Republic of the Philippines
MUNICIPAL TRIAL COURT
11th Judicial Region
Branch 5
CITY OF DAVAO
ECOLAND PROPERTIES CIVIL CASE No. M-DVO-18-03799-CV
DEVELOPMENT CORPORATION
Plaintiff,
FOR: Recovery of Possession,
Damages and Atty’s Fees
-versus-
HERSALDE PARIL & any other
persons acting for and in his behalf
Defendants.
x-------------------------------------x
MOTION FOR RECONSIDERATION
ON THE ORDER DATED JULY 17, 2019
Comes now, Defendant through the counsel , unto this Honorable
Court, respectfully avers:
PREFATORY STATEMENT
The court's primary duty is to render or dispense
justice. Litigation is not a game of technicalities, but
every case must be prosecuted in accordance with the
prescribed procedure so that issues may be properly
presented and justly resolved. Law suits, unlike duels,
are not to be won by a rapier's thrust. Technicality,
when it deserts its proper office as an aid to justice
and becomes its great hindrance and chief enemy,
deserves scant consideration from courts.
Hence, rules of procedure must be faithfully followed
except only when for persuasive reasons, they may be
relaxed to relieve a litigant of an injustice not
commensurate with his failure to comply with the
prescribed procedure. Concomitant to a liberal
application of the rules of procedure should be an
effort on the part of the party invoking liberality to
explain his failure to abide by the rules.
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FACTUAL ANTECEDENTS
The defendants knew only of the case filed against him when his
mother handed to her the Decision dated July 17, 2019 only on
September 20, 2019.
The defendant was not personally served with summon as almost
always he was staying in Governor Generoso to attend to his farm.
Hence, without knowledge of his summon, he failed to file an
Answer. Thus, judgment was rendered in favor of the defendant.
ISSUES AND ARGUMENTS
WHETHER OR NOT THE COURT
ACQUIRED JURISDICTION OVER THE
PERSON OF THE DEFENDANT WHEN
HE WAS NOT PERSONALLY SERVED
WITH SUMMON
Fundamental is the rule that jurisdiction over a defendant in a civil
case is acquired either through service of summons or through
voluntary appearance in court and submission to its authority. In
the absence or when the service of summons upon the person of the
defendant is defective, the court acquires no jurisdiction over his
person, and a judgment rendered against him is null and void.
Service of summons is the main mode through which a court
acquires jurisdiction over the person of the defendant in a civil
case. Through it, the defendant is informed of the action against
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him or her and he or she is able to adequately prepare his or her
course of action. Rules governing the proper service of summons are
not mere matters of procedure. They go into a defendant's right to
due process. Thus, strict compliance with the rules on service of
summons is mandatory.
In actions in personam, the court acquires jurisdiction over the
person of the defendant through personal or substituted service of
summons. Personal service is effected by handling a copy of the
summons to the defendant in person, or, if he refuses to receive
and sign for it, by tendering it to him.
In this case, the Sheriff’s return of summons dated January 8, 2019
certifies that Hersalde Paril on June 4, 2019 was personally served
with summons but refused to affix his signature to acknowledge
receipt. The defendant denied having served with Summons.
How can a Sheriff certified in January 8, 2019 the service of
summons when ONLY on June 4, 2019 the defendant was alleged to
have refused receipt of summon.
Between the sheriff’s return and the denial of the defendant to
have served with summons, it would be incumbent upon the Sheriff
to prove if the Hersalde Paril he was referring to was the same
Hersalde Paril who is a defendant in this case.
WHETHER OR NOT SHERIFF’S
RETURN CERTIFYING THAT THE
DEFENDANT REFUSED TO SIGN WAS
SUFFICIENT
Sheriffs are asked to discharge their duties on the service of
summons with due care, utmost diligence, and reasonable
promptness and speed so as not to prejudice the expeditious
dispensation of justice. Thus, they are enjoined to try their best
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efforts to accomplish personal service on defendant. On the other
hand, since the defendant is expected to try to avoid and evade
service of summons, the sheriff must be resourceful, persevering,
canny, and diligent in serving the process on the defendant.
Then too, the proof of service failed to specify the details of the
attendant circumstances. The Return merely expressed a general
statement that the defendant was personally served with summon
and refuse to affix his signature. The Return failed to state the
impossibility to serve summons within a reasonable time. Certainly,
without specifying the details of the attendant circumstances or of
the efforts exerted to serve the summons, a general statement that
such efforts were made will not suffice for purposes of complying
with the rules of substituted service of summons.
While there is a presumption of regularity in the conduct of the
Sheriff in serving the Summons, such deserve scant scrutiny as most
if not all, in order to avoid substituted service, the Sheriff would
just certify that the defendant was personally served but refused to
receive. The court must, in cases like this that there was refusal of
receipt by the defendant, the Sheriff must immediately go to the
Barangay Chairman and report the same of such refusal. The refusal
of the defendant to receive must be witnessed by a competent
person of suitable age and discretion.
WHETHER OR NOT REFUSAL BY THE
DEFENDANT TO RECEIVE THE
SUMMON TANTAMOUNT TO
IMPOSSIBILITY OF PROMPT SERVICE
AND THEREFORE THE SHERIFF
MUST RESORT TO SUBSTITUTED
SERVICE
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Refusal of the defendant to receive the summon or affix his
signature tantamounts to impossibility of prompt service. Hence,
Sheriff must resort substituted service.
The party relying on substituted service or the sheriff must show
that defendant cannot be served promptly or there is impossibility
of prompt service. Section 8, Rule 14 provides that the plaintiff or
the sheriff is given a reasonable time to serve the summons to the
defendant in person, but no specific time frame is mentioned.
Reasonable time is defined as so much time as is necessary under
the circumstances for a reasonably prudent and diligent man to do,
conveniently, what the contract or duty requires that should be
done, having a regard for the rights and possibility of loss to the
other party.
For substituted service of summons to be available, there must be
several attempts by the sheriff to personally serve the summons
within a reasonable period which eventually resulted in failure to
prove impossibility of prompt service. "Several attempts" means at
least three (3) tries, preferably on at least two different dates. In
addition, the sheriff must cite why such efforts were unsuccessful.
It is only then that impossibility of service can be confirmed or
accepted.
In the case at bar, the Returns contained mere general statement
that defendant was personally served but refuse to affix his
signature. Not having specified the details of the attendant
circumstances or of the efforts exerted to serve the
summons, there was a failure to comply strictly with all the
requirements of substituted service, and as a result the service of
summons is rendered ineffective.
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PRAYER
WHEREFORE, it is most respectfully prayed to this Honorable Court
that the Decision dated July 17, 2019 be declared void due to lack
of jurisdiction over the person of the defendant.
Other reliefs just and equitable under the premises are likewise
prayed for.
RESPECTFULLY SUBMITTED. September 30, 2019. Davao City.
ATTY. GILDA S. MAHINAY, MA Econ.
Counsel for the Defendant
PTR No. 2470304/January 8, 2019
IBP No. 068212/ January 10,2019
Roll No. 70474
MCLE (on process)
Block 11, Lot 20, 187 Dominica St.
Solariega Plantacion, Talomo, Davao City
09066248650/09198639226
“Every nation has a Messenger and when their
Messenger comes everything is decided between
them justly. They are not wronged.” (Surah Yunus,
47)
COPY FURNISHED:
ATTY. SANTOS E. TORRENA, JR.
Counsel for the Plaintiff
NB Mercado Bldg., Mac Arthur Highway corner Sandawa
Matina, Davao City
