ARTURO F.W. TANTOCO, PETITIONER, VS. THE HONORABLE COURT OF APPEALS, JUDGE HILARION JARENCIO, BR. XXIII, CFI, MANILA, THE GENERAL MILK (PHIL.), INC., AND THE SHERIFF, MALOLOS, B…

Appeal by certiorari taken by Arturo F.W. Tantoco — hereinafter referred to as petitioner — from
the resolution of the Court of Appeals in CA-G.R. No. 41488, denying his
petition for leave to file an amended petition after the original petition for mandamus,
dated June 26, 1968, had been dismissed for not being sufficient in form and
substance and after the motion for reconsideration of the dismissal had been
denied, on the following grounds:

“1.  The petition for relief from the judgment of April 18, 1966, was filed after the
lapse of 60 days from the time the defendant in Civil Case 63494 of the Court
of First Instance of Manila, Branch XXIII, now petitioner,
learned of said judgment sometime in September, 1966 (See pp. 37 and 41, rollo).  The said
petition for relief was filed on January
29, 1967, or more than one hundred and twenty (120) days
thereafter.

“2.  The record on appeal shows that although the
notice of appeal was filed within the 30-day reglamentary
period and the time for filing the record on appeal was extended beyond the
said period, the appeal bond was not filed simultaneously with the notice of
appeal but eleven (11) days later, or on April 15, 1968, which was the 35th day
after notice by the petitioner of the order denying the petition for
relief.  The notice of appeal from said
order of denial was filed on April 4,
1968, or on the 24th day after receipt of notice of said order, while
the appeal bond was filed on April 15,
1968.  As the last day for
filing the appeal bond was April 10,
1968, the said bond was filed five (5) days late.  The appeal was not, therefore, perfected in
due time and the disapproval thereof by the trial court was
perfectly legal” (pp. 178-179, rec.).

The record shows that in Civil Case No. 63494 of the Court of
First Instance of Manila, entitled “General Milk Co. (Phil.), Inc.,
plaintiff, versus Arturo Tantoco, doing business
under the name of ‘Maria Belen Store’, defendant”, plaintiff therein –
hereinafter referred to as private respondent – filed on December 3, 1965 a
complaint against petitioner to recover the sum of P80,933.00, representing the
value of milk products obtained on credit by the latter from the former on
various dates, plus 25% of the said amount, which is equivalent to P20,233.25,
as attorney’s fees.

As petitioner failed to file his answer within the period
prescribed by the Rules of Court, on March
10, 1966, the trial court, at private respondent’s behest, declared
the petitioner in default and directed the private respondent to present its
evidence ex parte On March 15, 1966.

On April 18, 1966, on private respondent’s evidence, the trial
court rendered judgment for the said respondent “ordering the defendant
Arturo Tantoco, doing business under the name of
‘Maria Belen Store’, to pay the respondent the amount of P80,933.00,
with interest at 12% per annum from October 14, 1965, the date of the letter of
demand, until fully paid, plus P1,500.00 for attorney’s fees and the
costs.”

On February 3, 1967,
petitioner filed a petition to vacate the order of default, the ex-parte judgment and the order of execution, claiming:

1.  That he learned for the
first time of the default judgment on September
19, 1966, when said judgment was being executed by the respondent
Sheriff of Malolos, Bulacan;

2.  That the trial court did
not acquire jurisdiction over his person since he was not properly served with
summons and processes of the court;

3.  That the proceedings
which gave rise to the default order and the default judgment, as well as the
order of execution issued thereafter, were all taken and entered against him
thru excusable negligence; and

4.  That he had a good and
meritorious defense, consisting of an exemption from liability for loss caused
by fortuitous event – fire.

On April 25, 1967,
petitioner filed his answer to the complaint.

On May 19, 1967,
the trial court ordered the parties to submit evidence on the question of
whether the summons and the judgment which were issued and rendered in the case
were properly served upon the petitioner. 
For this purpose, the trial court appointed a commissioner to receive
the evidence of the parties.

