wordSUBSEQUENT)

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.5ModesofService-seecodal

How to serve pleading?

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.6PersonalService-seecodal.Focus:office,residence,notthesamewith

servingofsummons

-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.

NAPOCORs notice of appeal was served and filed by registered mail-

due to lack of manpower to effect personal service. This explanation

is acceptable for it satisfactorily shows why personal service was notpracticable. (Marinduque Mining and Industrial Corp Case, GR

161219)

-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)

-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, theground 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)

When is Personal Service complete?

-Completed by ACTUAL delivery (handling a copy to the

defendant; or tendering him a copy if he refuses)

Sec.7ServicebyMail

-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.

-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?

-Service by ORDINARY MAILis complete upon the expiration

of ten days after mailing, unless the court otherwise provides

-Service by REGISTERED MAILis complete upon the actual

receipt by the addresseeOR, after 5 days from the date he

received the first notice of the postmaster

-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 theregistered mail;

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. (SantosvsCA,293

SCRA147)


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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 notjust 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.

(JohnsonandJohnsonPhils.vsCA,201SCRA768)

Sec.8SubstitutedService

-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

Sec.13Proof of Service

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

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REGISTERED MAIL- proof shall consist of:

a.) Affidavit of the mailer AND

b.) Registry Receipt issued by the mailing office

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

Theremustbeanaffidavitofthepersonwhomailedit.Thesurrenderofaregistryreceiptaloneisnotsufficientbecauseif

yousendtheregistryreceipt,itisnotreflectedtowhomthat

letterisaddressed

Sec.9Serviceofjudgments,finalordersorresolutions

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

NOTE: NO substituted service

Sec.11Prioritiesinmodesofserviceoffiling

-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 shallbe done personally EXCEPT with respect to papers emanating from

the court.

Solar Team Entertainment vs Ricafort

293 SCRA 661

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 awritten explanation as to why the service or filing was not done


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personally.

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 whypersonal service was not done in the first place.

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.

Sec.14NoticeofLisPendens

-is a notice of pending action or litigation between the parties

involving title to or right of possession over real property

REQUISITES:

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

-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

CANCELATION of Notice of Lis Pendens

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

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.

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 tocancel 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.

Rule 14-Summons

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

brought against him

-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


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Purpose of Summons

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

is acquired either by his voluntary appearance or service of summons

upon him (MinuchervsCA,GR#142963)

-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

-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 jurisdictionover the person of the defendant (HabanvsVamenta)

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

-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

(OngPengvsCustodio,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

amended complaint as the original complaint was deemed

withdrawn upon such amendment (AtkinsvsDomingo,GR#L-19565)

-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 overthe defendant but mainly to satisfy the constitutional requirements

of DUE PROCESS (GomezvsCA,420SCRA98)

Sec.2Contents-seecodal

Service of Summons without copy of the complaint

-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 courtsjurisdiction over her person. She should have appeared to

challenge the jurisdiction of the court (PagalaranvsBal-

latan,13Phil135)

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 isalready 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. (FetalinovsSanz,44

Phil691)

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?


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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

a.) If the defendant has NOTfiled 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 (AtkinsCase)

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. (OngPengCase)

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

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?

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

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

filing of the amended complaint.

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

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

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.

Sec.3ByWhomServed

Who are authorized by law to serve summons?

1.) Sheriff;

2.) Deputy Sheriff;

3.) Other proper court officer (court employees); or

4.) 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.4Return-Whentheservicehasbeencompleted,theservershall,within5

daystherefrom,serveacopyofthereturn,personallyorbyregisteredmail,

totheplaintiffscounselandshallreturnthesummonstotheclerkwhoissued

it,accompaniedbyproofofservice.

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

period to file an answer will start to run.


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-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

Sec.5IssuanceofAliasSummons

-the serving officer shall also serve a copy of the return on the

plaintiffs counselstating 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

-so that the plaintiffs lawyer will haveto 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 newaddress

-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

3 Modes of Service of Summons

1.) Service in person on defendant

2.) Substituted Service

3.) Service by Publication

Sec.6Serviceinpersonofdefendant

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.

The summons must be served in person. This is literal, the summons must be

served upon the defendant himself not to anybody else.

-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.7SubstitutedService

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

reasonable time

-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

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 onyour wife or child, who is around, or the housemaid or houseboy,

PROVIDED they are of suitable age and discretion

Substituted Service of Summons- Requisites

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 discretionresiding in the same place as defendant OR some


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COMPETENT person in charge of his office or regular

place of business

-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 sheriffmust cite why such efforts were unsuccessful. It is only then that

impossibility of service can be confirmed or accepted.

-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.

