G.R. No. L-26365. April 30, 1970
ROSA S. FOJAS AND THE HEIRS OF JOSE A. FOJAS, PETITIONERS, VS. ANACLETO NAVARRO, RESPONDENTS.
TEEHANKEE, J.:
Appeal from resolutions of the Court of Appeals setting aside its
original decision affirming the lower court’s judgment and ordering the remand
of the case to the trial court for further proceedings.
The case originated on April
7, 1959, with the institution by petitioners as plaintiffs of an
action in the Court of First Instance of Rizal, Pasay City Branch, against private respondent as defendant
for recovery of possession of a parcel of land with damages.[1]
On July 20, 1959, the date
scheduled for trial with due notice to the, parties, respondent-defendant and
his counsel failed to appear and petitioners plaintiffs presented their
evidence ex–parte.
The trial court thereafter rendered its decision on August 7, 1959, with the following dispositive portion:
“WHEREFORE, the defendant ANACLETO NAVARRO is hereby ordered to
remove the stone wail and ‘chicken-cyclone’ wire fence, from Lot No. 3 in
question, and to pay plaintiffs the sum of SEVEN HUNDRED (P700. 00) PESOS, as
attorney’s fees, and the costs.”
Respondent-defendant failed to perfect an appeal from the said
decision and instead filed on September
10, 1959, a motion for relief from judgment. His counsel, Atty. Francisco Ventura, alleged
that he had mistakenly noted in his diary the date of trial to be July 22, 1959
instead of July 20, 1959, and that he realized his mistake in noting the date
of hearing only when he and respondent appeared in court on the later date for
the trial and were informed that it had been held two days before as
scheduled. On January 23, 1960, the trial court denied said
motion for lack of merit. His motion for
reconsideration of such order having been likewise denied, respondent-defendant
perfected an appeal to the Court of Appeals with the lone assignment of error
that the trial court had erred in denying his motion for relief from judgment.
On July 15, 1965,
the Court of Appeals, through its then Presiding Justice Conrado
Sanchez, promulgated its decision finding no merit in the appeal thus:
“The lone error assigned in appellant’s brief squarely
presents the issues as to whether or not the trial court acted within the law
in denying the motions for relief from judgment.
“For a motion of this nature to prosper, movant
must under oath: First, show fraud, accident, mistake or excusable negligence,
and second, state facts consisting his good and substantial defense. Section 3, Rule 38, Rules of Court. It is in this context that we now examine
appellant’s position.
‘Appellant alleges mistake in having annotated in his diary the
date of trial to be July 22, 1959,
instead of July 20, 1959. Is this sufficient?
“The affidavit in support of the motion states that on July 22, 1959, defendant and his
counsel appeared in court; that they were informed by the court that the trial
was held on July 20; that counsel consulted his diary and discovered the
mistake; that he showed that mistake to the trial judge. The circumstances surrounding this alleged
negligence remain unconvincing. The
first legal step by defendant to relieve himself from the effects of that
decision was taken on September 10,
1959. As early as July 22, 1959, both defendant and
counsel knew that the trial proceeded as scheduled. Theirs was the duty to move the Court
promptly thereafter to reopen the case to afford them an opportunity to test
plaintiffs’ evidence and submit their own.
They did not. Defendant received
notice of the decision on August 11,
1959. And yet, he waited
until September 10, 1959 to
move for relief. While this move was
still within the 60-day reglementary period, the
delay in filing the same smacks of laches and cast a
serious doubt upon the veracity of defendant’s claim of excusable
negligence. In these circumstances, if
we are to grant relief we would be establishing a precedent which would open
virtually the floodgates to unmeritorious averments of excusable
negligence. x x
x.
“But, on the assumption that there was excusable negligence,
would the cry of fraud justify reopening of the case? Defendant’s averment is
that the plaintiffs knowingly obtained title to the property without notifying
appellant who claims to be the owner thereof.
