Therefore, if a defendant filed the motion for bill of particulars within 15 days, he cannot be declared in default. The plaintiff cannot declare the defendant in default for failure to file an answer because 15 days had already lapsed. It will be interrupted by the filing of the motion and the period commences to run again from the time he received the bill of particulars or the order denying his motion but not less than 5 days in any event.
Sec. 6. Bill a part of pleading. A bill of particulars becomes part of the pleading for which it is intended. (1[a]a)
When you file a bill of particulars clarifying the paragraphs in the complaint which are vague, the bill of particulars becomes part of the complaint with its supplements.
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Rule 13FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Section 1. Coverage. This Rule shall govern the filing of all pleadings and other papers, as well as the service thereof, except those for which a different mode of service is prescribed. (n)
As a general rule, service of all pleadings is governed by Rule 13. So, this rule governs pleadings “except those for which a different mode of service is prescribed.” An example of the exception is the service of complaint which is governed by Rule 14. So Rule 13 applies to all pleadings except complaint.
What is the difference between filing and service of pleadings? Section 2:
Sec. 2. Filing and service, defined. Filing is the act of presenting the pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. (2a)
When you say FILING, you present the pleading or other papers to the office of the clerk of court. When you say SERVICE, you furnish a copy of the pleading or paper concerned to a party, or if he is represented by a lawyer, you must furnish a copy of the pleading to the lawyer.
The GENERAL RULE, when a party is represented by a lawyer, the service should be to the lawyer and not to the party. Service to a party is not valid. What is valid is service to the counsel. Service to the lawyer binds the party. But service to the party does not bind the lawyer and the party, unless the court orders direct service to the party.
If a party has not appeared by counsel, then common reason suggests that service must be made upon him.
It has been held that notice or service made upon a party who is represented by counsel is a nullity. As a rule, notice to the client and not to his counsel of record is not notice in law unless for instance when the court or tribunal orders service upon the party or when the technical defect in the manner of notice is waived (Heirs of Benjamin Mendoza vs CA GR 170247, September 17, 2008).
Service upon the parties’ counsel of record is tantamount to service upon the parties themselves, but service upon the parties themselves is not considered service upon their lawyers. The reason is simple – the parties, generally, have no formal education or knowledge of the rules of procedure, specifically, the mechanics of an appeal or availment of legal remedies; thus, they may also be unaware of the rights and duties of a litigant relative to the receipt of a decision. More importantly, it is best for the courts to deal only with one person in the interest of orderly procedure – either the lawyer retained by the party or the party himself if he does not intend to hire a lawyer (De los Santos vs. Elizalde GR 141810 & 141812, February 2, 2007; Hernandez vs. Clapis, 87 Phil. 437; Javier Logging Corp. vs. Mardo, L-28188, Aug. 27, 1968)
There was even a case when the client volunteered to get the copy of the decision. But he party failed to give it to his lawyer. Is the lawyer bound, or is the party also bound? NO, because the rule is service to lawyer binds the client and not the other way around. So, to avoid all these problems, there must be a uniform rule UNLESS, the law says, SERVICE UPON THE PARTY HIMSELF IS ORDERED BY THE COURT.
Example is in the case of
RETONI, JR. vs. CA – 218 SCRA 468 [1993]
HELD: “Usually, service is ordered upon the party himself, instead of upon his attorney, [1] when it is doubtful who the attorney for such party is, or [2] when he cannot be located or [3] when the party is directed to do something personally, as when he is ordered to show cause.”
There are rare circumstances however where service to the lawyer doe,s not bind the client. These are cases of negligence; where the lawyer is in bad faith for gross negligence; where he deliberately prejudiced his client. So it is unfair that the party may be bound by the service to the lawyer because of those circumstances. One such instance happened in the case of
BAYOG vs. NATINO – 258 SCRA 378 [1996]
HELD: “Notice to the lawyer who appears to have been unconscionably irresponsible cannot be considered as notice to his client. The application to the given case of the doctrine that notice to counsel is notice to parties should be looked into and adopted, according to the surrounding circumstances; otherwise, in the court’s desire to make a short cut of the proceedings, it might foster, wittingly or unwittingly, dangerous collusions to the detriment of justice. It would then be easy for one lawyer to sell one’s rights down the river, by just alleging that he just forgot every process of the court affecting his clients, because he was so busy.”
Q: Now, if there are 5 defendants in the same case and there is only one (1) lawyer for all, is the lawyer entitled to 5 copies also?