CIVIL PROCEDURE
9) Answer to supplemental complaint
" within 10 days from notice of the order admitting the supplemental complaint unless a different period is fixed by the court.
MANNER OF FILING
By PERSONAL SERVICE or by REGISTERED MAIL.
The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by registered mail (Registry Service). In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case (Sec. 3, Rule 13).
MODES OF SERVICE
There are two modes of service of pleadings, judgments, motions, notices, orders, judgments and other papers:
a) personally, or b) by mail.
However, if personal service and serviced by mail cannot be made, service shall be done by substituted service.
PERSONAL SERVICE
It is the preferred mode of service. If another mode of service is used other than personal service, the service must be accompanied by a written explanation why the service of filing was not done personally. Exempt from this explanation are papers emanating from the court. A violation of this explanation requirement may be a cause for the paper to be considered as not having been filed (Sec. 11, Rule 13).
Personal service is made by:
a) delivering a copy of the papers served personally to the party or his counsel, or
b) by leaving the papers in his office with his clerk or a person having charge thereof, or
c) If no person is found in the office, or his office is not known or he has no office, then by leaving a copy of the papers at the party’s or counsel‘s residence, if known, with a person of sufficient age and discretion residing therein between eight in the morning and six in the evening (Sec. 6, Rule 13).
SERVICE BY MAIL
The preferred service by mail is by registered mail. It is deemed complete upon actual receipt by the addressee or
after 5 days from the date he received the first notice of the postmaster whichever is earlier. Service by ordinary mail may be done only if no registry service is available in the locality of either the sender or the addressee (Sec. 7, Rule 13).
It shall be done by depositing the copy in the post office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, or otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered.
SUBSTITUTED SERVICE (FILING)
This mode is availed of only when there is failure to effect service personally or by mail. This failure occurs when the office and residence of the party or counsel is unknown.
It is effected by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail (Sec. 8, Rule 13).
Substituted service is complete at the time of delivery of the copy to the clerk of court.
SERVICE OF JUDGMENTS, FINAL ORDERS OR RESOLUTIONS
Final orders or judgments shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, final orders or judgments against him shall be served upon him also by publication at the expense of the prevailing party (Sec. 9).
PRIORITIES IN MODES OF SERVICE AND FILING
" Personal service is the preferred mode of service.
" The preferred service by mail is by registered mail.
" The following papers are required to be filed in court and served upon the parties affected: (a) Judgments;
(b) Resolutions; (c) Orders; (d) Pleadings subsequent to the complaint; (e) Written motions; (f) Notices; (g) Appearances; (h) Demands; (i) Offers of judgment; (j) Similar papers (Sec. 4, Rule 13).
WHEN SERVICE IS DEEMED COMPLETE Personal service is deemed complete upon the actual delivery following the above procedure (Sec. 10, Rule 13).
Service by ordinary mail is deemed complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. On the other hand, service by
registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever is earlier (Sec.
8, Rule 13).
Substituted service is complete at the time of delivery of the copy to the clerk of court.
PROOF OF FILING AND SERVICE PROOF OF FILING
The filing of a pleading or paper is proved by its existence in the record. If it is not in the record
1) If filed PERSONALLY:
" Proved by the written or stamped acknowledgement of its filing by the clerk of court on a copy of the same; or
2) If filed by REGISTERED MAIL:
" Proved by the registry receipt AND the affidavit of the person who did the mailing with a full statement of:
a) The date and place of depositing the mail in the post office in a sealed envelope assessed to the court;
b) With postage fully paid; and c) With the instructions to the
postmaster to return the mail to the sender after 10 days if undelivered.
PROOF OF SERVICE
1) Proof of personal service shall consist of:
" the written admission of the party served; or
" The official return of the server; or
" The affidavit of the party serving (in case of refusal to receive), containing full information of the date, place and manner of service (Sec. 13, Rule 13).
2) Proof of service by registered mail
" Shall be shown by the affidavit of the mailer showing compliance with Sec. 7, Rule 13 and the registry receipt issued by the mailing office and present the document returned or the card.
