Philippine Supreme Court Jurisprudence


Philippine Supreme Court Jurisprudence > Year 1967 > August 1967 Decisions > G.R. No. L-23561 August 28, 1967 - ALFONSO DARAN v. DOMINADOR ANGCO:




PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. No. L-23561. August 28, 1967.]

ALFONSO DARAN, Petitioner-Appellant, v. DOMINADOR ANGCO, Respondent-Appellee. DAMASO ACOSTA, intervenor.

Felix V . Hernandez for petitioner and Appellant.

Teofilo A. Leonin for respondent and appellee.


SYLLABUS


1. REMEDIAL LAW: PETITION FOR RELIEF MUST BE TIMELY; CASE AT BAR. — Appellant learned of the judgment rendered against him on October 16, 1961, yet he did not seek relief therefrom in the Court of First Instance until April 12, 1962, or nearly six months (less a few days) afterwards. Held: The petition was belated, having been filed much later than the period allowed for the purpose by Section 3, Rule 38, of the Rules of Court, which is only "sixty (60) days after the petitioner learns of the judgment, order or other proceeding to be set aside." In the case at bar, the period expired on December 16, 1961, so that even the original receipt of the petition (without full payment of docket fees by the Clerk’s office on February 3, 1962) was beyond the proper period.

2. ID.; SERVICE OF SUMMONS; SUBSTITUTED SERVICE. — Appellant contends that the service of summons was irregular, in that there was substituted service upon his wife, without showing of any effort to serve summons upon him personally, in violation of Section 8, Rule 7, of the 1940 Rules of Court. Held: Since appellant’s own evidence (Affidavit of his wife) shows that the municipal policeman who served the summons did not find him in his usual place of abode, but was informed by the wife that appellant was in barrio Cabasingan, municipality of Callang, and there being no adequate assurance that he could be served there, substituted service was justified. There is no evidence that the wife was not a person of sufficient discretion to accept service of summons.


D E C I S I O N


REYES, J.B.L., J.:


This case was certified by the Court of Appeals to this Supreme Court as involving only questions of law. It originated in the Court of First Instance of Isabela, as a petition for relief, under Rule of Court 38, from a judgment of the Municipal (then Justice of the Peace) Court of the Municipality of Aurora, Isabela, wherein petitioner Alfonso Daran was declared in default.

The facts are not in controversy, and are recited in a stipulation of facts submitted to the Court of First Instance in its Civil Case No. 1475, which reads:jgc:chanrobles.com.ph

"1. That the summons dated July 13, 1961, of the Justice of the Peace Court of Aurora, Isabela, together with a copy of the complaint In Civil Case No. 147 of the Justice of the Peace Court was received and signed by Celestina Daran, wife of the petitioner Alfonso Daran, on July 30, 1961, true copy of which summons is hereto attached as Annex ‘1’ hereof;

"2. That the decision of the Justice of the Peace Court of Aurora, Isabela, in Civil Case No. 147, copy of which is hereto attached as Annex ‘B’ of the stipulation of facts, is dated and entered by the Justice of the Peace Court of Aurora, Isabela, on September 4, 1961;

"3. That the petitioner learned that he was declared in default and judgment was rendered against him on October 16, 1961 (paragraph 8 of the petition admitted);

"4. That the petition in question was filed and docketed as Civil Case No. 1475 on April 12, 1962 as shown on the stamp appearing in the record of the case.

"5. That the parties agree on the communication by counsel for the petitioner dated February 1, 1962 with the attached money order 144744 in the amount of P10.00; so with the communication of the Clerk of Court dated February 23, 1962 to Atty. Felix V. Fernandez asking the latter to remit additional sum of P22.00 to complete docket fee; likewise, the communication of Atty. Felix V. Fernandez dated March 13, 1962 to the Clerk of Court remitting the sum of P27.25;

"6. That the parties also agree on the communication by the Clerk of Court dated April 16, 1962 to Atty. Felix V. Fernandez asking the latter to remit the deficiency in the sum of P3.99 in money order payable to the Provincial Sheriff of Isabela, and also enclosing therein Official Receipt No. C-7023769 for P32.00 covering docket fee." (Record on Appeal, pp. 30-31.)

Upon the facts, the Court a quo dismissed the petition for relief as untimely filed. Unable to secure reconsideration, petitioner Daran duly appealed.

We find no ground to alter the decision appealed from.

The stipulation of facts show that although Daran learned of the judgment rendered against him on October 16, 1961 (Stipulation, par. 3), yet he did not seek relief therefrom in the Court of First Instance until April 12, 1962 (Stipulation, par. 4) or nearly six months (less a few days) afterwards.

As correctly held by the Court of origin, the petition was belated, having been filed much later than the period allowed for the purpose by section 3 of Rule 38 of the Rules of Court, which is only "sixty (60) days after the petitioner learns of the judgment, order or other proceeding to be set aside." In the case at bar, that period expired on December 16, 1961, so that even the original receipt of the petition (without full payment of docket fees) by the Clerk’s office on February 3, 1962, was beyond the proper period.

