2nd Digest - Full Cases

7/28/2019 2nd Digest - Full Cases

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G.R. No. L-11390 March 26, 1918

EL BANCO ESPAOL-FILIPINO, plaintiff-appellant,vs.VICENTE PALANCA, administrator of the estate ofEngracio Palanca Tanquinyeng, defendant-appellant.

Aitken and DeSelms for appellant.Hartigan and Welch for appellee.

STREET, J.:

This action was instituted upon March 31, 1908, by "ElBanco Espanol-Filipino" to foreclose a mortgage uponvarious parcels of real property situated in the city ofManila. The mortgage in question is dated June 16,1906, and was executed by the original defendantherein, Engracio Palanca Tanquinyeng y Limquingco, assecurity for a debt owing by him to the bank. UponMarch 31, 1906, the debt amounted to P218,294.10 and

was drawing interest at the rate of 8 per centum perannum, payable at the end of each quarter. It appearsthat the parties to this mortgage at that time estimatedthe value of the property in question at P292,558, whichwas about P75,000 in excess of the indebtedness. Afterthe execution of this instrument by the mortgagor, hereturned to China which appears to have been his nativecountry; and he there died, upon January 29, 1810,without again returning to the Philippine Islands.

As the defendant was a nonresident at the time of theinstitution of the present action, it was necessary for theplaintiff in the foreclosure proceeding to give notice tothe defendant by publication pursuant to section 399 ofthe Code of Civil Procedure. An order for publication wasaccordingly obtained from the court, and publication wasmade in due form in a newspaper of the city of Manila.

At the same time that the order of the court shoulddeposit in the post office in a stamped envelope a copyof the summons and complaint directed to the defendantat his last place of residence, to wit, the city of Amoy, inthe Empire of China. This order was made pursuant tothe following provision contained in section 399 of theCode of Civil Procedure:

In case of publication, where theresidence of a nonresident or absentdefendant is known, the judge mustdirect a copy of the summons andcomplaint to be forthwith deposited bythe clerk in the post-office, postageprepaid, directed to the person to beserved, at his place of residence

Whether the clerk complied with this order does notaffirmatively appear. There is, however, among thepapers pertaining to this case, an affidavit, dated April 4,

1908, signed by Bernardo Chan y Garcia, an employeeof the attorneys of the bank, showing that upon that datehe had deposited in the Manila post-office a registeredletter, addressed to Engracio Palanca Tanquinyeng, atManila, containing copies of the complaint, the plaintiff'saffidavit, the summons, and the order of the courdirecting publication as aforesaid. It appears from thepostmaster's receipt that Bernardo probably used an

envelope obtained from the clerk's office, as the receiptpurports to show that the letter emanated from the office

The cause proceeded in usual course in the Court ofFirst Instance; and the defendant not having appeared

judgment was, upon July 2, 1908, taken against him bydefault. Upon July 3, 1908, a decision was rendered infavor of the plaintiff. In this decision it was recited thatpublication had been properly made in a periodical, butnothing was said about this notice having been givenmail. The court, upon this occasion, found that theindebtedness of the defendant amounted to P249,35532, with interest from March 31, 1908. Accordingly it was

ordered that the defendant should, on or before July 61908, deliver said amount to the clerk of the court to beapplied to the satisfaction of the judgment, and it wasdeclared that in case of the failure of the defendant tosatisfy the judgment within such period, the mortgageproperty located in the city of Manila should be exposedto public sale. The payment contemplated in said orderwas never made; and upon July 8, 1908, the courordered the sale of the property. The sale took placeupon July 30, 1908, and the property was bought in bythe bank for the sum of P110,200. Upon August 7, 1908this sale was confirmed by the court.

About seven years after the confirmation of this sale, orto the precise, upon June 25, 1915, a motion was madein this cause by Vicente Palanca, as administrator of theestate of the original defendant, Engracio PalancaTanquinyeng y Limquingco, wherein the applicanrequested the court to set aside the order of default ofJuly 2, 1908, and the judgment rendered upon July 31908, and to vacate all the proceedings subsequenthereto. The basis of this application, as set forth in themotion itself, was that the order of default and the

judgment rendered thereon were void because the courthad never acquired jurisdiction over the defendant oover the subject of the action.

At the hearing in the court below the application tovacate the judgment was denied, and from this action ofthe court Vicente Planca, as administrator of the estateof the original defendant, has appealed. No other featureof the case is here under consideration than such asrelated to the action of the court upon said motion.

The case presents several questions of importancewhich will be discussed in what appears to be thesequence of most convenient development. In the first

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part of this opinion we shall, for the purpose ofargument, assume that the clerk of the Court of FirstInstance did not obey the order of the court in the matterof mailing the papers which he was directed to send tothe defendant in Amoy; and in this connection we shallconsider, first, whether the court acquired the necessary

jurisdiction to enable it to proceed with the foreclosure ofthe mortgage and, secondly, whether those proceedings

were conducted in such manner as to constitute dueprocess of law.

The word "jurisdiction," as applied to the faculty ofexercising judicial power, is used in several different,though related, senses since it may have reference (1)to the authority of the court to entertain a particular kindof action or to administer a particular kind of relief, or itmay refer to the power of the court over the parties, or(2) over the property which is the subject to the litigation.

The sovereign authority which organizes a courtdetermines the nature and extent of its powers in

general and thus fixes its competency or jurisdiction withreference to the actions which it may entertain and therelief it may grant.

Jurisdiction over the person is acquired by the voluntaryappearance of a party in court and his submission to itsauthority, or it is acquired by the coercive power of legalprocess exerted over the person.

Jurisdiction over the property which is the subject of thelitigation may result either from a seizure of the propertyunder legal process, whereby it is brought into the actualcustody of the law, or it may result from the institution of

legal proceedings wherein, under special provisions oflaw, the power of the court over the property isrecognized and made effective. In the latter case theproperty, though at all times within the potential power ofthe court, may never be taken into actual custody at all.

An illustration of the jurisdiction acquired by actualseizure is found in attachment proceedings, where theproperty is seized at the beginning of the action, or somesubsequent stage of its progress, and held to abide thefinal event of the litigation. An illustration of what we termpotential jurisdiction over the res, is found in theproceeding to register the title of land under our systemfor the registration of land. Here the court, without taking

actual physical control over the property assumes, at theinstance of some person claiming to be owner, toexercise a jurisdiction in rem over the property and toadjudicate the title in favor of the petitioner against allthe world.

In the terminology of American law the action toforeclose a mortgage is said to be a proceeding quasi inrem, by which is expressed the idea that while it is notstrictly speaking an action in rem yet it partakes of thatnature and is substantially such. The expression "action

in rem" is, in its narrow application, used only withreference to certain proceedings in courts of admiraltywherein the property alone is treated as responsible forthe claim or obligation upon which the proceedings arebased. The action quasi rem differs from the true actionin rem in the circumstance that in the former anindividual is named as defendant, and the purpose of theproceeding is to subject his interest therein to the

obligation or lien burdening the property. All proceedingshaving for their sole object the sale or other dispositionof the property of the defendant, whether by attachmentforeclosure, or other form of remedy, are in a generaway thus designated. The judgment entered in theseproceedings is conclusive only between the parties.

In speaking of the proceeding to foreclose a mortgagethe author of a well known treaties, has said:

Though nominally against person, suchsuits are to vindicate liens; they proceedupon seizure; they treat property as

primarily indebted; and, with thequalification above-mentioned, they aresubstantially property actions. In the civilaw, they are styled hypothecaryactions, and their sole object is theenforcement of the lien against the resin the common law, they would bedifferent in chancery did not treat theconditional conveyance as a merehypothecation, and the creditor's righass an equitable lien; so, in both, thesuit is real action so far as it is againsproperty, and seeks the judicia

recognition of a property debt, and anorder for the sale of the res. (WaplesProceedings In Rem. sec. 607.)

It is true that in proceedings of this character, if thedefendant for whom publication is made appears, theaction becomes as to him a personal action and isconducted as such. This, however, does not affect theproposition that where the defendant fails to appear theaction is quasi in rem; and it should therefore beconsidered with reference to the principles governingactions in rem.

There is an instructive analogy between the foreclosureproceeding and an action of attachment, concerningwhich the Supreme Court of the United States has usedthe following language:

If the defendant appears, the causebecomes mainly a suit in personamwith the added incident, that theproperty attached remains liable, undethe control of the court, to answer to anydemand which may be established

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against the defendant by the finaljudgment of the court. But, if there is noappearance of the defendant, and noservice of process on him, the casebecomes, in its essential nature, aproceeding in rem, the only effect ofwhich is to subject the property attachedto the payment of the defendant which

the court may find to be due to theplaintiff. (Cooper vs. Reynolds, 10 Wall.,308.)