3) Proof of service of ordinary mail
" Service shall be proved by affidavit of the mailer showing compliance with Sec. 7, Rule 13
AMENDMENT (RULE 10)
AMENDMENT AS A MATTER OF RIGHT A plaintiff has the right to amend his complaint once at any time before a responsive pleading is served by the other party or in case of a reply to which there is no responsive pleading, at any time within ten (10) days after it is served (Sec. 2, Rule 10).
Thus, before an answer is served on the plaintiff, the latter may amend his complaint as a matter of right for whatever reasons as it may be, even to correct the error of judgment. The defendant may also amend his answer, also as a matter of right, before a reply is served upon him. (Sec. 2 refers to an amendment made before the trial court, not to amendments before the CA).
The CA is vested with jurisdiction to admit or deny amended petitions filed before it. Hence, even if no responsive pleading has yet been served, if the amendment is subsequent to a previous amendment made as a matter of right, the subsequent amendment must be with leave of court.
So you can amend the complaint to correct the error of jurisdiction as a matter of right (without leave of court) before a responsive pleading is served even though there is already a motion to dismiss filed for lack of jurisdiction. The court should deny the motion since such motion is not a responsive pleading. Note: The amendment as a matter of right should be filed before the order to dismiss becomes final.
AMENDMENTS BY LEAVE OF COURT Leave of court is required for substantial amendment made after service of a responsive pleading (Sec. 3, Rule 10). The plaintiff, for example, cannot amend his complaint by changing his cause of action or adding a new one without leave of court.
After a responsive pleading is filed, an amendment to the complaint may be substantial and will correspondingly require a substantial alteration in the defenses of the adverse party. The amendment of the complaint is not only unfair to the defendant but will cause unnecessary delay in the proceedings. Leave of court is thus, required.
Where no responsive pleading has yet been served, no defenses would be altered. The amendment of the pleading will not then require leave of court.
FORMAL AMENDMENT
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 (Sec. 4, Rule 10).
AMENDMENTS 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. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues.
If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made (Sec. 5, Rule 10).
DIFFERENT FROM SUPPLEMENTAL PLEADINGS
A supplemental pleading is one which sets forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented.
The filing of supplemental pleadings requires leave of court. The court may allow the pleading only upon such terms as are just. This leave is sought by the filing of a motion with notice to all parties (Sec. 6, Rule 10).
A supplemental pleading does not extinguish the existence of the original pleading, while an amended pleading takes the place of the original pleading. A supplemental pleading exists side with the original; it does not replace that which it supplements it does not supersede the original but assumes that the original pleading remain as the issues to be tried in the action. A supplemental pleading supplies the deficiencies in aid of an original pleading, not to entirely substitute the latter.
EFFECT OF AMENDED PLEADING
" An amended pleading supersedes the original one which it amends (Sec. 8, Rule 10).
" The original pleading loses its status as a pleading, is deemed withdrawn and disappears from the record.
It has been held that the original complaint is deemed superseded and abandoned by the amendatory complaint only if the latter introduces a new or different cause of action.
" The defenses in the original pleadings not reproduced in the amended pleadings are waived.
" Admissions in the superseded pleading can still be received in evidence against the pleader.
SUMMONS (Rule 14)
" Summons is a writ or process issued and served upon the defendant in a civil action for the purpose of securing his appearance therein.
" The purpose of summons is to comply with the constitutional rights on due process
" 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. The law requiring the manner of service of summons is jurisdictional.
" 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 (Sec 11).
" If a party dies and there is substitute, there is no need for summons but only an order for him tom appear.
NATURE AND PURPOSE OF SUMMONS IN RELATION TO ACTIONS IN PERSONAM,
IN REM AND QUASI IN REM
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. 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.
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.
VOLUNTARY APPEARANCE
The defendant's voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance (Sec. 20, Rule 14).
Jurisdiction over the defendant is acquired by:
a) Valid service of summons; or
b) By his voluntary appearance or submission to the jurisdiction of the court.
The defendant’s voluntary appearance in the action shall be equivalent to service of summons. Lack of jurisdiction over one’s person maybe invoked in a motion to dismiss
alleging such ground. If no motion to dismiss is filed, it may be raised as an affirmative defense in the answer.
The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.
PERSONAL SERVICE
It shall be served by HANDLING a copy to the defendant in person, or if he refuses it, by TENDERING it to him (Sec. 6, Rule 14).
