Philippine decisions

Media

Part of The Lawyers Journal

Title: Philippine decisions
Language: English
Year: 1952
Subject: Judgments (Law); Courts.; Philippines -- Law and legislation.
Rights
Fulltext: ·Pia1Upp1De Deill•iou Andra Pllarp, plainliff-appell.e, "'· Learulro Sorilla. de/endanl-appellan1, G. R. L-4302, September 17, 1952, Labrador,/. 1. POSSESSORY ACTION: FORCIBLE ENTRY AND DETAINER: RECOVERY OF POSSESSION OF REAL PROPERTY- Under the Civil Code, either in the old. which ·wa& in fore~ in this country before the American Occupation, or in the new,; we have a poeseuory action; the aim and pur· pose of which is the recovery of thr<:h)'lical -Dion of real propeTlv, irrespective of the question u to ,,ho hu the tit!. thereto. 2. PUBLIC LANDS: COURTS: JURISDICTION OF COURTS OVER POSSESSORY ACTIONS- The vati'~ of the Lands Departml!nt with authority to admln;,.ter, disp"'e, apd alienate public lands mu~~ not be uncieirood u depriving the other branches of the Government of the exercise of their re&pective functions or powers thereon. such a'S the au· thority to •ll!P di_sorders and quell brea~ of. the peace bv the P.Olic~. and the auihoritv on the part of the courts to tab• jurisdiction over Po,.. se~sory action's arisinP therefrom nr. involving, directly or indirect~y, alie11· ation and dispoeition. 3. IO.: ID.; PREJUDICIAL INTER· FERENCE: DISPOSITION OR ALIENATION OF PUBLIC LANDS-Tne determination of the respective rights of rival claimants to Public lands is different from the determination • f who bu the actual ph)'lical p"'5eltion or occupation -with a view tQ . protecting the 1ame and preventirag disorder and breaches of the peace. A judgDIORt of ·the court ordering re:;titution of the possession of a p•r· eel of land to the actual occupan;, • who bu been deprived thereof by another thrwgh the U'se of force or : ~ .~J:r~I i~:=ti:;::.~ ::h the disposition· or alienation of public lands. 4. FORCIBLE ENTRY AND UNLAWFUL DETAINER: NATURE OF ACTION OF FORCIBLE ENTRY-The :!r° ex:'Jti.:1ere:!7v ~~'brm:z in peaceful and quiet pourssion may recover the p"""'8ion of which he bu been deprived by a stronger hand, by violence pr terror· its ultimate oLject being to prevent breach of the peace and criminal disorder. The b!I.· !is of the remedy is mere poueaioa. as a· fact, of ·physical .,,...ion, n~ a legal paaeoiion. ~ title or right to pos~ is never in iaue in an action of fOrcible entry; as a math>r of fact, evidence hereOI is expressly banned, ezcept to prove the natq~ of the &""'"'9ion. 5. PUBLIC LANDS: COURTS: FORCIBLE ENTRY AND UNLAWFUL DET A.INER: JURISDICTION OF COURTS OVER FORCIBLE ENTRY · AND UNI.(\ WFUL DETAINER NOT AN INTERFERENCE WITH ALIEN'ATION OF PUBLIC LANDS- Th• r::l °&e:;i:: .. ~~ ~a!: :~,j dispose of oublic lands does n.ot divest the courts of their duty or power to take cognizance of actions instituted by settlers or occupants or applicanl:i a,ainst othen to protect their respective pouesaiom and occupations, more ~pecially the actions of trespass. forcibl~ entrv and unlawful detainer. and the exercise of such jurisdiction ii no interfuence wit~ the alienation, disposition, and control of public lands. &. m.: ID: m.: RIGHTS OF APPLICANT FOR llUBLIC LANDS PROTECTED BY POSSESSORY ACTION OF FORCIBLE ENTRY- Even pencling the investigation of, and resolution on, an application for a 'public lands f!y a bona fide occupan~ by the priority of his applica.rion at!d record of his entry, h.~ ae:quires e. right to the p-.ion .. of th!> public land he applied for against any other public 1-.nd applicant, which ·right ~ay be protected· by • pouess97 aCtion of forcibl~ entry or by any other suitable remedy that our rul;?S .provide. 7, JUDGMENT: FORCIBLE ENTRY AND UNLAWFUL DETAINER: USURPATION OF REAL PROPERTY: EFFECt OF JUDGMENT IN CRIMINAL CASE UPON CIVIL ACTION- The dismissal of criminal action for usur~ patioft of real property i1 not a har ~o the filing of an action of lorci'bl• entry. for not only are the parties in the criminal action and in the action for lorci'ble en1zy not identical; but the cau!el of action involved. are also ·different. Vicente F ontanosa for appellanl. Martin A. Galit, for appellee. DECISION LABRADOR. J.o On j;.Jy 30, 1941, plaintill-appelle• filed a miscellaneous sales application for THE LA WYERS JOURNAL a parcel of land known as Cadutr u Lot· No. 2777 situated at Mlang, Kidapawan, Cotabato. and paid a depo~l of PS.00 therefor (Exhibit F). The ~uhi.a:i,:1~:.dso~=~z~Jit (Exhibit E), and informed that it fiaJ been referred to the district land office of Cotabato, Cotabato. Upon receipt of this acknowled,ement he started the construction of a small house on the lot. but the same was not finished because of the outbreak. of the war. In 1946 lie had another house constructed on the lot, whii;lt he used both as a clinic (he io a dentiot) and as a l'f!sidence. He introduced other improvem.ents on the land· and these, together with the hou,., he declared for tax purpooes (Exhibit 8), paying taxes thereon in 1947 and 1948 (Exhibit• C and D). He pl"C!'d one Cacayorin in charge of the house, but Cacayorin left it on December 13, 1948. Thereupon defendant-appellant herein demolioh~d the house and built thereon one of his own. On .December 17, 1948, plantiff went to defeodant and aslced the latter why he had con:tructed a building on the land, and the latter gave the excuse that there was no sign of intere;t on the sip of inte"rdat .,r, the part of the one who had applied for it. On March 9, 1949, plaintill-appdlee instituted this action of fora'ble entry in the Justice of the peace court, praying that defendant be cidered to vacate the lot usurped and remove the CQnstruction h• had made. thereon, With monthly damages at PIO, Thereupon defendant tiled a motion to dismiss the action on two ground,,, namely, (I) that the conrt has no jurisdiction over ~e subject ma•· ter, a1. the same falls under ~e exclusive jurisd~tion of the Bureau of Lands. and (2) that the action io barred by u prior judgment, because a previous criminal action for WU;pation of real pro;>·· erty filed by plaintiff against him had been diimissed. The Justice of the peaco court denied the motion on the ground that the issue involved is as to who was in the . actul.J. pot:.Jession of the lot in ques~ion on Decembei- 14, 1948. which issue can be resolved only after presen~ talion of evidence (Record on Appeal, pp. 26-27). Thereupon defendant fil•cl an answer den~ng plaintiff"s pouessicn Rnce 1946, and . allq:ing a1 special defenses (I) that the lot is an unawardod public land. which is already under in. vcstigation by ihe Bureau of Lands, and (2) that defendant was already acqui<ted of a !"iminal charge fded by plat•· till against. him for usurpation of real property. By way of counterclaim he December SI, 1952 demanded P2,800 from plaintiff (R•· cori:l on App•al, pp. 27-33). On June 4, 1949, the Justiee of the p•ace court declared iuelf without jurisdiction to try the we for the reason that the subject matter of the action is the subject of an adminJ.ltrative investigation (lbSd.. p. 39). Against this judgment plaintiff ap· pealed to the Court of First Instance. At first this court refused to take cognizance of the case, but upon the au· thority of the ca"se• of Mago vs. Biha•, 44 O.G. (12) 4934, de~ded by the Court of Appeals, it proceeded to try the case on 1he merits. After trial it found the facts already eet forth abcve, and senten~ the deftndant. to vacaie the land and indemnifv the plaintiff in the sum ol PIOO, with-: Against this jud~ ment this appeal bu ~ presented. the defendant-aopellant i:nakinp- the following assignments of elTOr in his brief: 1. The lowe1· Court erred In try!ni; the ea11e when the land Involved Ja ., public laftd and jurlsdlcton or which he long to the Land Dep,a.1·tment of the Phlllpplnea. z. The lowe1· Court · er1·ed In trying the case when prior to the commenc~ ment ot this action an admlnlatrat.h"e ea.ae waa (la) pending between the partJea: over the same land In the B\1re.1.!l ol: Landa nnd, as such. the lntteor· ha~ acquired first Jurisdiction ovc1· the aul'I ject-matter of the action. I. The lower Court erred In trylno,c lhe case when lhe cause o( this nct111•1 la barred by a 111·101• Judgmt'nt. 4. The lowe1· Court erred In li")"i••J· the case and rendering a ll<'clslon "' the merits when Its duty after It 11 .. "l determined that tht> Jusllce of the Penc.e Court has jurisdiction Is to reverse ~:i.c ord<'r or dismissal Or UUl lnfcrlo1• l•ourl. ned rf'mt1nd to It for rurlht>r 111'0<'t'<' 1. lnp. Under the facts and circum:atances of the case the question now before us ii. as follows: Qo courts have jurisdiction to entertain an action of forcible entry iostituted. by a bona fide applicant of public land, who is in occupation and peaceful pos'session thereof and Who has introduced imptovements. aoinst one who deprives hi!D of the posaesaien thereof before award and pendinR inveatigation of the application? Defendantappellant contends that as the administrative clj'aposition and control of publi: lands is vested exclµ,iyely in the Lands Department, cognizance of the forcible entry action or of any possessory action constitutes a ·~judicial interference" with the said adminiltrative functions. because there is an administrative case pending in the Bureau of Lands between the same parties over the 1ame land. The record contains a certificate of a lands in1pector · the effect that the inve!ltiga~ December 81, 1962 tlOii of the conflict boiween plaidtHf· appellee herein and the defendltlt· appellant hu been •111Pended because of the trial of. the criminal case for usurpa~ tion filed by plaihtiff against clefendantappellan~ (See Record on AppeaL l>P: 25-26.) We note from the cerO!icate, however, that while_. ~laintifl's application is regi_stered as MSA 9917, clefendar:t~appellant doa not appear to have made any fonqal applicalion at all. It must be made clear at the outset d1at this case does net involve a tituatio•• where the Bureau of Laads has already made an award of. or authGri:ted and eniry into, the public land. It is pOre)y • poueaory action bv a bona title applicant who has oeeupied the land ·he h•• applied for before. the outbreak of the war under the ostenoible authority of his application, which was given due cours!! for investigation, but as to which no ap. proval bu been 4i- ~uae investigation hu not yet been finished. An ideal aituation in the clispository of public lands would be on• wherein these alienable and disposable are vet unoccupied and are delivered to the an· plicants upon the appmval of their ap· plication, free from other OCCIIP&Dts or claitnants. -But the 'SitUatian in the COU'J~ "Y has invariably been the oppooite; l•nds are occupied without bein1 applie.l for, or before the apP[ications are an· proved. In fact, the approval of applications often takes place many yean after the oceupation began or the appli· cation was filed. JO that many ~ther applicants or daimants have entered die land in the meanrime, provoking "CODfl1ct·, anc:J overlappin1 of application._ For some reason or l>th-er 'the Lands De~ partment has been unable to C:OJ>e wi_th the ever increasing avalanche of app)j .. cation, or of conflicts and cont>ests i..twecn rival applicants and claimants. The question that fl before this Count i• · Are C9U1"ts without jurisdiction to take coanizance of ooueuory actions involvina these oublic lands ·before final awar.! •• made hv the Lands Department, and before title ~. given any of the conflic •. - ir:g claimants) It is one of utmost im· portance, as there are pablic lands evervwhere and there are thousands of settlett, upeciallv in newly ouen.ed regions. It also involve-, a mattv of poli_ey, as it requires the determination of the respeclive authorities and functions of two coordinate branches of the Government in connection with public land conflicts. Our problem is made simple by the fact that under the Civil Code, eithc in the old. Which was in force in this COUbtry b:efore the American occupatio.l.. or in the new, we mne a pos!a!SIDry atti°'1, the aim and purpo1e "Of~ ~ ir .THE LAWYERS IOUIUllR\L Philippine DHl•lons ~he -.y of the physical _.;.,. of real property, irrespective of the ques· tiori as ·to whe has the t~le th-. Under the Spanish Civil Code we had the accion in1....ii4r~ a oummary .pro· ceeding ·which contd be broqht within one year from dispoueooion (Roman Ca. tholic 8illlsnp of Cebu n. Mangaron, 6 Phil. 286, 291); ""d a'o ·early u Oc:to· her '·. 