SUMMONS

(RULE 14)
(A)CONCEPT
 It is a writ addressed to the defendant, directing him/her to answer
within the time fixed by the rules, the complaint filed against him,
with notice that unless he so answers, plaintiff will take judgment by
default and may be granted the relief applied for.
(B) NATURE
 Service of summons is mandatory
 Actual knowledge of the filing or pendency of an action does not
dispense with the requirement of summons
EXCEPTION:

 Where there is voluntary appearance on the part of the defendant

(c) PURPOSE

(1) In an action in personam, the purpose of the service of summons is

to acquire jurisdiction over the person of the defendant and to
comply with due process
(2) In an action in rem or quasi in rem, the purpose of the service of
summons is to comply with the requirement of procedural due
process, that is, to notify the defendant that an action has been
commenced so that he may be given an opportunity to be heard on
the claim against him/her.
(d) PLEADINGS WHERE SUMMONS IN NOT REQUIRED FOR
PURPOSES OF ANSWER THERETO
(1) Counterclaim, whether compulsory or permissive
(2) Complaint-in-intervention
(3) Amended complaint, except if defendant was already served with
summons on the original complaint
(e) WHEN TO ISSUE SUMMONS

 Within five (5) calendar days from receipt of the initiatory pleading
and proof of payment of the requisite legal fees, the court shall direct
the clerk of court to issue the corresponding summons
EXCEPTION:
 Where from the allegations in the complaint, the action is dismissible
under Section 1, Rule 9 on the following grounds:
(1) lack of jurisdiction over the subject matter of the
action;
(2) litis pendentia;
(3) res judicata; or
(4) statute of limitations
(f) CONTENTS OF SUMMONS

 The summons shall be directed to the defendant, signed by the Clerk

of Court under seal and contain:
(1) the name of the court and the parties to the action;
(2) when authorized by the court upon ex parte motion, an
authorization for the plaintiff to serve summons to the defendant
(3) A direction that the defendant answer within the time fixed by the
rules;

(4) Notice that unless the defendant so answers, plaintiff will take
judgment by default and may be granted the relief applied for
(g) DOCUMENTS ACCOMPANYING THE SUMMONS
 The following shall be attached to the original and each copy of the
summons:

(1) copy of the complaint; and

(2) order for appointment of guardian ad litem, if any
(h) PERSONS AUTHORIZED TO SERVE SUMMONS
(1) court sheriff or his deputy;
(2) other proper court officer;
(3) In case of failure of service of summons by the first two
(sheriff or deputy sheriff or other proper court officer), the
plaintiff, together with the Sheriff.
 Requires authority of the court
(4) 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.
(5) If summons is returned without being served on any or all of the
defendants, the court shall order the plaintiff to cause the service of
summons by other means available under the rules.
 Should be distinguished from No. 3:
(a) in No. 3 the service may be done by the plaintiff,
together with the Sheriff; while in No. 5, the service is done by
the plaintiff only;

(b) In No. 3, no return of service of summons has yet been

made; while No. 5 applies only if summons is returned without
being served.
 (i) EFFECT OF NON-COMPLIANCE WITH THE ORDER
DIRECTING PLAINTIFF TO CAUSE SERVICE OF
SUMMONS

 Failure to comply with the order shall cause the dismissal of the
initiatory pleading without prejudice.
 Since the defendant has not yet been served with summons, the
dismissal is muto proprio ordered by the court (Section 3, Rule 17).
QUERY:
(1) Does the rule apply if the plaintiff tried but failed to cause the
service of summons by other means available under the rules?

(2) What should the plaintiff do if the defendant cannot be found in

his/her office or residential address indicated in the complaint and
whose email address or facsimile number are unknown and the
action involved is one in personam?
(j) RULE IF PLAINTIFF IS A JURIDICAL ENTITY

 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.
(k) EFFECT OF PLAINTIFF’S MISREPRESENTATION
 If plaintiff misrepresents that the defendant was served summons, and
it is later proved that no summons was served:
(1) the case shall be dismissed with prejudice;
(2) the proceedings nullified; and
(3) plaintiff shall be meted appropriate sanctions.
QUERY:
 Is the dismissal muto proprio or upon motion of the defendant or
both?

 Section 3, Rule 14 is silent

ANSWER:

 It is humbly submitted that the dismissal may either be muto proprio

or upon motion of the defendant, as the misrepresentation of the
plaintiff is deemed a violation of the Rules of Court which is one of
the grounds for dismissal under Section 3, Rule 17.
(l) LIFE-SPAN OF SUMMONS

 Unlike a search warrant that automatically expires in ten (10) days,

summons shall remain valid until duly served, unless recalled by the
court.
 As long as the summons is not yet served, and not recalled by the
court, issuance of an alias summons is improper.
(m) WHEN ISSUANCE OF ALIAS SUMMONS PROPER

 In case of loss or destruction of summons, the court may, upon

motion, issue an alias summons.

