MARIA ELLI, ET AL., PLAINTIFFS AND APPELLEES VS. JUAN DITAN, ET AL., DEFENDANTS AND APPELLANTS.

In a Forcible Entry case instituted by Juan Elli and Maria Elli, in
the Justice of the Peace Court of Bacon, Sorsogon, against Juan Ditan
and Marcial Bronola, judgment was rendered, after due hearing, the
dispositive portion of which reads—

“In view of the foregoing, the defendant is ordered
to return the land and restore the plaintiffs in their original
possession of the land; pay the plaintiffs P200.00 as damages and
P100.00 as attorney’s fees and pay the costs of this suit”.

Plaintiffs and defendants were furnished with copies of the above judgment on July 17, 1959.

On July 28, 1959, the defendants, thru Atty. Fernando Gerona, Jr.,
“Attorney for defendants-appellants”, filed with the said Justice of
the Peace Court, a Notice of Appeal. The record of the case was
received by the CFI on August 6, same year. On August 11, 1959, a
Notice of Appealed Case was sent by the Clerk, Court of First
Instance,, to the parties, which were received on August 15, and 17, by
Maria Elli and Juan Ditan, respectively and on September 18, 1959, by
Marcial Bronola. In spite of receipt by the parties, the defendants
failed to file their Answer to the Complaint, which was deemed
reproduced. Under date of December 23, 1959, the plaintiffs, thru
counsel, presented a Motion to Declare Defendants in Default and to set
date for presentation of Evidence. The CFI declared defendants in
default on January 7, 1960; On March 10, 1960, after hearing wherein
the plaintiffs presented oral as well as documentary evidence, the CFI
rendered the following judgment—

“WHEREFORE, the Court hereby sentences the
defendants to vacate the premises and return the possession thereof to
the plaintiffs. They are hereby sentenced jointly and severally to pay
the plaintiffs the sum of P480.00 as damages. The Court cannot grant
the plaintiffs a greater amount than this, because the defendants are
defaulted. The defendants shall pay the costs of this action.”

Copies of the above decision were received by the defendants, on
April 5, 1960. On April 20, 1960, defendants thru counsel, presented a
pleading captioned “Motion to Reconsider Decision dated March 10,
1960”, where, in the main, it was contended that the reason for the
failure to file Answer was due to lack of notice to counsel. The
defendants claim that inasmuch as they were represented by counsel,
notice should have been sent to said counsel, and there being no notice
to him, there is no service in law and, therefore, they can not be in
default. On May 6, 1960, the court a quo handed down an Order
denying the motion, stating that there was no need to send the notice
to counsel, since in appeals from the Justice of the Peace Court no
summons is necessary in order that defendant may have to file Answer,
and that the notice of receipt of appealed case may be either sent to
the attorney or the party. This Order is now before Us on appeal,
defendants claiming that it was error on the part of the lower court to
consider that notice to them was sufficient.

The provisions of the rules pertinent to the issues raised by the
parties are Sec. 2, Rule 27, and Sec. 7, Rule 40, which are reproduced
below:—

“SEC. 2. 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 of judgment or similar papers
shall be filed with the court, and served upon the parties affected
thereby. If any 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
the attorney appears for several parties, he shall only be entitled to
one copy of any paper served upon him by the opposite side,” (Rule 27).

“SEC.
7. Upon the docketing of the cause under appeal, the complaint filed in
the Justice of the Peace or municipal court shall be considered
reproduced in the Court of First Instance and it shall be the duty of
the Clerk of the Court to notify the parties of that fact by registered
mail, and the period for making an answer shall begin with the date of
the receipt of such notice by the defendant.” (Rule 40).

Under the above provisions, therefore, it would seem quite clear
that service, notice, and the like, should be made on the party, if not
represented by counsel. The moment a party appears by counsel, notice
and other processes should be made upon said counsel, service upon the
parties himself not being considered service in law. It is true that
under Sec. 7, Rule 40, the Rule requires that notification be made on
the parties by registered mail. The word parties as used in
said provision, should not, however, be interpreted to mean the parties
themselves. The word “parties” is used because, more often than not, in
the , Justice of the Peace Court, the parties are not represented by a
lawyer. A party can appear in his own behalf, and notice to him would
be sufficient. The moment an attorney appears for any party, notice
should be given to the former. 44 * * * Where a party appears by
attorney in an action or proceeding in a court of record all notices
thereafter required to be given in the action or proceeding 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” (Palad vs.
Cui, et al. 28 Phil. 44). In legal contemplation, therefore, and under
the facts of the present case, there was no legal service of the
notice, and the defendants could not be in default.

The Order appealed from, is hereby set aside. The case is remanded
for further and appropriate proceedings in the premises. No costs.

Bengzon, C. J., Padlla, Bautista Angelo, Labrador, Concepcion, Dizon, Regala and Makalintal, JJ., concur.
Barrera, J., concurs in the result.