1901, ueon tl!e onactment of he Code of OYil Ptocedure (Act No. 190 of the Philippine Commiuion) we im· planted tihe cOlllmOD law action of ferci· hie entry (Section 80 of Act No. 190), the object of whith bu been atatecl bf !hi> Court to be "to prevent breacha of tht po- and criminal diso<da: which ctttlle from the wiihd<awal of the remad,, and the reasonable hope such withdrawal would create that some advantage must accrue to thtle penons who. belie11in• themtelve8 entitled 10 the _.... of proporty, resorl 10 J.... to pin .......... sion ather than to S!JIDO apptopnate action in the ...,,r. to user! 'Lheir daims." (5upia mu! Batioco v~ Quin1:""> and the enminmt of the Int Public· Land Ayala, S'9 'l"biL 312, 314. So before Act (Act NO. '\!26) the action· of forcMe enlJY. 11(U .already av8J1•bJe in the courts of the cO.ntry. So the qu~dion to be resolve.I 18, Did the Leiistature intend, wlien it veste<I the power and authoritv to ali ... ale and disnciae of · the public lands in the Land• b0paltmellt, to .,.. elude the ct>urts fiom . e11tertairulig tbe p01sa"°'1 action of lorclble entry between rival claimanll or oceup0uts of aft¥ laud before aw•rd thereof· to any of the pa!· ties 1 Did Cbngretl intend that the lands applied for, or All pub!~ Ian~ for.1f.iat mattor, be rernoncl froDl the 1uriaclictio" ol the jodicial Branch· of the Goven! · ruent. so lh•t u.y troubles arising titer.~· from, or •riy branches of the peace or disorders causea bY rival claimants. could be inqliirod into only by the Lands Department to the exclusion of th~ =)to u'!11:vid::.er fhe t~a:(;: par~en1 does not have the means t!'I nolice public lands; neither cloea it have the me&ns to prevent c:lisorders arain~ therefrom, or contain breaches of the peace am~~ settlers: or to pass promptly upon conflicts o( possel',lion. :in~. its power is c1ear1y limited to iluposit~l'1' dRl atienalion, and while it may decide ~nllicu ·of pesaeu.ion in order to make P..,per award. ti.., 'lettlement of conflicts of pOtseHiOn which is recoanized in tbe court. heiein ha!I anoth~ ultimate pu·: paac:, .i.e., the mor.ecti<>J.1 .of Mtual DCM· senor's and of.CC'!pa.Dh with a view to th.I!' .,..,.ention of breaches. of the peaee. The - to dispose and alienate could not have .been intentled to include tho - "' prnmt .... oettle .m...Ien "' breuhe"s of the ,., .... am- ri¥al settlers er Phlllpplne QMl•ion. or claimants prior to the fia,al award. ~.,:..!h~ t'~men~=~ tiaue to ~se power and jurisdictiot1 within the limits of their --tive l!!nc-· tioas. The ve11ing of the Lando Department w~h authority to adminilter, cli1pooe. aad alienate public.lands, therefore. must not he un~stood u depriving the other branches of the Government of the eurcioe of their relP'!Otive lune· tiom or powers thereon, sucJi u the au· thoritY to !lop disorden and quell bieaches of the peace by the pol[c:e, and 11-.e . authoritj OD the part of the courtl to take jurisdiction oyer poeseuory ac-. tions ariiing therefrom not involving, di· rectly or indirectly, alienation and dY.. l"Jlition. Our auention has been called to a principle ~unciated in American courts to the effeet that ~rts have no jurUdic·· t100 to cletq~e the tjghts of claimants to public lands,. and that until the cliopraition of the land hao ~ froin the -trol of the Federal Government, the court• will not interfere with the amni;;·~~ ~.Wtt;ro94.)'i~:r..:m:~ quarrel with th'8 principle. The ddermination of the reapective righto of rival c:lairrrant1 \lo 1public laod1 lo different from the deteripin~tion of who has th• actual phytical passeuion or occupation with a view_ to protecting the same .and Pl eventing di!order and breaches of the peace. A judgment of the court ordering" restitution of the pdtlftaion of a parcel of land to the .actual occupant, who ha1 . been dep~ved thereof by ·~ other through the use of force or in any ether illegal manner, can never be '"pre.il!dicial interfereoce" with the dispaoition OJ a~enation of public Iliads. On the other hand, ii courts were deprived of jurisdiction of caset invplVin1 conflicts of p-lllion. the 'threat of judicial action against breaches of the peaee commih'!d on public lands would he ~minated, ar.d a otate of lawl .... .,. would probably he produced between applicants, occupants or squattets, where force or mi1ht1 not tight or justice, would rule. It mlM he boine in mind that the action that would he ·uoed to &0lve COD· flicts of !:ioueui0n betwceo rival1 or c:Dnflicting applicanti or daimanl's would he no· oth~ than that of forcible enlry. This acqon, both in England and the. United States and in our jurisdiction. fa a · ou-arv and expeditious remedy whereby one in peacefgl and quiet pcnseuioa. may recover the JKlllR!llion o! whieh he bu been deprived by a· 1tron1or hand. by violence or tem>r; its .ultimar.: obiect. being to prevent breach of •he pe~ and eriminal disorder; (Supia and Batiac:o .._ Quintero and Ayala, 59 638 Phil. 312, 314.) The baais of the ruDedy is mere paueaaion as a facl nf phyaical noa1esaion, not a Ie .. I _.. Ron. (Mediran vs. Villanueva, 37 Phil. 752.) The title or rioht to pot· l&euioa is never in issue m· an action of forcible entry: aa a matter of fact, evidence thereof is. expraoly banned, except to prove the nature of the possessicu .. (Section 4, Rule. 72, Rules of Court.) WitJi thil n&ture of the action in mind, by no stretch of the imall'ination can thf! c:oncluaion be arrived at that the 1iSe of the remedy in the courts of justice would constitute an iqterference with the alienation, diopoaition, and c:Ontrol of public land.. To limit ouraelves to the case a~ bu, can it be pretended at all that its remit would in any way interfere wi!h the manner of the· !llienation or diapo.ti· tion of the land contelled? On the <Oil·· ta·ary, it wauld f~litate adjudication, for t~e question of pri_orjty of possession having· been decided in a final manner by tile courts, said q1,estiion need no )~ger waste the time of the land officers 1nakin1 the adjudication or award. The original Public: Land Law (Ac:t 926) was drafted and pa:..ed by a eon ... million ~posed 11t21tly of Americanti, and ao the Uni!ed States has had iu vut public lands .and u the United St- hao had its vast public lands and has lia.d ~ same "Problems as we iao . .v have, involying their settlement and or.cupation, it i's reuoaable to auume that it wu their intention to introduce int-l the country these laws in relation to o..:t problems ti laod teltl<ment and diopoo1hon. The problem now brought before us ~as presented in an analop.u cue in the year 1894 before the Supreipe Court of Oklahoma in the ca•e o; Spreat v. Durland, 2 Oki. 24, 35 Pac. 682, aod said court made practically \he same solution as we have, thus: x x x. Thia Q·Ueallon Is one or vn!l! Importance In Oklahoma. All our lands are entered, and title p1•ocu1·ed tberef(lr, under the homestead laws of the United States. The Question arlslr·c out 1Jf averse poueaalon, as between bomeat<>--.1! claimants, dally confronts our courc:J. To BAY that no relief can be granteJ, or that our courts are powerlHs to do Justice between lltJgants In this class o>r eases, pending the settlement of title l!l the land department, woulcl be the announcement of a doctrine ahho1·rent to n. sense of common Justice. It woul:t encourace the stronc- to ove1Tlde th<' weak, would place a premium upon gref\l.( and the use of force, and, In many lnstaneea. lMd to bloodlJbed and crime. Such a state of l!off&ira I• to be avol.ded, and. ~e oourta ehould not hesitate to Invoke the p~ Inherent Jn them, and lepd their &Id, In every w~y p~lble, to THE LAWYERS JOURNAL Pl'eYent Injustice, bJ" · preventing encroachments upon the pclll88.980cy rlgbta of settlers, or by equitably adJuatlnlf then- differences. In the caee under' consideration, no adequate remedy at law Is proYlded for relief. Ejectment wlll not He. Adams v. Couch, 1 Oki. 17, .28 Puc. 1009. And; at tile time thl• proceeding was ln•tltuted, the forcible en· try and detainer act was lnsufttclent In ita provisions to artord a rem,edy. The appellee was entltlett to speed relier, and ought not to be comuelled to wait th~ final and tedious 1-esult ot the litigation In the Interior depm·tment, before ob - ta.lnlng that which bi> clearly shows himself entltlei;I to have. That actiOn of forcible entry was then deemed insufficient in that state to prevent 8.cta of treapau interferinR with &n applicant's possession, so that the eo;urt ordered 'he issuance of an injpnction. The main issue involved, however, was whether pending final investigation and award the occupant should he protected in ·ms possession, and the Supreme Court of OklahOJDa ~aid it should. iuuing •r. injunction to protect said possession. The same conclusion was arrived a1: by the Supreme Coun of Washington in the case of Colwell v. Smith, I Wash. T. 92, 94, when it held: We will not decide between two conflicting claimants, botb or whom 'lro actually tn po•ae.salon or certain portion" of the claim In dispute, wbo Is In th'! rtg!u., ID f.!Lr as to dlspouess one o: tn• other trom the entire claim, which would rende1· It lmpoulble tor him to prove that reaJdence th~ law requires, and tllus contest his claim before . the recl•ter and recelve1·; we can and must protect eltb~r party from trespass by t11e otller, upon such portion of the claim as may be tn the actual exclusive posse11slon ot surh party. Rt!•uming the considerations We have set forth above, we hold that the great cl power and duty to the Lands Oepar:ment to. alienate and dispose of public lands does not divest the courll of theit duty or power to take cognizance of actions instituted by settlen or occupanB 01· ;lpplicant1 against othen to protect their rapective pouesaions and occupations, more especially the actions of tresPI'•&, forcible entry and unlawful detainer, and that the exercise of such ju· rllidiction is no interference with the aliei:!:• ~=t=~~! ~::~ to consider must be answered in the affirmative. Oar·raolution above Ht forth anawers delendant-appellant'1 contention. We have, however, to go further and explore another fundamental queotion, i.e., wheDecember 81, 1952 ther a pµblic land applicant. such as the. plaintiff-appellee herein, may be c:on'tiderecl as having any right t.o the land occupied, which may enliJle him to sue in Ill! courts of jUllice for a remedy for the return of the poueuinn hereof, ouch as an action of forcible entry or unlawful detainer, or any other suitable rem~ dy provided by law. In the United Statdl a claim "'is initiated by an entry of tbe land, which io effeetual by making an application at the proper land office, filing the affidavit and paying the amounts required by " " " the Rm..d Statutes. (Sturr v. Beek, 133 U.S. 541. 