Tuesday, February 21, 2006

Summons

Service of summons is done by the sheriff, prepared by the Clerk of Court addressed to the defendant stated in the complaint.
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Manner of Service:
1. in person/mail
2. by substituted service
3. by publication
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Substituted Service
If served at his home address, it may be served to any person of sufficient age and discretion and must be residing therein.
If served at his office address, it may be served to any person of sufficient age and discretion tasked or in charged of the office.
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So, if the summons were served on the brother of the defendant in his home address who is there only visiting him, the service is not valid.
If it is served on the security guard at the office address of the defendant, the service is also not valid but the defendant is still bound unless he has explained sufficiently why he did not receive it.
However, if the defendant appears in court despite the non-service of summons, then the court acquires the jurisdiction over the person of the defendant. His appearance in court is considered as voluntary appearance because the non-service or defective service is considered waived.
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Although the sheriff served the summons and the defendant did not get it but he learned of the case, he is expected to inform the court of the defective service otherwise the court will presume the regular performance of the sheriff of his functions and the court may act on the action and render the defendant in default. However, the presumption is disputable.
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Jurisdiction over the person of the defendant may be waived and the defendant should question this seasonably.
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If summons had not been served, this results to constitutional infirmity but as long as there is a possibility that the defendant would get it, if under the circumstances, it is reasonable to presume that he has received it, then the court will presume that the defendant got it. The remedy of the defendant is to question the service of summons.
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On the other hand, if the defendant was able to receive the summons but no complaint was attached to it, the defendant should bring such matter before the court. Prudence is expected from the defendant otherwise he is deemed to have waived his right to the action.
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After the payment of the docket fee, the Clerk of Court will issue the summons based on the given address in the complaint.
After the service of summons, the lawyer or the plaintiff will get the summons from the Clerk of Court and bring this to the sheriff for the payment of the sheriff’s fee (kilometrage fee) otherwise the summons will not be served.
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There will be as many summons as there are defendants but for defendants who live in the same area, one summons is enough as each of them is served with a copy of it.
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Personal and substituted service are not alternative but substituted service is only resulted to if personal service cannot be made. The SC said that the sheriff must exercise due diligence in the service of summons personally to the defendant. Resort to substituted service must be justified in court by the sheriff.
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The defendant must bring to the court’s attention the improper way of service of summons otherwise the court will presume the regularity of the service. So, in case of default, the defendant cannot capitalize on the irregularity of the service. Even if it was served irregularly but the defendant somehow heard of the case filed against him, then he should file a motion to dismiss on the ground that the court has no jurisdiction over his person. But if he just kept silent, he can no longer capitalize on it.
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In cases where the summons served was without an attached complaint, the defendant should bring such irregularity to the attention of the court or he should go to court and ask for the complaint and answer it. He should not be allowed to defeat the legal proceeding.
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The sheriff served the summons to the wrong address but the name of the person was the same. The defendant was not informed of the case against him. Is there a valid service of summons?
It is where the constitutional guarantee on due process must come in: all the proceedings are null and void. This is an example of defective service rendering the whole legal procedure null and void.
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When personal service cannot be done within reasonable time and there is a necessity to serve it, substituted service may be availed of. You must see whether substituted service has deprived the party to due process or if it violated the due process clause.
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The sheriff was about to serve the summons on the defendant and was informed that the defendant has gone to the market. The brother, who was there visiting him, met the sheriff and signed the summons. Was the service properly done?
The fact that the defendant was in the market was no reason for the sheriff to resort to substituted service. The sheriff must diligently serve the summons personally. The service was defective because it was done on a person not living there even if he is a brother. But it does not follow that the defendant can escape liability because it is presumed that his brother will give it to him. Unless it has not been explained why he did not receive it, he is bound by that service whether or not the defendant learned of the case filed against him.
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By Publication
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Valid only in actions in rem and quasi in rem. If the action is purely in personam, service by publication is not valid. It is allowed when a defendant, although a resident of the Philippines, his whereabouts is unknown, his place of business is unknown, address is unknown, or they moved out. It is also applicable if the defendant is a non-resident of the Philippines. Service by publication is always with prior leave of court.
