Service of Summons under the Revised Rules of Civil Procedure
One cannot discount that with the effectivity of the said changes, the problem of locating the defendant or gaining access to the defendant to serve summons has been alleviated thus limiting possible delay in a case.
Published in Daily Tribune on October 02, 2020
by: Vanessa Arrha A. De Leon
For many, the phrase “service of summons” is something that will never cross their minds until they find themselves filing a case to pursue a right or remedy a wrong.
Understandably so since under the old Rules of Civil Procedure, service of summons has been the job of the court sheriff.
With the effectivity, however, of the Revised Rules of Civil Procedure last 1 May 2020, the rules on service of summons have become a relevant concern of just about everyone who makes and enters into transactions and who may become a potential litigant.
But let’s backtrack. What is a summons? Summons is a writ issued by a court by which a defendant is notified of the action brought against him or her. It is accompanied by a copy of the complaint and an order that the defendant answer within a certain period of time, otherwise the complainant shall be allowed to present evidence without the defendant, and may be granted judgment on the basis of such evidence.
The service or delivery of summons to the defendant has a two-fold purpose in a civil in personam action: 1) due process; and 2) acquisition of jurisdiction over the person of the defendant. Due process because it notifies the defendant that an action has been commenced against him thus giving him an opportunity to answer and be heard; and jurisdiction because proper service of summons enables the court to acquire power over the person of the defendant giving it the authority to issue a judgment in the action. This is important because any judgment without proper service of summons is null and void.
Service of summons, as a rule, is required to be done personally, i.e., the sheriff must personally serve the summons to the defendant. If refused, the sheriff may just personally tender it to the defendant. When the defendant is a corporation, partnership, or association, personal service is effected by having certain corporate officers receive the summons for the corporation. It is only when personal service fails that other substituted means of service can be made.
This preference for personal service can cause substantial delay in the proceedings if the defendant cannot be located, if the defendant refuses to receive the summons, or if the defendant later on opposes the manner of service.
The effectivity of the amendments to the 1997 Rules of Civil Procedure provides some reprieve to complainants with respect to the seemingly trivial but actually crucial process of serving summons.
While the court sheriff still has the primary task of serving summons under the amended rules, the complainant may now be authorized by the court to serve summons in two instances: 1) in case the sheriff attempts but fails to serve the summons; and 2) in cases where summons is to be served outside the judicial region of the court where the case is pending.
Considering that it is in the best interest of the complainant the service of summons be made promptly and without delay, allowing the complainant to participate in the process gives him or her the means to lessen the delay in the process.
Another significant change in the rules is in substituted service. Under the amended rules, if personal service is not effected after at least three attempts on two different dates, additional means for substituted service are allowed by: 1) leaving copies of the summons with the officers of the homeowners’ association or condominium corporation or the chief security officer of the community or the building where the defendant may be found, if the person serving the summons is refused; and 2) sending an electronic mail to the defendant’s electronic mail address, upon sanction by the court.
Serving summons by email is also possible when the defendant is a domestic corporation, partnership or association and the persons authorized by the rules to receive the summons, which now include the secretaries of the above-named officers and the person who customarily receives the correspondence for the defendant, unduly refuses to receive the same.
In all of these rules, permission from the court must still be obtained. However, one cannot discount that with the effectivity of the said changes, the problem of locating the defendant or gaining access to the defendant to serve summons has been alleviated thus limiting possible delay in a case. As a result, however, the importance of knowing the official residential, commercial, and email addresses of the people we transact with could not be overstressed.
