REPUBLIC OF THE PHILIPPINES

MUNICIPAL TRIAL COURT OF ZAMBOANGA CITY

BRANCH 5
JOYCE ANN S. CAPITO,
Plaintif,
-versus- Civi C!se N". #$%5&'
F"r( C"e)*i"+ ", Su- ", M"+e.
FELI/ R. ESGUERRA,
Defendant.
0---------------------------------------------------0
MOTION TO 1ISMISS
Comes now, defendant, Felix R. Esguerra, by the undersigned counsel, and to
this Honorable Court, most respectfully move for the dismissal of the above-
captioned case upon the sole ground that this honorable court has no urisdiction
over the person of the defendant.
1ISCUSSION

Rule !" of the Rules of Court provides the di#erent modes by which service of
summons may be made on a particular defendant. $uch modes must be complied
with because the manner in which service of summons should be e#ected is
SUMMONS 2AS NOT SER3E1
UPON 1EFEN1ANT AS MAN1ATE1
BY THE RULES, HENCE, THIS
HONORABLE COURT HAS NO
JURIS1ICTION O3ER THE PERSON
OF THE 1EFEN1ANT.
urisdictional in character and its proper observance is what dictates the court%s
ability to ta&e cogni'ance of the litigation before it.
(here the defendant is an individual, $ection ) and *, Rule !" of the Rules of
Court speci+cally provides the ordinary modes in which service of summons may be
made, thus,
-$ec. ). Service in person on defendant - (henever 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..
-$ection *. $ubstituted $ervice. / 0f, for usti+able causes, the
defendant cannot be served within a reasonable time as provided in
the preceding section, service may be e#ected 1a2 by leaving copies of
the summons at the defendants residence with some person of
suitable age and discretion then residing therein, or 1b2 by leaving
copies at defendant%s o3ce or regular place of business with some
competent person in charge thereof..
4s may be gleaned from the foregoing, the general rule is that summons
must be served to the defendant in person. 0t is only when the defendant cannot be
served personally within a reasonable time and for usti+able reasons that
substituted service may be made. 0mpossiblity of prompt service should also be
shown state the e#orts made to +nd the defendant personally and the fact that
such e#orts failed.
$trict compliance with the re5uirements of substituted service is re5uired.
6nder the controlling decisions, the statutory re5uirements of substituted service
must be followed strictly, faithfully and fully, and any substituted service other than
by the statute is considered ine#ective. 7his is necessary because substituted
service is in derogation of the usual method of service8 it is a method extraordinary
in character8 and hence, may be used only as prescribed and in the circumstances
authori'ed in the statute.
0n the case at bar, there was no showing that a copy of summons was either
given personally to the defendant or left at the defendant%s residence or regular
place of business.
7here being no service of summons upon defendant Felix R. Esguerra in
accordance with the re5uirement of the rules, it follows that this Honorable Court
has not ac5uired urisdiction over said defendant%s person.
RELIEF
(HEREF9RE, defendants respectfully pray that the herein complaint be
ordered dismissed on the ground of lac& of urisdiction over the person of the
defendant.
9ther relief, ust and e5uitable are also prayed for.
:ay ;<, ;<!", =amboanga City
NEIL GABRIEL A. BALTAZAR
Counsel for >efendant
?@: Auilding, Beterans 4venue
=amboanga City
0A? Co. "*<)<)D<!-!"-<)D:@??
?7R Co. !"*E!<*D<!-!"-<)D:a&ati
R9@@ Co. F*GH!
C9?I F6RC0$HE>
ATTY. GERAR1 PETER C. MARIANO
Counsel for ?lainti#
"
th
Floor CJB Auilding, !<G 4guirre $treet
@egaspi Billage, :a&ati City
C970CE 9F HE4R0CK
7he Honorable Court
:7C =amboanga City, Aranch H
477I. KER4R> ?E7ER C. :4R04C9
Counsel for the ?lainti#
?lease ta&e notice that the foregoing motion will be submitted, and is
re5uested to be submitted, for the consideration and approval of the Honorable
Court on ;H :ay ;<!" at !,F< p.m. or soon thereafter as matter and counsel may
be heard on notice.
NEIL GABRIEL A. BALTAZAR
EL?@4C4709C 9C $ERB0CE AI REK0$7ERE> :40@
>efendant, by counsel, respectfully manifests that due to lac& of managerial
personnel, time constraint and the distance involved, a copy of the foregoing :otion
to >ismiss was served via registered mail in accordance with Rule !F of the Revised
Rules of Civil ?rocedure.
NEIL GABRIEL A. BALTAZAR