 Failure of service is not a ground for issuance of an alias summons

(n) MODES OF SERVICE OF SUMMONS
(1) PERSONAL SERVICE
 Whenever practicable, the summons shall be served:
(a) by handing copy of the summons and informing the
defendant that he/she being served; or
(b) if the defendant refuses to receive and sign for it, by
leaving the summons within the view and in the presence of
the defendant.
(2) 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 qt least eighteen (18) years of age and of sufficient age
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, the one who
customarily receives correspondences for the defendant.
(c) By leaving copies of the summons, if refused entry upon making
his/her authority and purpose known, with any of the officers of the
homeowner’s association or condominium corporation, or its chief
security officer in charge of the community or the building where
the defendant may be found;
(d) by sending an electronic mail to the defendant’s electronic mail
address, if allowed by the court.

 court order is required before service by electronic mail can be

effected.
(o) SPECIFIC RULES ON HOW AND UPON WHOM SUMMONS
MAYBE SERVED
(1) 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 effected upon all the defendants:
(a) by serving upon any of them them; or
(b) upon the person in charge of the office or place of business
maintained in the name of the entity with whom the defendants are
associated.

 The foregoing two (2) modes of service shall not bind individually
any person whose connection with the entity has, upon due notice,
been served before the action was filed.
(2) SERVICE UPON PRISONERS

 Service shall be effected upon the detained prisoner by the officer

having the management of such jail or institution who is deemed a
special sheriff for the purpose
 The jail warden shall file a return within five (5) calendar days from
service of summons to the defendant.
(3) SERVICE CONSISTENT WITH INTERNATIONAL
CONVENTION

 Service may be made through methods which are consistent with

established international conventions to which the Philippines is a
party.
 Does not specify the kind of cases and the circumstances this mode of
service of summons applies
(4) SERVICE UPON MINORS AND INCOMPETENTS
 Where the defendant is a minor, insane or incompetent, service of
summons shall be made:
(a) upon him/her personally and on his or her legal guardian if he/she
has one; or
(b) if none, and upon his/her guardian ad litem whose appointment
shall be applied for by the plaintiff;
(c) In case of a minor, service shall be made on his/her parent
or guardian.
 The way Section 10, Rule 14 is worded, it appears that the first two
(2) manners of service apply only to insane or incompetent defendant
where service shall be made both upon the defendant and the guardian
or guardian ad litem.

 Where the defendant is a minor, service upon his/her parent or

guardian is enough, without need of serving the summons upon the
minor himself/herself.
(5) SERVICE UPON SPOUSES

 When spouses are sued jointly, service of summons should be made to

each spouse individually.
(6) SERVICE UPON DOMESTIC PRIVATE JURIDICAL ENTITY
 Service shall be made:
(a) the President
(b) general manager
(c) corporate secretary
(d) treasurer; or
(e) in-house counsel of the corporation
 wherever they may be found ; not necessarily at their office
(f) in the absence or unavailability of the president, managing partner,
general manager, corporate secretary; treasurer or in-house counsel,
service may be made on their secretaries.

QUERY:
 May the summons be served upon the secretary wherever he/she may be
found?
(g) if service cannot be made upon the president, managing partner,
general manager, corporate secretary, treasurer, in-house counsel
and their secretaries, service shall be made upon the person who
customarily receives correspondences for the defendant at its
principal place of business.
(h) In case the domestic private juridical entity is under receivership or
liquidation, service of summons shall be made upon the receiver or
liquidator, as the case may be.
 Should there be refusal on the part of the above-mentioned persons 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, Rule 14 on substituted service.
(7) SERVICE UPON FOREIGN PRIVATE JURIDICAL ENTITY

(A) Where the foreign private juridical entity is transacting or doing

business in the Philippines, as defined by law, service may be made:

(1) On its resident agent designated in accordance with law for that
purpose;
(2) If there be no such agent, on the government official designated by
law to that effect; or

(3) on any of its officers, agents (other than the designated agent),
directors or trustees within the Philippines.
 Service upon the resident agent is the preferred mode of service.

