rule 13 (outline, case digest & fulltext)

Outline: Rule 13 Filing and Service of Pleadings CIVIL PROCEDURE

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Lesson for September 2, 2014

Tuesday

Filing and Service of Pleadings

1. Coverage - Sec. 1, Rule 13

2. Payment of docket fees

- Manchester Development Corp. v. CA, G.R. No. 75919, May 7, 1987

- Sun Insurance Office Ltd. v. Hon. Asuncion, G.R. No. 79937-38, February 13, 1989

- Ballatan v. CA, G.R. No. 125683, March 2, 1999

- Rivera v. Del Rosario, G.R. No. 144934, January 15, 2004

- Enriquez v. Enriquez, G.R. No. 139303, August 25, 2005

3. Filing versus service of pleadings - Sec. 2, Rule 13

- Elli v. Ditan, G.R. No. L-17444, June 30, 1962

- PHHC v. Tiongco, G.R. No. L-18891, November 29, 1964

4. Periods of filing of pleadings - Rule 11

5. How to compute time - Rule 22

6. Manner of filing - Secs. 3 & 4, Rule 13

- Benguet Electric Cooperative, Inc. v. NLRC, G.R. No. 89070, May 18, 1992

7. Modes of service - Sec. 5, Rule 13

i. Personal service - Sec. 6, Rule 13

ii. Service by mail - Sec. 7, Rule 13

iii. Substituted service - Sec. 8, Rule 13

- Cubar v. Mendoza, G.R. No. L-55035, February 23, 1983

iv. Service of judgments, final orders or resolutions v. Priorities in modes of service and filing - Sec. 9, Rule 13

- Feraren v. Santos, G.R. No. L-41323, April 27, 1982

- Magno v. CA, G.R. No. L-58781, July 31, 1987

vi. When service is deemed complete - Sec. 10, Rule 13

- Isaac v. Mendoza, G.R. No. L-2820, June 21, 1951

vii. Proof of filing and service - Secs. 12 & 13, Rule 13

- Zulueta v. Asia Brewery, Inc., G.R. No. 138137, March 8, 2001

viii. Priorities in modes of service and filing - Sec. 11, Rule 13

8. Lis pendens - Sec. 14, Rule 13

- Tan v. Lantin, G.R. No. L-28526, July 7, 1986

Case Digest: Rule 13 Filing and Service of Pleadings CIVIL PROCEDURE

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Payment of docket fees

MANCHESTER DEVELOPMENT CORP. vs CA

G.R. No. 75919, May 7, 1987

Facts:

Acting on the motion for reconsideration of the

resolution of the Second Division and another motion to

refer the case to and to be heard in oral argument by the

Court En Banc filed by petitioners, the motion to refer the

case to the Court en banc is granted but the motion to set

the case for oral argument is denied.

Petitioners in support of their contention that

the filing fee must be assessed on the basis of the

amended complaint cite the case of Magaspi v. Ramolete.

They contend that the Court of Appeals erred in ruling

that the filing fee should be levied by considering the

amount of damages sought in the original complaint.

The environmental facts of said case differ from

the present in that

1. The Magaspi case was an action for recovery

of ownership and possession of a parcel of land with

damages, while the present case is an action for torts and

damages and specific performance with prayer for

temporary restraining order, etc.

2. xxx (Present case) The amount of damages

sought is not specified in the prayer although the body of

the complaint alleges the total amount of over P78

Million as damages suffered by plaintiff.

3. Upon the filing of the complaint there was an

honest difference of opinion as to the nature of the

action in the Magaspi case. The complaint was considered

as primarily an action for recovery of ownership and

possession of a parcel of land. The damages stated were

treated as merely ancillary to the main cause of action.

Thus, the docket fee of only P60.00 and P10.00 for the

sheriffs fee were paid.

In the present, no honest difference. It is both an

action for damages and specific performance. The docket

fee paid upon filing of complaint in the amount only of

P410.00 by considering the action to be merely one for

specific performance where the amount involved is not

capable of pecuniary estimation is obviously erroneous.

Although the total amount of damages sought is not

stated in the prayer of the complaint yet it is spelled out

in the body of the complaint totalling in the amount of

P78,750,000.00 which should be the basis of assessment

of the filing fee.

4. Plaintiff through another counsel with leave of

court filed an amended complaint for the inclusion of

Philips Wire and Cable Corporation as co-plaintiff and by

eliminating any mention of the amount of damages in the

body of the complaint. The prayer in the original

complaint was maintained. After the SC issued an order

ordering the re-assessment of the docket fee in the

present case and other cases that were investigated, the

trial court directed plaintiffs to rectify the amended

complaint by stating the amounts which they are asking

for. It was only then that plaintiffs specified the amount

of damages in the body of the complaint in the reduced

amount of P10,000,000.00. Still no amount of damages

was specified in the prayer. Said amended complaint was

admitted.

On the other hand, in the Magaspi case, the trial

court ordered the plaintiffs to pay the amount of

P3,104.00 as filing fee covering the damages alleged in

the original complaint as it did not consider the damages

to be merely ancillary or incidental to the action for

recovery of ownership and possession of real property.

An amended complaint was filed by plaintiff with leave of

court to include the government of the Republic as

defendant and reducing the amount of damages, and

attorneys fees prayed for to P100,000.00. Said amended

complaint was also admitted.

In the Magaspi case, the action was considered

for recovery of ownership and damages, so that the filing

fee for the damages should be the basis of assessment.

Although the payment of the docketing fee of P60.00 was

found to be insufficient, nevertheless, it was held that

since the payment was the result of an "honest difference

of opinion as to the correct amount to be paid as docket

fee" the court "had acquired jurisdiction over the case

and the proceedings thereafter had were proper and

regular." Hence, as the amended complaint superseded

the original complaint, the allegations of damages in the

amended complaint should be the basis of the

computation of the filing fee.

In the present case no such honest difference of

opinion was possible as the allegations of the complaint,

the designation and the prayer show that it is an action

for damages and specific performance. The docketing fee

should be assessed by considering the amount of

damages as alleged in the original complaint.

Issue:

Whether or not the amended complaint should

be admitted. No!

Held:

The rule is well-settled "that a case is deemed

filed only upon payment of the docket fee regardless of

the actual date of filing in court." Thus, in the present

case the trial court did not acquire jurisdiction over the

case by the payment of only P410.00 as docket fee.

Neither can the amendment of the complaint thereby

vest jurisdiction upon the Court. For all legal purposes

there is no such original complaint that was duly filed


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which could be amended. Consequently, the order

admitting the amended complaint and all subsequent

proceedings and actions taken by the trial court are null

and void.

The CA aptly ruled in the present case that the

basis of assessment of the docket fee should be the

amount of damages sought in the original complaint and

not in the amended complaint.

The Court cannot close this case without making

the observation that it frowns at the practice of counsel

who filed the original complaint in this case of omitting

any specification of the amount of damages in the prayer

although the amount of over P78 million is alleged in the

body of the complaint. This is clearly intended for no

other purpose than to evade the payment of the correct

filing fees if not to mislead the docket clerk in the

assessment of the filing fee. This fraudulent practice was

compounded when, even as the SC had taken cognizance

of the anomaly and ordered an investigation, petitioner

through another counsel filed an amended complaint,

deleting all mention of the amount of damages being

asked for in the body of the complaint. It was only when

in obedience to the SCs order of October 18, 1985, the

trial court directed that the amount of damages be

specified in the amended complaint, that petitioners

counsel wrote the damages sought in the much reduced

amount of P10,000,000.00 in the body of the complaint

but not in the prayer thereof. The design to avoid

payment of the required docket fee is obvious.

To put a stop to this irregularity, henceforth all

complaints, petitions, answers and other similar

pleadings should specify the amount of damages being

prayed for not only in the body of the pleading but also

in the prayer, and said damages shall be considered in

the assessment of the filing fees in any case. Any

pleading that fails to comply with this requirement shall

not be accepted nor admitted, or shall otherwise be

expunged from the record.

The Court acquires jurisdiction over any case

only upon the payment of the prescribed docket fee. An

amendment of the complaint or similar pleading will not

thereby vest jurisdiction in the Court, much less the

payment of the docket fee based on the amounts sought

in the amended pleading. The ruling in the Magaspi case

in so far as it is inconsistent with this pronouncement is

overturned and reversed.

