DAMIAN IGNACIO, PLAINTIFF AND APPELLEE, VS. PELAGIO RACHO, AND HILARIA DOLORES, DEFENDANTS AND APPELLANTS.

This is an appeal from an order dated December 5, 1945, which denied a
petition filed by the defendants to set aside a judgment of the Court of First
Instance of Pangasinan dated September 8, 1944, rendered after hearing the
plaintiff’s evidence alone without the presence of the defendants and of their
attorney.

The grounds alleged in the petition are fraud, accident, mistake or excusable
negligence.

On May 30, 1944, a complaint was filed against the defendants in the Court of
First Instance of Pangasinan for the annulment of a deed of sale executed by the
plaintiff on June 27, 1938 (Exhibit B), purporting to convey to the defendants a
parcel of land described therein; for the return to the plaintiff of the parcel
of land, the possession of which had been turned over to the defendants as
security only for the payment of a loan of P1,300, with the understanding that
the products thereof would be applied to the payment of the principal of the
loan, and for damages and costs. Plaintiff claims and alleges that he could not
sell or encumber the parcel of land to the defendants, as that is prohibited by
section 118 of Commonwealth Act No. 141. Defendants, on the other hand, claim
and plead in their answer that the transaction had between them and plaintiff
was that of absolute sale, and that the prohibition of the Public Land Act
(Commonwealth Act No. 141), invoked by the plaintiff, is applicable only to
lands of the public domain granted as homestead or free patent and not to lands
of the public domain sold to applicants.

The case was set for trial on September 6, 1944. On August 29, or nine days
before the date set for trial, a motion for postponement was filed by one of the
defendants, on the ground that his attorney could not be present at the trial as
he had to attend to some business in Manila and the means of transportation to
Lingayen was uncertain. There was an affidavit entitled “of merit” attached to
the motion subscribed and sworn to by the same defendant. On September 5, 1944,
the attorney for the defendants, learning of the date set for the trial of the
case upon receipt of copies of the motion and the affidavit of merit referred
to, sent a telegram to the judge presiding over the Court of First Instance of
Pangasinan asking for postponement of the trial of the case “for reasons
endangering his life.” Notwithstanding this motion and telegram, the court
proceeded to hear the case and rendered judgment as herein above stated, after
denying the motion for postponement on the ground that the movant did not set
the time and place for the hearing of the motion, as required by the Rules of
Court.

On October 27, 1944, the clerk of court sent to the attorneys for both
parties notice of the decision. Attorney for the defendants did not receive said
notice until November 16, 1945. (Affidavit of the Postmaster of Manaoag,
Pangasinan, Exhibit E.)

On November 14, 1945, a verified petition to set aside the said judgment was
filed by the attorney for the defendants under section 2, Rule 38, which
petition was amended by another filed on November 19, alleging, among other
things, that he was prevented from attending the trial of the case on the date
set, because his personal safety required him to stay away; that one of the
defendants moved for postponement of the trial of the case upon the grounds
stated in the motion; that a telegram was sent by him (the attorney) upon
learning on September 5, 1944, of the trial of the case set for the following
day; that he learned of the judgment rendered against his clients when on
November 10, 1945, he received a copy of the letter of plaintiff’s attorney
dated November 8, addressed to the clerk of court asking for execution of the
judgment; that after verifying the truth of the contents of the letter, on
November 14, he filed a motion to set aside the judgment; that the defendants
were deprived of their day in court and of their property without due process of
law; and that they have a meritorious defense, an set forth by them in their
answer to the plaintiff’s complaint. Acting upon the petition, the court below
denied it, on the ground that, although it was filed within 60 days after the
defendants had learned of the judgment rendered against them, it was, however,
more than six months after entiy of the judgment (section 3, Rule 38). From this
order the defendants have appealed.

The defendants in this case having filed their answer in due time were not in
default (section 3, Rule 7; section 1, Rule 9). As they were not in default they
were entitled to be served with notice of the judgment rendered in the case. The
judgment shall be entered by the clerk, if no appeal or motion for new trial be
filed within the time provided for in the Rules of Court (section 2, Rule 35). A
motion for new trial may be filed “within 30 days after notice of the judgment”
(section 1, Rule 37). An appeal may be taken within 30 days from notice of
judgment (section 3, Rule 41). The notice of judgment in this case was sent by
registered mail. “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 days from the date of first notice of the postmaster, the service shall
take effect at the expiration of such time.” (Section 8, Rule 27.) The affidavit
by the postmaster of Manaoag (Exhibit E) shows that, although he received a
registered envelope containing the notice of judgment, he did not send notice of
its receipt to the attorney for the defendants. As there was no such notice,
there was no service of the notice of judgment on the defendants’ attorney and
the expiration of five days from first notice of the postmaster to complete the
service could not take place. Hence the service of notice of the judgment was
made on November 16, 1945 only, when the notice was actually delivered. It is
then clear that service of the notice of judgment rendered in this case was not
made on October 27, 1944. Said judgment could not be entered by the clerk of
court on the last mentioned date, because the 30-day period from the service of
notice thereof, within which a motion for new trial or an appeal may be filed,
had not yet elapsed. On November 19, 1945, when the amended petition to set
aside the judgment was filed, judgment in the case was not yet final and
executory and could not have been entered by the clerk of court. And it
appearing further that the defendants have a meritorious defense as set forth in
their answer, it is just and fair that they should be given a day in court or
afforded an opportunity to cross-examine plaintiff’s witnesses, to object to his
evidence, and to prove their defense. Moreover, even if the motion for
postponement of the trial was defective, the court below, taking into
consideration the turbulent conditions prevailing at the time when the case was
set for trial, should have postponed it using its discretion granted by section
4, Rule 31. This the court below failed to take into account when it entered the
order appealed from.

The order appealed from is reversed; the judgment rendered in this case is
set aside; and the Court of First Instance of Pangasinan is directed to hold a
trial on the merits of this case with due notice to both parties. No costs shall
be taxed.

Paras, Pablo, Perfecto, Bengzon, and Tuason, JJ.,
concur.