On February 27, 1968,
the trial court denied the petition for relief, and also rejected the answer
filed on April 25, 1967.  The pertinent portion of the order of denial
follows:

“x       x          x          x

“Francisco G. Santos, Deputy Provincial Sheriff of Bulacan, testified that he served the summons in this case
upon defendant Arturo Tantoco personally on January 28, 1966 at defendant’s store
in Malolos, Bulacan.

“On the other hand, defendant Arturo Tantoco
testified that he did not receive the summons in this case.  He said that on January 28, 1966, when the summons was allegedly served
upon him, he was in his fishpond.  He
further testified that the person upon whom the summons was served was his
22-year old son.  Abelardo
Tantoco, who signed his name on the original of the
summons and that said Abelardo
Tantoco was a mentally retarded person and not a
person qualified to receive summons for him.

“Dr. Carlos Vicente testified that he had examined Abelardo Tantoco sometime in
August, 1967 and after applying upon him the Wachsler
Belavue Intelligence Test he found out that the
patient was ‘in social remission and has inadequacies on his emotions; that the
behavior of Abelardo is that of an individual who
does not associate much and his intelligence quotient belongs to the borderline
mentality of a person between 7 and 10 years old’.

“Assuming that the summons in this case was received by Abelardo Tantoco, son of the
defendant Arturo Tantoco, the question to be
determined is whether said Abelardo Tantoco is a person of sufficient intelligence and
discretion to receive summons for his father, the defendant Arturo Tantoco.

“Defendant Arturo Tantoco
admitted that his son was 22 years old and has reached the sixth grade;
that his son helped in the store by placing goods inside the showcases
and do(ing) some errands such as buying things;
that once in a while his son signed his name to checks exchanged the cash
with agents who were delivering goods to his store and spends the proceeds that
on one occasion his son got P2,000.00 a pair of shoes
and gave money and suiting to his classmates and friends.

“Taking into account this testimony of the, defendant himself,
the Court believes that his son Abelardo Tantoco is not mentally incompetent.  The fact that his son could imitate
defendant’s signature with creditable similarity and be exchange it for cash
with agents dealing in defendant’s store and spending the proceeds thereof
shows a sufficient degree of intelligence and discretion.

“Dr. Carlos Vicente saw Abelardo
only three (3) times and had not treated him as a patient.  This doctor observed Abelardo
Tantoco at the behest of the defendant while the
petition for relief was already pending in this Court.  Drs. Bernabe
Mendoza and Juliana Flaviano who treated Abelardo Tantoco prior to May,
1967, and the certificate which they issued, were not presented in Court.

“Abelardo Tantoco was living with his father, the defendant, and
helping him in the store.  Apparently,
on January 28, 1966, when
the Sheriff served the summons at defendant’s atore, Abelardo Tantoco appeared to be
the most responsible person in the store otherwise the Sheriff would not
have served the summons upon him.  The
Sheriff had been a sheriff since 1960 and it can be assumed that he can
determine whether the person receiving the summons is of sufficient
intelligence and discretion to receive it.

“The Court notes that Abelardo Tantoco was not presented by the defendant as a witness
thus depriving the plaintiff of an opportunity to cross-examine him and test
his intelligence.  As a matter of
fact, on May 19, 1967
the Court verbally directed the attorney for the defendant to bring Abelardo Tantoco to the Court for
cross-examination by plaintiff’s counsel.

“The Court further notes that in the verified petition for
relief defendant Arturo Tantoco stated under oath
that the initial ‘OJ’ appearing in the summons was neither his nor that of his
wife.  It was only during the
presentation of the evidence that the said defendant tried to establish that
the signature appearing in the summons was that of his son, Abelardo
Tantoco, and not xxxxx.  Whether the Court accepts
the testimony of Deputy Provincial Sheriff.  Francisco G. Santos that he served summons
upon the defendant Arturo Tantoco, or the Court
accepts the claim of the defendant that the summons was received by his son Abelardo Tantoco, the Court
holds that the defendant was properly served with summons was, therefore, correctly
declared in default after said defendant failed to file his answer within
the reglamentary period.