The motion for reconsideration is denied for lack

of merit.


SUN INSURANCE OFFICE LTD. vs HON. ASUNCION

G.R. No. 79937-38, February 13, 1989

Facts:

Petitioner Sun Insurance Office, Ltd. (SIOL) filed a

complaint with the Regional Trial Court for the

consignation of a premium refund on a fire insurance

policy with a prayer for the judicial declaration of its

nullity against private respondent Manuel Uy Po Tiong.

Private respondent was declared in default for failure to

file the required answer within the reglementary period.

On the other hand, private respondent filed a

complaint in the Regional Trial Court for the refund of

premiums and the issuance of a writ of preliminary

attachment initially against petitioner SIOL, and

thereafter including E.B. Philipps and D.J. Warby as

additional defendants. The complaint sought, among

others, the payment of actual, compensatory, moral,

exemplary and liquidated damages, attorneys fees,

expenses of litigation and costs of the suit. Although the

prayer in the complaint did not quantify the amount of

damages sought said amount may be inferred from the

body of the complaint to be about Fifty Million Pesos

(P50,000,000.00).

Only the amount of P210.00 was paid by private

respondent as docket fee which prompted petitioners

counsel to raise his objection. Said objection was

disregarded by respondent Judge Jose P. Castro who was

then presiding over said case.

Upon the order of the Supreme Court, the

records of said case together with twenty-two other

cases assigned to different branches of the Regional Trial

Court which were under investigation for under-

assessment of docket fees were transmitted to the

Supreme Court. The Court thereafter returned the said

records to the trial court with the directive that they be

re-raffled to the other judges. The present civil case was

re-raffled to Branch 104, a sala which was then vacant.

The Court en banc issued a Resolution directing

the judges in said cases to reassess the docket fees and

that in case of deficiency, to order its payment. The

Resolution also requires all clerks of court to issue

certificates of re-assessment of docket fees. All litigants

were likewise required to specify in their pleadings the

amount sought to be recovered in their complaints.

Judge Antonio P. Solano, to whose sala the

present case was temporarily assigned, issued an order to

the Clerk of Court instructing him to issue a certificate of

assessment of the docket fee paid by private respondent

and, in case of deficiency, to include the same in said

certificate.


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A cautionary answer was filed by petitioners. An

amended complaint was filed by private respondent

including the two additional defendants aforestated.

Judge Maximiano C. Asuncion, to whom the

present case was thereafter assigned, after his

assumption into office, issued a Supplemental Order

requiring the parties in the case to comment on the Clerk

of Courts letter-report signifying her difficulty in

complying with the Resolution of the Supreme Court

since the pleadings filed by private respondent did not

indicate the exact amount sought to be recovered.

Private respondent filed a "Compliance" and a "Re-

Amended Complaint" stating therein a claim of "not less

than P10,000,000.00 as actual compensatory damages" in

the prayer. In the body of the said second amended

complaint however, private respondent alleges actual and

compensatory damages and attorneys fees in the total

amount of about P44,601,623.70.

Judge Asuncion issued another Order admitting

the second amended complaint and stating therein that

the same constituted proper compliance with the

Resolution of this Court and that a copy thereof should be

furnished the Clerk of Court for the reassessment of the

docket fees. The reassessment by the Clerk of Court bases

on private respondents claim of "not less than

P10,000,000.00 as actual and compensatory damages"

amounted to P39,786.00 as docket fee. This was

subsequently paid by private Respondent.

Petitioners filed a petition for certiorari with the

CA questioning the said order of Judge Asuncion.

Respondent filed a supplemental complaint

alleging an additional claim of P20,000,000.00 as

damages so the total claim amounts to about

P64,601,623.70. Months after filing the supplemental

complaint, the private respondent paid the additional

docket fee of P80,396.00.

The Court of Appeals rendered a decision

denying the petition insofar as it seeks annulment of the

order, denying petitioners motion to dismiss the

complaint, as amended, and granting the writ of

preliminary attachment, but giving due course to the

portion thereof questioning the reassessment of the

docketing fee, and requiring the Honorable respondent

Court to reassess the docketing fee to be paid by private

respondent on the basis of the amount of

P25,401,707.00."

Issue:

Whether or not a court acquires jurisdiction over

a case when the correct and proper docket fee has not

been paid.

Held:

During the pendency of this petition and in

conformity with the said judgment of respondent court,

private respondent paid the additional docket fee of

P62,432.90 on April 28, 1988.

The main thrust of the petition is that the Court

of Appeals erred in not finding that the lower court did

not acquire jurisdiction over Civil Case No. Q-41177 on

the ground of non-payment of the correct and proper

docket fee. Petitioners allege that while it may be true

that private respondent had paid the amount of

P182,824.90 as docket fee as herein-above related, and

considering that the total amount sought to be recovered

in the amended and supplemental complaint is

P64,601,623.70 the docket fee that should be paid by

private respondent is P257,810.49, more or less. Not

having paid the same, petitioners contend that the

complaint should be dismissed and all incidents arising

therefrom should be annulled. In support of their theory,

petitioner cite the latest ruling of the Court in

Manchester Development Corporation v. CA, 4 as follows:

"The Court acquires jurisdiction over any case only upon

the payment of the prescribed docket fee. An

amendment of the complaint or similar pleading will not

thereby vest jurisdiction in the Court, much less the

payment of the docket fee based on the amounts sought

in the amended pleading. The ruling in the Magaspi Case

in so far it is inconsistent with this pronouncement is

overturned and reversed."

On the other hand, private respondent claims

that the ruling in Manchester cannot apply retroactively

to the present civil case for at the time said civil case was

filed in court there was no such Manchester ruling as yet.

Further, private respondent avers that what is applicable

is the ruling of this Court in Magaspi v. Ramolete, 5

wherein the SC held that the trial court acquired

jurisdiction over the case even if the docket fee paid was

insufficient. The contention that Manchester cannot

apply retroactively to this case is untenable. Statutes

regulating the procedure of the courts will be construed

as applicable to actions pending and undetermined at the

time of their passage. Procedural laws are retrospective

in that sense and to that extent.

The payment of the full amount of the docket

fee is an indispensable step for the perfection of an

appeal.

The docket fee must be paid before a court will

act on a petition or complaint. However, said rule is not

applicable when petitioner seeks the probate of several

wills of the same decedent as he is not required to file a

separate action for each will but instead he may have

other wills probated in the same special proceeding then

pending before the same court.


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The case is deemed filed only upon payment of

the docket fee regardless of the actual date of filing in

court.

The present case is among the several cases of

under-assessment of docket fee which were investigated

by this Court together with Manchester. The facts and

circumstances of this case are similar to Manchester. In

the body of the original complaint, the total amount of

damages sought amounted to about P50 Million. In the

prayer, the amount of damages asked for was not stated.

The action was for the refund of the premium and the

issuance of the writ of preliminary attachment with

damages. The amount of only P210.00 was paid for the

docket fee. Private respondent filed an amended

complaint wherein in the prayer it is asked that he be

awarded no less than P10,000,000.00 as actual and

exemplary damages but in the body of the complaint the

amount of his pecuniary claim is approximately

P44,601,623.70. Said amended complaint was admitted

and the private respondent was reassessed the additional

docket fee of P39,786.00 based on his prayer of not less

than P10,000,000.00 in damages, which he paid.

Private respondent filed a supplemental

complaint alleging an additional claim of P20,000,000.00

in damages so that his total claim is approximately

P64,601,620.70. Private respondent paid an additional

docket fee of P80,396.00. After the promulgation of the

decision of the respondent court wherein private

respondent was ordered to be reassessed for additional

docket fee, and during the pendency of this petition, and

after the promulgation of Manchester, private

respondent paid an additional docket fee on P62,132.92.

Although private respondent appears to have paid a total

amount of P182,824.90 for the docket fee considering the

total amount of this claim in the amended and

supplemental complaint amounting to about

P64,601,620.70, petitioner insists that private respondent

must pay a docket fee of P257,810.49.

The principle in Manchester could very well be

applied in the present case. The pattern and the intent to

defraud the government of the docket fee due it is

obvious not only in the filing of the original complaint but

also in the filing of the second amended complaint.