Upon two grounds, this claim does not merit consideration:
“1. The land
registration proceedings under which plaintiffs obtained title to the property
is a proceeding in rem. The notice thereof published in the Official
Gazette binds the whole world. It
matters not, as defendant avers, that he did not receive personal notice of the
application Personal notice is not necessary to give the court
jurisdiction. Notice in the Official
Gazette ‘To All Whom It May Concern’ implies that the whole world are made
parties defendant; unknown claims are foreclosed,thereby. x x x
“2. The decree
of registration over the land in question was issued in plaintiffs’ favor on
26th of April, 1955. Plaintiffs’ Torrens
title No. 1 covering this land was issued by the Commissioner of Land
Registration on July 11, 1955. Defendant’s answer to the complaint was filed
as aforesaid on April 29, 1959. The one-year period set forth in Section 38
of the Torrens Act had, by that time already elapsed. The title had become indefeasible, no longer
open to collateral attack upon ground of extrinsic fraud. x x x” (Decision of the Court of Appeals, July 15, 1965,
pp. 4-7, Annex ‘A’ of the Petition for Certiorari).
Accordingly, the Court of Appeals affirmed the decision appealed
from with costs against the respondent-appellant.
Copy of this decision was sent by registered mail No. 87 on July
19, 1965 addressed to respondent’s attorney of record, Francisco Ventura, at
his address of record, 1589 Mayhaligue, The present
case before us arose at this juncture, for thereafter respondent’s counsel of
record from its inception, Atty. Ventura, just faded from the scene and was no
longer heard from. Without Atty.
Ventura having withdrawn as respondent’s counsel of record, Messrs. Crisologo and Encarnacion of 304
Alliance Building, Manila filed on August 25, 1965, their appearance as
counsel for respondent-appellant in the appellate court. They subsequently filed a
“Manifestation and Motion” praying that they be furnished with a copy
of the appellate court’s decision which was opposed by petitioners on the
ground that respondent’s counsel of record, Atty. Ventura, had already been
validly served with copy of said decision.
The appellate court in its resolution of September 9, 1965,[2]
however, granted the “Manifestation and Motion” of Attys. Crisologo and Encarnacion, who
were served with copy of the decision on November 18, 1965.
Said counsel then filed on December
6, 1965 a motion for reconsideration of the decision which was duly
opposed by petitioners.
The original division of the court that rendered the decision was
apparently split 2 to 1 for denial of the motion for reconsideration, and the ponente, Justice Sancheza
was thereafter promoted as a member of this Court. His successor, then Presiding Justice Fred
Ruiz Castro, now a distinguished member of this Court, issued on January 24,
1966, a special order appointing three associate justices to sit with the two
remaining justicesin a Special Division of Five[3]
to decide the said motion for reconsideration.
On February 25, 1966, the appellate court’s Special Division of
Five issued its split resolution (3 to 2) granting the motion for
reconsideration, setting aside the decision of July 15, 1965 as well as the appealed
decision of the trial court, and remanding the case to the trial court for
further proceedings.
Petitioners in turn filed on March 18, 1966 their motion for reconsideration of the
appellate court’s resolution of February
25, 1966 on the ground, among others, that the original decision
had already become final and executory in August,
1965 before Attys. Crisologo and Encarnacion
filed their motion for reconsideration of September 6, 1965.
On July 11, 1966,
the appellate court’s Special Division of Five, by the same split vote, issued
its resolution denying petitioners’ motion for reconsideration, rejecting the
grounds adduced by them in support thereof as follows:
“True it is that a copy of the decision was posted by registered mail on July 19, 1965, to be sent to Atty.
Francisco Ventura at his registered address.