10 S. Ct. 350, 33 L Ed. 761.) "Entry" as applied to appropriation of land, ··means that act by which an individual acquires ·an inceptive right to a portion of the unioppropriated soil nf the cou'• · '!:Y• by filing his claim." (lbic!,, citing Chotard v. Pope, 25 U.S. 12 Wheat, 586, 588.) It has beon held ti.at entry based upon priority in the ioitiato:-y 'Steps. even if not accompanied by oc cupation, may be recognized as against another applicant. In Hasting & Dakoia R. Co. v. Whitney, ubi supr•, an a[fldn»lt (or the put·. po15a of entering land aa a homeatea.d wns filed on behalf of one 'l"urne1·, In a local land offtce In lUnneaota, on Mo.Y 8, 1865, .Tu1·ner clatmlns to act unde1· section 1 or the Act of March 21, 18G4 (11 Sta.L. 35), now section 2293 of th• Revised Statute11 lor the United Stales As a matt•· or iact, Turner wa11 ncviei· on the land, ll.lld no member of hla fain• Hy was then reaidlng, or ever did realde, on It, and no Improvements whatever !ul.d ever been made thereon by anYQne. Upon being paid their fees. the register and receiver of the land. offtce allowed t.ne entry, and the aame stood upon the record.a of the local la.Dd office. and upon tbe. record• of the General Land OfflC'J, uncancelled, until Seplembet· ao, 1872. Between Kay, 1183, and September. 1872, Congreas made a. grant to the State' of MlnnellOta. for the pqrpoaa of aiding in the conatructlon of a railroad trom-Has~ lnp, through certain countries, to a J>Oint on the western boundary of tho1 State, which crant was accepted by th<!Leclalature of the State of 'Mln:neaota and transferred to the Haatlnp and Da· kota Railroad Company, Which 11lloi-t1y tberearter definitely located lta n~ of road by nuns lta map in the offloe of tbe commiasloner or the General Land Office. AU tbeae proceedlnga occurod prior to tbe 30th of September, 1!!72. Tbla court declared that tha almost uniform J>ractlce of the Department has been h regard land upon which an entry of record, valid upon It& face, haa been ma,dl", as appi-oprlated alld withdrawn· from aubaequent bom.eatea.4 entry, .. ~p tlon, HtU•ent, sale or grant, until tbll original entry be cancelled 01· be de»-mber 31, 1952 cla1·ed fol"felted, In which caae the Jard reverts to the IJl)Vernment aa part ur th:~ 1mbllc domain. and because. agaJ.~ sul,ject to enti·y undel" the i..and Law11: an I It was held that whatever defects tha:•i might: be In an enti·y, ao Ions as It 1·.•malned a aubsiatlng · entL-:v ·of ~1·J, wh089 leca,llty had been passed upon by the land autho1·ltles and theb- action ri:mo.lned un1·everaed, It was such a.ii a > • prop1·1at1on of the ti·act as seg1-egnted a h'Om the public domain, and therefor~ p1·ecludiaod it CJ.·om .subsequent JITQnt: an·l lhnt this entn· on behalf. of Turner "at· tachC!'d to the land" in question, with the meaning of the Act of Con.cress makb1@ the g1·ant <U Stat. an, and could no<: be Included wlthin it . .And :;i.s to me•:> . gettlement with the intention of obtalr · Ing title under *be pre-emption Un·.·, While it haa been held that no veal.id 1•Jght in the land ·as against the Unit :-1 States Js acquh"e!J until all the pre1'('qul.sltef!J fol' the acqula!tlon oC title hu.\" 1 be.n complied with, yet rights In partl"'i as against ~ch- othe1· 'wei-e fully recog·· nlzed u11 ezlstlng, based upon priority I 'I tile inlUato11y ate:pa, when. followed u1.• to n 1mtent. "The pa.tent wbl<·h Is a.rte: ward11 h111ued 1•elates back to the datlP oC the Initiatory act, and cuts otf l\ll inte1•vt>nlng claimants." Sbeplev ,.. Cow,\ ·, 01 U.S. 330, 13-7 (Z8:4lS4, 426). There are compelling rea1ons of policy supporting the retoanition nf a right in a bona fide applicant who has occCl· pied the land applied for. Reeogmtion nf the right encourages a<:tua\ settlement; it discourages ~ulation and land-11abbing. It i> in a<;GOrd with we'! .. tabliohed pr~• in tbe Unit•d States. It prevents conflict• and the overlapping of claims. It is an act of lhno~e justice to the enterprise and .diligence of the pioneer, without which land aett;lement can not be ·encouraged or emigration from thickly populated areas hast· ened. · Our answer to the second problem io also in the allirmati:V'e, and we hold that even pending the invel!igation of; and resolution on, an application by a bona fi,Je occupant, ~uch as plaintif(-apPellee herein, by tbe prioritv of hla applicati·>ct and record of his entiy, he acquire. a right to ~ poueuion of the public lan<i be applied for against anv other publ1c land applicon~ which riidit may ~ pratected by the p ... _., &¢on of fore;. ble entry 0< by - nther •uitable remedy that our rules orGVide. Having. disposed of the l1IOll imlJO'U1nt questions raised on this appeaL ~ .. ;n next conoider the. procedural question, i.e., that the Court of First laotance, aller decidiag the Clll'!ftitll> of im:iodiction of the ifll!ice of the peace ·f...Wably, should· have reman!lod the caie· to. that THE LAWYERS JOURNAL ""11'1. for trial. Tbe rec«d clioclou that upon the clocketinR of the cne in the 'fur~ nf .First ·lno~e ... appe.11, dolenGUlll!"ap~t fifed a mot.ion to d""°" which th.e .C...Ut of Fi11t lnotance ar&Pted. H~, upon motion for r.:!:conai!ler0:tion lilod by plaintiff, the trial court vaoatcd ibis order of diomi'Ral, and thereupon the defendant nreoented his &newer. There wu no need of remanding the case to the juotiCe of the peace coun for trial, &eea114< lhifl court had already .beard and tried the c8'0e evidently on the merits. The case was, therefore, brOught before the Courr of. Fi"t Instance on appeal and for a new Aial. not only on the question of jurisdiction but on the merits also . The clailll' of bar by a prior judgment, beca.111e the action far u'surpation of real propert:y instituted by plainlif!appellant" was ~iued. can not be su1· t•ined; for not only are the parties io lhe previous crimiii.al action and in this action nf forcible entry not idcntiCal, bu, the camrs of action involved are a(ll') ciilfeient. The iu•ment-a-aled from. is hen· bv affirmod, with c;!MIS againot !he. a9· pellant. Partn, C./., Pablo. Bo•1•••· Padilla, Tuaion. lflon~dlrltiyor, and Baulis'a Anrel•~ conciir .. d: · II Sta. Mua Slipway. .SO Enrinuri111 CompdlllJ, Inc., pt.litioner vo. th• Court ot lnd.,trial RdatioO.$· dnd MacOrio Tndina, et al., rapondent, G. R. No. L452/, Aug. 18, 1952 AfonternalJOT, /. I EMPLOYERS AND . EMPLOYEES: DISMISSAL: NOTICE: PAYMENT OF "'-'AGES AT THE END OF E.l\.CH WEEK AND ON AN HOURLY BA· s1s.-Althou1h the laborers were paid at the end of each week and on an hourly baaio. it doe's not mean th•t =·Th. ·~of":i.; ::'!': riod of payment io nnly for the purpooe .of C<J!lll!lltinq the amount of wages earned and ~e ~ spent. They de> ... refer I!! the term .. period of !9DPloyment. Caaoequcntl~" t-...::i: :.=~~°!en~ aDd IO c:qmeo wilhin the purvieW ol the 6nt puagraph of Art. 302, Code of Comiiioice. z. ID.: DISMISSAL WITHOUT JUST · CAUSE- Tho laboren·of a companv _,, notifie!! that beealUO of aa inveQtory. tltot was to be made, laatina altaur, tw<> · ......, !heir work Would be~ - th111 lat.r ·!hey -.Id be ,...Ueol. Tl1'!I' oi · f.,.i to work after the •-ination 61111 Philippina Declalon11 of the inventory by rea'Son of whiclr their work was suspen4;1ed, ·hut. the; were not allOwed to continue in theif employ!J\lent. l{eld: Through no fault of the laborers. they Were la'. .I off and separated from the company's service. They were for all prac· tical purposes dismi'ssed without iu11t cause. :I. ID.: COM).lliRCIAL EMPLOYEES.~n employer mainly dedicated iD. :he ~ork of building and repair of y:cs· : sels and barges is a commercial company, and its emi:>lovees and lah<r· ets, commercial emplpyees. 4. JD.; PAYMENT OF ONE MONTH WAGES UPON SEPARATION FRO\£ SERVICE.- Regardless of wheth(>. the laborers are commercial or ind •i· trial or business empl~vees. the e~ ployers should pay the laborers th'! equivalent of one month wage's upQ l separation from service without just cause. !D.; COURT OF INDUSTRIAL RE· LATIONS; JURISDICTIONAL RE· QUISITES.-ln order that the. Cou,t of Industrial ·Relations could ac.· quire jurisdic.tion over a case, the following reauis.ites or elements mu'$~ eJcist: (I) Dispute, industrial or aa-ricu'ltuiaJ; (2) that __ said dispute i:s causing or likely to Cause a '$trike or locko~t; (3) that said dispute arosE from the diffetences as regards wage1, dismis'sals. lay-offs. etc. between em. ployees and employers; and (4) that the number of emoloyees- or la· borers must exceed thirty. cause one, e'speciallv the latter, i;; many times set in motion in hurried anticipation of the other. s. JD.; JD.; NATURE OF THE TERM "LOCKOUT".- A '"lockout" is a term commonly used to express all employer's act of exclµding from his plant union members hitherto employed by him. The act may affect all or less than all of the employee-union members. Lock· out, in the sen'.se in which it is universally used, is an ac.t directeJ at the union itself rather than at ·the individual employer-memb.~s of t~! union, 9 ID.; ID.; ID.; SHUT·DOWN AND LOCKOUT. DISTINGUISHED.- A "shut-down" differ's from a lockot.1t in that in a lockout the plant continues to operate. The emplovee·union members locked out are replaced by non-union sqbstitutes and the plant continues ta function. In a "shutdown'" the plant ceases to operate. A shut-clown ls the willful act of the employer himself. following lo complete loclu;>:ut as contrasted to the compulsory stoppage of operations as a result of a strike and walkout. It can p-Uly be said that all 'shut-downs are lock-outs, but not all lock-ou~s constitute qr . effect shut-downs. 10. IO.; COURT OF INDUSTRIAL RE· LATIONS; STOPPAGE: RJGHT OF LABORER TO BE HEARD BY COURT OF INDUSTRIAL RELA· TIONS.-A laborer who was dept1't· ed of his work without just cause or the occasion of 'stop0age of work or temporary cessation of operatio"! has a- right to be heard by the Court of Industrial Relations. G. ID.: LOCKOUT: EXISTENCE OF LOCKOUT.- Where the work of th• laborers of a company was suspended in order to make proper inventor.v, 11, .and when. the laborer's returned !cwork after the inventory, they·wert: prevented from resuming work, there JD.; ID.; INDUSTRIAL DISPUTES. -The ·eourt of Industrial Relatio J> should take cognizance of industrial dispute's arising ·from a strike or lockout or those that come hereafter b~ cause the daim ·or damage caused to the workers hecawe of their di~ missal or lay-off necessatilv comes after and not before the strike o. lockout. was to them. for alJ practical_ purposes, a lockout, 7. ID.: ID.; STRIKE; LOCKOUT ANll · STRIKE. COMPAREDi- The "lockout" alike with the '"strike", ·constitutes a sUipen_sion of emplo~s· 'serv. ices, but the distinction is -said ['> arise from· the. faCt that the emplover ·rather than his etnployeei;s ·is the doer ·g_Fthe ·aee~ of suSpensio'n. In both cases, a labor coritroversy exist~, which -is Qeemed intolerable · by one of the parties, but the ·lockout indi· cate·.s that the employer rather than his employees have brought the ma.'te.r to issue. . Strikes are nid stat1~ tically to J,o. the. rule, which lockouts . : "constitute exceptions, but it is probab.. ly impossible. to determine, .witli any ·. · .' fair. degree of .conclusiveJJets .whether the· ·2iven· disp11te l\es been precipi. ~a.led by. a ·strike ·Or . a .l_ockout he· li40 12. ID.: JD.; SUBSEQUENT REDUC· 1'ION OF THE NUMBER OF LABOR·· -ERS AFFECTED- Pendir•5Z" proceedi11g in the Court of Industrial Reld.tions. ten of the thirty-seven peti· tionimr emp)oyees or laborers withdrew from the petition because the~ had amicably 'l!ettled their differen· ces with the company. thull reducing the number of petitioners from 37 to i7. Held: Altli.ough during the nrcceedings in the court- below, bec.ause of .the amicable settlement of_ the dis· · · :p~te between the Detitioqer -.nd some of· the dismiued Jaborers, the .:num· her of said laboreIS. y,as reduced· to THE LAWYE.RS.JOURNAL 27, this reduction below 31 as re · quired bv law did not affect ti·~ jurisdiction of the industrial court, 'Once the Court of Industrial .Relation's has acquired iUrisdiction, it retains said jurisdiction until the case is completely decided~ and _that the reduction of the number of employees or laborers affected to a point below the number required by law, to inp vest the jurisdiction of the court at the beginning, or the amicable settlement of some of the demands originally made did not deprive said caurt of jurisdiction ·to ~tinue hear. ing the case and decide it. Cirilo R. Tiongson for petitioner. M. A. Ft:rrer for respondent Court of Industrial Relation and Carlos· M. -Tadina et al. DECISION :\lONTEl\[A YOR. J.: Petitioner Sta. M esq Slipways &Engineering Co .. Inc.. latter to be reftirred to as the Company, is a domestic. corporation dulv organized and eJcisting under and by virtue of the laws of the Philippines mainly dedicated to the construction and reoair of vessels and barge's. The respondents Macario Tadina, et al., were former labortrs of the petitioner who had been employed as carpenters, some of them h~ving worked for several years, under a verbal contract of employm_eni for no fixed or de-: fi1_1ite period. with wages ~aid to them eVery end of the week. Qn April 26, 1949, a notice was posted at the rate ol the compound of l}J:titioner Company to the effect ·that in order to make tht> p1oper inventory. all Work would sts;> on Saturday, Aoril 30, 1949; that the yard would b~ dosed for a period of two week's or more if necessary and that t}.e laborers wouH be notifitd accord~ inv;ly as ·o when normal work will be resumed. The notice was sign£d by the Manager. The ~·-.l work did not, however. apply to monthly personr.el tog~ther with about f_orty-one laborers and fifteen watchmen who continued workiilg in the compound. At the end of the two-week period of inyentory. res· pondents T adina and his fellow laborer's had all been oaid their wages up to the time they were laid off. Tadina and thirty-six fellow laborers filed an action with the Court of Industrial Relations alJegina- th,.