Section 10. Omitted counterclaim or cross-claim.
— When
5. Counter-claims:
Rule 6.
Section 2. Pleadings allowed. — The claims of a party are
asserted in a complaint, counterclaim, cross-claim, third
(fourth, etc.)-party complaint, or complaint-in-
intervention.
The defenses of a party are alleged in the answer to the
pleading asserting a claim against him.
An answer may be responded to by a reply.
Section 6. Counterclaim. — A counterclaim is any claim
which a defending party may have against an opposing
party.
Section 7 Compulsory counterclaim. — A compulsory
counterclaim is one which, being cognizable by the
regular courts of justice, arises out of or is connected with
the transaction or occurrence constituting the subject
matter of the opposing party's claim and does not require
for its adjudication the presence of third parties of whom
the court cannot acquire jurisdiction. Such a
counterclaim must be within the jurisdiction of the court
both as to the amount and the nature thereof, except
that in an original action before the Regional Trial Court,
the counter-claim may be considered compulsory
regardless of the amount.
Section 9. Counter-counterclaims and counter-
crossclaims. — A counter-claim may be asserted against
an original counter-claimant.
A cross-claim may also be filed against an original cross-
claimant.
Rule 9
Section 2 Compulsory counterclaim, or cross-claim, not
set up barred. — A compulsory counterclaim, or a cross-
claim, not set up shall be barred.
Rule 11.
Section 4. Answer to counterclaim or cross-claim. — A
counterclaim or cross-claim must be
answered within ten (10) days from service.
Section 8. Existing counterclaim or cross-claim. — A
compulsory counterclaim or a cross-claim that a
defending party has at the time he files his answer shall
be contained therein.
Section 9. Counterclaim or cross-claim arising after
answer. — A counterclaim or a cross-claim which either
matured or was acquired by a party after serving his
pleading may, with the permission of the court, be
presented as a counterclaim or a cross-claim by
supplemental pleading before judgment.
a pleader fails to set up a counterclaim or a cross-claim
through oversight, inadvertence, or excusable neglect, or
when justice requires, he may, by leave of court, set up
the counterclaim or cross-claim by amendment before
judgment.
NCC, Art. 1283. If one of the parties to a suit over an
obligation has a claim for damages against the other, the
former may set it off by proving his right to said damages
and the amount thereof.
RSC, Section 13. Counterclaims Within the Coverage of
this Rule - If at the time the action is commenced, the
defendant possesses a claim against the plaintiff that (a)
is within the coverage of this rule, exclusive of interest and
costs; (b) arises out of the same transaction or event that
is the subject matter of the plaintiff's claim; (c) does not
require for its adjudication the joinder of third parties; and
(d) is not the subject of another pending action, the
claim shall be filed as a counterclaim in the response;
otherwise, the defendant shall be barred from suit on the
counterclaim.
The defendant may also elect to the file a counterclaim
against the plaintiff that does not arise out of the same
transaction or occurrence, provided that the amount
and nature thereof are within the coverage of this Rule
and the prescribed docket and the other legal fees are
paid.
RSP, Section 3, A. Pleadings allowed. — The only
pleadings allowed to be filed are the complaints,
compulsory counterclaims and cross-claims' pleaded in
the answer, and the answers thereto.
RSP, Section 5. Answer. — Within ten (10) days from
service of summons, the defendant shall file his answer to
the complaint and serve a copy thereof on the plaintiff.
Affirmative and negative defenses not pleaded therein
shall be deemed waived, except for lack of jurisdiction
over the subject matter. Cross-claims and compulsory
counterclaims not asserted in the answer shall be
considered barred. The answer to counterclaims or cross-
claims shall be filed and served within ten (10) days from
service of the answer in which they are pleaded.
Definition - Any claim which a defending party may have
against an opposing party.
1. A counterclaim is in the nature of a cross-
complaint. Although it may be alleged in the
answer, it is not part of the answer.
2. Upon its filing, the same proceedings are had as
in the original complaint.
3. For this reason, it must be answered 10 days from
service [Rule 11, Sec 4]
4. A lawyer who acts in the name of a client should
not be sued on a counterclaim in the very same
case he has filed as counsel and not as party.
5. Purpose: to avoid multiplicity of suits
How to Raise Counterclaims action. up in the action.
Must be answered,
1. By including it in the Answer Need not be answered; no
otherwise, the defendant
a. A compulsory counterclaim or a cross-claim default.
can be declared in default.
that a defending party has AT THE TIME he Since permissive, it requires
files his answer shall be contained therein. No need for separate the payment of docket fees
[Rule 11, Sec. 8] docket fees (Sun Insurance v. Asuncion,
b. Exception: Pleadings may be amended 1989)
under Rule 11, Sec. 10:
(1) By leave of court;
(2) Before judgment; Compulsory Counterclaim (also known as recoupment)
(3) On the grounds of:
(4) Oversight; 1. Requisites:
(5) Inadvertence; a. It must arise out of, or be necessarily
(6) Excusable neglect; connected with, the transaction/occurrence
(7) When justice requires. that is the subject matter of the opposing
party's claim;
2. By filing after the Answer [Rule 11, Sec. 9] b. It does not require for its adjudication the
a. Counterclaims/cross-claims arising AFTER the presence of third parties of whom the court
answer, cannot acquire jurisdiction;
b. How done: c. It must be within the court’s jurisdiction both
(1) By filing a supplemental pleading before as to the amount and the nature. [Regalado,
judgment citing Quintanilla v CA (1997)]
(2) WITH court’s permission  Note in another reviewer also citing
Regalado: A counterclaim may be may
be entertained by the RTC regardless of
the amount involved provided that, in
addition to the other requirements, it is
cognizable by the regular courts of
justice
Rules on Counterclaims d. The counterclaim must have matured before
answer.
1. In an original action before the RTC, the
counterclaim may be considered compulsory
regardless of the amount. [Rule 6, Sec. 7] 2. General Rule: A compulsory counterclaim not set
2. In the case of Agustin v. Bacalan (1985), if a up in the answer is deemed barred.
counterclaim is filed in the MTC in excess of its a. Exceptions:
jurisdictional amount, the excess is considered (1) If it is a counterclaim which either
waived. matured or was acquired by a party
3. But in Calo v. Ajax (1968), the remedy where a after serving his answer. In this case, it
counterclaim is beyond the jurisdiction of the may be pleaded by filing a
MTC is to set off the claims and file a separate supplemental answer or pleading before
action to collect the balance. judgment. [Rule 11, Sec. 9]
4. Although the government is generally immune (2) When a pleader fails to set up a
from suit, if it files an action against a private counterclaim through oversight,
party, it surrenders its privileged position and the inadvertence, excusable negligence, or
defendant may validly file a counterclaim when justice so requires. He may, by
against it. leave of court, set-up the counterclaim
by amendment of the pleading [Rule 11,
Sec. 10]
Kinds of Counterclaims
3. A plaintiff who fails or chooses not to answer a
Compulsory counterclaim Permissive counterclaim compulsory counterclaim may not be declared
One which arises out of or is in default, principally because the issues raised in
necessarily connected with It does not arise out of nor is the counterclaim are deemed automatically
the transaction or it necessarily connected joined by the allegations in the complaint. [Gojo
occurrence -that is the with the subject matter of v. Goyala (1970)]
subject matter of the the opposing party's claim.
opposing party's claim. 4. Filing fees do not apply to compulsory
counterclaims
Does not require for its May require for its
adjudication the presence adjudication the presence
of third parties of whom the of third parties over whom 5. The filing of a MTD and the setting up of a
court cannot acquire the court cannot acquire compulsory counterclaim are incompatible
jurisdiction. jurisdiction. remedies.
Barred if not set up in the Not barred even if not set a. In the event that a defending party has a
 ground for dismissal and a compulsory
counterclaim at the same time, he must
choose only one remedy.
b. If he decides to file a MTD, he will lose his
counterclaim. But if he opts to set up his
counterclaim, he may still plead his ground
for dismissal as an affirmative defense in his
answer.
c. If any of the grounds to dismiss under Rule 17,
Sec. 3 arise, the proper recourse for a
defendant who desires to pursue his
compulsory counterclaim in the same
proceeding is not a MTD.
d. Instead, he should only move to have the
plaintiff declared non-suited on the
complaint so that the latter can no longer
present his evidence thereon, and
simultaneously move that he be declared as
in default on the compulsory counterclaim,
and reserve the right to present evidence ex
parte on his compulsory counterclaim. [BA
Finance v. Co (1993)]
Permissive Counterclaim (also known as “set-off”)
1. Counterclaim is permissive if it does not arise out
of, nor is necessarily connected with, the subject
matter of the opposing party’s claim
a. This is not barred even if not set up in the
action
b. Must have independent jurisdictional ground
[Herrera)]. Hence, the filing of a separate
docket fee.
2. Test to determine whether a counterclaim is
compulsory or permissive: LOGICAL RELATIONSHIP
TEST
a. Logical relationship test: Where conducting
separate trials of the respective claims would
entail substantial duplication of effort and
time and involves many of the same factual
and legal issues. [Meliton v. CA (1992)]
b. Other tests used
 Issues of fact and law raised by the claim
and counterclaim are essentially the
same
 Res judicata would bar a subsequent suit
or defendant’s claim absent the
compulsory counterclaim rule
 Substantially the same evidence support
or refute the claim and the counterclaim
 There is a logical relation between the
claim and the counterclaim
3. NOTE: If the counterclaim matures AFTER the
Answer, it is merely PERMISSIVE
4. Filing fees apply to permissive counterclaims
5. Even when there is a logical relation but the
court has no jurisdiction over the claim or it
requires the presence of third persons whom the
court cannot acquire jurisdiction
Effect on Counterclaim when Complaint is Dismissed -
Under Section 3, Rule 17, dismissal of action due to
plaintiff’s fault shall be without prejudice to the
defendant’s right to prosecute his counterclaim in the
same/separate action.
Meliton v. CA (1992) – Regalado, J.
Plaintiff: Nelia Ziga, in her own behalf and as attorney-in-
fact of Alex A. Ziga and Emma A. Ziga-Siy
Defendant: Lydia Meliton
Concept: Counter-claims
Nature of Action: Appeal by certiorari from order of CA
Doctrine: It has been postulated that while a number of
criteria have been advanced for the determination of
whether the counterclaim is compulsory or permissive, the
"one compelling test of compulsoriness" is the logical
relationship between the claim alleged in the complaint
and that in the counterclaim, that is, where conducting
separate trials of the respective claims of the parties
would entail a substantial duplication of effort and time,
as where they involve many of the same factual and/or
legal issues.
FACTS: Nelia Ziga filed for rescission of a contract of lease
over a parcel of land situated at Elias Angeles Street,
Naga City. Alleged as grounds therefor were Meliton's
failure, as lessee, to deposit the one month rental and to
pay the monthly rentals due, her construction of a
concrete wall and roof on the site of a demolished house
on the leased premises without the lessor's written
consent, and unauthorized sublease of the leased
property to a third party. Meliton filed an answer to the
complaint denying the material averments thereof and
setting up three counterclaims for recovery of the value
of her kitchenette constructed on the leased parcel of
land and which was demolished by Ziga. The RTC
dismissed complaint for being moot and academic. The
counter-claim was likewise dismissed for non-payment of
the docket fees, ergo the trial court's holding that thereby
