Civil Procedure

G.R. No. 72566April 12,1988

Delbros Hotel Corporation v IAC

Petitioner: DELBROS HOTEL CORPORATION Respondents: IAC, HILTON INTERNATIONAL COMPANY, RICHARD CHAPMAN, FLAVIANO MOSQUERA, JR.

Facts: Petition for certiorari on the resolution of the Intermediate Appellate Court. Feb. 27, 1985. Delbros filed a complaint for termination of agreement and damages, with prayer for the issuance of a restraining

order and/or writ of preliminary mandatory injunction against private respondents Hilton. In their Management Agreement, Delbros will financed, built, furnished and equipped a first-class hotel and the operation and

management of which was granted to Hilton. Delbros alleged that Hilton refused to remit their share of the gross profit as stipulated in their agreement. In their Answer with compulsory counterclaim, Hilton said that Delbros has no cause of action and that their claims had been waived

or abandoned. Mar. 21, 1985. The RTC then issued a writ of preliminary injunction enjoining Hilton and Chapman from disposing, concealing

corporate records and stocks, as well as disbursing and transferring funds therefrom. Hilton went to the IAC on a petition for certiorari assailing the said writ. July 3, 1985, the 3rd Special Cases Division of IAC issued a

TRO on the injunction order by the RTC. And on Aug. 21, 1985, the said TRO was then replaced by a writ of preliminary injunction. Meanwhile, on Apr. 12, 1985, Delbros filed a motion to admit supplemental complaint in which petitioner impleaded an additional

defendant, Mosquera. The said motion was granted and a copy of the order was received by Hilton on June 21, 1985. However, the motion for extension to answer supplemental complaint was received by the RTC only on July 16.

The RTC declared Hilton in default upon motion of the petitioner. And on July 15, judgment was rendered in favor of Delbros declaring that the termination of the agreement is valid and to surrender the Hotel to Delbros. A writ of execution was subsequently issued by the trial court on Sept. 3, 1985.

Sept. 4, 1985. Hilton filed a petition for certiorari to assail the writ of execution having issued with grave abuse of discretion. And on Sept 5, the 1st Special Cases Division of the IAC issued a TRO to stop the writ of execution issued by the RTC. Delbros filed a MR but was not acted upon. Then filed this petition arguing that the order was null and void.

Issue:W/N the RTC erred in declaring a party in default for failure to answer a supplemental complaint. YES.

Held:Petition was DISMISSED. The default judgment on July 15, 1985 and the writ of execution on Sept. 3, 1985 were set aside.

Rationale: Default orders are taken on the legal presumption that in failing to file an answer, the defendant does not oppose the allegations

and relief demanded in the complaint. In the case at bar, however, no such presumption can arise as proven by the Answer filed by HILTON and Chapman to the original complaint. Their institution of the certiorari proceedings in opposition to petitioner's attempt to interfere with and/or take over the control and management of the hotel pendente lite; and their vigorous opposition to the admission of the supplemental complaint under consideration. These factors, of which the trial judge had full knowledge and notice, should have cautioned him from precipitately rendering the default order as well as the default judgment.

"A supplemental pleading is not like an amended pleading — substitute for the original one. It does not supersede the original, but assumes that the original pleading is to stand, and the issues joined under the original pleading remain as issues to be tried in the action." While it is conceded that there is authority in support of a default judgment being predicated upon defendant's failure to answer a supplemental complaint, the same cannot apply here. The reason is that although in the supplemental complaint, the relief prayed for was altered from termination of the management contract to judicial confirmation of its termination, the basic and principal issue of whether or not petitioner was entitled to terminate the management contract, remained . As this basic issue had been previously traversed and joined by the Answer filed by HILTON and Chapman, there was no necessity for requiring them to plead further to the Supplemental Complaint. Consequently, the trial judge did not have a legal ground for declaring them in default for such failure to plead.

The Court said that the trial court should have treated the supplemental complaint as an amended complaint, and the original answer thereto as sufficient; or otherwise to have waited for the answer of the newly-impleaded defendant before acting on the motion to declare the original defendants in default and rendering the default judgment, considering that a common cause of action has been asserted against the three defendants, so that the answer of Mosquera, Jr. could inure to the benefit of the original defendants.

Further, no prejudice wouId result to petitioner had the trial judge taken a more prudent and judicious course of action . Acting as the trial judge did, grave, irreparable and serious damage caused to private respondents. Mosquera was not yet declared in default, consequently, any defense set up by him for himself and for the benefit of his co-defendants was rendered practically inutile by the execution of the default judgment.

Barraza vs. Campos

Civil Procedure

FACTS: Alleging grave abuse of discretion amounting to lack of jurisdiction on the part of respondent Presiding Judge, spouses-petitioners, through the remedy of certiorari under Rule 65, Revised Rules of Court, prayed for the annulment of the latter's judgment by default dated January 29, 1979 rendered against them, as well as his Order declaring them in default dated December 1, 1978 in Civil Case No. Pq-6692-P entitled "Renato Gatchalian, plaintiff, versus Spouses George Barraza and Yolanda Gatchalian, defendants" for damages and injunction filed with the Court of First Instance of Rizal, Pasay City, Branch

Private respondent filed a Complaint for damages based on defendants' (petitioners herein) use of plaintiff's (now private respondent) trade name and style of "Gatchalian-The House of Native Lechon and Restaurant",

petitioners were properly served with summons together with the corresponding complaint and annexes thereof.

petitioners as defendants therein filed an "Urgent Ex- Parte Motion" for extension of time of 15 days within which to file an Answer which the Court granted in its Order

Instead of filing the Answer within the extended period of fifteen (15) days, defendants filed through their counsel, Atty, Esmeraldo M. Gatchalian, a "Motion to Dismiss Complaint Together With Prayer for Preliminary Injunction" which was filed with the Court

The same motion was set for hearing

private respondent filed an "Ex-Parte Motion to Declare Defendants in Default" on the ground that the defendants failed to file an answer within the reglementary period allowed by the Rules of Court.

the Court finding the reasons stated in the "Ex-Parte Motion to Declare Defendants in Default" filed by plaintiff, through counsel to be well-taken, granted said motion and allowed the plaintiff to present evidence exparte

respondent judge rendered his decision in favor of the plaintiff,

defendants through counsel moved for the reconsideration of the court's order but the court denied the said motion.

Upon an "Ex-Parte Motion for Issuance of Writ of Execution" dated March 29, 1979, the Court in its Order of April 2, 1979 granted the motion and caused the issuance of a writ of execution.

