G.R. No. L-22531 September 23, 1966
REMEGIA RIEGO and AGAPITO REVILLOSA, plaintiffs-appellants, vs. PABLO RIEGO, JACINTO RABE and CATALINA PADOLINA, defendants-appellees.

FACTS

The spouses Remegia Riego and Agapito Revillosa filed a complaint on September 5, 1961, seeking to exercise a right of pre-emption over two parcels of land. These lands were part of the inheritance from Remegia’s deceased father and had been assigned to her brother, defendant Pablo Riego, in an extrajudicial partition deed. The deed contained a stipulation granting co-heirs a right of pre-emption if any inherited property assigned to a co-heir was sold to third parties. Pablo Riego sold the parcels to defendants Catalina Padolina and Jacinto Rabe without notifying the plaintiffs. The plaintiffs prayed for the annulment of the deeds of sale and for the conveyance of the lands to them under the same conditions. The defendants moved to dismiss the complaint on the grounds that it stated no cause of action due to lack of the written notice required by Article 1623 of the New Civil Code for exercising the right of pre-emption, and that any cause of action was barred by the statute of limitations as the right was not exercised within thirty days from December 1960 when plaintiffs learned of the sales. The trial court granted the motion and dismissed the complaint on November 28, 1962. A copy of the dismissal order was served by mail on plaintiff Agapito Revillosa on December 6, 1962. On June 26, 1963, plaintiffs filed a motion for reconsideration, which defendants opposed as filed out of time. The court denied the motion on August 24, 1963, prompting this appeal.

ISSUE

Whether the service of a copy of the order of dismissal upon one of the plaintiffs, Agapito Revillosa, instead of upon their attorney of record, was sufficient for the purpose of computing the thirty-day period within which plaintiffs could appeal or move for reconsideration.

RULING

Yes, the service was valid. The Supreme Court affirmed the trial court’s order denying the motion for reconsideration as filed out of time. Under Section 2, Rule 13 of the Revised Rules of Court, when a party appears by an attorney, service of notices must be made upon the attorney unless the court orders otherwise. In this case, the trial court had ordered that notice be served directly on the plaintiffs. This order was justified because the whereabouts of plaintiffs’ original counsel, Atty. Ortañez de Guia, could not be ascertained, as evidenced by the court’s judicial notice of his inability to be located in other cases. Since the service of the dismissal order on plaintiff Revillosa on December 6, 1962, was valid, the thirty-day period for filing a motion for reconsideration began from that date. The motion filed on June 26, 1963, was therefore untimely.