However, in Manchester, petitioner did not pay

any additional docket fee until the case was decided by

SC. Thus, in Manchester, due to the fraud committed on

the government, it is held that the court a quo did not

acquire jurisdiction over the case and that the amended

complaint could not have been admitted inasmuch as the

original complaint was null and void.

In the present case, private respondent

demonstrated his willingness to abide by the rules by

paying the additional docket fees as required. The

promulgation of the decision in Manchester must have

had that sobering influence on private respondent who

thus paid the additional docket fee as ordered by the

respondent court. It triggered his change for stance by

manifesting his willingness to pay such additional docket

fee as may be ordered.

Nevertheless, petitioners contend that the

docket fee that was paid is still insufficient considering

the total amount of the claim. This is a matter which the

clerk of court of the lower court and/or his duly

authorized docket clerk or clerk in-charge should

determine and, thereafter, it any amount is found due, he

must require the private respondent to pay the same.

Thus, the Court rules as follows:

1. It is not simply the filing of the complaint or

appropriate initiatory pleading, but the

payment of the prescribed docket fee, that

vests a trial court with jurisdiction over the

subject matter or nature of the action.

Where the filing of the initiatory pleading is

not accompanied by payment of the docket

fee, the court may allow payment of the fee

within a reasonable time but in no case

beyond the applicable prescriptive or

reglementary period.

2. The same rule applies to permissive

counterclaims, third-party claims and similar

pleadings, which shall not be considered

filed until and unless the filing fee

prescribed therefor is paid. The court may

also allow payment of said fee within a

reasonable time but also in no case beyond

its applicable prescriptive or reglementary

period.

3. Where the trial court acquires jurisdiction

over a claim by the filing of the appropriate

pleading and payment of the prescribed

filing fee but, subsequently, the judgment

awards a claim not specified in the pleading,

or if specified the same has been left for

determination by the court, the additional

filing fee therefor shall constitute a lien on

the judgment. It shall be the responsibility of

the Clerk of Court or his duly authorized

deputy to enforce said lien and assess and

collect the additional fee.

The petition is DISMISSED. The Clerk of Court of

the court a quo is hereby instructed to reassess and

determine the additional filing fee that should be paid by

private respondent considering the total amount of the

claim sought in the original complaint and the


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supplemental complaint as may be gleaned from the

allegations and the prayer thereof and to require private

respondent to pay the deficiency, if any, without

pronouncement as to costs.


BALLATAN vs CA

G.R. No. 125683, March 2, 1999

Facts:

The instant case arose from a dispute over forty-

two (42) square meters of residential land belonging to

petitioners. The parties herein are owners of adjacent lots

located at Block No. 3, Poinsettia Street, Araneta

University Village, Malabon, Metro Manila. Lot No. 24 is

registered in the name of petitioners Eden Ballatan and

spouses Betty Martinez and Chong Chy Ling. Lots Nos. 25

and 26 are registered in the name of respondent Gonzalo

Go, Sr. On Lot No. 25, respondent Winston Go, son of

Gonzalo Go, Sr., constructed his house. Adjacent to Lot

No. 26 is Lot No. 27 is registered in the name of

respondent Li Ching Yao.

Petitioner Ballatan constructed her house on Lot

No. 24. During the construction, she noticed that the

concrete fence and side pathway of the adjoining house

of respondent Winston Go encroached on the entire

length of the eastern side of her property. Her building

contractor formed her that the area of her lot was

actually less than that described in the title. Forthwith,

Ballatan informed respondent Go of this discrepancy and

his encroachment on her property. Respondent Go,

however, claimed that his house, including its fence and

pathway, were built within the parameters of his father's

lot; and that this lot was surveyed by Engineer Jose

Quedding, the authorized surveyor of the Araneta

Institute of Agriculture (AIA), the owner-developer of the

subdivision project.

Petitioner Ballatan called the attention of the IAI

to the discrepancy of the land area in her title and the

actual land area received from them. The AIA authorized

another survey of the land by Engineer Jose N. Quedding.

Engineer Quedding found that the lot area of

petitioner Ballatan was less by few meters and that of

respondent Li Ching Yao, which was three lots away,

increased by two (2) meters. Engineer Quedding declared

that he made a verification survey of Lots Nos. 25 and 26

of respondents Go in 1983 and allegedly found the

boundaries to have been in their proper position. He,

however, could not explain the reduction in Ballatan's

area since he was not present at the time respondents Go

constructed their boundary walls.

Engineer Quedding made a third relocation

survey upon request of the parties. He found that Lot No.

24 lost approximately 25 square meters on its eastern

boundary that Lot No. 25, although found to have

encroached on Lot No. 24, did not lose nor gain any area;

that Lot No. 26 lost some three (3) square meters which,

however, were gained by Lot No. 27 on its western

boundary. In short, Lots Nos. 25, 26 and 27 moved

westward to the eastern boundary of Lot No. 24.

On the basis of this survey, petitioner Ballatan

made a written demand on respondents Go to remove

and dismantle their improvements on Lot No. 24.

Respondents Go refused. The parties including Li Ching

Yao, however, met several times to reach an agreement

one matter.

Failing to agree amicably, petitioner Ballatan

brought the issue before the barangay. Respondents Go

did not appear. Thus, petitioner Ballatan instituted

against respondents Go a civil case for recovery of

possession before the Regional Trial Court, Malabon. The

Go's filed their "Answer with Third-Party Complaint"

impleading as third-party defendants respondents Li

Ching Yao, the AIA and Engineer Quedding.

The trial court decided in favor of petitioners. It

ordered the Go's to vacate the subject portion of Lot No.

24, demolish their improvements and pay petitioner

Ballatan actual damages, attorney's fees and the costs of

the suit. It dismissed the third-party complaint.

The Court of Appeals modified the decision of

the trial court. It affirmed the dismissal of the third-party

complaint against the AIA but reinstated the complaint

against Li Ching Yao and Jose Quedding. It ordered

respondents Go to pay petitioner Ballatan instead of

demolishing the improvements, and respondent Li Ching

Yao to pay respondents Go, a reasonable amount for that

portion of the lot which they encroached, the value to be

fixed at the time of taking.

Petitioners question the admission by

respondent Court of Appeals of the third-party complaint

by respondents Go against the AIA, Jose Quedding and Li

Ching Yao. Petitioners claim that the third-party

complaint should not have been considered by the Court

of Appeals for lack of jurisdiction due to third-party

plaintiffs' failure to pay the docket and filing fees before

the trial court.

Issue:

Whether or not a third party complaint should

be accompanied by payment of the docket fees.


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Held:

The third-party complaint in the instant case

arose from the complaint of petitioners against

respondents Go. The complaint filed was for accion

publiciana.

When an action is filed in court, the complaint

must be accompanied the payment of the requisite

docket and filing fees. In real actions, the docket and

filing fees are based on the value of the property and

the amount of damages claimed, if any. If the complaint

is filed but the fees are not paid at the time of filing, the

court acquires jurisdiction upon full payment of the fees

within a reasonable time as the court may grant, barring

prescription. Where the fees prescribed for the real

action have been paid but the fees of certain related

damages are not, the court, although having jurisdiction

over the real action, may not have acquired jurisdiction

over the accompanying claim for damages. Accordingly,

the court may expunge those claims for damages, or

allow, on motion, a reasonable time for amendment of

the complaint so as to allege the precise amount of

damages and accept payment of the requisite legal fee. If

there are unspecified claims, the determination of which

may arise after the filing of the complaint or similar

pleading, the additional filing fee thereon shall constitute

a lien on the judgment award. The same rule also applies

to third-party claims and other similar pleadings.

In the case at bar, the third-party complaint filed

by respondents Go was incorporated in their answer to

the complaint. The third-party complaint sought the same

remedy as the principal complaint but added a prayer for

attorney's fees and costs without specifying their

amounts.

The Court of Appeal did not err in awarding

damages despite the Go's failure to specify the amount

prayed for and pay the corresponding additional filing

fees thereon. The claim for attorney's fees refers to

damages arising after the filing of the complaint against

the Go's. The additional filing fee on this claim is deemed

to constitute a lien on the judgment award.


RIVERA vs DEL ROSARIO

G.R. No. 144934, January 15, 2004

Facts:

Respondents Fidela (now deceased), Oscar,

Rosita, Violeta, Enrique Jr., Carlos, Juanito and Eloisa, all

surnamed Del Rosario, were the registered owners of Lot

No. 1083-C, a parcel of land situated at Lolomboy,

Bulacan.

