Rule 10 – 14

De Dios vs. Court of Appeals, 212 SCRA 519 , August 12, 19921. Remedial Law; Amendment; Summons; It is only when new causes of action are alleged in an

amended complaint filed before the defendant has appeared in Court that another summons must be served on the defendant with the amended complaint.-

The rule is that it is only when new causes of action are alleged in an amended complaint filed before the defendant has appeared in court that another summons must be served on the defendant with the amended complaint.

2. Remedial Law; Amendment; Summons; To determine whether a different cause of action is introduced by amendments to the complaint, the court must ascertain if the defendant shall be required to answer for a liability or legal obligation wholly different from that which was stated in the original complaint.-

In determining whether a different cause of action is introduced by amendments to the complaint, the court must ascertain if the defendant shall be required to answer for a liability or legal obligation wholly different from that which was stated in the original complaint. An amendment will not be considered as stating a new cause of action if the facts alleged in the amended complaint show substantially the same wrong with respect to the same transaction, or if what are alleged refer to the same matter but are more fully and differently stated, or where averments which were implied are made in express terms, and the subject of the controversy or the liability sought to be enforced remains the same.

3. Remedial Law; Amendment; Summons; In the case at bar, the amended complaint merely supplemented an incomplete allegation regarding the subject property.-

A reading of the amended complaint in the case at bar shows that it merely supplemented an incomplete allegation regarding the subject property. The purpose of the amendment was merely to include the additional information that the subject property “was and is still under litigation and the contract was entered into without the knowledge and approval of the litigants or of competent judicial authority.”

4. Remedial Law; Amendment; Summons; Trial Court was correct in holding that when private respondent sent by registered mail a copy of the amended complaint directly to the petitioner, he was acting in accordance with Sec. 2 of Rule 13 of the Rules of Court, allowing direct service on a party if not represented by counsel.-

The trial court was correct in holding that when the private respondent sent by registered mail a copy of the amended complaint directly to the petitioner, he was acting in accordance with Sec. 2 of Rule 13 of the Rules of Court, allowing direct service on a party if not represented by counsel. At the time the amended complaint was filed, the defendant was not yet represented by counsel, which entered its appearance only after the private respondent had filed his amended complaint.

Remington Industrial Sales Corporation vs. Court of Appeals, 382 SCRA 499 , May 29, 2002

1. Actions; Pleadings and Practice; Amendment of Complaints; A complaint can still be amended as a matter of right before an answer has been filed, even if there is a pending proceeding for its dismissal before the higher court—before the filing of an answer, the plaintiff has the absolute right to amend the complaint whether a new cause of action or change in theory is introduced.-

The basic issue in this case is whether or not the Court of Appeals, by granting the extraordinary writ of certiorari, correctly ordered the dismissal of the complaint for failure to state a cause of action, despite the fact that petitioner exercised its right to amend the defective complaint under Section 2, Rule 10 of the Rules of Court. Stated differently, the query posed before us is: can a complaint still be amended as a matter of right before an answer has been filed, even if there was a pending proceeding for its dismissal before the higher court? Section 2, Rule 10 of the Revised Rules of Court explicitly states that a pleading may be amended as a matter of right before a responsive pleading is served. This only means that prior to the filing of an answer, the plaintiff has the absolute right to amend the complaint whether a new cause of action or change in theory is introduced. The reason for this rule is implied in the subsequent Section 3 of Rule 10. Under this provision, substantial amendment of the complaint is not allowed without leave of court after an answer has been served, because any material change in the allegations contained in the complaint could prejudice the rights of the defendant who has already set up his defense in the answer.

2. Actions; Pleadings and Practice; Amendment of Complaints; It cannot be said that the defendant’s rights are violated by changes made in the complaint if he has yet to file an answer thereto.-

Conversely, it cannot be said that the defendant’s rights have been violated by changes made in the complaint if he has yet to file an answer thereto. In such an event, the defendant has not presented any defense that can be altered or affected by the amendment of the complaint in accordance with Section 2 of Rule 10. The defendant still retains the unqualified opportunity to address the allegations against him by properly setting up his defense in the answer. Considerable leeway is thus given to the plaintiff to amend his complaint once, as a matter of right, prior to the filing of an answer by the defendant.

3. Actions; Pleadings and Practice; Amendment of Complaints; The right granted to the plaintiff under procedural law to amend the complaint before an answer has been served is not precluded by the filing of a motion to dismiss.-

The right granted to the plaintiff under procedural law to amend the complaint before an answer has been served is not precluded by the filing of a motion to dismiss or any other proceeding contesting its sufficiency. Were we to conclude otherwise, the right to amend a pleading under Section 2, Rule 10 will be rendered nugatory and ineffectual, since all that a defendant has to do to foreclose this remedial right is to challenge the adequacy of the complaint before he files an answer.

4. Actions; Pleadings and Practice; Amendment of Complaints; The Court finds no practical advantage in ordering the dismissal of the complaint and for the plaintiff to re-file the same, when he can still clearly amend the complaint as a matter of right.-

In this case, the remedy espoused by the appellate court in its assailed judgment will precisely result in multiple suits, involving the same set of facts and to which the defendants would likely raise the same or, at least, related defenses. Plainly stated, we find no practical advantage in ordering the

dismissal of the complaint against respondent and for petitioner to re-file the same, when the latter can still clearly amend the complaint as a matter of right. The amendment of the complaint would not prejudice respon- dents or delay the action, as this would, in fact, simplify the case and expedite its disposition.