“WHEREFORE, the defendant’s petition for relief is hereby
DENIED.  The answer submitted to the
Court on April 25, 1967 is rejected.  The
restraining order against the Sheriff of Bulacan
dated March 7, 1967 is
hereby set aside” (pp. 50-53, rec.; underscoring supplied).

On March 9, 1968, petitioner filed a motion for reconsideration
of the order of February 27, 1968, which motion, together with two others –
motion to dismiss dated March 6, 1968 and motion dated March 16, 1968 re
appearance of Abelardo Tantoco
– was denied for lack of merit by the trial court in its omnibus order dated
March 18, 1968.

On April 4, 1968,
petitioner filed his Notice of Appeal, and on the following day, April 5, 1968, he filed a motion for
extension of time and clarification of the 10-day period to appeal (p. 96,
rec.).

On April 8, 1968,
the trial court gave petitioner up to April
30, 1968 to file his record on appeal (p. 98, rec.).

On April 15, 1968,
petitioner filed a motion, dated March
8, 1968, for the approval of the record on appeal and appeal bond,
setting the same for hearing on April
23, 1968.

On April 30, 1968,
petitioner filed his appeal bond through the Towers Assurance Corporation (p.
236, rec.).

On May 24, 1968,
the petitioner received a copy of the order of the trial court dated May 20, 1968, disapproving his record
on appeal dated April 15, 1968,
on the following grounds:

“An examination of the Record on Appeal filed by the defendant
on April 15, 1968 and submitted for the approval of this Court on April 23,
1968 shows the following defects:

“(a) It does not contain a copy of the
Notice of Appeal;

“(b) It does not show the date when the defendant
received a copy of the decision of this Court sought to be appealed from;

“(c) It does not show the date when defendant filed
his motion for reconsideration;

“(d) It does not show the date when the defendant
received the order of the Court denying his motion for reconsideration;

“(e) It does not include the plaintiff’s motion to
declare defendant in default filed on February
14, 1966;

”(f)  It does not include the order of this Court
declaring defendant in default;

“(g) It does not show plaintiff’s action for a writ
of execution; and

“(h) It does not include the order of the Court
granting the writ of execution” (pp. 123-124, rec.).

On May 29, 1968,
the petitioner filed a motion for reconsideration based on compliance re
objections, as per order of May 20,
1968 received on May 24,
1968; and submission of amended record on appeal.

On June 10, 1968,
the petitioner received a copy of the order of the trial court dated June 4, 1968, disapproving
petitioner’s amended record on appeal, for the following reasons:

“(a) Most of its contents are carbon copies and not
originals.  Considering that the approved
record on appeal itself is transmitted to the appellate court and in effect is
the expediente itself insofar as the appeal is
concerned, it is not proper to transmit the amended Record on Appeal submitted
to the Court for approval by the defendant in its present form.  The entire record on appeal must be typed
anew and the original filed with the court for approval within the reglamentary period.

“(b) The date when attorney for the defendant
received a copy of the order of this Court dated February 27, 1968 (which is
the order sought to be appealed from) is March 1, 1968 (see page 272 of the expediente) and not March 5, 1968 as typed on page 55 of
the amended Record on Appeal” (p. 131, rec.).

Petitioner went to the Court of Appeals.  There he filed mandamus proceedings to
compel respondent Manila CFI Judge Hilarion Jarencio to give due course to his appeal (pp. 136-155,
rec.).  Respondent Court of Appeals, in
its resolution of July 13, 1968,
dismissed the petition for not being sufficient in form and substance, and for
petitioner’s failure to show in his petition as well as in his amended record
on appeal the date when he received the order of the trial court dated February 27, 1968.

Resolving petitioner’s motion for reconsideration of its
resolution dated July 13, 1968,
respondent Court of Appeals said:

“Upon consideration of the motion dated July 18, 1968, filed
by petitioner praying that the resolution of July 13, 1968 (which dismissed the
petition) be reconsidered; the Court RESOLVED TO DENY the motion for reconsideration.  If appellant received a copy of the order of
February 27, 1968, on March 1, 1968 (as he alleges in his motion for
reconsideration), and filed his notice of appeal on April 4, 1968, then his
appeal was not perfected on time for the 30-day period had elapsed when he
filed the notice of appeal.  The period
when the petition for certiorari was pending before the Supreme Court
cannot be deducted from the 30-day period. 
Certiorari is an independent action; it does not interrupt the
period to appeal in the main action x x x (p. 157, rec.).

