BENEDICTO B. POTENCIANO II vs. GREGORY P. BARNES G.R. No.

159421 August 20, 2008

Topic: Summons in General- Substituted Sec. 7, Rule 14

Petitioner: Potenciano II
Respondent: Barnes proper provided the requisites are complied with pursuant to Sec. 7, Rule
14.
RULING: WHEREFORE, we DENY the petition. FACTS:
DOCTRINE: Service of summons on the defendant is the means by which  Feb. 2000: GP Barnes Group of Companies hired Potenciano as a
the court acquires jurisdiction over the defendant. It serves as a notice member of the Management Committee of the Barnes Marketing
to the defendant that an action has been commenced against him, Concept.
thereby giving him the opportunity to be heard on the claim made against  Potenciano was also designated as one of the managers of the
him. Section 6, Rule 14 provides that whenever practicable, the London Underground Bar and Restaurant, another member-company
summons shall be served by handing a copy thereof to the defendant in of GP Barnes Group of Companies.
person, or if he refuses to receive and sign for it, by tendering it to him.  Feb. 2001: Potenciano was assigned as Operations Manager of
However, if for justifiable reasons the defendant cannot be served in Executive Dinner Club International, also a member-company of GP
person within a reasonable time, substituted service of summons is Barnes Group of Companies.
 Barnes: owner and president of GP Barnes Group of Companies

May 9 2001: Potenciano to  May 11, 2001: a certain Mr. Herrera, a representative of E. Himan Law Office, secured from TC copies of the complaint
RTC- Complaint for with annexes and the summons intended for Barnes.
damages against Barnes  Mr. Herrera indicated on the courts copy of the summons that E. Himan Law Office was Barnes’ counsel.
for alleged harassment  On the same date, the deputy sheriff issued a Return of Summons.
and maltreatment
Jun 16, 2001: Potenciano  On 22 June 2001, E. Himan Law Office, represented by Atty. Dave, by way of special appearance to question the
filed a motion to declare validity of the service of summons, filed its Comment/Manifestation
Barnes in default  The law office does not represent Barnes because he has not yet engaged the services of the law office, thus no
authority to bind Barnes.
RTC: issued Order of  RTC denied urgent MR of the default order filed by Atty. Dave of the law office.
Default
RTC resolution: favored  Declared Barnes by himself and severally, jointly with GP Barnes Group of Companies, Barnes Marketing Concept,
Potenciano London Underground Bar and Restaurant and Executive Dinner Club International, liable for damages and are therefore
directed to pay Plaintiff
Potenciano filed Motion for Execution pending appeal
Barnes (Diores Law  As remedy against judgment by default with Opposition to Execution Pending Appeal.
Offices) filed a Motion for
New Trial
RTC denied. MR denied.  The sheriff did not commit fraud when he certified in his Return of Summons that Barnes was duly served with the
summons when a representative of E. Himan Law Office, claiming as counsel of Barnes, secured a copy of the
summons and the complaint against Barnes.
 When E. Himan Law Office received the copy of the complaint and the summons, it was acting on behalf of Barnes.
 Barnes was duly served with the summons through the voluntary appearance of his counsel on his behalf.
CA decision: granted  There was no valid service of summons since neither Mr. Herrera nor E. Himan Law Office was the defendant.
Barnes’ Petition for  When Mr. Herrera, as a representative of E. Himan Law Office, received a copy of the summons, Barnes had not yet
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 Certiorari, Prohibition, and engaged the services of E. Himan Law Office.
Mandamus, with prayer  The sheriff did not exert any effort to comply with Sec. 6, Rule 14, either by handing a copy of the summons to Barnes
for TRO or preliminary in person and should Barnes refuse to receive and sign the summons, by tendering it to him.
prohibitory injunction  Since there was no valid service of summons on Barnes, the trial court therefore did not acquire jurisdiction over
Barnes.

