ANDRES CENTENERA, PETITIONER, VS. HON. NICASIO YATCO, JUDGE OF THE COURT OF FIRST INSTANCE OF RIZAL, ET AL., RESPONDENTS.

Petition for mandamus to give due course to petitioner’s appeal from
the decision of the Court of First Instance of Rizal in Civil Case No.
Q-2473, which appeal was disapproved by the court below for having been
filed out of time.

It appears that judgment was rendered in the aforementioned case
against the defendant (now petitioner) Andres Centenera on August 30,
1957, copy of which he received on September 2, 1957. On September 25,
1957, petitioner filed a motion for reconsideration, which was set for
hearing on October 5, 1957. Three days before the hearing, or on
October 3, 1957, Centenera filed a supplement to his motion for
reconsideration, serving copy thereof on plaintiff’s counsel on the
same day, and requesting the court to hear it on the day of the hearing
of the motion, October 5. At the scheduled hearing of the motion and
its supplement, neither plaintiff nor his counsel appeared. Two days
later, on October 7, 1957, the court denied the motion for
reconsideration. On October 15, 1957, petitioner filed Ms notice of
appeal, record on appeal, and appeal bond subscribed by himself and
another person. For fear that his bond might be disapproved, petitioner
filed on October 21st another bond executed by himself and a surety
company. On October 26, 1957, the lower court disapproved petitioner’s
appeal for having been filed beyond “the prescribed period. Upon
respondent’s motion, execution was ordered on November 2, 1957. On
November 7, 1957, petitioner moved to reconsider the disapproval of his
appeal, but it was denied on November 16. On March 4, 1958, the order
of execution was transmitted to the sheriff of Quezon City. Shortly
thereafter, on March 11, 1958, this petition for mandamus was filed
before this Court, and upon petitioner’s request, we issued a writ of
preliminary injunction restraining execution of the judgment of the
lower court.

The question here is—Was petitioner’s appeal perfected on time?

Petitioner received copy of the lower court’s decision on September
2, 1957 and filed a motion for reconsideration twenty-three days later,
on September 25, 1957. Assuming that his motion suspended the running
of the period for appeal, he had seven days from the denial of his
motion within which to appeal. Petitioner claims he received copy of
the order of denial on October 14, 1957, so that he had up to October
21 within which to perfect his appeal. As he filed his notice of appeal
and record an appeal on October 15, 1957, and his appeal bond either on
October 15, or on October 21, he urges his appeal was perfected on time.

Respondents asserts, upon the other hand, that petitioner’s counsel
was notified of the denial of his motion for reconsideration in open
court on October 7, 1957. Seven days after October 7 would leave
petitioner only up to October 14, 1957 within which to perfect his
appeal; thus, respondent insists petitioner’s appeal was filed out of
time.

We have gone through the original records in the Court below and
have found no indication supporting respondent’s claim that
petitioner’s counsel was notified in open court on October 7 of the
denial of his motion for reconsideration. The hearing of said motion
took place on Saturday, October 5, while the resolution of denial was
issued the following Monday, October 7. Since there was no hearing in
the case on October 7th, it could not have been possible that there was
any oral notice of the order of denial to petitioner or counsel on that
date.

And even assuming that petitioner’s counsel was orally
notified of the denial of the motion right after the hearing on October
5, notice thereof given in open court is not sufficient (Melgar vs.
Delgado, 53 Phil., 223; I Moran, Rules of Court, 1957 ed., p. 411). To
be effective, service of a final order should be made either personally
or by registered mail (sec. 3, Rule 27, Rules of Court), and personal
service is made by delivering personally a copy to the party or his
attorney, or by leaving it in his office with his clerk or with a
person having charge thereof (sec. 4, supra). According to
the records in the court below, copy of the order in question was sent
to petitioner’s counsel by registered mail on October 7, 1957. There is
no showing, however, when said mail was received. Petitioner asserted
in the court below as well as in this Court that he received the same
on October 14, 1957. As respondent has not proved that petitioner
received said order on any other date, petitioner’s claim that he
received the order of denial of his motion to reconsider on October
14th remains uncontradicted. Therefore, he had up to October 21st
within which to perfect his appeal. Since his notice of appeal and
record on appeal were filed on October 15, and his appeal bond either
on October 15, or on October 21, petitioner’s appeal was perfected on
time.

Respondent likewise claims that petitioner’s motion for reconsideration of September 25, 1957 was pro forma
and, therefore, did not suspend the period for appeal. Although said
motion, which petitioner filed himself without benefit of counsel,
could have been greatly improved upon if petitioner were skilled in the
preparation of pleadings, the same sufficiently points out the lower
court’s supposed errors in refusing to admit certain documentary
evidence presented by petitioner, and in its evaluation of the evidence
on the question of whether it was plaintiff or defendant who had
physical possession of the premises in question, which question in turn
determines the main issue whether or not the action for recovery of
possession against petitioner lies. Besides, petitioner, this time
through counsel, filed, with notice to respondent, a supplement to his
motion three days before hearing thereof, explaining clearly the
reasons of fact and law relied upon in the motion, and even raising the
question of jurisdiction. Read together, the original motion and the
supplement are clearly not pro forma. In fact, the lower
court also took account of the arguments urged in the supplement to
petitioner’s motion, although it was denied in its order of October 7,
1957.

Respondent finally urges that this petition for mandamus is
frivolous and dilatory, having been filed only after four months from
the denial of petitioner’s motion to reconsider the disapproval of his
appeal, and after the lower court had already issued a writ of
execution. On this question, it is significant to note that Section 15,
Rule 41 of the Rules of Court does not specify the period for the
filing of mandamus proceedings against an order disapproving an appeal,
which implies that the period for its filing is variable as the ends of
justice may demand. Indeed, the constant policy of the courts is not to
deny the writ if the result would be to deprive a party of his
substantial right and leave him without remedy (14 C. J. S. 190). A
delay of four months in the pursuit of his remedy of mandamus is not so
loner or unreasonable as to nullify petitioner’s right to appeal and
leave him without any relief against the decision of the trial court
which may after all be erroneous and reversible, especially as the
lower court is already poised to execute said judgment and compel
petitioner to remove his house of strong materials from the premises in
question, which execution could cause petitioner great damage and
prejudice.

The writ of mandamus, is, therefore, granted, and the lower
court is ordered to give due course to petitioner’s appeal. Costs
against respondent Heraldo del Castillo.

Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia, Barrera, and Gutierrez David, JJ., concur.