SUPREME COURT DECISIONS

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EN BANC

G.R. No. L-10823 May 28, 1957

JUAN DE G. RODRIGUEZ, as Secretary of Agriculture and Natural Resources and HERACLEO R. MONTALBAN, as Acting Director of Fisheries Petitioners, vs. HON. ENRIQUE A. FERNANDEZ, Judge of the Court of First Instance of Davao and FELIPE DELUAO, Respondents.

Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General Esmeraldo Umali and Solicitor Isidro C. Borromeo for petitioners.
Abelardo Aportadera for respondent.

BENGZON, J.:

Petition for mandamus to compel Hon. Enrique A. Fernandez, Judge of Davao, to give due course to the appeal presented by herein petitioners in Special Civil Case No. 63 of his court of First Instance.chanroblesvirtualawlibrary chanrobles virtual law library

The respondents say the appeal was filed out of time.chanroblesvirtualawlibrary chanrobles virtual law library

That civil case commenced with an action by Felipe Deluao to modify the award of the Secretary of Agriculture and Natural Resources in an administrative contest between him and Supremo Deluao regarding fishponds under the control of the Bureau of Forestry, in the Municipality of Padada, Davao. The said Secretary approved Felipe's fishpond application for Lot No. 3907 (area 38 hectares) and Supremo's fishpond application for Lot No. 3162 (area 20 hectares). Felipe Deluao claimed both lots, for reasons not necessary to mention now.chanroblesvirtualawlibrary chanrobles virtual law library

After hearing the parties and their evidence, the respondent judge rendered judgment for the plaintiff, declaring him to be the rightful applicant and possessor of both lots, and issuing other suitable directives.chanroblesvirtualawlibrary chanrobles virtual law library

Notice and copy of the decision was sent to Atty. Marfori representing the Solicitor General's Office who had appeared for the herein petitioners, had filed the answer and had attended the trial in September and October, 1955; such notice was received on March 27, 1956. The Clerk of Court likewise served notice of the decision on the Assistant Fiscal of Davao on April 11, 1956, because said Fiscal had also appeared in November 1955 for the same officials. On April 12, 1956, the latter filed a notice of appeal, which was objected to by Felipe Deluao, on the ground that it bad been submitted beyond the period of appeal, counted from the receipt by Atty. Marfori of notice of the decision.chanroblesvirtualawlibrary chanrobles virtual law library

The fiscal replied to the objection; but the court found the appeal to be untimely, and turned it down.chanroblesvirtualawlibrary chanrobles virtual law library

It is contended in this petition that Atty. Marfori had previously withdrawn as counsel, that the Provincial Fiscal became the sole counsel of petitioners and that consequently the time for appealing should be reckoned from April 11, 1956.chanroblesvirtualawlibrary chanrobles virtual law library

This contention is premised on the following incidents, as related by the court itself:chanrobles virtual law library

On October 25, 1955, Atty. Marfori in open court made the following manifestation, which reads as follows:

"ATTY. MARFORI:chanrobles virtual law library

I want to make it of record that if this court will ever postpone the trial of this case, this representation might not be able to come to this Court in view of the fact that the traveling expenses for our Department has already been exhausted. In view of the importance of these records which are now here, I should like to this Honorable Court to issue an order to the Department for the submission of these records to this Court in care of the Clerk of Court, because this representation might not be able to come at the time this case will be transferred.

"On November 5, 1955, the Provincial Fiscal received the following communication which reads as follows:

"November 5, 1955chanrobles virtual law library

The Provincial Fiscal
Davao Citychanrobles virtual law library

Sir: chanrobles virtual law library

This is to request your good office to represent the respondents Secretary of Agriculture and Natural Resources and the Director of Fisheries in Sp. Civil Case No. 63 (Felipe Deluao vs. Honorable Secretary of Agriculture and Natural Resources, et al.) now pending before the Court of First Instance of Davao and set for hearing on November 25, 1955, in the sala of Judge Fernandez threat.chanroblesvirtualawlibrary chanrobles virtual law library

In this connection, the District Fisheries Officer at Davao City, on even date, has been instructed to extend his cooperation to your office on the matter."

It is clear that there was no solution. Apart from the fact that no proceedings for substitution of attorneys had taken place, the assistant fiscal herself ¹ never claimed in the lower court that there had been such substitution. All she claimed was that the Fiscal's Office had actually appeared as counsel for respondents - not provisionally - and was entitled to notice, which was received only on April 11, 1956.chanroblesvirtualawlibrary chanrobles virtual law library

Under the Rules where a party has two attorneys, notice to one of them is notice to such party. (Section 2 Rule 27). Wherefore the notice to Atty. Marfori on March 27, 1956 was notice to respondents and the period for appealing - fifteen days ² - started from that date. ³ chanrobles virtual law library

Wherefore, the appeal having been interposed on the sixteenth day, (March 27 to April 12) it was late by one day - tardiness which has heretofore been declared sufficient to bar an appeal. ⁴ chanrobles virtual law library

In one case ⁵ it is true, we relaxed this rule because notice was given to an attorney who "appeared provisionally in the absence of the attorney who had entered his appearance in the case." And in another ⁶ we found reasons not to apply the principle, because the notice had not been given to the principal attorney, who was considered as such by the adverse party itself and by the court.chanroblesvirtualawlibrary chanrobles virtual law library

However in this litigation no similar circumstances are brought to our attention to justify relaxation of the Rule. Indeed, if any attorney appeared provisionally or "in collaboration," it was probably, the assistant fiscal of Davao, because the Fiscal would not have supplanted the Solicitor General's Office, which is supposed to be primarily the legal counsel of national officials and offices.chanroblesvirtualawlibrary chanrobles virtual law library

And if any equitable consideration is to be borne in mind, it is this: the party most directly affected by the court decision was Supreme Deluao who lost Lot No. 3162 to Felipe Deluao. Yet he did not care to appeal.chanroblesvirtualawlibrary chanrobles virtual law library

This petition should be, and it is hereby, denied. No costs.chanroblesvirtualawlibrary chanrobles virtual law library

Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.

Endnotes:

¹ Annex D "opposition to motion disallow appeal".chanroblesvirtualawlibrary chanrobles virtual law library

² Rule 41 section 17.chanroblesvirtualawlibrary chanrobles virtual law library

³ Venturina vs. Court of First Instance, 75 Phil. 804; Olivares vs. Leola, 97 Phil., 253.chanroblesvirtualawlibrary chanrobles virtual law library

⁴ Reyes vs. Court of Appeals, 74 Phil. 235.chanroblesvirtualawlibrary chanrobles virtual law library

⁵ Ongsiako vs. Judge Natividad, 79 Phil., 3, 45 Off. Gaz. (No. 1) 229.chanroblesvirtualawlibrary chanrobles virtual law library

⁶ Delgado vs. Judge Santiago, L-8935, May 18, 1956.