· they were not given by the Comnanv the one-month notice provided for in ·Art. 302 of the ,Code of Commerce and askinll that the said. Cornpanv be ordered to pay thei:n compensatiOn _ for one .month in ·Heu of s;, id. notice. The Comoanv asked for the dismis'sal of the case on the R'fOund that Deceml)er·.31, J~51t the·.court'lacked juriodictioa o¥eroit., It menl wao ·with" temi·the - .being Mii ·contended that the claim· of ,.,.._ .. 'tmiporary ·w• on .. · the ··lllOllthiJoc <><·daily p.dents: for ,a on&-m0nth. compensation: basis. The COurt· time· said:-< iir-~ieu·. of notice. was· not supported by 1-·and had· no .legal. basis becadoe oaid petitionen (now- r...,ondents herein) were· all 1>aid on .. on houri• ·basis an~ ordy for· the number of hour• of octual work, Pendina nroceedi.,.. in .. the. CGWI. of• Industrial Relations, ten . ..! the thirty.Jseven pe..itioning. employees or laborera withdrew from. the petition bec:ouae rliey. hod amicably settled their differen"""'wilh the Company, thus. reducing the number of pe<itionero from 37 to 27 ... -ruch .is less than the thirtv-ooe. (3 !) wf-!"'l'b:"!.!r... 'i:''d:.':~thwas ~ Died and after due hearimr and the subml.sion of a partial stipulation of facts, the industrial court decidP<I in favor of the ~rioners and ordered the Company to-pay.tb~:(petitioners) the equivalent of their. wa.·es for one month. -with lqa) interc!lt. · The company bu. now filed this. petition .. for certinrari to review that decision of the. lower· court, preaentloa the lollawing .questions of law: ~ .L. Is .Al'.t. 301 of the Code ot Commerce of the Philippines applicable l:i this pal'tleular cue? · t' Does the resPondent Court ot Industrial Relations have jurisdiction . to decide and settle tbla ·CDS&? ' Article 302 of tii. Code of COmmerc:c reads as follows: "ART. 302.-In casu In which the contra.ct does. not have a fixed. period, any of the parties m&y terminate It. 1o.dvlslng the. Other· theffor.· oii.e atontb ·In ad,•ance. ' The factory or shop clerk shall ·have a right, In this case, to the salary · correapondlng to .s&ld ·month." Under the. fir1t question of the applil:llbility of M .. 382 of the present case, peti.tiona contends:: that the employment. of the. laboren involved herein wu .not without a fixed period bec:cuae tliey were paid at. the end of OYery week and th~e fore :they may. be considered a's .having been hired by the ·week, and besides, the amount ·of .. oayment . was . based on the number of :houn of work performed, A similar question ·ha's ·heretofore been submitted for determination bv this Co,ut. In, the case of SaDc:hez. et al. •· Harry L vons Cons1Tuetion ·: In<.. et al .• C; R, No_ L-2779, October 18, 1950, wher~ tl.e. laborers , inwlved were oaid some on . a monrhly. ~ such a1 P2S.O a month while· others were paid ,PS.00 a dav. it was there ... contended that .Art. 302 of the. Code of Commeree did• not apply inasmuch as: same- of the laborers inwking, the. p,.,.W..&;.of. said article were· pai<! ·by the month ·and .otheo by the day, and that-ther.elore their employIleeember 81; 1962 "x x x z. The Jta.ted coi:nDutatlon or manner or pa,yment. wheth,r monthly or dally, doelil not represent nor determine & special ij.me of employment. •rhus, a commercial employee may be employ• ed for one year and )'tit receive his salary on the . dally or weekly or monthly or other basis. "Appellants allece that the· uae: <1t the wQl"d 'temporary' In the contra.eta of services .of some of the plaintiffs 1thows that their emplo:vment was with a term, and the .term "was 'temporary, on a day to d&.J" baals.' The record discloses th&t this conclusion la unwarranted. The ~ntracta almply ea:v - 'you are. hereby employ~d •. as temporary guard with a. compenaaUon at the rate of f"&.OO a day •••• " The word special time fixed In the contracts referMd to In Article 302 of the . Code QI. Commerce. The daily baala therein stipulated Is for the comput&tl~ of pay, and la not necessarily the period of employment. Hence, this Cou1·t holds that plaintiffs appellants come within the purview of Article 302 of ·the Code of Commerce."· In the present case, it may also be oaid that 'l!lhou@h the laborers were paid at the end of pch week and on an hourly: ba'sis, it does not mean that there was a. fixed term .of employm~t. The basis of salary and period cf payment is only for the purpose of computin"". the ar.oupt of wage'.J earned and· the time sper.t. They do not refer to the term or period of employment. Consequentlv. we hold that the. contract of employment. of Macario T adina and bis fellow laborerl wa's without a fixed period. a,nd so come within the purYiew of the, first oarqraph of Art. 302, Code of Commerce. . Petitioner says that the decision of . the Industrial Court does not· cont,,,in a 1ipding that the respqndent laborer's were · dismissed without just cause and so, their caae does not come within the prov1siom ci the second part of Article 302. It is a fact, howeoer, that through no fault ·of the laborer, the. were laid off and ...... garated from the petitioner'• service. 'J"hey offered to .work after the termination of the in•entory bv reason oJ which their-work-was •usnended, but they were ·1or all practical .purpooes dismissed withOut just cause.- ' . . Last!., petitioner contends that Art. 302 .is no· applicable here becau~ the labarers were not comm~ employeea ea a1:1to .warrant the aoDlication of theproYisions of·.the·~ of. Commerce. It cites the cue .. pf. Juan Arribas "'- Hawaiian-Philippine Co.,c_ R..No. 372.19, dated Augli'sl 23, 1923. purponing. to ~.LAWYERS ~OURNAL hold· that -before, •n-.empl,oy.e 'c•~· i,..., voko th&.provisiont. of·,A<t.- 302·.of .• the., Code' of Commen:e·. he QIUS~ show that· }w.. ilh a commercial employe~ . Unfqi.., tunatel,., we ,,..-e unable -to read said cUc· . beca,QS;ecit.chea not anoear to·have been· publiohed in . tho Philippine Rep- or. in. .the Official Gazette . and we are un- . able to find. -it am- o.,, records that.. sqrvived the-last war. But grantinc that, there was such a ruling by this .. Court, .. We alaQ &nd that in the case of Pllilipl'.\'.': l.:!a~i.iu·tff77i~~!.~:.~= . ed much later on September ·30, .1938; · ·this Court· held or rather stated in· the-• couree of the -decisioil that the c:oruract oi rq>air of vessels entered into· between· · the il.ppellee Smith N!'•isation Compa- · ny and the intervenor-app_ellant 'Ef Varadero- de' Manila which later ·cempanY. by the way Yfas also engaged in ·the · biiilding and repair of v<lli~, lib •the · peritiOner herein, waa a commerCial ·ti'a.Jli.o" eaction and as such should be gevemed·• fint by t)io proY~ .of the. Code.-o{ Commerce •. Ooe possible implk.atiwl from •aid· hulaing might .be. .that .an. em- . pi,oyer like the- periUon.., engag~ in th~. work of buildina' and. ~air of vesseb,., i.s: a commercial compaDv, and ·ill 'employees. and' laboreri, commercial em- -. i>loy<es• But ,..aidJO.. of whethet: !he laborez's in the rresent case are. CGJQQlef~ clal or industri81 or busineu emploYeei. tlie employer should, we beli .... ·- pay tl-.em. the equivalent· of. one menlh:twaps upon separation from .-vice without jusl: cause. In the fint ploce; ·f.-·the ttan<lpoint of the laborer or .employee, one employed by an industrial or busiDt-U •cqna.rned. is as much entitled .to the benefits oi the law and deserY..i··hiii ·one tnolith pav a'i one emploved·by-& merdwit. In thO •ec:ond· place. ,r<!B•rilless o< !he strU;t, applicability or no~-·. PJ>!icabil,.'y of AA302, the .. COurt of. Industrial lUlatioils bY-:reason Of ita aeneral ~ti~ ·and.: autJiority_ ty decide labcir dispu\d. tM. amount of 'lalary ·or w~s to be paid h·bor.ers. and ·employees., to determine thir livin~ .conditions. has been decidinA. not only ~ minimum that .the em.plOY,er· should pay .its emplqyees but also .grant. in« them even .sick. and .vacation leaVe: with. pay. without· anv: exp~ J~al. ~ \oisioa.: A .month~• pay up911 sep!1J'•hon from service without inst ~use an.d without .notice may alsO. in the discretion.of· 'the Industrial .Court be granted D10Yided th&t · said discretion is not abured. · In the case ·of Sanchez et al. v. Harry Lyom · ConstnK:ticm Co., et . al •. •""f"• ¥iihile:. one of ·the -companies thetein. 1nciuded as ·defendant-appellants, na!Q)y1 the· Material~ Distributors Inc .. was •. en .. gagOd . in· buying SIUl!lus · property. renairing -and then.elling th"!!' tp.the-public for which reasoo it mighf be readily 641 PhilipPi'1,e- DtCieione considered ·a commercial C0111pany ancj ' it&· laborers· cominercial employees. the other company ·Harry Lyons Con1stru~ · tion Co.. Inc. was enra1'ed in the construction· of' roads .and brj_dges, a business IJardly to be regarged as C!>Plmercial; still, the employee's of both companies were all considered commercial employees. entitled. to the equivalent of one month, pay. ~use of separation from service without notice. the.· lockout· lildlcates that the employer rat'1.er than hie employees have brought the matter. to Issue.. Strlkfa are IJ!lld statistically to be the r:ule, while lo,·k~:mts constitute exceptions, but It Is probably Impossible to determine with any fair degree or conclusiveness whether the given dispute has been precipitated by a strike or a lockout because one, especla.lly the latter, la many times aet In motion In hurried· anticipation of the other." (Teller, L•bor Dieput•• and Col· lei;tlve B.raaininD, Vol. I, p. 246), Again, in the Case of Lopez v. Roces, as Manager Of the People's Homesite Corporation, 73 Phil. 605, the Suprem~ t:Gurt held that when the one month, n9tice ls. not Riven. n~t onlv the factor or shop clerk. but anv employee distharged without just cause is entitled to . an ind~nity which mav be a month's salary,·and that.the HOmesite CorporatiOJ] ~ing a business company, its chauffeur dismissed without notice may be considered aS a commercial -employee entitled to one month pay. Going to the secon~ question, that of jurisdiction of the Court of Industrial Relations, Petitioner -contends that in actGi'dance with Chapter I, Section I and Chapter II, Section 4 of the COmmonwealth Act No. 103, in order that the ClR could acquire iurisdiction over a case, the! follo~ng requisites or ele;nents must exist:· 1. D_Jspute lnduStrlal or afP' .