it had not acquired jurisdiction over the same. Lydia
Meliton and Virgilio Meliton filed a complaint for recovery
of the same amounts involved and alleged in their
counterclaims. Ziga filed a motion to dismiss alleging that
the petition is barred by prior judgment.
RTC: Denied MTD. The dismissal of the Meliton’s
counterclaims was not an adjudication on the merits as
the court did not acquire jurisdiction over the
counterclaims for failure of Meliton to pay the docket
fees, hence the said dismissal does not constitute a bar to
the filing of the later complaint.
CA: The Meliton’s counterclaim against Ziga was a
compulsory counterclaim, it having (arisen) out of or
being necessarily connected with the transaction or
occurrence subject matter of the petitioner's complaint.
The failure of the Meliton to seek a reconsideration of the
dismissal of their counterclaim or to take an appeal
therefrom rendered the dismissal final. Such dismissal
barred the prosecution of their counterclaim by another
action.
ISSUES:
1. WoN the counterclaims of the Melitons are
compulsory in nature (YES)
2. WoN the Melitons, having failed to seek
reconsideration of or to take an appeal from the
order of dismissal of their counterclaims, are already
barred from asserting the same in another action (NO)
RATIO:
1. YES; all the requisites of a compulsory counterclaim
are present.
- The counterclaims, as this term is now broadly
defined, are logically related to the complaint.
Ziga’s complaint was for rescission of the
contract of lease due to petitioner Lydia Meliton's
breach of her obligations under the said
contract. On the other hand, Meliton’s
counterclaims were for damages for unlawful
demolition of the improvements she introduced
pursuant to her leasehold occupancy of the
premises, as well as for the filing of that civil suit
which is contended to be clearly unfounded.
- Both the claims therein arose from the same
contract of lease. The rights and obligations of
the parties, as well as their potential liability for
damages, emanated from the same contractual
relation. Melitons' right to claim damages for the
unlawful demolition of the improvements they
introduced on the land was based on their right
of possession under the contract of lease which is
precisely the very same contract sought to be
rescinded by Ziga in her complaint. The two
actions are but the consequences of the
reciprocal obligations imposed by law upon and
assumed by the parties under their aforesaid
lease contract.
- In actions for ejectment or for recovery of
possession of real property, it is well settled that
the defendant's claims for the value of the
improvements on the property or necessary
expenses for its preservation are required to be
interposed in the same action as compulsory
counterclaims. In such cases, it is the refusal of
the defendant to vacate or surrender possession
of the premises that serves as the vital link in the
chain of facts and events, and which constitutes
the transaction upon which the plaintiff bases his
cause of action. It is likewise an "important part of
the transaction constituting the subject matter of
the counterclaim" of defendant for the value of
the improvements or the necessary expenses
incurred for the preservation of the property.
They are offshoots of the same basic controversy
between the parties, that is, the right of either to
the possession of the property.
2. NO; Section 4, Rule 9 is not applicable to the
case at bar.
- In order that a prior judgment will constitute a bar
to a subsequent case, the following requisites
must concur: (1) the judgment must be final; (2)
the judgment must have been rendered by a
court having jurisdiction over the subject matter
and the parties; (3) the judgment must be on the
merits; and (4) there must be between the first
and second actions, identity of parties, of subject
matter, and of causes of action.
- The first case was dismissed upon motion of Ziga,
plaintiff therein, under Sec. 2 of Rule 17. Dismissal
thereunder is without prejudice, except when
otherwise stated in the motion to dismiss or when
stated to be with prejudice in the order of the
court. The order of dismissal of the first case was
unqualified, hence without prejudice and,
therefore, does not have the effect of an
adjudication on the merits. On a parity of
rationale, the same rule should apply to a
counterclaim duly interposed therein and which
is likewise dismissed but not on the merits thereof.
- In the same order of dismissal of the complaint,
the counterclaims of Meliton were dismissed by
reason of the fact the court a quo had not
acquired jurisdiction over the same for non-
payment of the docket fees. On that score, the
said dismissal was also without prejudice. A
dismissal on the ground of lack of jurisdiction
does not constitute res judicata, there having
been no consideration and adjudication of the
case on the merits. The dismissal of the case
without prejudice indicates the absence of a
decision on the merits and leaves the parties free
to litigate the matter in a subsequent action as
though the dismissal action had not been
commenced.
- A reading of the order of dismissal will show that
the trial court, in dismissing the complaint of Ziga,
did not intend to prejudice the claims of Meliton
by barring the subsequent judicial enforcement
thereof.
- Meliton’s claims for damages in the three
counterclaims interposed in said case, although
in the nature of compulsory counterclaims but in
light of the aforesaid reservation in the dismissal
order, are consequently independent causes of
action which can be the subject of a separate
action against Ziga.
DISPOSITIVE: CA Decision REVERSED and SET ASIDE. Case
is ordered REINSTATED.
Francisco Motors Corporation v Court of Appeals (1999) -
Quisumbing, J.
Plaintiff: Francisco Motors
Defendant: Sps Gregorio and Librada Manuel
Concept:
Brief facts: FMC filed a complaint against the Sps Manuel
to recover a sum of money (for the purchase and repair
of a jeep body). The spouses interposed a counterclaim
for unpaid legal services by Gregorio Manuel against the
incorporators, directors and officers of FMC. The TC
decided the case in favour of FMC, but also allowed the
counterclaim. For failure of FMC to answer the
counterclaim, the TC declared it in default and evidence
ex parte was presented. FMC was held liable for the legal
fees through the doctrine of the piercing of the corporate
veil.
Doctrine: A counterclaim or cross-claim must be
answered within 10 days from service (Sec 4, Rule 11).
Summons is not necessary.
ISSUES:
1. WON the doctrine of piercing the corporate veil has
application here. (NO)
2. WON there was jurisdiction over FMC with respect to
the counterclaim. (YES)
RATIO:
1. NO; the corporate veil cannot be pierced.
- The move to recover unpaid legal fees through a
counterclaim against FMC, to offset the unpaid
balance of the purchase and repair of a jeep body
could only result from an obvious misapprehension
that FMC’s corporate assets could be used to
answer for the liabilities of its individual directors,
officers and incorporators. Whatever obligation
they incurred, it was incurred in their personal
capacity.
2. YES; summons is not necessary.
- Section 4, Rule 11 provides that a counterclaim or
cross-claim must be answered within 10 days from
service. Nothing in the Rules says that summons
should first be served on the defendant before an
answer to a counterclaim must be made.
- Although a counterclaim is treated as an entirely
distinct and independent action, the defendant
in the counterclaim, being the plaintiff in the
original complaint, has already submitted to the
jurisdiction of the court.
DISPOSITIVE: Petition GRANTED insofar as it held FMC
liable for the legal obligation owing to Gregorio Manuel.
Visayan Packing Corporation v Reparations Commission
(1987) - Narvasa, J.
Plaintiff: VISPAC
Defendant: REPACOM
Concept: Compulsory Counterclaim
Brief facts: VISPAC and REPACOM entered into a
“Contract of Conditional Purchse and Sale of Reparation
Goods”. Before the first installment was due, REPACOM
sent VISPAC a written reminder. VISPAC then
commenced 2 special civil actions for declaratory relief
because the agreement’s alleged failure to clearly state
the precise time when the obligation to pay the first
instalment of the price would arise. VISPAC subsequently
failed to pay the first instalment so REPACOM instituted an
ordinary civil action for collection. VISPAC move to
dismiss the collection suit on the ground of the pendency
of the declaratory relief action. The Motion to Dismiss was
denied. On October 1962, the declaratory relief actions
were dismissed, holding that the issues raised would be
necessarily threshed out in the collection suit. In March
1963, VISPAC was also ordered to pay REPACOM.
Doctrine: GENERAL RULE: A compulsory counterclaim
cannot be made the subject of a separate action but
should be asserted in the same suit involving the same
transaction or occurrence giving rise to it. EXCEPTION:
When a pleader fails to set up a counterclaim through
oversight, inadvertence, or excusable negligence, or
when justice requires, he may, by leave of court, set up
the counterclaim or cross-claim by amendment before
judgment.
ISSUES:
WON the money claim had been barred for not being set
up as a compulsory counterclaim. (YES, but, also, NO)
RATIO:
YES, but, also, NO; substantial justice requires that the
proceedings be affirmed.
- GENERAL RULE: A compulsory
counterclaim cannot be made
the subject of a separate action
but should be asserted in the
same suit involving the same
transaction or occurrence giving
rise to it.
EXCEPTION: When a pleader fails to set up a
counterclaim through oversight, inadvertence, or
excusable negligence, or when justice requires,
he may, by leave of court, set up the
counterclaim or cross-claim by amendment
before judgment.
- There is nothing in the nature of a special civil
action for declaratory relief that proscribes the filing
of a counterclaim based on the same transaction,
deed or contract subject of the complaint.
- IDEALLY, the separate action for collection should
have been dismissed and set up as a compulsory
counterclaim in the declaratory relief suits by way
of an amended answer. Under the circumstances,
it would be to do violence to substantial justice to
pronounce the proceedings fatally defective for
breach of the rule on compulsory counterclaims.
DISPOSITIVE: Petition DISMISSED.
6. Cross-claims
RULE 6
Kinds of Pleadings
Section 2. Pleadings allowed. — The claims of a party are
asserted in a complaint, counterclaim, cross-claim, third
(fourth, etc.)-party complaint, or complaint-in-
intervention.
The defenses of a party are alleged in the answer to the
pleading asserting a claim against him.
An answer may be responded to by a reply. (n)
Section 8. Cross-claim. — A cross-claim is any claim by
one party against a co-party arising out of the
transaction or occurrence that is the subject matter
either of the original action or of a counterclaim therein.
Such cross-claim may include a claim that the party
against whom it is asserted is or may be liable to the
cross-claimant for all or part of a claim asserted in the
action against the cross-claimant. (7)
Section 9. Counter-counterclaims and counter-cross-
claims. — A counter-claim may be asserted against an
original counter-claimant.
A cross-claim may also be filed against an original cross-
claimant. (n)
- Where the cross-claim arises from the complaint
of the plaintiffs and is not separable from that
main action, the dismissal of the complaint
against all the defendants carries with it the
dismissal of the cross-claim that is defensive in
character because such cross-claim could only
succeed of the plaintiffs succeed. (Gubat)
- Requisites:
(1) A claim by one party against a co-party;
(2) It must arise out of the subject matter of the
complaint or of the counterclaim;
(3) The cross-claimant is prejudiced by the claim
against him by the opposing party
- The cross-claimants cannot claim more rights
than the plaintiffs themselves, on whose cause of
action the cross-claim depends.
- A cross-claimant is not the proper party to bring
an appeal. However, where the cross-claimant
files a separate answer making common cause
with the plaintiffs, his answer with cross-claim is, in
effect, a complaint against his co-defendants;
hence such cross-claimant could file a separate
petition for review with the CA. [Ruiz Jr. v CA
(1992, 1993)]
- General Rule: A cross-claim is always compulsory.
A cross-claim not set up shall be barred. [Rule 9,
Sec. 2]
- Exceptions: Permissive Cross-Claims
o When it is outside the court’s jurisdiction;