Oscar, Rosita, Violeta, Enrique Jr., Juanito, and

Eloisa, executed a Special Power of Attorney in favor of

their mother and co-respondent, Fidela, authorizing her

to sell, lease, mortgage, transfer and convey their rights

over Lot No. 1083-C. Subsequently, Fidela borrowed

P250,000 from Mariano Rivera in the early part of 1987.

To secure the loan, she and Mariano Rivera agreed to

execute a deed of real estate mortgage and an agreement

to sell the land.

The Kasunduan (Agreement to Sell) provided

that the children of Mariano Rivera, herein petitioners

Adelfa, Cynthia and Jose, would purchase Lot No. 1083-C

for a consideration of P2,141,622.50. This purchase price

was to be paid in three installments: P250,000 upon the

signing of the Kasunduan, P750,000, and P1,141,622.50.

It also provided that the Deed of Absolute Sale would be

executed only after the second installment is paid and a

postdated check for the last installment is deposited with

Fidela. As previously stated, however, Mariano had

already caused the drafting of the Deed of Absolute Sale.

But unlike the Kasunduan, the said deed stipulated a

purchase price of only P601,160, and covered a certain

Lot No. 1083-A in addition to Lot No. 1083-C. This deed,

as well as the Kasunduan and the Deed of Real Estate

Mortgage, was signed by Marianos children, petitioners

Adelfa, Cynthia and Jose, as buyers and mortgagees.

Although Fidela intended to sign only the

Kasunduan and the Real Estate Mortgage, she

inadvertently affixed her signature on all the three

documents in the office of Atty. Barangan (Mariano

lawyer). Mariano then gave Fidela the amount of

P250,000. He also gave Fidela a check for P200,000. In the

ensuing months, also, Mariano gave Oscar del Rosario

several amounts totaling P67,800 upon the latters

demand for the payment of the balance despite Oscars

lack of authority to receive payments under the

Kasunduan. While Mariano was making payments to

Oscar, Fidela entrusted the owners copy of TCT No. T-

50.668 (M) to Mariano to guarantee compliance with the

Kasunduan.

When Mariano unreasonably refused to return

the TCT, one of the respondents, Carlos del Rosario,

caused the annotation on TCT No. T-50.668 (M) of an


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Affidavit of Loss of the owners duplicate copy of the title.

This annotation was offset, however, when Mariano

registered the Deed of Absolute Sale on October 13,

1992, and afterwards caused the annotation of an

Affidavit of Recovery of Title on October 14, 1992. Thus,

TCT No. T-50.668 (M) was cancelled, and in its place was

issued TCT No. 158443 (M) in the name of petitioners

Adelfa, Cynthia and Jose Rivera.

Meanwhile, the Riveras, representing

themselves to be the new owners of Lot No. 1083-C, were

also negotiating with the tenant, Feliciano Nieto, to rid

the land of the latters tenurial right. When Nieto refused

to relinquish his tenurial right over 9,000 sq. m. of the

land, the Riveras offered to give 4,500 sq. m. in exchange

for the surrender. Nieto could not resist and he accepted.

Subdivision Plan No. Psd-031404-052505 was then made.

Later, it was inscribed on TCT No. 158443 (M), and Lot

No. 1083-C was divided into Lots 1083 C-1 and 1083 C-2.

To document their agreement with Feliciano

Nieto, the Riveras executed a Kasulatan sa Pagtatakwil

ng Karapatansa Pagmamay-ari ng Bahagi ng

IsangLagaynaLupa (Written Abdication of Rights over a

Portion of a Parcel of Land). Four days later, they

registered the document with the Registry of Deeds. Two

titles were then issued: TCT No. T-161784 (M) in the

name of Nieto, for 4,500 sq. m. of land, and TCT No. T-

161785 (M) in the name of petitioners Adelfa, Cynthia

and Jose Rivera, over the remaining 10,529 sq. m. of land.

Respondents filed a complaint in the Regional

Trial Court of Malolos, asking that the Kasunduan be

rescinded for failure of the Riveras to comply with its

conditions, with damages. They also sought the

annulment of the Deed of Absolute Sale on the ground of

fraud, the cancellation of TCT No. T-161784 (M) and TCT

No. T-161785 (M), and the reconveyance to them of the

entire property with TCT No. T-50.668 (M) restored.

Respondents claimed that Fidela never intended

to enter into a deed of sale at the time of its execution

and that she signed the said deed on the mistaken belief

that she was merely signing copies of the Kasunduan.

According to respondents, the position where Fidelas

name was typed and where she was supposed to sign her

name in the Kasunduan was roughly in the same location

where it was typed in the Deed of Absolute Sale. They

argued that given Fidelas advanced age (she was then

around 72 at the time) and the fact that the documents

were stacked one on top of the other at the time of

signing, Fidela could have easily and mistakenly presumed

that she was merely signing additional copies of the

Kasunduan. They also alleged that petitioners acquired

possession of the TCT through fraud and machination.

In their defense, petitioners denied the

allegations and averred that the Deed of Absolute Sale

was validly entered into by both parties. According to

petitioners, Fidela del Rosario mortgaged Lot No. 1083-C

to their predecessor in interest, Mariano Rivera, on

March 9, 1987. But on the following day Fidela decided to

sell the lot to petitioners for P2,161,622.50. When

Mariano agreed (on the condition that Lot No. 1083-C will

be delivered free from all liens and encumbrances), the

Kasunduan was consequently drawn up and signed. After

that, however, Fidela informed Mariano of the existence

of Feliciano Nietos tenancy right over the lot to the

extent of 9,000 sq. m. When Mariano continued to want

the land, albeit on a much lower price of only P601,160,

as he had still to deal with Feliciano Nieto, the parties

drafted the Deed of Absolute Sale on March 10, 1987, to

supersede the Kasunduan.

After trial, the RTC ruled in favor of respondents.

The trial court ruled that Fidelas signature in the Deed of

Absolute Sale was genuine, but found that Fidela never

intended to sign the said deed. Noting the peculiar

differences between the Kasunduan and the Deed of

Absolute Sale, the trial court concluded that the Riveras

were guilty of fraud in securing the execution of the deed

and its registration in the Registry of Deeds. It rescinded

the Kasunduan but ruled that the P450,000 paid by

petitioners be retained by respondents as payment for

the 4,500 sq. m. portion of Lot No. 1083-C that

petitioners gave to Nieto.

The Court of Appeals, the trial courts judgment

was modified. The Deed of Absolute Sale dated March 10,

1987 is declared null and void only insofar as Lot No.

1083-C is concerned, but valid insofar as it conveyed Lot

No. 1083-A, that TCT No. 158443 (M) is valid insofar as

Lot No. 1083-A is concerned and should not be annulled,

and increasing the amount to be paid by the defendants-

appellants to the plaintiffs-appellees for the 4,500 square

meters of land given to Feliciano Nieto.

Issue:

Whether or not the trial court acquire

jurisdiction over the case, despite an alleged deficiency in

the amount of filing fees paid by respondents.

Held:

Petitioners contend that jurisdiction was not

validly acquired because the filing fees respondents paid

was only P1,554.45 when the relief sought was

reconveyance of land that was worth P2,141,622.50

under the Kasunduan. They contend that respondents

should have paid filing fees amounting to P12,183.70.

Respondents counter that it is beyond dispute

that they paid the correct amount of docket fees when

they filed the complaint. If the assessment was

inadequate, they could not be faulted because the clerk


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of court made no notice of demand or reassessment,

respondents argue. Respondents also add that since

petitioners failed to contest the alleged underpayment of

docket fees in the lower court, they cannot raise the

same on appeal.

Jurisdiction was validly acquired over the

complaint.

The filing of the complaint or appropriate

initiatory pleading and the payment of the prescribed

docket fee vest a trial court with jurisdiction over the

subject matter or nature of the action. If the amount of

docket fees paid is insufficient considering the amount of

the claim, the clerk of court of the lower court involved or

his duly authorized deputy has the responsibility of

making a deficiency assessment. The party filing the case

will be required to pay the deficiency, but jurisdiction is

not automatically lost.