~ultural; 2. Said dispute Is causing or Ukely to lockout; 3, ... .6ald dispute arose from dlfferlonces aa regards wagea, dlam~saals, lnyotts, etc. between employees i.nd employers: an:d 4. The number ot employees or la.!lorers must exceed thirty. We 8.gree with the res15<>ndent Court that all the four elements ellumerated above were present. There was an indu;>trial dispute between the petitioner and its 1.iborers; 'said dispute· arose from difer~ · ences as regards dismissal and Jay.off, and the number of employees affected:.._ thirty·seven - Was more than the mini-· mum req"uired by· the law. The ·only eiement ·which may be subject to doubt is whether cir not the dispute is causing or is likely to cause mike but there was a sort of loekout. When the 37 laborer& returned to work after the inventory and when prevented from .resuming work, there -was to them, for all practical purt;loses, a lockout. 642 The '.lockout' "-like' ~Ith the 'strike,• constltut~ a 'SusPenston ot emp\cyees' services, but the distinction Is said to .. arise trom the .tact that the emr.loyer· rather.-than his employees 1k the doer of. the ·deed of sµspenslon. in botl'i cases, a labor cont1·oversY exists, which Is ·.ieem: ed lntole1·able by- o"ne or the parties, bp.t "A 1ockout' Is a term commonly used to express an employer's a.ct or excluding rrom his' plant union members hitherto employed by him. The act may affect all or less than all of the employeeunion members. Lockout, In the sense In which It Is universally used, Is q,n act · directed ~t the union Itself r·ather than at the Individual employer-membe1·s Of the .union. x :ic :z: ...... ,, . •. "A 'ahut·down' differs from a. Io'ckotJ.t In tho.t In a Jock-out the Plant continues to operate. The employee-union mem· bers locked out are replaced by nonunion substitutes and the paint con! lnues to function. In a 'shut-down' the plant ceases to operate. A shut--d·lWn Is the wilful act or the employer himself, fol· lowing a. complete lock-out as cont1acted to the compulsory' stoppage ot operations as a. result_ of a. strike alt'd walkou~. It ca.n truly be aid that all shut-downs are lock-outs, but not all lock-outs constitute 01· effect shut-downs." (Rother'!berg, L•bor Reletione, pp. 68·59.) Of course, ordinarily, a l~kout re!e~ t(1 union members, and is used to di.sci.pime laborers for their un~on activitie;s. 01 u directed at the union itself; and m the present case there is no evidence ab~t the union afliliation of T adina and his fellow laborers, or the real reason behind their ouster and exclusion from work. Bu't. whatever the reason, to them there was •:1topoage of work. a lockout wiihin the contemplaJtion of the law warranting the extension of juridiction of the CIA and it's intervention if sought. In the case- of Yellow Taxi aµd Pasay Transpo:rtation Worker's Union (CLO) v. Manila Yellow Taxi Cab Company, Inc., 45 0. G. 4856, thi~. Court held- that a laborer who was. deprived of his work without just cause on the occasion of. stoppage of work or tem· porary cessation of operations . (p.:ue). has a right t_o be heard by the Court of ~n dustrial Relations. It further held that said court shouid take cognizan~ of industrijal disputes arising from a strike or lockout or those that come 'thereafter be-: cause the claim or dam~ge camied to the workers because of tlU;ir dismissal ~r, la.y.off necessari,ly' comes -after and not before the strike or lockout. , 'IIHE ·LAWYER& JOURNAL A. to the number of labOrets inW>lved ·i,n the oresellt case, -although during the proeeedings in the court bolow, because of the amicable settlement· of the dispute between the petitioner and some of the-dismissed laborer's. the number Of. saic:i-laborers waS reduced to.27, this reduction below 31 as required bv law did not -affect the jurisdiction of the inllustrial court. In the case of Pepsicola, Inc. v. National Labor Union, G. R. No. L-1500, 46 0. G. (Sup.) No. I, p; 130 and ·Manila Hotel Employees Asooeiation v. Manila H9tel, 73 e_bil. '374, this Court laid down the doctrine to the effect that once the Court of Jn- · dustiial Relations has acquired. jurisdic- · tion, it retains said jurisdiction until the case is completely decided, and tha-: the reduction of the number of employees QI' laborers affected to a point below the . 'number required bv law, to invest the jurisdiction of th.e court. at tbe beginning, 01 the amicable settlement of some of the demands oritrinallv made did not .!ieprive" said court of jurisdiction to Continue hearing the case and decide i~. In view of the fore~oing. the decision · appealed from is herebv affirmed. with costs. P~ras, C. /., Pablo, Beng%on, Padilla. T 1,1ason. Bausiistp Angelo, and ~brad or / /., concurred. Me.:.n. Justices Feria, Reyes and Jugo did not take part. III Laureto A. T alaroc, petilioner-appf!llee, t>s. Alejandro D. Uy. i-espondent·at'· P.•llanl, C. R. L-5397,. Sept<mber 26, 1952, Tuason, / . 1. ELECTION'S; CITIZENSHIP OF ELECTED CANDIDATES-- U was elecred municipal mavor of Manticao, Misamis Oriental on November· 13, 1951. T, one of the defeated .candidates for the same offiCe, cqntested the. election of U on the ground that the latter is a Chinese natioD.al and therefore ineligible to the office of the municipal mavor. U was born on }i;lnuary. 26. 1912 in the municipality of Iligan, province of Lanao, of Chinese father and of Filipino mother. Hts father and mother were married on March 3. 1914 in lligan. The father died in this municipality· on February 17, 1917 and the mother died on Augu1t 29, 1949 in the municipality of Manticao, 'Misamis Orient~I. U had voted in -the previous elections - and had held various posittOttf . in the government. Hdd: U it'.:a Filipino citizen and eligib1e.~o ihe of6ce· of municipal mayor . .(tle hcame a Phil. ippine -citizen at least upon his faDecember 31,.1962. tbpr's deaJh. ColDD)onwealth Ar.t No. 63, _pro.viding a piethad for re1aining ' Philippines. ~zenship by Filipino woman in such case, w~ paosed. when U's mother had been a widow for 19 years and U had been: of age three years.. and this law carries no proyis.ion. gi:ving i'.I i;ettoacti'tl'e effect. It would neither be fair nor good policy 10 hold U an alien after he. had exercised. the privileSes of citizenship1 and the Government bad confirmed Im Philippine. citizeaship on the faith of legal ptinciples tha_t had the force of law. Claro /tf. Reclo for appell~nt. }utU!ti.ana R. Borja:· for appellee. DECISION 'FUASON, /.: The election of Alej·an~ D. Uy to the office Of municipal mayor of Man .. tica.o, Misamis Oriental, on Noveml;>er 1', 1951, brought the instant action of quo warranto in the Court of First lns-tance of that pr«iWince. Jbe petitioner was Laureto A. T alaroc.: one of the defieated candidates for the same otfi,_ce, and the grounds. of the petition were that he resp011dent is a Chinese national and therefore ineligible. The court belo:w found the petition well founded 8.nd dedared. the posibcti in que#on 'va~ ca·at. The personal circumstancdi of the rei.p.on.dent as. found by the court are not iri dispute. They ~re as follows.: "Estan establecldas por las pruebas, Y admltldas por las partes, que Alejandro D. Uy naclo en Enero 28, 1912, • n et munlclplo de Illgan, provlncla de Lanno (Exhlbito 1), de padre chino, Uy Phlngco; y de macre P'llt}>lna, Ursula Diallo, cuando convlvlan estos como marid'o y mujer, pero despues contrajeron matrlmonlo ecleslastlco nl Marzo 3, 19! .J, en dicho pueblo (Exhlblto 9'). Tuvieron slete hJjos, siendo el recurrldo Al@J11ndro D. Uy el 5.o hljo. Uy Plangco, na·t!vo de Chultao, Amoy, 'China, nunca se ausento d'esde que llego hacla 1893 o 18!15, en Fillplnas hasta su talleclmlento· el- ·FebFerO 1 T, 19-17:, en Dlgan, Lanao, don de estuvo resldlendo · eontlnua.mento, mut•lo con postor.iorldad, el Agosto 29, 19.f.9~ en el munielplo de Manttcao, Mlsamls 01•lenta.t (Exhibit 3). Apa.rec& tamblen que el recurrld'o Alejandro D. Uy nunca tue a China y.·he. votado en las ante1·lores elecclones. veriflca.das. en el pals. y ha dosernpenndo empleos como- Inspector de! "Bu1·ea,u of Plant hld1Jstry" en 19.U CExh. 0; en los anos· 1935, 1946, 1947, maestro bajo el Bureau of Public Schools, en Mantlcao- Dlstrlct (Exits, 5· y 5-a); filing clerk en la Tesorerla.. ;\lunlci:;ial de Initao, en 1935 al 1945 (Exh. 4); >' ActDecembe• 31, 1952 Ing Municipal Treasurer d_e. Lagalt, ~n 1942 a 1943 (Ex;h, 6); ademas de haber servldo al l20th Infantry Regiment de la guerrilla, y algun tlempo 'Tax ~:ollec tor' del goblerno ile ocupacion japt•neSa, en esta provincla de Mlsa.mls Oric1ttal." These facts also appear uncontroverted in evidence: One of the respondent's brother's, Pedro D. Uy, b.efere the war and up to this time has been acc_upying the position of income tax exammet of the Bureau of Internal Revenue. His other- brother, Jose- D. Uy, is a pr.1ctis-ing certified public accountant, and before the war was the accountant of the National Abaca and: Fiber Corpa1ation (NAFCO). His other brother, Dr. Victorio D. Uv, is a practising physician, i:i.1.d, before the war, wa's charity physician in lnitao and. later a physician in the pr~vintial hospital. During the :vl,M, Dr. Uy was a captain in the Philippine army. His younger brother was a lieutenant in the I ieah Infantry Regiment of the Guerriltas. All 'his brothers married Filipina p;irls and they were never identified with any Chioese political or sociar organization·. Respo:ident~ father acquired properties. in Lugait. Hi:1 111:0ther. who never remarried, campaigned fer woman suffra"ge in 1935 and" voted in the subsequent eleccions. The respand~(s conteolions-, whjch thct ~ourt below. rejected, w.e11e thait his fal!her wu. a. subiect ·of Spain· ao April 11, 189!} by virtue of Article 17 of the Civil Code; that his mother ipso facto reaequired her Filipino. citizenship 'upon the c;leath. of her hµsband on February 17, 1917, and the child followed' her .,itizenship; and that the r~pondent is a citizen. of the Philippines by the- m~ fact of his birth therein. His Honor the Judge noted that, while under the. Roa doctrine (Roa" v. Insular Collector of Custom~. 23 Phil. 315), Alejandro D. Uy would be a Filipino citizen n~d less of the nationality of his paren~s. yet, ~.e said~ this doctrine was abandoned in Tan Chon v. Secretarv ofi Labor. G. R. No, 47616, September 1'6, 1947; Swee Sang vs. The Colnm.on.wealtll ·of the Philippines, G. R. No. 47623, decided with Tan Chong vs. Secretarv of Labor; and Vi1I~erm0&a v''6. The Commissioner of lmmi1natioP G. R. No. L1663, March .31, 1948 .. It may be· recaUred that in the case of Roa vs. lnsuln Collector ol Cwtoms,, supTa~ the pe•itioner -was born in lawful wedlock in the Philippine3 on J ul:v 6, 1889, his father bt'jng a native of China and hi':! mother a· Filipjna. His· fa;he·r was domiciled in this country· up -to the year 1895' when he went ta· China a.'ld nel'er rdurned, dying thell"e ct:b.Qut 1900. In May. 190 I, Roa, who was then a minor:, was se:it to China by his widowed mother for· the sole purpCDSe· of ~tudying, THIE LAWYERS' JOUR'.N"A.I:. Philippine lleci•iena; lll<d returned ·in O.tober, 1910, ~<i"B then . abO!=li:. 21 .Years and 3 months of age. He wU. denied adm~ by the board of special inquiiy, wbme decision was affirmed b.y the Court of First 1..,. tance ·in_ hab.e~s c~pus proceedings. This Court held that Article 17 of the Ci.vii Cade "~ sufficient t.o show that the· first oaragraph affirms and recognizes the prim;iple of nationality by place of birth, jus soli." Citing.· various. decisi~ns, authorities, and opinions of the. United States Attorney Gene11al, if found that the decided weight -of authority wa's to the effect that the marriage of an American woman with an alien conferred hi~ cationality upon her during covetture; that upon the dissolution of the marriage by death of the husband, the wile renrted, ipso fado, to her former status, unlesi her conduct er · acts showed· tJiat she elected to re~ain· the nationality of her husband, and that where the W?dowed• mother.