5. Actions; Pleadings and Practice; Amendment of Complaints; Where some but not all the defendants have answered, the plaintiff may still amend its complaint once, as a matter of right, in respect to claims asserted solely against the non-answering defendant, but not as to claims asserted against the other defendants.-

The fact that the other defendants below has filed their answers to the complaint does not bar petitioner’s right to amend the complaint as against respondent. Indeed, where some but not all the defendants have answered, the plaintiff may still amend its complaint once, as a matter of right, in respect to claims asserted solely against the non-answering defendant, but not as to claims asserted against the other defendants.

Valmonte vs. Court of Appeals, 252 SCRA 92 , January 22, 1996

1. In an action in personam, personal service of summons or, if this is not possible and he cannot be personally served, substituted service, as provided in Rule 14, 7-8 is essential for the acquisition by the court of jurisdiction over the person of a defendant who does not voluntarily submit himself to the authority of the court. If defendant cannot be served with summons because he is temporarily abroad, but otherwise he is a Philippine resident, service of summons may, by leave of court, be made by publication. Otherwise stated, a resident defendant in an action in personam, who cannot be personally served with summons, may be summoned either by means of substituted service in accordance with Rule 14, 8 or by publication as provided in 17 and 18 of the same Rule.

2. On the other hand, if the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res. If the defendant is a nonresident and he is not found in the country, summons may be served extraterritorially in accordance with Rule 14, 17.

3. In such cases, what gives the court jurisdiction in an action in rem or quasi in rem is that it has jurisdiction over the res, i.e. the personal status of the plaintiff who is domiciled in the Philippines or the property litigated or attached. Service of summons in the manner provided in 17 is not for the purpose of vesting it with jurisdiction but for complying with the requirements of fair play or due process, so that he will be informed of the pendency of the action against him and the possibility that property in the Philippines belonging to him or in which he has an interest may be subjected to a judgment in favor of the plaintiff and he can thereby take steps to protect his interest if he is so minded.

4. Applying the foregoing rules to the case at bar, private respondents action, which is for partition and accounting under Rule 69, is in the nature of an action quasi in rem. Such an action is essentially for the purpose of affecting the defendants interest in a specific property and not to render a judgment against him.

5. As petitioner Lourdes A. Valmonte is a nonresident who is not found in the Philippines, service of summons on her must be in accordance with Rule 14, 17. Such service, to be effective outside the Philippines, must be made either (1) by personal service; (2) 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 should be sent by registered mail to the last known address of the defendant; or (3) in any other manner which the court may deem sufficient.

6. Since in the case at bar, the service of summons upon petitioner Lourdes A. Valmonte was not done by means of any of the first two modes, the question is whether the service on her attorney, petitioner Alfredo D. Valmonte, can be justified under the third mode, namely, in any . . . manner the court may deem sufficient.

We hold it cannot. This mode of service, like the first two, must be made outside the Philippines, such as through the Philippine Embassy in the foreign country where the defendant resides.

7. It must be noted that the period to file an Answer in an action against a resident defendant differs from the period given in an action filed against a nonresident defendant who is not found in the Philippines. In the former, the period is fifteen (15) days from service of summons, while in the latter, it is at least sixty (60) days from notice.

8. In contrast, in the case at bar, petitioner Lourdes A. Valmonte did not appoint her husband as her attorney-in-fact. Although she wrote private respondent s attorney that all communications intended for her should be addressed to her husband who is also her lawyer at the latters address in Manila, no power of attorney to receive summons for her can be inferred therefrom. In fact the letter was written seven months before the filing of this case below, and it appears that it was written in connection with the negotiations between her and her sister, respondent Rosita Dimalanta, concerning the partition of the property in question. As is usual in negotiations of this kind, the exchange of correspondence was carried on by counsel for the parties. But the authority given to petitioners husband in these negotiations certainly cannot be construed as also including an authority to represent her in any litigation.

E.B. Villarosa & Partner Co., Ltd. vs. Benito, 312 SCRA 65 , August 06, 19991. Remedial Law; Civil Procedure; Summons; Jurisdiction; The designation of persons or officers who

are authorized to accept summons for a domestic corporation or partnership is now limited and more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil Procedure.-

The designation of persons or officers who are authorized to accept summons for a domestic corporation or partnership is now limited and more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil Procedure. The rule now states “general manager– instead of only “manager–; “corporate secretary– instead of “secretary–; and “treasurer– instead of “cashier.– The phrase “agent, or any of its directors– is conspicuously deleted in the new rule.

2. Remedial Law; Civil Procedure; Summons; Jurisdiction; Strict compliance with the rules has been enjoined; The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal requirements as to the manner in which summons should be served on a domestic corporation.-

It should be noted that even prior to the effectivity of the 1997 Rules of Civil Procedure, strict compliance with the rules has been enjoined. In the case of Delta Motor Sales Corporation vs. Mangosing, the Court held: “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. x x x. The purpose is to render it reasonably certain that the corporation will receive prompt and proper notice in an action against it or to insure that the summons be served on a representative so integrated with the corporation that such person will know what to do with the legal papers served on him. In other words, ‘to bring home to the corporation notice of the filing of the action.’ x x x. The liberal construction rule cannot be invoked and utilized as a substitute for the plain legal requirements as to the manner in which summons should be served on a domestic corporation. x x x.– (italics supplied).

3. Remedial Law; Civil Procedure; Summons; Jurisdiction; Service of summons upon persons other than those mentioned in Section 13 of Rule 14 (old rule) has been held as improper.-

Service of summons upon persons other than those mentioned in Section 13 of Rule 14 (old rule) has been held as improper. Even under the old rule, service upon a general manager of a firm’s branch office has been held as improper as summons should have been served at the firm’s principal office. In First Integrated Bonding Ins. Co., Inc. vs. Dizon, it was held that the service of summons on the general manager of the insurance firm’s Cebu branch was improper; default order could have been obviated had the summons been served at the firm’s principal office.