Defendants filed an "Urgent Omnibus Motion" praying that the Order of the Court declaring the defendants as in default, the proceedings held on the strength thereof and the decision rendered in the case at bar be set aside and that the defendants be given three (3) days from receipt of the corresponding order within which to file their answer in the case at bar.

the Court denied defendants' Omnibus Motion in its Order

ISSUE: whether the Order of respondent Judge dated December 1, 1978 declaring defendants, now the herein petitioners, in default for failure to file their answer within the reglementary period provided by law

HELD: NO. Under the facts of the case at bar, respondent judge had granted petitioners an extension of fifteen (15) days to file their answer, or up to November 18, 1978. Instead of filing the answer, petitioners filed a Motion to Dismiss the Complaint on November 17, 1978, one (1) day before the expiration of the period as extended by the court. This is clearly allowed under Section 1, Rule 16, Rules of Court. A motion to dismiss is the usual, proper and ordinary method of testing the legal sufficiency of a complaint.

There is nothing in the Rules which provide, directly or indirectly, that the interruption of the running of the period within which to file an answer when a motion to dismiss the complaint is filed and pending before the court, refers only to the original period of fifteen (15) days and not to the extension of time to file the answer as granted by the court.

This Section 1 of Rule 11 in relation to Section 4 of Rule 16 allows the defendant to file his answer not only within the original fifteen (15) days period but also within "a different period (as) fixed by the court. "

In Simeon Mandae, plaintiff and appellant, vs. Eustaquio Gumarad and Regino Lagundino, defendants and appellees, L-2202, Aug. 31, 1950, 87 Phil. 278, We ruled: "It appearing that the motion to dismiss was filed before the expiration of the period for filing defendants' answer as extended by the court, there was no legal reason for declaring defendants in default. "

Civil Procedure

Petitioners' Motion to Dismiss the Complaint must be resolved by the trial court and if the Motion to Dismiss is denied or if determination thereof is deferred, petitioners shall file their answer pursuant to Section 4, Rule 16 of the Rules of Court.

Judgment of default was reversed and set aside by SC

DAVID v. JUDGE GUTIERREZ-FRUELDA PFC under Rule 65 to set aside the order of the RTC declaring the petitioner in default

FACTS September 17, 2004, private respondents filed a complaint for accounting, reconveyance and damages with prayer for preliminary

attachment against petitioner, his wife Marissa David, and the Register of Deeds of Pampanga. Private respondents alleged that petitioner fraudulently exceeded his special power of attorney to cause the conversion of their

agricultural lands to those for residential, commercial and industrial purposes by registering in his name some of the lands, mortgaging others, failing to remit and account any money received from any transaction involving their lands, and absconding.

Service of summons failed as petitioner was abroad January 24, 2005 – RTC ordered service by publication. Private respondents moved to declare petitioner in default for failure to

answer within 60 days from last publication July 14, 2005 – Petitioner filed a motion for extension of 15 days to file an answer with opposition to the motion to declare him in

default July 15, 2004 – RTC declared petitioner in default and denied petitioner’s motion for extension to file answer

o RTC noted that the period to file the answer lapsed 60 days after the last publication and petitioner failed to answer despite the many opportunities given to him.

Petitioner moved to lift the order of default and sought another extension of 15 days RTC denied motion as it was fatally flawed under Sec3(b) Rule 9.

o Motion was not under oath, it was unaccompanied by an affidavit of merit and without any allegation that his failure to file an answer was due to fraud, accident, mistake or excusable negligence.

Petitioner filed a PFC under rule 65 directly to the SCISSUE: WON the RTC committed GAD in denying the petitioner’s motion to lift the order of default.HELD: NORATIO:Indeed, default orders are not viewed with favor.17 But in this case, petitioner failed to comply with the basic requirements of Section 3(b), Rule 9 of the Rules of Court. The motion was not under oath. There was no allegation that petitioner’s failure to file an Answer or any responsive pleading was due to fraud, accident, mistake, or excusable negligence. Petitioner merely stated that declarations of default are frowned upon, that he should be given the opportunity to present evidence in the interest of substantial justice, and that he has meritorious defenses. Unfortunately, his claim that he has meritorious defenses is unsubstantiated. He did not even state what evidence he intends to present if his motion is granted.

NOTE: THIS CASE IS UNDER RULE 11 BUT THE CASE BASICALLY TALKS ABOUT DEFAULT. SO I DON’T KNOW HOW TO WRITE THE DIGEST BECAUSE IT DID NOT TOUCH UPON THE TOPIC OF WHEN TO FILE RESPONSIVE PLEADINGS.

READ SEC 15 OF RULE 14 nalang because it states that for extraterritorial service of summons, period to answer is 60 days. SO in this case, since he was abroad, he had 60 days to file his answer in which he failed to do so.

SALITA VS. MAGTOLIS 233 SCRA 100 FACTS: 1. Erwin Espinosa and Joselita Salita were married in church rites on January 25, 1986. 2. A year later their union turned sour. 3. They separated in fact in 1988. 4. Subsequently, Erwin sued for annulment on the ground of Joselita’s psychological incapacity. 5. The petition for annulment was filed in January 7, 1992 before the RTC of Quezon City. 6. The petition alleged that “sometime in 1987, petitioner came to realize that respondent was psychologically incapacitated to

comply with the essential marital obligations of their marriage, which incapacity existed at the time of marriage although the same became manifest only thereafter.”

7. Dissatisfied with the allegation in the petition, Joselita moved for a bill of particulars which the trial court granted. 8. Joselita was not contented with the Bill of Particulars and argued that the “assertion in the bill of particulars is a statement of legal

conclusion made by petitioner’s counsel and not an averment of ‘ultimate facts’, as required by the Rules of Court, from which such a conclusion may be properly be inferred.”

9. The trial court found the Bill of Particulars adequate and directed Joselita of file her responsive pleading. 10. Joselita was not convinced and she filed a petition for certiorari with the Supreme Court. 11. The SC referred the same to the Court of Appeals. 12. The CA denied due course to her petition.

Civil Procedure

13. It was the view of the CA that the specification more than satisfies the Rules’ requirement that a complaint must allege the ultimate facts constituting plaintiffs cause of action.

14. Petitioner insists that the allegations in the Bill of Particulars constitute a legal conclusion, not an averment of facts, and fails to point out the specific essential marital obligations she was not able to perform, and thus render the Bill of Particulars insufficient if not irrelevant to her husband’s cause of action.

15. Private respondent on the other hand believes that his allegations in the Bill of Particulars constitute the ultimate facts which the Rules of Court requires.

ISSUE: Was the Bill of Particulars submitted by respondents of sufficient definiteness or particularity as to enable herein petitioner to

properly prepare her responsive pleading. HELD: The Bill of Particular filed by private respondent is sufficient to state a cause of action and to requirement more details from private

respondent would be to ask for information on evidentiary matters. A complaint only needs to state the “ultimate facts constituting the plaintiffs cause or causes of action.” Ultimate facts has been

defined as “those facts which the expected evidence will support.” The Bill of Particular specified that *** at the time of marriage, respondent (Joselita Salita) was psychologically incapacitated to

comply with the essential marital obligations of their marriage in that she was unable to understand and accept the demands made by his profession – that of a verily qualified Doctor of Medicine – upon petitioner’s time and efforts sot that she frequently complained of his lack of attention to her even to her mother, whose intervention caused petitioner to loss his job.