But the latter was returned unclaimed and there is nothing in the record
to show when the notice to Atty. Francisco Ventura to receive said letter was
sent to him by the Postmaster of Manila. x x
“1. There is no
proof when the registry notice addressed to the original defendant-appellant’s
counsel, Atty. Francisco Ventura, advising him to receive the letter
containing the decision of July 15, 1965, was sent to him by the Postmaster of Manila. It is not enough that a letter be sent by
registered mail. What is important is
that the addressee be notified and advised to receive it in order that service
may be deemed effective after the lapse of five days from the sending of the
first notice. Even granting that a
notice was sent to Atty. Francisco Ventura, it must be shown that he received
it, or someone else of sufficient discretion did so for him. If the addressee is not notified as above
indicated it is not just that he be considered as having been served with
notice upon the expiration of five days from the sending of the first notice.
“2. When, on August 25, 1965, Attys. Floro Crisologo and Ramon Encarnacion,
Jr. entered their appearance for the defendant-appellant, presumably with the
consent of the latter, Atty. Francisco Ventura was for good cause replaced by
his client because of failure to contact him.
“(3) When this
Court by resolution of September 9, 1965, ordered that copy f the decision of
July 15, 1965, be served upon the new counsel, Attys. Floro
Crisologo and Ramon Encarnacion,
Jr., notwithstanding plaintiffs-appellees‘
opposition, that action was practically an order approving the change of
attorney for defendant-appellant. This
was done in the interest of justice so as not to permit the neglect,
inattention or irresponsible actions of an attorney to prejudice his client,
provided the latter is not chargeable with neglect in protecting his
rights. x x x“
Petitioners in the meantime had requested the appellate court’s clerk
to request information from the Manila Postmaster as to the service of the
decision by registry mail to respondent’s counsel of record, and the Manila
Postmaster had on July 30, 1966 replied to the clerk’s inquiry that “(I)n
connection with your letter under date of July 11, 1966 concerning your registered
letter No. 87 posted at Manila on July 20, 1965 and addressed to Atty.
Francisco Ventura, Manila, please be informed that according to our records,
said registered letter was returned to you as sender and was receipted for by
Mr. G. Reyes on August 25, 1965, because it was not called for by the
addressee despite the three notices sent to him on July 20, 30 and August 3,
1965.”
Petitioners on August 1,
1966 further filed a second motion for reconsideration with motion
for leave to file the same, averring that with the postmaster’s certification,
it was clear that three notices of the registered decision had been duly sent
to Atty. Ventura. The second motion was
admitted but denied by the appellate court in its resolution of August 11, 1966 by the same
split-vote.
Complaining that the appellate court thus decided a question of
substance in a way not in accord with law and with our applicable decisions,
petitioners sought a review. We gave due
course. Respondent having failed to file
his brief, the case was submitted for decision without respondent’s brief. We now rule for petitioners.
1. The key issue is whether or not service by registered mail of
the appellate court’s decision upon respondent’s counsel of record should be
deemed completed and effected upon the addressee’s failure to claim his mail on
the fifth day after the first notice of the postmaster in accordance with the
provisions of Rule 13, Section 8 of the Rules of Court which read:
“Section 8. Completeness of Service — Personal service
is complete upon actual delivery.
Service by ordinary mail is complete upon the expiration of five (5)
days after mailing, unless the court otherwise provides. Service by registered mail is completed upon
actual receipt by the addressee; but if he fails to claim his mail from the
post office within five (5) days from the date of first notice of the
postmaster, service shall take effect at the expiration of such time.”
There is no question that copy of the appellate court’s decision
of July 15, 1965, in accordance with the Manila postmaster’s certification, was
posted at Manila by registered mail on July 19, 1965 addressed to Atty.
Ventura, respondent’s counsel of record at his address of record, and that the
same was not called for by the addressee despite three notices sent to him on
July 20, 30 and August 3, 1965, so that it was returned to the appellate court
as sender on August-25, 1965. Under the
above-quoted rule, therefore, service of the decision was deemed effected on
Atty. Ventura on July 26, 1965, i. e. , at the
expiration of the fifth day after the postmaster’s first notice to him on July
20, 1965, and the decision became final 15 days thereafter on August 10, 1965,
in accordance with Rule 51, Sec. 10.[4]
The appellate court’s decision of July 15, 1965 had thus become final on August 10, 1965, with service thereof
having been effected in law on respondent’s counsel of record in accordance
with a long line of our applicable decisions.