4. Remedial Law; Civil Procedure; Summons; Jurisdiction; Court rules that the service of summons upon the branch manager of petitioner at its branch office at Cagayan de Oro, instead of upon the general manager at its principal office at Davao City is improper; Trial court did not acquire jurisdiction over the person of the petitioner.-

Accordingly, we rule that the service of summons upon the branch manager of petitioner at its branch office at Cagayan de Oro, instead of upon the general manager at its principal office at Davao City is improper. Consequently, the trial court did not acquire jurisdiction over the person of the petitioner.

5. Remedial Law; Civil Procedure; Summons; Jurisdiction; The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.-

Before, the rule was that a party may challenge the jurisdiction of the court over his person by making a special appearance through a motion to dismiss and if in the same motion, the movant raised other grounds or invoked affirmative relief which necessarily involves the exercise of the jurisdiction of the court, the party is deemed to have submitted himself to the jurisdiction of the court. This doctrine has been abandoned in the case of La Naval Drug Corporation vs. Court of Appeals, et al., which became the basis of the adoption of a new provision in the former Section 23, which is now Section 20 of Rule 14 of the 1997 Rules. Section 20 now provides that “the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.– The emplacement of this rule clearly underscores the purpose to enforce strict enforcement of the rules on summons. Accordingly, the filing of a motion to dismiss, whether or not belatedly filed by the defendant, his authorized agent or attorney,

precisely objecting to the jurisdiction of the court over the person of the defendant can by no means be deemed a submission to the jurisdiction of the court. There being no proper service of summons, the trial court cannot take cognizance of a case for lack of jurisdiction over the person of the defendant. Any proceeding undertaken by the trial court will consequently be null and void.

Millenium Industrial Commercial Corporation vs. Tan, 326 SCRA 563 , February 28, 20001. Actions; Pleadings and Practice; Summons; Parties; Service of summons upon a defendant

corporation must be made on a representative so integrated with the corporation sued as to make it a priori presumable that he will realize his responsibilities and know what he should do with any legal papers received by him.-

Summons is the means by which the defendant in a case is notified of the existence of an action against him and, thereby, the court is conferred jurisdiction over the person of the defendant. If the defendant is a corporation, Rule 14, §13 requires that service of summons be made upon the corporation’s president, manager, secretary, cashier, agent, or any of its directors. The rationale of the rule is that service must be made on a representative so integrated with the corporation sued as to make it a priori presumable that he will realize his responsibilities and know what he should do with any legal papers received by him.

2. Actions; Pleadings and Practice; Summons; Words and Phrases; Doctrine of Substantial Compliance; Requisites.-

In Porac Trucking, Inc. v. Court of Appeals, this Court enumerated the requisites for the application of the doctrine of substantial compliance, to wit: (a) there must be actual receipt of the summons by the person served, i.e., transferring possession of the copy of the summons from the Sheriff to the person served; (b) the person served must sign a receipt or the sheriffs return; and (c) there must be actual receipt of the summons by the corporation through the person on whom the summons was actually served. The third requisite is the most important for it is through such receipt that the purpose of the rule on service of summons is attained.

3. Actions; Pleadings and Practice; Summons; It is not allowable to merely infer actual receipt of summons by the corporation through the person on whom the summons was served—for there to be substantial compliance, actual receipt of summons by the corporation through the person served must be shown.-

In this case, there is no dispute that the first and second requisites were fulfilled. With respect to the third, the appellate court held that petitioner’s filing of a motion to dismiss the foreclosure suit is proof that it received the copy of the summons and the complaint. There is, however, no direct proof of this or that Lynverd Cinches actually turned over the summons to any of the officers of the corporation. In contrast, in our cases applying the substantial compliance rule, there was direct evidence, such as the admission of the corporation’s officers, of receipt of summons by the corporation through the person upon whom it was actually served. The question is whether it is allowable to merely infer actual receipt of summons by the corporation through the person on whom summons was served. We hold that it cannot be allowed. For there to be substantial compliance, actual receipt of summons by the corporation through the person served must be shown. Where a corporation only learns of the service of summons and the filing of the complaint against it through some person or means other than the person actually served, the service of

summons becomes meaningless. This is particularly true in the present case where there is serious doubt if Lynverd Cinches, the person on whom service of summons was effected, is in fact an employee of the corporation. Except for the sheriff’s return, there is nothing to show that Lynverd Cinches was really a draftsman employed by the corporation.

4. Actions; Pleadings and Practice; Summons; Receipt by a defendant corporation of the summons and complaint cannot be inferred from the fact that it filed a Motion to Dismiss the case.-

Respondent casts doubt on petitioner’s claim that it came to know about the summons and the complaint against it only after it learned that there was a pending foreclosure of its mortgage. There is nothing improbable about this claim. Petitioner was in default in the payment of its loan. It had received demand letters from respondent. Thus, it had reason to believe that a foreclosure suit would be filed against it. The appellate court was, therefore, in error in giving weight to respondent’s claims. Receipt by petitioner of the summons and complaint cannot be inferred from the fact that it filed a Motion to Dismiss the case.

