ALFONSO DARAN, PETITIONER-APPELLANT, VS. DOMINADOR ANGCO, RESPONDENT- APPELLEE. DAMASO ACOSTA, INTERVENOR.

This case was certified by the Court of Appeals to this Supreme Court
as involving only questions of law.  It
originated in the Court of First Instance of Isabela,
as a petition for relief, under Rule of Court 38, from
a judgment of the Municipal (then Justice of the Peace) Court of the Municipality
of Aurora, Isabela,
wherein petitioner Alfonso Daran was declared in
default.

The facts are not in controversy, and are recited in a
stipulation of facts submitted to the Court of First Instance in its Civil Case
No. 1475, which reads:

“1. That the summons dated July 13, 1961, of the Justice of
the Peace Court of Aurora, Isabela, together with a
copy of the complaint in Civil Case No. 147 of the Justice of the Peace Court
was received and signed by Celestina Daran, wife of the petitioner Alfonso Daran,
on July 30, 1961, true copy of which summons is hereto attached as Annex ‘1’
hereof;

“2. That the decision of the Justice of the Peace Court of Aurora, Isabela, in Civil Case No. 147, copy of which is hereto
attached as Annex ‘B’ of the stipula­tion of facts, is dated and entered by the
Justice of the Peace Court of Aurora, Isabela, on
September 4, 1961;

“3. That the petitioner learned that he was declared in default and
judgment was rendered against him on October
16, 1961 (paragraph 8 of the petition admitted);

“4. That the petition in question was filed and docketed as Civil
Case No. 1475 on April 12, 1962 as shown on the stamp appearing in the record
of the case;

“5. That the parties agree on the communication by counsel for the
petitioner dated February 1, 1962 with the attached money order 144744 in the
amount of P10.00; so with the communication of the Clerk of Court dated
February 23, 1962 to Atty. Felix V. Fer­nandez asking the latter to remit
additional sum of P22.00 to complete docket fee; likewise, the communication of
Atty. Felix V. Fernandez dated March 13, 1962 to the Clerk of Court remitting
the sum of P27.25;

“6. That the parties also agree on the communica­tion by the
Clerk of Court dated April 16, 1962
to Atty. Felix V. Fernandez asking the latter to remit the de­ficiency in the
sum of P3.99 in money order payable to the Provincial Sheriff of Isabela, and also enclos­ing therein Official Receipt No. C-7023769 for P32.00 covering docket fee.” (Record on Appeal, pp. 30-31.)

Upon the facts, the Court a quo dismissed the petition
for relief as untimely filed.  Unable to
secure reconsideration, peti­tioner Daran duly
appealed.

We find no ground to alter the decision appealed from.

The stipulation of facts show that although Daran
learned of the judgment rendered against him on October 16, 1961 (Stipulation,
par. 3), yet he did not seek relief therefrom in the
Court of First Instance until April 12, 1962 (Stipulation, par. 4) or nearly
six months (less a few days) afterwards.

As correctly held by the Court of origin, the petition was
belated, having been filed much later than the period allowed for the purpose
by section 3 of Rule 38 of the Rules of Court, which is only “sixty (60)
days after the petitioner learns of the judgment, order or other proceed­ing to
be set aside”.  In the case at bar,
that period expired on December 16,
1961, so that even the original receipt of the petition (without
full payment of docket fees) by the Clerk’s office on February 3, 1962, was beyond the proper period.

Petitioner-appellant contends also that the service of summons
was irregular, in that there was substituted service upon his wife, without
showing of any effort to serve summons upon him personally, in violation of
section 8, Rule 7 of the 1940 Rules of Court. 
We do not agree.  Since appellant’s
own evidence (affidavit of his wife) shows that the municipal policeman who
served the summons did not find Daran in his usual
place of abode, but was informed by the wife that the appellant was in barrio Cabasingan, municipality
of Callang,
and there being no adequate assurance that he could be served there,
substituted service was justified.  There
is no evidence that the wife was not a person of sufficient discre­tion to
accept service of summons.

The judgment under appeal is affirmed.  Costs against appellant,
Alfonso Daran.

Concepcion, C.J., Dizon,
Makalintal, Bengzon, Zaldivar, Sanchez, Castro, Angeles, and Fernando, JJ., concur.