rule 1 civpro

7/25/2019 Rule 1 Civpro

1/74CIVIL PROCEDURE AGUSTIN, E. P.| 1

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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 "El BancoEspanol-Filipino" to foreclose a mortgage upon various parcels ofreal property situated in the city of Manila. The mortgage inquestion is dated June 16, 1906, and was executed by the

original defendant herein, Engracio Palanca Tanquinyeng yLimquingco, as security for a debt owing by him to the bank.Upon March 31, 1906, the debt amounted to P218,294.10 andwas drawing interest at the rate of 8 per centum per annum,payable at the end of each quarter. It appears that the parties tothis mortgage at that time estimated the value of the property inquestion at P292,558, which was about P75,000 in excess of theindebtedness. After the execution of this instrument by themortgagor, he returned to China which appears to have been hisnative country; 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 the institutionof the present action, it was necessary for the plaintiff in theforeclosure proceeding to give notice to the defendant bypublication pursuant to section 399 of the Code of Civil

Procedure. An order for publication was accordingly obtainedfrom the court, and publication was made in due form in anewspaper of the city of Manila. At the same time that the orderof the court should deposit in the post office in a stampedenvelope a copy of the summons and complaint directed to thedefendant at his last place of residence, to wit, the city of Amoy,in the Empire of China. This order was made pursuant to thefollowing provision contained in section 399 of the Code of CivilProcedure:

In case of publication, where the residence of anonresident or absent defendant is known, the judgemust direct a copy of the summons and complaint tobe forthwith deposited by the clerk in the post-office,postage prepaid, directed to the person to be served,at his place of residence

Whether the clerk complied with this order does not affirmativelyappear. There is, however, among the papers pertaining to thiscase, an affidavit, dated April 4, 1908, signed by Bernardo Chany Garcia, an employee of the attorneys of the bank, showingthat upon that date he had deposited in the Manila post-office aregistered letter, addressed to Engracio Palanca Tanquinyeng, atManila, containing copies of the complaint, the plaintiff'saffidavit, the summons, and the order of the court directingpublication as aforesaid. It appears from the postmaster'sreceipt that Bernardo probably used an envelope obtained from

the clerk's office, as the receipt purports to show that the letteremanated from the office.

The cause proceeded in usual course in the Court of FirstInstance; and the defendant not having appeared, judgmentwas, upon July 2, 1908, taken against him by default. Upon July3, 1908, a decision was rendered in favor of the plaintiff. In thisdecision it was recited that publication had been properly made

in a periodical, but nothing was said about this notice havingbeen given mail. The court, upon this occasion, found that theindebtedness of the defendant amounted to P249,355. 32, withinterest from March 31, 1908. Accordingly it was ordered thatthe defendant should, on or before July 6, 1908, deliver saidamount to the clerk of the court to be applied to the satisfactionof the judgment, and it was declared that in case of the failureof the defendant to satisfy the judgment within such period, themortgage property located in the city of Manila should beexposed to public sale. The payment contemplated in said orderwas never made; and upon July 8, 1908, the court ordered thesale of the property. The sale took place upon July 30, 1908,and the property was bought in by the bank for the sum ofP110,200. Upon August 7, 1908, this sale was confirmed by thecourt.

About seven years after the confirmation of this sale, or to theprecise, upon June 25, 1915, a motion was made in this causeby Vicente Palanca, as administrator of the estate of the originaldefendant, Engracio Palanca Tanquinyeng y Limquingco,wherein the applicant requested the court to set aside the orderof default of July 2, 1908, and the judgment rendered upon July3, 1908, and to vacate all the proceedings subsequent thereto.The basis of this application, as set forth in the motion itself,was that the order of default and the judgment renderedthereon were void because the court had never acquired

jurisdiction over the defendant or over the subject of the action.

At the hearing in the court below the application to vacate thejudgment was denied, and from this action of the court VicentePlanca, as administrator of the estate of the original defendant,has appealed. No other feature of the case is here underconsideration than such as related to the action of the courtupon said motion.

The case presents several questions of importance, which will bediscussed in what appears to be the sequence of mostconvenient development. In the first part of this opinion weshall, for the purpose of argument, assume that the clerk of theCourt of First Instance did not obey the order of the court in thematter of mailing the papers which he was directed to send tothe defendant in Amoy; and in this connection we shall consider,first, whether the court acquired the necessary jurisdiction toenable it to proceed with the foreclosure of the mortgage and,secondly, whether those proceedings were conducted in suchmanner as to constitute due process of law.

The word "jurisdiction," as applied to the faculty of exercising

judicial power, is used in several different, though related,senses since it may have reference (1) to the authority of thecourt to entertain a particular kind of action or to administer aparticular kind of relief, or it may refer to the power of the courtover the parties, or (2) over the property which is the subject tothe litigation.

The sovereign authority which organizes a court determines thenature and extent of its powers in general and thus fixes itscompetency or jurisdiction with reference to the actions which itmay entertain and the relief 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 legal processexerted over the person.

Jurisdiction over the property which is the subject of thelitigation may result either from a seizure of the property underlegal process, whereby it is brought into the actual custody of

the law, or i t may result from the institution of legal proceedingswherein, under special provisions of law, the power of the courtover the property is recognized and made effective. In the lattercase the property, though at all times within the potential powerof the court, may never be taken into actual custody at all. Anillustration of the jurisdiction acquired by actual seizure is foundin attachment proceedings, where the property is seized at thebeginning of the action, or some subsequent stage of itsprogress, and held to abide the final event of the litigation. Anillustration of what we term potential jurisdiction over the res, isfound in the proceeding to register the title of land under oursystem for the registration of land. Here the court, withouttaking actual physical control over the property assumes, at theinstance of some person claiming to be owner, to exercise a

jurisdiction in rem over the property and to adjudicate the title infavor of the petitioner against all the world.

In the terminology of American law the action to foreclose amortgage is said to be a proceeding quasi in rem, by which isexpressed the idea that while it is not strictly speaking an actionin remyet it partakes of that nature and is substantially such.The expression "action in rem" is, in i ts narrow application, usedonly with reference to certain proceedings in courts of admiraltywherein the property alone is treated as responsible for theclaim or obligation upon which the proceedings are based. Theaction quasi rem differs from the true action in rem in thecircumstance that in the former an individual is named asdefendant, and the purpose of the proceeding is to subject hisinterest therein to the obligation or lien burdening the property.

All proceedings having for their sole object the sale or otherdisposition of the property of the defendant, whether byattachment, foreclosure, or other form of remedy, are in ageneral way thus designated. The judgment entered in these

proceedings is conclusive only between the parties.

In speaking of the proceeding to foreclose a mortgage theauthor of a well known treaties, has said:

Though nominally against person, such suits are tovindicate liens; they proceed upon seizure; they treatproperty as primarily indebted; and, with thequalification above-mentioned, they are substantiallyproperty actions. In the civil law, they are styledhypothecary actions, and their sole object is theenforcement of the lien against the res; in thecommon law, they would be different in chancery didnot treat the conditional conveyance as a merehypothecation, and the creditor's right ass anequitable lien; so, in both, the suit is real action so far

as it is against property, and seeks the judicialrecognition of a property debt, and an order for thesale of the res. (Waples, Proceedings In Rem. sec.607.)

It is true that in proceedings of this character, if the defendantfor whom publication is made appears, the action becomes as tohim a personal action and is conducted as such. This, however,does not affect the proposition that where the defendant fails toappear the action is quasi in rem; and it should therefore be

considered with reference to the principles governing actions inrem.

There is an instructive analogy between the foreclosureproceeding and an action of attachment, concerning which theSupreme Court of the United States has used the followinglanguage:

If the defendant appears, the cause becomes mainlya suit in personam, with the added incident, that theproperty attached remains liable, under the control ofthe court, to answer to any demand which may beestablished against the defendant by the final

judgment of the court. But, if there is no appearanceof the defendant, and no service of process on him,the case becomes, in its essential nature, aproceeding in rem, the only effect of which is tosubject the property attached to the payment of thedefendant which the court may find to be due to theplaintiff. (Cooper vs. Reynolds, 10 Wall., 308.)

In an ordinary attachment proceeding, if the defendant is notpersonally served, the preliminary seizure is to, be considerednecessary in order to confer jurisdiction upon the court. In thiscase the lien on the property is acquired by the seizure; and thepurpose of the proceedings is to subject the property to thatlien. If a lien already exists, whether created by mortgage,contract, or statute, the preliminary seizure is not necessary;and the court proceeds to enforce such lien in the mannerprovided by law precisely as though the property had beenseized upon attachment. (Roller vs. Holly, 176 U. S., 398, 405;44 L. ed., 520.) It results that the mere circumstance that in anattachment the property may be seized at the inception of theproceedings, while in the foreclosure suit it is not taken intolegal custody until the time comes for the sale, does notmaterially affect the fundamental principle involved in bothcases, which is that the court is here exercising a jurisdictionover the property in a proceeding directed essentially in rem.