5. Actions; Pleadings and Practice; Summons; Jurisdiction; Estoppel; Voluntary appearance is a waiver of the defense of lack of jurisdiction over the person of the defendant, but the assertion of affirmative defenses shall not be construed as an estoppel or as a waiver of such defense.-

Our decision in La Naval Drug Corporation v. Court of Appeals settled this question. The rule prior to La Naval was that if a defendant, in a motion to dismiss, alleges grounds for dismissing the action other than lack of jurisdiction, he would be deemed to have submitted himself to the jurisdiction of the court. This rule no longer holds true. Noting that the doctrine of estoppel by jurisdiction must be unequivocal and intentional, we ruled in La Naval: Jurisdiction over the person must be seasonably raised, i.e., that it is pleaded in a motion to dismiss or by way of an affirmative defense. Voluntary appearance shall be deemed a waiver of this defense. The assertion, however, of affirmative defenses shall not be construed as an estoppel or as a waiver of such defense.

6. Actions; Pleadings and Practice; Summons; Jurisdiction; Estoppel; The rule that, in a motion to dismiss, the allegation of grounds other than lack of jurisdiction over the person of the defendant, including a prayer “for such other reliefs as” may be deemed “appropriate and proper” amounted to voluntary appearance must be deemed superseded by the ruling in La Naval Drug Corporation vs. Court of Appeals (236 SCRA 78 [1994]) that estoppel by jurisdiction must be unequivocal and intentional.-

We turn to the effect of petitioner’s prayer for “other reliefs” in its Motion to Dismiss. In De Midgely v. Fernandos, it was held that, in a motion to dismiss, the allegation of grounds other than lack of jurisdiction over the person of the defendant, including a prayer “for such other reliefs as” may be deemed “appropriate and proper” amounted to voluntary appearance. This, however, must be deemed superseded by the ruling in La Naval that estoppel by jurisdiction must be unequivocal and intentional. It would be absurd to hold that petitioner unequivocally and intentionally submitted itself to the juris- diction of the court by seeking other reliefs to which it might be entitled when the only relief that it can properly ask from the trial court is the dismissal of the complaint against it.

Ramos vs. Ramos, 399 SCRA 43 , March 11, 20031. Judgments; A decision that has acquired finality becomes immutable and unalterable; Exceptions.-

It is well settled that a decision that has acquired finality becomes immutable and unalterable. A final judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact or law; and whether it will be made by the court that rendered it or by the highest court in the land. The only exceptions to this rule are the correction of (1) clerical errors, (2) the socalled nunc pro tunc entries which cause no prejudice to any party, and (3) void judgments. To determine whether the CA Decision of September 28, 1995 is void, the failure to implead and to serve summons upon petitioners will now be addressed.

2. Courts; Actions; Jurisdiction; Summons; Words and Phrases; “Action in Personam”, “Action Quasi in Rem”, and “Action in Rem”, Distinguished; The rules on the service of summons differ depending on the nature of the action.-

To be able to rule on this point, the Court needs to determine whether the action is in personam, in rem or quasi in rem. The rules on the service of summons differ depending on the nature of the action. An action in personam is lodged against a person based on personal liability; an action in rem is directed against the thing itself instead of the person; while an action quasi in rem names a person as defendant, but its object is to subject that person’s interest in a property to a corresponding lien or obligation.

Teh vs. Court of Appeals, 401 SCRA 576 , April 24, 20031. Actions; Summons; Although the plaintiff should resort to other means to determine the correct

address of a defendant when it is informed by the sheriff that he failed to serve the summons on the defendant, the plaintiff is not entirely to blame for such failure where the defendant’s address was incorrectly indicated on the General Information Sheets of his co-defendant-corporations, of which he was president.-

The Court agrees with the appellate court’s ruling that there was no abuse of discretion on the part of the trial court when the latter denied the petitioner’s motion to dismiss the complaint and ordered the issuance of an alias summons to be served upon him. Although the respondent should have resorted to other means to determine the correct address of the petitioner when it was informed by the sheriff that he failed to serve the summons on the petitioner, the respondent is not entirely to blame for such failure because the petitioner’s address as indicated by Wood Based Panels, Inc., and Sinrimco, Inc. on their respective General Information Sheets, was incorrect.

2. Actions; Motions to Dismiss; Under Section 3, Rule 16 of the 1997 Rules of Civil Procedure, after hearing the motion to dismiss, a judge has discretion to either dismiss the action, deny the motion to dismiss or order the amendment of the pleading.-

Moreover, the trial court was merely exercising its discretion under Rule 16, Section 3 of the 1997 Rules of Civil Procedure when it denied the petitioner’s motion to dismiss. Under said rule, after hearing the motion, a judge may dismiss the action, deny the motion to dismiss or order the amendment of the pleading. The trial court denied the motion to dismiss based on its finding that the issues alleged by the respondent in its complaint could not be resolved fully in the absence of the petitioner. In its desire to resolve completely the issues brought before it, the trial court deemed it fitting to properly acquire jurisdiction over the person of the petitioner by ordering the issuance of

alias summons on the petitioner. Evidently, the trial court acted well within its discretion. The Court of Appeals did not, therefore, err in dismissing the petition for certiorari filed before it.

Santos, Jr. vs. PNOC Exploration Corporation, 566 SCRA 272 , September 23, 20081. Section 14, Rule 14 (on Summons) of the Rules of Court provides:

SEC. 14. Service upon defendant whose identity or whereabouts are unknown. In any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such times as the court may order. (emphasis supplied)

Since petitioner could not be personally served with summons despite diligent efforts to locate his whereabouts, respondent sought and was granted leave of court to effect service of summons upon him by publication in a newspaper of general circulation. Thus, petitioner was properly served with summons by publication.