Petitioner-appellant contends also that the service of summons was irregular, in that there was substituted service upon his wife, without showing of any effort to serve summons upon him personally, in violation of section 8, Rule 7 of the 1940 Rules of Court. We do not agree. Since appellant’s own evidence (affidavit of his wife) shows that the municipal policeman who served the summons did not find Daran in his usual place of abode, but was informed by the wife that the appellant was in barrio Cabasingan, municipality of Callang, and there being no adequate assurance that he could be served there, substituted service was justified. There is no evidence that the wife was not a person of sufficient discretion to accept service of summons.

The judgment under appeal is affirmed. Costs against appellant, Alfonso Daran.

Concepcion, C.J., Dizon, Makalintal, Bengzon, J .P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.




Back to Home | Back to Main


chanrobles.com



ChanRobles Professional Review, Inc.

ChanRobles Professional Review, Inc. : www.chanroblesprofessionalreview.com
ChanRobles On-Line Bar Review

ChanRobles Internet Bar Review : www.chanroblesbar.com
ChanRobles CPA Review Online

ChanRobles CPALE Review Online : www.chanroblescpareviewonline.com
ChanRobles Special Lecture Series

ChanRobles Special Lecture Series - Memory Man : www.chanroblesbar.com/memoryman





August-1967 Jurisprudence                 

  • G.R. No. L-20218 August 8, 1967 - FORTUNATO HALILI v. MARIA LLORET, ET AL.

  • G.R. No. L-22254 August 8, 1967 - QUIRICO DEL MAR v. REHABILITATION FINANCE CORPORATION

  • G.R. No. L-22966 August 10, 1967 - FAUSTO MIPALAR v. JOSE M. SANTOS, ET AL.

  • G.R. No. L-21542 August 10, 1967 - IN RE: JOSEPH C. GO YANKO v. REPUBLIC OF THE PHIL.

  • G.R. No. L-23558 August 10, 1967 - PEOPLE OF THE PHIL. v. MARCELO CONSTANTINO, ET AL.

  • G.R. No. L-24103 August 10, 1967 - BEATRIZ G. VDA. DE DIOS v. LEANDRO BALAGOT, ET AL.

  • G.R. No. L-23281 August 10, 1967 - BILLY MILLARES v. ABELARDO SUBIDO, ET AL.

  • G.R. No. L-19531 August 10, 1967 - CLOROX COMPANY v. DIRECTOR OF PATENTS, ET AL.

  • G.R. No. L-21311 August 10, 1967 - PELAGIA PUGUID v. CIRILO REYES

  • G.R. No. L-21902 August 10, 1967 - MANILA RAILROAD COMPANY v. WORKMEN’S COMPENSATION COMMISSION, ET AL.

  • G.R. No. L-24109 August 10, 1967 - PEOPLE OF THE PHIL. v. ROGELIA P. DE OCAMPO

  • G.R. No. L-18805 August 14, 1967 - THE BOARD OF LIQUIDATORS v. MAXIMO M. KALAW, ET AL.

  • A.C. No. 407 August 15, 1967 - IN RE:JOSE AVANCEÑA

  • G.R. No. L-22029 August 15, 1967 - PEOPLE OF THE PHIL. v. LORENZO JARAVATA, ET AL.

  • G.R. No. L-22821 August 15, 1967 - ASUNCION CONUI-OMEGA v. CESAR SAMSON

  • G.R. No. L-27017 August 15, 1967 - PACIFICO M. BRAGANZA v. COMMISSION ON ELECTIONS, ET AL.

  • G.R. No. L-22380 August 15, 1967 - FERMIN SARE v. TIMOTEO Y. ASERON

  • G.R. No. L-24114 August 16, 1967 - PEOPLE’S HOMESITE AND HOUSING CORPORATION, ET AL. v. EULOGIO MENCIAS, ET AL.

  • G.R. No. L-22042 August 17, 1967 - DIONISIA GUINGON, ET AL. v. ILLUMINADO DEL MONTE, ET AL.

  • G.R. No. L-21013 August 17, 1967 - UNIVERSAL CORN PRODUCTS, INC., ET AL. v. RICE AND CORN BOARD, ET AL.

  • G.R. No. L-19707 August 17, 1967 - PHILIPPINE ACETYLENE CO., INC. v. COMMISSIONER OF INTERNAL REVENUE, ET AL.

  • G.R. No. L-22516 August 17, 1967 - LITTON & CO., INC. v. COMMISSIONER OF CUSTOMS

  • G.R. No. L-21806 August 17, 1967 - IN RE: DOMINGO DY OLIVA, ET AL. v. REPUBLIC OF THE PHIL.

  • G.R. No. L-23167 August 17, 1967 - IN RE: GEORGE QUE LIONG SIAN v. REPUBLIC OF THE PHIL.

  • G.R. No. L-24614 August 17, 1967 - JULIA DE LA MERCED, ET AL. v. ROMAN CATHOLIC ARCHBISHOP OF MANILA, ET AL.