· her·self. thus reacqui"e het• former nationality, her children. she being t~ir natural· guardian, should follow· ~er nationality with the· proviso that they may elect for themSelve& upon reaching majority. The Roa decisi90., Prom.ulgated on October 30, 1912. set·'- precedent that was. uniformly followed in .numerous ca~ s.es. This long lin:e of d~ciiions applied the principle of jus soli ._up to September 16, 1947, when that plinciple was rencunce in, the cues. ef Tan Che11g v. SeCre.tary of Labor and Swee Sang v. The Commonwealth of the Philippines cited in. the- appealed· decision. Tht:·e two decision are not, in our opinion, controlliiig in thla Case. Article IV, entitled' ••citizenship," of the COnstitutien provides: "Section 1-. The following are citizens of'the PhlllpplneS: "C:L) These who are citizens of the Philippine Islands at the time,. of the adoption or this Constl.tutlon. On. the~ strength. of the Roa doctrine, Alejandro D. Uy undoubtedly wa. considered cl, iull-pledged Philippine c:i~izen on th~ date ef the ad,Option of the Constitu!ion. w.hen jus. ~-'?li has been the prevailing doetrine. "With it," as Mr. Justice Laurel scµd in. Ramon Torres et al. V>. Tan Chim, 69 Phil. 519, "the bench and the bar were familiar. The mem~ bers of, the ConsbitUliooal Convention W'elle· also. a.Wcve ef: this rule. and itt abwgating the doctr.iDe· laid. down in the Roa case, by making· the- jus sanguinis the predominating .orineiPle in the determina.tion of Philippine ~itizenship, the.y did not intend to· exclude these who. in the situation of Trianquifino Roa, were citizen\; of the Philippines by judicial declaration· a~ the· time of the adop!ion of the Constitution, This. ~·th,e Court went on to say," is· appatent ~ the fol· lowing excerpt of the ~roceedmgs of .the Constitutional Conven~1on when Artide IV of the Constitution was discussed: "Delegate Aruego.-Mr. President, may I just have one question? May I ask M1·. Roxas It, under this proposition that yoU have, all children ·born In the PhllJppliies before the adoi>tlon ot the. Constitution was Jnclu::led? ,"Delegate Roxas.· - No, sir: that Is to say, It they a.re citizens :In accortlance with the present law, they wlll be citizens. "Delegate Aruego.-But as f saM they are citizens by judicial decisions. "Delegate Roxas.-It they are ci~lzens now by judicial decisions, they will be citizens. "Delegate Aruego.-1 should like to make It clear that we are voting f•R the proposltlon so that it wl11 Include all those born In the Philippines, regardless ot their parentage, because I have heard some objections herei to .the Incorporation in toto. ot the doctrine ot jus aoli. There are mapy who do -not want to Include, as are Included In the proposition we are voting upon x x x "I should like to find out from the gentleman from Caplz U: that proposl. tlon would make Filipino citizens of children ot • Cblnese parents born last year or this year. "Delegate Ro:ii:as.-No, because ~·Y the laws of the PhUlpplne Islands, tiler are not Filipino citizens now." (RecC1rd of the Proceedings ct the Constltut1011al ConYentlcn, Session ot November 26, 1934.) Unlike the Tan Chong case, the herein appellant Uy bad att~ne~ the age. of majority when the Con'st.uution went into ~ffect, &iid had been allowed to exercise the right of suffrage. to hold pu· blic offices, and to take the oath of alle-g:ance to the Com.~onwealt!t. ~o,-ern men~ or Republic of the Ph1hppmes. The Tan Chong decision itself m~kes this express reservation: .. Needless to say, this decision is no~ intended_ o~ designed to deprive, as it can not divest, of their Filipino citizemhip. .t~'?5e w~~ have been declared. to be · F 1hpmo cltlzens, or upon whom such c~tizenship had been conferred by the courts be~ause of the doctrine or principle of res adjudicata." Certainly, it would neither be fair nor good policy to hold the. respondent an alien after he had exercised tJie privileges of citizenship and the Government had confirmed bi's Philippine citizenship on the faith Of legal principles that- had the force of law .On several occasions the Secretary of Justice had · declared as Filipino citizens persons similarly circumstanced a's the herein resp:i.ndent. (Opinion 40, series of 1940. of '644 the Secretary of JuStice. ·si;e also Opinion No. 18. series of 1942, of the Cq111missioner of Ju~ce. 1942 011. Gaz .. September.) Cut out of the same pattern and deserving of the 'same consideration ir the proposition that Alejan9ro D. Uy became a Philippine citizen at least upon his father's d~a~. It has been seen that, according ·i;o the rule of the Roa case, a Filipino woman married to a Chinese ipso facto reacquired her Filipino citizen upon her husband's demite ·and that thereafter her mimor children's :na~onaJit.y automa'lli.cally followed that of the mother's. This rule was not chamzed bv the adoption ol the jus sanguini ·doctrine, and was in force until" Commonwealth Act N:.1. 63 went intO effec;t in 1936, by which t~e Leg_islature, for the first tin;te, provided a h.•.el:hod for re~aining . Phi~PP.ines citiZfnship by Filipino women in 'such_ cases. It is to be noted that when Commonwealth Act No. 63 was Passed Ursula Diabo had been a widow for 19 years and Alejandro D. Dy had been of age three years, and that the new law carries no provision giving it retroactive effect. The'se conclusidns make superfluous consideration of the rest of the several a'ssi1t:nments of error by the appellant upon which we refrain to exoress an opinion. The decision of the lower coun is reversed and the respondent and appellant declared a Filipino citizen and elivible t·1 the office of municipal mavor. The Df;titioner and apoellee .will pay the ~oots o; both instances. Parm, C 1 Bentfzon, Montemayor and Bautista Angelo. concurr-ed. PABLO. M .. concurrente: Opino que Alejandro o; Uy nacio cc.mo ciudadano filipino en 28 de "'nero de 1912 en lligan, Lanao, porque su madre Ursula Diabo no estaba casada legalmente con Uy Piangco, pues el hi· jo natural sigue la ciudadania de su madre· (Sena contra Republica de Fi· lipinas, G. R. No. L-4223, mayo 12, 1952): pero al ca'sane ella con . Uy Piangco en 3 de marzo de 1914, Ale· j.indro D. Uy qued.o legitimado por subsiguiente matrimonio (Art. 120. Cod. C1v. Esp.): ipso facto se habia hecho ciudadano £hino porque como men:lr de edad, teni8 que seg_~ir la nacionalidad de iu padre legitii.no (Art. 18, Cod. C1v. Esp.), como Ursula si~uio la de su marido (Art. 22, Cod. Civ. Esp.). rio se hiio ·automaticalriente· ciudildana fiiipina, · j>ues el articulo 32 de · Codigo Cvil Espafiol entonces vigente diipone que la espaiiola (filipina) que casar_e Con extranjero podra. disueho ~ matr1monio. recobrar la nacionalidad espa:iio-la (filipina) llehando los requi'sitos expresados en el articulo ~terior, ~ ~stos requisitos son: (a) volv1endo la --v1uda al Reino (repatriacion); (b) dedarando s.J voluntad de recobrar · la ciudadania fihpina; y (c) renunciando la proteccion del pabellon de) pais de su marido. J..a ptimera condicion esta practicamente c~· plida porque Diabo no salio nuncil de Filip in as; pero no esta probado que hub:ese declarado ante el registrad.or civil de su residencia oue era su intencion recobrar la ciudadania filipina, ni que hubiese renunciado la oroteccion de la banc!era "china. Desde el 26 de noviembte de 1930 en que se establecio el registro civil en Filipina's, siendo registrador civil local el tesorero municioal. hasta el 28 de agosto de 1949 en .que fallec~o mas de dieciocho afios - Ursula D1abo tcriia amplia 9portunidad de hacer la declaracion que exige el articulo 21 .de Codigo Civil, pero no lo ha hecho; su silencio da lugar a la pres•,mcion de que deseo. continuar gozando de la ciudadania de su marido. Para recobrar la ciudadania filipina, la viuda de un ex· 1:ranjero debe ejecutar ciertos actoS que demuestren SU deseo indubitable de fe-adquirir su antigua ciudadania y perder la de su finado marido; por t.::nto, Alejandro D. Uv tampoco readqujrio la ciudadania filioina oor el merQ hecho de haber quedado Viuda su madre. Es principiO universal,pi.ente aceptado que la e.xpatria~on es derecho i~herente a todos. Los h1Jds de Lin extran1ero nacidos en Filipinas deben manif~star .el encargado del Registro civil dentro del afio siguiente a su mayor edad o e;nancipacion. si desean optar por la ciudadania de su pais natal (~t .. 19, Cod. Civ. Esp.). Aunque no aparece que ha hecho tal manifestacion al registrador civil, Alejandro D. Uy eiercito. sin em· bargo. el derecho de sufragio "en las anteriorCs eleccion verificadas en el pais" al tener edad competente para votar. Con ello demostro que queria adoptar la ciu· dadania del oais de su nacimiento, prefiriendola a la de su padre. Cuando el 1935 Alejandro D. Uv 'sirvio ..I gobierno como maestro de escuela bajo el Departamento de lnstruccion Publica, desDl.ies escribiente en la tesoreria municipal de Initao. en 1937, y mas tarde tesorero de Lugait en 1942 a 1943, y cuando, con exposicion de su vida, ingreso en las f1las del 120.o Regimiento de Infanteria de las guerrillas, demostro de una manera clara e inequivoca ·que preferi1 ser AI fallecimiento de Uy Piangc'J en ciudadano filipino a ser ciudadano chi17 de febrero de 1917. Urs~la Diabo no. THE' LAWYERS JOURNAL December 31, 1952 AJO,ianclro.D. Uy, de acuerdo =·el Codigo Civil . anii1UG .a .ciudaclanQ filipine pcrque opto •orlo al llqar· .a mayor. edad. T ambien. ea eiudadano lilipino. por ~oeicion cons~itucional. ·Al votar. en las elecciones verificad.u . en .el pais al llegar a la mayor edacl, demostro que C::t1:U'ci:ard:e ci=:~S: if~=da~~ filipinos: x x x ( 4) l05 que, fiendo hi jets de madres de ciudadania· filipina. opt"'°" por esta al llogar a la mayor edad." (Art. 4,Titulo IV, Constitucion). J;lue-. no es hacer cpnstar que exi&te error en e.."t8 disposicion: de~ d~rse filipma." La filipina Que 1e casa con un e.'lttranjero Ugue la ciudadlnia de su marido; por el simple hecho del m'alrimonio pjerde la ciudadania filipioa y · se hace extranjera: no puede co:ltinuar en la condicion de ciudadana filipina" p~ expresa disposicion de la ley. pero no piertle Ja nacionalidad filipi!la. . Por las razones expuestas. -V: no por ottu. Alejandro D. Uy adquirio la ciudadania filipina. PADILLA, /., concurrinr. 1 I wOuld rest the judgment in this case on the undiiputed 1"4:1 that the resoond· ent wu born out of wedlock in lligan. Lanao, on 28, January 1912 of • FiliDino mcther and a ChiaeJC father who "'-ere married oD 3 Mardi 1914 and V9al/"ii:~i: a d}itpj~~ citl~.~i,%~:~ Chin<:'.e citizen .when his fath.:r and m°'" ther were· ·married. and fe.tcquired his oriRi?tal citizenshiD on the death eof his !&.ther, beca,,,. bting under ane he fOJ. lowed the citizenl'hio of his mo.he:- who reacquired her FiiiOino· citizen'1lip ·of l;tis moth~ who reacauired her Filipino citizenship U!':>n the death of her husba:id and never remarried. I do not agree to the propolition that persons born i!I this country of alien n•· rentage whose father. is an alien must be. deemed Filipino . citizens under and by virtue. of lhe doctrine laid down in the cue .of Roa v. Collector· of cu11o .... 23 Phil. 315: Precloely, 1he judgment .in the cases of Ta!l Chong v. The ,Secretary of Labor and Lorn Swee Sang v, The Commonwealth of the Philiooines, 45 O;G. 1269, hold; that as the doctrine laid down in :the case of Roa v. ····Collector of Customs, supra, is· in con.f:lid. with the law in ·force at. the time it must be abandoned. Jose Tan Chong invoked at.o the benefit, of the doctrine in t~~ Roa v. Collector of Cusos caie. There is only an excenti0'1 to the rule laid down in the case of Tan Chonsc v. The Secretarv of Labor and Lam Sw•e San2 v. The Commonweal:h of the Philippines. ·supra. 1 · CORCµ,r (~gd~~SAf:.~~:j&>~ABR~D01,_' December 31, 1952 lV Holl. Aiwlin P. ·Mania~, eJ al appellants, w. 'Manila CorJag_e Co., appel. ie<, C. R. IAS59, Seple.°'ber 19, 1952. Pablo,/. · t. COURT: JURISDICTION: INTER·. FERENCE WITH COORDINATE COURT: EXCEPTION-A judge ol a branch· of the court ·.ohould not .