Thereafter, on July 18,
1968, petitioner filed with respondent Court of Appeals a petition
for leave to file amended petition (pp. 158-161, rec.), attaching thereto his
amended petition bearing the same date. 
Respondent Court of Appeals denied his said petition as well as his
amended petition in its resolution dated July 26, 1968, on two grounds, namely:  (1) that the petition for relief was filed
out of time; and that the appeal of defendant from the order of the trial court
was not perfected on time and, hence, the disapproval thereof by the trial
court was perfectly legal.

Petitioner’s motion for reconsideration of the foregoing
resolution having been denied by the Court of Appeals in its resolution dated August 6, 1968, he now comes to this Court, assailing the actuations not
only of the Court of Appeals but also those of the court a quo,
as hereinabove pointed out.

1.  The first – and pivotal –
issue to be resolved in this appeal is: 
Whether or not the petitioner was properly served with summons, thereby
vesting the court, a quo with, jurisdiction to declare him in
default.  If that issue is answered in
the affirmative, then the order of default, together with the default judgment
and the order of execution issued by the court a quo must all be
affirmed.  Upon the other hand, if said
issue is answered in the negative, then the order of default, as well as the
default judgment and the order of execution must all be set aside and the case
remanded to the court a quo for further proceedings upon its
merits.

WE dispose of this issue adversely to petitioner in a three-step
analysis.

First – The record shows that the petitioner filed his answer to
the complaint on April 25, 1967.  In said answer he did not expressly object to
the jurisdiction of the court a quo over his person.  As such, he is deemed to have voluntarily
appeared, and he thereby gave the trial court jurisdiction over his person, and
an objection thereafter made upon the ground that he was not properly served
with summons will not avail him.  It is
then made too late (Sec. 23, Rule 14, Revised Rules of Court; Flores vs. Zurbito, 37 Phil. 746, 750-751).

This Court notes also that petitioner filed a motion to dismiss
on March 11, 1968, ten (10)
days after he received a copy of the order of the court a quo
denying his petition for relief. 
Clearly, such motion to dismiss was filed out of time, and may therefore
be denied outright.  Hence, the court a
quo acted correctly in not granting the same for lack of merit.

Second – It is elementary that venue is waivable,
since it is a procedural, not a jurisdictional, matter.  The record shows that the parties agreed that
the courts of Manila shall have
jurisdiction to try this case.  The
agreement is evidenced by sales contracts duly presented at the ex-parte hearing of March 25, 1966, whereby the parties submitted themselves
to the jurisdiction of the courts of Manila
for any legal action arising out of their transaction.  In short, the parties agreed to add the
courts of Manila as tribunals to which they may resort in the event of suit,
and not only to the courts either of Rizal, of which
private respondent is a resident, or of Bulacan,
where petitioner resides, pursuant to Section 2(b) of Rule 4 of the Revised
Rules of Court.

Third – The Court of First Instance of Manila is a court of
general jurisdiction.  As such, it is to
be presumed that, before it issued its order declaring petitioner in default,
it took care to see that the summons and complaint had been delivered to and
received by petitioner in accordance with law. 
And this is precisely what the trial court did by issuing the order of May 19, 1967, wherein it stated:

“It is necessary to receive evidence on whether the summons
and judgment had been properly served upon defendant Arturo Tantoco.  x x
x” (p. 39, rec.).

The question of whether or not summons and complaint were
actually received by petitioner is one of fact and was actually ventilated in
the trial court, which correctly found that petitioner was properly served with
the summons and copy .of the complaint through his 22-year old and competent
son, as embodied in its order of February
27, 1968.

2.  The second issue posed by
petitioner is his claim that he filed his petition for relief from the default
judgment dated April 18, 1966,
within the period set forth in Section 3 of Rule 38 of the Revised Rules of
Court.