In the latest case of Babala vs.
Court of Appeals,[5]
the Court upheld the appellate court’s decision throwing out therein
petitioner’s appeal for failure of his counsel to claim the registered notice
from the appellate court requiring him to pay the docket fees and rejecting
his counsel’s claim that the postmaster’s notices were not turned over to him
by the recipient thereof, and reiterated the rule long familiar to
practitioners that “it is the duty of counsel to adopt and maintain a
system that efficiently takes into account all court notices sent to him.”[6]
In Pielago vs. Generosa,[7]
the Court applying the former rule, Rule 27, section 8 of the old Rules of
Court (now Rule 13, sec. 8), threw out therein appellant’s contention that
failure to claim the registered notice merely amounted to an excusable neglect
which would warrant the reopening of the case, emphasizing that:
“It is such kind of neglect or inaction that gave life to the
provision that service by registered mail is complete and effective, if the addressee
fails to claim his mail from the post office within five days from the date of
first notice of the postmaster, at the expiration of such time.
The Court, in Grospe vs.
Court of Appeals,[8]
in further applying the rule as to which should prevail between the date of
notice and the date of subsequent actual receipt, ruled that when the addressee
fails to claim his mail from the Post Office within five days from the first
notice of the postmaster, the service shall take effect at the expiration of
such time, regardless of whether the addressee never claimed it or received it
afterwards:
“Uera failed to claim his mail within
five days from first notice (November 28, 1955); therefore, he is deemed to
have received it on December 3, 1955, no matter whether he never claimed it or
received it afterwards (as in this case, on December 20, 1955). As we have held in several cases, ‘if the
addressee is so negligent that he fails to claim his mail from the post office
within five days after the first notice by the postmaster, then the service is
deemed complete and effective at the expiration of such time.”[9]
Where the addressee justly shows a valid reason for setting aside
the rule’s presumption that he should have received the mail within the
five-day period from the postmaster’s first notice, the Court has shunned a
rigid application that would work an injustice.[10]
But such is not the case here.
2. The corollary issue is whether or not the subsequent
“Appearance” in the appellate court on August 25, 1965 of Attys. Crisologo and Encarnacion as
counsel for respondent (with service by mail of a copy thereof to petitioners’
counsel but without service to respondent’s counsel of record, Atty. Ventura,
nor to respondent himself; and which “Appearance” does not contain the
conformity either of respondent or of Atty. Ventura; and with no notice of
withdrawal ever having been filed by Atty. Ventura), could serve as a valid
substitution of attorneys for respondent.
Our rule and jurisprudence on substitution of attorneys are clear that
unless the procedure prescribed by Rule 138, Section 26[11]
is complied with, the attorney whose appearance is on record before the filing
of the application for substitution should be regarded as the attorney entitled
to be notified of all notices and pleadings and responsible for the conduct of
the case. As early as the old case of U.
S. vs. Borromeo[12]
and restated in Ramos vs. Potenciano[13]
the Court has consistently held that “x x x in order that there may be substitution of attorneys in a
given case, there must be (1) a written application for substitution; (2) a
written consent of the client; and) a written consent of the attorney to be
substituted. And in case the consent of
the attorney to be substituted cannot be obtained, there must at least be proof
that notice of the motion for substitution has been served upon him in the
manner prescribed by our rules. Unless
this procedure is followed the attorney who appears to be on record before the
filing of the application for substitution should be regarded as the attorney
entitled to be notified of all notices and pleadings.”
Under the circumstances of record, there was clearly no valid
substitution of attorneys for respondent.
