OCTOBER 02, 2020 LECTURE
For example, affirmative defense is prescription but denied but
RULE 08
Section 12. Affirmative defenses. — (a) A defendant shall
raise his or her affirmative defenses in his or her answer, which
shall be limited to the reasons set forth under Section 5(b),
Rule 6, and the following grounds:
1. That the court has no jurisdiction over the person of the
defending party;
2. That venue is improperly laid;
3. That the plaintiff has no legal capacity to sue;
4. That the pleading asserting the claim states no cause of
action; and
5. That a condition precedent for filing the claim has not been
complied with.
(i . barangay conciliation; ii. exhaustion of administrative
remedies; iii. earnest efforts towards a compromised
agreement if the case involves parties belonging to the same
family)
(b) Failure to raise the affirmative defenses at the earliest
opportunity shall constitute a waiver thereof. (earliest
opportunity is the filing of the answer. It cannot be raised
during pre-trial and even on appeal)
(c) The court shall motu proprio resolve the above affirmative
defenses within thirty (30) calendar days from the filing of the
answer.
(d) As to the other affirmative defenses under the first
paragraph of Section 5(b), Rule 6, the court may conduct a
summary hearing within fifteen (15) calendar days from the
filing of the answer. Such affirmative defenses shall be
resolved by the court within thirty (30) calendar days from the
termination of the summary hearing. (upon its discretion not
mandatory)
[Sec. 5(b), Rule 6 - (b) An affirmative defense is an allegation
of a new matter which, while hypothetically admitting the
material allegations in the pleading of the claimant, would
nevertheless prevent or bar recovery by him or her. The
affirmative defenses include fraud, statute of limitations,
release, payment, illegality, statute of frauds, estoppel, former
recovery, discharge in bankruptcy, and any other matter by
way of confession and avoidance. Affirmative defenses may
also include grounds for the dismissal of a complaint,
specifically, that the court has no jurisdiction over the subject
matter, that there is another action pending between the same
parties for the same cause, or that the action is barred by a
prior judgment. (5a)]
(e) Affirmative defenses, if denied, shall not be the subject of a
motion for reconsideration or petition for certiorari, prohibition
or mandamus, but may be among the matters to be raised on
appeal after a judgment on the merits. (n)
What is the remedy if affirmative defenses are denied?
Go to trial and on appeal, he can raise the denied affirmative
defense as one of the errors committed by the court. He can
still present evidence because the ruling of the court of his
defense is merely interlocutory, meaning temporary. The court
that denied the affirmative defense may change its ruling later
on.
after trial, the court has realized the action has prescribed, it
may change its earlier order because it is merely interlocutory.
Part of the Plaintiff, remedy if the affirmative defense is
granted?
If the dismissal is without prejudice, remedy is refile the case.
Dismissal is with prejudice, (e.g. prescription, res judicata), to
file appeal from the order of the dismissal because it is the
same as a final order.
Under Rule 41, one of the orders that cannot be subject to
appeal is a dismissal without prejudice because the remedy is
to refile.
[RULE 41 Section 1. Subject of appeal. — An appeal may be
taken from a judgment or final order that completely disposes
of the case, or of a particular matter therein when declared by
these Rules to be appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or
reconsideration;
(b) An order denying a petition for relief or any similar
motion seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a judgment
by consent, confession or compromise on the ground
of fraud, mistake or duress, or any other ground
vitiating consent;
(f) An order of execution;
(g) A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending, unless
the court allows an appeal therefrom; and
(h) An order dismissing an action without
prejudice.
In all the above instances where the judgment or final order is
not appealable, the aggrieved party may file an appropriate
special civil action under Rule 65. (n)]
SEC. 13
Striking out of pleading or matter contained therein
Upon motion made by a party before responding to a
pleading or, if no responsive pleading is permitted by these
Rules, upon motion made by a party within twenty (20)
calendar days after the service of the pleading upon him, or
upon the court’s own initiative at anytime, the court may order
any pleading to be stricken out or that any sham or false,
redundant, immaterial, impertinent or scandalous matter be
stricken out therefrom.
As what we have discussed, your motions and/or
pleadings must contain temperate language. Must contain
true and correct facts, otherwise, the same may be stricken
out of record.
RULE 9
EFFECT OF FAILURE TO PLEAD
As a rule, under the present amendments, filing of motion to
dismiss is no longer allowed. But there are instances where
you can file, example defective forum shopping can be a
ground for MTD. So what can the defendant do with his
grounds for dismissal? Raise them in his answer otherwise
considered waived.
SEC. 1 (take note of this)
Defenses and objections not pleaded
Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived.
However, when it appears from the pleadings or the evidence
on record that the court has no jurisdiction over the subject
matter, that there is another action pending between the same
parties for the same cause, or that the action is barred by a
prior judgment or by statute of limitations, the court shall
dismiss the claim.
As a rule, defenses and objections not alleged either
in a motion to dismiss or in the answer are deemed waived.
So it is necessary that whatever are your objections
must be alleged in your answer or in a motion to dismiss.
For Example [Venue]
If the case is filed in an improper venue, there must
be a motion to dismiss if not it must be alleged in an answer
as an affirmative defense. Failure to allege in a motion to
dismiss or answer deemed waived.
But there are objections not considered waived even if not
raised in a motion to dismiss or in an answer.
[If these matters are apparent in the complaint or evidence on
record]
(Section 1, Rule 9)
When it appears from the pleadings or the evidence
on record that the court has no jurisdiction over the
subject matter;
There is another action pending between the same
parties for the same cause; (Litis Pendentia)
That the action is barred by a prior judgment or; (res
judicata)
By statute of limitations, the court shall dismiss the
claim (prescription)
The court can motu proprio dismiss the case.
Prescription here includes laches.
“Laches” unreasonable delay in bringing up the action
Those objections, again, are not considered waived
even if not raised in the answer or motion to dismiss.
In fact, if any of those grounds is present, the court
can motu proprio dismiss the case. Those are the only
grounds that the court can motu proprio dismiss a case.
Since all other grounds are waiveable the court
cannot dismiss the case motu proprio.
For example: Improper venue.
If there is no motion to dismiss or if there is no
allegation in the answer objecting to the filing of the case at the
wrong venue, the court cannot motu proprio dismiss the case.
“Residual Prerogatives” refer to the power of the court to
dismiss a case motu proprio based on the four grounds
mentioned.
Case: Catud vs. Palanca Jr., September 7, 2004.
SEC. 2
Compulsory counterclaim, or cross-claim, not set up
barred
A compulsory counterclaim, or a cross-claim, not set
up shall be barred.
Compulsory Counterclaim or Cross-claim; we have discussed
this already. Again, if not alleged in the answer, they are
deemed waived or barred.
Q: Is there a possibility that a plaintiff becomes a defending
party?
yes, as regards permissive counterclaim. So this defending
party is not limited to a defendant.