 It is only when no such resident agent designated by the foreign

private entity that service may be made upon the government official
or the defendant’s officers, agents, directors or trustees within the
Philippines.
 the foregoing rule applies only when the foreign private juridical
entity is transacting or doing business in the Philippines.
 A foreign private juridical entity is deemed to be transacting or doing
business in the Philippines when:
a. soliciting orders, service contracts;
b. opening offices, whether called “liaison” offices or branches;
c. appointing representatives or distributors domiciled in the
Philippines or who in any calendar year stay in the country for a
period or periods totaling one hundred eighty (180) days or more;
d. participating in the management, supervision or control of any
domestic business, firm, entity, or corporation in the Philippines; and
e. any other act or acts that imply a continuity of commercial dealings or
arrangements, and contemplate to that extent the performance of acts
or works; or the exercise of some of the functions normally incident
to, and in progressive protection of, commercial gain or of the
purpose and object of the business organization (R.A. 7042, Foreign
Investment Act of 1991)
(B) Where the foreign private juridical entity is not registered in the
Philippines, or has no resident agent but has transacted or doing
business in the Philippines, as defined by law, such service, with
leave of court, be effected outside of the Philippines (extra-territorial
service) through any of the following means:
(1) By personal service through the appropriate court in the foreign
country with the assistance of the department of foreign affairs;
(2) By publication once in a newspaper of general circulation in the
country where the defendant may be found and by serving a copy by
registered mail mail at the last known of the defendant;
(3) By facsimile;
(4) By electronic means with the prescribed proof of service; or
(5) By such other means as the court, in its discretion, may direct.
QUERY:

 How is the second paragraph of Section 14, Rule 14 any different

from the first paragraph on the service of summons upon the
defendant foreign private entity transacting or doing business in the
Philippines but has no designated resident agent in the Philippines?
ANSWER:
 To reconcile the first and the second paragraphs, it would appear that
when a foreign private juridical entity is transacting or doing business
in the Philippines, but has no designated resident agent in the
Philippines, summons may be served:

(1) upon the government official designated by law to receive

summons on behalf of foreign private juridical entity;
 (2) upon any of the entity’s officers, agent (other than resident
agent), directors or trustees;
(3) By extra-territorial service, through:
(a) personal service coursed through the appropriate court in
the foreign country with the assistance of the department of
foreign affairs;
(b) by publication once in a newspaper of general
circulation in the country where the defendant may be found
and by serving a copy of the summons and the court by registered
mail at the last known address of the defendant.
(c) By facsimile
(d) By electronic means
(e) By such other means as the court may direct.
QUERY:

 How is service of summons effected upon a foreign private juridical

entity not doing business, as defined by law, in the Philippines?
(8) SERVICE UPON PUBLIC CORPORATION
(a) where the defendant is the Republic of the Philippines, service
shall be made upon the Office of the Solicitor General (OSG)
(b) where the defendant is a province, city or municipality, or like
public corporation, service may be effected on its executive head,
or on such other officer/s as the law or the court may direct.
(9) SERVICE UPON DEFENDANT WHOSE IDENTITY OR
WHEREABOUTS ARE UNKNOWN
(a) IN WHAT ACTIONS APPLICABLE
 In any action, whether in personam, in rem or quasi in rem
 Where the defendant is designated as an unknown owner, or the like,
or whenever his/her whereabouts are unknown and cannot be
ascertained by diligent inquiry, within ninety (90) calendar days from
the commencement of the action
(b) MODE OF SERVICE

 Service may, with leave of court, be effected by publication in a

newspaper of general circulation and in such places and for such
period as the court may order
(c) PERIOD TO FILE ANSWER

 Not less than sixty (6) days to file answer from the time summons by
publication is effected.
(10) EXTRA-TERRITORIAL SERVICE

(A) IN WHAT ACTIONS APPLICABLE

(1) Where the defendant does not reside and is not found
in the Philippines; and the
(2) The action is one that:
(a) affects the personal status of the plaintiff; or
(b) relates to, or the subject of which is, property within the Philippines,
in which the defendant has or claims a lien or interest, actual or
contingent or in which the relief demand consists, wholly or in part,
in excluding the defendant from any interest therein; or

(c) Where the property of the defendant has been attached within the
Philippines.
 The action contemplated by “extra-territorial” service of summons
under Section 7, Rule 14 are either action in rem or action quasi in
rem.

 The rule does not apply if the action is in personam, where service of
summons is required to be effected within the Philippines.
(B) MODES OF EXTRA-TERRITORIAL SERVICE OF SUMMONS
 Service may, by leave of court, be effected out of the Philippines by:
(1) personal service;
(2) by publication is a newspaper of general circulation in such places
and for such time as the court may order, in which case a copy of
the summons and the order of the court granting such leave shall
be sent by registered mail to the last known address of the
defendant; or
(3) in any other manner the court may deem sufficient.
(C) PERIOD TO FILE ANSWER