Passing now to a consideration of the jurisdiction of the Court of

First Instance in a mortgage foreclosure, it is evident that thecourt derives its authority to entertain the action primarily fromthe statutes organizing the court. The jurisdiction of the court, inthis most general sense, over the cause of action is obvious andrequires no comment. Jurisdiction over the person of thedefendant, if acquired at all in such an action, is obtained by thevoluntary submission of the defendant or by the personal serviceof process upon him within the territory where the process isvalid. If, however, the defendant is a nonresident and, remainingbeyond the range of the personal process of the court, refusesto come in voluntarily, the court never acquires jurisdiction overthe person at all. Here the property itself is in fact the sole thingwhich is impleaded and is the responsible object which is thesubject of the exercise of judicial power. It follows that the

jurisdiction of the court in such case is based exclusively on thepower which, under the law, it possesses over the property; andany discussion relative to the jurisdiction of the court over the

person of the defendant is entirely apart from the case. Thejurisdiction of the court over the property, considered as theexclusive object of such action, is evidently based upon thefollowing conditions and considerations, namely: (1) that theproperty is located within the district; (2) that the purpose of thelitigation is to subject the property by sale to an obligation fixedupon it by the mortgage; and (3) that the court at a properstage of the proceedings takes the property into custody, ifnecessary, and expose it to sale for the purpose of satisfying themortgage debt. An obvious corollary is that no other relief canbe granted in this proceeding than such as can be enforcedagainst the property.



We may then, from what has been stated, formulated thefollowing proposition relative to the foreclosure proceedingagainst the property of a nonresident mortgagor who fails tocome in and submit himself personally to the jurisdiction of thecourt: (I) That the jurisdiction of the court is derived from thepower which it possesses over the property; (II) that jurisdictionover the person is not acquired and is nonessential; (III) thatthe relief granted by the court must be limited to such as can be

enforced against the property itself.

It is important that the bearing of these propositions be clearlyapprehended, for there are many expressions in the Americanreports from which it might be inferred that the court acquirespersonal jurisdiction over the person of the defendant bypublication and notice; but such is not the case. In truth theproposition that jurisdiction over the person of a nonresidentcannot be acquired by publication and notice was never clearlyunderstood even in the American courts until after the decisionhad been rendered by the Supreme Court of the United States inthe leading case of Pennoyer vs. Neff (95 U. S. 714; 24 L. ed.,565). In the light of that decision, and of other decisions whichhave subsequently been rendered in that and other courts, theproposition that jurisdiction over the person cannot be thusacquired by publication and notice is no longer open to question;and it is now fully established that a personal judgment upon

constructive or substituted service against a nonresident whodoes not appear is wholly invalid. This doctrine applies to allkinds of constructive or substituted process, including service bypublication and personal service outside of the jurisdiction inwhich the judgment is rendered; and the only exception seemsto be found in the case where the nonresident defendant hasexpressly or impliedly consented to the mode of service. (Note toRaher vs. Raher, 35 L. R. A. [N. S. ], 292; see also 50 L .R. A.,585; 35 L. R. A. [N. S.], 312

The idea upon which the decision in Pennoyer vs. Neff (supra)proceeds is that the process from the tribunals of one Statecannot run into other States or countries and that due process oflaw requires that the defendant shall be brought under thepower of the court by service of process within the State, or byhis voluntary appearance, in order to authorize the court to pass

upon the question of his personal liability. The doctrineestablished by the Supreme Court of the United States on thispoint, being based upon the constitutional conception of dueprocess of law, is binding upon the courts of the PhilippineIslands. Involved in this decision is the principle that inproceedings in rem or quasi in rem against a nonresident who isnot served personally within the state, and who does not appear,the relief must be confined to the res, and the court cannotlawfully render a personal judgment against him. (Dewey vs.Des Moines, 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 effected exclusivelyby publication, no personal judgment for the deficiency can beentered. (Latta vs. Tutton, 122 Cal., 279; Blumberg vs. Birch, 99Cal., 416.)

It is suggested in the brief of the appellant that the judgmententered in the court below offends against the principle juststated and that this judgment is void because the court in factentered a personal judgment against the absent debtor for thefull amount of the indebtedness secured by the mortgage. Wedo not so interpret the judgment.

In a foreclosure proceeding against a nonresident owner it isnecessary for the court, as in all cases of foreclosure, toascertain the amount due, as prescribed in section 256 of theCode of Civil Procedure, and to make an order requiring the

defendant to pay the money into court. This step is a necessaryprecursor of the order of sale. In the present case the judgmentwhich was entered contains the following words:

Because it is declared that the said defendantEngracio Palanca Tanquinyeng y Limquingco, isindebted in the amount of P249,355.32, plus theinterest, to the 'Banco Espanol-Filipino' . . . therefore

said appellant is ordered to deliver the above amountetc., etc.

This is not the language of a personal judgment. Instead it isclearly intended merely as a compliance with the requirementthat the amount due shall be ascertained and that the evidenceof this it may be observed that according to the Code of CivilProcedure a personal judgment against the debtor for thedeficiency is not to be rendered until after the property has beensold and the proceeds applied to the mortgage debt. (sec. 260).

The conclusion upon this phase of the case is that whatever maybe the effect in other respects of the failure of the clerk of theCourt of First Instance to mail the proper papers to thedefendant in Amoy, China, such irregularity could in no wiseimpair or defeat the jurisdiction of the court, for in our opinionthat jurisdiction rest upon a basis much more secure than wouldbe supplied by any form of notice that could be given to aresident of a foreign country.

Before leaving this branch of the case, we wish to observe thatwe are fully aware that many reported cases can be cited inwhich it is assumed that the question of the sufficiency ofpublication or notice in a case of this kind is a question affectingthe jurisdiction of the court, and the court is sometimes said toacquire jurisdiction by virtue of the publication. This phraseologywas undoubtedly originally adopted by the court because of theanalogy between service by the publication and personal serviceof process upon the defendant; and, as has already beensuggested, prior to the decision of Pennoyer vs. Neff (supra) thedifference between the legal effects of the two forms of servicewas obscure. It is accordingly not surprising that the modes of

expression which had already been molded into legal traditionbefore that case was decided have been brought down to thepresent day. But it is clear that the legal principle here involvedis not effected by the peculiar language in which the courts haveexpounded their ideas.

We now proceed to a discussion of the question whether thesupposed irregularity in the proceedings was of such gravity asto amount to a denial of that "due process of law" which wassecured by the Act of Congress in force in these Islands at thetime this mortgage was foreclosed. (Act of July 1, 1902, sec. 5.)In dealing with questions involving the application of theconstitutional provisions relating to due process of law theSupreme Court of the United States has refrained fromattempting to define with precision the meaning of thatexpression, the reason being that the idea expressed therein is

applicable under so many diverse conditions as to make anyattempt ay precise definition hazardous and unprofitable. Asapplied to a judicial proceeding, however, it may be laid downwith certainty that the requirement of due process is satisfied ifthe following conditions are present, namely; (1) There must bea court or tribunal clothed with judicial power to hear anddetermine the matter before it; (2) jurisdiction must be lawfullyacquired over the person of the defendant or over the propertywhich is the subject of the proceeding; (3) the defendant mustbe given an opportunity to be heard; and (4) judgment must berendered upon lawful hearing.



Passing at once to the requisite that the defendant shall have anopportunity to be heard, we observe that in a foreclosure casesome notification of the proceedings to the nonresident owner,prescribing the time within which appearance must be made, iseverywhere recognized as essential. To answer this necessity thestatutes generally provide for publication, and usually in additionthereto, for the mailing of notice to the defendant, if hisresidence is known. Though commonly called constructive, or

substituted service of process in any true sense. It is merely ameans provided by law whereby the owner may be admonishedthat his property is the subject of judicial proceedings and that itis incumbent upon him to take such steps as he sees fit toprotect it. In speaking of notice of this character a distinguishmaster of constitutional law has used the following language:

. . . if the owners are named in the proceedings, andpersonal notice is provided for, it is rather fromtenderness to their interests, and in order to makesure that the opportunity for a hearing shall not belost to them, than from any necessity that the caseshall assume that 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 not involveany absolute assurance that the absent owner shall therebyreceive actual notice. The periodical containing the publicationmay never in fact come to his hands, and the chances that heshould discover the notice may often be very slight. Even wherenotice is sent by mail the probability of his receiving it, thoughmuch increased, is dependent upon the correctness of theaddress to which it is forwarded as well as upon the regularityand security of the mail service. It will be noted, furthermore,that the provision of our law relative to the mailing of noticedoes not absolutely require the mailing of notice unconditionallyand in every event, but only in the case where the defendant'sresidence is known. In the light of all these facts, it is evidentthat actual 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 of actualnotice is apparently this: Property is always assumed to be in thepossession of its owner, in person or by agent; and he may besafely held, under certain conditions, to be affected withknowledge that proceedings have been instituted for itscondemnation and sale.

