Cortez Vs CA

Supreme Court of the Philippines
172 Phil. 400
SECOND DIVISION
G.R. No. L-32547, May 09, 1978
CONCHITA CORTEZ, ELENA CORTEZ, ROSENDO CORTEZ, JUDINA
CORTEZ AND FERNANDO CORTEZ, PETITIONERS, VS. HON. COURT
OF APPEALS, HON. JUDGE FELIX R. DOMINGO OF BRANCH XV,
COURT OF FIRST INSTANCE OF MANILA, THE SHERIFF, CITY OF
MANILA, SPECIAL SHERIFF REYNALDO JAVIER, KUY GUAM KAY, LTD.
AND MACARIO SUPAN Y MERCADO, RESPONDENTS.
DECISION
AQUINO, J.:
This case is about the propriety of the service of a decision of the Court of
Appeals upon appellants' lawyer, who claimed that he had ceased to be their
counsel but who was not authorized to withdraw from the case.
The question is whether, after the record had been remanded to the trial court
and after a writ of execution had been issued, the Court of Appeals could still
set aside that decision on the theory that it did not become final because it had
not been properly served upon the appellants.
1. On August 12, 1960, Judge E. Soriano of the Court of First Instance of

Manila rendered a decision ordering defendants Kuy Guam Kay, Ltd. and
Macario Supan to pay solidarily the sum of four thousand pesos as damages to
the plaintiffs, the heirs of Severino Cortez (Civil Case No. 34092). The court
found that, due to the driver's negligence, a truck owned by Kuy Guam Kay,
Ltd. and driven by Macario Supan on August 20, 1957, hit and killed Severino
Cortez in Misericordia Street, Sta. Cruz, Manila.
2. Defendants Kuy Guam Kay, Ltd. and Supan appealed to the Court of
Appeals (CA-G. R. No. 28400-R). During the pendency of that appeal, Judge
Luis B. Reyes of the Court of First Instance of Manila in his decision dated June
12, 1961 in Criminal Case No. 41549 acquitted Supan of homicide through
reckless imprudence.
3. Because of that acquittal, Kuy Guam Kay, Ltd. and Supan filed petitions in
the Court of Appeals dated July 14, 1961 and March 26, 1966 to re-open Civil
Case No. 34092 so that the judgment of acquittal could be presented in
evidence. The latter petition was denied on June 15, 1966.
4. On November 17, 1969 the Court of Appeals rendered a decision affirming

the judgment of the lower court in Civil Case No. 34092 with the modification
that the amount of damages was increased to P12,000. A copy of that decision
was served on November 21, 1969 on Atty. Joaquin C. Yuseco, the defendants-
appellants' counsel of record. However, Atty. Yuseco returned that copy and
informed the Court by letter that he had ceased to be the lawyer for defendants-
appellants Supan and Kuy Guam Kay, Ltd. The Court of Appeals in its
resolution of January 13, 1970 noted Yuseco's letter and made the observation
that Yuseco had "not filed any formal motion for the withdrawal of his
appearance" in that case. The Court of Appeals then sent copies of the decision
to the defendants-appellants themselves by registered mail but the copies were
not delivered because they were unclaimed.
5. Thereafter, there was an entry of judgment indicating that the decision of the
Court of Appeals became final and executory on December 8, 1969. The record
was remanded and was received in the lower court on March 25, 1970. Notices
to that effect were sent to Attys. Pacifico Garcia and Yuseco, the parties'
counsels of record.
6. On May 30, 1970 a writ of execution was issued by the lower court. The
sheriff levied upon five freight trucks and an adding machine owned by Kuy
Guam Kay, Ltd. He scheduled the auction sale on June 26, 1970. Instead of
guarding the trucks and adding machine, the sheriff allowed the manager of the
firm to have custody thereof so that they could be used in the firm's business.
On June 26, two trucks and the adding machine were turned over to the
plaintiffs. The other three trucks were sequestered away by the manager of
defendant firm.
7. On June 23, 1970 defendant firm, through a new lawyer, filed in the Court of
Appeals a motion for reconsideration and suspension of execution. It alleged
that there was no valid service of the decision upon it; that the decision is
contrary to the ruling in Corpus vs. Paje, L-26737, July 31, 1969, 28 SCRA 1062
(that the acquittal of the accused of the crime of homicide through reckless
imprudence is a bar to the civil liability), and that the increase of the damages
from P4,000 to P12,000 was unwarranted since the plaintiffs did not appeal.
8. The Court of Appeals in its resolution of July 1, 1970 set aside the entry of
judgment, ordered the lower court to elevate the record of the case, and
required plaintiffs Cortez to comment on the motion for reconsideration. The
plaintiffs opposed the motion. The record was re-elevated to the Court of
Appeals.
9. On August 18, 1970 the Court of Appeals issued a resolution setting aside its
decision of November 17, 1969 and dismissing the complaint on the basis of the
said ruling in Corpus vs. Paje, supra. Plaintiffs' motion for the reconsideration of
that decision was denied.
10. On September 21, 1970, the plaintiffs filed the instant petition for
certiorari against the Court of Appeals, Kuy Guam Kay, Ltd. (which had been
succeeded by Seven-O-Seven Trucking Co., Inc.) and Macario Supan (who
allegedly died in 1962, pp. 150 and 164 of Rollo). The petition is really an appeal
from the resolution of August 18, 1970. After the petitioners had posted a bond
in the sum of P500, this Court issued a writ of preliminary injunction dated
September 30, 1970 to restrain the enforcement of that resolution. Because of
that injunction, the petitioners retained the possession of the adding machine
and the two trucks (p. 203, Rollo).
The petition is meritorious. We hold that the Court of Appeals had no

