Importance of service of summons (2)

Courts are guardians of constitutional rights and, therefore, cannot deny due process rights, while at the same time they can be considered to be acting within their jurisdiction. To satisfy the requirements of due process, jurisdiction over the parties is required as a violation thereof is a jurisdictional defect.

In the absence of service or when the service of summons upon a party is defective, the court acquires no jurisdiction over their person, and a judgment rendered against them is null and void.

Ultimately, compliance with the rules on service of summons “is as much an issue of due process as of jurisdiction.” Hence, regardless of the nature of the action, proper service of summons is imperative.

In serving summons, personal service is the preferred mode. Jurisprudence requires the sheriff or the process server to act with utmost diligence and reasonable promptness so as not to prejudice the expeditious dispensation of justice. They must exert their best efforts to accomplish personal service on the respondent.

It is only when several attempts to serve summons through personal service fails that one may resort to the other modes of service of summons. These “several attempts” are defined by the Court as “at least three tries, preferably on at least two different dates.” The sheriff or process server must also narrate why these efforts proved unsuccessful.

The Rules of Court allows summons to be served by substituted service only for justifiable causes and if the respondent cannot be served within a reasonable time. This was elaborated upon in San Pedro v. Ong:

Personal service of summons is preferred to substitute service. Only if the former cannot be made promptly can the process server resort to the latter. Moreover, the proof of service of summons must (a) indicate the impossibility of service of summons within a reasonable time; (b) specify the efforts exerted to locate the defendant; and (c) state that the summons was served upon a person of sufficient age and discretion who is residing in the address, or who is in charge of the office or regular place of business, of the defendant.

It is likewise required that the pertinent facts proving these circumstances be stated in the proof of service or in the officer’s return. The failure to comply faithfully, strictly and fully with all the foregoing requirements of substituted service renders the service of summons ineffective.

Another mode of service allowed by the Rules of Court is service of summons by publication. This mode may only be effected by leave of court when the respondent’s identity or whereabouts is unknown and cannot be ascertained by diligent inquiry.

It must be shown that multiple unsuccessful attempts were made to serve the summons personally and that diligent inquiries regarding the respondent’s whereabouts proved futile. Further, to satisfy the diligence requirement, prior resort to both personal service and substituted service must be made and shown to be ineffective.

Ultimately, compliance with the rules on service of summons ‘is as much an issue of due process as of jurisdiction.’

The legality of a party’s resort to modes of service other than personal service requires a scrutiny of the contents of the sheriff or the process server’s return to determine if justifiable cause exists and if the requisites are met. In all cases, earnest efforts must be made to personally serve summons prior to resorting to other modes of service. As explained in Chu v. Mach Asia Trading Corporation:

This is necessary because substituted service is in derogation of the usual method of service. It is a method extraordinary in character, hence, may be used only as prescribed and in the circumstances authorized by statute. The statutory requirements of substituted service must be followed strictly, faithfully and fully, and any substituted service other than that authorized by statute is considered ineffective.

In cases where summons by publication is availed of, the Court requires utmost compliance with the requirements:

Where service is obtained by publication, the entire proceeding should be closely scrutinized by the courts and a strict compliance with every condition of law should be exacted. Otherwise great abuses may occur, and the rights of persons and property may be made to depend upon the elastic conscience of interested parties rather than the enlightened judgment of the court or judge. (To be continued)