It is the duty of the owner of real estate, who is anonresident, to take measures that in some way heshall be represented when his property is called intorequisition, and if he fails to do this, and fails to getnotice by the ordinary publications which have usuallybeen required in such cases, it is his misfortune, andhe must abide the consequences. (6 R. C. L., sec. 445[p. 450]).

It has been well said by an American court:

If property of a nonresident cannot be reached bylegal process upon the constructive notice, then ourstatutes were passed in vain, and are mere emptylegislative declarations, without either force, ormeaning; for if the person is not within the

jurisdiction of the court, no personal judgment can berendered, and if the judgment cannot operate uponthe property, then no effective judgment at all can berendered, so that the result would be that the courts

would be powerless to assist a citizen against anonresident. Such a result would be a deplorable one.(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 notice againsta nonresident owner should be complied with; and in respect to

the publication of notice in the newspaper it may be stated thatstrict compliance with the requirements of the law has been heldto be essential. In Guaranty Trust etc. Co. vs. Green Cove etc.,Railroad Co. (139 U. S., 137, 138), it was held that wherenewspaper publication was made for 19 weeks, when the statuterequired 20, the publication was insufficient.

With respect to the provisions of our own statute, relative to thesending of notice by mail, the requirement is that the judge shalldirect that the notice be deposited in the mail by the clerk of thecourt, and it is not in terms declared that the notice must bedeposited in the mail. We consider this to be of somesignificance; and it seems to us that, having due regard to theprinciples upon which the giving of such notice is required, theabsent owner of the mortgaged property must, so far as the dueprocess of law is concerned, take the risk incident to the possible

failure of the clerk to perform his duty, somewhat as he takesthe risk that the mail clerk or the mail carrier might possibly loseor destroy the parcel or envelope containing the notice before itshould reach its destination and be delivered to him. This ideaseems to be strengthened by the consideration that placing uponthe clerk the duty of sending notice by mail, the performance ofthat act is put effectually beyond the control of the plaintiff inthe litigation. At any rate it is obvious that so much of section399 of the Code of Civil Procedure as relates to the sending ofnotice by mail was complied with when the court made theorder. The question as to what may be the consequences of thefailure of the record to show the proof of compliance with thatrequirement 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, if infact he did so fail in his duty, is not such an irregularity, asamounts to a denial of due process of law; and hence in ouropinion that irregularity, if proved, would not avoid the judgmentin this case. Notice was given by publication in a newspaper andthis is the only form of notice which the law unconditionallyrequires. This in our opinion is all that was absolutely necessaryto sustain the proceedings.

It will be observed that in considering the effect of thisirregularity, it makes a difference whether it be viewed as aquestion involving jurisdiction or as a question involving dueprocess of law. In the matter of jurisdiction there can be nodistinction between the much and the little. The court either has

jurisdiction or it has not; and if the requirement as to the mailingof notice should be considered as a step antecedent to theacquiring of jurisdiction, there could be no escape from theconclusion that the failure to take that step was fatal to the

validity of the judgment. In the application of the idea of dueprocess of law, on the other hand, it is clearly unnecessary to beso rigorous. The jurisdiction being once established, all that dueprocess of law thereafter requires is an opportunity for thedefendant to be heard; and as publication was duly made in thenewspaper, it would seem highly unreasonable to hold thatfailure to mail the notice was fatal. We think that in applying therequirement of due process of law, it is permissible to reflectupon the purposes of the provision which is supposed to havebeen violated and the principle underlying the exercise of judicialpower in these proceedings. Judge in the light of theseconceptions, we think that the provision of Act of Congress



declaring that no person shall be deprived of his propertywithout 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 the notice tothe defendant by mail did not destroy the jurisdiction of thecourt and (2) that such irregularity did not infringe therequirement of due process of law. As a consequence of these

conclusions the irregularity in question is in some measure shornof its potency. It is still necessary, however, to consider its effectconsidered as a simple irregularity of procedure; and it would beidle to pretend that even in this aspect the irregularity is notgrave enough. From this point of view, however, it is obviousthat any motion to vacate the judgment on the ground of theirregularity in question must fail unless it shows that thedefendant was prejudiced by that irregularity. The least,therefore, that can be required of the proponent of such amotion is to show that he had a good defense against the actionto foreclose the mortgage. Nothing of the kind is, however,shown either in the motion or in the affidavit which accompaniesthe motion.

An application to open or vacate a judgment because of anirregularity or defect in the proceedings is usually required to be

supported by an affidavit showing the grounds on which therelief is sought, and in addition to this showing also ameritorious defense to the action. It is held that a generalstatement that a party has a good defense to the action isinsufficient. The necessary facts must be averred. Of course if a

judgment is void upon its face a showing of the existence of ameritorious defense is not necessary. (10 R. C. L., 718.)

The lapse of time is also a circumstance deeply affecting thisaspect of the case. In this connection we quote the followingpassage from the encyclopedic treatise now in course ofpublication:

Where, however, the judgment is not void on its face,and may therefore be enforced if permitted to standon the record, courts in many instances refuse to

exercise their quasi equitable powers to vacate ajudgement after the lapse of the term ay which it wasentered, except in clear cases, to promote the ends of

justice, and where it appears that the party makingthe application is himself without fault and has actedin good faith and with ordinary diligence. Laches onthe part of the applicant, if unexplained, is deemedsufficient ground for refusing the relief to which hemight otherwise be entitled. Something is due to thefinality of judgments, and acquiescence orunnecessary delay is fatal to motions of thischaracter, since courts are always reluctant tointerfere with judgments, and especially where theyhave been executed or satisfied. The moving partyhas the burden of showing diligence, and unless it isshown affirmatively the court will not ordinarilyexercise its discretion in his favor. (15 R. C. L., 694,

695.)

It is stated in the affidavit that the defendant, Engracio PalancaTanquinyeng y Limquingco, died January 29, 1910. Themortgage under which the property was sold was executed farback in 1906; and the proceedings in the foreclosure wereclosed by the order of court confirming the sale dated August 7,1908. It passes the rational bounds of human credulity tosuppose that a man who had placed a mortgage upon propertyworth nearly P300,000 and had then gone away from the sceneof his life activities to end his days in the city of Amoy, China,

should have long remained in ignorance of the fact that themortgage had been foreclosed and the property sold, evensupposing that he had no knowledge of those proceedings whilethey were being conducted. It is more in keeping with theordinary course of things that he should have acquiredinformation as to what was transpiring in his affairs at Manila;and upon the basis of this rational assumption we areauthorized, in the absence of proof to the contrary, to presume

that he did have, or soon acquired, information as to the sale ofhis property.

The Code of Civil Procedure, indeed, expressly declares thatthere is a presumption that things have happened according tothe ordinary habits of life (sec. 334 [26]); and we cannotconceive of a situation more appropriate than this for applyingthe presumption thus defined by the lawgiver. In support of thispresumption, as applied to the present case, it is permissible toconsider the probability that the defendant may have receivedactual notice of these proceedings from the unofficial noticeaddressed to him in Manila which was mailed by an employee ofthe bank's attorneys. Adopting almost the exact words used bythe Supreme Court of the United States in Grannis vs. Ordeans(234 U. S., 385; 58 L. ed., 1363), we may say that in view of thewell-known skill of postal officials and employees in makingproper delivery of letters defectively addressed, we think the

presumption is clear and strong that this notice reached thedefendant, there being no proof that it was ever returned by thepostal officials as undelivered. And if it was delivered in Manila,instead of being forwarded to Amoy, China, there is a probabilitythat the recipient was a person sufficiently interested in hisaffairs to send it or communicate its contents to him.

