Professional Documents
Culture Documents
Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem
(1) In an action in personam, the purpose of summons is not only to notify the defendant of
the action against him but also to acquire jurisdiction over his person (Umandap vs. Sabio, Jr.,
339 SCRA 243). The filing of the complaint does not enable the courts to acquire jurisdiction
over the person of the defendant. 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 plaintiff, not
over the person of the defendant. Acquisition of jurisdiction over the latter is accomplished by a
valid service of summons upon him. Service of summons logically follows the filing of the
complaint. Note further that the filing of the complaint tolls the running of the prescriptive period
of the cause of action in accordance with Article 1155 of the Civil Code.
(2) In an action in rem or quasi in rem, jurisdiction over the defendant is not required 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 over the defendant but
mainly to satisfy the constitutional requirement of due process (Gomez vs. CA, 420 SCRA 98).
Voluntary appearance
(1) Voluntary appearance is any appearance of the defendant in court, provided he does not
raise the question of lack of jurisdiction of the court (Flores vs. Zurbito, 37 Phil. 746; Carballo
vs. Encarnacion, 92 Phil. 974). It is equivalent to service of summons (Sec. 20).
(2) An appearance is whatever form, without explicitly objecting to the jurisdiction of the
court over the person, is a submission to the jurisdiction of the court over the person. It may be
made by simply filing a formal motion, or plea or answer. If his motion is for any other purpose
than to object to the jurisdiction of the court over his person, he thereby submits himself to the
jurisdiction of the court (Busuego vs. CA, L-48955, June 30, 1987; La Naval Drug Corp. vs. CA,
54 SCAD 917).
(3) Voluntary appearance may be in form of:
(a) Voluntary appearance of attorney;
(b) A motion, by answer, or simple manifestation (Flores vs. Surbito);
(c) A telegraphic motion for postponement (Punzalan vs. Papica, Feb. 29, 1960);
(d) Filing a motion for dissolution of attachment;
(e) Failure to question the invalid service of summons (Navale vs. CA, GR 109957, Feb. 20,
1996);
(f) Filing a motion for extension of time to file an answer.
Personal service
(1) It shall be served by handling a copy to the defendant in person, or if he refuses it, by
tendering it to him (Sec. 6, Rule 14).
Substituted service
(1) If the defendant cannot be served within a reasonable time, service may be effected:
(a) By leaving copies of the summons at the defendants dwelling house or residence with
some person of suitable age and discretion then residing therein; or
(b) By leaving copies at defendants office or regular place of business with some competent
person in charge thereof (Sec. 7).
(2) It may be resorted to if there are justifiable causes, where the defendant cannot be served
within a reasonable time (Sec. 7). An example is when the defendant is in hiding and resorted to
it intentionally to avoid service of summons, or when the defendant refuses without justifiable
reason to receive the summons (Navale vs. CA, 253 SCRA 705).
(3) In substituted service of summons, actual receipt of the summons by the defendant through
the person served must be shown (Millennium Industrial Commercial Corp. vs. Tan, 383 Phil.
468). It further requires that where there is substituted service, there should be a report indicating
that the person who received the summons in defendants behalf was one with whom petitioner
had a relation of confidence ensuring that the latter would receive or would be notified of the
summons issued in his name (Ang Ping vs. CA, 369 Phil. 609; Casimina vs. Hon. Legaspi, GR
147530, June 29, 2005).
(4) Substituted service is not allowed in service of summons on domestic corporations (Delta
Motor Sales Corp. vs. Mangosing, 70 SCRA 598).
