TOPIC     Proper Service of Summons; Substituted Service

CASE  NO.   G.R. NO. 171916 : December 4, 2009

CASE  NAME   CONSTANTINO A. PASCUAL, substituted by his heirs, represented by
Zenaida Pascual, Petitioner, v. LOURDES S. PASCUAL, Respondent
MEMBER   Tum
 
DOCTRINE

1.   Due process dictates that jurisdiction over the person of a defendant can only be acquired
by the courts after a strict compliance with the rules on the proper service of summons.
2.   Personal service of summons should and always be the first option, and it is only when the
said summons cannot be served within a reasonable time can the process server resort to
substituted service.
3.   Substituted service is in derogation of the usual method of service. It is a method
extraordinary in character and, hence, may be used only as prescribed and in the
circumstances authorized by statute. Failure to faithfully, strictly, and fully comply with the
requirements of substituted service renders said service ineffective.
4.   Argument of presumption of regularity in the performance of official functions is only
meritorious, provided that there was a strict compliance with the procedure for serving a
summons.

RECIT-READY DIGEST

Constantino filed a Complaint a case before the RTC of Malolos, Bulacan against respondent. The
process server, in his Return of Service, reported that he went at Defendant Lourdes given address to
serve the summons and copy of the Complaint. At the time of the service of the said summons, the
defendant was not at her home and only her maid was there who refused to receive the said summons [in
spite] of the insistence of the undersigned. The process server tried again twice on different occasions but
it was unsuccessful. Thereafter, an alias summons was issued by the RTC. However, the process server,
accompanied by the barangay officials of the said place, proceeded at defendant's residence but the
undersigned was not permitted to go inside her house and was given information by her maid that the
defendant was not there. Alias summon was again NOT SERVED. Subsequently, the process server
returned stating that a substituted service was effected: Lourdes was out during the time of service of the
said summons and only her housemaid was present. The undersigned left a copy of the same to the latter
who is at the age of reason but refused to sign the same. Consequently, for failure of the defendant to file
a responsive pleading, plaintiff filed a Motion to Declare Defendant in Default. Defendant is now
claiming that he was not able to receive any summons and copy of the complaint. The SC ruled in favor
of Lourdes. In a case where the action is in personam and the defendant is in the Philippines, the service
of summons may be done by personal or substituted service as laid out in Sections 6 and 7 of Rule 14 of
the Revised Rules of Court. The provisions state:
Section 6. Service in person on defendant. - Whenever practicable, the summons shall be served by
handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by
tendering it to him.

Section 7. Substituted service. - If, for justifiable causes, the defendant cannot be served within a
reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the
summons at the defendant's residence with some person of suitable age and discretion then residing
therein, or (b) by leaving the copies at defendant's office or regular place of business with some
competent person in charge thereof.

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A plain and simple reading of the above provisions indicates that personal service of summons should
and always be the first option, and it is only when the said summons cannot be served within a
reasonable time can the process server resort to substituted service.
The SC gave an in-depth discussion as to the nature and requisites of substituted service in Manotoc v.
Court of Appeals:
a.   Impossibility of Prompt Personal Service
i.   The party relying on substituted service or the sheriff must show that defendant
cannot be served promptly or there is impossibility of prompt service
b.   Specific Details in the Return
i.   The sheriff must describe in the Return of Summons the facts and circumstances
surrounding the attempted personal service.26 The efforts made to find the
defendant and the reasons behind the failure must be clearly narrated in detail in
the Return. The date and time of the attempts on personal service, the inquiries
made to locate the defendant, the name/s of the occupants of the alleged
residence or house of defendant and all other acts done, though futile, to serve the
summons on defendant must be specified in the Return to justify substituted
service.
c.   A Person of Suitable Age and Discretion
i.   If the substituted service will be effected at defendant's house or residence, it
should be left with a person of "suitable age and discretion then residing therein."
"Discretion" is defined as "the ability to make decisions which represent a
responsible choice and for which an understanding of what is lawful, right or
wise may be presupposed"
d.   A Competent Person in Charge
i.   If the substituted service will be done at defendant's office or regular place of
business, then it should be served on a competent person in charge of the place.

The above Return of Summons does not show or indicate the actual exertion or any positive steps taken
by the officer or process server in serving the summons personally to the defendant. Also, d The
pertinent facts and circumstances attendant to the service of summons must be stated in the proof
of service or Officer's Return; otherwise, any substituted service made in lieu of personal service
cannot be upheld. This is necessary because substituted service is in derogation of the usual method
of service. It is a method extraordinary in character and, hence, may be used only as prescribed
and in the circumstances authorized by statute. Failure to faithfully, strictly, and fully comply with
the requirements of substituted service renders said service ineffective.

FACTS
•   Petitioner Constantino Pascual (Constantino) filed a Complaint for Specific Performance with
Prayer for Issuance of Preliminary Mandatory Injunction with Damages before the RTC of
Malolos, Bulacan against respondent.
•   The process server, in his Return of Service, reported that he went at Defendant Dr. Lourdes
Pascual’s (Lourdes) given address at No. 4 Manikling St., Talayan Village, Quezon City on May
20, 2002 to serve the summons and copy of the Complaint together with the annexes thereto in
connection with the case. At the time of the service of the said summons, the defendant was not at
her home and only her maid was there who refused to receive the said summons [in spite] of the
insistence of the undersigned.
•   The process server, upon his request with the Brgy. Clerk at the said place, was given a
certification that he really exerted effort to effect the service of the said summons but failed due
to the above reason.