-nnul the order j&sued b7 another jullge. of difference branch o the same coiqt, ~~~=e~~~ of m:d a~~ ii:Je~= dently but :::linately. unless th~ second ju<W_e acts in :olace of the first judge' in the s~e ~eeding's. 2. ID.: ID.: ATTACHMENT: DELIV· ERV OF PERSONAL PROPEllTV.Under section 2(c), Rule "62 of Jn• Rulu of "Court,· a co'urt has no ji.;ri•· diction to order the delivery of per.IOnal . property to the plaintiff ii lfte· property is u~der ~tachment. &ianislao A .. Fernandez for petition..... Roa, Selph, Ca-co•o· &- /•ntla and Defin L. Conzalez ·for respondent. DECISIR.N PABLO, J.= Se tr a ta· de unit aoelaciqa interpuesta por el Hon. J uez Montesa, Hao Yu, Guan .alias A. Lao !loldan y Rufino lbai\ez contra una resol!JCion del Tri· bunal de Apelacion. · . En 7 de mar.0 de 1950 el Sheriff de Manila, cumplieoclo la order expecli!la eu la causa civil No. 9126 clel Juzgado d"P Primera lnstancia de esta ciudad, titulada Manila Cordage Company contra Yu Bon Chiong. embargo. el autom°'" vii Buick Sedan eon placa No. 1074 (aiio 1950) de. Yu Bon Chiong .que era d.maandado e:i dicha causa. · En 8 de marzo Hao Yu Guan alias A. Lao Roldan y Rufino .. Ibanez presentaron una reclam8cion d'e terceria ca· da uno, ale~ando .el primero. que el aut.omovil e'ltaba hipotecado. a su favor h_ipo'"..eca de bienes muebles: art. 4, I,..ey ~!9fil~ Yve%:=~nt, ~":riff ==~:ii: la Manila Cordage Company q\ie ltvBntaria el embargo del autolftovil si ella ·nc prestaba fianza · correspondiente. Por tal motivo, la Ficl,elity & Surety Co., a peticion ·de Maoila Cordage· Company, presto fianza de acuerdo ·COD el at'ticulp 14, Regla S9; . . En 1.7 de marzo ios terceristas presen·. t&ron , una demanda en el Juzgado de f.riniera ID' .. t&ncia de Manila contra la Manila Cordage Company, la .Fidelrty. & Surety Co., y el Sheriff de Manila (causa civil N.~· 10624), pidiendo la expedi'QIE LAW¥ERS JOURNAL cion .de una -orden. ,de .ia'-cli!:to.:prel~ minar ,.r4 ·f1Ue -leti ~ . .eape-1 eial,mente el , Sherill, clesisliesan. ~ -tinwu ~~eQiendo el ·P,ui~ IY . :qup ~: lq ,.,1rog...,, .a ellos: el fill"· ,J...,. 1\4on, tt1a npidio ex parie la ordeo p;di~ N• eu cumplimi~to: con dicba -orda:, el ~ riff de M•nila enb:.. el autC?movil " loo demaodaotes. Al enteruse de esta, la Manila Cordq:e Company preseoto una mocion qrgente pidiendo la d;solueion de la qrclen de in•erdicto expedida. uor dicho Juez, alegando que .este te. ha· bia excedido en 1u jurisdiccion al e7;ie-. dir dich.a ordeo: que dicho automovi! estaba ya preventivamente embargado en. hi causa civil No. 9126 por orden valida expedida por el Hon. Juez Macada•8· Dich.a ntacion urgente habia sido do negada por el HIHI. Juez Peeoon ·en · 18 cit abril y I~ mocion de r•con'•ideracion cleseitlmada por el Holi: Juez Montesa __ en 23 de mayo. La Manila Conbge Co., acud;o ·al Tribunal ·de Apelaeion por medio d•I rt'CUUO de certiorari contra el Hon. · Juez MOntes& y :etrcu. pidie'lda: l:a · revocacion, cit la orden ~dida por ·dicho juOz en la caus& No. I 0624. · · . ., . Despue1 .de considerar. las razon~~ .de· una .y olra ,patte, el Tribunal de A~ cioo rnoco e.•.29 de dieiembre i1e .!950: la orcleo de! Hon. Juez Montd.la que dioolvi,. la onion , cl, emborgo -ntivo dictada por el Juez Maead.aq. Conba esta ....Jucion, el Hon. Jue.z Montesa y otz'Os acuden en apel•cion. a .este 1'ribunal por medio d,. certiorari. , Los .. recurrentes a,guyen . q~e Ii. doc-. trina ee:ita.Cia en ~· ILf!JfttQ de c,bigao y, i\':b.hlblr~.?tr~ ~ti!~·rlru~~>.: ~idO_ la revocada por7l8: de~ i:lict~da e11 Mercado· Y otros contra OC.am.po. · y 10e~W que. el jue_z· do-:una Ii.la puel:le expedir· .una erden anulando la ,orden de otro -juez de:·otra -sala de) mismo juzgado de primera iiastancia, · . Analicemos \as-' t1e$ -c~usas. cit,.cfa'.S: El Ju .. de la Segunda Sala dtl Juzgado de P1imera lnstanci& de· '1.anila condeno al ilemandado· en l"a causa civil No. .18451, ·c.bigao "°l'fra Llni y Pineda. a pagar al deman~ante ·1a suma ck. P379.00 can inteRses Y costa:s. La, demioil fue confirmadB 'pqr'Oste .Tribunal en 12 de agoito de 1922; el Juez de la Segunda Sala expidio ""el mandamiento de ejecucion en 11 de octubre de 1922: el Sheriff de la ciudi.d trabo em.borgo sobre 105 bienes ~I demaudado Lirz1: y Pineda: en . 1 s· del mismo mes Lim y Pineda Didio eD la Sala Primera U11 interdicto. prohibit~ preliminar contra el Sherill y ·dicho Juez expiilio la 01~.peilida. · ··· · 6f5 Philippine Deoieion'e· Cabiaao ··y otro acudieron a esta Superioridad pidiendo en •n rec:uno de inhibicion Q1l!! ,. ordenaoe al Jun de la Primera Sa18 que desistiese de intervenir en la ejecucion de la 'aentencia dictada en la: cauoa civil No. 18451, y este Tribunal, despues de sir a las. partes; declaro nulo y sin ningun valor el interdicto prohibitOiio prelimiiiar exp~o por el Juez recurrido (el de la Ptimera Sala) aec1arando q_u~ .. Lu varias salaa del Juzaado de Primera JIQta:ncia de Mariila son, en cierto aentido, juzg11dos de . juriadiccion · coordinada; v el, penDitirlos que intervengan en aentencias o decretos de otros DOI" m~ c!e · un in-. terdicto prahibitorio. claramente eondut:iria a. confusion, y seriam~te poclria e'1' barazar Ja · administracion de juatici~. "· (44 Jur. Fil:, 195). E.i el asunto de Hubahib contra Insular Drua. Co., 5 Lawyers joJUrnal 281 (Feb. 27, 1937), en que el Juez de la Primera Sala <le Cebu expidio un interdicfo prohibdorio jpreliminor contra el sheriff provincial-para impedirle que <.umplimentaae el mandamiento de ~jecu~ ezpedido por el Juez de Li Tercera Sala del mismo juzgado, reiterando la doctrina sentada en Cabiga1 y otro contra Del Rosario,·esle Tribunal dijo: "Las varin Salas de un Juzaado de Primera lnstancia . de una provincia o ciudad, tenieodo como tienen la misma o igual · autoridad y siendo como son de juri1cliccion ·COncurrente, y coordinada, no deben, ni puede-, ni la esta permitido, inmiscuirse en sus respectiW. asuntos, y naenos en su1 ordenes o sentencias, por medio de interdictos prohibitorios. (Cab:••• y otro contra . Del R.ooario y otro. 1922, 44 Jur. Fil., 192, y las cauoas alli citadas; Nuiiez _y_ Enrile .contra Loyt, 1911, 19 Jur; Fil., ·256; Orais contra Escaiio, 1909, 14 ]\Ir. Fil. 215.)" En el· Uunio de Mercado y otro contra el Juez Ocampo, 72 Phil. Rep. 318, 1e trataba de una orden· dietada por el Hon. Juez B. -A. de 28 de enero de 1940, que dese1timo las objecion"' de las comparecientes y mantuvo su br· den del 16 de abril del mismo aiio, que o;denaba la comparecencia de E. L. d~ B. y J. F. de R." para dedarar sobre Cierl!JS bienes del linado Mercado. Las C<11Dparecientes presentaron mocionea de reconsideracion y nueva vista; el Juez 0., que habia vuelto o ocupar su sala del juzgado despua de su v~cion, _en resolucion del 2 de iulio de 1950, ,.... considero las ordene'a propiulg&das por el .anterior Juez B. A El segundo jun· no se entrometio en las orde:ies del pri::° &!01~~im:1ro1e::: ·~= ~~:n!::Este Tribunal sen to la doctrina de que 11x x x un juez que mesic:le una 11ala de u11 juzgado de primera instancia puede modificar o anular la orden que ha die646 tado otro juez del mismo juzgado. sin que por. ello ae infrinja el principi~ .de coordinacion, y que la porma que Clebe 1ervir de guia debe ser la de si el juez. -que dicto I~ primera orclen tenia facultad para modificarla o dejarla sin efecto, eil_ cbyo caso el otro jue~ que la modifico o anulo debe tener igualmente la n:mna faeultad. Y la razon de la doc·\rina a'li sentada conaiite 1encillamente en que ambbs juece. · actuan en el misrr.o juzgado v ea el miamo juzgado el ~ue ha modificado o anulado la orden. ••Refirien~os .ahor; al caso en t:Qnsideracion, .. resulta que el Juez 0., al anular)u ordenes del Juez B. A, actuaba -~ Juez cfel lll;iamo Juzgado de Primera ln'ttancia de Pampit.nga y apa~ 1eciendo daro .que . si las ~ociones de reconsiclerac;ion ,~ hub.iesen p~1~~do ante el Juez . Q. A, este podia anularlas, si a au juicio, asi procedi6e, ea dwio que el "Juez. 0. p_odia hacer lo. ~~o y podia anularlas. Como 8si lo. hiz.o. .. x x x Declaramos que el Juez 0. ~=~ ~=~=:. ~=· B.n~~r Y l:~e ~i hacerlo no hizo mal uso de la discrecion que le ha conferido la ley x x x." La doctrina en e!d.ta ultima causa no revoca la establecida en las doa anteriores cau1a1 citad.as. · En aquellas dot el juez de una 1ala ·expi~io en _un asunto una orden de interdicto anulando la orden de ejecucion dictada en otro J>Or el juez de la otra. lo que es una verdadera i11tromi.t.ion inclebida de un. juez en el &6UDto de otro juez. Pet0: en el asunto ~ ~erc::..c:n~• .f!=•dif:re:: s~~~~ se trata de una orden de un juez proveida en un aaunto y que despues fue revocada por otro juez que habia vuelto •·· ocupar au c~ al ter'minar su 'vacacion. Aµnque eran dos jueces. _actuo, sin embargo, el uno en lugar · del otro tomo ai hubiera actuado un solo 1uez. No se ha dedar~do espresamente la base sObre que cXiacanaa la doctrina en las causa~ de Cabigao v otro Contra Del Rosario, y Hubahib contra Insular Drug Co., pero e• evidente que es el articulo 263, parralo 4, ·del Codir,o de Procedi-' ni.iento Civil · · El· artieulo l.o de la Reala 62 diapone que, en un litigio para recobrar la posesion de biene's muebles, el demandante podra 1olicitar una order interlocutoria para que se le entreguen dichos bienes~ pero. para que pueda ohtener e.. orden. es necesario que pruebe baj0: j~r~m~nt_o: (a) que ~ d~efio de las b1enes embargadcn a que tiene detecho a la poreiioq de los mismos; (b) que los bienes son injust8mente detent.i.doa, •legando la caus& de la detentacion; (c) que no han sido secuestradd3 para satisFacer contribucion alguna, ni Jllulta por THE LAWYERS JOURNAL mandato de la ley, ni embargados· en virtud de ejecucion o embargo preventivo contra los ·bienes del demandante, o en caso de aerlo .ui, que son bienes pento& de embarao: y (d) que presie una fianza a favor del demandado por el doble valor de IOI bitnes que .. reclama para garantizar la deVolucion de Io's mismoi al demandado, si asi ae diapusiere eh la' aentencia, y para eJ. pago a dich:> ·den1andado de cualquier camiclad que pue-· da recobrar de Ia oarte demandante en· el asunto. El B~ick Sedan con olaea No •. 1074 habia sido embargado por el Sheriff eil virtud de una orden de embargo prrventivo dictada en la causa civil No. 9126 •. y el automo9il no esta exentO de em-. barao (Rl!llla 39, ·art, 12). No podia, par tanto, el Hon. )uez Montesa, por. Mec:lio de una orden interlocutori!l, ~. 'poner la entrega .a los demandantes de d~cho automcwil en . la causa civil No. 10624, anulando iP,. faclo · 1a. orden de. enibargo preventivo dictada e-i la ('ausa civil No. 9126. F y.e una in"debida in." lremiGion de un juez en la orden de otro juez de igu.al categoria. En i:ealidad, la orden dictada en la cauaa civa No. I 0624 deshizo la que otro juez dccreto' en la causa No. 9126. El juez de una sala de un Juzgado no debe anular la orden de otro juez de ot.ra sala del mis-mo juzgado porque ambc» son jueces de· Id. rnisma catepia v actuan indepen..: d1ente pero · coordinamente, a meoos que el segund.o 8.due en hi.gar del primer>: Sohre un miamo expediente. La orden dietada · disolviendo I• qrden de ·embargo preventivo. era facrible bajo el Codigo de Proeadimiento Civil' c,;cw;i•e •• articulo 263, parralo 4, diee "Que los blcnes no hnn sMo 9ucuestrndo.s po.ru 11ntlsCacer contrlbucil>'l alG"Ynn, nl multa poi• mandllto de un.'l Jey, · nl · embargado:Et en cumpllmlento d11 una aentenela dlr.tada contra Ioa bieneH del demandante; )' en el caso de babe,. sJdo· ombargados. · quc aon blenea exentoe de\ embarso!' Pero, baio el reglamento vigente, iao se• pued.e ordenar la entre511a de los bienes t:mbargados prcve:ntivamente porque la. Rosia 62, articulo 2, parrafo (c), dispone lo siguiente: "Que no ban sldo aer.ueatrn.d.~11''. sn.tlatacer contrlbucJon 11'1Wil.a, Iii · mu1fa por mandato de ·la' ley, nl eomt~nrgadoa ert vh"tud de eJer.ucton o embargo pre•. 