o If the court cannot acquire jurisdiction 
 matured or was acquired by a party after serving his
over third parties whose presence is
necessary for the adjudication of said
cross-claim. In this case, the cross-claim is
considered permissive. 

o Cross claim that may mature or may be
acquired AFTER service of Answer 
 a pleader fails to set up a counterclaim or a cross-claim
- Improper Cross-Claims
 through oversight, inadvertence, or excusable neglect, or
o Where the cross-claim is improper, the
remedy is certiorari (Malinao v. Luzon
Surety, 1964)
o The dismissal of a cross-claim is 

unappealable when the order dismissing
the complaint becomes final and
executory (Ruiz, Jr. v. CA, 1993) 
 counterclaim need not be answered especially
o A cross-claim is not allowed after
declaration of default of cross-claimant
(Tan v. Dimayuga, 1962) It would be
tantamount to setting aside the order of
default because then the cross-claimant
would re-obtain a standing in court as
party litigant 
 raises issues not covered by the complaint should
RULE 9
Effect of Failure to Plead
Section 2. Compulsory counterclaim, or cross-claim, not
set up barred. — A compulsory counterclaim, or a cross-
claim, not set up shall be barred. (4a)
- A counterclaim not set up shall be barred if it
arises out of or is necessarily connected with the
transaction or occurrence that is the subject
matter of the opposing party’s claim and does
not require for its adjudication the presence of
third parties whom the court cannot acquire
jurisdiction.
- A pleader who fails to set up a counterclaim or
cross-claim through oversight, inadvertence, or
excusable negligence, or when justice requires,
he may, by leave of court, set it up by way of
amendment prior to judgment. (Sec. 10, Rule 11)
RULE 11
When to File Responsive Pleadings
Section 4. Answer to counterclaim or cross-claim. — A
counterclaim or cross-claim must be answered within ten
(10) days from service. (4)
Section 8. Existing counterclaim or cross-claim. — A
compulsory counterclaim or a cross-claim that a
defending party has at the time he files his answer shall
be contained therein. (8a, R6)
Section 9. Counterclaim or cross-claim arising after
answer. — A counterclaim or a cross-claim which either
pleading may, with the permission of the court, be
presented as a counterclaim or a cross-claim by
supplemental pleading before judgment. (9, R6)
Section 10. Omitted counterclaim or cross-claim. — When
when justice requires, he may, by leave of court, set up
the counterclaim or cross-claim by amendment before
judgment. (3, R9)
- Although this rule is couched in mandatory
language, it is believed that a compulsory
when the compulsory counterclaim merely
reiterates special defenses which are deemed
controverted even without a reply, or raises issues
which are deemed automatically joined by the
allegations of the complaint.
- However, a compulsory counterclaim which
be answered, otherwise the defendant may be
 declared in default with respect to such
counterclaim.
- If the counterclaim is permissive, it must be
answered within the reglementary period of ten
(10) days from service of answer containing such
counterclaim.
7. Third-party complaint
RULE 6
Kinds of Pleadings
Section 11. Third, (fourth, etc.)—party complaint. — A
third (fourth, etc.) — party complaint is a claim that a
defending party may, with leave of court, file against a
person not a party to the action, called the third (fourth,
etc.) — party defendant for contribution, indemnity,
subrogation or any other relief, in respect of his
opponent's claim. (12a)
- It is an action actually independent of, separate
and distinct from the plaintiff’s complaint” such
that, were it not for the Rules of Court, it would be
necessary to file the action separately from the
original complaint by the defendant against the
third party. (Gubat)
- Predicated on the need for expediency and the
avoidance of unnecessary lawsuits. (Gubat)
- The rule is that a trial court which has jurisdiction
over the main action, also has jurisdiction over
the third party complaint, even though said court
would have had no jurisdiction over it had it
been filed as an independent action.
(Regalado)
- When admitted by the court, the third-party
defendant must be served summons together
with a copy of the third party complaint so the
court will acquire jurisdiction over him.
- Matters, which should be threshed out
separately, cannot be joined to the original
action by means of a third-party complaint.
- It cannot be filed in a special civil action for
declaratory relief as no material relief is sought in
such action.
- Tests for admissibility:
(1) Whether it arises out of the same
transaction on which the plaintiff’s claim
is based, or whether the third-party’s
claim, although arising out of another or
different contract or transaction, is
connected with the plaintiff’s claim;
(2) Whether the third-party defendant
would be liable to the plaintiff or the
defendant for all or part of the plaintiff’s
claim against the original defendant,
although the third-party defendant’s
liability arises out of another transaction;
or
(3) Whether the third-party defendant may
assert any defense which the third-party
plaintiff has, or may have against the
plaintiff’s claim.
Republic vs Central Surety (1968) – Callejo Sr., J
Petitioner: Republic of the Philippines
Respondents: Central Surety and Insurance Co.
Third Party Plaintiff: Central Surety and Insurance Co.
Third Party Defendant: Po Kee Kam, et. Al.
Concept: Third Party Complaint
Doctrine: A third-party complaint is anancillary suit which
depends on the jurisdiction of the court over the main
action.
FACTS:
RP filed suit against the Central Surety for a bond Central
executed in favor of the Deportation Board a bond in the
amount of P5,000 for the temporary release of Po Kee
Kam, a Chinese citizen and respondent in deportation
proceeding. Po Kee Kam failed to appear at the
scheduled hearing. Central failed to remit the bond to
the RP despite due notice. Central then filed a third-party
complaint, with leave of court, against Po Kee Kam and
Tony Go. RTC dismissed 3rd Party complaint against Po
Kee Kam and Tony Go (the third-party complaint was
filed after the passage of the new law conferring original
jurisdiction on the Municipal Court in civil cases involving
not more than P10,000.00, and it likewise appearing that
the third-party complaint refers to a claim of only
P6,000.00).
ISSUE:
WON RTC had jurisdiction over the 3 rd Party Complaint?
(YES)
RATIO:
It is true that the third-party complaint was filed after the
effectivity date of Republic Act 3828. It is likewise true that
the demand therein made does not exceed P10,000,
and, therefore, is not within the jurisdiction of the Court of
First Instance if it were an independent action. But the
third-party complaint is an ancillary suit which depends
on the jurisdiction of the court over the main action. Since
the trial court had acquired jurisdiction over the
complaint, it necessarily follows that it likewise had
jurisdiction over the third-party complaint which is but an
incident thereof.
This must be so because jurisdiction over the main case
embraces all incidental matters arising therefrom and
connected therewith. A contrary rule would result in "split
jurisdiction" which is not favored, and in multiplicity of
suits, a situation obnoxious to the orderly administration of
justice. The court acquired jurisdiction over the third-party
complaint, provided it had jurisdiction over the main
case, for the reason that the third-party complaint is but a
continuation thereof, its purpose being to seek
"contribution, indemnity, subrogation or any other relief, in
respect to his opponent's claim.
Pascual vs. Bautista (1970) – Dizon, J
Third party plaintiff: Pilar Bautista
Third party defendant: Mariano R. Flores
Concept: Third-party claims
Doctrine: For a claim to be properly raised in a pending
action by way of third party complaint, it is not necessary
that it be one arising from or entirely dependent upon the
main action; it is enough that it be “in respect” of the
claim of third party plaintiff’s opponent (pursuant to Sec.
12, Rule 6) or that it be connected with plaintiff’s claim.
FACTS: In a civil case between Pascual and Bautista et
al., Bautista filed a third-party complaint against Mariano
R. Flores, in which the latter was declared in default. After
trial, RTC ruled in favor of plaintiff. All parties appealed
except Flores, which was affirmed by the CA and SC. A
writ of execution was issued, but was subsequently set
aside by the RTC, upon motion by Flores, on the ground
that more than ten years had already elapsed since the
judgment, so that no writ of execution of said judgment
can now be issued pursuant to Sec. 6, Rule 39. Bautista
filed an action for the revival of the final judgment, which
Flores opposed on the ground that said judgment had
already prescribed per Sec. 6, Rule 39
ISSUE: WON the judgment could be revived (NO)
RATIO:
No. A judgment made in default is deemed to be
immediately final and executory.
- Essential issue is which judgment, between the CFI or
SC could be revived. If it is the CFI’s, then it could not
be revived because it is now time bared; while if it
was the SC decision, such action should prosper.
- 2 undisputed facts to support non-revival:
o Flores did not appeal the CFI decision. As
such, it is not affected at all either by the CA
or SC decision on appeal.
o A judgment by default by the CFI is not
appealable and deemed to be immediately
executory under Sec. 7, Rule 35. Therefore,
even if Flores had attempted to appeal, it
would have been out of order.
- Bautista: The judgment by default may not be
considered final or enforceable until the final
determination of the main case.
- SC: Argument might only apply if the cause of action
alleged in the third party complaint was dependent
upon the success or failure of the claim subject
matter of the main action.
- Such is not the case here, where the COA in the third
party claim is for the recovery of liquidated damages
in case the deed of sale is not executed, while the
COA in the main case is the rescission of the lease
and the recovery of several sums of money.
- It is clear that for a third-party claim to be raised in a
pending action, it is not necessary that it be one
arising from or entirely dependent upon the main
action; it is enough that it be “in respect” of the claim
of third party plaintiff’s opponent (pursuant to Sec.
12, Rule 6) or that it be connected with plaintiff’s
claim.
DISPOSITIVE: CA Affirmed
C. Reply
RULE 6
Kinds of Pleadings
Section 10. Reply. — A reply is a pleading, the office or
function of which is to deny, or allege facts in denial or
avoidance of new matters alleged by way of defense in
the answer and thereby join or make issue as to such new
matters. If a party does not file such reply, all the new
matters alleged in the answer are deemed controverted.
- The plaintiff’s response to the defendant's
answer. The function of which is to deny or allege
facts in denial or in avoidance of new matters
alleged by way of defense in the answer and
thereby join or make issue as to such new
matters.
- Effect of Failure to Reply
o General Rule - Filing a reply is merely
optional. New facts that were alleged in
the answer are deemed controverted
should a party fail to reply thereto.
o Exception–When a Reply is necessary
(a) To set up affirmative defenses on the
counterclaim [Rosario v. Martinez]
(b) Where the answer alleges the
defense of usury in which case a reply
under oath should be made;
otherwise, the allegation of usurious
interest shall be deemed admitted
[Rule 8, Sec. 8; Sun Bros. v. Caluntad]
(c) Where the defense in the answer is
based on an actionable document, a
reply under oath must be made;
otherwise, the genuineness and due
execution of the document shall be
deemed admitted. [Rule 8, Sec. 11;
Toribio v. Bidin]
RULE 11
When to File Responsive Pleadings
Section 10. Omitted counterclaim or cross-claim. — When
a pleader fails to set up a counterclaim or a cross-claim
through oversight, inadvertence, or excusable neglect, or
when justice requires, he may, by leave of court, set up
the counterclaim or cross-claim by amendment before
judgment. (3, R9)
Pleadings may be amended:
(1) By leave of court;
(2) Beforejudgment;
(3) On the grounds of:
a. Oversight;
b. Inadvertence;
c. Excusable neglect;
 d. When justice requires.
D. Intervention
RULE 19
Intervention
Section 1. Who may intervene. — A person who has a
legal interest in the matter in litigation, or in the success of
either of the parties, or an interest against both, or is so
situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or
of an officer thereof may, with leave of court, be allowed
to intervene in the action. The court shall consider
whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original
parties, and whether or not the intervenor's rights may be
fully protected in a separate proceeding. (2[a], [b]a, R12)
Section 2. Time to intervene. — The motion to intervene
may be filed at any time before rendition of judgment by
the trial court. A copy of the pleading-in-intervention shall
be attached to the motion and served on the original
parties. (n)
Section 3. Pleadings-in-intervention. — The intervenor shall
file a complaint-in-intervention if he asserts a claim
against either or all of the original parties, or an answer-in-
intervention if he unites with the defending party in
resisting a claim against the latter. (2[c]a, R12)
Section 4. Answer to complaint-in-intervention. — The
answer to the complaint-in-intervention shall be filed
within fifteen (15) days from notice of the order admitting
the same, unless a different period is fixed by the court.
(2[d]a, R12)
- A legal remedy whereby a person is permitted to
become a party in a case, by either:
(1) Joining the plaintiff;
(2) Joining the defendant;
(3) Asserting his right against both plaintiff
and defendant, considering that either:
(a) He has a legal interest in the subject
matter of the action;
(b) He has legal interest in the success of 

either of the parties
(c) He has legal interest against both of 
the
parties
(d) He is going to be adversely affected by 
 progresses and changes at times to a strictness
the disposition of the property in the
custody of the court [Rule 19, Sec. 1]
- Intervention is never an independent action, but
is ancillary and supplemental to the existing
litigation. Its purpose is to afford one not an
original party, yet having a certain right/interest
in the pending case, the opportunity to appear
and be joined so he could assert or protect such
right/interest. [Carino v. Ofilada, 1993]
- The requisites of intervention are:
(1) Legal interest:
(a) In the matter in controversy; or
(b) In the success of either of the parties; or
(c) Against both; or
(d) So situated as to be adversely affected
by a distribution or other disposition of
property in the custody of the court or of
an office thereof;
(2) Intervention will not unduly delay or
prejudice the adjudication of rights of
original parties
(3) Intervenor’s rights may not be fully
protected in a separate proceeding
[Lorenza Ortega v. CA, 1998] 

VI. Amendments and Supplements
RULE 10
Amended and Supplemental Pleadings
Section 1. Amendments in general. — Pleadings may be
amended by adding or striking out an allegation or the
name of any party, or by correcting a mistake in the
name of a party or a mistaken or inadequate allegation
or description in any other respect, so that the actual
merits of the controversy may speedily be determined,
without regard to technicalities, and in the most
expeditious and inexpensive manner. (1)
HOW TO AMEND PLEADINGS [Rule 10,Sec. 1]
(1) Adding an allegation of a party;
(2) Adding the name of a party;
(3) Striking out an allegation of a party;
(4) Striking out the name of a party;
(5) Correcting a mistake in the name of a party; and
(6) Correcting a mistaken or inadequate allegation or
description in any other respect
A new copy of the entire pleading, incorporating the
amendments, which shall be indicated by appropriate
marks, shall be filed. [Rule 10, Sec. 7]
Purpose: That the actual merits of the controversy may
speedily be determined, without regard to technicalities,
and in the most expeditious and inexpensive manner.
As a general policy, liberality in allowing amendments is
greatest in the early stages of a law suit, decreases as it
amounting to a prohibition. This is further restricted by the
condition that the amendment should not prejudice the
adverse party or place him at a disadvantage. [Barfel
Development v. CA, 1993]
Types of Amendments:
(1) Amendment as a matter of right
(2) Amendment as a matter of judicial discretion
RULE 10
Section 2. Amendments as a matter of right. — A party
may amend his pleading once as a matter of right at any
time before a responsive pleading is served or, in the
case of a reply, at any time within ten (10) days after it is
served. (2a)
AMENDMENTS AS A MATTER OF RIGHT [Rule 10, Sec. 2]
When amendment is allowed as a matter of right:
(1) Once as a matter of course
(a) A 2nd or subsequent amendment must now
be with leave of court, not a matter of right
anymore
(2) Instances:
(a) Substantial amendment – before responsive
pleading is filed
(i) Amendment of complaint before an
answer is filed.
(ii) Amendment of answer before a
reply is filed or before the period for
filing a reply expires
(iii) Amendment of reply any time
within 10 days after it is served
(b) Formal amendment
A motion to dismiss is NOT a responsive pleading that will
prevent the amendment of a complaint as a matter of
right. Hence, the original complaint may still be amended
as a matter of right despite the filing of a motion to
dismiss by the defendant (Prudence Realty and Dev’t.
Corp. vs. CA)
When amendment is matter of right, the following may be
done:
1. Substantial change in the cause of action
2. Alter the theory of the case
3. Confer jurisdiction to the court
Where some but not all the defendants have not yet
answered, plaintiffs may amend their complaint once, as
a matter of right, in respect to claims asserted solely
against the non-answering defendants, but NOT as to
claims asserted against the OTHER defendants (Siascoco
v. CA)
New summons is required to be served on the defendant
with the amended complaint if new causes of action are
alleged in such amended complaint (De Dios v. CA).
However, if the defendant had already appeared in
court in response to the first summons, so that he was
already in court when the amended complaint was filed,
then ordinary service of that pleading upon him would be
sufficient and no new summons need be served upon
him, except when additional parties are impleaded in
which case summons should be served upon such
additional parties
Docket fee should be based on the amended pleading
RULE 10
Section 3. Amendments by leave of court. — Except as
provided in the next preceding section, substantial
amendments may be made only upon leave of court.
But such leave may be refused if it appears to the court
that the motion was made with intent to delay. Orders of
the court upon the matters provided in this section shall
be made upon motion filed in court, and after notice to
the adverse party, and an opportunity to be heard. (3a)
AMENDMENTS BY LEAVE OF COURT
[Rule 10, Sec. 3]
When leave of court is necessary before amendment is
allowed:
(1) All substantial amendments (unless it falls under Rule
10, Sec. 2 as a matter of right)
(2) When a responsive pleading has already been served
Requisites:
(1) A motion for leave of court to amend pleading is filed
(a) Amended pleading should be attached to the
motion [see Sec. 9, Rule 15]
(2) Notice is given to the adverse party
(3) Parties are given opportunity to be heard
Grounds for allowance of the amendment
(1) If it appears to the court that the motion was made to
delay the action, leave of court is not given
(2) There must be some reasonable grounds justifying its
exercise of discretion to allow amendment
When amendment by leave of court may not be allowed
(1) If the cause of action, defense or theory of the case is
changed.
(2) If amendment is intended to confer jurisdiction to the
court.
(a) If the court has no jurisdiction in the subject
matter of the case, the amendment of the
complaint cannot be allowed so as to confer
jurisdiction on the court over the property. [PNB v.
Florendo (1992)]
(3) If amendment is for curing a premature or non-existing
cause of action.
(4) If amendment is for purposes of delay.
Court’s exercise of this discretion will not be disturbed on
appeal except in case of evident abuse thereof (Peneyra
v. IAC)
Test of introduction of new cause of action: whether the
defendant shall be required to answer for a liability or
legal obligation wholly different from that which was
stated in the original complaint.
RULE 10
Section 4. Formal amendments. — 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. (4a)
FORMAL AMENDMENTS
(Rule 10, Sec. 4)
When an amendment is formal:
(1) When there is a mere defect in the designation of the
parties;
(2) Other clearly clerical or typographical errors
How formal amendments are effected
(1) It may be summarily corrected by the court at any
stage of the action
(2) A party may, by motion, call for the formal
amendment
NOTE: The formal amendment must NOT cause prejudice
to the adverse party
Amendment pending appeal
May be permitted by court even if for the first time on
appeal in order to substitute the name of the real party in
interest provided that such an amendment should not
involve a change in the cause of action or result in undue
prejudice to the adverse party (Unda v. COMELEC)
RULE 10
Section 5. Amendment 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 effect 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. (5a)
AMENDMENTS TO CONFORM TO OR AUTHORIZE
PRESENTATION OF EVIDENCE [Rule 10, Sec. 5]
Applicability of Sec. 5 - This is an instance wherein the
court acquires jurisdiction over the issues even if the same
are not alleged in the original pleadings of the parties
where the trial of said issues is with the express or implied
consent of the parties
What Sec. 5 contemplates:
(1) It allows a complaint which states no cause of action
to be cured either by:
(a) Evidence presented without objection or
(b) In the event of an objection sustained by the
court, by an amendment of the complaint with
leave of court
(2) It also allows the admission of evidence:
(a) On a defense not raised in a motion or answer if
no objection is made thereto;
(b) In the event of such objection, court may allow
amendment of the answer in order to raise said
defense
NOTE: Remember, however, that where the plaintiff has
no valid cause of action at the time of the filing of the
complaint, this defect cannot be cured or remedied by
the acquisition or accrual of one while the action is
pending
Two Scenarios:
(1) When evidence is NOT objected to
- When issues not raised by pleadings are tried by
express or implied consent of the parties, they
shall be treated in all respected as if they had
been raised in the pleadings (complaint is
deemed ipso facto rectified)
- Such amendments of pleadings as may be
necessary to cause them to conform to the
evidence and 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 those issues
(2) When evidence IS objected to:
- Objection on the ground that it is not within the
issues made by the pleadings
- Court may allow the pleadings to be amended
and shall do so freely when the presentation of
the merits of the action will be subserved
 - As safeguard, the court may grant a Supplemental
Amended Pleading
continuance to enable the objecting party to Pleading
meet such evidence
Refers to facts Refers to facts
ALREADY EXISTING at arising AFTER the
Section 6. Supplemental pleadings. — Upon motion of a FACTS the time of the filing of the original
party the court may, upon reasonable notice and upon commencement of pleading
such terms as are just, permit him to serve a supplemental the action
pleading setting forth transactions, occurrences or events
which have happened since the date of the pleading Results in the Merely an addition
sought to be supplemented. The adverse party may EFFECT TO withdrawal or the to, but does NOT
plead thereto within ten (10) days from notice of the ORIGINAL original pleading result in the
order admitting the supplemental pleading. (6a) PLEADING withdrawal of, the
original pleading

