LUCENA VALENZUNA, PLAINTIFF AND APPELLEE, VS. FELICISIMO BALAYO, DEFENDANT AND APPELLANT.

Appeal from an order of the Court of First Instance,of Camarines Sur
denying Felicisimo Balayo’s motion to annul and iset aside its order
declaring him in default and the judgment subsequently rendered against
him in Civil Case No. 3753.

In the Justice of the Peace Court of Sipocot, Camarines Sur,
appellee Lucena Valenzuna filed an action for forcible entry against
appellant. After trial said court rendered judgment against the latter,
who appealed therefrom in due time to the Court of First Instance of
said province: On April 13, 1957, notice of the docketing of the case
on appeal (Civil Case No. 3753) was sent by the Deputy Clerk of said
court to the parties by registered mail. Appellant received this notice
on April 27 of the same year.

Four months later, that is, on August 20, 1957, appellee filed a
motion to declare appellant in default and on August 24, 1957 the Court
granted the same, and after receiving appellee’s evidence rendered
judgment in her favor on October 28, 1957.

On December 7,1957 appellant filed a motion to set aside the order
of default and the judgment, and to allow him to present his evidence,
claiming that the notice mentioned heretofore should have been served
not on him but on. his attorney, who filed the notice of appeal, and
that no proof of such service was. presented to the Court.

On February 20, 1958, the Court issued the appealed order.

Appellant raises the same issues in the five assignment of errors
submitted in his brief. After considering the facts obtaining in this
case and the law applicable thereto, we find his contentions to be
untenable.

In the first place, the record discloses that although appellant
received notice of  the appealed case from the deputy clerk of the
lower Court on April 27, 1957, he not only failed to file his answer to
the complaint within the, reglementary period of fifteen (15) days but
filed his motion for relief from the order of default only on.
December 7, 1957, and the same was not under oath nor accompanied with
supporting affidavits of merits.

In the second place, the service, of the notice mentioned heretofore
on appellant .himself instead of on the lawyer who filed, in his
behalf, in the Justice of the Peace Court the corresponding notice of
appeal was regular and in accordance with our decision in Ortiz vs.
Mania, 93 (“fill., 817, June 2, 1953, where we held:

“In his second assignment ‘of error appellant-claims
that no legal notice of the pendency of the action in the Court of
First Instance was given him, because the” notice was given to him and
not to his. attorneys. But the trial court found that the attorneys who
perfected appellant’s appeal from the justice of the peace court weie
his lawyers only for that purpose, i.e., to perfect the appeal. * * *
Appellant’s claim is, therefore, iiot justified by the facts.

“But
assuming, for the sake of argument, that said attorneys were, from the
time they perfected defendant’s appeal, the defendant’s lawyers;
Section 7 of Rule 40, which governs appeals from justice of the peace
courts to Courts of First Instance, expressly provides that notice of
the pendency of the appeal be given to the parties. This provision,
being express and specific, can.not be interpreted to mean that the
notice can be .given to the lawyer alone The reason for this provision
for notification of parties, and not of the. lawyers, lies in the fact
that on an appeal, from an inferior court, only the complaint in the
justice of the peace court is deemed teproduced, and the proceeding
immediately following the filing of the complaint, is the summoning of
the defendant. Instead,’however, of being, summoned, he is xmly
personally notified because he i& already within the court’s
jurisdiction, the notice taking the place wf the summons.

In view of all the foregoing, the order appealed from is affirmed, with costs.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion,, Reyes, J. B. L., Barrera, Paredes, Regala and Makatintal, JJ., concur.