Consequently, the SC has no other recourse but to order the immediate resumption of the annulment proceedings which have

already been delayed for more than 2 years now, even before it could reach its trial stage. Whether petitioner is psychologically incapacitated should be immediately determined. There is no point in unreasonably delaying the resolution of the petition and prolonging the agony of the wedded couple who after coming out from a storm still have the right to a renewed blissful life either alone or in the company of each other.

Agnacas v. Mercado (G.R. L-15808)

Facts:

This is an appeal by defendants Mercado and Dasalla from the CFI-Isabela on a question of law Plaintiffs Agcanas, et al, filed an action to recover portions of parcels of land in Isabela against defendants Mercado and Dasalla 4 Dec. 1956: defendants filed a motion for a bill of particulars

Notice of hearing was made on 8 Dec. 1956 The CFI received the motion only on 12 Dec. 1956 The CFI set it for hearing on 22 Dec. 1956

17 Dec. 1956: defendants filed a motion to dismiss, and set the hearing thereof on 22 Dec. 1956 22 Dec. 1956: the court issued an order postponing 'consideration' of both motions to 29 Dec. 1956 7 Mar. 1957: the court denied the motion to dismiss; ordered the defendants to file an Answer

Defendants failed to file an Answer; on motion of the plaintiffs, the court issued an order declaring defendants in default Upon learning of the order of default, the defendants filed a motion asking that the court set aside the order of default and resolve

the motion for a bill of particulars The court denied said motion; it explained that the defendants had "tacitly waived their right to push through [with] the

hearing of the motion for [a] bill of particulars," because of their failure to set it for hearing or to ask the clerk of court to calendar it after denial of the motion to dismiss

The defendants filed a record of appeal before the Supreme Court But because they subsequently filed a petition for relief from the judgment of default, they asked that consideration and

approval of the record on appeal be held in abeyance until said petition had been resolved The request was granted

The petition for relief was denied The motion for reconsideration on such denial was also denied

Hence, this appealIssue: W/N the lower court erred in declaring the defendants in default

Decision/Ratio: YES

Both a motion to dismiss and a motion for a bill of particulars interrupt the time to file a responsive pleading In a situation where:

motions to dismiss and for a bill of particulars are filed; the resolution of the bill of particulars is held in abeyance; and the motion to dismiss is denied,

Civil Procedure

the period to file an Answer remains suspended until the motion for a bill of particulars is denied (or if it is granted, until the bill is served on the moving parties)

CAB: The motion for a bill of particulars had yet to be resolved.

The defendants did not tacitly waive their right to the resolution thereof “by failing to set it for hearing” since it was already set for hearing (22 Dec 1956, postponed to 29 Dec 1956)

Therefore, the period to file an Answer was still suspended. Since said period was still suspended, their failure to file an Answer could not result in a ground for default Hence, the lower court erred in declaring the defendants in default

JOSE SANTOS, plaintiff-appellant, vs.LORENZO J. LIWAG, defendant-appellee

Appeal from the CFI

Facts:

Jose Santos filed a complaint against Lorenzo J. Liwag seeking to annul a certain document alleging misrepresentations, machination, false pretenses, threats, and other fraudulent means, as well as for damages and costs with the Court of First Instance of Manila.

Defendant then filed a bill of particular inorder to clarify the allegations in the complaint constituting of misrepresentations, machinations, and frauds employed by the defendant in the execution of the documents in question in order that he could be well informed of the charges filed against him, for him to prepare an intelligent and proper pleading necessary and appropriate in the premises.

The plaintiff opposed the motion saying that the allegations in his complaint are sufficient and contain ultimate facts con- constituting his causes of action and that the subject of the defendant's motion is evidentiary in nature.

TC granted the motion and directed the plaintiff to submit a bill of particular.

Plaintiff failed to comply, hence the case was dismissed.

Issue:

Whether or not the case should be dismissed on the ground of plaintiff’s failure to comply with the court’s order of submitting a bill a particular?

Held:

Yes. The allegations must state the facts and circumstances from which the fraud, deceit, machination, false pretenses, misrepresentation, and threats may be inferred as a conclusions In his complaint, the appellant merely averred that all the documents sought to be annulled were all executed through the use of deceits, machination, false pretenses, misrepresentations, threats, and other fraudulent means without the particular-facts on which alleged fraud, deceit, machination, or misrepresentations are predicated. Hence, it was proper for the trial court to grant the defendant's motion for a bill of particulars, and when the plaintiff failed to comply with the order, the trial court correctly dismissed the complaint.

PETER D. GARRUCHO, petitioner, vs. COURT OF APPEALS, HON. OSCAR B. PIMENTEL

CASE: The petitioner filed a petition for certiorari under Rule 65 of the Rules of Court against the CA, the RTC, Sheriff Flora and Binamira, for the nullification of the CA resolutions dated June 23, 1999 and November 26, 1999, the June 22, 2000 Order of the RTC, as well as the June 28, 2000 writ of execution issued by the latter court.

Civil Procedure

FACTS: The petitioner and Commissioner Domingo appealed the decision OF RTC to the Court of Appeals (CA). On March 9, 1999, the CA sent a notice by registered mail to the petitioner’s counsel directing the latter to file his brief as appellant. However, the notice was returned to the court.

The CA resent the notice dated March 5, 1999 to the petitioner at his office at the Department of Tourism building, Agripino Circle, Manila. The notice was returned to the CA on May 5, 1999, again, having been “unclaimed.” The CA issued a minute resolution on June 23, 1999, declaring that the service of notice on the petitioner was complete as of May 5, 1999. A copy of the said resolution was sent by registered mail to the petitioner in the Department of Tourism.

On November 26, 1999, the appellate court issued a Resolution dismissing the appeal of the petitioner for his failure to file his brief. A copy of the resolution was sent by registered mail to the petitioner’s counsel, but the said resolution was returned to the court with a notation stamped on the envelope “Return To Sender, Moved Out.” The CA then had a separate copy of the notice served by registered mail on the petitioner at his office address, but the same was returned to the CA with the notation “Unclaimed.”

ISSUE: Whether or not petitioner was deprived of his right to due process when the CA dismissed his appeal because of his failure to file his brief

HELD: The petition has no merit.

RATIO: The records show that the counsel of the petitioner in the trial court was the law firm of Remollo & Associates with offices at Suite No. 23, Legaspi Suites, 178 Salcedo Street, Legaspi Village, Makati City. Under Section 2, Rule 44 of the 1997 Rules of Civil Procedure, the counsel of the parties in the court of origin shall be considered as their counsel in the CA.

Section 2, Rule 13 of the Rules of Civil Procedure provides that if any party has appeared by counsel, service upon him shall be made upon his counsel unless served upon the party himself is ordered by the trial court. Notice or service made upon a party who is represented by counsel is a nullity. Notice to the client and not to his counsel of record is not notice in law. The rule admits of exceptions, as when the court or tribunal orders service upon a party or when the tribunal defendant is waived.