In an ordinary attachment proceeding, if the defendant isnot personally served, the preliminary seizure is to, beconsidered necessary in order to confer jurisdiction uponthe court. In this case the lien on the property is acquiredby the seizure; and the purpose of the proceedings is tosubject the property to that lien. If a lien already exists,whether created by mortgage, contract, or statute, thepreliminary seizure is not necessary; and the courtproceeds to enforce such lien in the manner provided by

law precisely as though the property had been seizedupon attachment. (Roller vs. Holly, 176 U. S., 398, 405;44 L. ed., 520.) It results that the mere circumstance thatin an attachment the property may be seized at theinception of the proceedings, while in the foreclosure suitit is not taken into legal custody until the time comes forthe sale, does not materially affect the fundamentalprinciple involved in both cases, which is that the court ishere exercising a jurisdiction over the property in aproceeding directed essentially in rem.

Passing now to a consideration of the jurisdiction of theCourt of First Instance in a mortgage foreclosure, it is

evident that the court derives its authority to entertain theaction primarily from the statutes organizing the court.The jurisdiction of the court, in this most general sense,over the cause of action is obvious and requires nocomment. Jurisdiction over the person of the defendant,if acquired at all in such an action, is obtained by thevoluntary submission of the defendant or by the personalservice of process upon him within the territory wherethe process is valid. If, however, the defendant is anonresident and, remaining beyond the range of thepersonal process of the court, refuses to come involuntarily, the court never acquires jurisdiction over theperson at all. Here the property itself is in fact the solething which is impleaded and is the responsible objectwhich is the subject of the exercise of judicial power. Itfollows that the jurisdiction of the court in such case isbased exclusively on the power which, under the law, itpossesses over the property; and any discussion relativeto the jurisdiction of the court over the person of thedefendant is entirely apart from the case. The jurisdictionof the court over the property, considered as theexclusive object of such action, is evidently based uponthe following conditions and considerations, namely: (1)that the property is located within the district; (2) that thepurpose of the litigation is to subject the property by sale

to an obligation fixed upon it by the mortgage; and (3)that the court at a proper stage of the proceedings takesthe property into custody, if necessary, and expose it tosale for the purpose of satisfying the mortgage debt. Anobvious corollary is that no other relief can be granted inthis proceeding than such as can be enforced againstthe property.

We may then, from what has been stated, formulated thefollowing proposition relative to the foreclosureproceeding against the property of a nonresidenmortgagor who fails to come in and submit himselpersonally to the jurisdiction of the court: (I) That the

jurisdiction of the court is derived from the power which ipossesses over the property; (II) that jurisdiction over theperson is not acquired and is nonessential; (III) that therelief granted by the court must be limited to such as canbe enforced against the property itself.

It is important that the bearing of these propositions beclearly apprehended, for there are many expressions in

the American reports from which it might be inferred thathe court acquires personal jurisdiction over the personof the defendant by publication and notice; but such isnot the case. In truth the proposition that jurisdiction ovethe person of a nonresident cannot be acquired bypublication and notice was never clearly understoodeven in the American courts until after the decision hadbeen rendered by the Supreme Court of the UnitedStates in the leading case of Pennoyer vs. Neff (95 U. S714; 24 L. ed., 565). In the light of that decision, and ofother decisions which have subsequently been renderedin that and other courts, the proposition that jurisdictionover the person cannot be thus acquired by publication

and notice is no longer open to question; and it is nowfully established that a personal judgment uponconstructive or substituted service against a nonresidenwho does not appear is wholly invalid. This doctrineapplies to all kinds of constructive or substitutedprocess, including service by publication and personaservice outside of the jurisdiction in which the judgmenis rendered; and the only exception seems to be found inthe case where the nonresident defendant has expresslyor impliedly consented to the mode of service. (Note toRaher vs. Raher, 35 L. R. A. [N. S. ], 292; see also 50L .R. A., 585; 35 L. R. A. [N. S.], 312

The idea upon which the decision in Pennoyer vs. Nef(supra) proceeds is that the process from the tribunals oone State cannot run into other States or countries andthat due process of law requires that the defendant shalbe brought under the power of the court by service oprocess within the State, or by his voluntary appearancein order to authorize the court to pass upon the questionof his personal liability. The doctrine established by theSupreme Court of the United States on this point, beingbased upon the constitutional conception of due processof law, is binding upon the courts of the Philippine

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Islands. Involved in this decision is the principle that inproceedings in rem or quasi in rem against anonresident who is not served personally within thestate, and who does not appear, the relief must beconfined to the res, and the court cannot lawfully rendera personal judgment against him. (Dewey vs. DesMoines, 173 U. S., 193; 43 L. ed., 665; Heidritter vs.Elizabeth Oil Cloth Co., 112 U. S., 294; 28 L. ed., 729.)

Therefore in an action to foreclose a mortgage against anonresident, upon whom service has been effectedexclusively by publication, no personal judgment for thedeficiency can be entered. (Latta vs. Tutton, 122 Cal.,279; Blumberg vs. Birch, 99 Cal., 416.)

It is suggested in the brief of the appellant that thejudgment entered in the court below offends against theprinciple just stated and that this judgment is voidbecause the court in fact entered a personal judgmentagainst the absent debtor for the full amount of theindebtedness secured by the mortgage. We do not sointerpret the judgment.

In a foreclosure proceeding against a nonresident ownerit is necessary for the court, as in all cases offoreclosure, to ascertain the amount due, as prescribedin section 256 of the Code of Civil Procedure, and tomake an order requiring the defendant to pay the moneyinto court. This step is a necessary precursor of theorder of sale. In the present case the judgment whichwas entered contains the following words:

Because it is declared that the saiddefendant Engracio PalancaTanquinyeng y Limquingco, is indebted

in the amount of P249,355.32, plus theinterest, to the 'Banco Espanol-Filipino' .. . therefore said appellant is ordered todeliver the above amount etc., etc.

This is not the language of a personal judgment. Insteadit is clearly intended merely as a compliance with therequirement that the amount due shall be ascertainedand that the evidence of this it may be observed thataccording to the Code of Civil Procedure a personal

judgment against the debtor for the deficiency is not tobe rendered until after the property has been sold andthe proceeds applied to the mortgage debt. (sec. 260).

The conclusion upon this phase of the case is thatwhatever may be the effect in other respects of thefailure of the clerk of the Court of First Instance to mailthe proper papers to the defendant in Amoy, China, suchirregularity could in no wise impair or defeat the

jurisdiction of the court, for in our opinion that jurisdictionrest upon a basis much more secure than would besupplied by any form of notice that could be given to aresident of a foreign country.

Before leaving this branch of the case, we wish toobserve that we are fully aware that many reportedcases can be cited in which it is assumed that thequestion of the sufficiency of publication or notice in acase of this kind is a question affecting the jurisdiction ofthe court, and the court is sometimes said to acquire

jurisdiction by virtue of the publication. This phraseologywas undoubtedly originally adopted by the court because

of the analogy between service by the publication andpersonal service of process upon the defendant; and, ashas already been suggested, prior to the decision oPennoyer vs. Neff (supra) the difference between thelegal effects of the two forms of service was obscure. Itis accordingly not surprising that the modes oexpression which had already been molded into legatradition before that case was decided have beenbrought down to the present day. But it is clear that thelegal principle here involved is not effected by thepeculiar language in which the courts have expoundedtheir ideas.

We now proceed to a discussion of the question whetherthe supposed irregularity in the proceedings was of suchgravity as to amount to a denial of that "due process oflaw" which was secured by the Act of Congress in forcein these Islands at the time this mortgage wasforeclosed. (Act of July 1, 1902, sec. 5.) In dealing withquestions involving the application of the constitutionaprovisions relating to due process of law the SupremeCourt of the United States has refrained from attemptingto define with precision the meaning of that expressionthe reason being that the idea expressed therein isapplicable under so many diverse conditions as to makeany attempt ay precise definition hazardous and

unprofitable. As applied to a judicial proceedinghowever, it may be laid down with certainty that therequirement of due process is satisfied if the followingconditions are present, namely; (1) There must be acourt or tribunal clothed with judicial power to hear anddetermine the matter before it; (2) jurisdiction must belawfully acquired over the person of the defendant oover the property which is the subject of the proceeding(3) the defendant must be given an opportunity to beheard; and (4) judgment must be rendered upon lawfuhearing.

Passing at once to the requisite that the defendant shalhave an opportunity to be heard, we observe that in aforeclosure case some notification of the proceedings tothe nonresident owner, prescribing the time within whichappearance must be made, is everywhere recognized asessential. To answer this necessity the statutesgenerally provide for publication, and usually in additionthereto, for the mailing of notice to the defendant, if hisresidence is known. Though commonly calledconstructive, or substituted service of process in any truesense. It is merely a means provided by law whereby theowner may be admonished that his property is thesubject of judicial proceedings and that it is incumbent

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upon him to take such steps as he sees fit to protect it.In speaking of notice of this character a distinguishmaster of constitutional law has used the followinglanguage:

. . . if the owners are named in theproceedings, and personal notice isprovided for, it is rather from tenderness

to their interests, and in order to makesure that the opportunity for a hearingshall not be lost to them, than from anynecessity that the case shall assumethat form. (Cooley on Taxation [2d. ed.],527, quoted in Leigh vs. Green, 193 U.S., 79, 80.)