Can be made as a Can only be made

SUPPLEMENTAL PLEADINGS matter of right, as with leave of court,
when no responding upon motion of a
HOW
Definition: One which sets forth transactions, occurrences pleading has yet party
MADE
or events which have happened since the date of the been filed, or
pleading sought to be supplemented. [Rule 10, Sec. 6] discretion of the
court
Purpose: To bring into the records new facts which will
enlarge or change the kind of relief to which the plaintiff When an amended A supplemental
is entitled [Ada v. Baylon (2012), citing Young v. Spouses NEW COPY pleading is filed, a pleading does not
Yu] OF new copy of the require the filing of
PLEADING entire pleading must a new copy of the
- A supplemental complaint/pleading supplies be filed entire pleading
deficiencies in aid of an original pleading, not to
entirely substitute the latter.
- Thus, a supplemental complaint must be
consistent with and in aid of, the cause of action RULE 10
set forth in the original complaint and a new or
independent cause of action cannot be set up Section 7. Filing of amended pleadings. — When any
by such complaint (Pasay City Government v. pleading is amended, a new copy of the entire pleading,
CFI of Manila [1984]) incorporating the amendments, which shall be indicated
by appropriate marks, shall be filed. (7a)

Admission of supplemental pleading is discretionary, not How Amendments are Indicated

a matter of right.
How Made: It is made upon motion of a party with
reasonable notice and upon terms as are just.
Amendments to a pleading should be indicated in the
amended pleading, as by underscoring or underlining,
enclosing them in quotation marks, italization, putting
them in capital letters, or in any other manner as would
clearly exhibit such amendments.

Limitations:

(1) Claims or defenses which have matured after the
filing of the original pleadings cannot be averred in a
supplemental pleading (it may be the subject of an
amendment)
(2) Supplemental pleadings are not allowed on separate
and distinct causes of action
(a) A supplemental pleading may raise a new
cause of action as long as it has some relation to
the original cause of action set forth in the
original complaint. [Ada v. Baylon (2012)]
(3) The admission or non-admission of a supplemental
pleading is not a matter of right but is discretionary
on the court
Amended vs Supplemental Pleadings
How to File
Amended pleadings (not as a matter of right) and
Supplemental Pleadings are filed by filing a motion for
leave to file such pleading which motion shall be
accompanied by the pleading which shall be
accompanied by the pleading or motion sought to be
admitted (Sec. 9, Rule 15)
RULE 10
Section 8. Effect of amended pleadings. — An amended
pleading supersedes the pleading that it amends.
However, admissions in superseded pleadings may be
received in evidence against the pleader, and claims or
defenses alleged therein not incorporated in the
amended pleading shall be deemed waived. (n)
EFFECT OF AMENDED PLEADING [Rule 10, Sec. 8]
(1) An amended pleading supersedes the pleading that
it amends
(2) Admissions in the superseded pleading can still be
received in evidence against the pleader
(3) Claims or defenses alleged therein but not
incorporated or reiterated in the amended pleading are
deemed waived
EFFECT OF ADMISSIONS IN PLEADINGS
- Admission cannot be controverted by the party
making making such admission and are conclusive as
to him, and that all proofs submitted by him contrary
thereto or inconsistent therewith should be ignored,
whether objection is interposed by the party or not
Leobrera v. CA (1989) – Cortes, J.
Petitioner: Carlos Leobrera
Respondents: CA and BPI
Concept: Amendments and Supplements
Doctrine: A supplemental complaint should, as the name
implies, supply only deficiencies in aid of an original
complaint. The matters therein must be based on matters
arising subsequent to the original complaint related to
the claim or defense presented therein and founded on
the same cause of action. It cannot be used to try a new
matter or new cause of action.
FACTS:
Carlos Leobrera was granted by BPI a P800k line of credit.
This was secured by two real estate mortgages and
evidenced by two 90-day promissory notes for P500k and
P300k. Apart from this line of credit, Leobrera was also
granted a separate 3-year term loan for an amount of
P500k, and evidenced by a promissory note for the same
amount. This loan was also secured, by a real estate
mortgage. When the two 90-day notes matured, BPI and
Leobrera were unsuccessful in negotiating the terms for
their renewal. Due to a lack of agreement, BPI prepared
to foreclose the first two real estate mortgages. Before BPI
could push through with the foreclosures, Leobrera filed a
complaint for damages with a prayer for a writ of
preliminary injunction in the RTC. The said writ was
eventually issued. Meanwhile, the Bank wrote Leobrera
that since he failed to pay the amortization due on the 3-
year term loan, BPI opted to accelerate the maturity of
the loan and make the same due and demandable. BPI
also threatened to foreclose the mortgage securing the
said loan. Before BPI could make good on the threat,
Leobrera filed a Motion to File Supplemental Complaint in
the RTC, with the supplemental complaint attached to it,
which prayed for another injunction to restrain BPI from
foreclosing the third mortgage. This was granted. BPI
raised the matter to CA, which ruled in its favor, voiding
the order of the RTC judge. Hence, this petition by
Leobrera.
ISSUE: WON there was a grave abuse of discretion in the
admission of the supplemental complaint (YES)
RATIO:
The matters raised in the supplemental complaint are
entirely different and unrelated from the causes of action
raised in the original complaint, and hence, cannot be
admitted.
- A supplemental complaint should, as the name
implies, supply only deficiencies in aid of an original
complaint
- The matters therein must be based on matters arising
subsequent to the original complaint related to the
claim or defense presented therein and founded on
the same cause of action.
- It cannot be used to try a new matter or new cause of
action.
- Since the P500k loan is a separate transaction from
that of P800k line of credit, the matter in the former
cannot be admitted in a supplemental complaint and
is the proper subject of separate complaint, even if
the reliefs prayed for both causes are similar.
DISPOSITIVE: Petition denied. Injunction lifted.
Lambino v. Presiding Judge (2007) – Callejo, Sr., J.
Petitioner: Sps. Orlando and Carmelita Lambino
Respondent: Hon. Presiding Judge, RTC Branch 172
Concept: Amendments and Supplements
Doctrine: An amended/supplementary complaint is
meant to supply the deficiencies in the original complaint
and not to supplant it. The admission of a supplementary
complaint is discretionary on the part of the judge,
considering two factors: (1) the resulting prejudice to the
parties, and (2) whether the movant will be prejudice if
the supplemental pleading will be denied.
FACTS:
The Lambinos took out a loan with BPI Family Savings
Bank for the amount of P600k, with an interest rate of 19%
per annum. It was secured by a real estate mortgage.
When the Lambinos failed to pay the monthly
amortizations, BPI moved to foreclose the mortgaged
property. However, a complaint for the annulment of the
loan and the foreclosure of the mortgage was filed by
the Lambinos in the RTC. While the case was pending, the
Lambinos offered to settle their account. This was, DISPOSITIVE: Petition dismissed. CA affirmed.
however, rejected by BPI. The RTC suspended the pre-trial
proceedings to allow the parties to amicably settle the
case. They were unable to come to unagreement,
however, and so the proceedings resumed in September
1998. On July 2000, the Lambinos filed a supplemental
complaint where they alleged that the bank imposed
arbitrary rates of interests and damages, claiming that
they were only informed of them now. However, the RTC
did not admit the supplementary pleadings, as the rates
of interests allegedly arbitrarily set have already been
accruing since the release of the loan, and hence are
not proper matter for supplementary complaints and
should have been alleged in the original complaint.
When raised to the CA, the CA affirmed the ruling of the
RTC. Hence this petition.

ISSUE: WON the supplementary complaint should be

admitted (NO)

RATIO:

The matter in the supplementary complaint should have

been included in the original complaint and is improperly
submitted in a supplementary pleading.

- The SC upheld the factual findings of the RTC and

held that these rates of interests and damages added
by BPI were already accruing when the proceeds of
the loan were released. Hence, the Lambinos were
already aware of these facts before they filed the
original complaint.
- According to Sec. 6, Rule 10 of the Rules of Court, the
proper subject of a supplementary complaint is only
those transactions, occurrences, or events, which
accrued after the date of the complaint.
- The purpose of the rule is that the entire controversy
might be settled in one action; to avoid unnecessary
litigation; prevent delay, unnecessary repetition of
effort; unwarranted expense of litigants; to broaden
the scope of the issues in an action owing to the light
thrown on it by facts, events and occurrences which
have accrued after the filing of the original pleading;
to bring into record the facts enlarging or charging
the kind of relief to which plaintiff is entitled.
- Also, the admission or non-admission of a
supplemental pleading is discretionary on the part of
the court, depending on two factors: (1) the resulting
prejudice to the parties, and (2) whether the movant
will be prejudice if the supplemental pleading will be
denied.
- The Lambinos should have sought to nullify these rates
of interests and damages along in the original
complaint and not in a supplemental pleading. They
did not and are now thus proscribed from
incorporating them in a belated supplementary
complaint.
VII. Filing
A. Modes of filing
RULE 13
Filing and Service of Pleadings, Judgments and Other
Papers
Section 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)
FILING VERSUS SERVICE OF PLEADINGS
- Filing - The act of presenting the pleading or other
paper to the clerk of court. [Rule 13, Sec. 2]
- Service - The act of providing a party or his counsel
with a copy of the pleading or paper concerned.
[Rule 13, Sec. 2]
Service to the lawyer binds the party. But service to the
party does not bind the lawyer, unless ordered by the
court in the following circumstances:
(1) When it is doubtful who the attorney for such
party is; or
(2) When the lawyer cannot be located; or
(3) When the party is directed to do something
personally, as when he is ordered to show cause.
[Retoni, Jr. v. CA]
Notice to the lawyer who appears to have been
unconscionably irresponsible cannot be considered as
notice to his client, as it would then be easy for the lawyer
to prejudice the interests of his client by just alleging that
he just forgot every process of the court affecting his
clients, because he was so busy. [Bayog v. Natino]
If counsel moved to another address without informing
the court of his change of address, the omission or
neglect will not stay the finality of the decision. The fact
that the counsel used a different address in the later
pleadings should not be taken as notice to the court of
either a change of address or of another address in
addition to that which was already of record.
When Notice to Party is Proper
(a) ordered by the court (Sec. 2, Rule 14); or
(b) when such service was made before the entry o
appearance in writing by an attorney; or
(c) when he appears before the court without a
counsel; or
(d) when the rule requires service upon the party
himself
A notice sent to the wrong address is not and cannot be
a notice within the contemplation of the rules.
RULE 13
Section 3. Manner of filing. — 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.
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. (1a)
MANNER OF FILING
(1) Personally
(a) By personally presenting the original to the clerk
of court.
(b) The pleading is deemed filed upon the receipt
of the same by the clerk of court who shall
endorse on it the date and hour of filing.
(c) If a party avails of a private carrier, the date of
the court’s actual receipt of the pleading (not
the date of delivery to the private carrier) is
deemed to be the date of the filing of that
pleading. [Benguet Electric Cooperative v.
NLRC (1992)]
(2) By Registered Mail
(a) Filing by mail should be through the registry
service (i.e. by depositing the pleading in the
post office).
(b) The pleading is deemed filed on the date it was
deposited with the post office.
Filing a pleading by facsimile is not sanctioned. But fax
was allowed in an extradition case [Justice Cuevas v.
Juan Antonio Munoz]
Procedure in filing and service
- A copy of the pleading is first or simultaneously
furnished the opposing party. Proof of such is
indicated on the original of the pleading file din
court, such indication being either a handwritten
acknowledgment by the adverse party or registry
receipt
- Service precedes filing
- If pleading is filed in court without a copy thereof
previously or simultaneously served upon the
opposing party  clerk of court should NOT receive it
for filing.
General rule: Personal filing and service is preferred. [Rule
13, Sec. 11]
Resort to other modes of filing and service must be
accompanied by an explanation why the service/filing
was not done personally. If there is no written
explanation, the paper is considered not filed.
Exception: Papers emanating from the court.