In the absence of a proper and adequate notice to the court of a change of address, the service of the order or resolution of a court upon the parties must be made at the last address of their counsel on record. It is the duty of the party and his counsel to device a system for the receipt of mail intended for them, just as it is the duty of the counsel to inform the court officially of a change in his address. It is also the responsibility of a party to inform the court of the change of his address so that in the event the court orders that an order or resolution be served on the said party to enable him to receive the said resolution or order.

In the present case, the law firm of Remollo & Associates, the petitioner’s counsel of record, moved out from their office at the Legaspi Suites to Dumaguete City without informing the court of such fact. Neither did the petitioner inform the court of his home or office address after his resignation as Secretary of the Department of Tourism where copies of the said order or resolution could be sent.

G.R. No. L-27211 July 6, 1977

EUSEBIA BARRAMEDA, plaintiff-appellant, vs.ENGRACIO CASTILLO, defendant-appellee

This case is about the effectiveness of the service of a court's decision by registered mail

Facts:

Eusebia Barrameda sued Engracio Castillo in the municipal court of Lopez, Quezon Province (nature of suit was not mentioned) A copy of the court's decision, which was adverse to Barrameda, was sent by registered mail on January 28, 1966 to her lawyer at

San Pablo Cityo That mail was received in the city post office on the following day, January 29

On that day and on February 3 and 9, 1966 the city postmaster's office supposedly sent to Barrameda's counsel three notices regarding the registered mail

Barrameda's lawyer did not claim that mail. It was returned to the municipal court and was received there on March 3, 1966 as unclaimed mail

Civil Procedure

Eusebia Barrameda must have been informed that the adverse decision could not be served upon her lawyer.o On March 9, 1966 she received personally a copy of the decision.

Through a lawyer, Barrameda filed a notice of appealo Castillo did not interpose in the municipal court any objection to her appealo The court gave it due course

Castillo filed in the Court of First Instance a motion to dismiss the appeal on the ground that it was filed out of time. o His theory was that the fifteen-day reglementary period within which Barrameda could appeal should be counted from

the expiration of five days from the date of the first notice sent by the postmaster to Barrameda's lawyer Eusebia Barrameda opposed Castillo's motion to dismiss her appeal

o that Castillo failed to prove that her counsel actually received the supposed three notices sent by the postmastero that because in the municipal court Castillo did not object to her appeal, his motion could no longer be entertained

The trial court granted the motion and dismissed the appealo that the fifteen-day period should be counted from February 7, 1966, the date of the third notice and the period expired

on February 21, 1966 Hence, this petition

Issue: W/N the trial court was correct in computing the 15 day period counted from the service of the 3rd notice

Held: No. Trial court’s order of dismissal is reversed

Ratio:

Rule 13 of the Rules of Court provides:

SEC. 7. Service of final orders or judgments. — Final orders or judgments shall be served either personally or by registered mail. ...

SEC. 8. Completeness of service. — Personal service is complete upon actual delivery. ... Service by registered mail is complete upon actual receipt by the addressee; but if he fails to claim his mail from the post office within five (5) days from the date of first notice of the postmaster, service shall take effect at the expiration of such time

In service by registered mail, the general rule is that service is complete upon actual receipt by the addressee. The exception is that when the addressee does not claim his mail within five days from the date of the first notice of the postmaster, then the service takes effect at the expiration of such time

As illustrated by Justice Cesar Bengzon, if the first notice is received by the addressee on December 1, and he gets his mail on December 3, the service is complete on December 3, the date of the actual receipt (general rule)

But if the addressee gets his mail only on December 15, service is deemed complete on December 6 or five days from December 1, the date of the first notice (exception)

If the addressee never gets the mail, service is also deemed complete on December 6, as provided in the exception to the general rule. If he receives his mail two months after it is registered and there is no proof of the first notice, then service is complete on the date of actual receipt, following the general rule.

Civil Procedure

Bearing in mind that the exception in service by registered mail refers to constructive service, not to actual receipt of the mail, it is evident that the fair and just application of that exception depends upon conclusive proof that a first notice was sent by the postmaster to the addressee. The presumption that official duty has been regularly performed should not be applied to such a situation. A certification from the postmaster would be the best evidence of that fact.

Separate Opinions

ANTONIO, J, concurring:

In case the service of the order or judgment is sought to be effected by registered mail, but there is no proof that the notice for the registered mail was received by the addressee, the presumption, under Section 8 of Rule 13 of the Rules of Court, of the delivery of the registered mail or completion of the service after five (5) days from date of the first notice, certainly does not arise

PNB v. CFI of Rizal

Facts:

- PFC to review the orders of the then CFI of Pasig, Br. 21- Respondents are the registered owners of 3 parcels of lands in Pasig of the RD of Rizal- 1 March 1954 – Respondents entered into a Contract of Lease with Philippine Blooming Mills, Co., Inc., (PBM) whereby the latter

shall lease the aforementioned land- In accordance with the Contract, as PBM was allowed to use the property as a factory site, PBM introduced several constructions

and improvements and this was likewise registered with the RD of Rizal and annotated at the back of Respondent’s Certificates of Title (COT)

- 11 Oct 1964 – PBM executed in favor of PNB a Deed of Assignment, conveying and transferring all its rights and interests under the Contract which it executed with Respondents

o The assignment was for and in consideration of the loans granted by PNB to PBM- 6 Nov 1963 – PBM executed in favor of PNB the real estate mortgage for a loan of P100k- 23 Dec 1963 – PBM executed in favor of PNB an addendum to real estate mortgage for another loan of P1.59M covering all the

improvements constructed by PBM on the leased premises- PBM then filed a Petition for Registration of Improvements in the titles of real property owned by Respondents

o 7 Oct 1981 – Respondents filed a Motion seeking to cancel the annotations on Respondent’s COTs pertaining to the assignment by PBM to PNB of the former’s leasehold rights, inclusion of improvements and the real estate mortgages made by PBM in favor of PNB

Ground: The Contract entered into between PBM and Respondent-Movants had already expired by the failure of PBM and/or its assignee to exercise the option to renew the second 20-year lease and also by the failure of PBM to extend its corporate existence

o The Motion also states that since PBM failed to remove its improvements on the leased premises before the said expiration, such improvements shall accrue to Respondent

- 22 April 1982 – The CFI of Rizal directed the cancellation of the inscriptions on Respondent’s COTs- PNB filed a MR- 28 June 1982 – Respondent court denied the motion- 25 Aug 1982 – Respondents filed a Motion for Entry of Final Judgment and the issuance of a writ of execution- 14 Sept 1982 – Court granted the above Motion- PNB filed an Omnibus Motion to set aside the entry of judgment

o Ground: It has no prior notice or knowledge of the order dated 28 June 1982 and that while there was a certification from the Bureau of Posts that 3 registry notices were sent to Petitioner’s counsel, there was no allegation or certification that said notices were actually received by the addressee

- 12 Jan 1983 – Respondent Court denied the Omnibus Motion- Hence this petition

Issue:

Civil Procedure

- W/N service by registered mail was validly effected upon Petitioner

Held:

- Yes

Ratio:

- Rule 13, Sec. 8 of the ROC: Service by registered mail is complete upon actual receipt by the addressee; but if he fails to claim his mail from the post office within 5 days from the date of first notice of the postmaster, service shall take effect at the expiration of such time

o The fair and just application of that exception depends upon the conclusive proof that the first notice was sent by the postmaster

The best evidence of that fact would be the certification from the postmaster- In the instant case, the Respondent Court found that the postmaster’s certification stated that the 3 notices of registered mail were

sent to Petitioner’s counsel at Escolta, Manila. Hence, as between the denial of the Petitioner’s counsel that he received the notice and the postmaster’s certification, the latter should prevail

- The postmaster has the official duty to send notices of registered mail and the presumption is that official duty was regularly performed

- Petitions is DISMISSED

G.R. No. L-28296 November 24, 1972Hernandez vs. Navarro

Petition for mandamus to compel respondent judge to give due course to the appeal of the petitioners

on April 24, 1967, respondent Judge Navarro Pasig CFI issued an order admitting to probate the will of the deceased Maximo C. Hernandez, Sr., father of petitioners

on May 3, 1967, notice thereof was served on petitioner

on May 17, 1967, petitioners filed a motion to set aside said order

on June 29, 1967, respondent judge denied said motion pertinently holding that the motion to set aside order of probate filed by petitioner did not amount to a Motion for New Trial under the Rules of Court

Notice of this denial order was served on petitioner' counsel by registered mail According to the certification: the registered mail containing said order and "addressed to Atty. Andres R. Narvasa at 232

Madrigal Building, Escolta, Manila was delivered on July 24, 1967 to Cometa Villaflor for the addressee upon presentation of the third notice issued on July 19, 1967" and that "the first notice was issued on July 10, 1967."

on August 9, 1967, Petitioners' notice of appeal, appeal bond and record on appeal were filed and they filed a "Motion to Amend Record on Appeal" on August 18, 1967

respondent judge refused to act upon this because, according to him, his order of probate had already become final he held that from May 3 to May 17, petitioners consumed 14 days, and if the resumption of their period to appeal is to be

computed from July 24, 1967, when their counsel actually received delivery of the order of denial of June 29, 1967, August 9, 1967 would appear to be the thirtieth day of said period, there being 16 days from July 24 to August 9, 1967

respondents on the other hand contended that petitioners filed mere scraps of paper entitled notice of appeal, record on appeal and appeal bond and that the purported notice of appeal, record on appeal and appeal bond were filed much beyond the period within which to perfect an appeal

they argue that: (1) petitioners' motion of May 17, 1967 to set aside the order of probate is pro-forma, and did not,

therefore, suspend the period for appeal(2) assuming the contrary, the period for appeal of petitioners, after the order of denial of June 29, 1967,

should be considered as having been resumed on July 10, 1967, when the first notice, as aforestated, was "issued" by the Manila Post Office and not from July 24, 1967 when petitioners actually received delivery of said order

ISSUE: whether or not petitioners took their appeal on time by filing their notice of appeal, appeal bond and record on appeal on August 9, 1967

Civil Procedure

HELD: Yes

Section 8 of Rule 13 Completeness of service. — Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of five (5) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee; but if he fails to claim his mail from the post office within five (5) days from the date of first notice of the postmaster, service shall take effect at the expiration of such time.

the period for appeal of petitioners should be deemed to have resumed upon the expiration of five days from July 10, 1967, the date the first notice was "issued", as certified by the post office, and not from July 24, 1967, when the registered mail containing the denial order was actually received by petitioners' counsel

respondents do not point to any evidence proving the date when the first notice from the Manila Post Office was actually delivered to the address of petitioners' counsel. All that appears in the record before Us is that the said notice was issued by the Post Office on July 10, 1967

proof should always be available to the post office not only of whether or not the notices of registered mail have been reported delivered by the letter carrier but also of how or to whom and when such delivery has been made

when the post office makes a certification regarding delivery of registered mail, such certification should include the data not only as to whether or not the corresponding notices were issued or sent but also as to how, when and to whom the delivery thereof was made.

the certification in the case at bar that the first and second notices addressed to Atty. Narvasa had been "issued" can hardly suffice to requirements of equity and justice. It was incumbent upon the post office to further certify that said notices were reportedly received

When there are several related acts supposed to be performed by a public officer or employee in regard to a particular matter, the presumption of regularity in the performance of official functions would not arise and be considered as comprehending all the required acts, if the certification issued by the proper office refers only to some of such acts, particularly in instances wherein proof of whether or not all of them have been performed is available under the law or office regulations to the officer making the certification

the omission of some of the acts in the certification may justify the inference that from the proof available to the officer there is no showing that they have also been performed

where the certification is worded in general terms that reasonably comprehend performance of all the related acts, the presumption of irregularity holds as to all of them

QUELNAN vs. VHF

Under consideration is' this' petition for review on certiorari to nullify and set aside the decision dated September 17, 1997 of the Court of Appeals (CA) in CA-G.R. No. SP-41942, and its resolution dated April 27, 1999, denying petitioner's motion for reconsideration.

FACTS:

Respondent, VHF Phil. Inc. filed an ejectment suit against petitioner, Andy Quelnan, involving a condominium unit at the Legaspi Towers which respondent claimed to have been leased by petitioner.

MTC of Manila found that 'summons together with a copy of the complaint was served [on petitioner] thru his wife on August 25, 1992 by substituted service and that petitioner 'failed to file his answer within the reglementary period'.

November 23, 1992 it rendered judgment in favor of respondent, ordering Quelnan to vacate the premises of the unit and pay for back rentals, etc.

Copy of the aforementioned decision was served on petitioner by registered mail but the same was returned unclaimed on account of petitioner's failure to claim the same despite the postmaster's three (3) successive notices on November 25, 1992, December 7 and 11 of year 1992.

No appeal having been taken by the petitioner, the MeTC decision became final and executory. May 18, 1993 – a writ of execution, a notice of levy and a notice to vacate were served on petitioner's wife who acknowledged

receipt thereof. May 24, 1993 – petitioner Quelnan filed with the Manila RTC a Petition for Relief from Judgment With Prayer for Preliminary

Injunction and/or temporary restraining order, alleging that:o He was never served with summons' and was' completely unaware of the proceedings in the ejectment suit, o He learned of the judgment rendered thereon only on May 18, 1993 when a notice of levy on execution came to his

knowledge. o He thus prayed the RTC to annul and set aside the MeTC decision and the writs issued in connection therewith.

June 3, 1996 – the RTC granted petitioner's petition for relief and set aside the MeTC decision. The RTC explained that petitioner had been unduly deprived of a hearing and had been prevented from taking an appeal for the reason that petitioner's wife, in a fit of anger, tore the summons and complaint in the ejectment suit in the heat of a marital squabble. To the RTC, this constituted excusable negligence as would justify the filing of the petition for relief from judgment.

