HON. CLEDERA V. HON. SARMIENTO
), together with a notice
J. MAKASIAR | PETITION FOR CERTIORARI
WITH A WRIT OF P.I.
FACTS:
1. PRs were employees of the provincial
government of Camarines Sur and paid
under the plantilla of personnel of the
road and bridge fund budget
2. The provincial board of the province of
Camarines Sur passed Resolution No.
176, series of 1968, which approved the
road and bridge fund budget of the
province for the fiscal year 1968-1969
and abolished the positions of herein
private residents, who as a consequence
filed Civil Cases Nos. 6591 and 6763
before the respondent Judge sitting at
Naga City for prohibition and/or
mandamus with damages seeking their
reinstatement and payment of back
salaries as well as the restoration of their
respective positions previously occupied
by them in the plantilla of personnel of
the road and bridge fund budget.
3. The parties, upon agreement (after PRE-
trial), agreed that the civil cases be
decided jointly
4. The parties were given five (5) days from
July 14, 1969 or until July 19, 1969 to
submit their respective memoranda,
after which the two cases would be
deemed submitted for decision
5. 7/18/69: PRs filed a motion to reopen the
case and to allow them to present
additional evidence consisting of the
budget and plantilla of personnel of the
road and bridge fund for the fiscal year
PS FILED AN OPPOSITION
6. Hon. Sarmiento denied PRs motion MR
(which motion does not contain any
notice at all setting the time, date and
place of hearing)
7. PRs filed a request addressed to the
clerk of court to set for hearing on
November 24, 1969 their aforesaid
motion for reconsideration dated
November 3, 1969, expressly stating
that a copy of the same was delivered to
the Provincial Fiscal that same day,
November 20, 1969 Sarmiento
required Ps to submit their opposition
within five days after receiving a copy of
the MR
8. Sarmiento set aside his first order
reopened the case and allowed PRs to
submit addtl. evidence
9. TC: rendered a decision in favour of
respondents
10. Decision was received by the Provincial
Fiscal on May 12, 1970
11. On June 8, 1970, the herein petitioners,
through Assistant Provincial Fiscal
Enrique A. Amador, filed a 15 page
motion dated June 6, 1970 for
reconsideration of the aforesaid decision
(pp. 41-55, rec.
of hearing (p. 56, rec.) address to the
clerk of court
12. Both the aforesaid motion for
reconsideration and said notice of
hearing were personally delivered to and
received on the same day June 8, 1970
by the counsel of herein respondents
whose office is in Naga City itself
13. PRs filed a motion for execution; ground:
questioned decision had already become
final (no appeal was interposed 30 days
after May 12)
14. Herein petitioners filed their opposition
dated June 17, 1970 to the aforesaid
motion for execution on the ground that
they had complied with Sec. 2 of Rule 37
in connection with Secs. 4, 5, and 6 of
Rule 15 of the Revised Rules of Court;
and that their motion for reconsideration
is considered as a motion for new trial
15. Respondent judge however granted PRs
motion for execution (the requirements
of Secs. 4, 5, and 6 of Rule 15 of the
Rules of Court are mandatory in relation
to See. 2 of Rule 37 of the Revised Rules
of Court)
16. Ps the filed an urgent motion for
reconsideration denied
a. R.J. admitted that the counsel for
herein petitioners so informed
him on June 8, 1970 of the desire
of the respondents members of
the provincial board to be heard
by themselves on the motion for
reconsideration (p. 127, rec.), to
which he replied "By all means",
believing then "that the motion
was in order"
FIRST ISSUE: RE: RJs act of granting PRs
motion: Assistant Provincial Fiscal Amador, as
counsel for herein petitioners, is already
estopped from questioning its validity for non-
compliance with Sections 4, 5 and 6 of Rule 15,
by reason of his failure to submit his opposition
to the said motion for reconsideration, despite
the fact that he was granted by the respondent
Judge in an order dated November 26, 1969,
five (5) days from receipt there of within which
to submit his opposition. Such failure to contest
the aforesaid motion dated November 3, 1969
for the reconsideration of the order dated
September 10, 1969 denying the motion of
herein private respondents for the re-opening of
the two cases constitutes abandonment or
waiver of the right on the part of herein
petitioners to challenge the validity of the said
motion for reconsideration and the consequent
order dated December 4, 1969 granting the
same, and such want of notice cannot he raised
for the first time on appeal, nor certiorar
SECOND ISSUE: WHETHER THE ORDER OF
EXECUTION. DATED JULY 17, 1970, THE
ORDER DATED JULY 29, 1970 DENYING
HEREIN PETITIONERS' MOTION FOR
RECONSIDERATION OF THE SAID ORDER OF
EXECUTION AND THE WRIT OF EXECUTION
DATED JULY 22, 1970 WERE VALIDLY
ISSUED
1. Hon. Sarmiento correctly rejected the
contention of herein petitioner that the
said notice of hearing substantially
complies with the aforementioned
provisions of the Rules of Court, invoking
the cases of Bath, Fulton, Magno,
Almacen and Sebastian, supra. All these