If the defending party fails to answer within the time
allowed, the court shall upon motion with notice to the
defending party (there must be a motion and notice to the
defending party) and proof of such failure, the court shall
declare the defending party in default.
What is the effect after the court shall have properly
declared the defending party in default?
The court has two options:
To render judgment based on the allegations in the
complaint; or
To require plaintiff to present evidence ex parte.
“Ex-parte presentation of evidence” means without the
participation of the defending party. The reason is because
once the defending party is properly declared in default, he
lose his standing in court. In other words, he can't anymore
participate in the proceedings in court although he is entitled to
notices.
How is it done?
The ex-parte presentation of evidence by the
plaintiff can be done before the clerk of court.
“Clerk of Court” he is the court officer next to the
judge. He has supervisory powers. He is the head of
office. He is the supervisor of all personnel in the
court. The clerk of court from RTC to Supreme Court
should be a lawyer.

The clerk of court who can receive evidence
should be a lawyer. He will act like a judge.
Presenting evidence before the clerk of court is the
same as presenting evidence before the judge. The
receiving of evidence should be done before the clerk
of court because there's no hassle as there is no
opposing party, meaning no one will object. There is
no need for a ruling as to the receiving of evidence
because there is no opposing party.
The declaration of default of the defending party, does
it mean that the victory of the plaintiff is imminent
If complaint insufficient/allegations not proved
The Court could dismiss the case for insufficiency of
cause of action or that the complaint is sufficient but the
allegations therein were not sufficiently proved despite the
absence of the defending party.
Section 3. Default; declaration of. — If the defending party
fails to answer within the time allowed therefor, the court shall,
upon motion of the claiming party with notice to the defending
party, and proof of such failure, declare the defending party in
default. Thereupon, the court shall proceed to render judgment
granting the claimant such relief as his pleading may warrant,
unless the court in its discretion requires the claimant to submit
evidence. Such reception of evidence may be delegated to the
clerk of court. (1a, R18)
(a) Effect of order of default. — A party in default shall
be entitled to notice of subsequent proceedings but
not to take part in the trial. (2a, R18)
(b) Relief from order of default. — A party declared in
default may at any time after notice thereof and
before judgment file a motion under oath to set aside
the order of default upon proper showing that his
failure to answer was due to fraud, accident, mistake
or excusable negligence and that he has a
meritorious defense. In such case, the order of default
may be set aside on such terms and conditions as the
judge may impose in the interest of justice. (3a, R18)
(c) Effect of partial default. — When a pleading
asserting a claim states a common cause of action
against several defending parties, some of whom
answer and the others fail to do so, the court shall try
the case against all upon the answers thus filed and
render judgment upon the evidence presented. (4a,
R18).
(d) Extent of relief to be awarded. — A judgment
rendered against a party in default shall not exceed
the amount or be different in kind from that prayed for
nor award unliquidated damages. (5a, R18).
(e) Where no defaults allowed. — If the defending
party in an action for annulment or declaration of
nullity of marriage or for legal separation fails to
answer, the court shall order the Solicitor General or
his or her deputized public prosecutor to
investigate whether or not a collusion between the
parties exists, and if there is no collusion, to intervene
for the State in order to see to it that the evidence
submitted is not fabricated. (6a, R18)
When can a defendant be declared in default?
1. Court has validly acquired jurisdiction over the person
of the defendant by proper service of summons or
voluntary appearance; (even if there was an improper
service of summons but the defendant filed a motion
for extension to file answer this is considered
voluntary appearance despite the improper service.)
2. Defendant failed to file the answer within the time
prescribed by law (30 days);
3. A motion to declare the defendant in default filed by
the plaintiff. The court cannot motu proprio declare
defendant in default it must be through a motion filed
by the plaintiff. Suppose the plaintiff fails to file a
motion to declare in default, what should be done?
The court should dismiss the case this time motu
proprio on the ground of failure to prosecute under
Sec. 3, Rule 17. (Sablas v Sablas July 3, 2007)
Under recent jurisprudence, when the period to answer has
already elapsed but due to the absence of a motion to declare
the defendant in default or even if there is a motion, there is no
order yet issued by the court and the defendant filed his late
answer, can it still be accepted if there is still no default order?
Yes, enunciated in Sablas v Sablas but with the recent
amendments I don’t know if this would still apply. But it can still
be possibly be applied because declaration of default is not be
favored by the courts because cases should be decided based
on the merits.
Suppose there are several defendants? Some filed their
answer and some did not. Those who did not shall be declared
in default and those who did will not. However, if they share a
common defense, example solidary debtors, under sec. 3(c),
would inure to the benefit of the defaulting defendants on the
condition that they share a common defense. If they have
different defenses, then the non-answering
defendants cannot be benefitted by the answering defendant.
Effect of default
Effect of order of default. — A party in default shall be
entitled to notice of subsequent proceedings but not to take
part in the trial.
A party in default should be entitled to notice on the
subsequent proceedings only. You cannot participate in the
proceedings because you lose your standing in court.
The court has 2 options; render judgment based on
the allegations on the pleading and its annexes. Rationale:
they are admitted as true no need to present evidence. Under
the amendments, the plaintiff is required to attach all the
documents in the complaint then there is no need to conduct a
hearing upon the discretion of the court but if the court
conducts a hearing then the presentation shall be done ex
parte.
Will it assure that the plaintiff will win? No. Even if
declared default. The burden of proof is still with the plaintiff.
(Bajudo v Traders Royal Bank March 21, 2006)
For example:
The period to file an answer has lapsed then the
plaintiff didn't notice about it. Then you file a late answer.
Should the court consider your answer?
 Yes, before the issuance of the order in default, the
court has to accept because there is no order yet declaring him
in default.
It is the issuance of the order that will cause lose
in the standing in court of the defendant. Without it, he can
still submit his answer.
EXCEPTION:
If the case is governed by the Rules on Summary
Procedure and Small Claims, under such Rules, filing of late
answer is strictly prohibited and filing a motion to declare in
default is not allowed.
Relief from order of default. — A party declared in default
may at any time after notice thereof and before judgment file a
motion under oath to set aside the order of default upon proper
showing that his failure to answer was due to fraud, accident,
mistake or excusable negligence and that he has a meritorious
defense. In such case, the order of default may be set aside on
such terms and conditions as the judge may impose in the
interest of justice.
REMEDIES FROM THE ORDER OF DEFAULT
1. Before judgment
2. After judgment,
3. After the decision has become final and executory.
BEFORE THE DECISION
Party in default can:
File a motion to set aside the default order, AND
He should indicate in his motion his reason/s why he
was not able to submit his answer within the time
given.