Respondents paid the full amount of docket fees

as assessed by the Clerk of Court of the Regional Trial

Court of Malolos, Bulacan, Branch 17, where they filed

the complaint. If petitioners believed that the assessment

was incorrect, they should have questioned it before the

trial court. Instead, petitioners belatedly question the

alleged underpayment of docket fees through this

petition, attempting to support their position with the

opinion and certification of the Clerk of Court of another

judicial region. Needless to state, such certification has no

bearing on the instant case.


ENRIQUEZ vs ENRIQUEZ

G.R. No. 139303, August 25, 2005

Facts:

Maximo Enriquez died and was substituted by

his heir. The latter filed with the RTC of Zambales, a

complaint for partitions against the petitioners. The

complaint involves a parcel of land located in Zambales.

He alleged that he owns 10/18 undivided portion of the

property, 9/18 by purchase and 1/18 by inheritance; and

that petitioners have been residing in the premises

without his knowledge and consent, thereby depriving

him of his undivided share of the property.

Petitioners, in their answer, averred that

Cipriano Enriquez, one of the petitioners, owns of the

property, while the others are in possession of the other

areas with his knowledge and consent.

On June 4, 1998, the RTC rendered a Decision

ordering the petitioners to vacate the property and to

surrender possession thereof to respondents. they filed a

Notice of Appeal with the RTC. It was approved on July 7,

1998.

Court of Appeals dismissed the appeal of

petitioners for their failure to pay the appellate court

docket fee.

Petitioners filed a motion for reconsideration but

it was denied by the Appellate Court.

Issue:

Whether the Court of Appeals correctly

dismissed the petition for failure of the petitioners to pay

appellate court docket fee.

Held:

Prior to the effectivity of the 1997 Rules of Civil

Procedure, as amended, payment of appellate court

docket fee is not a prerequisite for the perfection of an

appeal.

However, the 1997 Rules of Civil Procedure, as

amended, which took effect on July 1, 1997, now require

that appellate docket and other lawful fees must be paid

within the same period for taking an appeal. This is clear

from the opening sentence of Section 4, Rule 41 of the

same Rules that, (W)ithin the period for taking an

appeal, the appellant shall pay to the clerk of the court

which rendered the judgment or final order appealed

from, the full amount of the appellate court docket and

other lawful fees.

Petitioner contends that the trial court must first

send them a notice to pay the appellate court docket fee

and other lawful fees within the period for taking an

appeal. Hence, they waited for the notice for them to pay

the appellate court docket fee. When they did not receive

any, they paid the docket fee to the trial court. It is lack of

merit.

Also under Rule 41 of the same Rules, an appeal

to the Court of Appeals from a case decided by the RTC in

the exercise of the latters original jurisdiction, shall be

taken within fifteen (15) days from the notice of

judgment or final order appealed from. Such appeal is

made by filing a notice thereof with the court that

rendered the judgment or final order and by serving a

copy of that notice upon the adverse party. Furthermore,

within this same period, appellant shall pay to the clerk of

court which rendered the judgment or final order

appealed from, the full amount of the appellate court

docket and other lawful fees. The payment of docket fee

within this period is mandatory for the perfection of

appeal. Otherwise, the appellate court would not be able

to act on the subject matter of the action, and the


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decision sought to be appealed from becomes final and

executory.

Court has consistently held that payment of

docket fee within the prescribed period is mandatory for

the perfection of an appeal. Without such payment, the

appellate court does not acquire jurisdiction over the

subject matter of the action and the decision sought to be

appealed from becomes final and executory.

The requirement of the law under Section 4, Rule

41 is clear. The payment of appellate docket fee is not a

mere technicality of law or procedure but an essential

requirement for the perfection of an appeal.

Filing versus service of pleadings - Sec. 2, Rule 13

ELLI vs DITAN

G.R. No. L-17444, June 30, 1962

Facts:

This is a case of forcible entry which was filed by

Spouses Elli with the justice of peace court against juan

ditan and marcial bronola.

On July 28, 1959, the defendants, thru Atty.

Fernando Gerona, Jr., "Attorney for defendants-

appellants", filed with the said Justice of the Peace Court,

a Notice of Appeal. The record of the case was received

by the CFI on August 6, same year. On August 11, 1959, a

Notice of Appealed Case was sent by the Clerk, Court of

First Instance, to the parties, which were received on

August 15 and 17, by Maria Elli and Juan Ditan,

respectively, and on September 18, 1959, by Marcial

Broola. In spite of receipt by the parties, the defendants

failed to file their Answer to the Complaint, which was

deemed reproduced. Under date of December 23, 1959,

the plaintiffs, thru counsel, presented a Motion to

Declare Defendants in Default and to set date for

presentation of Evidence. The CFI declared defendants in

default on January 7, 1960.

Copies of the decision were received by the

defendants, on April 5, 1960. On April 20, 1960,

defendants thru counsel, presented a pleading captioned

"Motion to Reconsider Decision dated March 10, 1960",

where, in the main, it was contended that the reason for

the failure to file Answer was due to lack of notice to

counsel. The defendants claim that inasmuch as they

were represented by counsel, notice should have been

sent to said counsel, and there being no notice to him,

there is no service in law and, therefore, they can not be

in default. On May 6, 1960, the court a quo handed down

an Order denying the motion, stating that there was no

need to send the notice to counsel, since in appeals from

the Justice of the Peace Courts, no summons is necessary

in order that defendant may have to file Answer, and that

the notice of receipt of appealed case may be either sent

to the attorney or the party.

This Order is now before Us on appeal,

defendants claiming that it was error on the part of the

lower court to consider that notice to them was

sufficient.

Issue:

Whether there was an error on the part of the

lower court to consider the notice to them was sufficient.

Held:

The Order appealed from, is hereby set aside.

The case is remanded for further and appropriate

proceedings in the premises. No costs.

The provisions of the rules pertinent to the

issues raised by the parties the Sec. 2, of Rule 27, and Sec.

7, Rule 40, which are reproduced below:

Sec. 2. Every order required by its terms to be

served, every pleading subsequent to the complaint,

every written motion other than one which may be heard

ex-parte, and every written notice, appearance, demand,

offer of judgment or similar papers shall be filed with the

court, and served upon the parties affected thereby. If

any of such parties has appeared by an attorney or

attorneys, service upon him shall be made upon his

attorneys or one of them, unless service upon the party

himself is ordered by the court. Where one attorney

appears for several parties, he shall only be entitled to

one copy of any paper served upon him by the opposite

side. (Rule 27).

SEC. 7. Upon the docketing of the cause under

appeal, the complaint filed in the justice of the peace or

municipal court shall be considered reproduced in the

Court of First Instance and it shall be the duty of the clerk

of the court to notify the parties of that fact by registered

mail, and the period for making an answer shall begin

with the date of the receipt of such notice by the

defendant. (Rule 40).

Under the above provisions, therefore, it would

seem quite clear that service, notice, and the like, should

be made on the party, if not represented by counsel. The

moment a party appears by counsel, notice and other

processes should be made upon said counsel, service

upon the party himself not being considered service in

law. It is true that under Sec. 7, Rule 40, the Rule requires

that notification be made on the parties by registered

mail. The word parties as used in said provision, should

not, however, be interpreted to mean the parties


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themselves. The word "parties" is used because, more

often than not, in the Justice of the Peace Court, the

parties are not represented by a lawyer.

A party can appear in his own behalf, and notice

to him would be sufficient. The moment an attorney

appears for any party, notice should be given to the

former. ". . . where a party appears by attorney in an

action or proceeding in a court of record all notices

thereafter required to be given in the action or

proceeding must be given to the attorney and not to the

client; and a notice given to the client and not to his

attorney is not a notice in law." (Palad v. Cui, et al., 28

Phil. 44). In legal contemplation, therefore, and under the

facts of the present case, there was no legal service of the

notice, and the defendants could not be in default.

Filing versus service of pleadings - Sec. 2, Rule 13

PHHC vs TIONGCO

G.R. No. L-18891, November 29, 1964

Background of the case:

Tiongco and Escasa are the registered squatters

of a certain parcel of lot (Lot No. 23) and had been in

actual possession thereof since 1947, introduced

improvements thereon and had declared the property for

taxation purposes. Said parcel of lot is a portion of a

parcel of land declared by PHHC for subdivision purposes.

