Circe filed with the RTC a complaint for the foreclosure of real estate mortgage against siblings Scylla and Charybdis, co-owners of the property and cosignatories to the mortgage deed. The siblings permanently reside in Athens, Greece. Circe tipped off Sheriff Pluto that Scylla is on a balikbayan trip and is billeted at the Century Plaza Hotel in Pasay City. Sheriff Pluto went to the hotel and personally served Scylla the summons, but the latter refused to receive summons for Charybdis as she was not authorized to do so. Sheriff Pluto requested Scylla for the email address and fax number of Charybdis which the latter readily gave. Sheriff Pluto, in his return of the summons, stated that “Summons for Scylla was served personally as shown by her signature on the receiving copy of the summons. Summons on Charybdis was served pursuant to the amendment of Rule 14 by facsimile transmittal of the summons and complaint on defendant’s fax number as evidenced by transmission verification report automatically generated by the fax machine indicating that it was received by the fax number to which it was sent on the date and time indicated therein.”
Circe, sixty (60) days after her receipt of Sheriff Pluto’s return, filed a Motion to Declare Charybdis in default as Charybdis did not file any responsive pleading.
a.) Should the court declare Charybdis in default? (2%)
Scylla seasonably filed her answer setting forth therein as a defense that Charybdis had paid the mortgage debt.
b.) On the premise that Charybdis was properly declared in default, what is the effect of Scylla’s answer to the complaint? (2%)
Suggested answer only. Not an official answer and not legal advice.
[a] No, the court should not declare Charybdis in default; and [b] Scylla's answer inures to the benefit of Charybdis.
Under Rule 14 on extraterritorial service, service of summons upon a non-resident defendant in an action quasi in rem requires leave of court. Furthermore, under Rule 9, Section 3(c), when a complaint asserts a common cause of action against several defendants, an answer filed by one inures to the benefit of the defaulting co-defendant.
Here, service on Charybdis by facsimile transmittal was invalid because Sheriff Pluto acted unilaterally without obtaining prior leave of court. Assuming Charybdis was validly declared in default, Scylla's defense of payment of the mortgage debt is a common defense that inures to Charybdis's benefit.
Therefore, Charybdis cannot be declared in default due to improper service, and Scylla's common defense of payment protects both co-owners.
This is not an official scoring system and carries no weight with the Supreme Court or any bar review provider. It measures how much of the suggested answer's wording your response covers, not whether your reasoning is correct. For practice only.
Quick check
What is an indispensable requirement before extraterritorial service of summons may be effected upon a non-resident defendant in a quasi in rem action?
Extraterritorial service of summons on a non-resident defendant requires prior leave of court.
Is a sheriff authorized to unilaterally serve summons by facsimile on a non-resident defendant without a court order?
A sheriff cannot unilaterally serve summons abroad by facsimile without prior leave of court.
What is the legal effect when summons is served on a non-resident defendant without prior leave of court?
Service of summons on a non-resident without prior leave of court is void and fails to confer jurisdiction.
Under Rule 9, Section 3(c), what is the effect of an answer filed by one co-defendant setting up a common defense in a joint action?
An answer raising a common defense by one co-defendant inures to the benefit of the defaulting co-defendant.
Why can a non-resident defendant not be declared in default if summons was served without prior leave of court?
Without valid service of summons, the court lacks jurisdiction and the period to file an answer does not run.
Learn more about these topics
1. Extraterritorial Summons Service
Under Rule 14, Section 17 of the Rules of Court, when a defendant does not reside and is not found in the Philippines and the action is quasi in rem, service of summons requires prior leave of court. Extraterritorial service may be effected by personal service outside the Philippines, publication, or in any other manner the court may deem sufficient. A sheriff cannot unilaterally serve summons on a non-resident defendant by facsimile or email without an explicit court order granting leave for extraterritorial service.
2. Leave of Court
Extraterritorial service of summons without prior court authorization is invalid and fails to confer jurisdiction over the person of a non-resident defendant. While electronic transmission or facsimile is permitted under amended rules of civil procedure, it remains subject to the indispensable requirement of a motion and judicial leave. Because Sheriff Pluto attempted facsimile service on Charybdis unilaterally without obtaining court approval, the service was legally ineffective, and Charybdis cannot be declared in default for failing to file a responsive pleading.
3. Common Cause Effect
Under Rule 9, Section 3(c) of the Rules of Court, when a complaint states a common cause of action against several defendants who are co-owners or co-obligors, an answer filed by one defending party inures to the benefit of any defaulting co-defendant. If one defendant seasonably files an answer alleging a common defense—such as the full payment and extinguishment of the underlying mortgage debt—the trial court must try the case upon the answer so filed and render judgment based on the evidence presented.