2. Petitioner invokes the distinction between an action in rem and an action in personam and claims that substituted service may be availed of only in an action in rem. Petitioner is wrong. The in rem/in personam 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 applies [i]n any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry. Thus, it now applies to any action, whether in personam, in rem or quasi in rem.

3. Service of summons by publication is proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising manager of the newspaper which published the summons. The service of summons by publication is complemented by service of summons by registered mail to the defendants last known address. This complementary service is evidenced by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his last known address.

The rules, however, do not require that the affidavit of complementary service be executed by the clerk of court. While the trial court ordinarily does the mailing of copies of its orders and processes, the duty to make the complementary service by registered mail is imposed on the party who resorts to service by publication.

4. If the defendant fails to file his answer on time, he may be declared in default upon motion of the plaintiff with notice to the said defendant. In case he is declared in default, the court shall proceed to render judgment granting the plaintiff such relief as his pleading may warrant, unless the court in its discretion requires the plaintiff to submit evidence. The defaulting defendant may not take part in the trial but shall be entitled to notice of subsequent proceedings.

5. As is readily apparent, the September 11, 2003 order did not limit itself to permitting respondent to present its evidence ex parte but in effect issued an order of default. But the trial court could not validly do that as an order of default can be made only upon motion of the claiming party.[15] Since no motion to declare petitioner in default was filed, no default order should have been issued.

6. To pursue the matter to its logical conclusion, if a party declared in default is entitled to notice of subsequent proceedings, all the more should a party who has not been declared in default be entitled to such notice. But what happens if the residence or whereabouts of the defending party is not known or he cannot be located? In such a case, there is obviously no way notice can be sent to him and the notice requirement cannot apply to him. The law does not require that the impossible be done. Nemo tenetur ad impossibile. The law obliges no one to perform an impossibility. Laws and rules must be interpreted in a way that they are in accordance with logic, common sense, reason and practicality.

Mason vs. Court of Appeals, 413 SCRA 303 , October 13, 20031. Remedial Law; Summons; Jurisdiction; Question of whether the substantial compliance rule is still

applicable under Section 11, rule 14 of the 1997 Rule of Civil Procedure has been settled in Villarosa which applies squarely to the instant case.-

The question of whether the substantial compliance rule is still applicable under Section 11, Rule 14 of the 1997 Rules of Civil Procedure has been settled in Villarosa which applies squarely to the instant case. In the said case, petitioner E.B. Villarosa Partner Co. Ltd. (hereafter Villarosa) with principal office address at 102 Juan Luna St., Davao City and with branches at 2492 Bay View Drive, Tambo, Parañaque, Metro Manila and Kolambog, Lapasan, Cagayan de Oro City, entered into a sale with development agreement with private respondent Imperial Development Corporation. As Villarosa failed to comply with its contractual obligation, private respondent initiated a suit for breach of contract and damages at the Regional Trial Court of Makati. Summons, together with the complaint, was served upon Villarosa through its branch manager at Kolambog, Lapasan, Cagayan de Oro City. Villarosa filed a Special Appearance with Motion to Dismiss on the ground of improper service of summons and lack of jurisdiction. The trial court denied the motion and ruled that there was substantial compliance with the rule, thus, it acquired jurisdiction over Villarosa. The latter questioned the denial before us in its petition for certiorari. We decided in Villarosa’s favor and declared the trial court without jurisdiction to take cognizance of the case. We held that there was no valid service of summons on Villarosa as service was made through a person not included in the enumeration in Section 11, Rule 14 of the 1997 Rules of Civil Procedure, which revised the Section 13, Rule 14 of the 1964 Rules of Court. We discarded the trial court’s basis for denying the motion to dismiss, namely, private respondent’s substantial compliance with the rule on service of summons, and fully agreed with petitioner’s assertions that the enumeration under the new rule is restricted, limited and exclusive, following the rule in statutory construction that expressio unios est exclusio alterius. Had the Rules of Court Revision Committee intended to liberalize the rule on service of summons, we said, it could have easily done so by clear and concise language. Absent a manifest intent to liberalize the rule, we stressed strict compliance with Section 11, Rule 14 of the 1997 Rules of Civil Procedure.

2. Remedial Law; Summons; Jurisdiction; Doctrine of substantial compliance must be deemed overturned by Villarosa, which is the later case.-

Neither can herein petitioners invoke our ruling in Millenium to support their position for said case is not on all fours with the instant case. We must stress that Millenium was decided when the 1964 Rules of Court were still in force and effect, unlike the instant case which falls under the new rule. Hence, the cases cited by petitioners where we upheld the doctrine of substantial compliance must be deemed overturned by Villarosa, which is the later case.

3. Remedial Law; Summons; Jurisdiction; The service of summons is a vital and indispensable ingredient of due process.-

At this juncture, it is worth emphasizing that notice to enable the other party to be heard and to present evidence is not a mere technicality or a trivial matter in any administrative or judicial proceedings. The service of summons is a vital and indispensable ingredient of due process. We will deprive private respondent of its right to present its defense in this multi-million peso suit, if we disregard compliance with the rules on service of summons.

Jose vs. Boyon, 414 SCRA 216 , October 23, 20031. Remedial Law; Actions; Summons; Jurisdictions; Generally, trial courts acquire jurisdiction over the

person of the defendant by the service of summons.-

In general, trial courts acquire jurisdiction over the person of the defendant by the service of summons. Where the action is in personam and the defendant is in the Philippines, such service may be done by personal or substituted service, following the procedures laid out in Sections 6 and 7 of Rule 14 of the Revised Rules of Court.

