[38] SHEKER V. ESTATE OF SHEKER 3. The executrix of the Estate of Alice O.

Sheker moved for the dismissal of

GR No. 157912 | 13 December 2007 | Priorities in modes of Service and filing |
Austria-Martinez, J. | Ventilacion
Petitioner: Alan Joseph A. Sheker
Respondents: Estate of Alice O. Sheker, Victoria S. Medina-Administratrix
Recit-Ready: In compliance with the RTC’s order, Alan Sheker filed a money claim
against the Estate of Alice O. Sheker. The executrix of the Estate (Victoria) opposed
said claim and one of the grounds is the fact that Alan failed to attach a written
explanation why the money claim was not filed and served personally. RTC
dismissed the money claim on the grounds stated by the executrix. Hence, this
Petition.
In previous cases, the Court ruled that Section 11, Rule 13, gives the court the
discretion to consider a pleading or a paper as not filed if the other modes of service
or filing were not resorted to and no written explanation was made as to why
personal service was not done in the first place. With that, whenever personal service
or filing is practicable, such is mandatory.
In this case, Alan holds office in Makati City, while Victoria and the RTC are in Iligan
City, Mindanao. Considering the distance of all parties, the Court holds that the RTC
should have exercised its discretion in accepting the pleading of Alan and not
dismissing the case in the interest of substantial justice.
said money claim against the Estate on the following grounds:
a. Docket fees had not yet been paid;
b. There was no certification against forum shopping attached; and
c. Alan failed to attach a written explanation why the money claim
was not filed and served personally. [This would be the focus on
this digest.]
4. RTC dismissed the money claim of Alan on the grounds advanced by
Victoria.
5. Hence, this Petition.
ISSUE/S and RATIO:
Issue 1: WON the case should be dismissed for Alan’s failure to attach a written
explanation in his money claim that was not filed and served personally – NO
1. In the case of Maceda v. De Guzman, the Court held that while personal
service and filing are preferred, Section 11, Rule 13, ROC gives the court the
discretion to consider a pleading or a paper as not filed if the other modes of
service or filing were not resorted to and no written explanation was made
as to why personal service was not done in the first place.
a. Furthermore, the Court clarifies that personal service and filing is
the general rule and resort to other modes of service and filing is
the exception.

b. With that, whenever personal service or filing is practicable, such is

Doctrine: Personal service and filing is the general rule and resort to other modes of
service and filing is the exception. When filing and serving through other modes, the
pleader must attach a written explanation as to why personal filing and service was
impracticable to begin with.
FACTS:
2.
1. The RTC admitted to probate the holographic will of Alice O. Sheker and
thereafter issued an order for all the creditors to file their respective claims
against the estate.
2. In compliance therewith, Alan Sheker filed a contingent claim for agent’s
commission due him amounting P206K in the event of the sale of certain
parcels of land belonging to the estate and P275K as reimbursement for
expenses incurred/to be incurred by him in the course of negotiating the
sales.
mandatory.
c. Only when personal service or filing is not practicable may resort to
other modes be had, which must be accompanied by a written
explanation as to why personal service or filing was not practicable
to begin with.
In the case of Musa v. Amor, the Court, noting the impracticality of personal
service, exercised its discretion and liberally applied Section 11, Rule 13,
ROC.
a. The Court elaborated, “Considering the distance between the Court
of Appeals and Donsol, Sorsogon where the petition was posted,
clearly service by registered mail [sic] would have entailed
considerable time, effort and expense. A written explanation why
service was not done personally might have been superfluous…
 Rigid application of Section 11, Rule 13 may be relaxed in this case
in the interest of substantial justice.”

3. In the present case, Alan holds office in Salcedo Village, Makati City, while
counsel for Victoria and the RTC which rendered the assailed orders are
both in Iligan City (Mindanao).

a. The lower court should have taken judicial notice of the great
distance between said cities and realized that it is indeed not
practicable to serve and file the money claim personally.

4. Following jurisprudence, the failure of Alan to submit a written explanation

why service has not been done personally, may be construed as superfluous
and the RTC should have exercised its discretion under Section 11, Rule 13,
ROC, not dismiss the money claim of Alan, in the interest of substantial
justice.

[Other issues not related to Civil Procedure would not be discussed in this digest.]