REMEGIA RIEGO AND AGAPITO REVILLOSA, PLAINTIFFS AND APPELLANTS, VS. PABLO RIEGO, JACINTO RABE AND CATALINA PADOLINA, DEFENDANTS AND APPELLEES.

Riego versus Riego

The Case

This is an appeal by the spouses Remegia Riego and Agapito Revillosa against the order of the Court of First Instance of Marinduque denying their motion for reconsideration of an earlier order dismissing their complaint. The complaint, filed in September 1961, sought to enforce a right of pre-emption over two parcels of land that formed part of the estate of Remegia's deceased father and had been assigned to her brother, Pablo Riego, in an extrajudicial partition. The partition deed contained a stipulation granting any heir a right of pre-emption over inherited property assigned to a co-heir and later sold to third parties. Pablo sold one parcel to Catalina Padolina without informing the plaintiffs. The plaintiffs prayed that the deeds of sale be annulled and that the lands be conveyed to them under the same conditions. The case matters for the bar because it fixes the rule on service of orders and notices: when a party has appeared by counsel, service must be made on the attorney, not the client, unless the court orders otherwise — and it shows how that exception operates when counsel cannot be located.

Procedural History

The plaintiffs filed their complaint in the Court of First Instance of Marinduque on September 5, 1961. The defendants Jacinto Rabe and Catalina Padolina moved to dismiss on two grounds: that the complaint stated no cause of action because the plaintiffs could not exercise the right of pre-emption until Pablo had given them written notice of the sales, which he admittedly had not done, as required by Article 1623 of the New Civil Code; and that any cause of action was barred by the statute of limitations because the plaintiffs did not exercise the right within thirty days from December 1960, when they learned of the sales. The trial court found the motion well taken and dismissed the complaint on November 28, 1962. A copy of the dismissal order was served by mail on the plaintiff Agapito Revillosa on December 6, 1962. The plaintiffs filed a motion for reconsideration only on June 26, 1963. The defendants opposed it as filed out of time, and the court denied the motion on August 24, 1963. The plaintiffs appealed from that denial, and the appeal reached the Supreme Court.

Facts

Remegia Riego and Agapito Revillosa are spouses. Remegia's deceased father left several parcels of land, which his heirs divided among themselves by an extrajudicial partition. Two of those parcels were assigned to Remegia's brother, Pablo Riego. The deed of partition contained a stipulation granting any one of the heirs a right of pre-emption over any inherited property assigned to a co-heir and later sold by that co-heir to third parties.

Pablo sold one of the parcels to his co-defendant Catalina Padolina. The plaintiffs were not informed of the sale. In September 1961 they sued, asking that the deeds of sale be annulled and that the lands be conveyed to them under the same conditions stipulated in those deeds.

The defendants moved to dismiss. The trial court granted the motion and dismissed the complaint on November 28, 1962. A copy of the dismissal order was served by mail on the plaintiff Agapito Revillosa on December 6, 1962. The plaintiffs filed their motion for reconsideration only on June 26, 1963, and the trial court denied it as filed out of time. The plaintiffs appealed from that denial.

Issues

• Whether or not the service of a copy of the order of dismissal upon one of the plaintiffs, Agapito Revillosa, instead of upon the plaintiffs' attorney of record, was sufficient for the purpose of computing the thirty-day period within which the plaintiffs could appeal or move for reconsideration.
• Whether or not the trial court correctly denied the motion for reconsideration as filed out of time.

Applicable Provisions

Section 2 of Rule 13 of the Revised Rules of Court, formerly Section 2 of Rule 27, provides:

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 or 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.

This provision supplies the general rule that service must be made on the attorney of record, together with the exception that service on the party himself is valid when the court so orders — the very exception the Court finds applicable here.

Ruling

On the first issue, the Court held that the service on the plaintiff Agapito Revillosa was valid. The general rule is that where a party appears by attorney in an action or proceeding in a court of record, all notices thereafter required to be given 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. The exception is when the court orders otherwise. Here, the Court found it clear that it was by order of the trial court that the notice of hearing of the motion to dismiss was served on the plaintiffs, and from then on service upon them of any subsequent pleading or order was presumably valid service. In making that order the court took into account that the defendants had requested that the plaintiffs be furnished the notice, and that the whereabouts of the plaintiffs' counsel, Attorney Ortañes de Guia, could not be ascertained. The court took judicial notice that in another civil case pending before it, it had earlier ordered that all motions, pleadings and papers be served on the plaintiff therein because the same attorney could not be located, and that in a criminal case it had issued an order for the arrest of that same attorney, which was returned unserved because he could not be found at his given address. The plaintiffs accepted the notice of the hearing of the motion to dismiss, and one of them was in fact present at that hearing although their counsel failed to appear. By the time they filed their motion for reconsideration they were already represented by a different lawyer.

On the second issue, the Court held that the denial of the motion for reconsideration was correct. Service on the plaintiffs being valid, they had thirty days from December 6, 1962 within which to file a motion for reconsideration. They did not file it until August 24, 1963. The denial was therefore correct.

Doctrine

Where a party has appeared by attorney in an action or proceeding in a court of record, all notices thereafter required to be given 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. The exception, expressly recognized in Section 2 of Rule 13, is when the court orders otherwise. When the court, because counsel's whereabouts cannot be ascertained, orders that notices be served on the party himself, service upon the party of subsequent pleadings and orders is valid service, and the period to appeal or move for reconsideration runs from that service. A motion for reconsideration filed beyond the thirty-day period counted from valid service is filed out of time and is properly denied.

Disposition

The Supreme Court affirmed the order appealed from, with costs against the appellants.

Remember This

Service on the client, not the counsel, is no notice in law — unless the court itself orders service on the party, as it may when counsel cannot be located. Examiners use this case to test the attorney-of-record rule under Section 2 of Rule 13 and the computation of the period to appeal or move for reconsideration from valid service.