Service upon a defendant where his identity is unknown or where his whereabouts are
unknown
(1) Where the defendant is designated as unknown, or whenever his whereabouts are unknown
and cannot be ascertained despite a diligent inquiry, service may, with prior leave of court, be
effected upon the defendant, by publication in a newspaper of general circulation. The place and
the frequency of the publication is a matter for the court to determine (Sec. 14, Rule
14). The rule does not distinguish whether the action is in personam, in rem or quasi in rem. The
tenor of the rule authorizes summons by publication whatever the action may be as long as the
identity of the defendant is unknown or his whereabouts are unknown. Under the previous
rulings, jurisdiction over the defendant in an action in personam cannot be acquired by the
summons by publication (Pantaleon vs. Asuncion, 105 Phil. 761; Consolidated Plyware
Industries vs. Breva, 166 SCRA 516).
Proof of service
(1) When the service has been completed, the server shall, within five (5) days therefrom,
serve a copy of the return, personally or by registered mail, to the plaintiffs counsel, and shall
return the summons to the clerk who issued it, accompanied by proof of service (Sec. 4, Rule 14).
(2) After the completion of the service, a proof of service is required to be filed by the server
of the summons. The proof of service of summons shall be made in writing by the server and
shall set forth the manner, place and date of service; shall specify any papers which have been
served with the process and the name of the person who received the same; and shall be sworn to
when made by a person other than a sheriff or his deputy (Sec. 18).
II. MOTIONS (Rule 15)
Definition of Motion
(1) A motion is an application for relief other than by a pleading (Sec. 1, Rule 15).
Motions versus Pleadings
(1) A pleading is a written statement of the respective claims and defenses of the parties
submitted to the court for appropriate judgment (Sec. 1, Rule 6). It may be in the form of a
complaint, counterclaim, cross-claim, third-party complaint, or complaint-in-intervention,
answer or reply (Sec. 2, Rule 6).
(2) A motion on the other hand is an application for relief other than a pleading (Sec. 1, Rule
15).
Contents and form of motions
(1) A motion shall state the order sought to be obtained, and the grounds which it is based, and
if necessary shall be accompanied by supporting affidavits and other papers (Sec. 3).
(2) All motions must be in writing except those made in open court or in the course of a
hearing or trial (Sec. 2).
Omnibus Motion Rule
(1) The rule is a procedural principle which requires that every motion that attacks a pleading,
judgment, order or proceeding shall include all grounds then available, and all objections not so
included shall be deemed waived (Sec. 8). Since the rule is subject to the provisions of Sec. 1,
Rule 9, the objections mentioned therein are not deemed waived even if not included in the
motion. These objections are: (a) that the court has no jurisdiction over the subject matter, (b)
that there is another action pending between the same parties for the same cause (litis
pendencia), (c) that the action is barred by a prior judgment (res judicata), and (d) that the action
is barred by the statute of limitations (prescription) (Sec. 1, par. 2, Rule 9).
(2) A motion to dismiss is a typical example of a motion subject to omnibus motion rule, since
a motion to dismiss attacks a complaint which is a pleading. Following the omnibus motion rule,
if a motion to dismiss is filed, then the motion must invoke all objections which are available at
the time of the filing of said motion. If the objection which is available at the time is not included
in the motion, that ground is deemed waived. It can no longer be invoked as affirmative defense
in the answer which the movant may file following the denial of his motion to dismiss.
Resolution of motion
(1) After the hearing, the court may dismiss the action or claim, deny the motion, or order the
amendment of the pleading. The court shall not defer the resolution of the motion for the reason
that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and
distinctly the reasons therefor (Sec. 3).
(2) Options of the court after hearing but not to defer the resolution of the motion for the
reason that the ground relied upon is not indubitable:
(1) dismiss the action or claim;
(2) deny the motion to dismiss; or
(3) order amendment of the pleading.
Bar by dismissal
(1) Res judicata as a ground for dismissal is based on two grounds, namely: (a) public policy
and necessity, which makes it to the interest of the State that there should be an end to litigation
(republicae ut sit litium); and (b) the hardship on the individual of being vexed twice for the
same cause (nemo debet bis vexari et eadem causa). Accordingly, courts will simply refuse to
reopen what has been decided. They will not allow the same parties or their privies to litigate
anew a question once it has been considered and decided with finality. Litigations must end and
terminate sometime and somewhere. The effective and efficient administration of justice requires
that once a judgment has become final, the prevailing party should not be deprived of the fruits
of the verdict by subsequent suits on the same issues filed by the same parties (Fells, Inc. vs.