If it is due to Fraud, Accident, Mistake or Excusable
negligence (FAME), the motion must alleged specifically the
circumstances that would constitute FAME. If the defendant
would just simply alleged that he was not able to file an answer
because of FAME and without mentioning the circumstances,
then the motion would be denied.
“FRAUD”
This refers to the insidious words used by the
adverse party that prevented the defendant from filing his
answer.
For Example:
If a case was filed against the defendant and the latter
went to the plaintiff and begged the plaintiff to give him
additional time which was agreed by the plaintiff. Then a month
later, the defendant received an order of default. The reason
why he was not able to file an answer was because he was
assured by the plaintiff that he will be given enough time.
“ACCIDENT”
Defendant had a heart attack or was victimized by a typhoon.
“MISTAKE”
The mistake is on the part of the defendant.
For Example:
Defendant begged that he will just pay and the
plaintiff agreed. He thought that he didn't have to answer the
plaintiff. Defendant mistakenly believed that he no longer has
to file an answer.
“Excusable negligence”
The negligence is on the part on the defendant. Negligence
must be excusable.
For Example:
He was not able to file an answer because the answer
he made was left to his secretary to be filed before the court.
However, the secretary forgot to file it.
What should be done if the defendant was not able to file
an answer due to FAME?
The defendant should file a motion narrating the
circumstances.
For example:
In case of accident, it should be specified as
to what kind of accident happened that prevented you
from filing an answer. Same with other grounds
Aside from these circumstances, you should allege in
your motion that you have a meritorious defense.
While it is true that you haven't filed an
answer because of an accident but if you have a non-
sense defense, then no use. You should show to the
court that you have a meritorious defense.
And you should allege that in your motion (FAME).
Aside from alleging (FAME) as the reason why you failed to file
your answer on time, you should also indicate your meritorious
defense. Your defense must be meritorious.
You should also execute an affidavit.
The circumstances constituting (FAME) plus
your meritorious defense must be alleged in the
affidavit.
That affidavit is what we call as AFFIDAVIT
OF MERIT. Your Affidavit of Merit must be attached to
your motion. Aside from that, your motion must be
verified.
“Verification”
Verification is an affidavit stating that the movant has
read the allegations, caused the preparation and the
allegations therein are true and correct based on his personal
knowledge or authentic records.
If your motion is not verified or not accompanied by
an affidavit of merits or if your motion does not allege any
circumstances, the motion will be denied.
Whenever we talk about FAME, these 4 requisites
should be present: [TN]
accompanied by affidavit of merit;
meritorious defense
verification
FAME
That is the remedy if the court has not yet rendered a decision.
For example:
If the reason why you were not able to file an answer
was not because of FAME, is there a need for an affidavit of
merit? i.e., you were not served with summons.
If there is no summons served on you, then the order
of default as well as the decision is VOID because the
court has no jurisdiction over the case.
o You can file a motion to set aside the
default order on the ground of lack or
improper service of summons. If that is
 the ground, then there is no need to attach
an affidavit of merits.
AFTER JUDGMENT BUT YET FINAL AND EXECUTORY
If the court has already rendered jurisdiction which
has not become final and executory, the aggrieved party may:
1. File a motion for new trial under Rule 37 (FAME,
Meritorious defense, Affidavit, Verification)or;
Affidavit of Merit is one which states:
The nature and character of the FAME;
Facts constituting the movance of the substantial
defense; and
Evidence which he intends to present if his motion for
New Trial is granted. [Miranda v Legaspi **290]
2. File an Appeal. [BIITT v Sps. Jonas Dec. 9 2015,
the rule is not right to appeal from the judgment of
default and can be done on grounds that the amount
of judgment is excessive or different in kind from that
being prayed for or the plaintiff failed to prove the
material allegations in his complaint or the decision is
contrary to law.]
In another case, default is not meant to punish the defendant
but to enforce the prompt filing of the answer to the complaint.
The provision that he cannot take part of the trial only meant
that he already lost his standing in court. He can still file an
appeal. (royal plains view inc, v mejia Nov, 12, 2018)
Another remedy is Motion for Reconsideration.
AFTER THE DECISION HAS BECOME FINAL AND
EXECUTORY
If the decision has already become final and
executory, the remedies are:
1. Petition for Relief under Rule 38. [FAME, Meritorious
Defense, Affidavit, and Verification]
2. Petition for Certiorari if the judgment issued by the
court is improper or the court has acted grave abuse
of discretion amounting to lack or excess of
jurisdiction. [FAME will no longer apply here]
3. Annulment of judgment under Rule 47. Because if the
court does not acquire jurisdiction, example no proper
service of summons, the court does not have
jurisdiction over the person of the defendant so the
judgment shall be annulled under Rule 47.
Read:
Gomez vs Montalban March 14,2008
Manguiat v CA August 20, 2008
Lina v. Court of Appeals
The two cases enumerate the remedies available to a
party declared in default:
The defendant in default may, at any time after
discovery thereof and before judgment, file a motion,
under oath, to set aside the order of default on the
ground that his failure to answer was due to fraud,
accident, mistake or excusable negligence, and that
he has a meritorious defense (Sec. 3, Rule 18 [now
Sec. 3(b), Rule 9]);
If the judgment has already been rendered when the
defendant discovered the default, but before the same
has become final and executory, he may file a motion
for new trial under Section 1 (a) of Rule 37;
If the defendant discovered the default after the
judgment has become final and executory, he may file
a petition for relief under Section 2 [now Section 1] of
Rule 38; and
He may also appeal from the judgment rendered
against him as contrary to the evidence or to the law,
even if no petition to set aside the order of default has
been presented by him (Sec. 2, Rule 41).
In addition, and as this Court earlier mentioned, a
petition for certiorari to declare the nullity of a judgment by
default is also available if the trial court improperly declared a
party in default, or even if the trial court properly declared a
party in default, if grave abuse of discretion attended such
declaration.
[Jude D]
I had this case before. The client approached me,
when I studied his case I found out that the summons was
served through “habal-habal” driver, so there was improper
service of summons. So, we filed petition for certiorari to
declare the decision void.
Effect of partial default
Effect of partial default. — When a pleading asserting a
claim states a common cause of action against several
defending parties, some of whom answer and the others fail to
do so, the court shall try the case against all upon the answers
thus filed and render judgment upon the evidence presented.
For Example:
Mr. X filed against D and E for collection of money as
solidary debtors. It was only Mr. D who answered. Mr E was
declared in default. So the court will try and hear the case
based only on the answer of Mr D.
If same common cause of action
When the defendants are sued under the same
common cause of action, and they have common defense, the
answer filed by the answering defendant will inure to the
benefit of the non-answering defendant.
Read:
Heirs of Manguiat et al vs CA August 20, 2008
Lim Tanhu vs Ramolete August 29, 1975
Extent of relief to be awarded
Extent of relief to be awarded. — A judgment rendered
against a party in default shall not exceed the amount or be
different in kind from that prayed for nor award unliquidated
damages.