Respondent sought reconsideration of the RTC decision but its' motion was denied by said court in its order of July 5, 1996. Respondent directly went to this Court on a petition for review, which petition was remanded by this Court to the Court of Appeals

(CA), whereat the same was docketed as CA-G.R. SP No. 41942.

Civil Procedure

September 17, 1997 – CA reversed and set aside the decision of RTC under Section 3, Rule 38 of the Rules of Court, and reinstated that of the MeTC.

Petitioner filed MR but CA denied in April 27, 1999.

ISSUE/S:

(1) If a party fails to claim his copy of the adverse decision which was sent through registered mail, when is he deemed to have knowledge of said decision?

(2) Will the presumption of completeness of service of a registered mail matter under Rule 13, Section 10 of the 1997 Rules of Civil Procedure apply in relation to the 60-day period for filing a petition for relief from judgment under Rule 38, Section 3 of the Rules?

HELD:

Petition is denied and the CA decision is affirmed.

RATIO:1. Petitioner: He contends that the 60-day period for filing a petition for relief from judgment must be reckoned from the time a party acquired knowledge of the judgment. Hence, prescinding from his premise that he became aware of the MeTC decision only on May 18, 1993 when a notice to pay and vacate was served on him by the sheriff, petitioner submits that his petition for relief from judgment was timely filed on May 24, 1993.SC: Section 3 of Rule 38 reads: Time for filing petition; contents and verification. ' A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken; and must be accompanied with affidavits, showing the fraud, accident, mistake or excusable negligence relied upon and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be.

A petition for relief from judgment must be filed within: (a) 60 days from knowledge of judgment, order or other proceedings to be set aside; and (b) six (6) months from entry of such judgment, order or other proceeding.

o These two periods must concur. o Both periods are also not extendible and never interrupted.o Strict compliance with these periods stems from the equitable character and nature of the petition for relief.

Relief is allowed only in exceptional cases as when there is no other available or adequate remedy. A petition for relief is actually the 'last chance given by law to litigants to question a final judgment or order. And failure to avail of

such last chance within the grace period fixed by the Rules is fatal.

2. The records clearly reveal that a copy of the MeTC decision was sent to petitioner through registered mail at his given address on November 25, 1992.

It should be noted that petitioner was not represented by counsel during the proceedings before the MeTC. The first notice to him by the postmaster to check his mail was on November 25, 1992. Subsequent notices were sent by the postmaster on December 7, 1992 and December 11, 1992. A certification that the registered mail was unclaimed by the petitioner and thus returned to the sender after three successive

notices was issued by the postmaster. Service of said MeTC decision became effective five (5) days after November 25, 1992, or on November 30, 1992 , conformably with

Rule 13, Section 10 of the 1997 Rules of Civil Procedure, which reads: Completeness of Service. − Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier. (Emphasis supplied)

Under the Rules, service by registered mail is complete upon actual receipt by the addressee. However, if the addressee fails to claim his mail from the post office within five (5) days from the date of the first notice, service

becomes effective upon the expiration of five (5) days therefrom. There arises a presumption that the service was complete at the end of the said five-day period. This means that the period to appeal or to file the necessary pleading begins to run after five days from the first notice given by the

postmaster. This is because a party is deemed to have received and to have been notified of the judgment at that point.

‘SOLAR TEAM ENTERTAINMENT vs. RICAFORTE (1998)

FACTS:

- 1997, SOLAR filed before RTC Parañaque a complaint for recovery of possession and damages, with prayer for a writ of replevin (to recover movable property)

- Summonses and copies of the complaint were given to the private respondents, they asked for an extension of time to plead, it was granted.

Civil Procedure

o The private respondents (defendants in the lower court) filed their Answer with counterclaims

A copy thereof was furnished to the counsel for SOLAR via registered mail

The pleading did not contain WHY the service was not made personally, as required under Sec 11, R 13.

- SOLAR filed a motion to expunge the Answer with counterclaims and to hold private respondents in default, since they failed to comply with Sec 11, R 13

o [A]bsolutely no valid reason why defendant[s] should not have personally served plaintiffs ... counsel with [a] copy of their answer [as] (t)he office of defendants (sic) counsel, Atty. Froilan Cabaltera, is just a stone [sic] throw away from the office of [petitioners] counsel, with an estimate (sic) distance of about 200 meters more or less.

o Petitioner further alleged that the post office was about ten (10) times farther from the office of Atty. Cabaltera

- private respondents filed their opposition to the above mentioned motion

o alleging that petitioners rigid and inflexible reliance on the provisions of Section 11, Rule 13 ... is an adventitious resort to technicality and is contrary to Section 6 of Rule 3 ... which admonishes that said Rules shall be liberally construed in order to promote their objective in securing a just, speedy and inexpensive disposition of [e]very action and proceeding; and that Section 11, Rule 13 notwithstanding, private respondents religiously complied with [Section 5 of Rule 13] by personally present[ing] to the clerk of court their said Answer ... furnishing a copythereof to the counsel for [petitioner] by way of registered mail.

- On 8 September 1997, public respondent Judge Bautista-Ricafort issued an order stating that under Section 11 of Rule 13 it is within the discretion of the [trial court] whether to consider the pleading as filed or not, and denying, for lack of merit, petitioners motion to expunge the Answer (with Counterclaims) and to declare private respondents in default. (Im sorry? Naguluhan ako, the petition was denied? But she held the private respondents in default? –Kara)

- SOLAR MR, but the Judge denied to motion

o Section 6 [of] Rule 1 of the 1997 Rules of Civil Procedure ordains that the Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding.

o Liberal construction of the rules and the pleading is the controlling principle to effect substantial justice

- SOLAR thus filed the instant special civil action of certiorari

o contending that public respondent Judge Bautista-Ricafort committed grave abuse of discretion amounting to lack or excess of jurisdiction when she admitted private respondents' "Answer (with Counterclaims)" notwithstanding private respondents' clear, admitted and inexcusable violation of Section 11, Rule 13 of the 1997 Rules of Civil Procedure, in that:

(a) the "Answer (with Counterclaims)" was not served personally upon petitioners counsel despite the undisputed fact that the offices of private respondents counsel and that of petitioners counsel are only about 200 meters away from each other; and

(b) the Answer did not contain any explanation as to why the answer was not served personally.

ISSUE: Whether or not respondent Judge GADLEJ in denying Solar’s motion to expunge private respondents answer with counterclaims on the ground that said pleading was not served personally (and there was not written explanation for thus)?

HELD: NO.

- It is well settled that litigations should, as much as possible be decided on their merits and not on technicalities.- private respondents aver that public respondent Judge Bautista-Ricafort correctly admitted private respondents Answer (with

Counterclaims) in light of Section 6, Rule 1 of the 1997 Rules of Civil Procedure; that Section 11 of Rule 13 begins with the phrase whenever practicable, thereby suggesting that service by mail may still be effected depending on the relative priority of the pleading sought to be filed; and when service is not done personally, it is more prudent and judicious for the courts to require a written explanation rather than to expunge the pleading outright or consider the same as not being filed.

