VICENTER ROULLO, PLAINTIFF-APPELLANT, VS. MARGARITO LUMAYNO, DEFENDANT-APPELLEE.

This appeal involves the application of Rule 27, sec 8 of the Rules of Court
which provides:

“x x x 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,”

Rendered after a trial on the merits and dated April 23, 1956, the decision
of the Negros Occidental court of first instance in the above entitled case
required defendant to deliver unto plaintiff the total sum of P1,960.00 plus
interest and to pay costs.

On June 22, 1956, plaintiff filed a motion for reconsideration discussing at
length certain questions fact and claiming for additional damages against
defendant. The latter objected to the motion, partly on the ground that the
decision had become final, inasmuch as the said motion had been submitted beyond
the 30-day period fixed by the Rules. And on that very ground, the judge denied
the motion by his order of July 2, 1956. Having failed on a move to reconsider,
plaintiff appealed to this Court, on the question his said motion for
reconsideration of June 22, 1956, had been submitted in due time.

It was belated, contends the defendant, because copy of the decision having
been sent April 27, 1956^[1] registered mail
to plaintiff’s counsel, “the service of said decision was completed (under Rule
27, sec. 8) 5 days after the first notice or about May 3, and from May 3 to June
22 when the motion to reconsider was filed, more than 30 days had elapsed.

Apparently, the court below approved defendant’s computation, and threw out
the motion to reconsider in [the aforesaid order of July 2, 1956.

Nevertheless plaintiff submitted to the Court the ‘postmaster’s statement to
the effect that the registered mail addressed to him had actually been
received by him on May 24, 1956. And on the basis of such statement, he asked
the court to declare his motion to have bean timely inasmuch as less than thirty
days had passed from May 24 to June 22, He argued that his time to move should
“not be counted from May 3, 1956, (nor from any other day before May 24) because
there was no allegation nor showing that his counsel had received “the first
notice from the postmaster” as contemplated in Rule 7, sec. 3 above quoted. His
request was denied.

According to the first part of the above Rule, the time within which
plaintiff had to move for reconsideration began from May 24, 1956, when his
counsel received the registered mail. The second part about
failure-to-claim-within-five-days is not to be applied, because there is no
proof, nor allegation that a first notice was given to him by the postmaster.
The defendant seemed to have acted on the idea that the sending of the letter on
April 27, 1956, constituted the first notice within the meaning of Rule 27, sec.
3. Here is what he represented to the court:

“x x x Consequently if the decision was mailed to the counsel for plaintiff
on April 26, 1956, the service of said decision was complete under Rule 27, sec.
8 (5) days after the first notice on or about May 3, 1956. The (30) days period
for decision to be final shall be computed as of May 3, 1956, and said motion
for reconsideration was filed on June 22, 1956 beyond the period provided by the
Rules of Court.”

Observe that no statement may be found therein that the first notice was
given by the postmaster. It can not be implied that the first notice was given
on May 3, 1956, because according to the above, May 3 was the last day of the
five-day period. Consequently, the above must be interpreted to mean that in the
opinion of defendant the “first, notice” took place on April 27^[2] when the
copy of decision was deposited in the mail.

Indeed, notwithstanding the fact that plaintiff insisted in the court below,
and before this covrt on appeal, on such lack of notice by the postmaster, we
find neither in the court’s orders, not in defendant’s pleadings and brief any
statement as to the date when plaintiff’s counsel was notified by the postmaster
to get the registered mail addressed to him.

The form of such notice(3) written on a card about 5″ x 3″ reads like
this:

Post Office of

BUREAU OF POSTS PHILIPPINES

Form 1525
Post Mark of

OFFICIAL MAIL REGISTRY NOTICE

Delivery
Office

M

Present this notice at this Office and receipt for ____registered
letters/parcels addressed to you numbered as follows:

In the absence of
such notice by the postmaster, the plaintiff is deemed to have received copy of
the decision only upon actual receipt thereof, (May 24).

At the risk of being repetitious, we should explain: The plaintiff proved he
actually received on May 24, the copy of the decision sent by registered mail;
according to the first part of above Rule 27, his time to move for new trial or
reconsideration began on May 24; as the defendant contended that plaintiff’s
time began earlier, i, e., at the expiration of five days after first notice by
the postmaster, it was his duty to prove the date when such first notice had
been given. In default of such proof, May 24 must be deemed the starting point.
From May 24 to June 22 less than thirty days had elapsed; so on June 22 the
decision had not yet become final.

And the court below still had jurisdiction to act upon plaintiff’s motion for
reconsideration on the merits. Consequently, its order of July 2, 1956, is
reversed, and the record remanded for further proceedings. Costs against
appellee.

Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista
Angelo, Labrador, Concepcion, Reyes, J.B.L., Endencia, Felix, JJ.,
concur.

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^[1] Appellee’s brief p. 4.

^[2] Page 4 defendant’s brief.