GR 38612; (March, 1977) (Digest)
G.R. No. L-38612 March 29, 1977
MARCELISA VECINO, petitioner, vs. THE HONORABLE COURT OF APPEALS and FELISA VECINO, respondents.
FACTS
Private respondent Felisa Vecino applied for land registration. Petitioner Marcelisa Vecino, her sister claiming co-ownership by inheritance, appeared only after a decision in Felisa’s favor was rendered, by filing a petition for review. This petition was dismissed by the trial court on July 6, 1972. A copy of this dismissal order was sent by registered mail to petitioner’s counsel but was returned unclaimed. Counsel later obtained a xerox copy from petitioner’s son. On August 16, 1972, counsel moved for a 10-day extension to file a motion for reconsideration, which was granted. The motion for reconsideration was filed on August 25, 1972, and was denied on September 2, 1972. Counsel received notice of this denial on September 14, 1972. Petitioner then filed a notice of appeal and appeal bond on September 15, and her record on appeal on October 3, 1972.
The trial court initially dismissed the appeal as late but, upon reconsideration, approved it. Felisa moved to dismiss the appeal in the Court of Appeals, arguing it was perfected out of time. The appellate court granted the motion, ruling that service of the July 6 order was deemed complete in July 1972, making the subsequent record on appeal filed on October 3, 1972, beyond the reglementary period.
ISSUE
Whether or not the Court of Appeals erred in dismissing the appeal on the ground that it was not perfected within the reglementary period.
RULING
Yes, the Supreme Court reversed the Court of Appeals. The legal logic centers on the proper reckoning of the period to appeal. The Court held that for the reglementary period to run, there must be valid service of the order or judgment in a manner prescribed by the Rules of Court. Service by registered mail is complete upon expiration of five days from the date the addressee fails to claim the mail after the first notice from the postmaster. Here, while the order was mailed, it was returned unclaimed. Critically, there was no proof that a first notice was actually received by counsel. The Court found the appellate court’s assumption of a “second notice” insufficient to establish the date of first notice, which is essential for the five-day period to commence.
Consequently, there was no valid service by mail. The earliest date counsel could be deemed served was August 16, 1972, when he filed his motion for extension, which constituted an acknowledgment of his receipt of the order. From this date, the period to appeal began. The motion for reconsideration filed on August 25 tolled the running of the period. Upon denial on September 14, petitioner had the remaining balance of the 30-day period to perfect her appeal. The record on appeal filed on October 3, 1972, was well within this computed period. Therefore, the appeal was timely perfected, and the Court of Appeals was ordered to give it due course.