G.R. No. L-1443; September 9, 1947
MARTIN ENRIQUEZ and DAMASA PONSECA, petitioners, vs. BASILIO BAUTISTA, Judge of First Instance of Bataan, and LAUREANO PAGUIO, respondents.

FACTS

Petitioners Martin Enriquez and Damasa Ponseca filed a third petition for investigation in Special Proceeding No. 1645 of the Court of First Instance of Bataan on October 11, 1946, the first two having been denied in 1939 and 1946. The respondent Judge, Basilio Bautista, denied this petition in an order dated October 25, 1946. A copy of this order was sent by registered mail by the Clerk of Court to petitioners’ attorney at his address, c/o House of Representatives, Manila, on the same date. According to a certification from the acting assistant superintendent of the Manila Post Office, the registered letter was returned as “UNCLAIMED” on December 3, 1946, after the addressee failed to claim it despite three postal notices issued on October 28, 31, and November 3, 1946. On December 14, 1946, the Clerk of Court remailed the same notice, which the attorney received on January 6, 1947. On January 28, 1947, petitioners’ new attorney filed a record on appeal to perfect an appeal from the October 25, 1946 order. The respondent Judge disapproved this record on appeal in an order dated March 12, 1947, on the ground that it was filed out of time. Petitioners then filed this petition for mandamus to compel the respondent Judge to approve the record on appeal.

ISSUE

Whether the petitioners’ record on appeal was filed within the reglementary period, which depends on when service of the October 25, 1946 order was deemed complete—upon the attorney’s actual receipt on January 6, 1947, or upon the expiration of five days from the first postal notice in October/November 1946.

RULING

The Supreme Court dismissed the petition, ruling that the record on appeal was filed out of time. Service by registered mail is governed by Section 8, Rule 27 of the Rules of Court, which states that service is complete upon actual receipt by the addressee, but if the addressee fails to claim the mail from the post office within five days from the date of the first notice of the postmaster, service takes effect at the expiration of such time. The Court held that the positive certification of the post office superintendent that three notices were sent, coupled with the legal presumption that official duty was regularly performed, prevails over the attorney’s allegation of non-receipt. The attorney did not notify the court of any change of address from the one he provided. The Court found no merit in the contention that the remailing of the notice on December 14, 1946, reset the period, as that act was unnecessary and not court-ordered. Consequently, service was deemed complete five days after October 28, 1946 (the first notice), or on November 3, 1946. The 30-day period to appeal thus expired before the record on appeal was filed on January 28, 1947.
DISSENTING OPINION (Justice Perfecto):
Justice Perfecto voted to grant the petition, arguing that the period to appeal should be counted from January 6, 1947, the date of actual receipt. He contended that Section 8 of Rule 27 refers to a notice actually received by the addressee, not merely sent. A notice sent but not received is no notice at all. The postmaster’s statement that notices were sent is not evidence they were received, especially when receipt is denied. Basing a legal effect on a fiction of receipt when there is no actual notice leads to injustice.