2. Remedial Law; Actions; Summons; Jurisdictions; Substituted Service; Personal service of summons is preferred to substituted service; Only if the former cannot be made promptly can the process server resort to the latter; Circumstances which must be indicated in the proof of summons; Failure to comply faithfully, strictly and fully with all the foregoing requirements of substituted service renders the service of summons ineffective.-

As can be gleaned from the above-quoted Sections, personal service of summons is preferred to substituted service. Only if the former cannot be made promptly can the process server resort to the latter. Moreover, the proof of service of summons must (a) indicate the impossibility of service of summons within a reasonable time; (b) specify the efforts exerted to locate the defendant; and (c) state that the summons was served upon a person of sufficient age and discretion who is residing in the address, or who is in charge of the office or regular place of business, of the defendant. It is likewise required that the pertinent facts proving these circumstances be stated in the proof of service or in the officer’s return. The failure to comply faithfully, strictly and fully with all the foregoing requirements of substituted service renders the service of summons ineffective.

3. Remedial Law; Actions; Summons; Jurisdictions; Substituted Service; A general statement that such efforts were made will not suffice for purposes of complying with the rules of substituted service of summons.-

The Return of Summons shows that no effort was actually exerted and no positive step taken by either the process server or petitioners to locate and serve the summons personally on respondents. At best, the Return merely states the alleged whereabouts of respondents without indicating that such information was verified from a person who had knowledge thereof. Certainly, without specifying the details of the attendant circumstances or of the efforts exerted to serve the summons, a general statement that such efforts were made will not suffice for purposes of complying with the rules of substituted service of summons.

4. Remedial Law; Actions; Summons; Jurisdictions; Extraterritorial Service; Extraterritorial service of summons or summons by publication applies only when the action is in rem or quasi in rem.-

It must be noted that extraterritorial service of summons or summons by publication applies only when the action is in rem or quasi in rem. The first is an action against the thing itself instead of against the defendant’s person; in the latter, an individual is named as defendant, and the purpose is to subject that individual’s interest in a piece of property to the obligation or loan burdening it.

5. Remedial Law; Actions; Summons; Jurisdictions; Extraterritorial Service; An action for specific performance is an action in personam.-

In the instant case, what was filed before the trial court was an action for specific performance directed against respondents. While the suit incidentally involved a piece of land, the ownership or possession thereof was not put in issue, since they did not assert any interest or right over it. Moreover, this Court has consistently declared that an action for specific performance is an action in personam.

Dole Philippines, Inc. (Tropifresh Division) vs. Quilala, 557 SCRA 433 , July 09, 20081. Well-settled is the rule that service of summons on a domestic corporation is restricted, limited and

exclusive to the persons enumerated in Section 11, Rule 14 of the 1997 Rules of Civil Procedure, following the rule in statutory construction that expressio unios est exclusio alterius. Service must therefore be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.

2. Under Section 20 of the same Rule, a defendant’s voluntary appearance in the action is equivalent to service of summons. As held previously by this Court, the filing of motions seeking affirmative relief, such as, to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration, are considered voluntary submission to the jurisdiction of the court.

Manotoc vs. Court of Appeals, 499 SCRA 21 , August 16, 20061. Jurisdiction over the defendant is acquired either upon a valid service of summons or the

defendant’s voluntary appearance in court. When the defendant does not voluntarily submit to the court’s jurisdiction or when there is no valid service of summons, any judgment of the court which has no jurisdiction over the person of the defendant is null and void. In an action strictly in personam, personal service on the defendant is the preferred mode of service, that is, by handing a copy of the summons to the defendant in person. If defendant, for excusable reasons, cannot be served with the summons within a reasonable period, then substituted service can be resorted to. While substituted service of summons is permitted, it is extraordinary in character and in derogation of the usual method of service. Hence, it must faithfully and strictly comply with the prescribed requirements and circumstances authorized by the rules. Indeed, compliance with the rules regarding the service of summons is as much important as the issue of due process as of jurisdiction.

2. The party relying on substituted service or the sheriff must show that defendant cannot be served promptly or there is impossibility of prompt service. Section 8, Rule 14 provides that the plaintiff or

the sheriff is given a reasonable time to serve the summons to the defendant in person, but no specific time frame is mentioned. Reasonable time is defined as so much time as is necessary under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that should be done, having a regard for the rights and possibility of loss, if any[,] to the other party.

Under the Rules, the service of summons has no set period. However, when the court, clerk of court, or the plaintiff asks the sheriff to make the return of the summons and the latter submits the return of summons, then the validity of the summons lapses. The plaintiff may then ask for an alias summons if the service of summons has failed. What then is a reasonable time for the sheriff to effect a personal service in order to demonstrate impossibility of prompt service? To the plaintiff, reasonable time means no more than seven (7) days since an expeditious processing of a complaint is what a plaintiff wants. To the sheriff, reasonable time means 15 to 30 days because at the end of the month, it is a practice for the branch clerk of court to require the sheriff to submit a return of the summons assigned to the sheriff for service. The Sheriffs Return provides data to the Clerk of Court, which the clerk uses in the Monthly Report of Cases to be submitted to the Office of the Court Administrator within the first ten (10) days of the succeeding month. Thus, one month from the issuance of summons can be considered reasonable time with regard to personal service on the defendant.

3. Sheriffs are asked to discharge their duties on the service of summons with due care, utmost diligence, and reasonable promptness and speed so as not to prejudice the expeditious dispensation of justice. Thus, they are enjoined to try their best efforts to accomplish personal service on defendant. On the other hand, since the defendant is expected to try to avoid and evade service of summons, the sheriff must be resourceful, persevering, canny, and diligent in serving the process on the defendant. For substituted service of summons to be available, there must be several attempts by the sheriff to personally serve the summons within a reasonable period [of one month] which eventually resulted in failure to prove impossibility of prompt service. Several attempts means at least three (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.

