JUANITA R. DOMINGO, PETITIONER, VS. HON. DIONISIO DE LEON, ET AL., RESPONDENTS.

This
is a special civil action of certiorari and mandamus under Rule 67 of
the Rules of Court seeking to set aside the entry of judgment made on
August 16, 1960 by the Clerk of Court of the Court of Appeals in CA-G.
R. No. 19223—R, and to annul the resolutions dated September 21, 1960
and October 24, 1960 of the First Division of said Court composed of
the justices who are respondents herein.

It appears that in
the case of CA-G. R. No. 19223-R, entitled Juanita R. Domingo,
plaintiff-appellant vs. Isidro Soriente, defendant-appellee, the Court
of Appeals (First Division) promulgated a decision on June 30, 1958
copy of which was received on July 8, 1958 by counsel for
defendant-appellee. On July 23, 1958, said defendant, thru counsel,
filed a motion for reconsideration, which was denied for lack of merit.
Copy of the resolution of the court was received by counsel for
defendant on August 15, 1960, as evidenced by the delivery receipt
signed by said counsel on the date just mentioned. On August 16,1960,
Romeo Mercado, Clerk of Court of the Court of Appeals, made an entry of
judgment to the effect that the decision promulgated on June 30, 1958
had become final and executory on said date August 16, 1960.

Thirty
days thereafter, that is, on September 15, 1960, counsel for plaintiff
filed a motion to set aside the entry of judgment contending that the
date mentioned therein— August 16, 1960—is not correct on the alleged
ground that the counsel for defendant Soriente received on August 12,
1960 (not on August 15, 1960) his copy of the resolution of August 8,
1960, as stated by Benjamin Agustin, a messenger of the Court of
Appeals, in his report entitled “Official Service Rendered Outside of
the Office August 12, I960.” Counsel filed a written opposition to this
motion stating therein that according to his personal record the
resolution of the Court of Appeals dated August 8, 1960 was received by
him on August 15, 1960 and not on August 12, 1960 as alleged in the
motion. On September 21, 1960, the Court of Appeals denied the motion.
On September 30, 1960, counsel for plaintiff filed a motion for
reconsideration alleging that the date appearing in the delivery
receipt is doubtful and appears to be post- dated. To this motion
Soriente’s counsel also filed a written opposition. And after
considering both the motion and the opposition the Court of Appeals
denied the motion for lack of merit. Hence the present petition for
certiorari.

Section 10, Rule 27, of our Rules of Court
provides in substance that the proof of service of a pleading shall
consist (1) in case of personal service, of a written admission of the
party served, (2) of the affidavit of the party serving containing a
full statement of the date, place, and manner of service, and (3) if
service is made by mail, of the affidavit of the person serving,
together with the registry receipt, if registered. Here it appears that
a copy of the resolution of the Court of Appeals of August 8, 1960 was
personally served upon counsel for respondent Soriente as evidenced by
the delivery receipt copy of which is Annex D. Such being the case, it
is clear that under our rule relative to proof of service said delivery
receipt constitutes the best evidence of the service made upon
Soriente’s counsel of the copy of the aforesaid resolution. And it
appearing on the face thereof that said copy was served on counsel on
August 15, 1960 and that in the entry of judgment made by Clerk of
Court Mercado the decision had become final and executory on August 16,
1960, respondent justices had no other alternative than to deny the
motion to set aside the entry of judgment.

But it is claimed
that said justices erred in relying more on the date appearing on the
delivery receipt signed by counsel for respondent Soriente than on the
date appearing on the report submitted by the messenger of the Court of
Appeals wherein it appears that counsel received copy of the resolution
of August 8, 1960, not on August 15, 1960, but on August 12, 1960, for
the reason that the report of said messenger is part of the official
record of the Court of Appeals and as such deserves more weight and
credit.

We do not see how we can agree to this claim much as
we admit that the report of the messenger of the court on the service
he makes in the performance of his duties is deemed to be part of the
court’s record for the simple reason that the same conflicts with what
our rule provides. As already stated, there are three ways by which
proof of service may be given, the first one being the written
admission of the party served. Note that the affidavit of the party
serving only comes next, which indicates that said affidavit does not
necessarily have to be the best evidence or be given more weight and
credit. Of course, there may be cases where both proofs may conflict,
as in the present, in which case it becomes the duty of the court to
determine upon the facts and circumstances obtaining which should be
believed. The present is one of such cases, and when the matter was
brought to the attention of the Court of Appeals (First Division) it
readily acted thereon taking into account the evidence on hand. In our
opinion, respondent justices correctly interpreted our rule and
properly denied the petition for nullification of the entry of judgment.

It
is true that counsel for petitioner claims that the delivery receipt
signed by counsel for respondent Soriente cannot prevail over the
report of the messenger of the court because said delivery receipt
appears irregular and postdated, but such claim was not upheld by
respondent justices because they found that the delivery receipt
appeared clean on its face. They did not find any suspicious
circumstance that may justify its rejection. And with regard to the
allegation of the court’s messenger Benjamin Agustin in his affidavit
that the delivery receipt was postdated the most we can say is that
such allegation was not given credence by respondent justices because
said messenger did not report the matter, if true, to the clerk of
court until almost two months after the service he has made when he
subscribed to the affidavit wherein he mentioned the question of
postdating for the first time. Verily, it is for this reason that the
clerk of court made the entry of judgment based upon the delivery
receipt as he did not then have any knowledge of the postdating now
claimed by messenger Agustin.

The case of De los Angeles, et
al. vs. Hon. Sotero Caba- hug, et ah, 106 Phil., 839; 57 Off. Gaz.,
[12] 2141, invoked by counsel for petitioner is not in point, for the
facts therein involved are not analogous or similar to those involved
in the instant case. In the De los Angeles case, there was proof that
the delivery receipt was tampered, or was dated under suspicious
circumstances, and so the court had to rely on the report submitted by
the messenger who made the service. No such irregularity appears in
this case. On the contrary, respondent justices found that the delivery
receipt appears clean on its face. Hence it is entitled to full faith
and credit. In the circumstances, we find no reason for disturbing the
ruling made by respondent justices on the incident in question.

Wherefore, petition is dismissed, without costs.

Bengzon, C. J., Padilla, Labrador, Concepcion, Reyes, J. B. L., Barrera, Paredes, and Dizon, JJ., concur.