ISSUE: WON trial court acquired jurisdiction over the person of the and when asked what is his participation in this case he
Barnes answered that he is the representative of E. Himan Law Office,
HELD: NO. There was no service of summons on Barnes himself. the counsel for the Barnes.
That he was told by the said Law Office to come to Branch 276,
RATIO: R.T.C. Muntinlupa to get the copy of the Summons and the
• Service of summons on the defendant is the means by which the court Complaint and its annexes, so that the undersigned give [sic] him
acquires jurisdiction over the defendant. the said documents, as evidenced by his signature appearing on
• Serves as a notice to the defendant that an action has been the original Summons.
commenced against him, thereby giving him the opportunity to be
heard on the claim made against him. Wherefore said original copy of Summons is hereto attached to
• This is in accordance with the constitutional guaranty of due the record of the above-entitled case DULY SERVED.
process of law which requires notice and an opportunity to be
heard and to defend oneself. • The handing of a copy to Mr. Herrera cannot even qualify as substituted
• Sec. 6, Rule 14: there must be actual delivery or tender of the summons service under Sec. 7 of Rule 14.
to the defendant himself: • The requisites of substituted service of summons are:
Section 6. Service in person on defendant. Whenever practicable, • the defendant cannot be served personally within a reasonable
the summons shall be served by handing a copy thereof to the time;
defendant in person, or if he refuses to receive and sign for it, by • the impossibility should be shown by stating the efforts made
tendering it to him. to find the defendant personally and the fact that such efforts
• However, if for justifiable reasons the defendant cannot be served in failed, and this statement should be made in the proof of
person within a reasonable time, substituted service of summons is service.
proper (Sec. 7, Rule 14): • The deputy sheriff never made any effort to serve the summons on
Section 7. Substituted service. If, for justifiable causes, the Barnes himself. Neither was the copy of the summons served at Barnes
defendant cannot be served within a reasonable time as provided residence nor at his office or regular place of business, as provided
in the preceding section, service may be effected (a) by leaving under Sec. 7 of Rule 14.
copies of the summons at the defendants residence with some • The deputy sheriff just handed a copy of the summons to a
person of suitable age and discretion then residing therein, or (b) messenger of E. Himan Law Office who came to the office of the
by leaving the copies at defendants office or regular place of trial court claiming that E. Himan Law Office was the counsel of
business with some competent person in charge thereof. Barnes.
• Giving a copy of the summons to a messenger of a law firm, which
• There was no attempt whatsoever on the part of the deputy sheriff to was not even the counsel of the defendant, cannot in any way be
serve the summons on Barnes himself, who was the defendant in the construed as equivalent to service of summons on the defendant.
complaint. • Since there was no service of summons on Barnes, the trial court never
• The Return of Summons of the trial courts deputy sheriff reads: acquired jurisdiction over Barnes and the trial court’s order of default
THIS IS TO CERTIFY that on May 11, 2001, Mr. Jaime S. Herrera and the judgment by default are void.
Jr. came to this branch asking a copy of the Summons together • The trial court should have refrained from issuing the default order
with the Complaint and its annexes on the above-entitled case when E. Himan Law Office manifested that it did not represent Barnes

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 who had not engaged its services. It would have been more prudent for
the trial court at that point to order the deputy sheriff to serve the
summons on Barnes himself by handing it to him personally.
• Other than valid service of summons on the defendant, the TC can still
acquire jurisdiction over the defendant by his voluntary appearance, in
accordance with Sec. 20, Rule 14. However, this is not the case here.
• There is no evidence on record that Barnes authorized E. Himan
Law Office to represent him in the case.
• E. Himan Law Office filed a Comment/Manifestation to the Motion to
Declare Defendant in Default, alleging that Barnes had not yet
engaged the services of E. Himan Law Office, which could not
therefore represent Barnes.
• The receipt of the summons by E. Himan Law Office and its filing of
a Comment/Manifestation to the Motion to Declare Defendant in
Default cannot be considered as voluntary appearance on the part
of Barnes.

• It was only on 15 August 2001 that Barnes made his first appearance in
the trial court by filing a Motion for New Trial through his counsel of
record which is precisely to question the validity of the order of default
and the subsequent judgment for lack of jurisdiction over the person of
the defendant.

• Cavili v. Hon. Vamenta, Jr.: summons was served only on 1 of the 3

defendants, the other 2 did not authorize the counsel of their co-
defendant to represent them in the case, thus the motion for extension
of time to file an answer cannot, be construed as a voluntary
appearance in the case of the other 2 defendants.Neither can the
motion for new trial filed later on behalf of the defendants cure the
jurisdictional defect due to non-service of summons on them because
the motion was predicated on such lack and was intended to secure
the opportunity to be heard in a new trial. It cannot be construed as a
waiver of the right to be heard.
• Since the TC never acquired jurisdiction over Barnes, either by
personal or substituted service of summons or voluntary appearance in
court (by Barnes) and submission to its authority, the order of default
and the succeeding judgment are void for lack of jurisdiction over the
person of the defendant.
• The trial court should have granted Barnes Motion for New Trial to
afford him due process of law. The appellate court was right in granting
the petition for certiorari, prohibition and mandamus.