So the court cannot give more than what is asked for.
The court cannot also award unliquidated damages such as
moral and exemplary damages.
Where no defaults allowed
Where no defaults allowed. — If the defending party in an
action for annulment or declaration of nullity of marriage or for
legal separation fails to answer, the court shall order the
prosecuting attorney to investigate whether or not a collusion
between the parties exists, and if there is no collusion, to
intervene for the State in order to see to it that the evidence
submitted is not fabricated.
Cases that the court cannot award default order,
cases such:
Annulment of Marriage
Legal separation.
RULE 10
Amended and Supplemental Pleadings
SEC. 1
Amendments in general
Pleadings may be amended by adding or striking out
an allegation or the name of any party, or by correcting a
mistake in the name of a party or a mistaken or inadequate
allegation or description in any other respect, so that the actual
merits of the controversy may speedily be determined, without
regard to technicalities, and in the most expeditious and
inexpensive manner.
Amendment is any change in your pleading.
How to indicate your amendment?
Your pleading shall be changed to Amended complaint,
Amended reply, etc.
What is the effect of your amended pleadings?
SEC. 8
Effect of amended pleadings
An amended pleading supersedes the pleading that it
amends. However, admissions in superseded pleadings may
be received in evidence against the pleader, and claims or
defenses alleged therein not incorporated in the amended
pleading shall be deemed waived.
Make some indications like underline it or make it
bold.
A prescriptive period is interrupted only upon the filing
of amended complaint if there is new cause of action
introduced. But if there is no new cause of action
introduced, the prescriptive period is deemed
interrupted upon the filing of the original.
Amendment can be a matter of right or discretion upon the
court.
SEC. 2
Amendments as a matter of right
A party may amend his pleading once as a matter of
right at any time before a responsive pleading is served or, in
the case of a reply, at any time within ten (10) calendar days
after it is served.
When is amendment a matter of right?
As to plaintiff, it is before service of answer because
answer is a responsive pleading to the complaint.
As to defendant, it is before filing of the reply by the
plaintiff. The responsive pleading is the reply.
Amendment of Reply, under the present rules, as a
matter of right within 10 days from the filing or before
the refiling of rejoinder by the defendant.
When does amendment require leave of court?
After a responsive pleading, amendment can be done
only with leave, except formal amendment.
Amendment as a matter of right (substantial or formal)
may only be done once, the second time will now
require a leave of court even if no responsive
pleading is filed.
If the amendment is with leave of court, the court may
deny when the same is filed with intent to delay or
would confer jurisdiction upon the court.
Remember when the court has no jurisdiction it has
only one power, the power to dismiss. It cannot grant
a motion to amend.
Also not allowed to amend if the purpose is to state a
cause of action when the complaint does not state a
cause of action in the beginning. [Swagman Hotel v
CA Case]
Answer to Counterclaim is the responsive pleading of
counterclaim.
For Example:
Defendant obtained a loan. P demanded payment before the
loan became due. D refused. P filed a case but it
was before the due date. D filed motion to dismiss for
failure to state cause of action. While motion to dismiss was
pending, P filed an amended complaint alleging that the loan
has already become due.
Should the court admit the amended complaint?
No. When the case is filed prematurely, the same is
dismissible because there is failure to state the cause of
action, amendment is not proper when the purpose is to cure
the complaint which fails to state cause of action because of
prematurity [Swagman Hotels vs CA April 8, 2005]
A complaint whose cause of action has not yet
accrued cannot be cured or remedied by an amended or
supplemental pleading alleging the existence or accrual of a
cause of action while the case is pending. Such an action is
prematurely brought and is, therefore, a groundless suit, which
should be dismissed by the court upon proper motion
seasonably filed by the defendant. The underlying reason for
this rule is that a person should not be summoned before the
public tribunals to answer for complaints which are immature.
Also amendment cannot be done to confer jurisdiction
on the court.
For Example:
A case filed before RTC and the amount is only
200,000, the court has no jurisdiction. The plaintiff amended
the complaint to change the amount to confer jurisdiction on
the court. The same cannot be done because the court has no
jurisdiction over the case [Santi vs. Claraval GR No. 173915
Feb. 22, 2010]
While it is a basic jurisprudential principle that an
amendment cannot be allowed when the court has no
jurisdiction over the original complaint and the purpose of the
amendment is to confer jurisdiction on the court, here, the RTC
clearly had jurisdiction over the original complaint and
amendment of the complaint was then still a matter of right.
LIMITATIONS TO THE LIBERAL POLICY IN AMENDMENTS
TO PLEADINGS
When can the court refuse to allow the amendment and when
can you validly oppose it?
When the amendment is for the purpose of making
the complaint confer jurisdiction upon the court
(Rosario vs. Carangdang, 96 Phil. 845);
When the amendment is to delay the action (Section
3);
When the amendment is for the purpose of curing a
premature or non-existing cause of action
(Limpangco vs. Mercado, 10 Phil. 508; Wong vs.
Yatco, 99 Phil. 791)
If the pleading is a REPLY, anytime within 10 days
after it is served
[BAR QUESTION 2005] LACK OF JURISDICTION
On May 12, 2005, the plaintiff filed a complaint in the
RTC for collection of sum of money in the amount of P250,
The defendant filed a motion to dismiss the complaint on
the ground that the court has no jurisdiction over the action
since the amount falls within the exclusive jurisdiction of the
first level court, before the court could resolve the motion, the
plaintiff without leave of court, amended his complaint to allege
a new cause of action consisting the inclusion of an additional
amount of P200, 000 and hereby increasing the amount to
P450, 000.
Now plaintiff filed an opposition to the motion of the defendant.
Suggested Answer:
The motion to dismiss should be denied. The plaintiff
is entitled to amend his complaint as a matter of right before a
responsive pleading is served, even if there is a pending
motion to dismiss. The rule that a complaint cannot be
amended in order to confer jurisdiction, where the court has no
jurisdiction, applies only to an amendment made after the
responsive pleading has been served.
TN!
A complaint cannot be amended in order to confer
jurisdiction
If BEFORE a responsive pleading is filed – the rule
does not apply
If AFTER a responsive pleading is filed – the rule
applies
If the court has no jurisdiction, the only power the
court has is to dismiss the case. Amendment cannot be
allowed if the purpose is to confer jurisdiction, because in the
first place, the court has no jurisdiction and it has no power to
entertain the case for lack of jurisdiction.
CASE: SANTI VS CLARAVALL
In the book of Dean Riano, he commented that:
amendment can be allowed even if the court does not have
jurisdiction over the case if the purpose of the amendment is to
confer jurisdiction provided that a responsive pleading has not
yet been filed.
The problem here is that this is only the Dean’s
opinion and he did not cited any case, but in that 2005 bar
question, they cited an old case, GUMABAY VS BARALI 77
SCRA 258
Section 3.
