Any motion with a notice of hearing that is not addressed to all parties, in violation of Section 5, Rule 15 of the Rules of Court, is a mere scrap of paper which should not be accepted for filing and, if filed, is not entitled to judicial cognizance.
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Facts:
Spouses Garcia filed an action for forcible entry against Alvarez. After hearing, Judge Diaz ruled in favor of the plaintiff spouses. Spouses Garcia then moved to execute the judgment. The notice of hearing of the motion for execution, however, was addressed only to the clerk of court and not to the parties:
The Clerk of Court
MTC Branch 37
Quezon City
Kindly include this motion in your calendar for February 3, 1998 at 8:30 in the morning during which the matter and parties may be heard. Signature Illegible.
It is well-settled that any motion with a notice of hearing that is not addressed to all parties, in violation of Section 5, Rule 15 of the Rules of Court, is a mere scrap of paper which should not be accepted for filing and, if filed, is not entitled to judicial cognizance.
If personal service of the motion was made upon complainant's counsel, then proof of service thereof consisting of any of the following should have been presented to the court, together with the Motion for Execution:
None of the above was presented. Thus, in accordance with Section 6, Rule 15 of the Rules of Court which mandates the "no written motion set for hearing shall be acted upon by the court without proof of service thereof," the motion for execution should not have been acted upon by the respondent judge. (Alvarez vs. Judge Diaz, A.M. No. MTJ-00-1283. March 3, 2004)
The Clerk of Court
MTC Branch 37
Quezon City
Kindly include this motion in your calendar for February 3, 1998 at 8:30 in the morning during which the matter and parties may be heard. Signature Illegible.
Sgd. C.A.L
Judge Diaz granted the motion for execution. Alvarez filed an administrative complaint against Judge Diaz for abuse of authority. Respondent judge argues that although the notice of hearing attached to the motion for execution was addressed only to the clerk of court, a copy of the Motion for Execution was nonetheless sent to the counsel of Alvarez. This was confirmed by Atty. Conrado A. Leao, who testified that he personally delivered a copy of the Motion for Execution to counsel of Alvarez.
Issue:
Should Judge Diaz have acted upon the the motion for execution?
Should Judge Diaz have acted upon the the motion for execution?
Held:
No. Even if there was no perfected Notice of Appeal and payment of the supersedeas bond, respondent judge should not have granted plaintiff's Motion for Execution because it was fatally defective. Section 5, Rule 15 of the Rules of Court provides:
"Sec. 5. Notice of Hearing. ― The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion.
It is well-settled that any motion with a notice of hearing that is not addressed to all parties, in violation of Section 5, Rule 15 of the Rules of Court, is a mere scrap of paper which should not be accepted for filing and, if filed, is not entitled to judicial cognizance.
If personal service of the motion was made upon complainant's counsel, then proof of service thereof consisting of any of the following should have been presented to the court, together with the Motion for Execution:
Section 13. Proof of service. ― x x x [1] a written admission of the party served, [2] the official return of the server, or [3] the affidavit of the party serving containing a full statement of the date, place and manner of service x x x.
None of the above was presented. Thus, in accordance with Section 6, Rule 15 of the Rules of Court which mandates the "no written motion set for hearing shall be acted upon by the court without proof of service thereof," the motion for execution should not have been acted upon by the respondent judge. (Alvarez vs. Judge Diaz, A.M. No. MTJ-00-1283. March 3, 2004)
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