G.R. No. L-320; July 31, 1946
JACINTO NOTOR, petitioner, vs. INIGO S. DAZA, Judge of First Instance of Batangas, and RAMON MARTINEZ, as guardian of incompetent Pedro Martinez, respondents.

FACTS

In Civil Case No. 181 of the Court of First Instance of Batangas, entitled “Ramon Martinez, as Guardian of the Incompetent Pedro Martinez versus Jacinto Notor,” a decision was rendered on August 18, 1945. The petitioner, defendant Jacinto Notor, filed his notice of appeal, appeal bond, and record on appeal on November 24, 1945. The respondent judge, in an order dated December 12, 1945, disapproved the record on appeal, computing that it was filed 35 days after notice of the decision, which the lower court held was served on September 3, 1945, by leaving a copy at the house of defendant’s father-in-law. The order noted that a motion for new trial was filed on September 22 and denied on November 8, and computed the period from September 3 to September 22 and from November 8 to November 24 as totaling 35 days. Petitioner filed a motion for reconsideration on January 2, 1946, alleging that service of the decision was legally effected on September 9, 1945, when his attorney of record actually received a copy, and that notice of the order denying the motion for new trial was actually received by said attorney only on November 10, 1945. Under this computation, only 27 days had elapsed. The respondent judge denied the motion for reconsideration on February 7, 1946. Petitioner seeks mandamus to compel approval of the record on appeal.

ISSUE

When did service of copy of the decision take legal effect—on September 3, 1945, when a copy was left at the house of defendant’s father-in-law, or on September 9, 1945, when defendant’s attorney of record actually received a copy?

RULING

Service took legal effect on September 9, 1945, when defendant’s attorney of record actually received the copy. Section 2 of Rule 27 of the Rules of Court mandates that service shall be made upon the attorney of record unless the court orders service upon the party himself. The respondent judge’s position that this rule applies only to orders and not to decisions is erroneous because: (a) the rule includes “every written notice”; (b) a decision is also a judicial order (the decision in question ended with “So ordered”); and (c) there is no logical ground to restrict the meaning of “order” to preliminary procedural matters. The lower court’s mention that service upon the defendant himself had its “sanction” is incompatible with the rule, which requires a positive court order issued previous to service for such exception. Therefore, the respondent judge had a duty to approve the record on appeal filed on November 24, 1945. The writ of mandamus is granted, commanding the approval and due course of the record on appeal. Costs are taxed against respondent Ramon Martinez, as guardian.