During that period, Tiongco and Escasa offered

to purchase the lot from PHHC, which they later found

out to have already been awarded to Enverga, a relative

of a Congressman, who had never been in possession

thereof nor introduced any improvements thereon. Upon

discovery, Tiongco and Escasa lodged a complaint with

PHHC, wherein the Chief of Investigation & Research

Section indorses the case to the Hon. Investigating

Committee for appropriate action. After the investigation,

it was found out that the two complainants were included

in the list of bonafide squatters during the census by the

PHHC, and they are capable of paying the lot, being

interested in Lot No. 23.

He further believed that both complainants have

the priority rights to purchase the lot for simple reason

that they were pioneers of the place. He recommends to

the Executive Committee to render their sound judgment

to the above-mentioned case. However, no action was

taken on the aforesaid report.

Facts:

PHHC filed an action for Recovery of Possession

before the CFI of Rizal, QC Branch. The appellant

interposed the Special Defense of Priority of Right to

purchase, and ability to pay, as found by no less that the

investigators of PHHC. The case was then scheduled for

hearing, however, Atty. Tanega, failed to notify the

appellants, and in their absence, PHHC introduced

evidence showing ownership of the property.

A judgment was rendered against the appellants,

ordering them to vacate the property, remove their

houses and other improvements thereon, to pay the sum

of P26.70 per month from date of occupation until the

restoration of the property to PHHC, and to pay

attorneys fee plus costs.

The judgment was received by their counsel,

Atty. Tanega BUT did not inform them, neither did he

take steps to protect the interests of his clients, by

presenting a motion for reconsideration or file a petition

to set aside judgment.

Appellants only came to know about the adverse

judgment when the sheriff of the court served them a

copy of writ of execution ordering them to vacate the

premises. They lost no time to contact Atty. Tanega, but

to no avail. They engaged the services of a new counsel,

Atty. Sayson, who filed before the CFI a Petition for Relief

from Judgment with affidavits of merit. The judge cited

Atty. Tanega to appear before him because of the

seriousness of the charges. He admitted to the court that

he did not informed his clients because it just escaped his

attention for he had so may ejectment cases at that time.

PHHC opposed the said petition contending that

it was filed out of time (receipt of decision: March 7, 1961

/ filing: May 9, 1961).

The court issued an order denying the aforesaid

petition holding that it was filed beyond the reglementary

period of 60 days, and that the mistake or negligence of

an attorney is binding upon his client.

Hence, the present appeal

Issue:

Whether or not the petition for relief from

judgment was filed within the reglementary period

Held:

YES. Viewed from the strictly legal perspective, it

appears that the petition was presented outside the

reglementary period of sixty (60) days from notice of the

judgment. Nevertheless due to the very peculiar

circumstances obtaining in the premises, We consider

that the rule was substantially complied with and the

petition for relief from judgment was seasonably filed.


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The rules should receive liberal interpretation in

order to promote their object and to assist the parties in

obtaining a just, speedy and inexpensive determination of

every action. Procedural technicality, should not be made

a bar to the vindication of a legitimate grievance. When

such technicality "deserts from being an aid to justice,"

the Courts are justified in excepting from its operation a

particular case, We find no better opportunity to apply

this prerogative than in the case at bar.

There was something fishy and suspicious

concerning the actuations of former counsel Atty. Taega

in this case. He did not give any significance at all, to the

processes of the court, which has proven prejudicial to

the rights of his clients. There was nothing which could

have prevented the appellants from attending the trial of

the case themselves, or moving for a reconsideration of

the decision or taking the necessary appeal from the

judgment, if only their counsel had informed them of the

court's processes. Counsel had simply ignored the rights

of his clients by giving a lame and flimsy explanation that

the court's processes just escaped his attention. He

deprived them of their day in court.

There should be no dispute regarding the

doctrine that normally notice to counsel is notice to

parties, and that such doctrine has beneficient effects

upon the prompt dispensation of justice. Its application to

a given case, however, should be looked into and

adopted, according to the surrounding circumstances;

otherwise, in the court's desire to make a short cut of the

proceedings, it might foster, wittingly or unwittingly,

dangerous collusions to the detriment of justice. It would

then be easy for one lawyer to sell one's rights down the

river, by just alleging that he just forgot every process of

the court affecting his clients, because he was so busy.

Under this circumstance, one should not insist that a

notice to such irresponsible lawyer is also a notice to his

clients.

Moreover, the petition for relief from judgment

under consideration, may even be considered as one for

relief from the order of execution, which was filed within

the reglementary period, inasmuch as Section 2 of Rule

38, Revised Rules, does not only refer to judgments, but

also to orders, or any other proceedings.

The very allegations in the petition for relief and

affidavits and other documents attached thereto, justify

the return of the case to the court of origin so that, in the

interest of justice, appellants may be given a chance to

prove their defenses.

The attention of the trial court is invited to the

censurable conduct of Atty. Bonifacio Taega in this

particular case, and to take such action as may be

warranted in the premises.

CONFORMABLY WITH THE FOREGOING, the

order of the lower court dated July 17, 1961, is hereby set

aside and another entered, remanding the case to the

court of origin for further proceedings, and thereafter to

render judgment accordingly. With costs against appellee

PHHC, in both instances

Manner of filing - Secs. 3 & 4, Rule 13

BENGUET ELECTRIC COOPERATIVE, INC. vs NLRC

G.R. No. 89070, May 18, 1992

Background:

Cosalan was the GM of BENECO. Audit

Memorandums were sent to him by COA because the

audit shows substantial inconsistencies with the

directives of NEA. When BENECO received the COA Audit

Report on the financial status and operations of BENECO,

which enumerated irregularities in the utilization of funds

amounting to P37M release by NEA to BENECO, the Board

members issued the following Resolutions:

1. Resolution No. 91-4 dated 28 July 1984:

. . . that the services of Peter M. Cosalan as General

Manager of BENECO is terminated upon approval of the

National Electrification Administration;

2. Resolution No. 151-84 dated September 15,

1984;

. . . that Peter M. Cosalan is hereby suspended from his

position as General Manager of the Benguet Electric

Cooperative, Inc. (BENECO) effective as of the start of the

office hours on September 24, 1984, until a final decision

has been reached by the NEA on his dismissal;

. . . that GM Cosalan's suspension from office shall remain

in full force and effect until such suspension is sooner

lifted, revoked or rescinded by the Board of Directors;

that all monies due him are withheld until cleared;

3. Resolution No. 176-84 dated September 25,

1984;

. . . that Resolution No. 151-84, dated September 15,

1984 stands as preventive suspension for GM Peter M.

Cosalan.

Respondent Cosalan nevertheless continued to work as

General Manager of Beneco, in the belief that he could be

suspended or removed only by duly authorized officials of

NEA, in accordance with provisions of P.D. No, 269, as

amended by P.D. No. 1645 (the statute creating the NEA,

providing for its capitalization, powers and functions and

organization), the loan agreement between NEA and


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petitioner Beneco and the NEA Memorandum of 2 July

1980. Accordingly, on 5 October and 10 November 1984,

respondent Cosalan requested petitioner Beneco to

release the compensation due him. Beneco, acting

through respondent Board members, denied the written

request of respondent Cosalan.

Facts:

Respondent Cosalan filed a complaint with the

NLRC against members of BENECO Board, challenging the

legality of the Board Resolutions which ordered his

suspension and termination from the service and demand

payment of his salaries and allowances, which he later

amended to implead the petitioner, BENECO.

In the course of the proceedings before the

arbiter, Cosalan filed a motion for reinstatement which,

although opposed by the petitioner, was granted by the

arbiter. The petitioner reinstated Cosalan through a

board resolution.

The labor arbiter rendered decision confirming

Cosalans reinstatement and ordering payment of his

money claims. The respondent Board members appealed

to NLRC, and filed a Memorandum on Appeal, while

BENECO did not appeal, but moved to dismiss the appeal

filed by respondent Board members and for the

execution of judgment. By this time, BENECO had a new

set of directors.

NLRC modified the award rendered by the Labor

Arbiter by declaring that petitioner Beneco alone, and not

respondent Board members, was liable for respondent

Cosalan's backwages and allowances, and by ruling that

there was no legal basis for the award of moral damages

and attorney's fees made by the Labor Arbiter.

BENECO, through its new set of directors, moved

for reconsideration of the NLRC decision, but without

success.

Hence, the present petition.

Issue:

Whether or not NLRC had acted with grave

abuse of discretion in accepting and giving due course to

respondent Board members' appeal although such appeal

had been filed out of time.