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When is it applicable?
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Applicable in the following circumstances:
1) The action affects the personal status of the plaintiff.
2) Relates to or subject of which is property in the Philippines (real or personal) in which the defendant has claim, lien or interest, actual or contingent.
3) In which the relief demanded consists wholly or in part, in excluding the defendant from any interest therein.
4) Property of the defendant has been attached in the Philippines.
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Personal service may be done to non-residents but with prior leave of court by someone going to his country and the court may deputize such person.
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To obtain leave of court, one files a petition and the movant must state the reason why service by publication must be done. It must be certified. If the petitions has merit, the leave will be granted. The court order on leave must be published together with the summons by sending it thru registered mail to the last known address of the defendant.
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If the defendant is a resident of the Philippines but is temporarily out of the country, the plaintiff must file a petition to allow him to the service of summons by publication.
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Action in personam
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It is an action against a person on the basis of his personal liability.
The technical object of the suit is to establish a claim against some particular person, with a judgment which generally, in theory, binds his body, or to bar some individual claim or objection, so that only certain persons are entitled to be heard in defense. (Herrera)
Example:
The action is against the thing itself. The status affect the whole world.
An annulment of marriage is an action affecting the civil status. The res is the relation between the parties or their marriage. A court has jurisdiction over the res provided at least one of the parties is domiciled in, or is a national of, the forum. (Herrera)
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Not necessarily the subject matter is real property. If the judgment rendered would be binding against all those who will be found in such a property.
Example:
Cadastral proceedings. It is binding against the whole world.
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But if the judgment will only bind his dependents and privies but not third persons, i.e. ejectment, it is a personal action even if the subject is a real property.
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Action quasi in rem
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The proceedings which are not strictly and purely in rem but are brought against a defendant personally although the real object is to deal with a particular property or subject it to the discharge of claim asserted therein. Jurisdiction over the person of the defendant is not necessary. (Herrera)
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Example:
An action intended to exclude a non-resident defendant from any interest in property located in the Philippines. It is binding against the property of the defendant and against all those who has a claim on such property.
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However, an action for a writ of attachment, though it is action quasi in rem, becomes a personal action the moment the defendant appears because the judgment is against the defendant.
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If the defendant is an association without juridical personality, summons should be served to the managing officer or partners.
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If the defendant is a corporation without juridical personality, distinguish if local or foreign.
If local or a foreign corporation licensed to do business in the Philippines, serve it to the president of the company or the company secretary or treasurer or to the in-house counsel of the company. Service must be done in succession.
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If the summons were served on the private secretary, it will bind the president of the company because the presumption is that, his secretary gave the summons to him. It will bind the defendant for as long as he learned of the case filed against him.
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If the defendant is a foreign corporation not licensed to do business here, summons shall be served upon the government official in the office charged with the supervision of such kind of foreign corporation who will then inform the defendant if the case file against him or their resident agent here.
Example:
Offshore banks; superintendent of banks of Central Bank.
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If the defendant is a prisoner, summons shall be served upon the officer having supervision or management over such penal institution but such head is deputized to serve the summons.
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If the defendants is a minor or an incompetent person, summons shall be served to his father or mother or in their default, to their guardian, or guardian ad litem in whom the plaintiff must provide (plaintiff appeals for his appointment) in order for the case to proceed.
Even if the defendant is insane, summons must be served to him not only to his guardian or supervisor in the mental institution wherein he is confined.
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If the defendant is the Republic of the Philippines, the summons must be served upon the Solicitor General.
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If the defendant is a political subdivision, summons shall be served upon the executive head thereof. For other political subdivisions, upon public officer designated by the court.
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If the defendant informed the court that he will be leaving the country, the service is valid. So even if his summons was served defectively, he can’t question the jurisdiction after voluntary appearance, any question on jurisdiction of the court is precluded.

4 comments:

  1. I received a summon. What should I do?

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  3. Thanks for your legal classes subpoenas it is helping me to get my head around a huge problem. Paul UK and Manila Salamat Po

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