Amendments by leave of court. — Except as provided
in the next preceding Section, substantial amendments may
be made only upon leave of court. But such leave shall be
refused if it appears to the court that the motion was made
with intent to delay or confer jurisdiction on the court, or the
pleading stated no cause of action from the beginning which
could be amended. Orders of the court upon the matters
provided in this Section shall be made upon motion filed in
court, and after notice to the adverse party, and an opportunity
to be heard. (3a)
SEC. 4
Formal amendments
A defect in the designation of the parties and other
clearly clerical or typographical errors may be summarily
corrected by the court at any stage of the action, at its initiative
or on motion, provided no prejudice is caused thereby to the
adverse party
“Formal Amendment”
This refers to amendment to correct clerical errors,
typographical errors, which can be done even if without leave
of court, but any amendment done more than clerical errors it
requires leave of court.
Amendment could be refused if the purpose is just to
delay the proceeding.
For Example:
The plaintiff wanted to amend his complaint and the
trial is almost over, it has been 10 years since the trial is
pending, and now you suddenly wanted to amend your
complaint. The court will not allow you to do so since it is
clearly a way to delay the proceedings. The adverse party will
also file his amended answer. It’s like back to square one.
Amendment is not proper and should be denied if the
purpose is just to delay the proceedings.
Section 5.
No amendment necessary to conform to or authorize
presentation of evidence. — When issues not raised by the
pleadings are tried with the express or implied consent of the
parties, they shall be treated in all respects as if they had been
raised in the pleadings. No amendment of such pleadings
deemed amended is necessary to cause them to conform to
the evidence.
(5a)
Ex. Complaint did not state that there was a demand to pay ,
during the trial, the plaintiff presented a copy of the demand
letter, and adverse party failed to object, complaint would
be deemed amended. But if objected amendment would no
longer be allowed.
What do you mean by supplemental pleadings?
SEC. 6
Supplemental pleadings
Upon motion of a party the court may, upon reasonable
notice and upon such terms as are just, permit him to serve a
supplemental pleading setting forth transactions, occurrences
or events which have happened since the date of the pleading
sought to be supplemented. The adverse party may plead
thereto within ten (10) calendar days from notice of the order
admitting the supplemental pleading
This means event that occurred after the filing of the pleading.
Ex. B borrowed 10 million from C in installment 10 months, 1
million per month. 1st installment was due, C filed a collection
case, while pending, the 2nd installment became due, this an
occurrence which can be a subject of a supplemental pleading.
What is the difference between an amendment and a
supplement?
AMENDMENT – supersedes the original pleading,
may be a matter of right, occurrence happened before
the filing
SUPPLEMENTAL PLEADING – does not result to
the withdrawal of the original pleading, it shall be
considered as a supplement, an additional to the
original pleading. Always with leave of court,
occurrence happened after filing.
Amendments must be marked.
For Example:
Defendant borrows an amount of P1M payable in 10
monthly installments, when the first monthly installment
became due, the plaintiff now can file a case to collect the first
installment. While the case is pending, the second installment
became due, what will the plaintiff do?
The plaintiff will file a supplemental complaint, or he
can file a separate complaint because the second installment
constitutes another cause of action, the plaintiff has two
options, whether he will file a supplemental complaint or a
separate complaint.
The first complaint will not be dismiss unlike in the
amendment, the original is supersedes.
SEC. 7
Filing of amended pleadings
When any pleading is amended, a new copy of the
entire pleading, incorporating the amendments, which shall be
indicated by appropriate marks, shall be filed.
SEC. 8
Effect of amended pleadings
An amended pleading supersedes the pleading that it
amends. However, admissions in superseded pleadings may
be offered in evidence against the pleader; and claims or
defenses alleged therein not incorporated in the amended
pleading shall be deemed waived.
Admissions in superseded pleadings may be received
in evidence against the pleader. If you have admissions that
the adverse party can use, they can be used against you.
How will the adverse party use it?
They will present it as evidence during trial.
As a rule, allegations in the pleading do not require
presentation of evidence because they are
considered as Judicial Admission. But the moment,
the pleading which contains admissions would be
amended will now be considered as extrajudicial
admissions which is now required to be presented as
evidence.
RULE 11
When to File Responsive Pleadings
Sec. 1
Answer to the complaint.
The defendant shall file his answer to the complaint
within thirty (30) calendar days after service of summons,
unless a different period is fixed by the court.
Sec. 2
Answer of a defendant foreign private juridical entity.
Where the defendant is a foreign private juridical
entity and service of summons is made on the government
official designated by law to receive the same, the answer shall
be filed within sixty (60) calendar days after receipt of
summons by such entity.
SEC. 3
Answer to amended complaint
Where the plaintiff files an amended complaint as a
matter of right, the defendant shall answer the same within
thirty (30) calendar days after being served with a copy thereof.
Where its filing is not a matter of right, the defendant
shall answer the amended complaint within fifteen (15)
calendar days from notice of the order admitting the same. An
answer earlier filed may serve as the answer to the amended
complaint if no new answer is filed.
This Rule shall apply to the answer to an amended
counterclaim, amended cross-claim, amended third (fourth,
etc.) party complaint, and amended complaint-in-intervention.
Supposed defendant did not file an amended answer,
should he be declared in default? No. his original answer shall
serve as his answer to the amended complaint.
SEC. 4
Answer to counterclaim or cross-claim
A counterclaim or cross-claim must be answered
within twenty (20)calendar days from service.
Need not be answered but if he answers he has 20
days.

Compulsory counterclaim or cross claim need not be
answered, it is only permissive counter claim that
has to be answered.
Because if a compulsory counterclaim or cross claim
is not answered they are deemed controverted
SEC. 5
Answer to third (fourth, etc.)- party complaint.
The time to answer a third (fourth, etc.) party
complaint shall be governed by the same rule as the answer to
the complaint.
Same rule to the answer in a complaint.
Section 6.
Reply. — A reply, if allowed under Section 10, Rule 6 hereof,
may be filed within fifteen (15) calendar days from service of
the pleading responded to. (6a)
Reply is only required when there is an actionable
document attached to the ANSWER.
When there is an actionable document attached to
a reply, the defendant may also file a rejoinder.
When is amendment of a reply a matter of right?
It is matter of right within 10 days.
TN!
Filing of reply is not compulsory, if there is no reply,
only matters alleged in the answer are deemed
controverted
If the answer is based on an actionable document
reply is compulsory. Because if the answer is based
on an actionable document and there is no reply, it is
deemed admitted.
How about answer to supplemental complaint?
Section 7.
Answer to supplemental complaint. — A supplemental
complaint may be answered within twenty (20) calendar
days from notice of the order admitting the same, unless a
different period is fixed by the court. The answer to the
complaint shall serve as the answer to the supplemental
complaint if no new or supplemental answer is filed. (7a)
The same rule applies as with amended complaint.
