Remedial Law Review 1 Assignment September 8, 2018

Explain briefly your answer. Submit on September 12, 2018.

(A) What is a summons?

SUMMONS (Rule 14)

(1) Summons is a writ or process issued and served upon the defendant in a civil action for
the purpose of securing his appearance therein.
(2) The service of summons enables the court to acquire jurisdiction over the person of the
defendant. If there is no service of summons, any judgment rendered or proceedings had in
a case are null and void, except in case of voluntary appearance(Echevarria vs. Parsons
Hardware, 51 Phil. 980). The law requiring the manner of service of summons in
jurisdictional (Toyota Cubao vs. CA, GR 126321, Oct. 23, 1997).

(B) What is the purpose of summons in relation to actions in personam, and in rem or quasi
in rem?

Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem
(1) In an action in personam, the purpose of summons is not only to notify the defendant of
the action against him but also to acquire jurisdiction over his person(Umandap vs. Sabio,
Jr., 339 SCRA 243). The filing of the complaint does not enable the courts to acquire
jurisdiction over the person of the defendant. By the filing of the complaint and the payment
of the required filing and docket fees, the court acquires jurisdiction only over the person of
the plaintiff, not over the person of the defendant. Acquisition of jurisdiction over the latter
is accomplished by a valid service of summons upon him. Service of summons logically
follows the filing of the complaint. Note further that the filing of the complaint tolls the
running of the prescriptive period of the cause of action in accordance with Article 1155 of
the Civil Code.
(2) In an action in rem or quasi in rem, jurisdiction over the defendant is not required and
the court acquires jurisdiction over an action as long as it acquires jurisdiction over the res.
The purpose of summons in these actions is not the acquisition of jurisdiction over the
defendant but mainly to satisfy the constitutional requirement of due process (Gomez vs.
CA, 420 SCRA 98).

Purposes of summons
1. Actions in personam
a. To acquire jurisdiction over the person of the defendant; and
b. To give notice to the defendant that an action has been commenced against him (Umandap v.
Sabio, Jr., G.R. No. 140244, August 29, 2000).

2. Actions in rem and quasi in rem – not to acquire jurisdiction over the defendant but mainly to
satisfy the constitutional requirement of due process (Gomez v. CA, G.R. No. 127692, March 10,
2004).

II

The plaintiff, a Manila resident, sued the defendant, a resident of Malolos, Bulacan, in the
RTC-Manila for a sum of money. When the sheriff tried to serve the summons with a copy of the
complaint on the defendant at this Bulacan residence, the sheriff was told that the defendant had
gone to Manila for business and would not be back until the evening of that day. So, the sheriff
served the summons, together with a copy of the complaint, on the defendant‘s 18-year-old daughter,
who was a college student. For the defendant‘s failure to answer the complaint within the
reglementary period, the trial court, on motion of the plaintiff, declared the defendant in default. A
month later, the trial court rendered judgment holding the defendant liable for the entire amount
p[rayed for in the complaint. After the judgment had become final, a writ of execution was issued by
the court. As the writ was returned unsatisfied, the plaintiff filed a motion for an order requiring the
defendant to appear before it and to be examined regarding his property and income. How should
the court resolve the motion?

SUGGESTED ANSWER:
The RTC-Manila should deny the motion because it is in violation of the rule that no
judgment obligor shall be required to appear before a court, for the purpose of examination
concerning his property and income, outside the province of city in which such obligor
resides. In this case, the judgment obligor resides in Bulacan. (Rule 39, sec.36).

III

Summons was issued by the MM Regional Trial Court and actually received on time by the
defendant from his wife at their residence. The sheriff‘s return of proof of service filed with the court
in sum states that the summons, with attached copy of the complaints, was served on defendant at
his residence thru his wife, a person of suitable age and discretion then residing therein. Defendant
moved to dismiss on the ground that the court had no jurisdiction over his person as there was no
valid service of summons on him because the sheriff‘s return on proof of service did not show that
the sheriff first made a genuine attempt to serve the summons on defendant personally before
serving it thru his wife. Is the motion to dismiss meritorious? What is the purpose of summons and
by whom may it be served? Explain.

