G.R. No. L-4075; January 23, 1952
CONCHITA MARTINEZ, ET AL., plaintiffs-appellees, vs. SATURNINA MARTINEZ, ET AL., defendants-appellant.

FACTS

Macario Martinez filed an action for forcible entry against Saturnina Martinez and Vicente Paragua in the justice of the peace court of Butuan, Agusan. The court ruled in favor of the plaintiff. The defendants appealed to the Court of First Instance of Agusan, which initially rendered a default judgment against them on October 28, 1947, due to their failure to file an answer and appear at trial. This decision was later vacated because the court sent the necessary notice to the defendants themselves, not to their attorney of record, Apolonio D. Curato. On March 12, 1948, the defendants, through Atty. Curato, filed their answer. The trial was set for October 13, 1949, at 8:00 AM, and notice was sent by registered mail to Atty. Curato at his address of record in Butuan, Agusan. Neither the defendants nor their attorney appeared at the trial. The court proceeded to receive evidence from the plaintiffs (Conchita Martinez, Paulino Martinez, and Carmelita Martinez, who were substituted for the deceased Macario Martinez) and rendered judgment on October 15, 1949, ordering the defendants to vacate the lots and pay damages. The defendants filed a motion (amended on March 13, 1950) to set aside the decision and grant a new trial, arguing that Atty. Curato did not receive the notice because he was absent from Agusan province, engaged in political campaigns in Surigao and Davao. The trial court denied this motion on March 28, 1950, prompting this appeal.

ISSUE

Whether the trial court erred in denying the defendants’ motion to set aside the decision and grant a new trial based on their attorney’s failure to receive the notice of trial due to his absence from his address of record.

RULING

The appealed order is affirmed. The trial court committed no error. Under Section 8, Rule 27 of the Rules of Court, service by registered mail 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 first notice, service takes effect at the expiration of that period. Under Section 2, Rule 27, when a party appears by an attorney, service must be made upon the attorney unless the court orders service upon the party. The notice was properly sent to the attorney of record. The post office delivered the usual three notices to the attorney’s residence and office in Butuan. His failure to claim the registered mail because he was absent from the province does not constitute a valid excuse. The Supreme Court, citing Enriquez vs. Bautista, emphasized that an attorney owes it to himself and his clients to adopt a system to receive judicial notices promptly even during absence from the address of record. The contention that notice should have been sent to the parties themselves under Section 3, Rule 31 is unavailing, as the term “parties” in that rule does not exclude the application of Section 2, Rule 27 when a party is represented by counsel. The failure to claim the notice was not an excusable neglect but the very kind of inaction that makes service by registered mail effective under the rules, as held in Tielago vs. Generosa.