Of course if the jurisdiction of the court or the sufficiency of theprocess of law depended upon the mailing of the notice by theclerk, the reflections in which we are now indulging would beidle and frivolous; but the considerations mentioned areintroduced in order to show the propriety of applying to thissituation the legal presumption to which allusion has been made.Upon that presumption, supported by the circumstances of thiscase, ,we do not hesitate to found the conclusion that thedefendant voluntarily abandoned all thought of saving his

property from the obligation which he had placed upon it; thatknowledge of the proceedings should be imputed to him; andthat he acquiesced in the consequences of those proceedingsafter they had been accomplished. Under these circumstances itis clear that the merit of this motion is, as we have alreadystated, adversely affected in a high degree by the delay inasking for relief. Nor is it an adequate reply to say that theproponent of this motion is an administrator who only qualified afew months before this motion was made. No disability on thepart of the defendant himself existed from the time when theforeclosure was effected until his death; and we believe that thedelay in the appointment of the administrator and institution ofthis action is a circumstance which is imputable to the parties ininterest whoever they may have been. Of course if the minorheirs had instituted an action in their own right to recover theproperty, it would have been different.

It is, however, argued that the defendant has suffered prejudiceby reason of the fact that the bank became the purchaser of theproperty at the foreclosure sale for a price greatly below thatwhich had been agreed upon in the mortgage as the upset priceof the property. In this connection, it appears that in article nineof the mortgage which was the subject of this foreclosure, asamended by the notarial document of July 19, 1906, the partiesto this mortgage made a stipulation to the effect that the valuetherein placed upon the mortgaged properties should serve as abasis of sale in case the debt should remain unpaid and the bankshould proceed to a foreclosure. The upset price stated in that



stipulation for all the parcels involved in this foreclosure wasP286,000. It is said in behalf of the appellant that when thebank bought 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 the

foreclosure proceedings. (Yangco vs. Cruz Herrera and Wy Piaco,11 Phil. Rep., 402; Banco-Espaol Filipino vs. Donaldson, Simand Co., 5 Phil. Rep., 418.) In both the cases here cited theproperty was purchased at the foreclosure sale, not by thecreditor or mortgagee, but by a third party. Whether the samerule should be applied in a case where the mortgagee himselfbecomes the purchaser has apparently not been decided by thiscourt in any reported decision, and this question need not herebe considered, since it is evident that if any liability was incurredby the bank by purchasing for a price below that fixed in thestipulation, its liability was a personal liability derived from thecontract of mortgage; and as we have already demonstratedsuch a liability could not be the subject of adjudication in anaction where the court had no jurisdiction over the person of thedefendant. If the plaintiff bank became liable to account for thedifference between the upset price and the price at which inbought in the property, that liability remains unaffected by the

disposition which the court made of this case; and the fact thatthe bank may have violated such an obligation can in no wiseaffect the validity of the judgment entered in the Court of FirstInstance.

In connection with the entire failure of the motion to show eithera meritorious defense to the action or that the defendant hadsuffered any prejudice of which the law can take notice, we maybe permitted to add that in our opinion a motion of this kind,which proposes to unsettle judicial proceedings long ago closed,can not be considered with favor, unless based upon groundswhich appeal to the conscience of the court. Public policyrequires that judicial proceedings be upheld. The maximum hereapplicable is non quieta movere. As was once said by JudgeBrewer, afterwards a member of the Supreme Court of theUnited States:

Public policy requires that judicial proceedings beupheld, and that titles obtained in those proceedingsbe safe from the ruthless hand of collateral attack. Iftechnical defects are adjudged potent to destroy suchtitles, a judicial sale will never realize that value of theproperty, for no prudent man will risk his money inbidding for and buying that title which he has reasonto fear may years thereafter be swept away throughsome occult and not readily discoverable defect.(Martin vs. Pond, 30 Fed., 15.)

In the case where that language was used an attempt was madeto annul certain foreclosure proceedings on the ground that theaffidavit upon which the order of publication was basederroneously stated that the State of Kansas, when he was in fact

residing in another State. It was held that this mistake did notaffect the validity of the proceedings.

In the preceding discussion we have assumed that the clerkfailed to send the notice by post as required by the order of thecourt. We now proceed to consider whether this is a properassumption; and the proposition which we propose to establishis that there is a legal presumption that the clerk performed hisduty as the ministerial officer of the court, which presumption isnot overcome by any other facts appearing in the cause.

In subsection 14 of section 334 of the Code of Civil Procedure itis declared that there is a presumption "that official duty hasbeen regularly performed;" and in subsection 18 it is declaredthat there is a presumption "that the ordinary course of businesshas been followed." These presumptions are of course in nosense novelties, as they express ideas which have always beenrecognized. Omnia presumuntur rite et solemniter esse actadonec probetur in contrarium. There is therefore clearly a legal

presumption that the clerk performed his duty about mailing thisnotice; and we think that strong considerations of policy requirethat this presumption should be allowed to operate with fullforce under the circumstances of this case. A party to an actionhas no control over the clerk of the court; and has no right tomeddle unduly with the business of the clerk in the performanceof his duties. Having no control over this officer, the litigant mustdepend upon the court to see that the duties imposed on theclerk are performed.

Other considerations no less potent contribute to strengthen theconclusion just stated. There is no principle of law better settledthan that after jurisdiction has once been required, every act ofa court of general jurisdiction shall be presumed to have beenrightly done. This rule is applied to every judgment or decreerendered in the various stages of the proceedings from theirinitiation to their completion (Voorhees vs. United States Bank,

10 Pet., 314; 35 U. S., 449); and if the record is silent withrespect to any fact which must have been established before thecourt could have rightly acted, it will be presumed that such factwas properly brought to its knowledge. (The Lessee of Grignonvs. Astor, 2 How., 319; 11 L. ed., 283.)

In making the order of sale [of the real state of adecedent] the court are presumed to have adjudgedevery question necessary to justify such order ordecree, viz: The death of the owners; that thepetitioners were his administrators; that the personalestate was insufficient to pay the debts of thedeceased; that the private acts of Assembly, as to themanner of sale, were within the constitutional powerof the Legislature, and that all the provisions of thelaw as to notices which are directory to the

administrators have been complied with. . . . Thecourt is not bound to enter upon the record theevidence on which any fact was decided. (Florentinevs. Barton, 2 Wall., 210; 17 L. ed., 785.) Especiallydoes all this 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 tothat which is now before us. It there appeared that in order toforeclose a mortgage in the State of Kentucky against anonresident debtor it was necessary that publication should bemade in a newspaper for a specified period of time, also beposted at the front door of the court house and be published onsome Sunday, immediately after divine service, in such church asthe court should direct. In a certain action judgment had beenentered against a nonresident, after publication in pursuance of

these provisions. Many years later the validity of the proceedingswas called in question in another action. It was proved from thefiles of an ancient periodical that publication had been made inits columns as required by law; but no proof was offered toshow the publication of the order at the church, or the posting ofit at the front door of the court-house. It was insisted by one ofthe parties that the judgment of the court was void for lack of

jurisdiction. But the Supreme Court of the United States said:

The court which made the decree . . . was a court ofgeneral jurisdiction. Therefore every presumption notinconsistent with the record is to be indulged in favor



of its jurisdiction. . . . It is to be presumed that thecourt before making its decree took care of to seethat its order for constructive service, on which itsright to make the decree depended, had beenobeyed.

It is true that in this case the former judgment was the subjectof collateral , or indirect attack, while in the case at bar the

motion to vacate the judgment is direct proceeding for reliefagainst it. The same general presumption, however, is indulgedin favor of the judgment of a court of general jurisdiction,whether it is the subject of direct or indirect attack the onlydifference being that in case of indirect attack the judgment isconclusively presumed to be valid unless the record affirmativelyshows it to be void, while in case of direct attack thepresumption in favor of its validity may in certain cases beovercome by proof extrinsic to the record.

The presumption that the clerk performed his duty and that thecourt made its decree with the knowledge that the requirementsof law had been complied with appear to be amply sufficient tosupport the conclusion that the notice was sent by the clerk asrequired by the order. It is true that there ought to be foundamong the papers on file in this cause an affidavit, as required

by section 400 of the Code of Civil Procedure, showing that theorder was in fact so sent by the clerk; and no such affidavitappears. The record is therefore silent where it ought to speak.But the very purpose of the law in recognizing thesepresumptions is to enable the court to sustain a prior judgmentin the face of such an omission. If we were to hold that the

judgment in this case is void because the proper affidavit is notpresent in the file of papers which we call the record, the resultwould be that in the future every title in the Islands resting upona judgment like that now before us would depend, for itscontinued security, upon the presence of such affidavit amongthe papers and would be liable at any moment to be destroyedby the disappearance of that piece of paper. We think that nocourt, with a proper regard for the security of judicialproceedings and for the interests which have by law beenconfided to the courts, would incline to favor such a conclusion.In our opinion the proper course in a case of this kind is to hold

that the legal presumption that the clerk performed his duty stillmaintains notwithstanding the absence from the record of theproper proof of that fact.