SUGGESTED ANSWER:
The motion to dismiss is not meritorious because the defendant actually received the
summons on time from his wife. Service on the wife was sufficient. (Boticano v. Chu, 148
SCRA 541 [1987]). It is the duty of the court to look into the sufficiency of the service. The
sheriffs negligence in not stating in his return that he first made a genuine effort to serve the
summons on the defendant, should not prejudice the plaintiff. (Mapa v. Court of Appeals, 214
SCRA 417/1992). The purpose of the summons is to inform the defendant of the complaint
filed against him and to enable the court to acquire jurisdiction over his person. It maybe
served by the sheriff or his deputy or any person authorized by the court. ALTERNATIVE
ANSWER: Yes. The motion to dismiss is meritorious. Substituted service cannot be effected
unless the sheriffs return shows that he made a genuine attempt to effect personal service
on the husband.

IV
Tina Guerrero filed with the Regional Trial Court of Biñan, Laguna, a complaint for sum of
money amounting to P1 million against Carlos Corro. The complaint alleges, among others, that
Carlos borrowed from Tina the said amount as evidenced by a promissory note signed by Carlos
and his wife, jointly and severally. Carlos was served with summons which was received by Linda,
his secretary. However, Carlos failed to file an answer to the complaint within the 15-day
reglementary period. Hence, Tina filed with the court a motion to declare Carlos in default and to
allow her to present evidence ex parte. Five days thereafter, Carlos filed his verified answer to the
complaint, denying under oath the genuineness and due execution of the promissory note and
contending that he has fully paid his loan with interest at 12% per annum.
(a) Was the summons validly served on Carlos?

ALTERNATIVE ANSWER:
The summons was not validly served on Carlos because it was served on his
secretary and the requirements for substituted service have not been followed, such as a
showing that efforts have been exerted to serve the same on Carlos and such attempt has
failed despite due diligence (Manotoc v. CA, G.R. No. 130974, August 16, 2006; AngPing v.
CA, G.R. No. 126947, July 15, 1999).
ALTERNATIVE ANSWER:
Service of Summons on Carlos was validly served upon him if the Return will show
that it was done through Substituted Service because the defendant can not be served
personally within a reasonable time despite diligent efforts made to serve the summons
personally. Linda, the secretary of defendant Carlos, must likewise be shown to be a
competent person in charge of defendant's office where summons was served (Sec. 7, Rule
14).

(b) If you were the judge, will you grant Tina‘s motion to declare Carlos in default?

ALTERNATIVE ANSWER:
If I were the judge, I will not grant Tina's motion to declare Carlos in default because
summons was not properly served and anyway, a verified answer to the complaint had
already been filed. Moreover, it is better to decide a case on the merits rather than on
technicality.
ALTERNATIVE ANSWER:
Yes. If it was shown that summons was validly served, and that the motion to declare
Carlos in default was duly furnished on Carlos, and after conducting a hearing on the
same motion.

V.

Lani filed an action for partition and accounting in the Regional Trial Court (RTC) of Manila
against her sister Mary Rose, who is a resident of Singapore and is not found in the Philippines.
Upon motion, the court ordered the publication of the summons for three weeks in a local tabloid,
Bulgar. Linda, an OFW vacationing in the Philippines, saw the summons in Bulgar and brought a
copy of the tabloid when she returned to Singapore. Linda showed the tabloid and the page
containing the summons to Mary Rose, who said, “Yes, I know, my kumara Anita scanned and e-
mailed that page of Bulgar to me!”

Did the court acquire jurisdiction over Mary Rose?

SUGGESTED ANSWER:
Partition is an action quasi in rem. Summons by publication is proper when the
defendant does not reside and is not found in the Philippines, provided that a copy of the
summons and order of the court are sent by registered mail to the last known address of the
defendant (Sec. 15, Rule 14). Publication of the notice in Bulgar, a newspaper of general
circulation, satisfies the requirements of summons by publication (Perez vs. Perez, G.R. No
145368, 28 March 2005).

VI

(A) What is a motion?

SUGGESTED ANSWER:
It is an application for relief other than by a pleading (Sec.1, Rule 15)

(B) What are the classifications of motions? Explain briefly each.

ANSWER:

Kinds of motions
1. Motion ex parte – One which does not require that the parties be heard and which the
court may act upon without prejudicing the rights of the other party
(2002 Bar );
2. Litigated motion – One which requires parties to be
heard before a ruling on the motion is made by a
court (e.g. motion to dismiss and motion for
summary judgment) (Riano, 2014);
3. Pro forma motion – One which does not satisfy the
requirements of the rules and one which will be
treated as a motion intended to delay the
proceedings (Marikina Development Corporation v.
Flojo, G.R. No. 110801, December 8, 1995).