Prov. of Batangas, GR 168557, Feb. 19, 2007).
(2) Res judicata comprehends two distinct concepts: (a) bar by a former judgment, and (b)
conclusiveness of judgment (Heirs of Wenceslao Tabia vs.CA, GR 129377 & 129399, Feb. 22,
2007). The first concept bars the prosecution of a second action upon the same claim, demand or
cause of action. The second concept states that a fact or question which was in issue in a former
suit and was there judicially passed upon and determined by a court of competent jurisdiction, is
conclusively settled by the judgment therein as far as the parties to that action and persons in
privity with them are concerned and cannot be again litigated in any future action between such
parties or their privies, in the same court or any other court of concurrent jurisdiction on either
the same or different cause of action, while the judgment remains unreversed by proper authority
(Moraga vs. Spouses Somo, GR 166781, Sept. 5, 2006).
(3) Grounds for dismissal that bar refiling
(a) cause of action is barred by a prior judgment;
(b) cause of action is barred by the statute of limitations;
(c) claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned, or
otherwise extinguished;
(d) claim is unenforceable under the statute of frauds.
Two-dismissal rule
(1) The two-dismissal rule applies when the plaintiff has (a) twice dismissed actions, (b) based
on or including the same claim, (c) in a court of competent jurisdiction. The second notice of
dismissal will bar the refiling of the action because it will operate as an adjudication of the claim
upon the merits. In other words, the claim may only be filed twice, the first being the claim
embodied in the original complaint. Since as a rule, the dismissal is without prejudice, the same
claim may be filed. If the refilled claim or complaint is dismissed again through a second notice
of dismissal, that second notice triggers the application of the two-dismissal rule and the
dismissal is to be deemed one with prejudice because it is considered as an adjudication upon the
merits.
of the plaintiffs motion to dismiss, and the court grants said motion to dismiss, the dismissal
shall be limited to the complaint (Sec. 2, Rule 17). The phraseology of the provision is clear:
the counterclaim is not dismissed, whether it is a compulsory or a permissive counterclaim
because the rule makes no distinction. The defendant if he so desires may prosecute his
counterclaim either in a separate action or in the same action. Should he choose to have his
counterclaim resolved in the same action, he must notify the court of his preference within
fifteen (15) days from the notice of the plaintiffs motion to dismiss. Should he opt to prosecute
his counterclaim in a separate action, the court should render the corresponding order granting
and reserving his right to prosecute his claim in a separate complaint.
(2) A similar rule is adopted in Sec. 6, Rule 16 and Sec. 3, Rule 17, wherein the dismissal of
the counterclaim does not carry with it the dismissal of the counterclaim. The same provision
also grants the defendant a choice in the prosecution of his counterclaim.
Time to intervene
(1) The motion to intervene may be filed at any time before the rendition of judgment by the
trial court (Sec. 2, Rule 18). Intervention after trial and decision can no longer be permitted (Yau
vs. Manila Banking Corp., GR 126731, July 11, 2002).
Remedy for the denial of motion to intervention
(1) The remedy of the aggrieved party is appeal. Mandamus will not lie except in case of grave
abuse of discretion.
Service of subpoena
(1) It shall be made in the same manner as personal or substituted service of summons. The
original shall be exhibited and a copy thereof delivered to the person on whom it is served,
tendering to him the fees for one days attendance and the kilometrage allowed by the Rules,
except that when a subpoena is issued by or on behalf of the Republic, or an officer or agency
thereof, the tender need not be made. The service must be made so as to allow the witness a
reasonable time for preparation and travel to the place of attendance. If the subpoena is duces
tecum, the reasonable cost of producing the books, documents or things demanded shall alsp be
tendered.