It will be observed that this mode of notification does notinvolve any absolute assurance that the absent ownershall thereby receive actual notice. The periodicalcontaining the publication may never in fact come to hishands, and the chances that he should discover the

notice may often be very slight. Even where notice issent by mail the probability of his receiving it, thoughmuch increased, is dependent upon the correctness ofthe address to which it is forwarded as well as upon theregularity and security of the mail service. It will benoted, furthermore, that the provision of our law relativeto the mailing of notice does not absolutely require themailing of notice unconditionally and in every event, butonly in the case where the defendant's residence isknown. In the light of all these facts, it is evident thatactual notice to the defendant in cases of this kind is not,under the law, to be considered absolutely necessary.

The idea upon which the law proceeds in recognizing theefficacy of a means of notification which may fall short ofactual notice is apparently this: Property is alwaysassumed to be in the possession of its owner, in personor by agent; and he may be safely held, under certainconditions, to be affected with knowledge thatproceedings have been instituted for its condemnationand sale.

It is the duty of the owner of real estate,who is a nonresident, to take measuresthat in some way he shall berepresented when his property is called

into requisition, and if he fails to do this,and fails to get notice by the ordinarypublications which have usually beenrequired in such cases, it is hismisfortune, and he must abide theconsequences. (6 R. C. L., sec. 445 [p.450]).

It has been well said by an American court:

If property of a nonresident cannot bereached by legal process upon theconstructive notice, then our statuteswere passed in vain, and are mereempty legislative declarations, withoueither force, or meaning; for if theperson is not within the jurisdiction ofthe court, no personal judgment can be

rendered, and if the judgment cannooperate upon the property, then noeffective judgment at all can berendered, so that the result would bethat the courts would be powerless toassist a citizen against a nonresidentSuch a result would be a deplorableone. (Quarl vs. Abbett, 102 Ind., 233; 52

Am. Rep., 662, 667.)

It is, of course universally recognized that the statutoryprovisions relative to publication or other form of noticeagainst a nonresident owner should be complied with

and in respect to the publication of notice in thenewspaper it may be stated that strict compliance withthe requirements of the law has been held to beessential. In Guaranty Trust etc. Co. vs. Green Coveetc., Railroad Co. (139 U. S., 137, 138), it was held thatwhere newspaper publication was made for 19 weekswhen the statute required 20, the publication wasinsufficient.

With respect to the provisions of our own statute, relativeto the sending of notice by mail, the requirement is thatthe judge shall direct that the notice be deposited in themail by the clerk of the court, and it is not in terms

declared that the notice must be deposited in the mail.We consider this to be of some significance; and iseems to us that, having due regard to the principlesupon which the giving of such notice is required, theabsent owner of the mortgaged property must, so far asthe due process of law is concerned, take the riskincident to the possible failure of the clerk to perform hisduty, somewhat as he takes the risk that the mail clerk orthe mail carrier might possibly lose or destroy the parceor envelope containing the notice before it should reachits destination and be delivered to him. This idea seemsto be strengthened by the consideration that placingupon the clerk the duty of sending notice by mail, theperformance of that act is put effectually beyond thecontrol of the plaintiff in the litigation. At any rate it isobvious that so much of section 399 of the Code of CiviProcedure as relates to the sending of notice by maiwas complied with when the court made the order. Thequestion as to what may be the consequences of thefailure of the record to show the proof of compliance withthat requirement will be discussed by us further on.

The observations which have just been made lead to theconclusion that the failure of the clerk to mail the notice,

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if in fact he did so fail in his duty, is not such anirregularity, as amounts to a denial of due process oflaw; and hence in our opinion that irregularity, if proved,would not avoid the judgment in this case. Notice wasgiven by publication in a newspaper and this is the onlyform of notice which the law unconditionally requires.This in our opinion is all that was absolutely necessary tosustain the proceedings.

It will be observed that in considering the effect of thisirregularity, it makes a difference whether it be viewed asa question involving jurisdiction or as a questioninvolving due process of law. In the matter of jurisdictionthere can be no distinction between the much and thelittle. The court either has jurisdiction or it has not; and ifthe requirement as to the mailing of notice should beconsidered as a step antecedent to the acquiring of

jurisdiction, there could be no escape from theconclusion that the failure to take that step was fatal tothe validity of the judgment. In the application of the ideaof due process of law, on the other hand, it is clearly

unnecessary to be so rigorous. The jurisdiction beingonce established, all that due process of law thereafterrequires is an opportunity for the defendant to be heard;and as publication was duly made in the newspaper, itwould seem highly unreasonable to hold that failure tomail the notice was fatal. We think that in applying therequirement of due process of law, it is permissible toreflect upon the purposes of the provision which issupposed to have been violated and the principleunderlying the exercise of judicial power in theseproceedings. Judge in the light of these conceptions, wethink that the provision of Act of Congress declaring thatno person shall be deprived of his property without due

process of law has not been infringed.

In the progress of this discussion we have stated the twoconclusions; (1) that the failure of the clerk to send thenotice to the defendant by mail did not destroy the

jurisdiction of the court and (2) that such irregularity didnot infringe the requirement of due process of law. As aconsequence of these conclusions the irregularity inquestion is in some measure shorn of its potency. It isstill necessary, however, to consider its effectconsidered as a simple irregularity of procedure; and itwould be idle to pretend that even in this aspect theirregularity is not grave enough. From this point of view,however, it is obvious that any motion to vacate the

judgment on the ground of the irregularity in questionmust fail unless it shows that the defendant wasprejudiced by that irregularity. The least, therefore, thatcan be required of the proponent of such a motion is toshow that he had a good defense against the action toforeclose the mortgage. Nothing of the kind is, however,shown either in the motion or in the affidavit whichaccompanies the motion.

An application to open or vacate a judgment because ofan irregularity or defect in the proceedings is usuallyrequired to be supported by an affidavit showing thegrounds on which the relief is sought, and in addition tothis showing also a meritorious defense to the action. Itis held that a general statement that a party has a gooddefense to the action is insufficient. The necessary factsmust be averred. Of course if a judgment is void upon its

face a showing of the existence of a meritorious defenseis not necessary. (10 R. C. L., 718.)

The lapse of time is also a circumstance deeply affectingthis aspect of the case. In this connection we quote thefollowing passage from the encyclopedic treatise now incourse of publication:

Where, however, the judgment is novoid on its face, and may therefore beenforced if permitted to stand on therecord, courts in many instances refuseto exercise their quasi equitable powers

to vacate a judgement after the lapse ofthe term ay which it was entered, exceptin clear cases, to promote the ends o

justice, and where it appears that theparty making the application is himselwithout fault and has acted in good faithand with ordinary diligence. Laches onthe part of the applicant, if unexplainedis deemed sufficient ground for refusingthe relief to which he might otherwise beentitled. Something is due to the finalityof judgments, and acquiescence ounnecessary delay is fatal to motions o

this character, since courts are alwaysreluctant to interfere with judgmentsand especially where they have beenexecuted or satisfied. The moving partyhas the burden of showing diligenceand unless it is shown affirmatively thecourt will not ordinarily exercise itsdiscretion in his favor. (15 R. C. L., 694695.)

It is stated in the affidavit that the defendant, EngracioPalanca Tanquinyeng y Limquingco, died January 291910. The mortgage under which the property was sold

was executed far back in 1906; and the proceedings inthe foreclosure were closed by the order of courconfirming the sale dated August 7, 1908. It passes therational bounds of human credulity to suppose that aman who had placed a mortgage upon property worthnearly P300,000 and had then gone away from thescene of his life activities to end his days in the city of

Amoy, China, should have long remained in ignorance othe fact that the mortgage had been foreclosed and theproperty sold, even supposing that he had no knowledgeof those proceedings while they were being conducted. It

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is more in keeping with the ordinary course of things thathe should have acquired information as to what wastranspiring in his affairs at Manila; and upon the basis ofthis rational assumption we are authorized, in theabsence of proof to the contrary, to presume that he didhave, or soon acquired, information as to the sale of hisproperty.

The Code of Civil Procedure, indeed, expressly declaresthat there is a presumption that things have happenedaccording to the ordinary habits of life (sec. 334 [26]);and we cannot conceive of a situation more appropriatethan this for applying the presumption thus defined bythe lawgiver. In support of this presumption, as appliedto the present case, it is permissible to consider theprobability that the defendant may have received actualnotice of these proceedings from the unofficial noticeaddressed to him in Manila which was mailed by anemployee of the bank's attorneys. Adopting almost theexact words used by the Supreme Court of the UnitedStates in Grannis vs. Ordeans (234 U. S., 385; 58 L. ed.,

1363), we may say that in view of the well-known skill ofpostal officials and employees in making proper deliveryof letters defectively addressed, we think thepresumption is clear and strong that this notice reachedthe defendant, there being no proof that it was everreturned by the postal officials as undelivered. And if itwas delivered in Manila, instead of being forwarded to

Amoy, China, there is a probability that the recipient wasa person sufficiently interested in his affairs to send it orcommunicate its contents to him.