Transmission through a private carrier or letter-forwarder
instead of the Philippine Post Office is NOT a recognized
mode of filing pleadings. The date of delivery of
pleadings to a private letter-forwarding agency is not to
be considered as the date of filing thereof in court, and
that in such cases, the date of actual receipt by the
court, and not the date of delivery to private carrier, is
deemed the date of filing of that pleading (Industrial
Timber Corp. vs. NLRC [1994])
RULE 13
Section 4. Papers required to be filed and served. — Every
judgment, resolution, order, pleading subsequent to the
complaint, written motion, notice, appearance,
demand, offer of judgment or similar papers shall be filed
with the court, and served upon the parties affected.
(2a)
RULE 13
Section 12. Proof of filing. — The filing of a pleading or
paper shall be proved by its existence in the record of the
case. If it is not in the record, but is claimed to have been
filed personally, the filing shall be proved by the written or
stamped acknowledgment of its filing by the clerk of
court on a copy of the same; if filed by registered mail, by
the registry receipt and by the affidavit of the person who
did the mailing, containing a full statement of the date
and place of depositing the mail in the post office in a
sealed envelope addressed to the court, with postage
fully prepaid, and with instructions to the postmaster to
return the mail to the sender after ten (10) days if not
delivered. (n

Papers required to be filed and served:

(1) Pleading subsequent to the complaint;

(2) Appearance;
(3) Written Motion;
(4) Notice;
(5) Order;
(6) Judgment;
(7) Demand;
(8) Offer of Judgment;
(9) Resolution;
(10) Similar papers.

RULE 13

Section 11. Priorities in modes of service and filing. —

Whenever practicable, the service and filing of pleadings
and other papers shall be done personally. Except with
respect to papers emanating from the court, a resort to
other modes must be accompanied by a written
explanation why the service or filing was not done
personally. A violation of this Rule may be cause to
consider the paper as not filed. (n)

PRIORITIES IN MODES OF SERVICE AND FILING


B. Modes of service
RULE 13
Section 5. Modes of service. — Service of pleadings
motions, notices, orders, judgments and other papers
shall be made either personally or by mail. (3a)
1. Personal
RULE 13
Section 6. Personal service. — Service of the papers may
be made by delivering personally a copy to the party or
his counsel, or by leaving it in his office with his clerk or
with a person having charge thereof. If no person is found
in his office, or his office is not known, or he has no office,
then by leaving the copy, between the hours of eight in
the morning and six in the evening, at the party's or
counsel's residence, if known, with a person of sufficient
age and discretion then residing therein. (4a)
Personal Service [Rule 13, Sec. 6]
(1) Delivering personally a copy to the party, who is not
represented by a counsel, or to his counsel; or
(2) Leaving a copy in counsel’s office with his clerk or with
a person having charge thereof; or
(3) Leaving the copy between 8am and 6pm at the
party’s or counsel’s residence, if known, with a person of
sufficient age and discretion then residing thereon – if not
person is found in his office, or if his office is unknown, or if
he has no office
2. Mail
RULE 13
Section 7. Service by mail. — Service by registered mail
shall be made 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, 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 undelivered. If no registry service is
available in the locality of either the senders or the
addressee, service may be done by ordinary mail. (5a;
Bar Matter No. 803, 17 February 1998)
Service by Mail [Rule 13, Sec. 7]
(1) Ordinary Mail - it does not constitute filing until the
papers are actually delivered into the custody of
clerk or judge
(a) Service may be done by ordinary mail if no
registry service is available in the locality of
either sender or addressee
(2) Registered Mail - The date of mailing is the date of
filing
(a) Date of filing is determinable from 2 sources
(whichever will suffice to prove the timeliness
of the filing of the pleadings):
(i) From the post office stamp on the
envelope or
(ii) From the registry receipt
(b) It is done by depositing in the post office:
(i) In a sealed envelope
(ii) Plainly addressed to the party or his
counsel
(a) At his office if known
(b) Otherwise, at his residence if known
(iii) Postage fully pre-paid
(iv) With instructions to the postmaster to return
the mail to the sender after 10 days if
undelivered
3. Substituted
RULE 13
Section 8. Substituted service. — If service of pleadings,
motions, notices, resolutions, orders and other papers
cannot be made under the two preceding sections, the
office and place of residence of the party or his counsel
being unknown, service may be made by delivering the
copy to the clerk of court, with proof of failure of both
personal service and service by mail. The service is
complete at the time of such delivery. (6a)
Substituted Service [Rule 13, Sec. 8]
(1) Done by delivery of the copy to the clerk of court
with proof of failure of both personal and service by
mail
(2) Requisites. Proper only when:
(a) Service cannot be made personally or by mail
(b) Office and place of residence of the party of his
counsel being unknown
(c) There is proof of affidavit when failure of both
personal service or by registered mail; and
(d) That there is delivery of the pleading, motion or
other papers to the clerk of court
(3) Service is complete at the time of such delivery
4. Publication
RULE 13
Section 9. Service of judgments, final orders, or resolutions.
— Judgments, final orders or resolutions shall be served
either personally or by registered mail. When a party
summoned by publication has failed to appear in the
action, judgments, final orders or resolutions against him
shall be served upon him also by publication at the
expense of the prevailing party. (7a)
SERVICE OF JUDGMENTS, FINAL ORDERS, OR RESOLUTIONS
[Rule 13, Sec. 9]
mailing of facts showing compliance with section 7 of this
Rule. If service is made by registered mail, proof shall be
made by such affidavit and the registry receipt issued by
the mailing office. The registry return card shall be filed
immediately upon its receipt by the sender, or in lieu
thereof the unclaimed letter together with the certified or
sworn copy of the notice given by the postmaster to the
addressee. (10a)

Service is done either:

PROOF OF FILING
(1) Personally
(2) By registered mail (1) Filing is proved by its existence in the record of the
(3) By publication ONLY IF: case [Rule 13, Sec. 12]
(a) Party is summoned by publication AND
(b) He failed to appear in the action; or (2) If it is not in the record:
(c) When such party was served with
summons other than by publication and (a) Personally:
subsequently absconds and his present i. Deemed filed: Upon receipt of pleading by the
address is unknown; but in this case, such Clerk of Court
service should be ordered by the court. ii. Proof: Written or stamped acknowledgment of its
[Feria] filing by the clerk of court on a copy of the
NOTE: There is NO substituted service of judgments and same;
final orders (b) If filed by registered mail:
i. Deemed filed: On the date the pleading was
Order in Open Court deposited with the post office
ii. Proof: by the registry receipt and by the affidavit
Shall be presumed received by the parties on the very of the person who did the mailing, containing a
date and time of promulgation and amounts to a legal full statement of
notification for all legal purposes. 1. the date and place of depositing the mail
in the post office in a sealed envelope
addressed to the court,
2. with postage fully prepaid, and
RULE 13 3. with instructions to the postmaster to return
the mail to the sender after ten (10) days if
Section 10. Completeness of service. — Personal service is not delivered.
complete upon actual delivery. Service by ordinary mail
is complete upon the expiration of ten (10) days after PROOF OF SERVICE
mailing, unless the court otherwise provides. Service by
registered mail is complete upon actual receipt by the Mode Proof of service
addressee, or after five (5) days from the date he
received the first notice of the postmaster, whichever Personal Service A written admission of the party
date is earlier. (8a) served, OR

The official return of the server; OR

Purpose of the rule on completeness of service for service Affidavit of the party serving
by registered mail: containing a full statement of the
date, place, and manner of service
To make sure that the party being served with the
pleading, order or judgment is duly informed of the same Service by Affidavit of the person mailing
so that such party can take steps to protect the interests, ordinary mail stating the facts showing
i.e., enable to file an appeal or apply for other compliance with Rule 13, Sec. 7
appropriate reliefs before the decision becomes final.
[MINTERBRO v,CA (2012)] Service by Affidavit of person mailing
registered mail containing facts showing
compliance with Rule 13, Sec. 7,
AND
Section 13. Proof of Service. — Proof of personal service
shall consist of a written admission of the party served, or Registry receipt issued by mailing
the official return of the server, or the affidavit of the party office; OR
serving, containing a full statement of the date, place
and manner of service. If the service is by ordinary mail,
proof thereof shall consist of an affidavit of the person
 The registry return card which shall Completeness of Proof of Service (sec. 13)
be filed immediately upon its Service (sec. 10)
receipt by the sender, or in lieu
thereof of the unclaimed letter Personal Service
together with the certified or sworn
copy of the notice given by the Upon actual delivery Written admission of the party
postmaster to the addressee. served, OR

Official return of the server OR

Lack of Proof of Service Affidavit of the party serving,

with a full statement of the
Effect: No proof of service of notice to the other party  date/place/manner of service
motion is not entitled to judicial cognizance. Such motion
is nothing but a scrap of paper Service by Ordinary Mail

10 days after mailing, Affidavit of the person mailing

unless otherwise of facts showing compliance
provided by Court with Sec. 7 Rule 13

Service by Registered Mail

Whichever is earlier: Affidavit of the person mailing

of facts showing compliance
-Actual receipt by the with Sec. 7 Rule 13
addressee

AND
OR

Registry receipt issued by the

-5 days after the post office
addressee received 1st
postmaster’s notice
(constructive)

Substituted Service

At the time of delivery of the copy to the clerk of court

together with proof of failure of both personal service
and service by mail

Solar v. Ricafort (1998) – Davide, Jr., J

Petitioner: Solar Team Entertainment

Respondents: Hon. Helen Bautista Ricafort (Presiding
Judge of RTC Parañaque), Team Image Entertainment,
Felix Co, Jeffrey Cal, and King Cuisia
Concept: Filing: Modes of service
Nature of Action: Special civil action - certiorari

Doctrine:

FACTS: Solar filed a complaint for the recovery of

possession and damages with prayer for writ of replevin
against Team Image, Co, Cal & Cuisia. After asking for an
extension (granted) to file an answer, Team Image et. al
filed their answer, furnishing counsel for Solar a copy by
registered mail without any written explanation as to why
service was not made personally. Solar filed a motion to
expunge the answer and to declare Team Image et. al in
default for not complying with Sec. 11, Rule 13. Team
Image argued that rigid and inflexible compliance with
the rule is contrary to Sec. 6, Rule 3, which promotes
liberal construction of the Rules. Judge Ricafort issued an
order, saying it is within the discretion of the TC whether to
consider the pleading as filed or not, and denied the
motion to expunge.
ISSUES:
1. WON the failure to provide a written explanation
(why service was not done personally) is considered
non-compliance with Sec. 11, Rule 13 (YES)
2. WON Judge Ricafort should have granted the motion
to expunge the answer (NO)
RATIO:
1. Failure to provide a written explanation as to why
personal service was not complied with is a violation
of Sec. 11, Rule 13.
- Sec. 5, Rule 13 prescribes 2 modes of service of
pleadings, motions, notices, orders, judgments and
other papers:
(1) Personal service (Sec. 6);
(2) Service by mail (Sec. 7);
(3) Substituted service, only if it cannot be done
personally or by mail (Sec. 8)
- Sec. 11, Rule 13: service and filing of pleadings and
other papers must, whenever practicable, be done
personally; and if made through other modes, the
party concerned must provide a written explanation
as to why the service or filing was not done personally
o Sec. 11 refers to both service of pleadings and
other papers on the adverse party or his counsel
(Sec. 6-8) and to the filing of pleadings and other
papers in court
- Personal service and filing are preferred because
they should expedite action or resolution and
minimize delays likely to be incurred if done by mail
o It also does away with the practice of some
lawyers who resort to less than ethical practices:
 By mail to catch opposing counsel off-guard,
leaving the latter with little to no time to
prepare
 Upon receiving notice that it can be
claimed, unduly procrastinating before
claiming the parcel or not claiming it at all
- Sec. 11 gives the court the discretion to consider a
pleading or filing as not filed if the other modes of
service or filing were resorted to and no written
explanation was made as to why personal service
was not done in the first place
o Exercise of discretion must consider the
practicability of personal service
- GR: Personal service and filing
- XPN: Resort to other modes of service or filing (must
be accompanied with a written explanation)
o Court considers: importance of the subject
matter of the case or the issues involved therein,
the prima facie merit of the pleading
- SC: Proximity between the offices of opposing
counsel was established, and the distance
separating the offices of opposing counsel and the
post office was “ten times farther” from the offices
separating opposing counsel
- SC: In view of the proximity between the offices of
opposing counsel and the absence of any attendant
explanation as to why personal service was not
effected, Team Image et. al’s counsel violated Sec.
11, Rule 13, and the motion to expunge was
meritorious, HOWEVER, the grant or denial remained
with the TC’s discretion (Sec. 6, Rule 1)
2. Judge Ricafort correctly denied the motion expunge.
- To resolve motions to expunge or to strike out
pleadings for violation of Sec. 11, Rule 13 according
to Sec. 6, Rule 1 would render Sec. 11, Rule 13
meaningless and its sound purpose negated
- 1997 Rules took effect July 1, 1997 while the
questioned Answer filed only Aug. 8, 1997  Team
Image et. al’s counsel may not have been fully
aware of the requirements and ramifications of Sec.
11, Rule 13
o In another case where said counsel was likewise
opposing counsel, he similarly failed to comply
with Sec. 11
- It has been several months since the Rules took effect
 can condone
- Court is guided in the exercise of discretion, by the
primary objective of Sec. 11, the importance of the
subject matter of the case, the issues involved, and
the prima facie merit of the challenged pleading
- SC: Strictest compliance with Sec. 11, Rule 13 is
mandated 1 month from the promulgation of this
Decision
DISPOSITIVE: Petition DISMISSED. Violation may be
condoned.
SEPARATE OPINION: Bellosillo, J.
- The trial court took too lightly Sec. 11, Rule 13
o Difficult to agree with respondent Judge that
under the provision is solely within the discretion
of the trial court whether to consider the
pleading as filed or not
o Sec. 11 requires that service and filings shall be
done personally, whenever practicable
o When not done personally, party who fails to
comply must explain why
- In case personal service and filing are neither
practical nor feasible then—and only then—can the
parties avail of other modes of service and filing .eg.,
by registered mail
o Resort to other modes must be accompanied by
a written explanation why service and filing are
not done personally
 o From that explanation, the judge will then Jurisdiction Venue
determine whether personal service and filing
are indeed impractical so that resort to other Authority of a court to hear, Place where action must
modes may be made try and decide a case be instituted
o It is only at this stage that the judge may properly
exercise his discretion—and only upon the Matter of substantive law Procedural or adjective
explanation given
law
- Judge Ricafort was without any hypothesis on which
to anchor her finding and conclusion that personal
service was not practicable because there was no Conferred by law or the May be conferred by the
explanation why registered mail was resorted to constitution; cannot be act or agreement of the
o Court’s discretion can only be exercised soundly conferred by the consent parties
if there exists some factual basis for it of the parties or by their
o Without any explanation, the judge cannot wield failure to object to the lack
any discretion
of it
- Where no explanation is offered to justify resort to
service of pleading by mail or other modes of service
Creates a relation between Creates a relation
(and filing for that matter), in lieu of the preferred
service, hence, no factual milieu is provided upon the court and the subject between the parties to the
which judicial discretion may be brought into play matter action
o The discretionary power of the court to expunge
the pleading becomes mandatory
- Sec. 11 provides for priorities, by which is meant an
order of preference in the service thereof, such that Venue of real actions
the first alternative must be availed of, and only upon
its non-availability may the second and succeeding  Real actions shall be commenced and tried in
options be resorted to the proper court which has jurisdiction over the
- Personal service and filing are preferred to fasttrack area wherein the real property involved, or a
the decongestion of court dockets ; 1997 Rules are portion thereof, is situated.
required to be construed to promote its objective of
securing a just, expeditious and inexpensive
disposition of every action and proceeding Venue of personal actions
- Deviation in this case was not merely formal; it
involves non-compliance with the mandatory  Personal actions may be commenced and tried
requirement of Sec. 11, Rule 13 in the proper court of the place where the
o Would have been more appropriate to grant the plaintiff or any of the principal plaintiffs resides, or
motion to expunge for obvious non-compliance, where the defendant or any of the principal
then on motion for reconsideration explaining the defendants resides, or in the case of a non-
non-observance, grant reconsideration in the resident defendant where he may be found, at
exercise of the court’s discretion  message the election of the plaintiff.
would have been clear that the rule should first  resides: place of abode, whether permanent or
and foremost be obeyed before the same may temporary, of the plaintiff or defendant (as
be relaxed upon exercise of discretion based on distinguished from domicile)
a reasonable explanation  No particular length of time of residence is
required.
 For a corporation, the place where its principal
VIII. Service of Summons office is located as stated in the articles of
incorporation.
RULE 16.

Sec. 1(c). Grounds. – Within the time for but before filing
the answer to the complaint or pleading asserting a
RULE 14.
claim, a motion to dismiss may be made on any of the
following grounds: x x x Sec. 1. Clerk to issue summons. – Upon the filing of the
complaint and the payment of the requisite legal fees,
That venue is improperly laid;
the clerk of court shall forthwith issue the corresponding
summons to the defendants.
xxx

Distinction between venue and jurisdiction

 Modes of service of summons are strictly followed
in order that the court may acquire jurisdiction
over the person of a defendant

Purpose of service of summons
 To give notice to the defendant or respondent
that an action has been commenced against
him
 Summons: writ by which the defendant is notified
of the action brought against him
Modes of service
1 By service in person (Sec. 6, Rule 14)
2 By substituted service (Sec. 7, Rule 14)
3 By publication (Sec. 14, Rule 14)
4 By extraterritorial service (Secs. 15, 16, Rule 14)
A. Modes of Service
1. Personal
RULE 14.
Sec. 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. (7a)
In actions in personam
 Service in person of summons or substituted
service within the forum is essential to the
acquisition of jurisdiction over the person of the
defendant who does not voluntarily submit
himself to the authority of the court
 Summons by publication will not confer upon the
court jurisdiction over said defendant except
when defendant is designated as unknown, or
the like, whose whereabouts are unknown and
cannot be ascertained by diligent inquiry.
2. Substituted
RULE 14.
Sec. 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. (8a)
Substituted service
 It is only when a defendant cannot be served in
person with summons within a reasonable time
that a substituted service may be availed of.
 Residence: place where the person named in
the summons is living at the time when the
service is made.
 Within a reasonable time: period of time longer
than that demarcated by “prompt” and
presupposes an attempt at a prior personal
service.
 Impossibility of personal service is a condition
precedent for resorting to substituted service.
Sps Miranda v CA (2000) – Corona, J.
Petitioner: Sps. Isagani Miranda and Miguela Joguilon
Respondent: CA, Lucila L. vda. de Java and Jaime Java
Concept: Substituted service
Doctrine: It is only when a defendant cannot be served
personally “within a reasonable time” that substituted
service may be made. Impossibility of prompt, personal
service should be shown by stating in the proof of service
that efforts were made to find the defendant personally
and that said efforts failed. Failure to strictly comply with
the requirements of substituted service renders said
service ineffective.
FACTS: Luneta Motor Company (LMC) filed suit against
the spouses Lucila and Pablo D. Java, et al., with the
former CFI of Manila to recover one “Thames” jeep. LMC,
then, moved to declare the Java spouses in default for
failure to file their answer within the reglementary period,
notwithstanding notice. The TC granted the motion and
rendered judgment in favor of LMC. Pursuant to the writ
of execution, the City Sheriff sold the vehicle at a public
auction to Jose Angulo, and a parcel of land to LMC.
LMC, then, sold the lot to the Sps. Miranda. Lucila vda. de
Java and her daughter, Estela Java, filed a civil case to
nullify the CFI’s judgment as well as the execution sales
and subsequent transfers. Lucila vda. de Java died and
was substituted by her heirs. The TC, then, dismissed the
said case for lack of jurisdiction. The CA subsequently
reversed the TC. The CA held the judgment rendered in
the first civil case as null and void, and alleged that the
TC never acquired jurisdiction over Lucila L. Java and her
husband since there was no proper service of summons.
Thus, it ordered the Sps. Miranda to execute a deed of
reconveyance over the lot in favor the spouses Java.
ISSUE: WON the service of summons served on the
spouses Java by the Sheriff was invalid, thus, the lower
court never acquired jurisdiction