five cases decided in 1965, 1967, 1969
and 1970 and after the effectivity on
January 1, 1964 of the Revised Rules of
Court, reiterated the rule that the
requirements of Sections 4, 5, and 6 of
Rule 15 in relation to Section 2 of Rule 37
of the Revised Rules of Court are
mandatory and non-compliance
therewith renders any motion as a
useless scrap of paper, which does not
merit the attention of the court
2. The written notice referred to evidently
is that prescribed for motions in general
by Rule 15, sections 4 and 5 (formerly
Rule 26), which provide that such notice
shall state the time and place of hearing
and shall be served upon all parties
concerned at least three days in
advance. And according to Section 6 of
the same rule no motion shall be acted
upon by the court without proof of such
notice. Indeed it has been held that in
such a case the motion is nothing but a
useless piece of paper (PNB vs. Donasco
L-18638, Feb. 28, 1963, citing Manakil
vs. Revilla, 42 Phil. 81; Roman Catholic
Bishop of Lipa vs. Municipality of Unisan,
44 Phil. 866; Director of Lands vs. Sanz,
45 Phil. 117). The reason is
obvious, unless the movant sets the
time and place of hearing the court
would have no way to determine
whether that party agrees to or objects
to the motion, and if he objects, to hear
him on his objection, since the Rules do
not fix any period within which he may
file his reply or opposition.
3. The notice required by Section 2 of Rule
37 in relation to Sections 4, 5, and 6 of
Rule 15 is mandatory, and the failure to
give the same is fatal.
4. Sections 4 and 5 of Rule 15 require that
the notice shall be directed to the parties
concerned and shall state the time and
place for the hearing of the motion,
which notice shall also be served to all
parties concerned at least three (3) days
before the hearing thereof, together with
a copy of the motion and other
supporting documents. Section 4 of Rule
15 does not state that such notice shall
be directed to the clerk of court, much
less to the judge himself. Neither does it
allow that the notice shall be served any
time before or on the day of the hearing,
for the rule requires that the adverse
parties should be served with such
notice at least three days before the
hearing, to give them an opportunity to
contest the motion and be heard
thereon. There is no ambiguity nor
vagueness in the rules. Failure to give at
least three days notice prior to the
hearing vitiates the notice.
5. IN THE CASE AT BAR: as pointed out by
the respondent Judge, the notice of
hearing was addressed to the clerk of
court, not to the adverse parties. It did
not set the time and place of hearing. On
the contrary, from its tenor it was to be
submitted for the immediate resolution
of the court, without giving the adverse
party at least three (3) days to oppose
the motion for reconsideration of the
decision.
6. Assistant Provincial Fiscal Amador had
still three (3) days within which to cure
the very defective notice of hearing from
June 8, 1970, when he filed his motion of
the reconsideration of the decision until
June 11, 1970, when the 30-day period
of appeal expired and the decision
became final. But he miserably
neglected to do so, in spite of the fact
that in the afternoon of June 8, 1970,
respondent Atty. Nicanor E. Orio, a
member of the provincial board and one
of the herein petitioners, asked him to
request the clerk of court to set the
motion for hearing because the
respondent members of the provincial
board desired to argue their motion for
reconsideration by themselves, about
which desire he himself informed the
respondent Judge that same afternoon of
June 27,1970 on his urgent motion dated
July 22, 1970 for the reconsideration of
the order of execution dated July 17,
1970 (Annex U, pp. 124-127, rec.),
Assistant Provincial Fiscal Amador
admitted his negligence in not
submitting an appropriate notice of
hearing regarding his motion for
reconsideration of the decision as
required by Sections 4, 5, and 6 of Rule
15 in relation to Section 2 of Rule 37 of
the Revised Rules of Court. When he
recalled at said hearing on July 27, 1970
that he informed the respondent Judge
about the desire of the provincial board
members to argue their motion for
reconsideration of the decisions,
respondent Judge replied that his answer
to the aforesaid information was "by all
means", believing then "that the motion
was in oreder" and that he had no inkling
that the motion was defective
7. EXCEPTIONS TO STRICT CONSTRUCTION
(not applicable to the instant case: the
deficiency of the notice of hearing in the
 Matusa case was cured when the clerk of
court set the motion for hearing and the
court took cognizance of the motion on
the date set for hearing thereof by the
clerk of court; it is patent in the Canonoy
case that the failure on the part of
counsel to set the date of hearing of his
motion was not due to neglect or
negligence on his part but because he
could not do so as he did not know the
date or the month when the next yearly
section of the court in Pagadlian would
take place as there was no showing that
at the time he filed his motion the court
had already fixed the date for the next
term.