 Sixty (60) days from extra-territorial service of summons within

which to file answer
(11) SERVICE UPON RESIDENT BUT TEMPORARILLY OUT OF
THE PHILIPPINES
(a) IN WHAT ACTION APPLICABLE

 In any action, whether in personam, in rem or quasi in rem

 Where the defendant who ordinarily resides in the Philippines, but

who is temporarily out of it
(b) MODE OF SERVICE
 Service may, with leave of court, be also effected out of the
Philippines as under Section 17 otherwise referred to as “extra-
territorial” service of summons.
 Not an exclusive mode of service of summons upon a resident
defendant but temporarily outside
 Other modes may be resorted to like substituted service of summons
(c) PERIOD TO FILE ANSWER

 Not less than sixty (60) calendar days from service of summons by
publication is effected within which to file Answer.
(12) SUMMONS BY PUBLICATION
(a) IN WHAT ACTIONS ALLOWED

 Summons by publication is allowed only in actions in rem or quasi in

rem
 It is not allowed in actions in personam
(b) EXCEPTIONS
(1) in any case where the identity or whereabouts of a
resident defendant are unknown (Section 16, Rule 14);
(2) In any case when a defendant is a resident of the
Philippines but temporarily outside of the Philippines (Section
18, Rule 14);
(3) When the defendant is a foreign private juridical
entity not registered in the Philippines or has no resident
agent but has transacted or doing business in the Philippines
(Section 14, second paragraph, Rule 14)
(13) RETURN OF SERVICE OF SUMMONS
(a) WHEN SERVICE OF SUMMONS BE COMPLETED

 service of summons must be completed within thirty (30) days

from issuance of summons by the Clerk of Court and the receipt
thereof.
(b) WHEN RETURN OF SERVICE BE MADE

 Within five (5) days from service of summons, the server shall file
with the court a return, serving a copy thereof to the plaintiff’s
counsel, personally, by registered mail, or by electronic means
authorized by the rules.
(c) WHAT THE RETURN OF SERVICE SHALL CONTAIN WHEN
SERVICE WAS MADE BY SUBSTITUTED SERVICE
 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
two (2) different dates to cause personal service and the details of
the inquiries made to locate the defendant; and
(3) the name of the person at least eighteen (18) years old and of
sufficient age and discretion residing at the residence of the
defendant, then name of the person in charge of the defendant’s
office or regular place of business, or name of the officer of the
homeowner’s association or condominium corporation or its chief
security officer in charge of the community or building where the
defendant may be found.
(14) PROOF OF SERVICE OF SUMMONS
(a) GENERAL RULE
 Proof of service shall be made in writing by the server and shall set
forth:
(1) the manner, the place, and date of service;
(2) specify any papers which have been served;
(3) the process of service
(4) the name of the person who received the summons;

(5) shall be sworn to when made by a person other than the sheriff or
his/her deputy
(b) IF SERVICE WAS BY ELECTRONIC MAIL

 A printout of the email, with a copy of the summons as served, and

the affidavit of the person mailing.
(c) IF SERVICE WAS BY PUBLICATION
 Service of summons by publication may be proved:

(1)by an affidavit of the publisher, editor, business or advertising

manager, which shall attach the publication; and
(2) by an affidavit showing the deposit of a copy of the
summons and order of publication in the post office, postage
prepaid, directed to the defendant by registered mail to
his/her last known address.
(15) VOLUNTARY APPEARANCE

(a) CONSEQUENCE OF VOLUNTARY APPEARANCE

 The defendant’s voluntary appearance in the action shall be equivalent

to service of summons
 The inclusion in the motion to dismiss of other grounds aside from
lack of jurisdiction over the person of the defendant shall be deemed a
voluntary appearance.
NOTE:
 The rule that “the inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the defendant shall
be deemed a voluntary appearance” has no practical effect, because
lack of jurisdiction over the person of the defendant is no longer a
ground for a motion to dismiss.
QUERY:

 Since lack of jurisdiction over the person of the defendant (improper

service of summons) is not a ground for a motion to dismiss, but
should be raised in the answer as an affirmative defense, will the
inclusion in the answer of other affirmative defenses aside from lack
of jurisdiction over the person of the defendant amount to voluntary
appearance?
(b) CONSEQUENCE WHEN A LAWYER MAKES A SPECIAL
APPEARANCE

 Where the summons is improperly served and a lawyer makes a

special appearance on behalf of the defendant to, among others,
question the validity of service of summons, the counsel shall be
deputized by the court to serve summons on his/her client.
NOTE:
 This provision does not have any practical effect. When a lawyer
makes a special appearance on behalf of the defendant to question the
validity of service of summons, he is effectively filing a motion to
dismiss, which cannot be done because improper service of summons
is not a ground for a motion to dismiss.
 The only way by which the defendant can question the validity of the
service of summons is to raise it as an affirmative defense in the
answer, which can hardly be considered as a special appearance.