If there is no supplemental answer filed, the original
answer shall be considered the answer to the supplemental
complaint.
SEC. 8
Existing counterclaim or cross-claim
A compulsory counterclaim or a cross-claim that a
defending party has at the time he files his answer shall be
contained therein.
As what we have said Compulsory counterclaim or cross claim
must be alleged in the answer, if not, they are deemed waived.
What about if the supposed compulsory counter claim is
not yet due at the time when the answer is filed?
If it is still inexistent that is not a compulsory counter claim,
it is permissive.
Now, under section 9,
SEC. 9
Counterclaim or cross-claim arising after answer
A counterclaim or a cross-claim which either matured
or was acquired by a party after serving his pleading may, with
the permission of the court, be presented as a counterclaim or
a cross-claim by supplemental pleading before judgment.
The same with omitted counter claim or cross claim
through oversight or inadvertent, may with leave of court may
be set up as counter claim or cross claim by an amendment
before judgment.
What is the remedy if a party, for example the defendant, if
there is a difficulty in filing his answer on time?
Motion for extension of time to file an answer
But take note that this motion must be filed before the
lapse of the 15 day period. So it could be on the 15 th day or
before, because if you file it on the 16 th day, you don’t have any
time to extend.
Secondly, do not expect that that this motion is
automatically granted by the court, although, usually it is
granted by the court, but do not wait for the ruling of the court,
submit it immediately.
The court may also, upon like terms, allow an answer
or other pleading to be filed after the time fixed by these Rules.
As I was saying earlier that before the issuance of the
order, the defending party may thought that they are still
allowed to file an answer
CASE: PARAMOUNT INSURANCE CORP VS A.C.
ORDONEZ CORP, AUGUST 6, 2008.
Section 11. Extension of time to file an answer. — A
defendant may, for meritorious reasons, be granted an
additional period of not more than thirty (30) calendar days to
file an answer. A defendant is only allowed to file one (1)
motion for extension of time to file an answer.
A motion for extension to file any pleading, other than an
answer, is prohibited and considered a mere scrap of paper.
The court, however, may allow any other pleading to be filed
after the time fixed by these Rules. (11a)
Only a motion for extension to file answer is allowed.
During the trial, only those issues which are raised in
the pleadings maybe subject to presentation of
evidence.
The issues referred are those which was not
admitted.
If there are issues brought out in the trial but not
raised in the pleading, the pleading are deemed amended in
order to conform to the evidence presented during trial if the
presentation of evidence was not objected by the adverse
party.

If the adverse party objected to the presentation of
evidence because it tends to prove issues that was not raised
in the pleading/s, the court may allow the concerned party to
amend his pleading. In other words, during the time of the trial
(Judge D: Put in mind, Trial = Presentation of evidence), if
there is evidence presented that would tend to prove a fact that
was not raised in the pleading i.e. complaint or answer, and the
adverse party did not object, the pleadings of such party is
deemed amended to conform to the evidence presented.
If the adverse party objected to the presentation of
evidence as it is irrelevant because such evidence was not
alleged in the pleading, the court may direct the concerned
party to amend his pleading (complaint/answer) before he can
be allowed to present the evidence [Mercadel vs. DBP, 332
SCRA 82] Remember the case of Suagman hotel, it was about
the filing of premature complaint, if the complaint filed states no
cause of action because it was filed prematurely, Sec. 5 will
not apply as there is nothing to amend or cure because there is
no cause of action. Sec.5 finds application when there is a
cause of action but had been omitted and not when there is no
cause of action because of prematurity.
[Summary]
As a rule, only issues raised in the pleading could be
subject to presentation of evidence
If a party present evidence which tends to prove
matters not alleged in the pleading
o If there is no objection (express or implied) –
the pleading is automatically deemed
amended to conform to the evidence
presented provided that the cause of action
is not premature
o If there is objection, the court may direct the
party to amend his pleading to conform to
the evidence
Rule 11
When to File Responsive pleading
(Judge D: A matter of reading/memorizing/ take note of the
period)
Rule 12
Bill of Particulars
Bill – means a list
The purpose is to make particular or definite the
ultimate facts in the pleading.
This presupposes that there is ambiguous or vague
allegation in the pleading.
The solution is to file a Motion for Bill of Particular.
A motion is a request addressed to the court. you are
asking the court directing that party to make the
allegations more specific/particular so that the movant
can answer or reply properly.
For Example:
A complaint for annulment of marriage, the
plaintiff alleges that her marriage with the defendant is
voidable on the ground of fraud. There is no allegation
as to the circumstances what makes it fraud. There is
no statement as to the particular act of the defendant
which makes it void. The statement that the defendant
committed act constituting fraud is vague, so in order
for the defendant to make an intelligent answer, the
complainant needs to make her allegations more
definite or particular. That is the function of the bill of
particular. [Motion for Bill of Particular] The motion
should be filed to make more definite ultimate facts
and not evidentiary facts.
SEC.1
When applied for; purpose
Before responding to a pleading, a party may move
for a definite statement or for a bill of particulars of any matter
which is not averted with sufficient definiteness or particularity
to enable him properly to prepare his responsive pleading. If
the pleading is a reply, the motion must be filed within ten (10)
calendar days from service thereof. Such motion shall point out
the defects complained of, the paragraphs wherein they are
contained, and the details desired.
When should the motion for the Bill of Particulars be
filed? It should be filed before responding the pleadings.
The filing is for him to intelligently respond to the
pleading. A party may move for a definite statement or a bill of
particular of any matter which is not averred with sufficient
particularity to enable him to prepare his responsive pleading.
If the pleading is a reply, the motion should be filed within
the 10 days from service thereof.
Such motion as it requires a more particular allegation, it
should point out the defects complaint of, the paragraph to
which they are contained and the details desired.
SEC.2
Action by the court
Upon filing of the motion, it shall be brought to the
attention of the judge and the judge then may deny it outright if
there is no merit to the motion or he can set it for hearing and
allow the parties to argue.
There was a bar question where defendant received a
copy of the summons filed a motion for bill of particulars in the
morning. In the afternoon, court denied the motion, he filed
petition for certiorari for not setting his motion for hearing.
Answer is no because of Sec. 2.
SEC.3
Compliance with order
If the motion is granted either in whole or in part, the
court would then direct the parties concerned to make more
particular the allegations pointed to within 10 calendar days
from receipt of order unless a different period is allowed by the
court. The bill of particular or a more definite statement as
required may be filed in a separate or an amended pleading
serving copy thereof to the adverse party. in other words, if the
plaintiff is required to make more definite the allegation is his
complaint, then necessarily, he has to amend his complaint or
if not he can make a separate statement or pleading alleging
stating with particularity the allegations pointed to as vague.
