[ G.R. No. L-1371. August 05, 1947 ] 79 Phil. 3
[ G.R. No. L-1371. August 05, 1947 ]
AUGUSTO ONGSIAKO, PLAINTIFF AND APPELLEE, VS. JUDGE FELIPE NATIVIDAD, DEFENDANT AND APPELLANT. D E C I S I O N
MORAN, C.J.:
On May 22, 1944, Anselmo V. Tolentino filed an action in the Court of First Instance of Manila to compel Augusto V. Ongsiako, to execute a deed of reconveyance of a house and lot situated in Manila. On September 6, 1944, after trial, judgment was rendered as prayed for in the complaint. It is now alleged that on September 23, 1944, defendant Ongsiako filed his intention to appeal, record on appeal and an appeal bond, but Manila was bombed and the record on appeal was not acted upon by the court. On June 19, 1945, Anselmo V. Tolentino filed a petition for reconstitution of the case. After reconstitution, upon motion of Tolentino, the lower court issued an order of execution, it appearing from the record thus reconstituted that no appeal bond had ever been filed within the time provided by the Rules. Ongsiako sought the reconsideration of this order, but his motion to that effect was denied.
Ongsiako, petitioner in certiorari, now prays for the annulment of the lower court’s order declaring said case reconstituted and the order of execution issued on December 16, 1948, on the ground that he was not duly notified of (a) the petition for reconstitution, (b) the order declaring said case reconstituted, and (c) the motion for execution.
At the outset, it must be stated that the petition for certiorari is not proper. The proper remedy would have been a petition before the respondent court for relief under Rule 38 of the Rules of Court, wherein evidence of lack of notice should have been offered, and appeal taken if petition were denied. Under such procedure, evidence would have been orderly offered by both parties and such evidence would now be complete before the appellate court thus enabling the settlement upon clear grounds of the issues raised in the petition, and such appellate court would properly have been the Court of Appeals, and not this court the question involved being mainly one of fact.
But petitioner chose not to follow the proper procedure, and instead filed before us a petition for certiorari which should have been filed with the Court of Appeals for it is a remedy in aid of its appellate jurisdiction over the principal case. And in said petition for certiorari, petitioner, instead of adducing specific evidence of the lack of notice pleaded by him, wishes to refer this court to the reconstituted record of the principal case to search for such evidence. The petition would have been dismissed for the reasons above stated had it not already been extensively argued before us and had we not found that the issues are so groundless as to deserve no further consideration by other courts.
Petitioner alleges that he was not notified of the petition for reconstitution. In the reconstituted record, there appears a statement at the end of said petition that a copy thereof was sent by ordinary mail to petitioner’s attorneys, Gallego and De los Reyes. Although this statement is not sufficient proof of service, nevertheless, since the petition for reconstitution was acted upon by the court, it is presumed that the proceeding was regular and that all the steps required by law to be taken before the court could validly act thereon, had been so taken, and one of them being the service of notice upon opposing counsel. In the record of the case, there is absolutely nothing to show that service has not actually been made. The presumption then stands.
Petitioner further alleges that he was not duly notified of the order of June 25, 1945, declaring the case reconstituted. The records show that the sheriff’s return with his certification that a copy of said order was duly served by leaving the same at the office of petitioner with an employee having charge thereof. Petitioner claims that such service should have been made on his attorneys and not on him. But these attorneys failed to appear when they were notified of the petition for reconstitution. Moreover, notice upon a party is also valid if ordered by the court (Rule 27, section 2) and there is nothing to show that there has been no such order, hence, regularity of procedure is presumed.
Petitioner also alleges that he received no copy of the motion for execution. The records contain as exhibit the registry return card showing that a copy of said motion was sent to petitioner’s attorneys of record, and that the same was duly received. In attempting to refute this particular service on his attorneys, petitioner claims that the law firm had been dissolved. Yet, as to the order declaring the case reconstituted served upon him personally, he claims that service should have been made on his attorneys. And again, as to the petition for reconstitution served by ordinary mail upon his attorneys, petitioner claims that service was neither made on him or his attorneys. This inconsistent stand, together with his actual knowledge of the reconstitution of the case at least from the service on him of the order declaring the case reconstituted, substantially dilutes petitioner’s good faith in the premises.
In view of all the foregoing, the petition is dismissed with costs against petitioner.
Paras, Feria, Pablo, Bengzon, Briones, Padilla, and Tuason, JJ., concur.