In this connection it is important to bear in mind that under thepractice prevailing in the Philippine Islands the word "record" isused in a loose and broad sense, as indicating the collectivemass of papers which contain the history of all the successivesteps taken in a case and which are finally deposited in thearchives of the clerk's office as a memorial of the litigation. It isa matter of general information that no judgment roll, or book offinal record, is commonly kept in our courts for the purpose ofrecording the pleadings and principal proceedings in actionswhich have been terminated; and in particular, no such record iskept in the Court of First Instance of the city of Manila. There is,indeed, a section of the Code of Civil Procedure which directs

that such a book of final record shall be kept; but this provisionhas, as a matter of common knowledge, been generally ignored.The result is that in the present case we do not have theassistance of the recitals of such a record to enable us to passupon the validity of this judgment and as already stated thequestion must be determined by examining the papers containedin the entire file.

But it is insisted by counsel for this motion that the affidavit ofBernardo Chan y Garcia showing that upon April 4, 1908, hesent a notification through the mail addressed to the defendantat Manila, Philippine Islands, should be accepted as affirmative

proof that the clerk of the court failed in his duty and that,instead of himself sending the requisite notice through the mail,he relied upon Bernardo to send it for him. We do not think thatthis is by any means a necessary inference. Of course if it hadaffirmatively appeared that the clerk himself had attempted tocomply with this order and had directed the notification toManila when he should have directed it to Amoy, this would beconclusive that he had failed to comply with the exact terms of

the order; but such is not this case. That the clerk of theattorneys for the plaintiff erroneously sent a notification to thedefendant at a mistaken address affords in our opinion veryslight basis for supposing that the clerk may not have sentnotice to the right address.

There is undoubtedly good authority to support the position thatwhen the record states the evidence or makes an averment withreference to a jurisdictional fact, it will not be presumed thatthere was other or di fferent evidence respecting the fact, or thatthe fact was otherwise than stated. If, to give an illustration, itappears from the return of the officer that the summons wasserved at a particular place or in a particular manner, it will notbe presumed that service was also made at another place or in adifferent manner; or if it appears that service was made upon aperson other than the defendant, it will not be presumed, in thesilence of the record, that it was made upon the defendant also

(Galpin vs. Page, 18 Wall., 350, 366; Settlemier vs. Sullivan, 97U. S., 444, 449). While we believe that these propositions areentirely correct as applied to the case where the person makingthe return is the officer who is by law required to make thereturn, we do not think that it is properly applicable where, as inthe present case, the affidavit was made by a person who, so faras the provisions of law are concerned, was a mereintermeddler.

The last question of importance which we propose to consider iswhether a motion in the cause is admissible as a proceeding toobtain relief in such a case as this. If the motion prevails the

judgment of July 2, 1908, and all subsequent proceedings will beset aside, and the litigation will be renewed, proceeding againfrom the date 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 ismerely to annul the effective judgment of the court, to the endthat the litigation may again resume its regular course.

There is only one section of the Code of Civil Procedure whichexpressly recognizes the authority of a Court of First Instance toset aside a final judgment and permit a renewal of the litigationin the same cause. This is as follows:

SEC. 113. Upon such terms as may be just the courtmay relieve a party or legal representative from the

judgment, order, or other proceeding taken againsthim through his mistake, inadvertence, surprise, orexcusable neglect; Provided, That application thereofbe made within a reasonable time, but in no caseexceeding six months after such judgment, order, or

proceeding was taken.

An additional remedy by petition to the Supreme Court issupplied by section 513 of the same Code. The first paragraph ofthis section, in so far as pertinent to this discussion, provides asfollows:

When a judgment is rendered by a Court of FirstInstance upon default, and a party thereto is unjustlydeprived of a hearing by fraud, accident, mistake orexcusable negligence, and the Court of First Instance



which rendered the judgment has finally adjourned sothat no adequate remedy exists in that court, theparty so deprived of a hearing may present hispetition to the Supreme Court within sixty days afterhe first learns of the rendition of such judgment, andnot thereafter, setting forth the facts and praying tohave judgment set aside. . . .

It is evident that the proceeding contemplated in this section isintended to supplement the remedy provided by section 113;and we believe the conclusion irresistible that there is no othermeans recognized by law whereby a defeated party can, by aproceeding in the same cause, procure a judgment to be setaside, with a view to the renewal of the litigation.

The Code of Civil Procedure purports to be a complete system ofpractice in civil causes, and it contains provisions describing withmuch fullness the various steps to be taken in the conduct ofsuch proceedings. To this end it defines with precision themethod of beginning, conducting, and concluding the civil actionof whatever species; and by section 795 of the same Code it isdeclared that the procedure in all civil action shall be inaccordance with the provisions of this Code. We are therefore ofthe opinion that the remedies prescribed in sections 113 and 513

are exclusive of all others, so far as relates to the opening andcontinuation of a litigation which has been once concluded.

The motion in the present case does not conform to therequirements of either of these provisions; and the consequenceis that in our opinion the action of the Court of First Instance indismissing 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 the cause,since it is clear that, if based on such an error, the came to latefor relief in the Court of First Instance. But as we have alreadyseen, the motion attacks the judgment of the court as void forwant of jurisdiction over the defendant. The idea underlying themotion therefore is that inasmuch as the judgment is a nullity it

can be attacked in any way and at any time. If the judgmentwere in fact void upon its face, that is, if it were shown to be anullity by virtue of its own recitals, there might possibly besomething in this. Where a judgment or judicial order is void inthis sense it may be said to be a lawless thing, which can betreated as an outlaw and slain at sight, or ignored wherever andwhenever it exhibits its head.

But the judgment in question is not void in any such sense. It isentirely regular in form, and the alleged defect is one which isnot apparent upon its face. It follows that even if the judgmentcould be shown to be void for want of jurisdiction, or for lack ofdue process of law, the party aggrieved thereby is bound toresort to some appropriate proceeding to obtain relief. Underaccepted principles of law and practice, long recognized in

American courts, a proper remedy in such case, after the time

for appeal or review has passed, is for the aggrieved party tobring an action to enjoin the judgment, if not already carried intoeffect; or if the property has already been disposed of he mayinstitute suit to recover it. In every situation of this character anappropriate remedy is at hand; and if property has been takenwithout due process, the law concedes due process to recover it.We accordingly old that, assuming the judgment to have beenvoid as alleged by the proponent of this motion, the properremedy was by an original proceeding and not by motion in thecause. As we have already seen our Code of Civil Proceduredefines the conditions under which relief against a judgmentmay be productive of conclusion for this court to recognize such

a proceeding as proper under conditions different from thosedefined by law. Upon the point of procedure here involved, werefer to the case of People vs. Harrison (84 Cal., 607) wherein itwas held that a motion will not lie to vacate a judgment after thelapse of the time limited by statute if the judgment is not void onits face; and in all cases, after the lapse of the time limited bystatute if the judgment is not void on its face; and all cases,after the lapse of such time, when an attempt is made to vacate

the judgment by a proceeding in court for that purpose an actionregularly brought is preferable, and should be required. It will benoted taken verbatim from the California Code (sec. 473).

The conclusions stated in this opinion indicate that the judgmentappealed from is without error, and the same is accordinglyaffirmed, with costs. So ordered.

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




Manila

SECOND DIVISION

G.R. No. 132524 December 29, 1998

FEDERICO C. SUNTAY, petitioner,vs.ISABEL COJUANGCO-SUNTAY * and HON. GREGORIO S.SAMPAGA, Presiding Judge, Branch 78, Regional TrialCourt, Malolos, Bulacan, Respondents

MARTINEZ, J.:

Which should prevail between the ratio decidendiand thefalloofa decision is the primary issue in this petition forcertiorariunderRule 65 filed by petitioner Federico C. Suntay who opposesrespondent Isabel's petition for appointment as administratrix of

her grandmother's estate by virtue of her right of representation.

The suit stemmed from the following:

On July 9, 1958, Emilio Aguinaldo Suntay (son of petitionerFederico Suntay) and Isabel Cojuangco-Suntay were married inthe Portuguese Colony of Macao. Out of this marriage, threechildren were born namely: Margarita Guadalupe, Isabel

Aguinaldo and Emilio Aguinaldo all surnamed Cojuangco Suntay.After 4 years, the marriage soured so that in 1962, IsabelCojuangco-Suntay filed a criminal case 1 against her husbandEmilio Aguinaldo Suntay. In retaliation, Emilio Aguinaldo filedbefore the then Court of First Instance (CFI) 2a complaint forlegal separation against his wife, charging her, among others,with infidelity and praying for the custody and care of theirchildren who were living with their mother. 3 The suit was

docketed as civil case number Q-7180.