Of course if the jurisdiction of the court or the sufficiencyof the process of law depended upon the mailing of the

notice by the clerk, the reflections in which we are nowindulging would be idle and frivolous; but theconsiderations mentioned are introduced in order toshow the propriety of applying to this situation the legalpresumption to which allusion has been made. Upon thatpresumption, supported by the circumstances of thiscase, ,we do not hesitate to found the conclusion thatthe defendant voluntarily abandoned all thought ofsaving his property from the obligation which he hadplaced upon it; that knowledge of the proceedingsshould be imputed to him; and that he acquiesced in theconsequences of those proceedings after they had beenaccomplished. Under these circumstances it is clear thatthe merit of this motion is, as we have already stated,adversely affected in a high degree by the delay inasking for relief. Nor is it an adequate reply to say thatthe proponent of this motion is an administrator who onlyqualified a few months before this motion was made. Nodisability on the part of the defendant himself existedfrom the time when the foreclosure was effected until hisdeath; and we believe that the delay in the appointmentof the administrator and institution of this action is acircumstance which is imputable to the parties in interestwhoever they may have been. Of course if the minor

heirs had instituted an action in their own right to recoverthe property, it would have been different.

It is, however, argued that the defendant has sufferedprejudice by reason of the fact that the bank became thepurchaser of the property at the foreclosure sale for aprice greatly below that which had been agreed upon inthe mortgage as the upset price of the property. In this

connection, it appears that in article nine of the mortgagewhich was the subject of this foreclosure, as amendedby the notarial document of July 19, 1906, the parties tothis mortgage made a stipulation to the effect that thevalue therein placed upon the mortgaged propertiesshould serve as a basis of sale in case the debt shouldremain unpaid and the bank should proceed to aforeclosure. The upset price stated in that stipulation forall the parcels involved in this foreclosure was P286,000It is said in behalf of the appellant that when the bankbought in the property for the sum of P110,200 it violatedthat stipulation.

It has been held by this court that a clause in a mortgageproviding for a tipo, or upset price, does not prevent aforeclosure, nor affect the validity of a sale made in theforeclosure proceedings. (Yangco vs. Cruz Herrera andWy Piaco, 11 Phil. Rep., 402; Banco-Espaol Filipino vsDonaldson, Sim and Co., 5 Phil. Rep., 418.) In both thecases here cited the property was purchased at theforeclosure sale, not by the creditor or mortgagee, but bya third party. Whether the same rule should be applied ina case where the mortgagee himself becomes thepurchaser has apparently not been decided by this courtin any reported decision, and this question need not herebe considered, since it is evident that if any liability was

incurred by the bank by purchasing for a price below thatfixed in the stipulation, its liability was a personal liabilityderived from the contract of mortgage; and as we havealready demonstrated such a liability could not be thesubject of adjudication in an action where the court hadno jurisdiction over the person of the defendant. If theplaintiff bank became liable to account for the differencebetween the upset price and the price at which in boughin the property, that liability remains unaffected by thedisposition which the court made of this case; and thefact that the bank may have violated such an obligationcan in no wise affect the validity of the judgment enteredin the Court of First Instance.

In connection with the entire failure of the motion toshow either a meritorious defense to the action or thathe defendant had suffered any prejudice of which thelaw can take notice, we may be permitted to add that inour opinion a motion of this kind, which proposes tounsettle judicial proceedings long ago closed, can not beconsidered with favor, unless based upon grounds whichappeal to the conscience of the court. Public policyrequires that judicial proceedings be upheld. Themaximum here applicable is non quieta movere. As was

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once said by Judge Brewer, afterwards a member of theSupreme Court of the United States:

Public policy requires that judicialproceedings be upheld, and that titlesobtained in those proceedings be safefrom the ruthless hand of collateralattack. If technical defects are adjudged

potent to destroy such titles, a judicialsale will never realize that value of theproperty, for no prudent man will risk hismoney in bidding for and buying that titlewhich he has reason to fear may yearsthereafter be swept away through someoccult and not readily discoverabledefect. (Martin vs. Pond, 30 Fed., 15.)

In the case where that language was used an attemptwas made to annul certain foreclosure proceedings onthe ground that the affidavit upon which the order ofpublication was based erroneously stated that the State

of Kansas, when he was in fact residing in another State.It was held that this mistake did not affect the validity ofthe proceedings.

In the preceding discussion we have assumed that theclerk failed to send the notice by post as required by theorder of the court. We now proceed to consider whetherthis is a proper assumption; and the proposition whichwe propose to establish is that there is a legalpresumption that the clerk performed his duty as theministerial officer of the court, which presumption is notovercome by any other facts appearing in the cause.

In subsection 14 of section 334 of the Code of CivilProcedure it is declared that there is a presumption "thatofficial duty has been regularly performed;" and insubsection 18 it is declared that there is a presumption"that the ordinary course of business has been followed."These presumptions are of course in no sense novelties,as they express ideas which have always beenrecognized. Omnia presumuntur rite et solemniter esseacta donec probetur in contrarium. There is thereforeclearly a legal presumption that the clerk performed hisduty about mailing this notice; and we think that strongconsiderations of policy require that this presumptionshould be allowed to operate with full force under the

circumstances of this case. A party to an action has nocontrol over the clerk of the court; and has no right tomeddle unduly with the business of the clerk in theperformance of his duties. Having no control over thisofficer, the litigant must depend upon the court to seethat the duties imposed on the clerk are performed.

Other considerations no less potent contribute tostrengthen the conclusion just stated. There is noprinciple of law better settled than that after jurisdictionhas once been required, every act of a court of general

jurisdiction shall be presumed to have been rightly doneThis rule is applied to every judgment or decreerendered in the various stages of the proceedings fromtheir initiation to their completion (Voorhees vs. UnitedStates Bank, 10 Pet., 314; 35 U. S., 449); and if therecord is silent with respect to any fact which must havebeen established before the court could have rightlyacted, it will be presumed that such fact was properly

brought to its knowledge. (The Lessee of Grignon vsAstor, 2 How., 319; 11 L. ed., 283.)

In making the order of sale [of the reastate of a decedent] the court arepresumed to have adjudged everyquestion necessary to justify such ordeor decree, viz: The death of the ownersthat the petitioners were hisadministrators; that the personal estatewas insufficient to pay the debts of thedeceased; that the private acts o

Assembly, as to the manner of sale

were within the constitutional power ofthe Legislature, and that all theprovisions of the law as to notices whichare directory to the administrators havebeen complied with. . . . The court is notbound to enter upon the record theevidence on which any fact wasdecided. (Florentine vs. Barton, 2 Wall.210; 17 L. ed., 785.) Especially does althis apply after long lapse of time.

Applegate vs. Lexington and Carter County Mining Co(117 U. S., 255) contains an instructive discussion in a

case analogous to that which is now before us. It thereappeared that in order to foreclose a mortgage in theState of Kentucky against a nonresident debtor it wasnecessary that publication should be made in anewspaper for a specified period of time, also be postedat the front door of the court house and be published onsome Sunday, immediately after divine service, in suchchurch as the court should direct. In a certain action

judgment had been entered against a nonresident, afterpublication in pursuance of these provisions. Many yearslater the validity of the proceedings was called inquestion in another action. It was proved from the files ofan ancient periodical that publication had been made inits columns as required by law; but no proof was offeredto show the publication of the order at the church, or theposting of it at the front door of the court-house. It wasinsisted by one of the parties that the judgment of thecourt was void for lack of jurisdiction. But the SupremeCourt of the United States said:

The court which made the decree . . was a court of general jurisdictionTherefore every presumption noinconsistent with the record is to be

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indulged in favor of its jurisdiction. . . . Itis to be presumed that the court beforemaking its decree took care of to seethat its order for constructive service, onwhich its right to make the decreedepended, had been obeyed.

It is true that in this case the former judgment was the

subject of collateral , or indirect attack, while in the caseat bar the motion to vacate the judgment is directproceeding for relief against it. The same generalpresumption, however, is indulged in favor of the

judgment of a court of general jurisdiction, whether it isthe subject of direct or indirect attack the only differencebeing that in case of indirect attack the judgment isconclusively presumed to be valid unless the recordaffirmatively shows it to be void, while in case of directattack the presumption in favor of its validity may incertain cases be overcome by proof extrinsic to therecord.