VII

The Regional Trial Court rendered a judgment against ST, copy of which was received by his
counsel on February 28, 2000. On March 10, 2000, ST, through counsel, filed for a motion for
reconsideration of the decision with notice to the Clerk of Court submitting the Motion for
Reconsideration of the court. On March 15, 2000, realizing that the motion lacked a notice
of hearing, ST‘s counsel filed a supplemental pleading. Was the Motion for Reconsideration filed
within the reglementary period?

SUGGESTED ANSWER:
Yes, because the last day of filing a motion for reconsideration was March 15 if
February had 28 days or March 16 if February had 29 days. Although the original motion for
reconsideration was defective because it lacked a notice of hearing, the defect was cured
on time by its filing on March 15 of a supplemental pleading, provided that motion was set
for hearing and served on the adverse party at least three (3) days before the date of
hearing.(Sec. 4, Rule 15).

VIII

(a) What are pro-forma motions?

SUGGESTED ANSWER:
It is that which does not comply with the rules on motion and is considered as one
filed merely to delay the proceedings. Such motion, if filed, is not entitled to judicial
cognizance, and does not stop the
running of the period for filing the requisite pleading.
(b) What is the effect of non-compliance with the order of a bill of particulars?

SUGGESTED ANSWER:

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. (Sec. 4, Rule 12).

IX

Within the period for filing a responsive pleading, the defendant filed a motion for bill of
particulars that he set for hearing on a certain date. However, the defendant was surprised to find
on the date set for hearing that the trial court had already denied the motion on the day of the filing,
stating that the allegations of the complaint were sufficiently made.
 (a) Did the judge gravely abuse his discretion in acting on the motion without waiting for the
hearing set for the motion?

SUGGESTED ANSWER:
NO, the judge did not gravely abuse his discretion when he denied the motion for bill
of particulars without waiting for the hearing set for the motion. Section 2, Rule 12 of the
Rules of Court authorizes the court to either deny or grant said motion outright upon the clerk
of court bringing such motion to the attention of the court. The motion may lack merit.

(b) If the judge grants the motion and orders the plaintiff to file and serve the bill of particulars,
can the trial judge dismiss the case if the plaintiff does not comply with the order?

SUGGESTED ANSWER:

YES, the trial judge can dismiss the case if the plaintiff failed to comply with the court’s
order to file and serve the needed bill of particulars. Section 4, Rule 12 of the Rules of Court
authorizes the court to order the striking out of the pleading affected, hence the dismissal of
the complaint. To the same end is the provision of Section 3, Rule 17 of the Rules when
plaintiff fails to comply for no justifiable cause with any order of the court or with the Rules.

SUGGESTED ANSWER:
Yes, the judge may dismiss the case for failure of the plaintiff to comply with its order
(Sec. 3, Rule 17) or order the striking out of the pleading and may issue any other order at
its discretion (Sec. 4, Rule 12).

The plaintiff sued the defendant in the RTC for damages allegedly caused by the latter‘s
encroachment on the plaintiff‘s lot. In his answer, the defendant denied the plaintiff‘s claim and
alleged that it was the plaintiff who in fact had encroached on his (defendant‘s) land. Accordingly,
the defendant counterclaimed against the plaintiff for damages resulting from the alleged
encroachment on his lot. The plaintiff filed an ex parte motion for extension of time to answer the
defendant‘s counterclaim, but the court denied the motion on the ground that it should have been set
for hearing. On the defendant‘s motion, therefore, the court declared the plaintiff in default on the
counterclaim. Was the plaintiff validly declared in default? Why?

SUGGESTED ANSWER:
No, the plaintiff was not validly declared in default. A motion for extension of time to
file an answer may be filed ex parte and need not be set for hearing. [Amante vs. Sunga, 64
SCRA 192 (1975)].
ALTERNATIVE ANSWER:
The general rule is that a counterclaim must be answered within ten (10) days from
service. (Rule 11, sec. 4). However, a counterclaim that raises issues which are deemed
automatically joined by the allegations of the Complaint need not be answered. [Gojo v.
Goyala, 35 SCRA 557 (1970)]. In this case, the defendant’s counterclaim is a compulsory
counterclaim which arises out or is connected with the transaction and occurrence
constituting the subject matter of the plaintiff’s claim. It raises the same issue of who
encroached on whose land. Hence, there was no need to answer the counterclaim.

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