On October 3, 1967, the trial court rendered a decision thedispositive portion of which reads:

WHEREFORE, the marriage celebratedbetween Emilio Aguinaldo Suntay andIsabel Cojuangco-Suntay on July 9, 1958 ishereby declared null and void and of noeffect as between the parties. It beingadmitted by the parties and shown by therecord that the question of the case andcustody of the three children have beenthe subject of another case between thesame parties in another branch of thisCourt in Special Proceeding No. 6428, thesame cannot be litigated in this case.

With regard to counterclaim, in view of themanifestation of counsel that the thirdparty defendants are willing to payP50,000.00 for damages and thatdefendant is willing to accept the offerinstead of her original demand forP130,000.00, the defendant is awardedsaid sum of P50,000.00 as her

counterclaim and to pay attorney's fees inthe amount of P5.000.00.

SO ORDERED. 4(Emphasis supplied).

As basis thereof, the CFI said:

From February 1965 thru December 1965plaintiff was confined in the VeteransMemorial Hospital. Although at the time ofthe trial of parricide case (September 8,1967) the patient was already out of thehospital he continued to be underobservation and treatment.

It is the opinion of Dr. Aramil that thesymptoms of the plaintiffs mentalaberration classified as schizophernia (sic)had made themselves manifest even asearly as 1955; that the disease worsenedwith time, until 1965 when he was actuallyplaced under expert neuro-psychiatrist(sic) treatment; that even if the subject

has shown marked progress, the remainsbereft of adequate understanding of rightand wrong.

There is no controversy that the marriagebetween the parties was effected on July9, 1958, years after plaintiffs mental illnesshad set in. This fact would justify adeclaration of nullity of the marriage under

Article 85 of the Civil Code which provides:

Art. 95. (sic) A marriage may be annulledfor nay of the following causes after (sic)existing at the time of the marriage:

xxx xxx xxx

(3) That either partywas of unsoundmind, unless suchparty, after comingto reason, freelycohabited with theother as husband orwife.

There is a dearth of proof at the time ofthe marriage defendant knew about themental condition of plaintiff; and there isproof that plaintiff continues to be withoutsound reason. The charges in this very

complaint add emphasis to the findings ofthe neuro-psychiatrist handling the patient,that plaintiff really lives more in fancy thanin reality, a strong indication ofschizophernia (sic). 5(Emphasis supplied).

On June 1, 1979, Emilio Aguinaldo Suntaypredeceased his mother, the decedent Cristina

Aguinaldo-Suntay. The latter is respondent Isabel'spaternal grandmother. The decedent died on June 4,1990 without leaving a will. 6



Five years later or on October 26, 1995, respondent IsabelAguinaldo Cojuangco Suntay filed before the Regional Trial Court(RTC) 7 a petition for issuance in her favor of Letters of

Administration of the Intestate Estate of her late grandmotherCristina Aguinaldo-Suntay which case was docketed as SpecialProceeding Case No. 117-M-95. In her petition, she allegedamong others, that she is one of the legitimate grandchildren ofthe decedent and prayed that she be appointed as administratrix

of the estate.

8

On December 15, 1995, petitioner filed an Opposition claimingthat he is the surviving spouse of the decedent, that he hasbeen managing the conjugal properties even while the decedenthas been alive and is better situated to protect the integrity ofthe estate than the petitioner, that petitioner and her familyhave been alienated from the decedent and the Oppositor formore than thirty (30) years and thus, prayed that Letters of

Administration be issued instead to him. 9

On September 22, 1997 or almost two years after filing anopposition, petitioner moved to dismiss the special proceedingcase alleging in the main that respondent Isabel should not beappointed as administratrix of the decedent's estate. In supportthereof, petitioner argues that under Article 992 of the Civil Code

an illegitimate child has no right to succeed by right ofrepresentation the legitimate relatives of her father or mother.Emilio Aguinaldo Suntay, respondent Isabel's father predeceasedhis mother, the late Cristina Aguinaldo Suntay and thus, openedsuccession by representation. Petitioner contends that as aconsequence of the declaration by the then CFI of Rizal that themarriage of respondent Isabel's parents is "null and void," thelatter is an illegitimate child, and has no right nor interest in theestate of her paternal grandmother the decedent. 10 OnOctober 16, 1997, the trial court issued the assailed orderdenying petitioner's Motion to Dismiss. 11When his motion forreconsideration was denied by the trial court in an order datedJanuary 9, 1998, 12 petitioner, as mentioned above filed thispetition.

Petitioner imputes grave abuse of discretion to respondent courtin denying his motion to dismiss as well as his motion forreconsideration on the grounds that: (a) a motion to dismiss isappropriate in a special proceeding for the settlement of estateof a deceased person; (b) the motion to dismiss was timely filed;(c) the dispositive portion of the decision declaring the marriageof respondent Isabel's parents "null and void" must be upheld;and (d) said decision had long become final and had, in fact,been executed.

On the other hand, respondent Isabel asserts that petitioner'smotion to dismiss was alte having been filed after the oppositionwas already filed in court, the counterpart of an answer in anordinary civil action and that petitioner in his opposition likewisefailed to specifically deny respondent Isabel's allegation that sheis a legitimate child of Emilio Aguinaldo Suntay, the decedent'sson. She further contends that petitioner proceeds from amiscomprehension of the judgment in Civil Case No. Q-7180 and

the erroneous premise that there is a conflict between the bodyof the decision and its dispositive portion because in an actionfor annulment of a marriage, the court either sustains thevalidity of the marriage or nullifies it. It does not, after hearingdeclare a marriage "voidable" otherwise, the court will fail todecide and lastly, that the status of marriages under Article 85 ofthe Civil Code before they are annulled is "voidable."

The petition must fail.

Certiorarias a special civil action can be availed of only if thereis concurrence of the essential requisites, to wit: (a) the tribunal,board or officer exercising judicial functions has acted without orin excess of jurisdiction or with grave abuse of discretionamounting to lack or in excess of jurisdiction, and (b) there is noappeal, nor any plain, speedy and adequate remedy in theordinary course of law for the purpose of annulling or modifyingthe

proceeding.

13

There must be a capricious, arbitrary andwhimsical exercise of power for it to prosper. 14

A reading of the assailed order, however, shows that therespondent court did not abuse its discretion in denyingpetitioner's motion to dismiss, pertinent portions of which arequoted thereunder, to wit:

The arguments of both parties judiciouslyand objectively assessed and the pertinentlaws applied, the Court finds that a motionto dismiss at this juncture is inappropriateconsidering the peculiar nature of thisspecial proceeding as distinguished froman ordinary civil action. At the outset, thisproceeding was not adversarial in nature

and the petitioner was not called upon toassert a cause of action against aparticular defendant. Furthermore, theState has a vital interest in themaintenance of the proceedings, not onlybecause of the taxes due it, but alsobecause if no heirs qualify, the State shallacquire the estate by escheat.

xxx xxx xxx

The court rules, for the purpose ofestablishing the personality of thepetitioner to file and maintain this specialproceedings, that in the case bench, thebody of the decision determines the nature

of the action which is for annulment, notdeclaration of nullity.

The oppositor's contention that thefallo ofthe questioned decision (Annex "A" Motion) prevails over the body thereof isnot without any qualification. It holds trueonly when the dispositive portion of a finaldecision is definite, clear and unequivocaland can be wholly given effect withoutneed of interpretation or construction.

Where there is ambiguity or uncertainty,the opinion or body of the decision may bereferred to for purposes of construing the

judgment (78 SCRA 541 citingMorelos v.

Go Chin Ling; and Heirs of Juan Presto v.Galang). The reason is that the dispositiveportion must find support from thedecision's ratio decidendi.

Per decision of the Court of First InstanceBranch IX of Quezon City, marked as

Annex "A" of oppositor's motion, themarriage of Emilio Aguinaldo Suntay andIsabel Cojuangco-Suntay was annulled onthe basis of Art. 85 par. 3 of the Civil Code



which refers to marriages which areconsidered voidable. Petitioner beingconceived and born of a voidable marriagebefore the decree of annulment, she isconsidered legitimate (Art. 89, par. 2, CivilCode of the Phils.). 15

The trial court correctly ruled that "a motion to dismiss at this

juncture is inappropriate." The 1997 Rules of Civil Proceduregoverns the procedure to be observed in actions, civil or criminaland special proceedings. 16 The Rules do not only apply toelection cases, land registration, cadastral, naturalization andinsolvency proceedings, and other cases not therein providedfor.

Special proceedings being one of the actions under the coverageof the Rules on Civil Procedure, a motion to dismiss filedthereunder would fall under Section 1, Rule 16 thereof. Said ruleprovides that the motion to dismiss may be filed "within the timefor but before filing the answer to the complaint." Clearly, themotion should have been filed on or before the filing ofpetitioner's opposition 17which is the counterpart of an answerin ordinary civil actions.