The presumption that the clerk performed his duty andthat the court made its decree with the knowledge thatthe requirements of law had been complied with appearto be amply sufficient to support the conclusion that thenotice was sent by the clerk as required by the order. Itis true that there ought to be found among the papers onfile in this cause an affidavit, as required by section 400of the Code of Civil Procedure, showing that the orderwas in fact so sent by the clerk; and no such affidavitappears. The record is therefore silent where it ought tospeak. But the very purpose of the law in recognizingthese presumptions is to enable the court to sustain aprior judgment in the face of such an omission. If we

were to hold that the judgment in this case is voidbecause the proper affidavit is not present in the file ofpapers which we call the record, the result would be thatin the future every title in the Islands resting upon a

judgment like that now before us would depend, for itscontinued security, upon the presence of such affidavitamong the papers and would be liable at any moment tobe destroyed by the disappearance of that piece ofpaper. We think that no court, with a proper regard forthe security of judicial proceedings and for the interestswhich have by law been confided to the courts, wouldincline to favor such a conclusion. In our opinion theproper course in a case of this kind is to hold that thelegal presumption that the clerk performed his duty stillmaintains notwithstanding the absence from the recordof the proper proof of that fact.

In this connection it is important to bear in mind thatunder the practice prevailing in the Philippine Islands theword "record" is used in a loose and broad sense, asindicating the collective mass of papers which containthe history of all the successive steps taken in a caseand which are finally deposited in the archives of theclerk's office as a memorial of the litigation. It is a matter

of general information that no judgment roll, or book offinal record, is commonly kept in our courts for thepurpose of recording the pleadings and principaproceedings in actions which have been terminated; andin particular, no such record is kept in the Court of FirstInstance of the city of Manila. There is, indeed, a sectionof the Code of Civil Procedure which directs that such abook of final record shall be kept; but this provision has

as a matter of common knowledge, been generallyignored. The result is that in the present case we do nothave the assistance of the recitals of such a record toenable us to pass upon the validity of this judgment andas already stated the question must be determined byexamining the papers contained in the entire file.

But it is insisted by counsel for this motion that theaffidavit of Bernardo Chan y Garcia showing that upon

April 4, 1908, he sent a notification through the maiaddressed to the defendant at Manila, Philippine Islandsshould be accepted as affirmative proof that the clerk ofthe court failed in his duty and that, instead of himself

sending the requisite notice through the mail, he reliedupon Bernardo to send it for him. We do not think thatthis is by any means a necessary inference. Of course ifit had affirmatively appeared that the clerk himself hadattempted to comply with this order and had directed thenotification to Manila when he should have directed it to

Amoy, this would be conclusive that he had failed tocomply with the exact terms of the order; but such is notthis case. That the clerk of the attorneys for the plaintifferroneously sent a notification to the defendant at amistaken address affords in our opinion very slight basisfor supposing that the clerk may not have sent notice tothe right address.

There is undoubtedly good authority to support theposition that when the record states the evidence ormakes an averment with reference to a jurisdictionafact, it will not be presumed that there was other ordifferent evidence respecting the fact, or that the factwas otherwise than stated. If, to give an illustration, itappears from the return of the officer that the summonswas served at a particular place or in a particulamanner, it will not be presumed that service was alsomade at another place or in a different manner; or if itappears that service was made upon a person otherthan the defendant, it will not be presumed, in thesilence of the record, that it was made upon thedefendant also (Galpin vs. Page, 18 Wall., 350, 366Settlemier vs. Sullivan, 97 U. S., 444, 449). While webelieve that these propositions are entirely correct asapplied to the case where the person making the returnis the officer who is by law required to make the returnwe do not think that it is properly applicable where, as inthe present case, the affidavit was made by a personwho, so far as the provisions of law are concerned, wasa mere intermeddler.

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The last question of importance which we propose toconsider is whether a motion in the cause is admissibleas a proceeding to obtain relief in such a case as this. Ifthe motion prevails the judgment of July 2, 1908, and allsubsequent proceedings will be set aside, and thelitigation will be renewed, proceeding again from thedate mentioned as if the progress of the action had notbeen interrupted. The proponent of the motion does not

ask the favor of being permitted to interpose a defense.His purpose is merely to annul the effective judgment ofthe court, to the end that the litigation may again resumeits regular course.

There is only one section of the Code of Civil Procedurewhich expressly recognizes the authority of a Court ofFirst Instance to set aside a final judgment and permit arenewal of the litigation in the same cause. This is asfollows:

SEC. 113. Upon such terms as may bejust the court may relieve a party or

legal representative from the judgment,order, or other proceeding taken againsthim through his mistake, inadvertence,surprise, or excusable neglect;Provided, That application thereof bemade within a reasonable time, but in nocase exceeding six months after such

judgment, order, or proceeding wastaken.

An additional remedy by petition to the Supreme Court issupplied by section 513 of the same Code. The firstparagraph of this section, in so far as pertinent to this

discussion, provides as follows:

When a judgment is rendered by aCourt of First Instance upon default, anda party thereto is unjustly deprived of ahearing by fraud, accident, mistake orexcusable negligence, and the Court ofFirst Instance which rendered the

judgment has finally adjourned so thatno adequate remedy exists in that court,the party so deprived of a hearing maypresent his petition to the SupremeCourt within sixty days after he first

learns of the rendition of such judgment,and not thereafter, setting forth the factsand praying to have judgment set aside.. . .

It is evident that the proceeding contemplated in thissection is intended to supplement the remedy providedby section 113; and we believe the conclusion irresistiblethat there is no other means recognized by law wherebya defeated party can, by a proceeding in the same

cause, procure a judgment to be set aside, with a view tothe renewal of the litigation.

The Code of Civil Procedure purports to be a completesystem of practice in civil causes, and it containsprovisions describing with much fullness the varioussteps to be taken in the conduct of such proceedings. Tothis end it defines with precision the method o

beginning, conducting, and concluding the civil action owhatever species; and by section 795 of the same Codeit is declared that the procedure in all civil action shall bein accordance with the provisions of this Code. We aretherefore of the opinion that the remedies prescribed insections 113 and 513 are exclusive of all others, so faras relates to the opening and continuation of a litigationwhich has been once concluded.

The motion in the present case does not conform to therequirements of either of these provisions; and theconsequence is that in our opinion the action of theCourt of First Instance in dismissing the motion was

proper.

If the question were admittedly one relating merely to anirregularity of procedure, we cannot suppose that thisproceeding would have taken the form of a motion in thecause, since it is clear that, if based on such an error,the came to late for relief in the Court of First Instance.But as we have already seen, the motion attacks the

judgment of the court as void for want of jurisdiction ovethe defendant. The idea underlying the motion thereforeis that inasmuch as the judgment is a nullity it can beattacked in any way and at any time. If the judgmentwere in fact void upon its face, that is, if it were shown to

be a nullity by virtue of its own recitals, there mighpossibly be something in this. Where a judgment or

judicial order is void in this sense it may be said to be alawless thing, which can be treated as an outlaw andslain at sight, or ignored wherever and whenever iexhibits its head.

But the judgment in question is not void in any suchsense. It is entirely regular in form, and the allegeddefect is one which is not apparent upon its face. Ifollows that even if the judgment could be shown to bevoid for want of jurisdiction, or for lack of due process oflaw, the party aggrieved thereby is bound to resort to

some appropriate proceeding to obtain relief. Undeaccepted principles of law and practice, long recognizedin American courts, a proper remedy in such case, afterthe time for appeal or review has passed, is for theaggrieved party to bring an action to enjoin the

judgment, if not already carried into effect; or if theproperty has already been disposed of he may institutesuit to recover it. In every situation of this character anappropriate remedy is at hand; and if property has beentaken without due process, the law concedes dueprocess to recover it. We accordingly old that, assuming

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the judgment to have been void as alleged by theproponent of this motion, the proper remedy was by anoriginal proceeding and not by motion in the cause. Aswe have already seen our Code of Civil Proceduredefines the conditions under which relief against a

judgment may be productive of conclusion for this courtto recognize such a proceeding as proper underconditions different from those defined by law. Upon the

point of procedure here involved, we refer to the case ofPeople vs. Harrison (84 Cal., 607) wherein it was heldthat a motion will not lie to vacate a judgment after thelapse of the time limited by statute if the judgment is notvoid on its face; and in all cases, after the lapse of thetime limited by statute if the judgment is not void on itsface; and all cases, after the lapse of such time, when anattempt is made to vacate the judgment by a proceedingin court for that purpose an action regularly brought ispreferable, and should be required. It will be noted takenverbatim from the California Code (sec. 473).

The conclusions stated in this opinion indicate that the

judgment appealed from is without error, and the sameis accordingly affirmed, with costs. So ordered.

Arellano, C.J., Torres, Carson, and Avancea, JJ.,concur.

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G.R. No. L-5675 April 27, 1953

ANTONIO CARBALLO, petitioner,vs.DEMETRIO B. ENCARNACION in his capacity asJudge of First Instance of Manila and MARIANOANG, respondents.J. Gonzales Orense for petitioner.

Antonio Gonzales for respondents.

