G.R. No. L-22670; January 31, 1969
GUALBERTO V. MAGNO, petitioner, vs. HON. MONTANO A. ORTIZ, in his capacity as Judge of the Court of First Instance of Agusan, THE CLERK OF COURT, Court of First Instance of Agusan, THE PROVINCIAL SHERIFF OF AGUSAN and ROGACIANO SUAZO, respondents.

FACTS

On October 31, 1963, a judgment was rendered in favor of plaintiff Rogaciano Suazo in Civil Case No. 410, declaring him the owner of Lot No. 2987. Petitioner Gualberto V. Magno, an intervenor claiming the land as a purchaser from a defendant, received a copy of the judgment on December 12, 1963. On January 11, 1964 (the 30th day from receipt), the intervenor filed by registered mail a motion for reconsideration, which did not contain a notice of hearing. On January 27, 1964, respondent Judge motu proprio caused a notice to be served, setting the motion for hearing on February 8, 1964. On the same day, respondent Suazo moved for the issuance of a writ of execution, arguing the decision had become final and executory. Both motions were heard. On March 9, 1964, respondent Judge issued an order denying the motion for reconsideration and allowing the issuance of a writ of execution. Upon receipt, the intervenor filed a notice of appeal, cash appeal bond, and record on appeal. The intervenor’s motion to reconsider the order allowing execution was denied on March 31, 1964. Petitioner then filed this petition for certiorari, alleging grave abuse of discretion, and a writ of preliminary injunction was issued.

ISSUE

Whether or not petitioner’s motion for reconsideration, filed without a notice of hearing but concerning which a notice was subsequently caused by the court itself to be served, suspended the period for appeal.

RULING

The writ prayed for is denied and the preliminary injunction is lifted. The motion for reconsideration did not suspend the period for appeal. The motion, being in substance a motion for new trial (asserting the decision was contrary to law), was governed by Section 2 of Rule 37 in relation to Sections 4, 5, and 6 of Rule 15 of the Rules of Court. These rules require the movant to serve a written notice stating the time and place of the hearing; without proof of such service, the motion shall not be acted upon. The motion filed by petitioner contained absolutely no notice of hearing. The duty to give notice devolves upon the movant, not the court. The notice of hearing issued motu proprio by the respondent Judge sixteen days after the motion was filed did not cure the defect. Since a defective motion for reconsideration does not toll the running of the period for appeal, the decision had already become final when the court issued its notice. The cases cited by petitioner (Borja vs. Tan, Duran Embate vs. Penolio, Sun Un Giok vs. Matusa, et al., and Inesin, et al. vs. Canonoy, et al.) were distinguished as involving different circumstances or the presence of some form of notice, which are not present in this case.