Motion For Reconsideration

 

Republic of the Philippines MUNICIPAL TRIAL COURT 11th Judicial Region Branch 5 CITY OF DAVAO

ECOLAND

PROPERTIES   CIVIL CASE No. M-DVO-18-037 M-DVO-18-03799-CV 99-CV

DEVELOPMENT CORPORATION   Plaintiff,   FOR: Recovery of Possession,   Damages and Atty’s Fees -versusHERSAL HERS ALDE DE PARI PARIL L  & any other persons acting for and in his behalf    Defendants. x------------------------x-----------------------------------------------x x

MOTION FOR RECONSIDERATION ON THE ORDER DATED JULY 17, 2019 Comes now, Defendant through the counsel , unto this Honorable Court, respectfully avers:

PREFATORY STATEMENT The cour The court' t'ss pr prim imar ary y duty duty is to rend render er or disp dispen ense se  justice. Litigation is not a game of technicalities, but every case must be prosecuted in accordance with the  prescribed procedure so that issues may be properly   presented and justly resolved. Law suits, unlike duels, are not to be won by a rapier's thrust. Technicality, when whe n it deserts deserts its proper proper office office as an aid to justic justice e and becom becomes es its great great hindran hindrance ce and chief chief enemy, enemy, deserves scant consideration from courts. Hence, rules of procedure must be faithfully followed  except only when for persuasive reasons, they may be rela relaxe xed d to re reli liev eve e a li liti tiga gant nt of an inju injust stic ice e not not comme commensu nsurat rate e with with his fa failur ilure e to comply comply with with the  prescribed procedure. Concomitant to a liberal applic app licati ation on of the rules of proced procedure ure should should be an effort on the part of the party invoking liberality to explain his failure to abide by the rules.

 

1

 

FACTUAL ANTECEDENTS The defendants knew only of the case filed against him when his mother handed to her the Decision dated July 17, 2019 only on September 20, 2019.

The defendant was not personally served with summon as almost always he was staying in Governor Generoso to attend to his farm.

Henc He nce, e, wi with thou outt kn know owle ledg dge e of his his su summ mmon on,, he fai faile led d to fil file e an Answer. Thus, judgment was rendered in favor of the defendant.

ISSUES AND ARGUMENTS

WHETHER OR NOT THE COURT   ACQUIRED JURISDICT JURISDICTION ION OVER THE  PERSON OF THE DEFENDANT WHEN  HE WAS NOT PERSONALLY SERVED WITH SUMMON 

Fundamental is the rule that jurisdiction over a defendant in a civil case cas e is acq acqui uire red d eithe eitherr thro throug ugh h se serv rvice ice of su summ mmon onss or th thro roug ugh h voluntary appearance in court and submission to its authority. In the absence or when the service of summons upon the person of the defendant is defective, the court acquires no jurisdiction over his person, and a judgment rendered against him is null and void.

Serv Se rvic ice e of summ summon onss is th the e ma main in mo mode de th thro roug ugh h whic which h a cour courtt acquires jurisdiction over the person of the defendant in a civil case. Through it, the defendant is informed of the action against

2

 

him or her and he or she is able to adequately prepare his or her course of action. Rules governing the proper service of summons are not mere matters of procedure. They go into a defendant's right to due process. Thus, strict compliance with the rules on service of  summons is mandatory. In actions in perso personam, nam,   the cou court rt acqu acquire iress jurisd jurisdict iction ion ove overr the person of the defendant through personal or substituted service of  summons. Personal service is effected by handling a copy of the summons to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. In this case, the Sheriff’s return of summons dated January 8, 2019 certifies that Hersalde Paril on June 4, 2019 was personally served with summons but refused to affix his signature to acknowledge receipt. The defendant denied having served with Summo Summons. ns. How Ho w ca can n a Sh Sher erif ifff ce cert rtif ifie ied d in Ja Janu nuar ary y 8, 20 2019 19 the the se serv rvic ice e of  summons when ONLY on June 4, 2019 the defendant was alleged to have refused receipt of summon. Between the sheriff’s return and the denial of the defendant to have served with summons, it would be incumbent upon the Sheriff  to prove if the Hersalde Paril he was referring to was the same Hersalde Paril who is a defendant in this case.