Held:

We consider that petitioner's first contention is

meritorious. There is no dispute about the fact that the

respondent Beneco Board members received the decision

of the labor Arbiter on 21 April 1988. Accordingly, and

because 1 May 1988 was a legal holiday, they had only up

to 2 May 1988 within which to perfect their appeal by

filing their memorandum on appeal. It is also not disputed

that the respondent Board members' memorandum on

appeal was posted by registered mail on 3 May 1988 and

received by the NLRC the following day. Clearly, the

memorandum on appeal was filed out of time.

Respondent Board members, however, insist

that their Memorandum on Appeal was filed on time

because it was delivered for mailing on 1 May 1988 to the

Garcia Communications Company, a licensed private

letter carrier. The Board members in effect contend that

the date of delivery to Garcia Communications was the

date of filing of their appeal memorandum.

Respondent Board member's contention runs

counter to the established rule that transmission through

a private carrier or letter-forwarder instead of the

Philippine Post Office is not a recognized mode of filing

pleadings. The established rule is that the date of delivery

of pleadings to a private letter-forwarding agency is not

to be considered as the date of filing thereof in court, and

that in such cases, the date of actual receipt by the court,

and not the date of delivery to the private carrier, is

deemed the date of filing of that pleading.

There, was, therefore, no reason grounded upon

substantial justice and the prevention of serious

miscarriage of justice that might have justified the NLRC

in disregarding the ten-day reglementary period for

perfection of an appeal by the respondent Board

members.

Accordingly, the applicable rule was that the

ten-day reglementary period to perfect an appeal is

mandatory and jurisdictional in nature, that failure to file

an appeal within the reglementary period renders the

assailed decision final and executory and no longer

subject to review. The respondent Board members had

thus lost their right to appeal from the decision of the

Labor Arbiter and the NLRC should have forthwith

dismissed their appeal memorandum.

Substituted service - Sec. 8, Rule 13

CUBAR vs MENDOZA

G.R. No. L-55035, February 23, 1983

Facts:

Petitioners filed a complaint with the CFI of Cebu

for the nullification of certain documents alleged in the

complaint, which they, claiming to be "illiterate mountain

people", supposedly had signed upon the representations

of the defendants, herein private respondents, that what


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they were signing was a right of way in favor of the

government over their lands for the construction of a

road leading to a mining site, with the inducement that

once operational, each landowner shall be entitled to a

royalty of P.30 per ton of minerals loaded in trucks

passing through their respective lots. However, the

documents turned out to be authorizations for entry into

their lots for the purpose of mining exploration. Through

the said documents, private respondents were granted by

the Bureau of Mines permits to make mineral

explorations over their lands.

Private respondents specifically denied the

material allegations thereof, claiming that the questioned

documents were freely and voluntarily executed by the

petitioners.

The trial court rendered judgment declaring the

subject documents null and void, and ordering

respondents to pay damages to petitioners. A copy of the

decision was served to private respondents' counsel and

was received by his wife at his given address. No appeal

was filed by respondents.

4 days after the issuance of the order of

execution, Branch V became vacant with the

appointment of Judge Zosa to the Court of Appeals.

Private respondents, through a new lawyer, Atty.

Ponciano H. Alivio, filed a motion for reconsideration and

to quash the writ of execution, on the ground that the

decision is not yet final and executory for lack of valid

service thereof. Said motion was opposed by petitioners,

who insisted that said decision is already final and

executory, and Atty. Alivio has no personality to file said

motion for want of formal substitution of counsel as

required by the Rules.

Since Branch V was then vacant, the motion for

reconsideration was resolved by Branch VI, presided over

by the respondent judge who issued the herein assailed

Order setting aside the Order of execution and quashing

the writ issued thereunder.

Petitioners' motion for reconsideration filed

against the above order of respondent judge having been

denied, this petition was filed.

Issue:

Whether or not the service is not valid. (Private

respondents argue that said service is not valid because

Atty. Gonzaga had left Cebu City, his address of record,

and has resided in Legaspi City.)

Held:

No. It is valid. The court found the petition to

be meritorious. That the decision of the trial court was

received by the wife of Atty. Romeo Gonzaga, private

respondents' counsel of record at his given address on

November 23, 1979, is not disputed. It is likewise not

disputed that said wife has been receiving prior notices

of the case for her husband at the office of the latter,

who had always acted as if he had received said notices

himself for he had duly complied therewith. With these

facts, no other ruling can be had but that the service of

the decision in question is valid and binding. It is fully

being in accordance with Rule 13, Section 4, on personal

service, said wife being of sufficient discretion to receive

notice of final judgment.

It is already well settled rule that when a party is

represented by counsel, notice should be made upon the

counsel of record at his given address, to which notices of

all kind emanating from the court should be sent in the

absence of a proper and adequate notice to the court of a

change of address.

Petitioner's argument, likewise, fails to consider

the need of observing a legal formality before a counsel

of record may be considered relieved of his responsibility

as such counsel on account of withdrawal. This legal

formality is that a lawyer's withdrawal as counsel must be

made in a formal petition filed in the case, without which,

notice of judgment rendered in the case served on the

counsel of record, is, for all legal purposes notice to the

client, the date of receipt of which is considered the

starting point from which the period of appeal prescribed

by law shall begin to run. Not having withdrawn formally

as counsel in the case, Atty. Romeo Gonzaga continued to

be the counsel of record and was, for all legal purpose,

private respondents' attorney upon whom the court's

processes may be served, as they were in fact duly

served.

WHEREFORE, the writ of certiorari is granted and

the questioned Order of respondent judge is hereby

annulled and set aside. The writ of prohibition is likewise

granted and respondent judge or whoever would be

appointed to the appropriate branch of the Regional Trial

Court, prohibited from acting in any wise or form except

to order execution of the subject decision. The temporary

restraining order heretofore issued is hereby made

permanent. Costs against private respondents.


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Service of judgments, final orders or resolutions v.

Priorities in modes of service and filing - Sec. 9, Rule 13

FERAREN vs SANTOS

G.R. No. L-41323, April 27, 1982

Facts:

This case is about the judgment of the Court of

Appeals which became final and executory because the

counsel for the losing party did not claim from the post

office the registered mail containing the copy of the

resolution denying his motion for reconsideration.

CA in its decision in Feraren vs. Santos, CA-G.R.

No. 52724-R ordered Feraren to deliver a certain

Volkswagen car to Remedios Santos and to pay her as

damages ten pesos a day from September 22, 1967 up to

the time of delivery.

A copy of that decision was served on Felipe

Ponce, Feraren's counsel. Ponce withdrew from the case

and he was replaced by Mendez, Mendez & Associates

who entered their appearance as Feraren's new counsel

and filed a motion asking for an extension of thirty days

within which to file a motion for reconsideration. CA

approved Ponce's withdrawal from the case and granted

Feraren's new lawyers the thirty-day extension with the

warning that no further extension would be granted.

The Mendez law office received a copy of that

resolution by registered mail. Lawyer Pershing L. Mendez

asked for another thirty-day extension which was

reluctantly granted by the Court of Appeals in its

resolution in this wise: "Motion is apparently not well-

founded because appellee's (Feraren's) counsel is a law

firm with several members. However, granted as a last

chance." Feraren's lawyers received a copy of that

resolution also by registered mail.

Feraren's motion for reconsideration was denied

for lack of merit in the resolution.

A copy of that resolution, like the two prior

resolutions, was sent by registered mail in the Manila

central post office to Mendez, Mendez & Associates at

their address of record. Two notices dated March 21 and

26 regarding that registered mail were sent to the

Mendez law office at that address. However, that

particular registered mail was returned to the Court of

Appeals with the notation stamped on the envelope:

"Return to Sender Unclaimed". Also stamped on the

envelope were the words "March 26 Second Notice" and

"Entry Registry April 2, 1975 ". The officer-in-charge of

the central post office in Manila informed the Court of

Appeals that the said registered mail was returned to the

Court's representative after two notices were sent at the

Mendez law office and the mail was not claimed.

On the assumption that the judgment became

final, entry of judgment was made the record was

remanded to the lower court. Copies of the entry of

judgment were mailed to the lawyers of the parties.

