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Monday, July 15, 2024

The court summons you

"The summons notifies the defendant that he or she has been sued."

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Summons is a mandate requiring the appearance of the defendant in the action in court under the penalty of having judgment entered (against him or her) for failure to do so. The object of the summons is to notify the defendant that he or she has been sued (Barron’s Law Dictionary).

The summons is issued by the court in a civil case to acquire jurisdiction over the person of the defendant or the person being sued. This allows the defendant to participate in the court proceedings, and be subject to its processes and judgments. Essentially, it satisfies the requirement of due process.

For the plaintiff, the issuance of summons means that he has paid the legal fees, the case has a docket number, and the court has not dismissed the case for lack of jurisdiction over the action, litis pendentia (two pending cases involving the same parties, issues and reliefs), res judicata (previous judgment), or statute of limitations under Rule 9, Section 1 of the Amended Rules of Civil Procedure (ARCP).

For the defendant, the receipt of the summons means that from that point, the time for him to file an answer is starting to run out. Under the ARCP, the period to file an Answer is 30 days. The defendant may also opt to file a Motion to Dismiss on grounds enumerated in Rule 15, Section 12 of the ARCP. If he fails to file an Answer, he can be declared in default (Section 3, Rule 9, ARCP).

However, the service of summons on the defendant is not as simple as it may appear. If the defendant is a natural person or an individual, the summons must be personally handed to him by the sheriff, deputy sheriff or process server unless the plaintiff has been authorized by the court to serve summons to the defendant (Section 3, Rule 14, ARCP).

The court may authorize the plaintiff to serve summons together with the sheriff if there was failure of service. If the summons is returned without being served to any and all the defendants, the court shall order the plaintiff to serve summons. Failure to comply with the order shall cause the dismissal of the complaint without prejudice which means that the case can be refiled again (Section 3, Rule 14, ARCP).

If the defendant refuses to receive the summons when handed to him by the sheriff, the sheriff may “tender the summons” by leaving the summons “within the view and in the presence of the defendant” (Section 5, Rule 14, ARCP). Hence, the sheriff cannot: (a) throw the summons towards the direction of the house; (b) leave it in the mailbox outside of the house; or (c) place it on a car windshield believing that it is the car of the defendant.

The primary duty of the sheriff is to serve the summons to the defendant in person. Only if the summons cannot be served personally after at least three attempts on two separate dates can the summons be served to persons other than the defendant. Service of the summons to persons other than the defendant is known as substituted service. The substituted service is only utilized if there is impossibility of personal service (Section 6, Rule 14, ARCP; People’s General Insurance Corp. v. Guansing, G.R. No. 204759, November 14, 2018).

The substituted service or service to persons other than the defendant can be made to: (a) a person at least 18 years of age and of sufficient discretion residing at the defendant’s residence; or (b) a competent person in charge of the defendant’s office which includes one who customarily receives correspondences for the defendant (Section 6, Rule 14, ARCP).

If refused entry after making his authority or purpose known, the sheriff can leave the summons to the officers of the homeowners’ association or condominium corporation or to its chief security officer in charge of the community or building where the defendant may be found (Section 6, Rule 14, ARCP). This mode of service may be availed of only if there is refusal of entry and there were at least three attempts on two separate dates.

Service of summons to a defendant by electronic means is now allowed subject to approval of the court and after several attempts to serve summons were unsuccessful. Prior to the 2020 amendment, the service of summons by electronic means is permitted only to defendant foreign juridical entities which are not registered in the Philippines (Section 14, Rule 14, ARCP).

There are also times that the defendant individual is not found and does not reside in the Philippines because he has migrated to a foreign country, or resides in another country by reason of permanent employment or marriage. In these instances, the service of summons can be made extraterritorially.

The kinds of actions that may be the subject of extraterritorial service of summons are those which involve the personal status of the plaintiff, or the property of a non-resident defendant in the Philippines (Section 17, Rule 14, ARCP). Examples are nullity or annulment of marriage, recovery of a title over a piece of land, or actions against parties or those involving properties where a writ of attachment has been issued.

The extraterritorial service of summons to a defendant individual may, by leave of court, be effected (a) out of the Philippines by personal service; (b) through international conventions to which the Philippines is a party; or (c) by publication in a newspaper of general circulation with a copy of the summons and order of the court sent by registered mail to the last known address of the defendant, or (d) by any other manner the court may deem sufficient (Section 17, Rule 14, ARCP).

There are also individual defendants who remain to be residents of the Philippines but are temporarily out or absent, such as overseas Filipino workers, those living with relatives abroad for a couple of months, or those studying abroad. The service of summons may, by leave of court, be effected in the same manner as those defendants who do not reside or are not found in the Philippines (Section 18, Rule 14, ARCP). However, jurisprudence has allowed service to those defendants that are temporarily out of the Philippines by substituted service (Montefalcon v. Vazquez, G.R. No. 165016, June 17, 2008).

If the defendant is a company, partnership or association formed or organized in the Philippines, service of summons 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 (Section 12, Rule 14, ARCP).

Hence, summons may be served to those officers personally in their homes, offices, or places where they frequently hang around or are chanced upon However, in their absence or unavailability it may be served to their secretaries. This provision is a relaxation of the old strict rule that requires service of summons be made only to the officers mentioned in the Rules.

If service of summons to those persons is unsuccessful, it shall be made upon the person who customarily receives the correspondence for the defendant company, partnership or association at its principal office (Section 12, Rule 14, ARCP), such as its mailing department. Should there be a refusal on the part of the officers of the juridical entities to receive summons for at least three (3) attempts on two (2) different dates, service may be made electronically, if permitted by the court (Section 12, Rule 14, ARCP).

There is a different Rule on service of summons, however, when the defendant is a foreign private juridical entity. If it has transacted or is doing business in the Philippines, service of summons may be made on its resident agent. If there is no such agent, service shall be on the government official designated by law to receive it, or on any of its officers, agents, directors or trustees within the Philippines (Section 14, Rule 14, ARCP).

The purpose of the issuance and service of summons is to cause the defendant to submit to the powers of the court. Instead of losing sleep and being anxious, the defendant should take it as an opportunity to explain his side of the story. The defendant should have faith in the capacity of the judicial system to dispense justice because it is one of the pillars of a free and democratic nation. 


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