WHETHER OR NOT SHERIFF’S RETU RE TURN RN CE CERT RTIF IFYI YING NG THAT THAT TH THE  E  DEFENDANT REFUSED TO SIGN WAS SUFFICIENT Sher Sh erif iffs fs are are aske asked d to di disc scha harg rge e th thei eirr du duti ties es on the the se serv rvic ice e of  summ su mmo ons

wi with th due

care care,,

utm tmo ost di dillig igen ence ce,,

an and d

re reas aso onabl able

prom pr ompt ptne ness ss an and d sp spee eed d so as no nott to pr prej ejud udic ice e th the e ex expe pedi diti tiou ouss dispensation of justice. Thus, they are enjoined to try their best

3

 

efforts to accomplish personal service on defendant. On the other hand, since the defendant is expected to try to avoid and evade service of summons, the sheriff must be resourceful, persevering, canny, and diligent in serving the process on the defendant. Then too, the proof of service failed to specify the details of the attendant circumstances. The Return merely expressed a general statement that the defendant was personally served with summon and refuse to affix his signature. The Return failed to state the impossibility to serve summons within a reasonable time. Certainly, without specifying the details of the attendant circumstances or of  the efforts exerted to serve the summons, a general statement that such efforts were made will not suffice for purposes of complying with the rules of substituted service of summons. While there is a presumption of regularity in the conduct of the Sheriff in serving the Summons, such deserve scant scrutiny as most if not all, in order to avoid substituted service, the Sheriff would just certify that the defendant was personally served but refused to receive. The court must, in cases like this that there was refusal of  receipt by the defendant, the Sheriff must immediately go to the Barangay Chairman and report the same of such refusal. The refusal of the defendant to receive must be witnessed by a competent person of suitable age and discretion.

WHETHER OR NOT REFUSAL BY THE  DEFENDANT TO RECEIVE THE  SUMMON TANTAMOUNT TO IMPOSSIBILITY OF PROMPT SERVICE   AND THEREFORE THE SHERIFF   MUST RESORT TO SUBSTITUTE SUBSTITUTED D SERVICE 

4

 

Refu Re fusa sall of th the e de defe fend ndan antt to re rece ceiv ive e th the e su summ mmon on or affi affix x hi hiss signature tantamounts to impossibility of prompt service. Hence, Sheriff must resort substituted service. The party relying on substituted service or the sheriff must show that defendant cannot be served promptly or there is impossibility of prompt service. Section 8, Rule 14 provides that the plaintiff or the sheriff is given a reasonable time to serve the summons to the defe de fend ndan antt in pers person on,, bu butt no spec specifi ific c time time fr fram ame e is ment mentio ione ned. d. Reasonable time is defined as so much time as is necessary under the circumstances for a reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that should be done, having a regard for the rights and possibility of loss to the other party. For substituted service of summons to be available, there must be several attempts by the sheriff to personally serve the summons within a reasonable period which eventually resulted in failure to prove impossibility of prompt service. "Several attempts" means at least three (3) tries, preferably on at least two different dates. In addition, the sheriff must cite why such efforts were unsuccessful. It is only then that impossibility of service can be confirmed or accepted. In the case at bar, the Returns contained mere general statement that th at de defe fend ndan antt wa wass pe pers rson onal ally ly se serv rved ed bu butt re refu fuse se to affi affix x hi hiss sign signat atur ure. e. No Nott ha havi ving ng sp spec ecif ifie ied d th the e de deta tail ilss of th the e at atte tend ndan antt circumstances

or

of

the

efforts

exerted

to

serve

the

summ su mmon ons, s, th ther ere e was was a fail failur ure e to comp comply ly stri strict ctly ly wi with th all all th the e requirements of substituted service, and as a result the service of  summons is rendered ineffective.

5

 

PRAYER WHEREFORE, it is most respectfully prayed to this Honorable Court that the Decision dated July 17, 2019 be declared void due to lack of jurisdiction over the person of the defendant.

Other reliefs just and equitable under the premises are likewise prayed for.

RESPECTFULLY SUBMITTED. September 30, 2019. Davao City.

 ATTY. GILDA S. MAHINAY, MA Econ. Counsel for the Defendant PTR No. 2470304/January 8, 2019 IBP No. 068212/ January 10,2019 Roll No. 70474 MCLE (on process) Block 11, Lot 20, 187 Dominica St. Solariega Plantacion, Talomo, Davao City 09066248650/09198639226 “Every nation has a Messenger and when their  Messenger comes everything is decided between them justly . They are not wronged.” (Surah Yunus, 47)

COPY FURNISHED:

ATTY. SANTOS E. TORRENA, JR. Counsel for the Plaintiff  NB Mercado Bldg., Mac Arthur Highway corner Sandawa

Matina, Davao City

6