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

-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 thesummons 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

A Competent person in charge of the 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

-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.

(GuanzonvsArradaza,510SCRA309)

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 affectedby the defendants failure to actually receivethe summons from the person with whom the summons had been

left.

-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.

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


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the trial court that summons has been properly served upon

petitioner and that it has acquired jurisdiction over her. (Robinsonvs

Miralles,510SCRA678)

-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 substitutedservice without attempting service in person several times.

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).

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.

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

Sec.14Serviceupondefendantwhoseidentityorwhereaboutsare

unknown

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.

-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-Gonzalesvs

CA,GR#150908)

-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.

-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.

Q. Can you sue in the Phils a defendant who is not residing in the

Philippines and who is not around physically?


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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.

Sec.15ExtraterritorialService

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

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)

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.

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 butalso on the damages. That was the explanation in the case of

Sahagun.

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 ule 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.

Sec.8Serviceuponentitywithoutjuridicalpersonality

Q. Since you can sue someone without juridical personality, how do

you serve summons upon him?

A. Under Sec. 8, by serving summons upon anyoneof 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

Sec.9Serviceuponprisoners

-Under Sec. 9, summons shall be served through the person in

charge of the jail like the jail warden. The jail warden is automatically


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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

Sec.10Serviceuponminorsandincompetents-seecodal

-service upon the minor AND his legal guardian

-in any event, if the minor or incompetent has no legal guardian, thePLAINTIFF must obtain the appointment of a guardian ad litem for

him

Sec.11Serviceupondomesticprivatejuridicalentity-seecodal

-president, managing partner, general manager, corporate secretary,

treasurer, or in-house counsel (list is exclusive)

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

of the corp. is no longer authorized

-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

Sec.12Serviceuponforeignprivatejuridicalentity

-doing business in the Phils

-service may be made on its:

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

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

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 lawfor

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 anyother defendant

-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 (BaltazarvsCA,168SCRA354)

-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

Doing Business

-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.13Serviceuponpubliccorporations

-RP- serve to Solicitor General

-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

Sec.18ProofofService

-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?

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

his deputy.

Sec.19ProofofServicebypublication

Sec.20VoluntaryAppearance

-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

-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, EXCEPTwhere such appearance is precisely to object tothe jurisdiction of the court over the person of the defendant (this is

called SPECIAL APPEARANCE.

Rule 15 Motions

Sec.1Motiondefined-Amotionisanapplicationforreliefotherthanbya

pleading.

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

General Rule: A motion cannot pray for Judgment

Exception

1.) Motion for Judgment to the Demurrer to Evidence

2.) Motion for Judgment on the Pleadings

3.) Motion for Summary Judgment

Sec.2Motionsmustbeinwriting-Allmotionsshallbeinwritingexceptthose

madeinopencourtorinthecourseofahearingortrial.

Sec.3Contents

Content of a Motion

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

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

affidavits and other papers?

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

Example of a Motion where supporting affidavits are required

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

ground of FAME

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

motion will be denied

- 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

-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

Sec.4HearingofMotion-seecodal


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Requisite of a Motion

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 andother 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

(Three Day Notice Rule- thereasonthereistopreventsurpriseupon

theadversepartyandtoenablethelattertostudythemotionandfileshisopposition)

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.

-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

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

-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

Sec.5NoticeofHearing

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

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

parties is no notice at all (PradovsVeridianoII,204SCRA654)

-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

Sec.6Proofofservicenecessary- No written motion set for hearing shall be

acted upon by the court without proof of service thereof.

-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.7Motionday

-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

-No motion day in SC

Sec.8OmnibusMotion

Omnibus- allembracingorallencompassing

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

Example:

Motion to Dismiss

Exception to the Omnibus Motion Rule Sec. 1, Rule 9)

1.) Lack of jurisdiction over the subject matter;

2.) Litis pendentia;

3.) Res Judicata; and

4.) Prescription

Theyarenotdeemedwaivedevenifyoudonotraisethemin

amotiontodismiss

Sec.9Motionforleave

-Under the PRESENT RULE, when you file a motion, the pleading to

be admitted must already be included in your motion

Sec.10Form-seecodal

Rule 16 Motion to Dismiss

-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)

-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.

-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.

-Where no motion to dismiss is filed, the grounds for a motion todismiss may be availed of as affirmative defenses in the answer. No

defense is waived because no motion to dismiss was filed.

General Rule

A court may not motu proprio dismiss a case unless a

motion to that effect is filed by a party thereto

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

When do you file a motion to dismiss?

-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.

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

SCRA113)

3.) Venue is improperly laid

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

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

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

for the same cause

Documents

Civil Procedure Rule 13-15 Notes