MONTEMAYOR, J.:

In the Municipal Court of Manila, Mariano Ang filed acomplaint (civil case No. 8769) against Antonio Carballofor the collection of P1,860.84. The correspondingsummons was served upon defendant Carballo forappearance and trial on October 10, 1949. As counselfor him Atty. J. Gonzales entered his written appearanceon October 12, 1949. On the same day said counselfiled a motion for postponement of the hearing for one

month on the ground that he was sick, attaching amedical certificate to prove his illness. Hearing waspostponed to October 14, 1949 at which time defendantasked for another postponement on the ground that hiscounsel was still sick. The hearing was again postponedto October 24, 1949. Inn said last two postponement ofthe hearing, the municipal court warned the defendantthat the hearing could not wait until his counselrecovered from his illness, and that if said counsel couldnot attend the trial he should obtain the services ofanother lawyer.

On the day set for hearing, namely, October 24, 1949,

neither defendant nor his counsel appeared althoughthere was a written manifestation of defendant's counselrequesting further postponement because he was stillsick. At the request of plaintiff's counsel, defendant wasdeclared in default. The evidence for the plaintiff wasreceived after which judgment was rendered against thedefendant ordering him to pay the sum of P1,860 withlegal interest. Counsel for defendant was duly notified ofsaid decision and he filed a motion for new trial on theground that injustice had been done, and that an errorwas committed in the decision. The motion for new trialwas denied. Through his counsel defendant perfectedhis appeal to the Court of First Instance of Manila and helater filed an answer.

When the case was called for hearing on March 18,1952, counsel for plaintiff argued that the decisionappealed from had become final and executory for thereason that said judgment having been rendered bydefault, no appeal could be validly taken from it. Despiteopposition of the defendant, the Court of First Instance inan order dated March 18, 1952, considering saiddecision final and unappealable because it had beenrendered by default, and held that the only jurisdictionleft to it was to order the execution of said decision, so it

ordered the return of the record to the municipal court fothat purpose.

Defendant Carballo filed a motion for reconsideration ofthe order dismissing his appeal which motion wasdenied by an order 353 dated March 21, 1952whereupon Carballo filed the present petition focertiorari, injunction, prohibition and mandamus wherein

he asks that after due hearing the order and actuationsof respondent Judge Encarnacion of the Court of FirstInstance of Manila be declared null and void; that he beordered to desist from executing said order and thatfurthermore, he be commanded to proceed with the triaof the case "de novo."

We agree that a decision by default rendered by aninferior court is not appealable (Lim Toco vs. Co. Fay,45 Off. Gaz., No. 8, p. 3350). The question now iswhether defendant (now petitioner Carballo) defaulted inthe municipal court of Manila. True, he filed no answerbut his counsel filed a written appearance. In addition

said counsel filed a motion or manifestation asking forpostponement of the hearing on the ground that he wasill. In the case of Flores vs. Zurbito, (37 Phil., 746), thisCourt held that an appearance in whatever form withoutexpressly objecting to the jurisdiction of the court overthe person, is a submission to the jurisdiction of the courover the person. It is, therefore, clear that petitioneCarballo made an appearance in the municipal courtCould he then be declared in default just because hefiled no answer? The answer must be in the negative. Inthe case of Quinzan vs. Arellano,2 G.R. No. 4461December 28, 1951, the Supreme Court said that in the

justice of the peace court failure to appear, not failure to

answer is the sole ground for default. What reallyhappened in the municipal court was that the defendanttho he filed no answer to the complaint, nevertheless, hemade his appearance and in writing at that, but becauseof his failure and that of his counsel to appear on thedate of the trial, a hearing ex-parte was held and

judgment was rendered thereafter. The judgmenttherefore, was not by default. So defendant AntonioCarballo had a right to appeal as in fact he appealed,and the Court of First Instance should not have declaredthe decision appealed from final and executory under thetheory that it was not appealable.

The present petition is granted and the respondent judgeis hereby directed to proceed with the trial of the caseRespondent Mariano Ang will pay the costs.

Paras, C.J., Feria, Pablo, Bengzon, Tuason, andLabrador, JJ., concur.

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G.R. No. L-18164 January 23, 1967

WILLIAM F. GEMPERLE, plaintiff-appellant,vs.HELEN SCHENKER and PAUL SCHENKER as herhusband, defendants-appellees.

Gamboa & Gamboa for plaintiff-appellant.A. R. Narvasa for defendants-appellees.

CONCEPCION, C. J.:

Appeal, taken by plaintiff, William F. Gemperle, from adecision of the Court of First Instance of Rizal dismissingthis case for lack of jurisdiction over the person ofdefendant Paul Schenker and for want of cause of actionagainst his wife and co-defendant, Helen Schenker saidPaul Schenker "being in no position to be joined with heras party defendant, because he is beyond the reach ofthe magistracy of the Philippine courts."

The record shows that sometime in 1952, PaulSchenker-hereinafter referred to as Schenker actingthrough his wife and attorney-in-fact, Helen Schenker herein-after referred to as Mrs. Schenker filed with theCourt of First Instance of Rizal, a complaint whichwas docketed as Civil Case No. Q-2796 thereof against herein plaintiff William F. Gemperle, for theenforcement of Schenker's allegedly initial subscriptionto the shares of stock of the Philippines-Swiss TradingCo., Inc. and the exercise of his alleged pre-emptiverights to the then unissued original capital stock of saidcorporation and the increase thereof, as well as for anaccounting and damages. Alleging that, in connectionwith said complaint, Mrs. Schenker had caused to bepublished some allegations thereof and other matters,which were impertinent, irrelevant and immaterial to saidcase No. Q-2796, aside from being false and derogatoryto the reputation, good name and credit of Gemperle,"with the only purpose of attacking" his" honesty,integrity and reputation" and of bringing him "into publichatred, discredit, disrepute and contempt as a man anda businessman", Gemperle commenced the presentaction against the Schenkers for the recovery ofP300,000 as damages, P30,000 as attorney's fees, andcosts, in addition to praying for a judgment ordering Mrs.Schenker "to retract in writing the said defamatory

expressions". In due course, thereafter, the lower court,rendered the decision above referred to. Areconsiderating thereof having been denied, Gemperleinterposed the present appeal.

The first question for determination therein is whether ornot the lower court had acquired jurisdiction over theperson of Schenker. Admittedly, he, a Swiss citizen,residing in Zurich, Switzerland, has not been actuallyserved with summons in the Philippines, although thesummons address to him and Mrs. Schenker had been

served personally upon her in the Philippines. It is urgedby plaintiff that jurisdiction over the person of Schenkehas been secured through voluntary appearance on hispart, he not having made a special appearance to assaithe jurisdiction over his person, and an answer havingbeen filed in this case, stating that "the defendants, bycounsel, answering the plaintiff's complaint, respectfullyaver", which is allegedly a general appearance

amounting to a submission to the jurisdiction of thecourt, confirmed, according to plaintiff, by a P225,000counterclaim for damages set up in said answer; but thiscounterclaim was set up by Mrs. Schenker alone, notincluding her husband. Moreover, said answer containedseveral affirmative defenses, one of which was lack of

jurisdiction over the person of Schenker, thus negatingthe alleged waiver of this defense. Nevertheless, Wehold that the lower court had acquired jurisdiction oversaid defendant, through service of the summonsaddressed to him upon Mrs. Schenker, it appearing fromsaid answer that she is the representative and attorney-in-fact of her husband aforementioned civil case No. Q-

2796, which apparently was filed at her behest, in heaforementioned representative capacity. In other wordsMrs. Schenker had authority to sue, and had actuallysued on behalf of her husband, so that she was, alsoempowered to represent him in suits filed against him,particularly in a case, like the of the one at bar, which isconsequence of the action brought by her on his behalf.

Inasmuch as the alleged absence of a cause of actionagainst Mrs. Schenker is premised upon the alleged lackof jurisdiction over the person of Schenker, which cannobe sustained, it follows that the conclusion drawntherefore from is, likewise, untenable.

Wherefore, the decision appealed from should be, ishereby, reversed, and the case remanded to the lowercourt for proceedings, with the costs of this instancedefendants-appellees. It is so ordered.

Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P.,Zaldivar, Sanchez and Castro, JJ., concur.

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G.R. No. L-1403 October 29, 1948

VICENTE CALUAG and JULIANA GARCIA,petitioners,vs.POTENCIANO PECSON and ANGEL H. MOJICA,Judges of the Court of First Instance of Bulacan, andLEON ALEJO, respondents.

Marcial G. Mendiola for petitioners.Antonio Gonzalez for respondent L. Alejo.The respondent Judge Pecson in his own behalf.

FERIA, J.:

This is a petition forcertiorariand prohibition filedby the petitioners on the ground that the respondent

judge acted without or in excess of the jurisdiction of thecourt in rendering the resolution dated April 1, 1947,which declares the petitioners guilty of contempt of courtfor not complying or performing the order of the court ofJanuary 7, 1947, in case No. 5486 of the Court of FirstInstance of Bulacan, requiring the petitioners to executea deed of sale in favor of plaintiff over one-half of theland pro indiviso in question, within ten days from thereceipt of copy of said resolution, and which orders thatthe petitioners be imprisoned until they perform the saidact.