8. WHY IS IT INAPPLICABLE: It is evident
therefore that the circumstances which
compelled the court to regard the notice
of hearing in the Matusa case; as having
been remedied or which justified the
failure inability of the counsel in the
Canonoy case to fix a date for the
hearing of his motion, dip not obtain in
the instant case. Here, the clerk of court
did not set the motion of herein
petitioners for reconsideration of the
decision for hearing on a definite date,
much less did the respondent Judge take
cognizance of the said motion for
reconsideration. And the respondent
Judge holds hearing every business day
throughout the year in Naga City, unlike
the Judge in the Canonoy case.
ORDERS AFFIRMED.
CRUZ V. CA
J. CARPIO | RULE 45 PETITION
FACTS:
1. The City Prosecutor of Manila charged
petitioner with the crime of Estafa thru
Falsification of Public Document before
the Manila Regional Trial Court
2. Petitioner executed before a Notary
Public in the City of Manila an Affidavit of
Self-Adjudication of a parcel of land
stating that she was the sole surviving
heir of the registered owner when in fact
she knew there were other surviving
heirs. Since the offended party did not
reserve the right to file a separate civil
action arising from the criminal offense,
the civil action was deemed instituted in
the criminal case
3. The trial court rendered its decision
dated January 17, 1994 acquitting
petitioner on the ground of reasonable
doubt. In the same decision, the trial
court rendered judgment on the civil
aspect of the case, ordering the return to
the surviving heirs of the parcel of land
located in Bulacan
4. On January 28, 1994, petitioner received
a copy of the decision.
5. On February 10, 1994, petitioner filed by
registered mail a motion for
reconsideration dated February 7, 1994,
assailing the trial courts ruling on the
civil aspect of the criminal case.
Petitioner furnished the City Prosecutor a
copy of the motion by registered mail
DENIED there is nothing to show that
the Office of the City Prosecutor was
actually furnished or served with a copy
of the said Motion for Reconsideration
within the reglementary period of fifteen
(15) days from receipt by the accused on
January 28, 1994 of a copy of the Courts
decision dated January 17, 1994, so that
the same is already final and executory,
6. Petitioner moved for a reconsideration of
the trial courts order of April 18, 1994.
The trial court denied the same in an
order dated May 6, 1994
7. CA: denied due course to the petition
and dismissed the case for being
insufficient in substance; citing Sec. 10,
Rule 13, the CA held that from the
language of the said section is that in
case service is made by registered mail,
proof of service shall be made by (a)
affidavit of the person mailing and (b)
the registry receipt issued by the mailing
office. Both must concur. In the case at
bench, there was no such affidavit or
registry receipt when the motion was
considered
8. Hence, this petition GRANTED
When the accused is acquitted on reasonable
doubt but is adjudged civilly liable, his motion
for reconsideration of the civil aspect must be
served not only on the prosecution, also on the
offended party if the latter is not represented by
a private counsel. Moreover, if the trial court
has jurisdiction over the subject matter and
over the accused, and the crime was committed
within its territorial jurisdiction, it necessarily
exercises jurisdiction over all matters that the
law requires the court to resolve. This includes
the power to order the restitution to the
offended party of real property located in
another province.
WHETHER PETITIONERS MOTION FOR
RECONSIDERATION DATED FEBRUARY 7,
1994 COMPLIED WITH THE MANDATORY
REQUIREMENTS OF SECTION 6, RULE 15
ON PROOF OF SERVICE?
1. NO.
2. he Court has stressed time and again
that non-compliance with Sections 4, 5
and 6 of Rule 15 is a fatal defect. The
well-settled rule is that a motion which
fails to comply with Sections 4, 5, and 6
of Rule 15 is a useless piece of paper. If
filed, such motion is not entitled to
judicial cognizance and does not stop
the running of the reglementary period
for filing the requisite pleading
 3. SEC. 6, RULE 15: From the language of
the rule, proof of service is mandatory.