- Section 5, Rule 13 of the 1997 Rules of Civil Procedure prescribes two modes of service of pleadings, motions, notices, orders, judgments and other papers, namely:

Civil Procedure

o (1) personal service;

is governed by Section 6

o (2) service by mail.

Section 7

o If service cannot be done either personally or by mail, substituted service may be resorted to under Section 8 thereof.

- Section 11 of Rule 13 The party concerned must provide a written explanation as to why the service or filing was not done personally.

o SEC. 11. Priorities in modes of service and filing. -- Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed

Section 11 refers to both service of pleadings and other papers on the adverse party or his counsel as provided for in Sections 6, 7 and 8; and to the filing of pleadings and other papers in court.

- Personal service and filing are preferred for obvious reasons.

o Plainly, such should expedite action or resolution on a pleading, motion or other paper;

o Minimize, if not eliminate, delays likely to be incurred if service or filing is done by mail, considering the inefficiency of the postal service.

o personal service will do away with the practice of some lawyers who, wanting to appear clever, resort to the following less than ethical practices:

(1) serving or filing pleadings by mail to catch opposing counsel off-guard, thus leaving the latter with little or no time to prepare, for instance, responsive pleadings or an opposition;

(2) upon receiving notice from the post office that the registered parcel containing the pleading of or other paper from the adverse party may be claimed, unduly procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby causing undue delay in the disposition of such pleading or other papers.

- Section 11 of Rule 13 then gives the court the discretion to consider a pleading or paper as not filed if the other modes of service or filing were resorted to and no written explanation was made as to why personal service was not done in the first place.

- We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil Procedure, personal service and filing is the general rule , and resort to other modes of service and filing, the exception.

o Whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal service or filing is mandatory.

SO, when it isn’t practicable, they may resort to other modes

But it must include a written explanation as to why personal service or filing was not practicable!

- Here, the proximity between the offices of opposing counsel was established; moreover, that the office of private respondents counsel was ten times farther from the post office than the distance separating the offices of opposing counsel.

o but exceptions may nonetheless apply

- private respondents counsel violated Section 11 of Rule 13 and the motion to expunge was prima facie meritorious.

o However, the grant or denial of said motion nevertheless remained within the sound exercise of the trial courts discretion.

o Thus, as guided by Section 6, Rule 1 of the 1997 Rules of Civil Procedure, which ordains that the Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action or proceeding, as well as by the dictum laid down in Alonso v. Villamor, 16 Phil. 315 [1910]

Civil Procedure

o The trial court opted to exercise its discretion in favor of admitting the Answer (with Counterclaims), instead of expunging it from the record.

MARTIN PEÑOSO and ELIZABETH PEÑOSO, Petitioners, vs. MACROSMAN DONA, Respondent.

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Resolution1 dated March 22, 2002 promulgated by the Court of Appeals (CA) in CA-G.R. SP No. 69472, which dismissed the appeal before it because Martin Peñoso and his mother Elizabeth Peñoso (petitioners) failed to submit a written explanation why service of pleading was not done personally as required under Section 11 of Rule 13 of the Rules of Court and to pay the requisite docket fees; and, the CA Resolution2 dated June 3, 2002 which denied petitioners’ Motion for Reconsideration.

Facts: Macrosman Dona (Respondent) filed a complaint against petitioners for Abatement of Nuisance with the MTC, San Jose, Occidental

Mindoro which was tried and decided under the Rule on Summary Procedure. Respondent claims that in front of their house is a barangay road where the petitioners constructed their house against the

objection of the respondent. They claim that the house is a public nuisance. The petitioners defend that the house was constructed by the late Praxido Penoso, way ahead before the respondent arrived and that they have no action to file the case.

MTC ruled in favor of petitioners on the ground that respondent has no cause of action against petitioners and that the house may only be abated by the Municipal Mayor unless it is specially injurious to a private person.

Respondent appealed to the RTC and the decision of the MTC was reversed. The RTC declared the house as a nuisance. The RTC denied the petitioners’ MR. Petitioners filed a Petition for Review with the CA, which was dismissed OUTRIGHT for failure of the petitioners to include in their

petition the required explanation on why personal service upon the respondent was not resorted to pursuant to Sec. 11, Rule 13 of the 1997 Rules of Civil Procedure.

Petitioners filed a MR attaching a Certification from the Postmaster that the pleading in question had been actually received by the respondent as well as a letter to the CA Clerk of Court stating that if the docket fee is insufficient, counsel for the petitioners shall remit the balance immediately, if any.

MR was denied stating that petitioners’ subsequent compliance with the Rules does not cleanse the petition of its infirmity. Hence the instant Petition.

Issue:Whether or not the CA erred in dismissing the petition for failure of the petitioner to include in their petition the required explanation on why personal service upon the respondent was not resorted to pursuant to Sec. 11, Rule 13, of the 1997 Rules of Civil Procedure and on the ground that docketing fees was short?

Held:The CA erred.

Ratio:Section 11, Rule 13 of the Rules of Court provides:Sec. 11. Priorities in modes of service and filing. – Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed.Jurisprudence holds that the rule that a pleading must be accompanied by a written explanation why the service or filing was not done personally is mandatory.8 However, in Ello v. Court of Appeals,9 the Court defined the circumstances when the court may exercise its discretionary power under Section 11 of Rule 13, viz:However, such discretionary power of the court must be exercised properly and reasonably, taking into account the following factors: (1) "the practicability of personal service;" (2) "the importance of the subject matter of the case or the issues involved therein;" and (3) "the prima facie merit of the pleading sought to be expunged for violation of Section 11. x x x"10

Considering the prima facie merit of the pleading involving the issues whether the petitioners’ house is a public nuisance; whether the subject house is constructed on an abandoned road; and whether the alleged nuisance is specially injurious to respondent; and, considering further the fact that the MTC and the RTC decisions are conflicting, the CA had valid grounds to refrain from dismissing the appeal solely on technical grounds.11 Furthermore, considering the peculiar circumstances of the case, the shortage of the payment of the docketing fee cannot be used as a ground for dismissing petitioners’ appeal before the CA. It is undisputed that they and their counsel are living in a remote town and are not aware of the exact amount of the lawful fees for petitions for review. Hence, it is understandable why they place sheer reliance on the Rules of Court, notably, Section 1 of Rule 42, which only specifies the amount of P500.00 for the appeal cost in question. Petitioners sent P500.00 with a request from the Clerk of Court for notification of any insufficiency which will be sent immediately if there is any. The deficiency in payment was not at all intentional. The petitioners acted in good faith and substantially complied with the Rules. WHEREFORE, the instant petition is GRANTED and the assailed Resolutions of the Court of Appeals are REVERSED and SET ASIDE. The Court of Appeals is directed to REINSTATE the petition for review, docketed as CA-G.R. SP No. 69472, for further proceedings.Rule 13: Filing a pleading by fax is not sanctioned by the COMELEC Rules of Procedure, much less by the Rules of Court.