4. The sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service. The efforts made to find the defendant and the reasons behind the failure must be clearly narrated in detail in the Return. The date and time of the attempts on personal service, the inquiries made to locate the defendant, the name/s of the occupants of the alleged residence or house of defendant and all other acts done, though futile, to serve the summons on defendant must be specified in the Return to justify substituted service. The form on Sheriffs Return of Summons on Substituted Service prescribed in the Handbook for Sheriffs published by the Philippine Judicial Academy requires a narration of the efforts made to find the defendant personally and the fact of failure. Supreme Court Administrative Circular No. 5 dated November 9, 1989 requires that impossibility of prompt service should be shown by stating the efforts made to find the defendant personally and the failure of such efforts, which should be made in the proof of service.

5. If the substituted service will be effected at defendants house or residence, it should be left with a person of suitable age and discretion then residing therein. A person of suitable age and discretion is one who has attained the age of full legal capacity (18 years old) and is considered to have enough discernment to understand the importance of a summons. Discretion is defined as the ability to

make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed. Thus, to be of sufficient 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 the relation of confidence to the defendant, ensuring that the latter would receive or at least be notified of the receipt of the summons. The sheriff must therefore determine if the person found in the alleged dwelling or residence of defendant is of legal age, what the recipients relationship with the defendant is, and whether said person comprehends the significance of the receipt of the summons and his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons. These matters must be clearly and specifically described in the Return of Summons.

6. If the substituted service will be done at defendants office or regular place of business, then it should be served on a competent person in charge of the place. Thus, the person on whom the substituted service will be made 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 in the summons, its importance, and the prejudicial effects arising from inaction on the summons. Again, these details must be contained in the Return.

7. A meticulous scrutiny of the aforementioned Return readily reveals the absence of material data on the serious efforts to serve the Summons on petitioner Manotoc in person. There is no clear valid reason cited in the Return why those efforts proved inadequate, to reach the conclusion that personal service has become impossible or unattainable outside the generally couched phrases of on many occasions several attempts were made to serve the summons x x x personally, at reasonable hours during the day, and to no avail for the reason that the said defendant is usually out of her place and/or residence or premises. Wanting in detailed information, the Return deviates from the rulingin Domagas v. Jensen and other related cases that the pertinent facts and circumstances on the efforts exerted to serve the summons personally must be narrated in the Return. It cannot be determined how many times, on what specific dates, and at what hours of the day the attempts were made. Given the fact that the substituted service of summons may be assailed, as in the present case, by a Motion to Dismiss, it is imperative that the pertinent facts and circumstances surrounding the service of summons be described with more particularity in the Return or Certificate of Service.

8. Apart from the allegation of petitioners address in the Complaint, it has not been shown that respondent Trajano or Sheriff Caelas, who served such summons, exerted extraordinary efforts to locate petitioner. Certainly, the second paragraph of the Complaint only states that respondents were informed, and so [they] allege about the address and whereabouts of petitioner. Before resorting to substituted service, a plaintiff must demonstrate an effort in good faith to locate the defendant through more direct means.[32] More so, in the case in hand, when the alleged petitioners residence or house is doubtful or has not been clearly ascertained, it would have been better for personal service to have been pursued persistently.

9. In the case Umandap v. Sabio, Jr.,[33] it may be true that the Court held that a Sheriffs Return, which states that despite efforts exerted to serve said process personally upon the defendant on several occasions the same proved futile, conforms to the requirements of valid substituted service.

However, in view of the numerous claims of irregularities in substituted service which have spawned the filing of a great number of unnecessary special civil actions of certiorari and appeals to higher courts, resulting in prolonged litigation and wasteful legal expenses, the Court rules in the case at bar that the narration of the efforts made to find the defendant and the fact of failure written in broad and imprecise words will not suffice. The facts and circumstances should be stated with more particularity and detail on the number of attempts made at personal service, dates and times of the attempts, inquiries to locate defendant, names of occupants of the alleged residence, and the reasons for failure should be included in the Return to satisfactorily show the efforts undertaken. That such efforts were made to personally serve summons on defendant, and those resulted in failure, would prove impossibility of prompt personal service.

Moreover, to allow sheriffs to describe the facts and circumstances in inexact terms would encourage routine performance of their precise duties relating to substituted service for it would be quite easy to shroud or conceal carelessness or laxity in such broad terms. Lastly, considering that monies and properties worth millions may be lost by a defendant because of an irregular or void substituted service, it is but only fair that the Sheriffs Return should clearly and convincingly show the impracticability or hopelessness of personal service.

10. Granting that such a general description be considered adequate, there is still a serious nonconformity from the requirement that the summons must be left with a person of suitable age and discretion residing in defendant’s house or residence. Thus, there are two (2) requirements under the Rules: (1) recipient must be a person of suitable age and discretion; and (2) recipient must reside in the house or residence of defendant. Both requirements were not met. In this case, the Sheriffs Return lacks information as to residence, age, and discretion of Mr. Macky de la Cruz, aside from the sheriffs general assertion that de la Cruz is the resident caretaker of petitioner as pointed out by a certain Ms. Lyn Jacinto, alleged receptionist and telephone operator of Alexandra Homes. It is doubtful if Mr. de la Cruz is residing with petitioner Manotoc in the condominium unit considering that a married woman of her stature in society would unlikely hire a male caretaker to reside in her dwelling. With the petitioner’s allegation that Macky de la Cruz is not her employee, servant, or representative, it is necessary to have additional information in the Return of Summons. Besides, Mr. Macky de la Cruz’s refusal to sign the Receipt for the summons is a strong indication that he did not have the necessary relation of confidence with petitioner. To protect petitioner’s right to due process by being accorded proper notice of a case against her, the substituted service of summons must be shown to clearly comply with the rules.