The filing of the motion of bill of particular is not
available only to the defendant. The plaintiff may likewise file
the motion if he finds vague allegations in the answer.
What is the effect you do not comply with the orders of the
court especially when you are the plaintiff? Sec. 3, Rule 17.
Section 3. Dismissal due to fault of plaintiff. — If, for no
justifiable cause, the plaintiff fails to appear on the date of
the presentation of his or her evidence in chief on the
complaint, or to prosecute his or her action for an
unreasonable length of time, or to comply with these
Rules or any order of the court, the complaint may be
dismissed upon motion of the defendant or upon the
court's own motion, without prejudice to the right of the
defendant to prosecute his or her counterclaim in the
same or in a separate action. This dismissal shall have the
effect of an adjudication upon the merits, unless otherwise
declared by the court. (3a)
If it is answer, Sec. 4, Rule 12. You can be declared in default.
Section 4. Effect of non-compliance. — If the
order is not obeyed, or in case of insufficient compliance
therewith, the court may order the striking out of the
pleading
or the portions thereof to which the order was directed, or
make such other order as it deems just. (4)
How many days does the defendant have when the
motion is denied? The remaining period. But if the remaining
period is 2 or 3 days, automatic extension 5 days.
SEC.4
Effect of non-compliance
If the order is not obeyed, or in case of insufficient
compliance therewith, the court may order the striking out of
the pleading or the portions thereof to which the order was
directed or make such other order as it deems just.
Effect if the party directed to make the allegation in his
pleading more particular failed to comply with the order of
the court
Plaintiff – failure would cause the dismissal of the
action
Defendant – failure would cause the striking out of
the record of the answer failed or the portion thereof
SEC.5
Stay of period to file responsive pleading
After service of the bill of particulars or of a more
definite pleading, or after notice of denial of his motion, the
moving party may file his responsive pleading within the period
to which he was entitled at the time of filing his motion, which
shall not be less than five (5) days in any event.
Effect of filing of motion to the period to file answer/reply
The filing of the motion for bill of particular would be
interrupted and the party filing would have the remaining period
to submit the responsive pleading but the remaining period
should not be shorter than 5 days.
For Example:
You filed a motion for bill of particulars asking the
plaintiff to make more definite the allegations in the complaint
on the 14th day because when you received the complaint you
had difficulty understanding the same and after 2 weeks still,
you don’t understand the complaint. The court denied your
motion because according to it, the allegation is not vague and
is definite to enable the defendant to file an intelligent
responsive pleading. So, how many days are left for you to file
the responsive pleading? The answer is 5 days. There is an
automatic extension.
Do not be confused with the Neypes ruling because
the same is applicable only when there already is a decision.
There is no decision yet in this case.
SEC.6
Bill a part of pleading
A bill of particulars becomes part of the pleading for
which it is intended.
For you to understand better, we will jump to Rule 14
Rule 14
Summons
This rule tells us the service of summons
Summons – Singular; Summonses – Plural
Summons is an order coming from the court requiring the
defendant to file his answer to the complaint or the petition.
There are two purpose of serving summons:
To acquire jurisdiction over the person of the
defendant
To notify him that a case has been filed against him
so that he may be given an opportunity to be heard of
the claim against him [Sagana vs. Francisco – 602
SCRA 184]
Required in compliance with due process
When is it issued?
Section 1. Clerk to issue summons. — Unless the complaint is
on its face dismissible under Section 1, Rule 9, the court shall,
within five (5) calendar days from receipt of the initiatory
pleading and proof of payment of the requisite legal fees, direct
the clerk of court to issue the corresponding summons to the
defendants. (1a)
What are the Contents?
Section 2. Contents. — The summons shall be directed to the
defendant, signed by the clerk of court under seal, and contain:
(a) The name of the court and the names of the parties to the
action; (b)When authorized by the court upon ex parte motion,
an authorization for the plaintiff to serve summons to the
defendant; (c) A direction that the defendant answer within the
time fixed by these Rules; and (d) A notice that unless the
defendant so answers, plaintiff will take judgment by default
and may be granted the relief applied for. A copy of the
complaint and order for appointment of guardian ad litem, if
any, shall be attached to the original and each copy of the
summons. (2a)
[Evidence are now attached and judicial affidavits of the
witnesses are attached to the complaint, all documents are
now attached].
The summons shall be directed to the defendant, signed by the
clerk of court under seal and contain
the name of the court and the names of the parties to
the action;
a direction that the defendant answer within the time
fixed by these Rules;
a notice that unless the defendant so answers plaintiff
will take judgment by default and may be granted the
relief applied for.
A copy of the complaint and order for appointment of
guardian ad litem if any shall be attached to the original and
each copy of the summons.
The one who will sign in behalf of the court would be the
Clerk of Court
What would be attached to the summons?
A copy of the complaint and original of the summons
Why is it important to attach the summons in the
complaint?
So that he will have knowledge on charge against him.
CASE:
The clerk of court or process server failed to attach a copy of
the complaint. What would be the effect?
The failure to attach a copy of the complaint to the
summons or a copy of the order appointing a guardian ad litem
are mere technical defects and the service of summon vest
jurisdiction to the court over the person of the defendant, who
may there be declared in default for failure to file answer.
(EUGENIA PAGALARAN v. VALENTIN BALLATAN, ET AL -
G.R. No. 4119 March 11, 1909)
Suppose the complaint has been amended, is there a need
to serve another summons?
If there has been summons serve, there is no need.
If no summons served yet, then there is a need to
serve summons; or
Where the defendant has already been served with
summons on the original complaint BUT he has not
been declared in default - NEW summons must be
served on him if the complaint was AMENDED
because the original complaint is deemed withdrawn
due to said amendment. (Atkins Rule & Company
vs Domingo, 44 Phil 680)
Who will serve the summons?
Section 3. By whom served. — The summons may be served
by the sheriff, his or her deputy, or other proper court officer,
and in case of failure of service of summons by them, the court
may authorize the plaintiff - to serve the summons - together
with the sheriff.
In cases where summons is to be served outside the judicial
region of the court where the case is pending, the plaintiff shall
be authorized to cause the service of summons.
If the plaintiff is a juridical entity, it shall notify the court, in
writing, and name its authorized representative therein,
attaching a board resolution or secretary’s certificate thereto,
as the case may be, stating that such representative is duly
authorized to serve the summons on behalf of the plaintiff.
[2 Authorities: Authority from the board authorizing the
representative to serve the summons and authority from
the court authorizing him to serve summons]
If the plaintiff misrepresents that the defendant was served
summons, and it is later proved that no summons was served,
the case shall be dismissed with prejudice, the proceedings
shall be nullified, and the plaintiff shall be meted appropriate
sanctions. If summons is returned without being served on any
or all the defendants, the court shall order the plaintiff to cause
the service of summons by other means available under the
Rules.