RATIO:
YES. The service of summons was invalid, this the lower
court never acquired jurisdiction over the spouses Java.
2.
- In declaring the first civil case null and void, the
CA found from the Sheriff’s Return of Service that
summons was served on the spouses Java by
substituted service without effort at personal
service.
- Service of summons upon the defendant is
essential for the court to acquire jurisdiction over
his person. The modes of service should be strictly
followed in order that the court may acquire
jurisdiction. Thus, it is only when a defendant
cannot be served personally “within a
3.
reasonable time” that substituted service may be
made.
- In the instant case, the Sheriff was not able to
show reason why personal service could not be
made. Impossibility of prompt, personal service
should be shown by stating in the proof of service
that efforts were made to find the defendant
personally and that said efforts failed. Here, no
such explanation was made by the Sheriff in the
Return of Service. Failure to strictly comply with
the requirements of substituted service renders
said service ineffective.
- For want of proper service of summons upon
defendants, the TC never acquired jurisdiction in
the first civil case. Thus, the execution sales are
void ab initio.
DISPOSITIVE: Petition is DENIED, and the assailed CA
decision is AFFIRMED.
Manotoc v. CA (2006) – Velasco, J.
Petitioner: Ma. Imelda M. Manotoc
Respondents: Court of Appeals; Agapita Trajano on
behalf of the estate of Archimedes Trajano,.
Concept: Requirements for valid substituted service of
summons.
Doctrine: Substituted service of summons is extraordinary
in character and in derogation of the usual method of
service. Hence, it must faithfully and strictly comply with
the prescribed requirements and circumstances
authorized by the rules.
FACTS:
1. Trajano filed a case against Imee Marcos-
Manotoc for Filing, Recognition and/or
Enforcement of Foreign Judgment, under R39,
Execution of Judgement. Trajano seeks the
enforcement of a judgment rendered by the US
District Court of Honolulu, for wrongful death of
deceased Archimedes Trajano committed by
military intelligence officials of the Philippines
allegedly under the command, direction,
authority, supervision, tolerance, sufferance
and/or influence of defendant Manotoc.
The trial court issued a Summons addressed to
petitioner at Alexandra Condominium
Corporation or Alexandra Homes, E2 Room 104,
at No. 29 Meralco Avenue, Pasig City. The
Summons and a copy of the Complaint were
allegedly served upon (Mr.) Macky de la Cruz, an
alleged caretaker of Manotoc at the
condominium unit mentioned. When Manotoc
failed to file her Answer, the trial court declared
her in default.
Manotoc, by special appearance of counsel,
filed a Motion to Dismiss on the ground of lack of
jurisdiction over her person due to an invalid
substituted service of summons. The grounds to
support the motion were: (1) the address of
defendant indicated in the Complaint
(Alexandra Homes) was not her dwelling,
residence, or regular place of business as
provided in Section 8, Rule 14 of the Rules of
Court; (2) the party (de la Cruz), who was found
in the unit, was neither a representative,
employee, nor a resident of the place; (3) the
procedure prescribed by the Rules on personal
and substituted service of summons was ignored;
(4) defendant was a resident of Singapore; and
(5) whatever judgment rendered in this case
would be ineffective and futile.
 Manotoc presented Carlos Gonzales,
who testified that he saw Manotoc as a
visitor in Alexandra Homes only two times.
He also identified the Certification of
Renato A. de Leon (Assistant Property
Administrator of the condominium),
which stated that Unit E-2104 was owned
by Queens Park Realty, Inc.; and at the
time the Certification was issued, the unit
was not being leased by anyone.
Manotoc also presented her Philippine
passport and the
Disembarkation/Embarkation Card issued
by the Immigration Service of Singapore
to show that she was a resident of
Singapore. She claimed that the person
referred to in plaintiff’s Exhibits "A" to
"EEEE" as "Mrs. Manotoc" may not even
be her, but the mother of Tommy
Manotoc, and granting that she was the
one referred to in said exhibits, only 27
out of 109 entries referred to Mrs.
Manotoc. Hence, the infrequent number
of times she allegedly entered Alexandra
 Homes did not at all establish the position authorized by the rules. Indeed, "compliance
that she was a resident of said place. with the rules regarding the service of summons is
 Trajano presented Robert Swift, lead as much important as the issue of due process as
counsel for plaintiffs in the Estate of of jurisdiction."
Ferdinand Marcos Human Rights 2. The SC broke down R14.8 (old Rules; now R14.7)
Litigation, who testified that he into the ff requirements to effect a valid
participated in the deposition taking of substituted service:
Ferdinand R. Marcos, Jr.; and he (1) Impossibility of Prompt Personal Service
confirmed that Mr. Marcos, Jr. testified
 "Reasonable time" is defined as "so much
that Manotoc's residence was at the
time as is necessary under the
Alexandra Apartment, Greenhills. In
circumstances for a reasonably prudent
addition, the entries in the logbook of
and diligent man to do, conveniently,
Alexandra Homes from August 4, 1992 to
what the contract or duty requires that
August 2, 1993, listing the name of
should be done, having a regard for the
Manotoc and the Sheriff’s Return, were
rights and possibility of loss, if any, to the
adduced in evidence.
other party."
4. RTC denied the Motion to Dismiss based on the
 Under the Rules, the service of summons
documentary evidence of Trajano. It relied on
has no set period. However, when the
the presumption that the sheriff’s substituted
court, clerk of court, or the plaintiff asks
service was made in the regular performance of
the sheriff to make the return of the
official duty, and such presumption stood in the
summons and the latter submits the
absence of proof to the contrary. MR was
return of summons, then the validity of
denied.
the summons lapses. The plaintiff may
5. Manotoc filed a Petition for Certiorari and then ask for an alias summons if the
Prohibition before the CA. CA affirmed the RTC, service of summons has failed.
relying on the testimony of Robert Swift and the
 What then is a reasonable time for the
Returns of the registered mails sent to Manotoc.
sheriff to effect a personal service in
The Disembarkation/Embarkation Card and the
order to demonstrate impossibility? To the
Certification by Renato A. De Leon were hearsay,
plaintiff, "reasonable time" means no
and that said Certification did not refer to July
more than seven (7) days since an
1993—the month when the substituted service
expeditious processing of a complaint is
was effected. CA also rejected Manotoc's
what a plaintiff wants. To the sheriff,
Philippine passport as proof of her residency in
"reasonable time" means 15 to 30 days
Singapore as it merely showed the dates of her
because at the end of the month, it is a
departure from and arrival in the Philippines
practice for the branch clerk of court to
without presenting the boilerplate’s last two (2)
require the sheriff to submit a return of
inside pages where residence was indicated. The
the summons assigned to the sheriff for
CA considered the withholding of those pages as
service. The Sheriff’s Return provides data
suppression of evidence. Thus, according to the
to the Clerk of Court, which the clerk uses
CA, the trial court had acquired jurisdiction over
in the Monthly Report of Cases to be
Manotoc as there was a valid substituted service.
submitted to the Office of the Court
MR was denied. Manotoc went to the SC on R45.
Administrator within the first ten (10) days
of the succeeding month. Thus, one
ISSUE: Whether substituted service was properly done. month from the issuance of summons
(NO) can be considered "reasonable time"
with regard to personal service on the
defendant.
RATIO: No. The Sheriff's Ruturn was unable to allege the
extraordinary circumstances necessary before resort  For substituted service of summons to be
could be made to substituted service. available, there must be several
attempts by the sheriff to personally serve
1. While substituted service of summons is
the summons within a reasonable period
permitted, "it is extraordinary in character and in
of one month which eventually resulted
derogation of the usual method of service."
in failure to prove impossibility of prompt
Hence, it must faithfully and strictly comply with
service. "Several attempts" means at least
the prescribed requirements and circumstances
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.
(2) Specific Details in the Return
 The sheriff must describe in the Return of
Summons the facts and circumstances
surrounding the attempted personal
service. 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.
 The form on Sheriff’s Return of Summons
on Substituted Service prescribed in the
Handbook for Sheriffs published by the
Philippine Judicial Academy requires a
narration of the efforts made to find the
defendant personally and the fact of
failure. SC Administrative Circular No. 5
dated November 9, 1989 requires that
"impossibility of prompt service should be
shown by stating the efforts made to find
the defendant personally and the failure
of such efforts," which should be made in
the proof of service.
(3) A Person of Suitable Age and Discretion
 If the substituted service will be effected
at a defendant’s house or residence, it
should be left with a person of "suitable
age and discretion then residing therein."
This is one who has attained the age of
full legal capacity (18 years old) and is
considered to have enough discernment
to understand the importance of a
summons. "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". Thus, to be of
sufficient discretion, such person must
know how to read and understand
English to comprehend the import of the
summons, and fully realize the need to
deliver the summons and complaint to
the defendant at the earliest possible
time for the person to take appropriate
action. Thus, the person must have the
"relation of confidence" to the
defendant, ensuring that the latter would
receive or at least be notified of the
receipt of the summons. These must be
clearly and specifically described in the
Return.
(4) A Competent Person in Charge
 If the substituted service will be done at a
defendant’s office or regular place of
business, then it should be served on a
competent person in charge of the
place or managing the office or business
of defendant, such as the president or
manager; and such individual must have
sufficient knowledge to understand the
obligation of the defendant in the
summons, its importance, and the
prejudicial effects arising from inaction
on the summons. Again, these must be
contained in the Return.
3. Examining the Sheriff’s Return, there is an
apparent absence of material data on the
serious efforts to serve the Summons on Manotoc
in person. There is no clear valid reason cited in
the Return why those efforts proved inadequate,
to reach the conclusion that personal service has
become impossible or unattainable outside the
generally couched phrases of "on many
occasions several attempts were made to serve
the summons x x x personally," "at reasonable
hours during the day," and "to no avail for the
reason that the said defendant is usually out of
her place and/or residence or premises." It
cannot be determined how many times, on what
specific dates, and at what hours of the day the
attempts were made.
 Besides, apart from the allegation of
Manotocr’s address in the Complaint, it
has not been shown that Trajano or
Sheriff Cañelas exerted extraordinary
efforts to locate her. Certainly, the
second paragraph of the Complaint only
states that respondents were "informed,
and so [they] allege" about the address
and whereabouts of Manotoc. Before
resorting to substituted service, a plaintiff
must demonstrate an effort in good faith
to locate the defendant through more
direct means.
 To allow sheriffs to describe the facts and
circumstances in inexact terms would
encourage routine performance of their
precise duties relating to substituted
service. And considering that monies and
properties worth millions may be lost by a
 defendant because of an irregular or
void substituted service, it is but only fair
that the Sheriff’s Return should clearly
and convincingly show the
impracticability or hopelessness of
personal service.
4. Granting that such a general description is
adequate, there is still a serious nonconformity
with the requirement that the summons must be
left with a (1) recipient who is a person of suitable
age and discretion; and (2) recipient must reside
in the house or residence of the defendant. Both
were not met.
 The Sheriff’s Return lacks information as to
residence, age, and discretion of Mr.
Macky de la Cruz, aside from the sheriff’s
general assertion that de la Cruz is the
"resident caretaker" of Manotoc.
 It is doubtful if Mr. de la Cruz is residing
with Manotoc in the condominium unit
considering that a married woman of her
stature in society would unlikely hire a
male caretaker to reside in her dwelling.
 With Manotoc's allegation that Macky de
la Cruz is not her employee, servant, or
representative, it is necessary to have
additional information in the Return of
Summons. Besides, Mr. Macky de la
Cruz’s refusal to sign the Receipt for the
summons is a strong indication that he
did not have the necessary "relation of
confidence" with Manotoc.
5. The RTC relied on the presumption of regularity in
the performance of official duty. The SC
acknowledged that this ruling is still a valid
doctrine. However, for the presumption to apply,
the Sheriff’s Return must show that serious efforts
or attempts were exerted to personally serve the
summons and that said efforts failed. These must
be specifically narrated in the Return.
 The presumption of regularity in the
performance of official functions by the
sheriff is not applicable in this case where
it is patent that the sheriff’s return is
defective. [Venturanza v. CA]
DISPOSITIVE: Petition granted. RTC and CA orders set
aside. Even assuming that Alexandra Homes Room 104 is
Manotoc's actual residence, such fact would not make
an irregular and void substituted service valid and
effective.
3. Publication
RULE 14.
Sec. 14. Service upon defendant whose identity or
whereabouts are unknown. -- In any action where the
efendant is designated as an unknown owner, or the like,
or whenever his whereabouts are unknown and cannot
be ascertained by diligent inquiry, service may, by leave
of court, be effected upon him by publication in a
newspaper of general circulation and in such places and
for such time as the court may order. (16a)
 In actions personam, service in person of
summons is essential to the acquisition of
jurisdiction over the person of the defendant who
does not voluntarily submit himself to the
authority of the court.
 Summons by publication is allowed in action
against a resident unknown defendant or one
whose whereabouts are unknown.
Rule 57.
Sec. 1(f). Grounds upon which attachment may issue. –
At the commencement of the action or at any time
before entry of judgment, a plaintiff or any proper party
may have the property of the adverse party attached as
security for the satisfaction of any judgment that may be
recovered in the following cases: x x x
In an action against a party who does not reside
and is not found in the Philippines, or on whom
summons may not be served by publication. (1a)
 In actions in personam, personal service of
summons is essential.
 The proper recourse for a creditor is to locate
properties, real or personal, belonging to such
debtor and cause them to be attached under
this Rule, in which case, the attachment converts
the action into a proceeding in rem or quasi in
rem and the summons by publication may then
be deemed valid and effective.
4. Any other manner
Rule 14.
Sec. 15. Extraterritorial service. – When the defendant
does not reside and is not found in the Philippines, and
the action affects the personal status of the plaintiff or
relates to, or the subject of which is, property within the
Philippines, in which the defendant has or claims a lien or
interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of
the defendant has been attached within the Philippines,
service may, by leave of court, be effected out of the
Philippines by personal service as under section 6; or by
publication in a newspaper of general circulation in such
places and for such time as the court may order, in which
case a copy of the summons and order of the court shall
be sent by registered mail to the last known address of
the defendant, or in any other manner the court may
deem sufficient. Any order granting such leave shall
specify a reasonable time, which shall not be less than
sixty (60) days after notice, within which the defendant
must answer. (17a)
Purpose of extraterritorial service
 For complying with the requirements of fair play
or due process, so that the defendant will be
informed of the pendency of the action against
him and the possibility that property in the
Philippines belonging to him or in which he has
an interest may be subjected to a judgment in
favor of the plaintiff and he can thereby take
steps to protect his interest.
When proper
 when the action affects the personal status of
the plaintiff
 when the action relates to, or the subject of
which is, property within the Philippines, in which
the defendant has or claims a lien or interest
 when the property of the non-resident defendant
has been attached within the Philippines
When summons by publication is allowed
 In an action where the defendant is designated
as an unknown owner, or the like, or whenever his
whereabouts are unknown and cannot be
ascertained by diligent inquiry (Sec. 14, Rule 14)
 In an action where extraterritorial service is
proper (Sec. 15, Rule 15)
 In an action against a defendant who ordinarily
resides within the Philippines but who is
temporarily out of it (Sec. 16, Rule 14)
Rule 14.
Sec. 16. Residents temporarily out of the Philippines. –
When any action is commenced against a defendant
who ordinarily resides within the Philippines, but who is
temporarily out of it, service may, by leave of court, be
also effected out of the Philippines, as under the
preceding section. (18a)
 Summons in a suit in personam against a resident
of the philippines temporarily absent therefrom
may be validly effected by substituted service.
Rule 57.
Sec. 1(f). Grounds upon which attachment may issue. –
At the commencement of the action or at any time
before entry of judgment, a plaintiff or any proper party
may have the property of the adverse party attached as
security for the satisfaction of any judgment that may be
recovered in the following cases: x x x
In an action against a party who does not reside
and is not found in the Philippines, or on whom
summons may not be served by publication. (1a)
 In actions in personam, personal service of
summons is essential.
The proper recourse for a creditor is to locate properties,
real or personal, belonging to such debtor and cause
them to be attached under this Rule, in which case, the
attachment converts the action into a proceeding in rem
or quasi in rem and the summons by publication may
then be deemed valid and effective.
Pennoyer v Neff (1878) – Field, J.
Plaintiff: Neff
Defendant: Pennoyer
Concept: Service of Summons: Publication
Nature of Action: Certiorari
Doctrine: Proceedings in a court of law to determine the
personal rights and obligations of parties over whom the
court has not jurisdiction are invalid for want of due
process of law.
In an action for money or damages where a defendant
does not appear in the court, and is not found within the
State, and is not a resident thereof, but has property
therein, the jurisdiction of the court extends only over
such property, the declaration expresses a principle of
general, if not universal, law. The authority of every
tribunal is necessarily restricted by the territorial limits of
the State in which it is established. Any attempt to
exercise authority beyond those limits would be deemed