The aforecited rule of court provides:

“SEC. 3. Time
for filing petition; contents and verification. – A petition
provided for in either of the preceding sections of this rule must be verified,
filed within sixty (60) days after the petitioner learns of the judgment,
order, or other proceedings to be set aside, and not more than six (6) months
after such judgment or order was entered, or such proceeding was taken; and
must be accompanied with affidavits showing the fraud, accident, mistake, or
excusable negligence relied upon, and the facts constituting the petitioner’s
good and substantial cause of action or defense, as the case may be.”

The record shows that petitioner filed his petition for relief on
February 3, 1967 (p. 285,
rec.).  He admitted having learned of the
default judgment on September 19, 1966,
when the same was being executed by respondent sheriff.  Under the aforequoted
rule, petitioner had sixty (60) days after September 19, 1966 within which to file his petition for
relief.  But he filed his petition for
relief only on February 3, 1967,
136 days, or 4 months and 16 days after he knew on September 19, 1966 of said default judgment.

Then again, there is evidence in the record that the default
judgment from which the petitioner seeks to be relieved was entered on June 2, 1966 (pp. 46, 49, Brief for
Respondents, p. 432, rec.).  Six (6)
months, or 180 days, from June 2, 1966,
would be November 29, 1966.  Petitioner filed his petition fur relief on February 3, 1967, or after the lapse
of 245 days, or 8 months and 5 days from June
2, 1966.

Hence, petitioner’s remedy is totally lost.

WE reiterate what WE said in the case of Dirige
vs. Biranya (L-22033, July 30, 1966, 17 SCRA 840,
850):

“We therefore rule that a petition for relief must, amongst
others, be filed within six months from the date judgment is entered.  Rulings inconsistent herewith are hereby
expressly overruled.”

Petitioner invokes the doctrine laid down by this Court in the
case of People’s Homesite & Housing Corporation
vs. Tiongco (12 SCRA 471, 475), where, despite the
fact that the petition for relief was presented outside of the reglementary period of sixty (60) days from notice of the
judgment, nevertheless, due to peculiar circumstances obtaining in the case, WE
considered the rule to have been substantially complied with and the petition
for relief from judgment was seasonably filed. 
In that case, the delay in the filing of the petition for relief
consisted only of two (2) days from receipt of the judgment by defendant’s
former counsel.  In the present case, as
pointed out above, the delay consisted of seventy-seven (77) days, or two (2)
months and seventeen (17) days after petitioner learned of the judgment, and
sixty-six (66) days, or two (2) months and six (6) days, after entry of
judgment.

Furthermore, relief from judgment or order, being an act of
grace, is premised on equity.  It should,
therefore, be granted only in exceptional cases (Dirige
vs. Biranya, supra). 
On top of this petitioner must prove excusable negligence and the
existence of good and substantial defense.

Petitioner claims that he became sick after he consulted then
Assistant Fiscal Magat (now City Court Judge Magat) of Manila.  Nothing in the record suggests how long his
sickness disabled him or prevented him from filing a timely petition for
relief.  Not even a medical certificate
did he produce to prove his claim.  In
sum, he failed to make a clear case of excusable negligence.  He has not discharged his burden to clear
himself of the imputation of want of due diligence.  His case must therefore fall.

Even the merits of his alleged good and substantial defense will
not carry the day for him.  He claims
“the goods mentioned in plaintiff’s ten causes of action and received in
concept of consignment credit were all burned in the fire of July 31,
1966”, through no fault of his but by force majeure
(Joint Affidavit of Merit, p. 32, rec.). 
In effect, he wants this Court to believe that since July 6, 1964, when he began receiving
milk products from private respondent up to and including September 4, 1965, when he received the last
shipment of 200 cans of Liberty Milk, worth P5,230.00,
he never made any sale, until ALL were burned in said fire of July 31, 1966.

Again, while it is true that petitioner stated in his affidavit
of merit that a certificate was issued by the chief of police of Malolos, Bulacan, the record does
not bear any such certificate.  WE
therefore have no means of knowing just what that certificate was all
about.  Neither does the record show that
the goods lost in said fire were precisely those consigned to him during the
period from July 6, 1964 to September 4, 1965 (Complaint, pp.
63-66, ibid.), nor does it show any evidence of the extent of his actual loss,
as reflected in his income tax return for the year 1966.