jurisdiction to set aside on August 18, 1970 its decision of November 17, 1969
which had become final and was in the process of being executed in the lower
court to which the record was remanded after entry of judgment had been made
in the Court of Appeals.
The 1969 decision became final and executory as to defendant-appellant Kuy

Guam Kay, Ltd. because its lawyer of record, Atty. Yuseco, was duly served
with a copy of that decision. It is true that Atty. Yuseco returned that copy to
the Court with the note that he was no longer appellants' counsel but that return
did not nullify the effectiveness of the service upon him since he did not retire
from the case with his client's consent or with the Court's authorization (Sec. 2,
Rule 13 and Sec. 26, Rule 138, Rules of Court; Don Lino Gutierrez & Sons, Inc. vs.
Court of Appeals and Alvendia, L-39124, November 15, 1974, 61 SCRA 87, 91;
Magpayo vs. Court of Appeals and People, L-35966, November 19, 1974, 61 SCRA
115; Baquiran vs. Court of Appeals, 112 Phil. 764; Guanzon vs. Aragon, 107 Phil. 315,
320).
When a party is represented by an attorney, service of orders and notices must

be made upon the latter, and notice to the client and not to his lawyer of record
is not a notice in law (Chainani vs. Tancinco, 90 Phil. 862).
Thus, it was held that, unless the procedure prescribed in section 26 of Rule 138
is complied with, the attorney of record is regarded as the counsel who should
be served with copies of the judgments, orders and pleadings and who should
be held responsible for the conduct of the case (Fojas vs. Navarro, L-26365, April
30, 1970, 32 SCRA 476, 485).
"In order that there may be substitution of attorneys in a given case, there must
be (1) written application for substitution; (2) a written consent of the client, and
(3) a written consent of the attorney to be substituted. And in case the consent
of the attorney to be substituted cannot be obtained, there must at least be
proof that notice of the motion for substitution has been served upon him in
the manner prescribed by our rules." Where the procedure for substitution of
attorney is not followed, the attorney who appears to be on record before the
filing of the application for substitution should be regarded as the attorney
entitled to be served with all notices and pleadings and the client is answerable
for the shortcomings of his counsel of record. (Ramos vs. Potenciano, 118 Phil.
1435).
The counsel of record is obligated to protect his client's interest until he is

released from his professional relationship with his client. For its part, the court
could recognize no other representation on behalf of the client except such
counsel of record until a formal substitution of attorney is effected. (Wack Wack
Golf and Country Club, Inc. vs. Court of Appeals, 106 Phil. 501, 504).
It is noteworthy that in the instant case even after Atty. Yuseco had returned to
the Court the copy of the decision served upon him, the Appellate Court and
the lower court continued to serve copies of orders and resolutions upon him as
defendants' counsel of record without any objection on his part. He was
responsible for the conduct of the case since he had not been properly relieved
as counsel of record of the appellants (See U.S. vs. Borromeo, 20 Phil. 189; Olivares
and Colegio de San Jose vs. Leola, 97 Phil. 253, 257).
WHEREFORE, the resolution of the Court of Appeals dated August 18, 1970
is reversed and set aside with costs against respondent firm.
SO ORDERED.
Fernando, (Chairman), Barredo, Antonio, and Santos, JJ., concur.
Concepcion, Jr., J., did not take part.
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Supreme Court of the Philippines

172 Phil. 400

1. On August 12, 1960, Judge E. Soriano of the Court of First Instance of

4. On November 17, 1969 the Court of Appeals rendered a decision affirming

The petition is meritorious. We hold that the Court of Appeals had no

The 1969 decision became final and executory as to defendant-appellant Kuy

When a party is represented by an attorney, service of orders and notices must

The counsel of record is obligated to protect his client's interest until he is

Fernando, (Chairman), Barredo, Antonio, and Santos, JJ., concur.

Concepcion, Jr., J., did not take part.

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