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[ G.R. No. 126730. July 1, 1999]

SPS. ILUMINADO & EUFROCINA MERCADO vs. CA, et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this court dated JUL 1, 1999.

G.R. No. 126730 (Spouses Iluminado Mercado and Eufrocina Mercado vs. Court of Appeals, et al.)

In the resolution of January 15, 1997, the Curt denied the motion for extension of time of petitioner spouses Iluminado and Eufrocina Mercado within which to file a petition for review of the decision of the Court of Appeals dated October 8, 1996. The resolution was based on the fact that the motion, which was filed on October 31, 1996, was filed late, since it appears on that petitioners received a copy of the decision on October 15, 1996. Accordingly, the Court likewise dismissed petitioners' petition.

Petitioners filed a motion for reconsideration, attaching thereto a certified xerox copy of the registry return receipt of the Court of Appeals' decision, dated October 8, 1996, showing that a copy of said decision was actually received by their counsel on October 16, 1996. The Court therefore in its resolution of March 19, 1997 granted petitioners' motion, reinstated the petition, and required private respondents Erlinda and Irenea Dagami and Norberto Cayovit to file their respective comments.

Private respondents Erlinda and Irenea Dagami filed their comment as well as a manifestation dated May 6, 1997. They point out that petitioners failed to implead the Court of Appeals and serve on it a copy of the petition, and that the accompanying affidavit of service was defective since it was not signed by the affiant. They pray that the resolution of March 19, 1997, reinstating the petition, be reconsidered. The Court in the resolution of July 9, 1997 noted the aforesaid comment and manifestation and required petitioners to file a reply.

While, the Court of Appeals was indeed not impleaded, a copy of the petition was served on it as shown in the written acknowledgment of a receiving clerk of the Court of Appeals (Rollo, p. 30). This suffices as proof of service per Rule 13, �10 (now �13 in the 1997 Rules) which states that "Proof of personal service shall consist of a written admission of the party served or the affidavit of the party servicing, containing a full statement of the date, place, and manner of service." However, as to private respondents Erlinda and Irenea Dagami and Norberto Cayovit, who were served by registered mail, the required proof of service consists of the registry receipts as well as of an affidavit containing the abovementioned particulars. As the affidavit of service is unsigned by the affiant (Rollo, p. 31), it is no affidavit at all and cannot be considered as sufficient compliance with the Rules of Court.

WHEREFORE, the petition is DISMISSED for lack of showing that a copy had been served on private respondents Erlinda and Irenea Dagami and Norberto Cayovit. Martinez, J., is on leave.

Very truly yours,

TOMASITA B. MAGAY-DRIS

Clerk of Court

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