(2) Service of a subpoena shall be made by the sheriff, by his deputy, or by any other person
specially authorized, who is not a party and is not less than eighteen (18) years of age (Sec. 6,
Rule 21).
Quashing of subpoena
(1) The court may quash a subpoena duces tecum upon motion promptly made and, in any
event, at or before the time specified therein: (a) if it is unreasonable and oppressive, or (b) the
relevancy of the books, documents or things does not appear, or (c) if the person is whose behalf
the subpoena is issued fails to advance the reasonable cost of the production thereof (Sec. 4).
(2) Subpoena ad testificandum may be quashed on the ground that the witness is not bound
thereby. In either case, the subpoena may be quashed on the ground that the witness fees and
kilometrage allowed by the Rules were not tendered when the subpoena was served (Sec. 4).
Scope of examination
(1) Unless otherwise ordered by the court as provided by Sec. 16 or 18, the deponent may be
examined regarding any matter not privileged, which is relevant to the pending action, whether
relating to the claim or defense of any other party, including the existence, description, nature,
custody, condition, and location of any books, documents, or other tangible things and the
identity and location of persons having knowledge of relevant facts (Sec. 2).
Effect of admission
(1) Any admission made by a party pursuant to such request is for the purpose of the pending
action only and shall not constitute an admission by him for any other purpose nor may the same
be used against him in any other proceeding (Sec. 3).
(d) The document or thing sought to be produced or inspected must constitute or contain
evidence material to the pending action;
(e) The document or thing sought to be produced or inspected must not be privileged; and
(f) The document or thing sought to be produced or inspected must be in the possession of the
adverse party or, at least under his control (Sec. 1, Rule 27; Lime Corp. vs. Moran, 59 Phil. 175)
Order of trial
(1) Subject to the provisions of Sec. 2, Rule 31, and unless the court for special reasons
otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall
proceed as follows:
(a) The plaintiff shall adduce evidence in support of his complaint;
(b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-
claim and third party complaint;
(c) The third party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-
claim and fourth-party complaint;
(d) The fourth party, and so forth, if any, shall adduce evidence of the material facts pleaded
by them;
(e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce
evidence in support of their defense, in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence only, unless the court, for
good reasons and in the furtherance of justice, permits them to adduce evidence upon their
original case; and
(g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless
the court directs the parties to argue or to submit their respective memoranda or any further
pleadings.
If several defendants or third party defendants and so forty having separate defenses appear by
different counsel, the court shall determine the relative order of presentation of their evidence
(Sec. 5)
Powers of commissioner
(1) Under the Rules, the courts order may specify or limit the powers of the commissioner.
Hence, the order may direct him to:
(a) Report only upon particular issues;
(b) Do or perform particular acts; or
(c) Receive and report evidence only.
(2) The order may also fix the date for beginning and closing of the hearings and for the filing
of his report.
(3) Subject to such limitations stated in the order, the commissioner:
(a) Shall exercise the power to regulate the proceedings in every hearing before him;
(b) Shall do all acts and take all measures necessary or proper for the efficient performance of
his duties under the order
(c) May issue subpoenas and subpoenas duces tecum, and swear witnesses; and
(d) Rule upon the admissibility of evidence, unless otherwise provided in the order of
reference (Sec. 3, Rule 32).
(4) In the hearing to be conducted on the commissioners report, the court will review only so
much as may be drawn in question by proper objections. It is not expected to rehear the case
upon the entire record (Kreidt vs. McCullough and Co., 37 Phi. 474).
Ground
(1) The only ground for demurrer to evidence is that the plaintiff has no right to relief.
court (Ago vs. CA, 6 SCRA 530). It is not the writing of the judgment or its signing which
constitutes rendition of the judgment (Castro vs. Malazo, 99 SCRA 164).
(2) A judgment or final order determining the merits of the case shall be in writing personally
and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it
is based, signed by him, and filed with the clerk of the court (Sec. 1, Rule 36).