Without such proof of service to the
adverse party, a motion is nothing but
an empty formality deserving no judicial
cognizance.
4. SEC. 13, RULE 13: If service is by
registered mail, proof of service consists
of the affidavit of the person
mailing and the registry receipt, both
of which must be appended to the
motion. Absent one or the other, or
worse both, there is no proof of service.
In the instant case, an examination of
the record shows that petitioner received
a copy of the trial courts decision of
January 17, 1994 on January 28, 1994.
Within the reglementary period to
appeal, petitioner filed on February 10,
1994, by registered mail, a motion for
reconsideration. However, petitioner
failed to attach both the affidavit and
the registry receipt to the motion for
reconsideration as required by the Rules.
The defect of the motion is apparent on
its face. Petitioners motion for
reconsideration was a mere scrap of
paper as it did not contain the required
proof of service.
WHETHER THE PUBLIC PROSECUTOR IS
THE ONLY PROPER PARTY TO BE SERVED
WITH PETITIONERS MOTION FOR
RECONSIDERATION?
1. YES.
2. The present Rules do not require the
accused to serve a copy of his motion for
reconsideration on the offended party
who may not be represented by a private
counsel. The Rules require service only
on the public prosecutor if the
offended party is not represented
by a private counsel.
3. A judgment of acquittal is immediately
final and executory and the prosecution
cannot appeal the acquittal because of
the constitutional prohibition against
double jeopardy. However, either the
offended party or the accused may
appeal the civil aspect of the judgment
despite the acquittal of the accused. The
public prosecutor has generally no
interest in appealing the civil aspect of a
decision acquitting the accused.The
acquittal ends the work of the public
prosecutor and the case is terminated as
far as he is concerned. The real parties in
interest in the civil aspect of a decision
are the offended party and the accused.
4. THUS WITH RE: TO THE CIVIL ASPECT OF
THE CASE: any appeal or motion for
reconsideration of the civil aspect of a
decision in a criminal case must be
served on the other real party in interest.
If the offended party appeals or moves
for reconsideration, the accused is
necessarily served a copy of the
pleading through his counsel.
5. If the accused appeals or moves for
reconsideration, a lacuna arises if the
offended party is not represented by a
private counsel. In such a situation,
under the present Rules only the public
prosecutor is served the notice of appeal
or a copy of the motion for
reconsideration. To fill in this lacuna in
the present Rules, we require that
henceforth if the accused appeals or
moves for reconsideration, he should
serve a copy of his pleading on the
offended party himself if the latter is not
represented by a private counsel. This is
in addition to service on the public
prosecutor who is the counsel of record
of the State.
6. In the instant case, the Court notes that
petitioner did not serve a copy of her
motion for reconsideration on the
offended party who was not represented
by a private counsel in the trial court. In
the interest of justice, and considering
that the present Rules are silent on the
matter, it is only fair to give petitioner a
period of five days from receipt of this
decision within which to serve a copy of
her motion for reconsideration on the
offended party.
OTHER ISSUE: JURISDICTION: In the
instant case, the trial court had jurisdiction over
the subject matter as the law has conferred on
the court the power to hear and decide cases
involving estafa through falsification of a public
document. The trial court also had jurisdiction
over the offense charged since the crime was
committed within its territorial jurisdiction. The
trial court also acquired jurisdiction over the
person of accused-petitioner because she
voluntarily submitted to the courts authority.
Where the court has jurisdiction over the
subject matter and over the person of the
accused, and the crime was committed within
its territorial jurisdiction, the court necessarily
exercises jurisdiction over all issues that the law
requires the court to resolve. One of the issues
in a criminal case is the civil liability of the
accused arising from the crime. Article 100 of
the Revised Penal Code provides that [E]very
person criminally liable for a felony is also civilly
liable. Article 104 of the same Code states that
civil liability x x x includes restitution.
The action for recovery of civil liability is
deemed instituted in the criminal action unless
reserved by the offended party.[19] In the instant
case, the offended party did not reserve the
civil action and the civil action was deemed
instituted in the criminal action. Although the
trial court acquitted petitioner of the crime
charged, the acquittal, grounded on reasonable
doubt, did not extinguish the civil liability.
[20]
Thus, the Manila trial court had jurisdiction to
decide the civil aspect of the instant case -
ordering restitution even if the parcel of land is
located in Bulacan.