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 •   The following day, May 21, 2002, the process server went back at defendant's residence to have
her receive the subject summons but again the above defendant was not at her house.
•   As such, the original summons and copy of the complaint is hereby returned to the Honorable
Court NOT SERVED.
•   Thereafter, an alias summons was issued by the RTC. However, the process server, accompanied
by the barangay officials of the said place, proceeded at defendant's residence but the undersigned
was not permitted to go inside her house and was given information by her maid that the
defendant was not there. Alias summon was again NOT SERVED.
•   Subsequently, on August 14, 2002, the process server returned stating that a substituted service
was effected:
•  
•   Defendant Dr. Lourdes Pascual was out during the time of service of the said summons and only
her housemaid was present. The undersigned left a copy of the same to the latter who is at the age
of reason but refused to sign the same.
•   WHEREFORE, the undersigned respectfully return the service of summons DULY
SERVED.
•   Consquently, for failure of the defendant to file a responsive pleading, plaintiff filed a Motion to
Declare Defendant in Default. Defendant is now claiming that he was not able to receive any
summons and copy of the complaint.

ISSUE/S and HELD

1.   W/N there was a proper and valid substituted service of summons. (YES)
RATIO
2.   The resolution of this issue will determine whether jurisdiction was indeed acquired by the trial
court over the person of the petitioner.
3.   In a case where the action is in personam and the defendant is in the Philippines, the service of
summons may be done by personal or substituted service as laid out in Sections 6 and 7 of Rule
14 of the Revised Rules of Court. The provisions state:
Section 6. Service in person on defendant. - Whenever practicable, the summons shall be served by
handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by
tendering it to him.

Section 7. Substituted service. - If, for justifiable causes, the defendant cannot be served within a
reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the
summons at the defendant's residence with some person of suitable age and discretion then residing
therein, or (b) by leaving the copies at defendant's office or regular place of business with some
competent person in charge thereof.
4.   A plain and simple reading of the above provisions indicates that personal service of summons
should and always be the first option, and it is only when the said summons cannot be
served within a reasonable time can the process server resort to substituted service.
5.   The SC gave an in-depth discussion as to the nature and requisites of substituted service in
Manotoc v. Court of Appeals:
a.   Impossibility of Prompt Personal Service
i.   The party relying on substituted service or the sheriff must show that defendant
cannot be served promptly or there is impossibility of prompt service
b.   Specific Details in the Return
i.   The sheriff must describe in the Return of Summons the facts and circumstances
surrounding the attempted personal service.26 The efforts made to find the
defendant and the reasons behind the failure must be clearly narrated in detail in
the Return. The date and time of the attempts on personal service, the inquiries
made to locate the defendant, the name/s of the occupants of the alleged

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 residence or house of defendant and all other acts done, though futile, to serve the
summons on defendant must be specified in the Return to justify substituted
service.
c.   A Person of Suitable Age and Discretion
i.   If the substituted service will be effected at defendant's house or residence, it
should be left with a person of "suitable age and discretion then residing therein."
"Discretion" is defined as "the ability to make decisions which represent a
responsible choice and for which an understanding of what is lawful, right or
wise may be presupposed"
d.   A Competent Person in Charge
i.   If the substituted service will be done at defendant's office or regular place of
business, then it should be served on a competent person in charge of the place.
6.   Petitioner argues that proof of prior attempts to serve personally can be deduced from the other
returns when there are several in a series of officer's returns all tending to establish the
impossibility of personal service upon the respondent. However, the said argument of the
petitioner is merely a plain deduction that veers away from the well-established requisite that the
officer must show that the defendant cannot be served promptly, or that there was an
impossibility of prompt service. A cursory reading of the three Officer's Returns does not show
any compliance with the said requisite.
7.   The above Return of Summons does not show or indicate the actual exertion or any positive
steps taken by the officer or process server in serving the summons personally to the defendant.
8.   The necessity of stating in the process server's Return or Proof of Service the material facts and
circumstances sustaining the validity of substituted service which states that:
9.   The pertinent facts and circumstances attendant to the service of summons must be stated
in the proof of service or Officer's Return; otherwise, any substituted service made in lieu of
personal service cannot be upheld.
10.   This is necessary because substituted service is in derogation of the usual method of service.
It is a method extraordinary in character and, hence, may be used only as prescribed and in
the circumstances authorized by statute. Failure to faithfully, strictly, and fully comply with
the requirements of substituted service renders said service ineffective.
11.   Petitioner further states that the presumption of regularity in the performance of official functions
must be applied to the present case. However, said argument, however, is only meritorious,
provided that there was a strict compliance with the procedure for serving a summons. In
the absence of even the barest compliance with the procedure for a substituted service of
summons outlined in the Rules of Court, the presumption of regularity in the performance of
public functions does not apply.

DISPOSTIVE PORTION

WHEREFORE, the Petition dated May 3, 2006 is hereby DENIED and the Decision dated June 29, 2005
of the Court of Appeals in CA-G.R. SP No. 77789 is hereby AFFIRMED in toto.

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