The mere unexplained disappearance from the scene and total silence of
the counsel of record, Atty. Ventura, could not serve to set aside the service
in law upon him of the appellate court’s decision of July 15, 1965, much less
to allow respondent to produce almost four months time — from August 10, 1965
when the decision became final upon completion of legal service by registered
mail on Atty. Ventura to December 6, 1965, when Attys. Crisologo
and Encarnacion filed their motion for
reconsideration — and obviously attempt Stretch thereby the 15-day period to
seek a reconsideration of the decision notwithstanding its finality.
In the old case of Aznar vs.
Norris,[14]
the Court has held that the mere appearance of a second attorney on behalf of a
litigant does not authorize a presumption that the authority of the first
attorney of record has been withdrawn.
In Wack-Wack Golf and Country Club,
Inc. vs. Court of Appeals,[15]
the Court pointed out that even if the counsel-law firm of record has arranged
with its client for its impending relief from the case and its substitution by new
counsel, “it is under obligation to protect the client’s interest (which
includes appearance at the hearing) until its final release from the
professional relationship with such client.
For its part, the court could recognize no other representation on
behalf of the client except such counsel of record until a formal substitution
of attorney is effected. Thus, any
agreement or arrangement such counsel of record and its client may reach
regarding the presentation of the client’s case in court is purely their
private concern. Proceedings in court
cannot be made to depend on them. The
lack of coordination or understanding between the two law firms in the instant
case cannot be considered as a legal excuse or falling within the ambit of
excusable negligence to justify the granting of relief from the order declaring
the client in default or, as in this case, from a decision entered after
presentation of evidence in his absence.”[16]
3. In the absence of any credible representation or manifestation
on the record on the part of respondent nor of his counsel of record, it was
patent error for the appellate court to rule in its second resolution of July
11, 1966 that with the appearance on August 25, 1965 of Attys. Crisologo and Encarnacion for
respondent, “presumably with the consent of the (respondent)”,
“Atty. Francisco Ventura was for good cause replaced by his client because
of failure to contact him.” Their absolute silence on this score repels
such a presumption. No explanation
whatever is made by respondent, as to when he first learned of the decision or
whether he sought out his attorney of record and in fact failed to contact him,
as unjustifiably presumed by the appellate court, or if he did contact him,
what explanation in turn was given to him by the latter. Likewise, Atty. Ventura, whom the appellate
court took note of as a busy practitioner and pre-bar reviewer in various
Manila law colleges, has not essayed to give any explanation whatever for his
failure to claim the registered copy of the decision, despite the three notices
sent to him by the Manila postmaster, but simply vanished from the case.
Petitioners indicate that respondent had made some unsubstantiated representation
that Atty. Ventura had moved his office to a new address, but it is settled law
that counsel must notify the Court of any change of address[17]
and that clients are bound by the errors and neglect of their counsel.[18]
4. The appellate court majority’s reason that “(E)ven granting that a notice was sent to Atty. Francisco Ventura,
it must be shown that he received it, or someone else of sufficient discretion
did so for him” was likewise grave error.
This is contrary to the legal presumption “that a letter duly
directed and mailed was received in the regular course of the mail”[19]
which, under the Rules, is “satisfactory, if uncontradicted.”
We have here the uncontradicted certification
of the Manila postmaster that three notices of the
registered decision were sent to Atty. Ventura, but he did not call for
it. Atty. Ventura as the addressee is
the only person who can dispute competently the postmaster’s certification that
he was sent the said notices, but he chose to keep silent, and to throw
unrealistically on petitioners the burden of still showing that he did receive
said notices would be against all considerations of public policy and sound
administration of justice. Furthermore,
even if Atty. Ventura had denied receiving the three notices — and in fact, he
has not so denied –the Court has held that “(B)etween
the denial of a party and the assertion of an official whose duty it is to send
notices, the choice should not be difficult to make,”[20]
reaffirming the criterion established in earlier cases that such denials cannot
prevail over the positive statement of the duly authorized postal official
which “is fortified by the legal presumption that official duty was
regularly performed.”[21]
5. The end result is that the appellate court’s decision of July 15, 1965 is declared to have
become final on August 10, 1965,
pursuant to the provisions of Rule 13, Section 8. In view thereof, the resolution of February
25, 1966 setting aside said decision and remanding the case to the trial court
for further proceedings, as well as the subsequent resolutions of July 11, 1966
and August 11, 1966 “practically approving” the substitution of Atty.