Civil Procedure

[G.R. No. 124893. April 18, 1997]LYNETTE G. GARVIDA, Petitioner, vs. FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON ELECTIONS, ELECTION OFFICER DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, Respondents.

Facts: Petitioner applied for registration as member of the Katipunan ng Kabataan of Barangay San Lorenzo. The Board of Election Tellers (BET),

however, denied her application because petitioner exceeded the age limit for membership as laid down in Section 3(b) of COMELEC Resolution No. 2824.

Petitioner then filed a “Petition for Inclusion as Registered Kabataang Member and Voter” with the MTC, which found petitioner qualified and ordered her registration as member.

Petitioner filed her certificate of candidacy for the position of SK Chairman, which respondent Election Officer Rios disapproved again due to her age. Petitioner appealed this to the COMELEC Regional Director who set aside the order of respondent and allowed petitioner to run.

Without the knowledge of COMELEC officials, private respondent Sales, a rival candidate for SK Chairman, filed with the COMELEC en banc a”Petition of Denial and/or Cancellation of Certificate of Candidacy” against petitioner. The petition was sent by fax and registered mail.

The COMELEC issued an order directing the BET and Board of Canvassers to suspend the proclamation of petitioner in the event she won the election.

Petitioner won, hence, the BET did not proclaim her in accordance with the COMELEC resolution. Petitioner filed this petition for certiorari. Subsequent to the filing of instant petition, the BET proclaimed petitioner as SK Chairman. Petitioner then ran in the Pambayang Pederasyon ng mga SK for the municipality of Bangui, Ilocos Norte, in which she won as auditor.

Issue:W/N COMELEC had jurisdiction to entertain petition

Held:No. Petition is dismissed and petitioner is declared ineligible.

Ratio: Under the Omnibus Election Code, jurisdiction over a petition to cancel a certificate of candidacy lies with the COMELEC sitting in Division,

not en banc. It is therefore the COMELEC sitting in Divisions that can hear and decide election cases. In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt of the petition. It therefore acted

without jurisdiction or with grave abuse of discretion when it entertained the petition and issued the order suspending the proclamation of petitioner.

The COMELEC en banc also erred when it failed to note that the petition itself did not comply with the formal requirements of pleadings under the COMELEC Rules of Procedure.

Every pleading before the COMELEC must be filed in at least 10 legible copies and must be filed directly with the proper Clerk of Court of the COMELEC personally, or by registered mail.

In the instant case, only 2 copies of the petition were filed with the COMELEC. Also, the COMELEC en banc issued its Resolution on the basis of the petition transmitted by fax, not by registered mail.

Filing a pleading by fax is not sanctioned by the COMELEC Rules of Procedure, much less by the Rules of Court. A fax is not a genuine and authentic pleading. Without the original, there is no way of determining on its face whether the fax pleading is genuine and authentic and was originally signed by the party and his counsel.

G.R. No. 175334March 26, 2008

Sps. Belen v Chavez

Petitioner: SPS. DOMINGO AND DOMINGA BELEN Respondents: HON. PABLO R. CHAVEZ, SPS. SILVESTRE AND PATRICIA PACLEB

Facts: A petition for review on certiorari which sought to nullify the RTC decision. Sps. Pacleb filed an action for enforcement of foreign judgment against Sps. Belen before the RTC of Batangas. The complaint alleged that Pacleb secured a judgment by default from California Superior Court ordering the petitioners to pay

$56,204.69 as loan repayment and share in the profit. The summons was served on petitioners' address in San Gregorio, Alaminos, Laguna, as was alleged in the complaint, and received

by a certain Marcelo M. Belen. Atty. Alcantara entered his appearance on behalf of the petitioners and filed an answer to the complaint and alleged that the

petitioners were actually resident of California, USA contrary to respondents averments. He also claimed in his answer that petitioners’ liability was extinguished by the release of an abstract judgment in the same collection case.

Civil Procedure

For petitioners’ failure to attend the pre-trial conference, the RTC ordered an ex-parte presentation of evidence in favor of respondents. However, before the scheduled presentation of evidence, Atty. Alcantara filed a motion to dismiss citing the judgment of dismissal issued by the Court of California.

The RTC suspended the said presentation pending the submission of the order of the Court of California. But Atty. Alcantara failed to present the said order of dismissal. Subsequently, the RTC denied the Motion to Dismiss.

The respondents then filed an amended complaint and explained that they were forced to withdraw the case in California for high cost of litigation. Petitioners claimed in their answer the defenses of lack of cause of action, res judicata, lack of jurisdiction over the subject matter and over the persons of the defendants.

Petitioners failed to appear on the pre-trial conference, and were declared in default. Atty. Alcantara passed away without the RTC being informed at such fact until much later.

And the copy of the order intended for Atty. Alcantara was returned with notation “Addressee Deceased”. And on Aug. 14, 2003, it was then sent to the purported address of the petitioners and was received by a certain Leopoldo Avecilla.

Upon the motion of the respondents, the RTC issued a writ of execution. On 16 December 2003, Atty. Carmelo B. Culvera entered his appearance as counsel for petitioners. On 22 December 2003, Atty.

Culvera filed a Motion to Quash Writ of Execution (With Prayer to Defer Further Actions). On 6 January 2004, he filed a Notice of Appeal from the RTC Decision averring that he received a copy thereof only on 29 December 2003.

The RTC denied the motion to quash as well as the MR. On appeal under Rule 65, the CA dismissed the petition for certiorari and the subsequent MR.

Issue:W/N there was a valid service of the copy of the RTC decision on the petitioners. NO.

Held:Petition was GRANTED. The notice of appeal was GIVEN DUE COURSE.

Rationale: As a general rule, when a party is represented by counsel of record, service of orders and notices must be made upon said

attorney and notice to the client and to any other lawyer, not the counsel of record, is not notice in law . The exception to this rule is when service upon the party himself has been ordered by the court. In cases where service was made on the counsel of record at his given address, notice sent to petitioner itself is not even necessary.

In this case, the Court ruled that upon the death of Atty. Alcantara, the lawyer-client relationship between him and petitioners has ceased, thus, the service of the RTC decision on him is ineffective and did not bind petitioners.

The subsequent service on petitioners' purported "last known address" by registered mail is also defective because it does not comply with the requisites under Section 7 of Rule 13 on service by registered mail . It contemplates service at the present address of the party and not at any other address of the party. Service at the party's former address or his last known address or any address other than his present address does not qualify as substantial compliance with the requirements of Section 7, Rule 13 . Therefore, service by registered mail presupposes that the present address of the party is known and if the person who receives the same is not the addressee, he must be duly authorized by the former to receive the paper on behalf of the party.

In this case, since the filing of the complaint, petitioners could not be physically found in the country because they had already become permanent residents of California, U.S.A. It has been established during the trial that petitioners are former residents of Alaminos, Laguna, contrary to the averment in the complaint that they reside and may be served with court processes thereat. The service of the RTC decision at their former address in Alaminos, Laguna is defective and does not bind petitioners.