By statutory requirement, an appeal from the Court of First
Instance to the Court of Appeals may be taken by serving upon the adverse party
and the filing with the trial court within thirty (30) days from notice of
order or judgment, a notice of appeal, an appeal bond, and a record on appeal
(Sec. 3, Rule 41, Revised Rules of Court).

The filing of a notice of appeal within the thirty-day period
prescribed in the aforecited rule is necessary for
perfecting an appeal and conferring appellate jurisdiction upon the appellate
court.  In other words, if the notice of
appeal, or the appeal bond, or the record on appeal is not filed within the
aforementioned period, the appeal shall be dismissed (Sec. 13, Rule 41, Revised Rules of Court). 
This is mandatory.

Here, the record shows that on March 1, 1968 (p. 53, rec.), petitioner received a copy of
the order of the trial court.  Under the
Rules, he should have filed his notice of appeal, an appeal bond, and a record
on appeal within thirty (30) days from and after March 1, 1968. 
Thirty (30) days from March 1,
1968 would be March 31,
1968.  Petitioner filed only
a notice of appeal on April 4, 1968 (see upper right-hand corner of Annex
“N”, p. 94, rec.; p. 8, Supplemental Brief for Petitioner), but did
not file any motion for extension of time to file the appeal bond and record on
appeal before the lapse of the reglementary
period.  Then and there, the trial court
could have validly ordered the striking out of the notice of appeal and
simultaneously dismissed the appeal. 
Instead, the trial court allowed the petitioner to file his record on
appeal, which he did on.  April 15, 1968,
but which was 15 days too late, and his appeal bond, which the trial court
received on April 30, 1968 (p. 236, rec.), 30 days too late.  In doing so, the trial court obviously
exercised its sound discretion in the matter. 
But WE note with displeasure that petitioner abused the liberality of
the court a quo by filing the appeal bond way beyond the reglementary period and by deliberately refusing to obey
its order of May 20, 1968, which in effect required him to show in his amended
record on appeal the date when he received a copy of the order of the court
sought to be appealed from, by making it appear in the corresponding amended
record on appeal that he received the copy of the order on March 5, 1968 when
he knew fully well that he did not receive it on that day but on March 1, 1968
(see order, p. 131, rec.).

This appeal is patently frivolous and designed to impede justice.

Counsel for petitioner knowingly made untruthful statements.  He insists that he filed an appeal bond on April 15, 1968, when the
incontrovertible evidence of its filing with the trial court appears clearly on
the face of the appeal bond itself that the same was received by the trial
court on April 30, 1968.  He further aggravated his lack of candor and
honesty in his dealing with the court by making it appear at the left-hand
bottom corner of his motion for approval of the record on appeal, appeal bond
dated March 8, 1968, that he attached therewith an appeal bond and notice of
appeal, when he knew very well that on April 15, 1968 – the day he filed his
aforesaid motion – he had already filed the notice of appeal on April 4, 1968,
and that he had not as yet filed an appeal bond (p. 99, in relation to pp. 94 &
236, rec.).

Censurable is the kind of language used by counsel for petitioner
in many of his pleadings of record in referring to the trial court, the adverse
counsel and the court commissioner, for which he is hereby admonished not to
employ offensive language henceforth.

The language vehicle does not run short of expressions, emphatic
but respectful, convincing but not derogatory, illuminating but not offensive (Rheem of the Phil. vs. Ferrer,
G.R. No. L-22979, June 26, 1967,
20 SCRA 441, 445).

WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED,
WITH TREBLE COSTS AGAINST ATTY. JOSE BELTRAN SOTTO, ORIGINAL COUNSEL OF
PETITIONER-APPELLANT ARTURO F.W TANTOCO. 
LET A COPY OF THIS DECISION BE MADE A PART OF THE PERSONAL FILE OF ATTY.
JOSE BELTRAN SOTTO IN THE BAR DIVISION OF THIS COURT.

Teehankee, (Chairman), Antonio, Muñoz Palma, and
Martin, JJ., concur.