[ G.R. No. L-1443. September 09, 1947 ] 79 Phil. 220
EN BANC
[ G.R. No. L-1443. September 09, 1947 ]
MARTIN ENRIQUEZ AND DAMASA PONSECA, PETITIONERS, VS. BASILIO BAUTISTA, JUDGE, COURT OF FIRST INSTANCE OF BATAAN , AND LAUREANO PAGUIO, RESPONDENTS. D E C I S I O N
PARAS, J.:
In Special Proceeding No. 1645 of the Court of First Instance of Bataan, the herein petitioners, Martin Enriquez and Damasa Ponseca, filed a petition for intervention on October 11, 1946, which was the third of the kind, the first having been denied on June 14, 1939, and the second on July 22, 1946. Said petition was denied by the respondent Judge, Hon. Basilio Bautista, in his order dated October 25, 1946, a copy of which was sent by registered mail by the Clerk of the Court of First Instance of Bataan to petitioners’ attorney, c/o House of Representatives, Manila, on the same date; and according to the certification of the acting assistant superintendent of the Manila Post Office, said registered letter was returned to its sender as “UNCLAIMED” on December 3, 1946, after the addressee had failed to call for it notwithstanding the three notices issued therefor on October 28 and 31 and November 3, 1946. On December 14, 1946, the Clerk of the Court of First Instance of Bataan remailed the same notice to petitioners’ attorney who received it on January 6, 1947. On January 28, 1947, petitioners’ new attorney filed a record on appeal, with a view to the perfection of their appeal from the order of the respondent Judge dated October 25, 1946, which record on appeal was disapproved by the respondent Judge in his order of March 12, 1947, on the ground that the same was presented out of time. The petitioners have therefore filed the present petition for mandamus, praying for an order from this Court directing the respondent Judge to approve said record on appeal.
Petitioners’ main contention is that their original attorney actually received notice of the order in question on January 6, 1947, the date when he in fact got the letter remailed by the Clerk of the Court of First Instance of Bataan on December 14, 1946, and that there is no proof showing that said attorney ever received the three notices sent by the Manila Post Office regarding the registered letter sent by said Clerk of Court on October 25, 1946, it being intimated in this connection that said attorney might have failed to get said notices because the House of Representatives was not then in session and he stayed either in Manila or in Bataan. It is further argued that, even assuming that said attorney got said notices, their effect was nullified or superseded by the action of the Clerk of the Court of First Instance of Bataan in mailing another copy on December 14, 1946, which was in turn received by him on January 6, 1947.
Petitioners’ contentions are without merit. The allegation that petitioners’ former counsel never received the postal notices cannot prevail over the positive statement of the superintendent of the Manila Post Office to the effect that three notices were sent to him, and such statement is fortified by the legal presumption that official duty was regularly performed. It is noteworthy that the registered letter of the Clerk of the Court of First Instance of Bataan containing a copy of the order in question was sent to the very address given by petitioners’ attorney in the petition for intervention, and there is no showing that the clerk of court was ever notified by him of any change of address. The excuse that the attorney did not stay in one place permanently, cannot be accepted, inasmuch as an attorney owes it to himself and to his clients to invariably adopt a system whereby he can be sure of receiving promptly all judicial notices during his absence from his address of record.
The fact that the Clerk of the Court of First Instance of Bataan mailed another notice on December 14, 1946, did not affect the completed service resulting from the sending of the three notices by the Manila Post Office, since said act was unnecessary and the same was not ordered by the court. The further circumstance that on November 19, 1946, petitioners’ original attorney filed in the Court of First Instance of Bataan an independent action covering the subject matter of his petition for intervention, seems to imply knowledge on his part of the order in question or, at least, a waiver of said intervention or disregard of its result.
Under section 8 of rule 27 of the Rules of Court, “Service by registered mail is complete upon actual receipt by the addressee; but if he fails to claim his mail from the post office within five days from the date of first notice of the postmaster, the service shall take effect at the expiration of such time.” There is no reason whatsoever why this rule should not be given effect in this case. Accordingly, the petitioners must be deemed to have been served with notice of the order in question five days after October 28, 1946, or on November 3, 1946. It being admitted that the record on appeal was filed on January 28, 1947, the same was clearly filed beyond the 30-day period from November 3, 1946.
The petition is hereby dismissed, with costs against the petitioners. So ordered.
Moran, C.J., Feria, Pablo, Hilado, Bengzon, Padilla, and Tuason, JJ., concur.