Not only was petitioner's motion to dismiss filed out of time, itwas filed almost two years after respondent Isabel was alreadythrough with the presentation of her witnesses and evidence andpetitioner had presented two witnesses. The filing of the motionto dismiss is not only improper but also dilatory.

The respondent court, far from deviating or straying off coursefrom established jurisprudence on this matter, as petitionerasserts, had in fact faithfully observed the law and legalprecedents in this case. In fact, the alleged conflict between thebody of the decision and the dispositive portion thereof whichcreated the ambiguity or uncertainty in the decision of the CFI ofRizal is reconcilable. The legal basis for setting aside themarriage of respondent Isabel's parents is clear under paragraph3, Article 85 of the New Civil Code, the law in force prior to theenactment of the Family Code.

Petitioner, however, strongly insists that the dispositive portionof the CFI decision has categorically declared that the marriageof respondent Isabel's parents is "null and void" and that thelegal effect of such declaration is that the marriage from itsinception is void and the children born out of said marriage areillegitimate. Such argument cannot be sustained. Articles 80, 81,82 and 83 18of the New Civil Code classify what marriages arevoid while Article 85 enumerates the causes for which amarriage may be annulled. 19

The fundamental distinction between void and voidablemarriages is that a void marriage is deemed never to have takenplace at all. The effects of void marriages, with respect toproperty relations of the spouses are provided for under Article144 of the Civil Code. Children born of such marriages who are

called natural children by legal fiction have the same status,rights and obligations as acknowledged natural children under

Article 89 20irrespective of whether or not the parties to the voidmarriage are in good faith or in bad faith.

On the other hand, a voidable marriage, is considered valid andproduces all its civil effects, until it is set aside by final judgmentof a competent court in an action for annulment. Juridically, theannulment of a marriage dissolves the special contract as if ithad never been entered into but the law makes expressprovisions to prevent the effects of the marriage from being

totally wiped out. The status of children born in voidablemarriages is governed by the second paragraph of Article 89which provides that:

Children conceived of voidable marriagesbefore the decree of annulment shall beconsidered legitimate; and childrenconceived thereafter shall have the same

status, rights and obligations asacknowledged natural children, and arealso called natural children by legal fiction.21(Emphasis supplied).

Stated otherwise, the annulment of "the marriage bythe court abolishes the legal character of the societyformed by the putative spouses, but it cannot destroythe juridical consequences which the marital unionproduced during its continuance." 22

Indeed, the terms "annul" and "null and void" have differentlegal connotations and implications, Annul means to reduce tonothing; annihilate; obliterate; to make void or of no effect; tonullify; to abolish; to do away with 23whereas null and void issomething that does not exist from the beginning. A marriagethat is annulledpresupposes that it subsists but later ceases tohave legal effect when it is terminated through a court action.But in nullifying a marriage, the court simply declares a status orcondition which already exists from the very beginning.

There is likewise no merit in petitioner's argument that it is thedispositive portion of the decision which must control as towhether or not the marriage of respondent Isabel's parents wasvoid or voidable. Such argument springs from amiscomprehension of the judgment in Civil Case No. Q-7180 andthe erroneous premise that there is a conflict between the bodyof the decision and its dispositive portion.

Parenthetically, it is an elementary principle of procedure thatthe resolution of the court in a given issue as embodied in the

dispositive part of a decision or order is the controlling factor asto settlement of rights of the parties and the questionspresented, notwithstanding statement in the body of thedecision or order which may be somewhat confusing, 24 thesame is not without a qualification. The foregoing rule holds trueonly when the dispositive part of a final decision or order isdefinite, clear and unequivocal and can be wholly given effectwithout need of interpretation or construction-which usually is"the case where the order or decision in question is that of acourt not of record which is not constitutionally required to statethe facts and the law on which the judgment is based." 25

Assuming that a doubt or uncertainty exists between thedispositive portion and the body of the decision, effort must bemade to harmonize the whole body of the decision in order togive effect to the intention, purpose and judgment of the court.In Republic v. de los Angeles26the Court said:

Additionally, Article 10 of the Civil Codestates that "[i]n case of doubt in theinterpretation or application of laws, it ispresumed that the lawmaking bodyintended right and justice to prevail." Thismandate of law, obviously cannot be anyless binding upon the courts in relation toits judgments.



. . .The judgment must be read in itsentirety, and must be construed as a wholeso as to bring all of its parts into harmonyas far as this can be done by fair andreasonable interpretation and so as to giveeffect to every word and part if possible,and to effectuate the intention andpurpose of the Court, consistent with the

provisions of the organic law. (49 C.J.S.,pp. 863-864) [Emphasis supplied].

Thus, a reading of the pertinent portions of the decision of theCFI of Rizal quoted earlier shows that the marriage is voidable:

It is the opinion of Dr. Aramil that thesymptoms of the plaintiffs mentalaberration classified as schizophernia (sic)had made themselves manifest even asearly as 1955; that the disease worsenedwith time, until 1965 when he was actuallyplaced under expert neuro-psychiatrict(sic) treatment; that even if the subjecthas shown marked progress, he remainsbereft of adequate understanding of right

and wrong.

There is no controversy that the marriagebetween the parties was effected on July9, 1958, years after plaintiff's mentalillness had set in. This fact would justify adeclaration of nullity of the marriage under

Article 85 of the Civil Code which provides:

Art. 95 (sic) A marriage may be annulledfor any of the following causes, existing atthe time of the marriage:

xxx xxx xxx

(3) That either party was of unsound mind,unless such party, after coming to reason,freely cohabited with the other as husbandand wife;

xxx xxx xxx

There is a dearth of proof at the time ofthe marriage defendant knew about themental condition of plaintiff; and there isproof that plaintiff continues to be withoutsound reason. The charges in this veryhandling the patient, that plaintiff reallylives more in fancy than in reality, a strongindication of schizophernia (sic). 27

Inevitably, the decision of the CFI of Rizal declarednull and void the marriage of respondent Isabel'sparents based on paragraph 3, Article 85 of the NewCivil Code. The legal consequences as to the rights ofthe children are therefore governed by the first clauseof the second paragraph of Article 89. A contraryinterpretation would be anathema to the rule justabove-mentioned. Based on said provision thechildren of Emilio Aguinaldo Suntay and IsabelCojuangco-Suntay who were conceived and born priorto the decree of the trial court setting aside their

marriage on October 3, 1967 are consideredlegitimate. For purposes of seeking appointment asestate administratrix, the legitimate grandchildren,including respondent Isabel, may invoke theirsuccessional right of representation the estate of theirgrandmother Cristina Aguinaldo Suntay after theirfather, Emilio Aguinaldo Suntay, had predeceasedtheir grandmother. This is, however, without

prejudice to a determination by the courts of whetherthe Letters of Administration may be granted to her.Neither do the Court adjudged herein thesuccessional rights of the personalities involved overthe decedent's estate.

It would not therefore be amiss to reiterate at this point whatthe Court, speaking through Chief Justice Ruiz Castro,emphasized to "all magistrates of all levels of the judicialhierarchy that extreme degree of care should be exercised in theformulation of the dispositive portion of a decision, because it isthis portion that is to be executed once the decision becomesfinal. The adjudication of the rights and obligations of thoeparties, and the dispositions made as well as the directions andinstructions given by the court in the premises in conformity withthe body of the decision, must all be spelled out clearly,distinctly and unequivocally leaving absolutely no room for

dispute, debate or interpretation. 28

WHEREFORE, finding no grave abuse of discretion, the instantpetition is DISIMISSED.

SO ORDERED.

Bellosillo, Puno and Mendoza, JJ., concur.




Manila

SECOND DIVISION

G.R. No. 133000 October 2, 2001

PATRICIA NATCHER, petitioner,vs.HON. COURT OF APPEALS AND THE HEIR OF GRACIANODEL ROSARIOLETICIA DEL ROSARIO, EMILIA DELRESORIOMANANGAN, ROSALINDA FUENTES LLANA,RODOLFO FUENTES, ALBERTO FUENTES, EVELYN DELROSARIO, and EDUARDO DEL ROSARIO, respondent..

BUENA, J.:

May a Regional Trial Court, acting as a court of generaljurisdiction in an action for reconveyance annulment of title withdamages, adjudicate matters relating to the settlement of theestate of a deceased person particularly on questions as toadvancement of property made by the decedent to any of theheirs?

