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[G.R. No. L-21184. September 5, 1967.]

SIMEON CORDOVIS, JUAN RUBIA, ET AL., Plaintiffs-Appellants, v. BASILISA A. DE OBIAS, ESTRELLA O. ROCHA, ET AL., Defendants-Appellees.

E. S. Graceda, for Plaintiffs-Appellants.

Borja & Delema and Reyes & Dy-Lianco for Defendants-Appellees.


1. APPEAL AND ERROR; NOTICE OF DOCKETING OF APPEAL FROM INFERIOR COURT TO COURT OF FIRST INSTANCE; TO WHOM SENT. — Under sec. 7, Rule 40 of the old Rules, the notice of the appealed case is sent to the parties themselves, not to their counsel. The underlying reason is that the notification takes the place of the summons, which is personally sent to defendant who, however, is already within the jurisdiction of the Court of First Instance when the complaint is deemed reproduced by virtue of the appeal.



A complaint for forcible entry and detainer (Civil Case No. 47) was filed on January 16, 1957 by Basilisa A. de Obias and her husband Hermogenes P. Obias against Simeon Cordovis, Juan Rubio, Juan Cordovis, Patricia Cordovis, Rodrigo Tolero, Nemesia Cordovis, Macario Santelices, Macario Santelices, Jr., Victor Adalla, Catalina Cordovis and Ruben Dacer, in the Justice of the Peace Court of Garchitorena, Camarines Sur. Said court decided against defendant Cordovis, Et. Al. Appeal therefrom was taken by said defendants, to the Court of First Instance of Camarines Sur. The case was docketed therein as Civil Case No. 3991. Notice of the appealed case was sent by the clerk of court to the defendants themselves, not to their lawyer.

Plaintiffs spouses Obias, alleging failure of defendants to answer, moved to have them declared in default. Said motion was granted. And on May 4, 1959, after hearing, the Court of First Instance rendered judgment against defendants in default. Subsequently, the court issued a writ of execution, but the judgment was not fully satisfied because the defendants refused to vacate the premises as ordered. For this refusal, they were charged with contempt.

Pending the contempt charge, the court issued, upon motion of plaintiffs Basilisa A. de Obias and the heirs of Hermogenes Obias, 1 a special order of demolition, giving defendants 30 days from July 23, 1962 to demolish their houses, otherwise the matter will be placed into the sheriff’s hands. After obtaining an extension of 15 days, defendants on September 5, 1962 filed before the same court a complaint for the annulment of the judgment in Civil Case No. 3991 with a petition ex-parte for the issuance of a writ of preliminary injunction (Civil Case No. T-7) against Basilisa Obias, Estrella Rocha, Rosario Obias, Pura Gimeno, Manuel Obias (heirs of Hermogenes Obias) and the Provincial Sheriff. On the same day, sustaining the allegations of nullity of the judgment in Civil Case No. 3991 because notice of the appealed case was sent to Cordovis, Et. Al. instead of their counsel, and that irreparable injury would result due to the threatened demolition. the Court of First Instance in Civil Case No. T-7 enjoined Obias, Et. Al. from executing the decision in Civil Case No. 3991. Cordovis Et. Al. were required to post a bond of P500.00.

On October 9, 1962, Obias Et. Al. moved to dismiss and set aside the order and writ of preliminary injunction in Civil Case No. T-7. Over the objection of Cordovis, Et Al., the Court of First Instance on January 18, 1963 dismissed the complaint and dissolved the writ of preliminary injunction. Plaintiffs in Civil Case No. T-7, Cordovis, Et Al., thereupon appealed to Us directly upon questions purely of law.

Section 7 of Rule 40 of the old Rules of Court (also Sec. 7 of Rule 40 of the Revised Rules) in connection with appeals from the inferior courts to the Courts of First Instance provides:jgc:chanrobles.com.ph

"Upon the docketing of the cause under appeal, the complaint filed in the Justice of the Peace or municipal court shall be considered reproduced in the Court of First Instance and it shall be the duty of the clerk of court to notify the parties of that fact by registered mail, and the period for making an answer shall begin with the date of the receipt of such notice by the defendant."cralaw virtua1aw library

On June 2, 1953 the Supreme Court, interpreting this provision, held that notice of the appealed case to the parties was sufficient. 2 In 1962 however, in the case of Elli v. Ditan, L-17444, June 30, 1962, the provision, taken in conjunction with Sec. 2 of Rule 27 of the old Rules (now Sec. 2 of Rule 13 of the Revised Rules) providing for service of pleadings, motions, etc., was held to require that notice of the appealed case to the parties themselves is proper only if the parties are not represented by counsel; so that the moment an attorney appears for the parties, the notice should be sent to the attorney, otherwise there is no legal service and there can be no default.

Appellants Cordovis Et. Al. argue that the judgment of default rendered against them was a nullity because the notice of the appealed case was sent to them and not to their counsel, and cite the ruling in Elli v. Ditan, supra, as the rule to follow, being allegedly the most recent. This contention must fall. At the time the notice of the appealed case was sent to Cordovis Et. Al., the doctrine prevailing was the rule in Ortiz v. Mania. supra, promulgated in 1953. When the Ditan case was promulgated in 1962, the judgment in Civil Case No. 3991 had already become final and executory. And moreover, the Ditan case was abandoned in Valenzuela v. Balayo, L-18748, March 30, 1963, where We held that notice of the appealed case sent to the parties themselves, even if represented by counsel, is proper, stating that the reason "lies in the fact that on an appeal from an inferior court, only the complaint in the justice of the peace court is deemed reproduced, and the proceeding immediately following the filing of the complaint is the summoning of the defendant. Instead, however, of being summoned, he is only personally notified because he is already within the court’s jurisdiction, the notice taking the place of the summons." 3

WHEREFORE, the order of dismissal appealed from is hereby affirmed, with costs against appellants. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro, Angeles and Fernando, JJ., concur.


1. Hermogenes Obias had died and had been substituted by his heirs.

2. Ortiz v. Manila, L-5147, 93 Phil. 317.

3. Ortiz v. Mania, Phil. 317, 318.

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