in every other forum, as has been said by this Court, an
illegitimate assumption of power, and be resisted as mere
abuse.
Brief Facts: Mitchell brought suit against Neff to recover
unpaid legal fees. Mitchell published notice of the lawsuit
in an Oregon newspaper but did not serve Neff
personally. Neff failed to appear and a default judgment
was entered against him. To satisfy the judgment Mitchell
seized land owned by Neff so that it could be sold at a
Sheriff’s auction. When the auction was held Mitchell
purchased it and later assigned it to Pennoyer.
Neff sued Pennoyer in federal district court in Oregon to
recover possession of the property, claiming that the
original judgment against him was invalid for lack of
personal jurisdiction over both him and the land. The
court found that the judgment in the lawsuit between
Mitchell and Pennoyer was invalid and that Neff still
owned the land. Pennoyer lost on appeal and the
Supreme Court granted certiorari.
ISSUES:
Can a state court exercise personal jurisdiction over a
non-resident who has not been personally served while
within the state and whose property within the state was
not attached before the onset of litigation? (NO)
RATIO:
No. A court may enter a judgment against a non-resident
only if the party 1) is personally served with process while
within the state, or 2) has property within the state, and
that property is attached before litigation begins (i.e.
quasi in rem jurisdiction).
- Since the adoption of the Fourteenth Amendment,
the validity of judgments may be directly questioned
on the ground that proceedings in a court of justice to
determine the personal rights and obligations of
parties over whom that court has no jurisdiction do not
constitute due process of law. Due process demands
that legal proceedings be conducted according to
those rules and principles which have been
established in our systems of jurisprudence for the
protection and enforcement of private rights.
- To give legal proceedings any validity, there must be
a tribunal with legal authority to pass judgment, and a
defendant must be brought within its jurisdiction by
service of process within the state, or by his voluntary
appearance.
- The substituted service of process by publication in
actions brought against non-residents is valid only
where property in the state is brought under the
control of the court, and subjected to its disposition by
process adapted to that purpose, or where the
judgment is sought as a means of reaching such
property or affecting some interest therein; in other
words, where the action is in the nature of a
proceeding in rem.
- The tribunals of one State have no jurisdiction over
persons beyond its limits, and can inquire only into
their obligations to its citizens when exercising its
conceded jurisdiction over their property within its
limits
- The Oregon court did not have personal jurisdiction
over Neff because he was not served in Oregon. The
court’s judgment would have been valid if Mitchell
had attached Neff’s land at the beginning of the suit.
Mitchell could not have done this because Neff did
not own the land at the time Mitchell initiated the suit.
The default judgment was declared invalid. Therefore,
the sheriff had no power to auction the real estate
and title never passed to Mitchell. Neff was the legal
owner.
DISPOSITIVE: Judgment for Neff affirmed.
Dissent (Hunt, J.): To say that a sovereign State has the
power to ordain that the property of nonresidents within
its territory may be subjected to the payment of debts
due to its citizens, if the property is levied upon at the
commencement of a suit, but that it has not such power
if the property is levied upon at the end of the suit, is a
refinement and a depreciation of a great general
principle that, in my judgment, cannot be sustained.
El Blanco Espanol-Filipino v Palanca (1918) - Street, J.
Plaintiff: Banco Espanol-Filipino
Defendant: Vicente Palanca
Concept: Service in actions quasi in rem
Brief facts: Engracio Palanca executed a mortgage as
security for a debt he owed to the Bank. After the
execution of the mortgage, he returned to China. He
died there. In the foreclosure proceeding, an order for
publication was obtained from the court, in compliance
with Sec 399 of the Code of Civil Procedure. Publication
was made in a newspaper in the City of Manila. The court
directed that the clerk of court should deposit in the post
office in a stamped envelop a copy of the summons and
the complaint directed to the defendant in his last place
of residence (Amoy, Empire of China). Whether the clerk
complied is unclear. However, Bernardo Chan, employee
of the attorneys for the Bank, deposited in the Manila
post office a registered letter addressed to Engracio.
Bernardo probably used an envelop obtained from the
clerk’s office, as the postmaster’s receipt purports to show
that the letter emanated from said office.
Engracio did not appear and judgment was taken
against him by default. A decision was rendered in favour
of the Bank. In case of Engracio’s failure to satisfy the
judgment, the mortgaged property located in the city of
Manila should be exposed to a public sale. The payment
never happened so the court ordered the sale of the
property, which was bought by the Bank. Seven years
after the confirmation of the sale, a motion was made by
Vicente Palanca, administrator of the estate of Engracio,
requesting the court to set aside the order of default
based on the lack of jurisdiction over Engracio or over the
subject of the action. This was denied.
Doctrine: In proceedings of this character, if the
defendant for whom publication is made appears, the
action becomes as to him a personal action and is
conducted as such. This, however, does not affect the
proposition that where the defendant fails to appear the
action is quasi in rem; and it should therefore be
considered with reference to the principles governing
actions in rem. In an action to foreclose a mortgage
against a nonresident, upon whom service has been
effected exclusively by publication, no personal
judgment for the deficiency can be entered.
ISSUES:
1. WON the court acquired jurisdiction. (YES)
2. WON the foreclosure proceedings were conducted
with due process.
RATIO:
1. YES; the court had jurisdiction to render
the assailed judgment.
• Jurisdiction over the person is acquired by the
voluntary appearance of a party in court and his
submission to its authority, or it is acquired by the
coercive power of legal process exerted over the
person.
• Jurisdiction over the property which is the subject
of the litigation may result either from a seizure of
the property under legal process, whereby it is
brought into the actual custody of the law, or it
may result from the institution of legal proceedings
wherein, under special provisions of law, the power
of the court over the property is recognised and
made effective. In the latter case the property,
though at all times within the potential power of
the court, may never be taken into actual custody
at all.
• An illustration of the jurisdiction acquired by
actual seizure is found in attachment
proceedings, where the property is seized at the
beginning of the action, or some subsequent
stage of its progress, and held to abide the final
event of the litigation. An illustration of what we
term potential jurisdiction over the res, is found in
the proceeding to register the title of land under
our system for the registration of land. Here the
court, without taking actual physical control over
the property assumes, at the instance of some
person claiming to be owner, to exercise a
jurisdiction in rem over the property and to
adjudicate the title in favour of the petitioner
against all the world.
• In the terminology of American law the action to
foreclose a mortgage is said to be a proceeding
quasi in rem, by which is expressed the idea that
while it is not strictly speaking an action in rem yet it
partakes of that nature and is substantially such.
The expression "action in rem" is, in its narrow
application, used only with reference to certain
proceedings in courts of admiralty wherein the
property alone is treated as responsible for the
claim or obligation upon which the proceedings
are based. The action quasi in rem differs from the
true action in rem in the circumstance that, in the
former an individual is named as defendant, and
the purpose of the proceeding is to subject his
interest therein to the obligation or lien burdening
the property. All proceedings having for their sole
object the sale or other disposition of the property
of the defendant, whether by attachment,
foreclosure, or other form of remedy, are in a
general way thus designated. The judgment
entered in these proceedings is conclusive only
between the parties.
• It is true that in proceedings of this character, if the
defendant for whom publication is made appears,
the action becomes as to him a personal action
and is conducted as such. This, however, does not
affect the proposition that where the defendant
fails to appear the action is quasi in rem; and it
should therefore be considered with reference to
the principles governing actions in rem.
• In an ordinary attachment proceeding, if the
defendant is not personally served, the preliminary
seizure is to be considered necessary to confer
jurisdiction upon the court. The lien on the property
is acquired by seizure. If a lien already exists, the
preliminary seizure is not necessary, and the court
proceeds to enforce such lien in the manner
provided by law.
• In an action to foreclose a mortgage against a
nonresident, upon whom service has been
effected exclusively by publication, no personal
judgment for the deficiency can be entered.
• Ascertaining the amount due is a necessary
precursor to the order of sale.
- Whatever may be the effect in other
respects of the failure of the clerk of
the CFI to mail the proper papers to
the defendant, such irregularity
could in no wise impair or defeat the
jurisdiction of the court, for in our
opinion that jurisdiction rests upon a
basis much more secure than would
be supplied by any form of notice
that could be given to a resident of
a foreign country.
2. YES; the failure of the clerk to send notice
to the defendant by mail did not infringe
the requirement of due process of law.
• Requirements of due process as
it relates to a judicial
proceeding: (1) Court or tribunal
clothed with judicial power to
hear and determine the matter
before it; (2) Jurisdiction must be
lawfully acquired over the
person of the defendant or over
the property which is the subject
of the proceeding; (3)
Defendant must be given an
opportunity to be heard; (4)
Judgment must be rendered
upon lawful hearing.
• Though commonly called
constructive, or substituted
service such notification does
not constitute a service of
 process in any true sense. The
provision of our law relative to
the mailing of notice does not
absolutely require the mailing of
notice unconditionally and in
every event, but only in the case
where the defendant’s
residence is known. Actual
notice to the defendant in cases
of this kind is not to be
considered absolutely
necessary.
• Property is always
assumed to be in the
possession of its owner;
and he may be safely
held, under certain
conditions, to be
affected with
knowledge that
proceedings have been
instituted for its
condemnation and
sale.
• The failure of the clerk to
mail the notice is not
such an irregularity as
amounts to a denial of
due process of law.
Notice was given by
publication in a WON the judgment of the Hong Kong Court has been
newspaper and this is
the only form of notice
which the law
unconditionally requires.
• The jurisdiction being once established, all that due
process of law requires is an opportunity for the
defendant to be heard; and as publication was
duly made in the newspaper, it would seem highly
unreasonable to hold that the failure to mail the
notice was fatal.
• To vacate the judgment, the movant should
show that he had a good defense against the action to
foreclose the mortgage. That is not present here.
DISPOSITIVE: Judgment AFFIRMED.
DISSENT - Malcolm, J.
The defendant did not receive notice and had no
opportunity to be heard. There is no due process
observed here.
Shaffer v. Heitner
Asiavest vs CA (1998) – Davide Jr., J
Petitioner: Asiavest Limited
Respondents: Court of Appeals and Antonio Herras
Concept: Service of Summons – Any other manner
Doctrine: Summons must be served personally for actions
in personam
FACTS:
Asiavest Limited filed a complaint against the defendant
Antonio Heras praying that Heras be ordered to pay to
Asiavest the amounts awarded by the Hong Kong Court
Judgment.
The trial court held that since the Hong Kong court
judgment had been duly proved, it is a presumptive
evidence of a right as between the parties; hence, the
party impugning it had the burden to prove want of
jurisdiction over his person. HERAS failed to discharge that
burden.
The Court of Appeals agreed with HERAS that "notice sent
outside the state to a non-resident is unavailing to give
jurisdiction in an action against him personally for money
recovery." Summons should have been personally served
on HERAS in Hong Kong, for, as claimed by ASIAVEST,
HERAS was physically present in Hong Kong for nearly 14
years. Since there was not even an attempt to serve
summons on HERAS in Hong Kong, the Hong Kong
Supreme Court did not acquire jurisdiction over HERAS.
Nonetheless it did not totally foreclose the claim of
ASIAVEST
ISSUE:
repelled by evidence of want of jurisdiction due to
improper notice? (YES)
RATIO:
Asiavest cannot now claim that Heras was a resident of
Hong Kong at the time since the stipulated fact that
Heras "is a resident of New Manila, Quezon City,
Philippines" refers to his residence at the time jurisdiction
over his person was being sought by the Hong Kong
court. Accordingly, since Heras was not a resident of
Hong Kong and the action against him was, in personam,
summons should have been personally served on him in
Hong Kong.
The extraterritorial service in the Philippines was therefore
invalid and did not confer on the Hong Kong court
jurisdiction over his person. It follows that the Hong Kong
court judgment cannot be given force and effect here in
the Philippines for having been rendered without
jurisdiction.
On the same note, Heras was also an absentee, hence,
he should have been served with summons in the same
manner as a non-resident not found in Hong Kong.
Section 17, Rule 14 of the Rules of Court providing for
extraterritorial service will not apply because the suit
against him was in personam. Neither can we apply
Section 18, which allows extraterritorial service on a
resident defendant who is temporarily absent from the
country, because even if Heras be considered as a
resident of Hong Kong, the undisputed fact remains that
he left Hong Kong not only temporarily but for good.
Belen v Chavez (2008) –J. Tinga
Petitioners: Dominga and Domingo Belen
Respondents: Hon. Chavez, Sps. Pacleb
Concept: Service to Attorney
Doctrine: When a court acquires jurisdiction over a person
through counsel, death of said counsel extinguishes the
attorney-client relationship, and service to his address at
time of his passing is deemed insufficient
FACTS:
The sps. Pacleb alleged that they received a favorable
judgment in the Superior Court of California, where
$56,000 was awarded to them. The judgment ordering
payment was sent to San Gregorio, Laguna, and was
received by Marcelo Belen.
In 2000, Atty. Alcantara entered his appearance as
counsel for the sps. Belen, as he was a retainer of the
Belen’s relatives. In his answer, he pointed out that his
clients were actually residents of California.
In 2003, the RTC ruled against the Belens, holding them
liable to pay their debt. However, the decision intended
for Atty. Alcantara was returned with the notation
“addressee deceased”, as he had passed away during
the pendency of the case. The decision sent to the
Belen’s “last known residence” in Laguna was received
by a Leopold Avacilla.
In November 2003, the sps. Chavez sought the execution
of the decision, and properties of the Belens were levied
and scheduled for public auction to satisfy the judgment.
In 16 Dec. 2003, Atty. Culvera entered his appearance as
counsel for the Belens, and filed a motion to quash the
writ of execution. When the same was denied, he
appealed to the CA, which ruled in favor of the Sps.
Chavez.
ISSUES:
(1) WON the court acquired jurisdiction to try the
case over the Sps. Belen (YES)
(2) WON there was a valid service of judgment (NO)
RATIO:
1. YES, Atty. Alcantara’s act of filing numerous pleadings
as authorized by the sps. Belen was enough to vest the
court with jurisdiction over them.
A. The rule is that a party is only ever bound by a
decision if the court first had jurisdiction over
them. However, there is a distinction to be
made when it comes to acquisition of
jurisdiction between actions in rem and actions
in personam. (This is the really important part)
a. Actions in Personam: In an action in
personam, jurisdiction over the person of
the defendant is necessary for the court
to validly try and decide the case.
Jurisdiction over the person of a resident
defendant who does not voluntarily
appear in court can be acquired by
personal service of summons as provided
under Section 7, Rule 14 of the Rules of
Court. If he cannot be personally served
with summons within a reasonable time,
substituted service may be made in
accordance with Section 8 of said Rule. If
he is temporarily out of the country, any
of the following modes of service may be
resorted to:
i. Substituted service set forth in
Section 8;
ii. Personal service outside the
country, with leave of court
iii. Service by publication, also with
leave of court;
iv. Any other manner the court may
deem sufficient.
b. Action in personam, defendant is a non-
resident who does not voluntarily submit
himself to the authority of the court:
personal service of summons within the
state is essential to the acquisition of
jurisdiction over her person. This method
of service is possible if such defendant is
physically present in the country. If he is
not found therein, the court cannot
acquire jurisdiction over his person and
therefore cannot validly try and decide
the case against him.
c. Actions in rem: Jurisdiction over the
person of the defendant is not a
prerequisite to confer jurisdiction on the
court provided that the court acquires
jurisdiction over the res. Nonetheless,
summons must be served upon the
defendant not for the purpose of vesting
the court with jurisdiction but merely for
satisfying the due process requirements.
Thus, where the defendant is a non-
resident who is not found in the Philippines
and (1) the action affects the personal
status of the plaintiff; (2) the action relates
to, or the subject matter of which is
property in the Philippines in which the
defendant has or claims a lien or interest;
(3) the action seeks the exclusion of the
defendant from any interest in the
property located in the Philippines; or (4)
the property of the defendant has been
attached in the Philippines— service of
summons may be effected by (a)
personal service out of the country, with
leave of court; (b) publication, also with
leave of court; or (c) any other manner
the court may deem sufficient.
 B. The case at bar is an action in personam, and
it was duly established that the petitioners were
permanent residents of Califronia, USA. Thus,
the court did not acquire jurisdiction by
summons to their last known address. However,
it did acquire jurisdiction by virtue of their
submission to the court, seen in Atty.
Alcantara’s action as their representative.

2. NO. Upon the death of Atty. Alcantara, the lawyer-

client relationship between him and petitioners has
ceased, thus, the service of the RTC decision on him is
ineffective and did not bind petitioners. Service of
judgment to their last known address was likewise
ineffective, as they were already permanent residents of
California. Thus, the judgment only became final and
executory upon its receipt by Atty. Culvera on 29 Dec.
2003. (The effect of this was that the appeal was within
time)

DISPOSITIVE:, CA decision reversed