Pershing L. Mendez, Feraren's counsel, filed a

manifestation (motion) wherein he prayed for the recall

of the entry of judgment on the ground that his motion

for reconsideration had not yet been resolved; hence, the

judgment "could not become final and executory".

CA denied the motion for the recall of the entry

of judgment because, as already stated, the motion for

reconsideration had already been resolved.

Mendez filed a manifestation (motion) wherein

he prayed that he be allowed to appeal "as a

consequence of the denial of the motion for

reconsideration". He said that he had not received a copy

of the resolution denying his motion for reconsideration.

CA did not grant that prayer. A copy of that resolution

was received by Mendez by registered mail.

More than a month later after a writ of

execution was served on Feraren, he filed in this Court

this petition for certiorari, prohibition and mandamus

wherein he prayed that he be allowed to appeal and that

the lower court be enjoined from executing the judgment

of the Court of Appeals. Lawyer Mendez alleged in that

petition and in his affidavit that in his office at his

residence there was always someone to attend to

correspondence and that he did not leave the city during

the period when the notice of registered mail was

supposedly sent to his law office. His office clerk made a

similar affidavit.

However, the fact remains that the postmaster

certified that although two notices were sent to Mendez's

office, the registered mail in question was not claimed at

the Manila central post office.

Issue:

Whether or not CA gravely abuse its discretion in

not allowing Feraren to appeal to this Court. No.

Whether or not the failure to claim registered

mail of which notice had been duly given by the

postmaster is excusable that would warrant the

reopening of a decided case. No.

Held:

The rule is that if the addressee of registered

mail fails to claim it from the post office within five days

from the date of the first notice of the postmaster,

service becomes effective at the expiration of that five-

day period (Sec. 8, Rule 13, Rules of Court).

Between the denial of a lawyer that he received

the first notice of registered mail and the postmaster's

certification that said notice was sent, the postmaster's

claim should be believed because it is his official duty to

send notices of registered mail. The presumption is that


m meikimouse

official duty was regularly performed. (Grafil vs. Feliciano,

L-27166, June, 30, 1967, 20 SCRA 616 citing Enriquez vs.

Bautista, 79 Phil. 220, 222).

It is the duty of a practising lawyer to so arrange

matters that official or judicial communications sent by

mail will reach him promptly. Failing to do so, he and his

clients must suffer the consequences of his negligence.

(Islas vs. Platon and Ona, 47 Phil. 162).

It has been held that the failure to claim

registered mail of which notice had been duly given by

the postmaster is not excusable negligence that would

warrant the reopening of a decided case (Pielago vs.

Generosa, 73 Phil. 654).

We find that the Court of Appeals did not gravely

abuse its discretion in not allowing Feraren to appeal to

this Court.

WHEREFORE, the petition is dismissed for lack of

merit. The temporary restraining order is dissolved. No

costs.

Service of judgments, final orders or resolutions v.

Priorities in modes of service and filing - Sec. 9, Rule 13

MAGNO vs CA

G.R. No. L-58781, July 31, 1987

Facts:

Private respondents filed an action for Partition

of Certain Properties and for Damages against petitioners

in the CFI Pangasinan. The lower court ordered the

partition of the properties. Petitioners appealed to the

Court of Appeals. CA affirmed the lower court.

Notice of the decision was sent to petitioners'

counsel Atty. Atinidoro B. Sison at his given mailing

address. However, it was returned to the court with the

certification of the postmaster "Return to sender,

Reason moved."

Then, the Court of Appeals issued a resolution

wherein it resolved to resend the said copy of the

Decision to the appellants(petitioners herein) themselves

at Alaminos, Pangasinan, and the appellants are hereby

informed that 15 days period within which to file for

reconsideration will be counted from the receipt of the

decision herewith attached.

A copy of the resolution was sent but again the

envelope addressed to them was returned to the court

with the notation deceased.

CA- ordered the issuance of the entry of

judgment.MR of petitioner was denied. Hence, the

present petition.

Issue:

Whether or not there was proper service of

notice

Held:

Yes. It is well-settled that when a party is

represented by counsel, notice should be made upon the

counsel of record at his given address to which notices of

all kinds emanating from the court should be sent in the

absence of a proper and adequate notice to the court of a

change of address.

In this case, the records show that the notice

and copy of the decision of respondent Court of Appeals

were sent to petitioners's counsel of record Atty. Sison at

his given mailing address which is 33 B.M.A. Avenue,

Tatalon, Quezon City. The first notice to him by the

Postmaster to claim his mail was on July 9, 1981. The rule

is that service of notice becomes effective at the

expiration of the five-day period upon failure of the

addresse to claim his mail within five (5) days from the

date of first notice

Therefore in this case the service became

effective five days after July 9, 1981 which is July 14,

1981. The decision became final on August 13, 1981. If

Atty. Sison moved to another address without informing

the respondent of his change of address the omission or

neglect will not stay the finality of the decision. The

notice sent to petitioners themselves, under the

circumstances is not even necessary. It may be stated

though that while petitioners claim that Teofilo Magno to

whom the notice to the petitioners was addressed is

already dead, it is not explained why their present

petition before this Court still includes the name Teofilo

Magno. There is no indication in the record that he has

been duly substituted by his legal representative.

The decision in this case having become final on

July 29, 1981, there being no appeal taken therefrom,

respondent court committed no error ordering the

issuance of the corresponding entry of judgment.


m meikimouse

When service is deemed complete - Sec. 10, Rule 13

ISAAC vs MENDOZA

G.R. No. L-2820, June 21, 1951

Facts:

Fausto Isaac sold to Leopoldo Mendoza a parcel

of land in Pili, Camarines Sur, reserving the right to

repurchase within four years. After liberation, the seller

offered to redeem, but defendant objected, saying the

redemption was premature. Hence this litigation

instituted in the CFI to compel re-transfer.

After having been duly summoned, the

defendant failed to answer. Upon plaintiff's motion, he

was defaulted by order of the lower court.

Thereafter, considering the plaintiff's evidence

the court rendered judgment requiring the defendant to

execute a deed of re-sale of the land, to receive the

amount of P90 Philippine currency, which Isaac had

consigned in court, to pay damages in the sum of P95.

Then, Mendoza submitted a petition to set aside

the judgment invoking accident, mistake, or excusable

negligence.

Respondents arguments: his attorney Jorge C.

Briones had not received notice of the court's denial of

his motion to dismiss the complaint, he had reason to

believe the time to answer had not expired.

It appears from the record that, duly summoned,

defendant through Attorney Briones filed a motion to

dismiss, which was overruled by order of April 8, 1946. At

the bottom of that order there is notation that had been

furnished Attorney Briones by ordinary mail. Then the

plaintiff filed his motion for default, asserting that,

defendant's motion to dismiss had been denied and that

so far, defendant had interposed no answer.

The court issued an auto suspending

consideration of plaintiff's motion and giving the

defendant a period of ten days within which to reply

thereto, if so desired. Copy of this directive was sent by

registered mail to Attorney Briones, but the latter

"refused to claim the registered letter despite the

notices given him by the postmaster". And according to

an affidavit submitted to the court, Attorney Peas for

the plaintiff, had again and gain reminded Briones that

the time was come for the answer.

CFI- denied the petition to set aside. Hence this

petition.

Issue:

Whether or not there was completed service

Held:

Yes. We affirm the order of the trial court

denying the petition to set aside.

According to the rules, Attorney Briones is

deemed to have received the copy of the auto which he

declined to accept from the mails. That order was

sufficient to advise him of the rejection of his previous

motion of dismissal, supposing he had not actually

received the copy of the order which had been forwarded

to him by ordinary mail.

The appellant insist here that "the record fails to

show a conclusive evidence that Atty. Jorge C. Briones . . .

was notified". This is refuted by the above account of the

facts and of the governing principles. It is remarkable

that, to meet the conclusions therein set forth, defendant

has not introduced any sworn statement of Attorney

Briones.

Unless the appellant has filed a motion to set

aside the order of default, on any of the grounds

enumerated in Rule 38, he has no standing in court nor

the right to appeal. Examining appellant's motion we

observe that he merely requested for the annulment of

the decision rendered after his default without praying

for the revocation of the order of May 10, 1947 declaring

him to be default. But granting, for the sake of argument

that the aforesaid pleading impliedly included the second

prayer, we are met by the insuperable objection that the

petition was too late. Because filed beyond the six-month

period within which applications for reli

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