  • G.R. No. L-25171 August 17, 1967 - NATIONAL BREWERY & ALLIED INDUSTRIES LABOR UNION (PAFLU) v. GAUDENCIO CLORIBEL, ET AL.

  • G.R. No. L-21128 August 19, 1967 - IN RE: AO SAN v. REPUBLIC OF THE PHIL.

  • G.R. No. L-21835 August 19, 1967 - CHIEF OF STAFF, AFP v. COLLECTOR OF INTERNAL REVENUE, ET AL.

  • G.R. No. L-24031 August 19, 1967 - AMERICAN INSURANCE COMPANY v. MACONDRAY & CO., INC., ET AL.

  • G.R. No. L-22348 August 23, 1967 - GREGORIO RAMOS, ET AL. v. PEOPLE OF THE PHIL., ET AL.

  • G.R. No. L-23617 August 26, 1967 - ANGELO KING v. PABLO JOE, ET AL.

  • G.R. No. L-24383 August 26, 1967 - EQUITABLE INSURANCE & CASUALTY CO., INC. v. SMITH, BELL & CO., (PHIL.) INC.

  • G.R. No. L-27206 August 26, 1967 - IN RE: ANDRES M. CULANAG v. DIRECTOR OF PRISONS

  • G.R. No. L-23561 August 28, 1967 - ALFONSO DARAN v. DOMINADOR ANGCO

  • G.R. No. L-20991 August 30, 1967 - RUFINO CIELOS, ET AL. v. BACOLOD MURCIA MILLING CO., INC.

  • G.R. No. L-21011 August 30, 1967 - ISABEL OCAMPO v. IGNACIO DOMALANTA, ET AL.

  • G.R. No. L-21448 August 30, 1967 - POBLETE CONSTRUCTION CO. v. JUDITH ASIAIN, ET AL.

  • G.R. No. L-22072 August 30, 1967 - ALFONSO BUN RAMOS, ET AL. v. EMILIANO CONDEZ, ET AL.

  • G.R. No. L-22260 August 30, 1967 - TEODORICO C. QUIOCHO v. BERNARDO P. ABRERA, ET AL.

  • G.R. No. L-26532 August 30, 1967 - INSURANCE COMPANY OF NORTH AMERICA v. REPUBLIC OF THE PHIL.

  • A.C. No. 516 August 30, 1967 - TRANQUILINO O. CALO, JR. v. ESTEBAN DEGAMO

  • G.R. No. L-22301 August 30, 1967 - PEOPLE OF THE PHIL. v. MARIO M. MAPA

  • G.R. No. L-21501 August 30, 1967 - MANILA CLUB EMPLOYEES UNION v. MANILA CLUB, INC., ET AL.

  • G.R. No. L-21963 August 30, 1967 - NATIONAL DEVELOPMENT COMPANY v. ROBERTA RONGAVILLA, ET AL.

  • G.R. No. L-22108 August 30, 1967 - GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES, ET AL. v. MARCELINO TIZON, ET AL.

  • G.R. No. L-24066 August 30, 1967 - DOMESTIC INSURANCE COMPANY OF THE PHILIPPINES v. MANILA RAILROAD COMPANY

  • G.R. No. L-21467 August 30, 1967 - RIO Y COMPANIA v. WORKMEN’S COMPENSATION COMMISSION, ET AL.

  • G.R. No. L-18877 August 31, 1967 - JUAN P. ENRIQUEZ, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. L-22047 August 31, 1967 - MUNICIPALITY OF SAN JUAN v. NATIONAL WATERWORKS AND SEWERAGE AUTHORITY

  • G.R. No. L-22618 August 31, 1967 - MANILA PORT SERVICE, ET AL. v. COURT OF APPEALS, ET AL.

  • G.R. No. L-23406 August 31, 1967 - IN RE: O KU PHUAN v. REPUBLIC OF THE PHIL.

  • G.R. Nos. L-18778 & L-18779 August 31, 1967 - UNITED SEAMEN’S UNION OF THE PHIL. v. DAVAO SHIPOWNERS ASSOCIATION, ET AL.

  • G.R. No. L-24139 August 31, 1967 - COMMISSIONER OF IMMIGRATION v. GAUDENCIO CLORIBEL, ET AL.

  • G.R. No. L-22536 August 31, 1967 - DOMINGO V. AUSTRIA v. ANTONIO C. MASAQUEL

  • G.R. No. L-20708 August 31, 1967 - IN RE: FELIMON TSE, ET AL. v. REPUBLIC OF THE PHIL.

  • G.R. No. L-20527 August 31, 1967 - VICENTE Y. REALIZA v. GASPAR DUARTE

  • G.R. No. L-22684 August 31, 1967 - PHILIPPINE PHOENIX SURETY & INSURANCE, INC. v. WOODWORKS, INC.

  • G.R. No. L-22810 August 31, 1967 - FIREMEN’S INSURANCE COMPANY v. MANILA PORT SERVICE, ET AL.