SUBSTITUTED SERVICE (SUMMONS) If the defendant cannot be served within a reasonable time, service may be effected:
1) By leaving copies of the summons at the defendant’s dwelling house or residence with some person of suitable age and discretion then residing therein; or
2) By leaving copies at defendant’s office or regular place of business with some competent person in charge thereof (Sec. 7).
The following facts must first be shown for the service to be valid:
1) The impossibility of the personal service within a reasonable time
2) The effort exerted to locate the person to be served
3) Service upon a person of sufficient age and discretion residing in the same place or some competent person in charge of his office or regular place of business
4) There should be at least 3 attempts in 2 days.
It may be resorted to if there are justifiable causes, where the defendant cannot be served within a REASONABLE TIME (for plaintiff = 7 days; sheriff = 15 – 30 days). An example is when the defendant is in hiding and resorted to it intentionally to avoid service of summons, or when the defendant refuses without justifiable reason to receive the summons.
In substituted service of summons, actual receipt of the summons by the defendant through the person served must be shown. It further requires that where there is substituted service, there should be a report indicating that the person who received the summons in defendant’s behalf was one with whom petitioner had a relation of confidence ensuring that the latter would receive or would be notified of the summons issued in his name.
Substituted service is not allowed in service of summons on domestic corporations.
CONSTRUCTIVE SERVICE (BY PUBLICATION)
As a rule, summons by publication is available only in actions in rem or quasi in rem. It is not available as a means of acquiring jurisdiction over the person of the defendant in an action in personam.
Against a resident, the recognized mode of service is service in person on the defendant under Sec. 6 Rule 14. In a case where the defendant cannot be served within a reasonable time, substituted service will apply (Sec. 7, Rule 14), but no summons by publication which is permissible however, under the conditions set forth in Sec. 14, Rule 14.
Against a non-resident, jurisdiction is acquired over the defendant by service upon his person while said defendant is within the Philippines. As once held, when the defendant is a nonresident, personal service of summons in the state is essential to the acquisition of jurisdiction over him. This is in fact the only way of acquiring jurisdiction over his person if he does not voluntarily appear in the action. Summons by publication against a nonresident in an action in personam is not a proper mode of service.
Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings the whole world as a party in the case and vests the court with jurisdiction to hear and decide it.
SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS UNKNOWN OR WHERE HIS
WHEREABOUTS ARE UNKNOWN
Where the defendant is designated as unknown, or whenever his whereabouts are unknown and cannot be ascertained despite a diligent inquiry, service may, with prior leave of court, be effected upon the defendant, by publication in a newspaper of general circulation. The place and the frequency of the publication is a matter for the court to determine (Sec. 14, Rule 14).
The rule does not distinguish whether the action is in personam, in rem or quasi in rem. The tenor of the rule authorizes summons by publication whatever the action may be as long as the identity of the defendant is unknown or his whereabouts are unknown.
RULES ON SUMMONS ON DEFENDANT (1) Resident
(a) Present in the Philippines
1) Personal service (Rule 14, Sec. 6) 2) Substituted service (Rule 14, Sec. 7) 3) Publication, but only if
a) his identity or whereabouts is unknown (Rule 14, Sec. 14); and b) the action is in rem or quasi in rem
(b) Absent from the Philippines
1) Substituted service (Rule 14, Sec. 7) 2) Extraterritorial service (Rule 14, Sec. 16
and 15); action need not be in rem or quasi in rem
(2) Non-resident
1. Present in the Philippines
a) Personal service (Sec. 6, Rule 14) b) Substituted service (Sec. 7, Rule 14) 2. Absent from the Philippines
a) Action in rem or quasi in rem – only Extraterritorial service (Rule 14, Sec. 15) b) Action in personam, and judgment cannot be secured by attachment (e.g.
action for injunction)
1) Wait for the defendant to come to the Philippines and to serve summons then
2) Wait the defendant to voluntarily appear in court (Rule 14, Sec. 20)
3) Plaintiff cannot resort to extraterritorial service of summons
SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE PHILIPPINES
Service of summons upon a resident of the Philippines
Service of summons upon a resident of the Philippines