The first ground on which the petition is based isthat the judgment of the court which the petitioners areordered to perform has not yet become final. Thisground is unfounded. From the pleadings and annexes itappears that the judgment of the lower against thepetitioners was appealed to the Court of Appeals andwas affirmed by the latter in its decision promulgated onMay 30, 1944; that the petition to appeal to the SupremeCourt by certiorari filed by the petitioners was denied onJuly 24, 1944; that a motion for reconsideration filed bythe petitioners was also denied on August 21, 1944; thatthe record of the case, having been destroyed during theliberation, was reconstituted; that on September 24,1945, the Deputy Clerk of this Court wrote a letter to andnotified the petitioners of the resolution of the Courtdeclaring said record reconstituted, together with thecopies of the decision of the Court of Appeals andresolutions of the Supreme Court during Japanese

occupation of June 24 and August 21, 1944; and that onOctober 23, 1946, the clerk of Court of First Instance ofBulacan notified the attorneys for both parties of the saiddecision of the Court of Appeals and resolutions of theSupreme Court. There can be no question, therefore,that the judgment of the Court of First Instance above-mentioned, as affirmed by the Court of Appeals, hasbecome final and executory.

The other two grounds alleged by the petitionersin support of the present petition for certiorari are: that

plaintiff's action abated or was extinguished upon thedeath of the plaintiff Fortunato Alejo, because his right oflegal redemption was a personal one, and therefore nottransferable to his successors in interest; and that, evenassuming that it is a personal one and thereforetransferable, his successors in interest have failed tosecure the substitution of said deceased by his legarepresentative under section 17, Rule 3. These reasons

or grounds do not deserve any serious considerationnot only because they are without merits, but becausethe Court of First Instance of Bulacan, having jurisdictionto render that judgment, the latter cannot be disobeyedhowever erroneous it may be (Compaia General deTabacos vs. Alhambra Cigar & Cigarette Mfg. Co., 33Phil., 503; Golding vs. Balatbat, 36 Phil., 941). And thisCourt cannot in this proceeding correct any error whichmay have been committed by the lower court.

However, although not alleged, we may properlytake judicial notice of the fact that the respondenJudges have acted without jurisdiction in proceeding

against and declaring the petitioners guilty of contempof court.

The contempt supposed to have been committedby the petitioners is not a direct contempt under section1, Rule 64, for it is not a misbehavior in the presence ofor so near a court or judge as to interrupt theadministration of justice. It is an indirect contempt ordisobedience of a lawful order of the court, under section3, Rule 64, of the Rules of Court. According to sections 4and 5 of said rule, where a contempt under section 3 hasbeen committed against a superior court or judge thecharge may be filed with such superior court, and the

accused put under custody; but if the hearing is orderedto be had forthwith, the accused may be released fromcustody upon filing a bond in an amount to be fixed bythe court for his appearance to answer the charge. Fromthe record it appears that no charge for contempt wasfiled against the petitioners nor was a trial held. The onlyproceeding had in this case which led to the convictionof the defendants are: the order of January 7, 1947issued by the lower court requiring the defendants toexecute the deed of conveyance as direct in the

judgment within ten days from the receipt of the copy ofsaid order, with the admonition that upon failure to do sosaid petitioners will be dealt with for contempt of courtthe motion of March 21, 1947, filed by the attorney forthe respondent Leon Alejo, administrator of the estate ofFortunato Alejo, that the petitioners be punished focontempt; and the resolution of the court of April 1, 1947denying the second motion for reconsideration of March17, 1947, of the order of January 7, 1947, filed by thepetitioners, and ordering the petitioners to be imprisonedin the provincial jail until they have complied with theorder of the court above mentioned.

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It is well settled that jurisdiction of the subjectmatter of a particular case is something more than thegeneral power conferred by law upon a court to takecognizance of cases of the general class to which theparticular case belongs. It is not enough that a court haspower in abstract to try and decide the class of litigationsto which a case belongs; it is necessary that said powerbe properly invoked, or called into activity, by the filing of

a petition, complaint or other appropriate pleading. ACourt of First Instance has an abstract jurisdiction orpower to try and decide criminal cases for homicidecommitted within its territorial jurisdiction; but it has nopower to try and decide a criminal case against a personfor homicide committed within its territory, unless acomplaint or information against him be filed with thesaid court. And it has also power to try civil casesinvolving title to real estate situated within its district; butit has no jurisdiction to take cognizance of a dispute orcontroversy between two persons over title of realproperty located in his province, unless a propercomplaint be filed with its court. So, although the Court

of First Instance of Bulacan has power conferred by lawto punish as guilty of indirect contempt a party whodisobeys its order or judgment, it did not have or acquire

jurisdiction of the particular case under consideration todeclare the petitioners guilty of indirect contempt, andorder their confinement until they have executed thedeed of conveyance in question, because neither acharge has been filed against them nor a hearing thereofheld as required by law.

The respondent Judge Angel Mojica acted notonly without jurisdiction in proceeding against anddeclaring the petitioners guilty of contempt, but also in

excess of jurisdiction in ordering the confinement of thepetitioners, because it had no power to impose suchpunishment upon the latter.

The respondent judge has no power under the lawto order the confinement of the petitioners until theyhave compiled with the order of the court. Section 9,Rule 39, in connection with section 7 of Rule 64,provides that if a person is required by a judgment ororder of the court to perform any other act than thepayment of money or sale or delivery of real or personalproperty, and said person disobeys such judgment ororder while it is yet in his power to perform it, he may bepunished for contempt and imprisoned until he performssaid order. This provision is applicable only to specificacts other than those provided for or covered by section10 of the same Rule, that is, it refers to a specific actwhich the party or person must personally do, becausehis personal qualification and circumstances have beentaken into consideration in accordance with the provisionof article 1161 of the Civil Code. But if a judgment directsa party to execute a conveyance of land or to deliverdeeds or other documents or to perform any specific actwhich may be performed by some other person, or insome other way provided by law with the same effect, as

in the present case, section 10, and not said section 9 ofRule 39 applies; and under the provision of said section10, the court may direct the act to be done at the cost ofthe disobedient party, by some other person appointedor designated by the court, and the act when so doneshall have like effect as if done by the party himself.

It is also well settled by the authorities that a

judgment may be void for want of power to render theparticular judgment, though the court may have had

jurisdiction over the subject matter and the parties. Awrong decision made within the limits of the court'sauthority is erroneous and may be corrected on appeaor other direct review, but a wrong, or for that matter acorrect, decision is void, and may be set aside eitherdirectly or collaterally, where the court exceeds its

jurisdiction and power in rendering it. Hence though thecourt has acquired jurisdiction over the subject matterand the particular case has been submitted properly to itfor hearing and decision, it will overstep its jurisdiction ifit renders a judgment which it has no power under the

law to render. A sentence which imposes upon thedefendant in a criminal prosecution a penalty differenfrom or in excess of the maximum which the court isauthorized by law to impose for the offense of which thedefendant was convicted, is void for want or excess of

jurisdiction, as to the excess in the latter case. And ajudgment of imprisonment which the court has noconstitutional or statutory power to impose, as in thepresent case, may also be collaterally attacked for wantor rather in excess of jurisdiction.

In Cruz vs. Director of Prisons (17 Phil., 269, 272273), this Court said the following applicable to

punishment imposed for contempt of court:

. . . The courts uniformly hold thawhere a sentence imposes apunishment in excess of the power othe court to impose, such sentence isvoid as to the excess, and some of thecourts hold that the sentence is void intoto; but the weight of authority sustainsthe proposition that such a sentence isvoid only as to the excess imposed incase the parts are separable, the rulebeing that the petitioner is not entitled to

his discharge on a writ ofhabeas corpusunless he has served out so much of thesentence as was valid. (Ex parteErdmann, 88 Cal., 579; Lowrey vsHogue, 85 Cal., 600; Armstrong vsPeople, 37 Ill., 459; State vs. Brannon34 La Ann., 942; People vs. Liscomb, 19

Am. Rep., 211; In re Taylor, 7 S. D.382, 45 L. R. A., 136; Ex parte Mooney26 W. Va., 36, 53 Am. Rep., 59; U. S

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vs. Pridgeon, 153 U. S., 48; In reGraham, 138 U. S., 461.)

In the present case, in view of the failure of thepetitioners to execute the deed of conveyance directedin the judgment of the court, the respondent may, undersection 10, Rule 39, either order its execution by someother person appointed or designated by the court at the

expense of the petitioners, or enter a judgment divestingthe title of the petitioner over the property in questionand vesting it in Leon Alejo, administrator of estate of thedeceased Fortunato Alejo, and such judgment has theforce and effect of a conveyance executed in due form oflaw.

In view of the foregoing, the order of the court ofApril 7, 1947, ordering the confinement of the petitionersin the provincial jail until they have complied with theorder of the court, is set aside without costs. So ordered.

Moran, C.J., Pablo, Bengzon, Briones and Tuason, JJ.,

concur.Paras, J., concurs in the result.

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G.R. No. 47517 June 27, 1941

IDONAH SLADE PERKINS, petitioner,vs.MAMERTO ROXAS, ET AL., respondents.