11. The court a quo heavily relied on the presumption of regularity in the performance of official duty. It reasons out that [t]he certificate of service by the proper officer is prima facie evidence of the facts set out herein, and to overcome the presumption arising from said certificate, the evidence must be clear and convincing.

The Court acknowledges that this ruling is still a valid doctrine. However, for the presumption to apply, the Sheriffs Return must show that serious efforts or attempts were exerted to personally serve the summons and that said efforts failed. These facts must be specifically narrated in the Return. To reiterate, it must clearly show that the substituted service must be made on a person of suitable age and discretion living in the dwelling or residence of defendant. Otherwise, the Return is flawed and the presumption cannot be availed of. As previously explained, the Return of Sheriff Caelas did not comply with the stringent requirements of Rule 14, Section 8 on substituted service.

In the case of Venturanza v. Court of Appeals,1 it was held that x x x the presumption of regularity in the performance of official functions by the sheriff is not applicable in this case where it is patent that the sheriffs return is defective (emphasis supplied). While the Sheriffs Return in the Venturanza case had no statement on the effort or attempt to personally serve the summons, the Return of Sheriff Caelas in the case at bar merely described the efforts or attempts in general terms lacking in details as required by the ruling in the case of Domagas v. Jensen and other cases. It is as if Caelas Return did not mention any effort to accomplish personal service. Thus, the substituted service is void.

12. On the issue whether petitioner Manotoc is a resident of Alexandra Homes, Unit E-2104, at No. 29 Meralco Avenue, Pasig City, our findings that the substituted service is void has rendered the matter moot and academic. Even assuming that Alexandra Homes Room 104 is her actual residence, such fact would not make an irregular and void substituted service valid and effective.

Pascual vs. Pascual, 607 SCRA 288 , December 04, 20091. In a case where the action is in personam and the defendant is in the Philippines, the service of

summons may be done by personal or substituted service as laid out in Sections 6 and 7 of Rule 14 of the Revised Rules of Court. The provisions state:

Section 6. Service in person on defendant. - Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.

Section 7. Substituted service. - If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendants office or regular place of business with some competent person in charge thereof.

A plain and simple reading of the above provisions indicates that personal service of summons should and always be the first option, and it is only when the said summons cannot be served within a reasonable time can the process server resort to substituted service.

2. The above Return of Summons does not show or indicate the actual exertion or any positive steps taken by the officer or process server in serving the summons personally to the defendant. As in Jose v. Boyon, this Court ruled that:

The Return of Summons shows no effort was actually exerted and no positive step taken by either the process server or petitioners to locate and serve the summons personally on respondents. At best, the Return merely states the alleged whereabouts of respondents without indicating that such information was verified from a person who had knowledge thereof. Certainly, without specifying the details of the attendant circumstances or of the efforts exerted to serve the summons, a general statement that such efforts were made will not suffice for purposes of complying with the rules of substituted service of summons.

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3. Petitioner further states that the presumption of regularity in the performance of official functions must be applied to the present case. He expounds on the fact that as between the process server's return of substituted service, which carries with it the presumption of regularity and the respondent's self-serving assertion that she only came to know of the case against her when she received a copy of the petitioner's motion to declare her in default, the process server's return is undoubtedly more deserving of credit. The said argument, however, is only meritorious, provided that there was a strict compliance with the procedure for serving a summons. In the absence of even the barest compliance with the procedure for a substituted service of summons outlined in the Rules of Court, the presumption of regularity in the performance of public functions does not apply.

4. Applying the above disquisitions, the jurisdiction over the person of the respondent was never vested with the RTC, because the manner of substituted service by the process server was apparently invalid and ineffective. As such, there was a violation of due process. Jurisdiction over the defendant is acquired either upon a valid service of summons or the defendant’s voluntary appearance in court. When the defendant does not voluntarily submit to the court’s jurisdiction or when there is no valid service of summons, any judgment of the court which has no jurisdiction over the person of the defendant is null and void.

5. Petitioner also raises the issue of the impropriety of the remedy resorted to by the respondent which is the filing of a Petition for Certiorari under Rule 65 of the Rules of Court, claiming that the said remedy is inappropriate because there are still other plain, speedy and adequate remedies available, such as an ordinary appeal, the Decision of the RTC having attained its finality. The question, however, is whether the said Decision has indeed attained finality. The importance of the doctrine of the finality of judgment has always been emphasized by this Court. In Pasiona, Jr. v. Court of Appeals, this Court has expounded on the said doctrine.

The said doctrine, however, is applicable only when the judgment or decision is valid. In the present case, as earlier pronounced, and as ruled by the CA, the judgment in question is void, the RTC not having acquired jurisdiction over the person of the respondent. It is a well-entrenched principle that a void judgment can never become final. As ruled by this Court in Metropolitan Bank & Trust Company v. Alejo In Leonor v. Court of Appeals and Arcelona v. Court of Appeals, we held thus:

A void judgment for want of jurisdiction is no judgment at all. It cannot be the source of any right nor the creator of any obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Hence, it can never become final and any writ of execution based on it is void: x x x it may be said to be a lawless thing which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head

Thus, from the above discussion, the Decision of the RTC, not having attained its finality due to its being void, the Petition for Certiorari under Rule 65, filed by the respondent with the CA, was proper.