Ventura by new counsel, could produce no legal effect, because they were beyond
the jurisdiction and authority of the appellate court. Because of the finality of the decision,
there was no longer any pending case in the appellate court wherein
respondent’s counsel of record would yet be substituted by new counsel.
ACCORDINGLY, the writ of certiorari is hereby
granted. The appellate court’s decision
of July 15, 1965 in favor
of petitioner is declared to have become final on August 10, 1965 and its subsequent resolutions of
February 25, 1966, July 11, 1966 and August 11, 1966 are annulled and set
aside. With costs against private
respondent.
SO ORDERED.
Concepcion, C.J., Reyes, JBL, Dizon, Makalintal, Zaldivar, Barredo, and Villamor, JJ., concur.
Ruiz Castro and Fernando,
JJ., in the result.
[1]
Civil Case No. 1944-P of the Court of First Instance of Rizal,
Pasay City
Branch.
[2]
Court of Appeals’ Resolution of July
11, 1966, page 4, Rollo, p. 46.
[3] Justices
Gatmaitan, Yatco and Perez,
with Justices Esguerra and Enriquez.
[4]
“Sec. 10. Entry of Judgment. — The judgment shall be entered upon
the expiration of fifteen (15) days after service of notice thereof upon the
parties. x x “
[5]
L-23065, February 16, 1970.
[6] See
also Baring vs. Cabahug, L-23229, July 20, 1967, 20 SCRA 696, 699; Colcol vs. Philippine Bank of Commerce, L-21137, November 7, 1967, 21 SCRA 890, 892;
Enriquez vs. Bautista, 79 Phil. 220 (1947); Islas
vs. Platon, 47 Phil. 162 (1924).
[7] 73
Phil. 654 (1942) quoted in Martinez
vs. Martinez, 90 Phil. 697
(1952).
[8]
106 Phil. 1144 (1959).
[9]
Quoting from Pielago vs. Generosa,
supra, see also Viacrusis vs. Estenzo, L-18457, June
30, 1962, 5 SCRA 560-564.
[10] Cabuang vs. Bello,
105 Phil. 1135 (1959).
[11]
“Section 26. Change of attorneys. — An attorney may retire at any
time from any action or special proceeding, by the written consent of his
client filed in court. He may also retire at any time from an action or special
proceeding, without the consent of his client, should the court, on notice to
the client and attorney, and on hearing, determine that he ought to be allowed
to retire. In case of substitution, the name of the attorney newly employed
shall, be entered on the docket of the court in place of the former one, and
written notice of the change shall be given to the adverse party. x x x “
[12]
20 Phil. 189 (1911).
[13]
Ramos vs. Potenciano, L-19436, Nov. 29, 1963, 9 SCRA 589;
See Baquiren vs. Court of Appeals, L-14551, 2
SCRA 583; Rodriguez vs. Fernandez, 54. O. G., 1802; Olivares vs.
Leola, 97 Phil. 253 (1955).
[14]
3 Phil. 636 (1904).
[15]
106 Phil, 501 (1959).
[16]
Emphasis supplied.
[17] Juane vs. Garcia, L-21115, Oct. 29, 1968, 25 SCRA 801.
[18] Ocampo vs. Caluag,
L-21113, Apr. 27, 1967, 19
SCRA 971 and cases cited.
[19]
Rule 131, Sec. 5(m).
[20] Grafil vs. Feliciano, L-27156, June 30, 1967, 20 SCRA 616.
[21]
Enriquez vs. Bautista, 79 Phil. 220, 222 (1947); Islas
vs. Platon, 47 Phil. 162 (1924).