Sought to be reversed in this petition for review on certiorariunder Rule 45 is the decision1 of public respondent Court of

Appeals, the decretal portion of which declares:

"Wherefore in view of the foregoing considerations,judgment appealed from is reversed and set asideand another one entered annulling the Deed of Saleexecuted by Graciano Del Rosario in favor ofdefendant-appellee Patricia Natcher, and ordering theRegister of Deeds to Cancel TCT No. 186059 andreinstate TCT No. 107443 without prejudice to thefiling of a special proceeding for the settlement of theestate of Graciano Del Rosario in a proper court. No

costs.

"So ordered."

Spouses Graciano del Rosario and Graciana Esguerra wereregistered owners of a parcel of land with an area of 9,322square meters located in Manila and covered by TransferCertificate of Title No. 11889. Upon the death of Graciana in1951, Graciano, together with his six children, namely: Bayani,Ricardo, Rafael, Leticia, Emiliana and Nieves, entered into anextrajudicial settlement of Graciana's estate on 09 February 1954adjudicating and dividing among themselves the real propertysubject of TCT No. 11889. Under the agreement, Gracianoreceived 8/14 share while each of the six children received 1/14share of the said property. Accordingly, TCT No. 11889 wascancelled, and in lieu thereof, TCT No. 35980 was issued in the

name of Graciano and the Six children.1wphi1.nt

Further, on 09 February 1954, said heirs executed and forged an"Agreement of Consolidation-Subdivision of Real Property withWaiver of Rights" where they subdivided among themselves theparcel of land covered by TCT No. 35980 into several lots.Graciano then donated to his children, share and share alike, aportion of his interest in the land amounting to 4,849.38 squaremeters leaving only 447.60 square meters registered underGraciano's name, as covered by TCT No. 35988. Subsequently,the land subject of TCT No. 35988 was further subdivided intotwo separate lots where the first lot with a land area of 80.90

square meter was registered under TCT No. 107442 and thesecond lot with a land area of 396.70 square meters wasregistered under TCT No. 107443. Eventually, Graciano sold thefirst lot2 to a third person but retained ownership over thesecond lot.3

On 20 March 1980, Graciano married herein petitioner PatriciaNatcher. During their marriage, Graciano sold the land covered

by TCT No. 107443 to his wife Patricia as a result of which TCTNo. 1860594 was issued in the latter's name. On 07 October1985,Graciano died leaving his second wife Patricia and his sixchildren by his first marriage, as heirs.

In a complaint5filed in Civil Case No. 71075 before the RegionalTrial Court of Manila, Branch 55, herein private respondentsalleged that upon Graciano's death, petitioner Natcher, throughthe employment of fraud, misrepresentation and forgery,acquired TCT No. 107443, by making it appear that Gracianoexecuted a Deed of Sale dated 25 June 19876 in favor hereinpetitioner resulting in the cancellation of TCT No. 107443 andthe issuance of TCT no. 186059 in the name of Patricia Natcher.Similarly, herein private respondents alleged in said complaintthat as a consequence of such fraudulent sale, their legitimeshave been impaired.

In her answer7 dated 19 August 1994, herein petitioner Natcheraverred that she was legally married to Graciano in 20 March1980 and thus, under the law, she was likewise considered acompulsory heir of the latter. Petitioner further alleged thatduring Graciano's lifetime, Graciano already distributed, inadvance, properties to his children, hence, herein privaterespondents may not anymore claim against Graciano's estate oragainst herein petitioner's property.

After trial, the Regional Trial Court of Manila, Branch 55,rendered a decision dated 26 January 1996 holding:8

"1) The deed of sale executed by the late Gracianodel Rosario in favor of Patricia Natcher is prohibited

by law and thus a complete nullity. There being noevidence that a separation of property was agreedupon in the marriage settlements or that there hasbeen decreed a judicial separation of propertybetween them, the spouses are prohibited fromentering (into) a contract of sale;

"2) The deed as sale cannot be likewise regarded as avalid donation as it was equally prohibited by lawunder Article 133 of the New Civil Code;

"3) Although the deed of sale cannot be regarded assuch or as a donation, it may however be regarded asan extension of advance inheritance of PatriciaNatcher being a compulsory heir of the deceased."

On appeal, the Court of Appeals reversed and set aside thelower court's decision ratiocinating, inter alia:

"It is the probate court that has exclusive jurisdictionto make a just and legal distribution of the estate.The court a quo, trying an ordinary action forreconveyance / annulment of title, went beyond its

jurisdiction when it performed the acts proper only ina special proceeding for the settlement of estate of adeceased person. XXX



"X X X Thus the court a quo erred in regarding thesubject property as advance inheritance. What thecourt should have done was merely to rule on thevalidity of (the) sale and leave the issue onadvancement to be resolved in a separate proceedinginstituted for that purpose. XXX"

Aggrieved, herein petitioner seeks refuge under our protective

mantle through the expediency of Rule 45 of the Rules of Courtand assails the appellate court's decision "for being contrary tolaw and the facts of the case."

We concur with the Court of Appeals and find no merit in theinstant petition.

Section 3, Rule 1 of the 1997 Rules of Civil Procedure definescivil action and special proceedings, in this wise:

"XXX a) A civil action is one by which a party suesanother for the enforcement or protection of a right,or the prevention or redress of a wrong.

"A civil action may either be ordinary or special. Bothare government by the rules for ordinary civil actions,subject to specific rules prescribed for a special civilaction.

"XXX

"c) A special proceeding is a remedy by which a partyseeks to establish a status, a right or a particularfact."

As could be gleaned from the foregoing, there lies a markeddistinction between an action and a special proceeding. Anaction is a formal demand of one's right in a court of justice inthe manner prescribed by the court or by the law. It is themethod of applying legal remedies according to definite

established rules. The term "special proceeding" may be definedas an application or proceeding to establish the status or right ofa party, or a particular fact. Usually, in special proceedings, noformal pleadings are required unless the statute expressly soprovides. In special proceedings, the remedy is grantedgenerally upon an application or motion."9

Citing American Jurisprudence, a noted authority in RemedialLaw expounds further:

"It may accordingly be stated generally that actionsinclude those proceedings which are instituted andprosecuted according to the ordinary rules andprovisions relating to actions at law or suits in equity,and that special proceedings include thoseproceedings which are not ordinary in this sense, butis instituted and prosecuted according to some specialmode as in the case of proceedings commencedwithout summons and prosecuted without regularpleadings, which are characteristics of ordinaryactions. XXX A special proceeding must therefore bein the nature of a distinct and independentproceeding for particular relief, such as may beinstituted independently of a pending action, bypetition or motion upon notice."10

Applying these principles, an action for reconveyance andannulment of title with damages is a civil action, whereasmatters relating to settlement of the estate of a deceased personsuch as advancement of property made by the decedent,partake of the nature of a special proceeding, whichconcomitantly requires the application of specific rules asprovided for in the Rules of Court.

Clearly, matters which involve settlement and distribution of theestate of the decedent fall within the exclusive province of theprobate court in the exercise of its limited jurisdiction.

Thus, under Section 2, Rule 90 of the Rules of Court, questionsas to advancement made or alleged to have been made by thedeceased to any heir may be heard and determined by thecourt having jurisdiction of the estate proceedings;andthe final order of the court thereon shall be binding on theperson raising the questions and on the heir.

While it may be true that the Rules used the word "may", it isnevertheless clear that the same provision11 contemplates aprobate court when it speaks of the "court having jurisdiction ofthe estate proceedings".

Corollarily, the Regional Trial Court in the instant case, acting inits general jurisdiction, is devoid of authority to render anadjudication and resolve the issue of advancement of the realproperty in favor of herein petitioner Natcher, inasmuch as CivilCase No. 471075 for reconveyance and annulment of title withdamages is not, to our mind, the proper vehicle to thresh outsaid question. Moreover, under the present circumstances, theRTC of Manila, Branch 55 was not properly constituted as aprobate court so as to validly pass upon the question ofadvancement made by the decedent Graciano Del Rosario to hiswife, herein petitioner Natcher.

At this point, the appellate court's disquisition is elucidating:

"Before a court can make a partition and distribution

of the estate of a deceased, it must first settle theestate in a special proceeding instituted for thepurpose. In the case at hand, the court a quodetermined the respective legitimes of the plaintiffs-appellants and assigned the subject property ownedby the estate of the deceased to defendant-appelleewithout observing the proper proceedings provided(for) by the Rules of Court. From the aforeciteddiscussions, it is clear that trial courts trying anordinary action cannot resolve to perform actspertaining to a special proceeding because it issubject to specific prescribed rules. Thus, the court aquo erred in regarding the subject property as anadvance inheritance."12

In resolving the case at bench, this Court is not unaware of our

pronouncement in Coca vs. Borromeo13

and Mendoza vs.Teh14 that whether a particular matter should be resolved bythe Regional Trial Cou

rule 1 civpro

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