Alva J. Hill for petitioner.DeWitt, Perkins & Ponce Enrile for respondent Judgeand respondent Perkins.Ross, Lawrence, Selph & Carrascoso, Jr., forrespondent Benguet Consolidated Mining Co.

LAUREL, J.:

On July 5, 1938, the respondent Eugene Arthur Perkins,filed a complaint in the Court of First Instance of Manilaagainst the Benguet Consolidated Mining Company forthe recovery of the sum of P71,379.90, consisting ofdividends which have been declared and made payableon 52,874 shares of stock registered in his name,payment of which was being withheld by the company,and for the recognition of his right to the control anddisposal of said shares, to the exclusion of all others. Tothe complaint, the company filed its answer, alleging, byway of defense, that the withholding of plaintiff's right tothe disposal and control of the shares was due to certaindemands made with respect to said shares by thepetitioner herein. Idonah Slade Perkins, and by oneGeorge H. Engelhard. The answer prays that theadverse claimants be made parties to the action andserved with notice thereof by publication, and thatthereafter all such parties be required to interplead andsettle the rights among themselves.

On September 5, 1938, the trial court ordered therespondent, Eugene Arthur Perkins, to include in hiscomplaint as parties defendants petitioner, Idonah SladePerkins, and George H. Engelhard. The complaint wasaccordingly amended and in addition to the relief prayedfor in the original complaint, respondent Perkins prayedthat petitioner Idonah Slade Perkins and George H.Engelhard be adjudged without interest in the shares ofstock in question and excluded from any claim theyassert thereon. Thereafter, summons by publicationwere served upon the non-resident defendants, IdonahSlade Perkins and George H. Engelhard, pursuant to theorder of the trial court. On December 9, 1938, Engelhard

filed his answer to the amended complaint, and onJanuary 8, 1940, petitioner's objection to the court's

jurisdiction over her person having been overruled by thetrial court and by this court in G. R. No. 46831, petitionerfiled her answer with a cross-complaint in which she setsup a judgment allegedly obtained by her againstrespondent, Eugene Arthur Perkins, from the SupremeCourt of the State of New York, wherein it is declaredthat she is the sole legal owner and entitled to thepossession and control of the shares of stock in questiontogether with all the cash dividends declared thereon by

the Benguet Consolidated Mining Company, and praysfor various affirmative reliefs against the respondent. Tothe answer and cross-complaint thus filed, therespondent, Eugene Arthur Perkins, filed a reply and ananswer in which he sets up several defenses to theenforcement in this jurisdiction of the judgment of theSupreme Court of the State of New York above alludedto. Instead of demurring to the reply on either of the two

grounds specified in section 100 of the Code of CivilProcedure, petitioner, Idonah Slade Perkins, on June 51940, filed a demurrer thereto on the ground that "thecourt has no jurisdiction of the subject of the action,"because the alleged judgment of the Supreme Court othe State of New York is res judicata.

Petitioner's demurrer having been overruled, she nowfiled in this court a petition entitled "Certiorari, Prohibitionand Mandamus," alleging that "the respondent judge isabout to and will render judgment in the abovementioned case disregarding the constitutional rights ofthis petitioner; contrary to and annulling the final

subsisting, valid judgment rendered and entered in thispetitioner's favor by the courts of the State of NewYork, ... which decision is res judicata on all thequestions constituting the subject matter of civil case No53317, of the Court of First Instance of Manila; andwhich New York judgment the Court of First Instance ofManila is without jurisdiction to annul, amend, reverse, ormodify in any respect whatsoever"; and praying that theorder of the respondent judge overruling the demurrer beannulled, and that he and his successors bepermanently prohibited from taking any action on thecase, except to dismiss the same.

The only question here to be determined, therefore, iswhether or not, in view of the alleged judgment enteredin favor of the petitioner by the Supreme Court of NewYork, and which is claimed by her to be res judicata onall questions raised by the respondent, Eugene ArthurPerkins, in civil case No. 53317 of the Court of FirstInstace of Manila, the local court has jurisdiction over thesubject matter of the action in the said case. By

jurisdiction over the subject matter is meant the nature othe cause of action and of the relief sought, and this isconferred by the sovereign authority which organizes thecourt, and is to be sought for in general nature of itspowers, or in authority specially conferred. In the presentcase, the amended complaint filed by the respondentEugene Arthur Perkins, in the court below alleged theownership in himself of the conjugal partnership betweenhim and his wife, Idonah Slade Perkins; that thepetitioner, Idonah Slade Perkins, and George HEngelhard assert claims to and interests in the saidstock adverse to Eugene Arthur Perkins; that suchclaims are invalid, unfounded, and made only for thepurpose of vexing, hindering and delaying Eugene

Arthur Perkins in the exercise of the lawful control oveand use of said shares and dividends accorded to himand by law and by previous orders and decrees of this

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court; and the said amended complaint prays, inter alia,"that defendant Benguet Consolidated Mining Companybe required and ordered to recognize the right of theplaintiff to the control and disposal of said shares sostanding in his name to the exclusion of all others; thatthe additional defendants, Idonah Slade Perkins andGeorge H. Engelhard, be each held to have no interestor claim in the subject matter of the controversy between

plaintiff and defendant Benguet Consolidated MiningCompany, or in or under the judgment to be renderedherein and that by said judgment they, and each of thembe excluded therefrom; and that the plaintiff be awardedthe costs of this suit and general relief." Therespondent's action, therefore, calls for the adjudicationof title to certain shares of stock of the BenguetConsolidated Mining Company, and the granting ofaffirmative reliefs, which fall within the general

jurisdiction of the Court of First Instance of Manila. (Vide:sec. 146, et seq., Adm. Code, as amended byCommonwealth Act No. 145; sec. 56, Act No. 136, asamended by Act No. 400.)

Similarly, the Court of First Instance of Manila isempowered to adjudicate the several demandscontained in petitioner's cross-complaint. The cross-complaint sets up a judgment allegedly recovered byIdonah Slade Perkins against Eugene Arthur Perkins inthe Supreme Court of New York and by way of reliefprays:

(1) Judgment against the plaintiffEugene Arthur Perkins in the sum ofone hundred eighty-five thousand andfour hundred dollars ($185,400),

representing cash dividends paid to himby defendant Benguet ConsolidatedMining Co. from February, 1930, up toand including the dividend of March 30,1937.

(2) That plaintiff Eugene Arthur Perkinsbe required to deliver to this defendantthe certificates representing the 48,000shares of capital stock of BenguetConsolidated Mining Co. issued as astock dividend on the 24,000 sharesowned by this defendant as described in

the judgment Exhibit 1-A.

(3) That this defendant recover underthat judgment Exhibit 1-A interest uponthe amount of each cash dividendreferred to in that judgment received byplaintiff Eugene Arthur Perkins fromFebruary, 1930, to and including thedividend of March 30, 1937, from thedate of payment of each of such

dividends at the rate of 7 per cent perannum until paid.

(4) That this defendant recover oplaintiff her costs and disbursements inthat New York action amounting to thesum of one thousand five hundredeighty-four and 20/00 dollars

($1,584.20), and the further sum of twothousand dollars ($2,000) granted her inthat judgment Exhibit 1-A as an extraallowance, together with interest.

(5) For an order directing an executionto be issued in favor of this defendantand against the plaintiff for amountssufficient to satisfy the New York

judgment Exhibit 1-A in its entirety, andagainst the plaintiff and the defendantBenguet Consolidated Mining Co. fosuch other amounts prayed for herein as

this court may find to be due andpayable by each of them; and orderingthem to comply with all other orderswhich this court may issue in favor ofthe defendant in this case.

(6) For the costs of this action, and

(7) For such other relief as may beappropriate and proper in the premises.

In other words, Idonah Slade Perkins in her cross-complaint brought suit against Eugene Arthur Perkinsand the Benguet Consolidated Mining Company uponthe alleged judgment of the Supreme Court of the Stateof New York and asked the court below to rende

judgment enforcing that New York judgment, and toissue execution thereon. This is a form of actionrecognized by section 309 of the Code of CiviProcedure (now section 47, Rule 39, Rules of Court) andwhich falls within the general jurisdiction of the Court ofFirst Instance of Manila, to adjudicate, settled anddetermine.

The petitioner expresses the fear that the respondenjudge may render judgment "annulling the finalsubsisting, valid judgment rendered and entered in thispetitioner's favor by the courts of the State of NewYork, ... which decision is res judicata on all thequestions constituting the subject matter of civil case No53317," and argues on the assumption that therespondent judge is without jurisdiction to takecognizance of the cause. Whether or not the respondent

judge in the course of the proceedings will give validityand efficacy to the New York judgment set up by thepetitioner in her cross-complaint is a question that goesto the merits of the controversy and relates to the rights

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of the parties as between each other, and not to thejurisdiction or power of the court. The test of jurisdictionis whether or not the tribunal

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2nd Digest - Full Cases