Failure to comply with the order shall cause the dismissal of
the initiatory pleading without prejudice. (3a)
Not just any employee of the court. Only those court
employees wherein serving summons is part of his job. The
enumeration in Section 3 is EXCLUSIVE:
1. Sheriff
2. His deputy
3. “Other proper court officers” meaning employee of the
court where serving summons is part of his job such
as process server.
“For justifiable reasons, any suitable person
authorized by the court in issuing the summons” persons who
are not employees of the court or
employees of the court but serving summons is not
part of his job, there must be an ORDER of the court
directing him to serve summons.
For Example:
The process server retired or is absent, the
court interpreter or utility personnel may be authorized
to serve summons in addition to their regular duties
upon court order.
If defendant is member Abu Sayaf or living
on tip of Mt. Apo, court can authorize police to serve
summons to a member of Abu Sayaf.
Effect of non-compliance of serve of summons
 If the court continues to trial, the proceeding shall be
void or the judgment shall be void because the court has not
acquired jurisdiction over the defendant.
Section 4. Validity of summons and issuance of alias
summons — Summons shall remain valid until duly served,
unless it is recalled by the court. In case of loss or destruction
of summons, the court may, upon motion, issue an alias
summons. There is failure of service after unsuccessful
attempts to personally serve the summons on the defendant in
his or her address indicated in the complaint. Substituted
Section 5. Service in person on defendant. — Whenever
practicable, the summons shall be served by handing a copy
thereof to the defendant in person and informing the defendant
that he or she is being served, or, if he or she refuses to
receive and sign for it, by leaving the summons within the view
and in the presence of the defendant. (6a)
This section is very important.
Personal service vs Service in person?
Service in person means that the defendant himself should
receive the summons. Personal service anyone can receive.
--- 00 ---
Section 6. Substituted service. — If, for justifiable causes,
the defendant cannot be served personally after at least three
(3) attempts on two (2) different dates, service may be
effected:
(a) By leaving copies of the summons at the defendant's
residence to a person at least eighteen (18) years of age and
of sufficient discretion residing therein;
(b)By leaving copies of the summons at the defendant's office
or regular place of business with some competent person in
charge thereof. A competent person includes, but is not limited
to, one who customarily receives correspondences for the
defendant;
(c) By leaving copies of the summons, if refused entry upon
making his or her authority and purpose known, with any of the
officers of the homeowners’ association or condominium
corporation, or its chief security officer in charge of the
community or the building where the defendant may be found;
[Robinson v Miralles] and
(d) By sending an electronic mail to the defendant’s electronic
mail address, if allowed by the court. (7a)
Rule of thumb, service of summons or other pleadings, could
only be allowed if there is a court order.
Remember that substituted service of summons is an
exception! It can only be done if prompt service in person
cannot be done within a period of personally after
at least three (3) attempts on two (2) different dates within a
period of 30 days. Look at section 20 of this rule:
Section 20. Return. — Within thirty (30) calendar days from
issuance of summons by the clerk of court and receipt thereof,
the sheriff or process server, or person authorized by the court,
shall complete its service. Within five (5) calendar days from
service should be in the manner provided under Section 6 of
this Rule. (5a)
The effect now of a summons is similar to a warrant of arrest. If
it is returned without being served, it will now remain effective
until it is recalled or set aside by the court. Alias summons is
not needed when returned without being served. It shall remain
until served or recalled or set aside by the court.
Example if the sheriff came back wet and his clothes ripped,
that’ll be the time to serve an alias summons.
service of summons, the server shall file with the court and
serve a copy of the return to the plaintiff’s counsel, personally,
by registered mail, or by electronic means authorized by the
Rules.
Should substituted service have been effected, the return shall
state the following:
(1)The impossibility of prompt personal service within a period
of thirty (30) calendar days from issue and receipt of summons;
(2)The date and time of the three (3) attempts on at least (2)
two different dates to cause personal service and the details of
the inquiries made to locate the defendant residing thereat;
and
(3)The name of the person at least eighteen (18) years of age
and of sufficient discretion residing thereat, name of competent
person in charge of the defendant’s office or regular place of
business, or name of the officer of the homeowners’
association or condominium corporation or its chief security
officer in charge of the community or building where the
defendant may be found. (4a)
If there is improper service of summons, fatal effect, the court
cannot acquire jurisdiction over the person of the defendant
and the proceeding shall be void.
If there is improper service, the summons has to be served
again.
Section 7. Service upon entity without juridical
personality. — When persons associated in an entity without
juridical personality are sued under the name by which they
are generally or commonly known, service may be effected
upon all the defendants by serving upon any one of them, or
upon the person in charge of the office or place of business
maintained in such name. But such service shall not bind
individually any person whose connection with the entity has,
upon due notice, been severed before the action was filed. (8a)
Section 8. Service upon prisoners. — When the defendant is
a prisoner confined in a jail or institution, service shall be
effected upon him or her by the officer having the management
of such jail or institution who is deemed as a special sheriff for
said purpose. The jail warden shall file a return within five (5)
calendar days from service of summons to the defendant. (9a)
Section 9. Service consistent with international
conventions. — Service may be made through methods
which are consistent with established international conventions
to which the Philippines is a party. (n)
Hague Service Convention; if the defendant resides outside
of the country, the government of the country where defendant
is residing, can serve the summons. Central Authority who will
serve the summons from country members. We also have a
central authority here. Under the present pronouncement of the
supreme court it is the court administrator which is designated
as the central authority.
Section 10. Service upon minors and incompetents. —
When the defendant is a minor, insane or otherwise an
incompetent person, service of summons shall be made upon
him or her personally and on his or her legal guardian if he or
she has one, or if none, upon his or her guardian ad litem
whose appointment shall be applied for by the plaintiff. In the
case of a minor, service shall be made on his or her parent or
guardian. (10a)
Section 11. Service upon spouses. — When spouses are
sued jointly, service of summons should be made to each
spouse individually. (n)
Section 12. Service upon domestic private juridical entity.
— When the defendant is a corporation, partnership or
association organized under the laws of the Philippines with a
juridical personality, service may be made on the president,
managing partner, general manager, corporate secretary,
treasurer, or in-house counsel of the corporation wherever they
may be found, or in their absence or unavailability, on their
secretaries.
If such service cannot be made upon any of the foregoing
persons, it shall be made upon the person who customarily
receives the correspondence for the defendant at its principal
office.
In case the domestic juridical entity is under receivership or
liquidation, service of summons shall be made on the receiver
or liquidator, as the case may be.
Should there be a refusal on the part of the persons above-
mentioned to receive summons despite at least three (3)
attempts on two (2) different dates, service may be made
electronically, if allowed by the court, as provided under
Section 6 of this Rule. (11a)