G. R. No. L-10823. May 28, 1957

Petition for mandamus to compel Hon. Enrique A. Fernandez,  Judge of Davao, to give due  course to the appeal presented by herein petitioners  in  Special Civil Case No. 68 of his court of First Instance. The respondents say the appeal was filed out of time. That  civil  case  commenced  with an  action  by Felipe Deluao to modify the award  of the Secretary of Agriculture ana Natural Resources  in  an administrative contest

between  him  and  Supremo  Deluao regarding  fishponds under the control of the Bureau of Forestry, in the Municipality of Padada,  Davao.  The said Secretary approved. Felipe’s fishpond application  for  Lot No.  3907 (area 38. hectares)  and Supremo’s fishpond application  for Lot No. 3162  (area 20  hectares).  Felipe  Deluao  claimed both. lots, for reasons not necessary to mention  now.

After hearing the parties  and their evidence,  the  respondent judge  rendered judgment for the plaintiff,  declaring him to be the rightful applicant and possessor of both lots, and issuing other suitable directives.

Notice and copy  of the decision was sent to Atty. Marfori representing the  Solicitor General’s  Office who had appeared for the herein petitioners,  had filed the answer and had attended the trial in September and October, 1955; such notice  was received on March 27, 1956.  The Clerk of Court  likewise  served notice  of the decision on the Assistant Fiscal of Davao on  April  11, 1956, because said Fiscal had also appeared in November 1955 for the same officials.   On April 12, 1956,  the latter filed  a notice of appeal,  which was objected to by Felipe Deluao,  on the ground that it had been submitted beyond  the  period of appeal, counted from the receipt by Atty. Marfori of notice of the decision.

The  fiscal replied to the  objection; but the  court found the appeal to be untimely, and turned it down.

It is contended in this petition that Atty. Marfori had previously withdrawn as counsel, that  the  Provincial Fiscal became  the  sole counsel of petitioners  and that consequently the time for appealing should be reckoned from: April 11,  1956.

This contention is premised on the following incidents, as related by the court itself:

“On  October 25, 1955, Atty.  Marfori in open court made the following  manifestation, which  reads, as follows:

‘Atty. Makfori:

I want to make it of record that if this court will ever postpone’ the trial of this case, this representation might, not, be. able to come to this Court in view  of the fact  that the traveling; expenses for our Department has  already  been  exhausted.  In view  of  the importance of these  records which are now here, I should like to request this Honorable Court to issue an order to the Department for the submission  of  these records  to this  Court in  care of the  Clerk  of  Court, because this representation might not be  able to come at the  time this case will be  transferred’ .”, 

“On November  5, 1955,  the Provincial  Fiscal received ¦the following communication  which  reads as follows:

November 5, 1955
The Provincial  Fiscal Davao City
Sir:

This is to  request your good office to represent the respondents Secretary of Agriculture and Natural Resources  and the Director of Fisheries in  Sp. Civil Case No. 63 (Felipe Deluao ve. Honorable Secretary of  Agriculture and Natural Resources,  et al.) now  pending  before the  Court of First Instance of Davao  and set for  hearing on November 25, 1955,  in the sala of Judge Fernandez  thereat.

In this connection, tho District Fisheries Officer  at  Davao  City, on even  date,  has  been instructed  to extend his cooperation to .your office on the matter,’ “
 
It is clear  that  there was no  substitution.  Apart from the fact that no proceedings for substitution of attorneys had taken place, the assistant fiscal herself¹ never claimed in the lower  court that there  had been  such substitution.  All she  claimed was that the  Fiscal’s Office had actually appeared as  counsel for respondents—not  provisionally— and was entitled  to notice, which was received only on April 11, 1956.

Under the Rules where a. party has two attorneys, notice to one of them is notice to  such party.   (Section 2  Rule :27).  “Wherefore the notice  to  Atty.  Marfori on March 27, 1956 was notice to respondents, and the  period for appealing—fifteen days²—started from that  date.³

Wherefore, the  appeal  having been interposed on the sixteenth day,  (March 27  to April  12) it was late by one day—tardiness  which has heretofore  been declared sufficient to bar an appeal.⁴

In one case⁵ it is true,  we relaxed this rule because notice was  given  to  an attorney  who “appeared  provisionally absence of the attorney who had entered his appearance  in  the case.”  And in another ⁶ we found reasons not to apply the principle,  because the notice had not been given to the principal attorney, who  was considr ered as such by the adverse party itself and by the court.

However  in this litigation no similar circumstances are brought to our attention to  justify  relaxation of the Rule. Indeed, if any attorney appeared provisionally or “in collaboration,” it was probably  the assistant  fiscal of Davao, because the  Fiscal would not have supplanted the Solicitor General’s Office, which is supposed  to be primarily the legal counsel of national officials and  offices.

And  if any  equitable consideration is  to be borne in mind, it is  this: the  party  most directly affected  by the court decision was  Supremo  Deluao  who lost Lot No. 3162 to Felipe Deluao.   Yet he did not care to’ appeal.

This  petition  should be, and it is  hereby,  denied.  

No costs. Padilla, Montemayor, Reyes,. A., Bautista Angelo, Labrador, Conception, Reyes, J. B. L.,  Endencia  and Felix, JJ., concur.
 
 

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¹ Reyes vs. Court of Appeals, 74 Phil. 235.
² Ongsiako vs. Judge Natividad, 79 Phil., 3, 45 Off. Gaz. (No. 1) 229.
³ Delgado vs. Judge: Santiago, L-J8935, May 18,  1956.
¹ Annex D “opposition to motion to disallow appeal”.
²Rule 41 section 17.
³ “Venturina vs. Court of First Instance, 75 Phil, 804;  Olivares vs. ILeola, 97 Phil., 253.