'ventiYG contra los blenea del deninnctO.nte, o en caso de se1:lo aal, que son btenea exentOa de embargo." En la n~eva dispoJicion ae aiiadieron las palabras .. o emb~10 preuenli.vo ... Esta es la. ianovacion adoptada por el nuevo reglamento. con el ~dente proDecember ·81, 1952 pooito de impedir el triste eapeetacu.lo ch! que un ·j~z revoque la orden dictad1. ~:'da ~:iltr~erj:~~ ordeAdem,s. l!!I clemandantes 10lamente Dfedaroo lianza de P6,SOO.OO, que et el ~.Ior. del automova embargado •. en vez llel doble de su valor. La ord.n impugnacla esta en abierta contravencion con las disppsiciones · de1 articulo 2; Regla 62. · ~ confirma · la resolucion apelacfa con ..,. .. contra Hao Yu Guan y Rufino Ibanez. Para., C:..J., Be•Rzon, Padilki, 1.(ontemayor, Jugo, Bauha Angelo ·and Labrador, JI., -ion.es. v /oH L. Laxamana, petitoner, v.s. j.,. T. Baltazar, rapondent: C. R. L-S955, S.,.iember 19, 1952, Be1ngzon, /. .· 1. Pl)BLIC OFFICµS: MAYORS; VICE-MAYOR DISCHARGES DUTIES. OF. SUSPENpED MAYqR,When in. July 19S2 the mayor of SexmcNUI, Pampanga, was.1111peraded. the vice-mayor B, ... umed offi,:e u mayor by virtue of oeclion 2 l 9S of . the RevU<d IAclminPlrative Code. • However, ~· ~al governor, actiDtl under ... lion 21 (a) ot the Revised Election Code (R. A. 189), with the ...._t of the provincial board appointed L, u mayor of Sexmoan, who immediately took the coirc!aponding official oath. Held: When the '11•yqr Of a municipality -is . sus--ded, absent or temporarily unable, bis duties should be ~arged by the vice-mayor in accordance with 'lee. 219S of the Revised. A!lmlnistrative ·Code, · 2. :::~~~:;;~~~~TR~~:i:dr1:o STATUTE.-Wheie a ltatute has received a contemporan ... and· prac-tical interpretation and the statute as interpreted is reenacted. the pr~ tical interpretation is accorded great~ er weight than. it ordinarily <eceiv.., and ;.. regarded u pmumptively the correct interJ>retation ofc ·the law. · 3· ~ c;.o:Dn;;io~iT~~~t~i~ Where one statute deals with .a sub:.:i. i~en:~ ~h:°~.=~~i: ject in a more detailed way. the two should be hannonized if pouible: but if there Is any conftiot, the latte< will prevail, regardleu of whether ~ was · p....c:i prior tO .the general· statute. 4 II?.: CONSTRUCTION PLACEII UPON STATUTE BY· .. EXECUDecember 81, ·1962 TIVE OFFICERS.- The conleMporaneous comtruction· placed upon· the statute by the ~ive officers charged with its execution deserves great weight .. ;. the courts. Gerardo · S. LJmUngan and /a&o L. Baltazar for petitioner. Macapapl, · Pun.salon &- Y abut and Pedro S. David for respondent, Pedro Lopez, ·Ramon Duterte Bnd Regino·Herrnosi&ima as amici curiae. D.E CI S I·O.N BElfGZON, /" When in July 19S2 the may0r of Sexmoan, Palilpan~ was suspended, the vice-mayoi Jq>ae T. Bakazar, assumed office as mavor by virtue of section. 2 l 9S of the Revised Acl:ninillratiV. Code. However, the pfovincial" governot,· acting under section i I (a) ~ the. Revised Electinn Code (R. A. 180). with ibe conient of the provincial board apJJCinted Jose L. L.Uamana, as mayor of Samoan, who imniediately took the Corresponding official oath. . Rnuh: this quo ,.,..,;,nto proceeclID~. buecl solely on the petitioner's propoaition that the iection first mentinned hu been repealed by the subsequen~ !!f<>Yision of the Revised Election Code. If there was such repeal, this petition should be granted; ~and Lu:amana declared the lawluf m.aYlJI'. of SexmOa.i. Otherwise .it mus1 be denied ('). The two lt"atutory pFovisioai read as lolloW1: "See. 1196. .i'EMPORARY DISABILITY OF MAYOR.-Upop the occasion of the absence, •uspenalon, or other lem• POl'ary dlsa.b111tY or the Mayor, his dutlu shall be discharged by ,the Vlce·M.ayor, or Ir there be no VJce·Ma:ror, b)' ·the eouncll01' who at the last general elec· tlon received the ·highest numbf,r or votea." "Seo. 2l(a) VACANCY JN ELECTIVE PROVJNCIAL. CITY OR Jd:UNJCIPA.L OFFJCID.-Whenever a temporary vaea.n· cy In any electl'ye local otrlce· occurs, the ·same shall be filled by. appointment b:v · the President I( It Ill a JA'ovlnc~ 01' cltY office, and by Uie provincial governor, wl.th the consent or the Pl'Ovlnclal boan'I, It 't Is a mµnlclpaJ. office. (R •. A. 180; the Revlaed Election Code.) Secti.on 21 (•)-the portion relatini to iru.nicipal ~-was taken hom Section 2180 of·the R,evised A~iat:·ative coc1e. which partly providecf: .. ."Bee. 11,80. VACANCIES JN MUN~Ct· PAL OFFICE.-(a) In case of a tempo· rar:y vacancy In any municipal ornce. (1) The alleged offer of appointment by the governor which Ba1tasar rejected Is Im· material, because under sec. 1196 no ap· polntment la needed. THE LAWYERS JOUR.NAL Philippine Deoisions the ~me, a~l. be ~lled by appqlntpletit by tbe ,PJ'Ovlnclal governor, .with the eon·. Pnt o( tho' PJ'Ol"lnclal boai-a.' · <.b> '1n .case o( a pernianent vacancy _In :a~ mU"'lclpal ornce, the awn• ,ahall' be ined b;y. a.Ppolntment by tb.e. provln.' clal board, ez~pt In case of ~.munlclpa.l: president,· In which the Peri:nan111n1. .va·· canoy .shall he tilled by tbe municlpnl. vlce·,Prealdont." x x x It will be. oeen that under this 'leclinn,' when the office· of municii>al .P~ (now mayor) became permanendv ..,.. cant the vice-pretide.iit · stepped iiito the' olfice. The section omitted relerenie m· tunporaru vaccincv of such offiCe becilUte · teetion il9S JOvemed that contingeDcy.-~ In this reganl sections 2180 and ,'Zl<JS ~upplemented each other. Paragraph (a), of sectinn 2180 applied to municipal Of.fices in general. other than that· of the' m~nicipal president. · . · ' : Under the Revised Adminillrative. £:-~r.:a1~ .. ~ ~j;"~OJC:.!::: ernment circles ·that whm the munici.,.i: pre'tid.nt was suspended from office; the. vice-president too~ his place. .. Tempuary vacaney ·1n office or mu· nlclpal praeklent.-Paragni,ph (a) of ihle. section (2~10) should b~ c~ru8d to: cOver only municipal ottlces other than . the' otflce of pre.tden'i. . Seci10n 21fli ot tho ,Administrative Code should be ap.,. plted In ca•e of the ab88nce, •ua~nalon, . 01' other temporarY dlsa.bJllty or the mu· · nlclpal president. (Op. AttY. ~.. Sept .. 21, 1811: Jns. Aud..''Oct: !8, 1917.5" (Ara•·. neta. Admlnlatratlv& Code Vol. IV p:· !:118). ·•. ":lfunlclpaJ. ·president cann'ot dei:l~te' ac~nc prerfldent. - Thei-e 111 ne provision or law expreuJ;y or Impliedly. authorizing· the muplcipal pr1111ldent to deiilcnate anY person t!l act In bl11 atM<I: dul"lnc hta. temporary absence or dl-.bllltY, F;°l'om the provision of section .Zl95 of thla Code, It Is cleur that the '"1Ce·Pl'6fllderit or.· If there be no vlce·preeldent, the councliOr who at the la.it general election received the hlch~t number of v~es; should U:u. tomat1Ca.11y (Wlth~ut · aft:V formal dealS'· nation) dlec!'arge the duties oi the prc!11· ldent." (Op.° Ina. Aud.,. March 2, 1928.) (Araneta •. Administrative COde Vol. 'nr p. II.Ii). . Now. it is reasonable to assure that the incorJ)Oriltion .of the· above section 2180 into the Revised ElectioD law 'u sec. 21 (a) did not have· the elfd of enlarging its scope < 2>. to s~eneHe or repeal section 219S, what ~h the presumption against ~mpliecl repeats Cl); (Z) ·it waa even re8trlcted 'to elective mu· nlclplll office. (I) Sutherland, Statutor;y Conetruellon 3rd· Ed. aec. IOU note 1. · • 647. Phlfipplne Dticfsion• 11Where a statute has received a contemporaneous and practical interpretation and the otatule u interpreted is re-enacted, the ·practical inlerpretatjon is ac:Oarded grea!er weight than it ordinarily receives, and 1' .,,.arded as presUmp:ively the c:arrect iDterpnitall!on <.>f the law. The rule here is based upon the theory that the lerislature is acquainted with the contemporaneous interpretation of a statute, eopec:ially when made by 0 an admlnistratiV. body or executive officen Charged with the duty of administO!'inl or e11fotcing the law, and therefore · itnpliedb' adopt.a the in)erpretatiop upon re-euaetmept." (Suth .. land Statut01'( COD'atructian, see. 5109.) . Indeed, even dioregarding. their origin, the allegedly eonllict.ing seetions, · could be interpreted in the lirht of lhe principle of ltatutOry eonotruction that when a geueral and a partlculu prtwision are inc:oluisteat the latter is paiamount to the former (See. 288 Act 190). In other· wordt, seetion 2195 referring par1ic:ularly to vacancy in the office of ma).qr, must prevail Q.Ver the geQeral temt.s al sec. 21 (a) as to vacancie1 of municipal \(I~) oft-. Odterwise sta~. seetion 219"5 ma)' be deemed an excentfon to or qualification of die latter i4J. "Where one 9':•t:ute deals with a iubject in gen~al ~s, and another deah With a part of the same subject in a more detailed way, the two should be hannonized if possible; but if there ii anv conDict, the latter will prevail, rerardIeu of whether it waa Daued prior to the geueral statute." (SUtherland Statuory Constructinn,'' (Sutherland. Staiutory Construction, sec. 5204.) In a recent decision m. we had occuioil to pau on a similar situation, -repeal by suboequent general provision of a prior special provision- and We said.: "It l• well settled that a special and local •tatute, providing toi- k parf.•eular ease or elaa11 of eases, Is not re;;ie:t.led by a subsequent sta.tute, 1ene~al In it• hrm., provi•i•n• and appllc.tlon, unless "Where thete . are : tw.o ., 111tatqt"C!llJ, the 2. earlier •peclal; IJilld.·.the 1laler. !rPner&lthe term• of· the general ·ltroad ·eri.ough to Include tbe ma.ttu PM~. for In the •Pecl&l - the ~t that. 9ne ·le ·•P•· clal . and the other .la .P~ crea.tea a presumption thu.t \he •11111clal I• to be con-sldered as remaining an e~eption to the general, one as a. senero.l law of the land, the other aa the Jaw ot a. pa.rtlcuhu: case, (Sta~ vs. Stoll, 17 Wall. (U.S.), U&.)" In fact even after the Revised Election Code was enacted, the .. Department of the Interior ~nd t,he office of Exocutive Secretary who are ch.arPd with the siipervi!ion of pro\.jncial and municipal !l"vern~ts have "consillei)tly held that 111 cUe of the 1uspen1ion or other temporary disability of ·the mayor, the oicemayor di.all, . by -ation of. law, Usume the. office of the· mayor,. and if. the vice-mayor is nqt avail,ble, the said office shall be clit<haroed ' by.,the lint councilor." (Ann.,..~.,of ih.o a0.wei). Needless to ~a:f, the contemp(Jraneous constructio:i .placed 1,1pon the statute· by the ~tive of6eer5 charged with it.a execuuon deser-ves great weight in the court1 < 6>, · ConseqgentlY it is QJlr ·ruling that when the mayor of ~ ,muoicipaluy is >USpended, ab.sent or tempararily unabl~1 his duties should be discltarged by the vice-ri."11"' m acc:ordanee with sec. 2195 of the Revised Aclmioistrative Code, Thia quo warranlo petition is clismi'ssed wi.h costs. So ord«ed. Para., C.f., Poblo, Padilla. Moniemayor, Ju;o, Bauliala An1elo ·and Labrador, ff, concurred. Mr. Justice Tuuon took no part. VI JJ;>,., .JD,, E~!PJ.Q:f~ NQT c.\L. LOWEil> .'lfO .. ,S.TAKE .MINL'IG <;LI.IMS FOR THEM -1t hu been the _practice. ·qf '.nliiim to elnploy otheis to 11ti.ke niining daims for ·.thmii •. This is usually . done aft.. 'the pr<11pecton Jtave uoured themsel ... that a .mine aim in .a .certain. ioc:.Iity. The mancwho places the "ake could easily leave frl[lctional mi-al ~aima· in between the. claims without reporting· the existence of these Jactions to hill principal. Later he could ·.St~ and· claim. IJiem. If thia is perIDltted to happen, bnna fide min.,. can easily be held up by the VO!'Y ~en wliom they have .employed to llake their mining ~aim. If the mining indllllry sha!l be· protected and the exploitation of ·tire natural· reso'urces of ht. .country encoural)ed. such practice should not be tolerated, The wrong or tbe damage that o;an .be do!ie is unlimited. 1.1, ageull or employees or. laborers are permitted to cOnceal or without Certain mining. 'claimi· ordered staked by ·their em. player who gave theril , spe;.cific · instructic.t, to . atake the eniire gl'Ollnd in .a cenain·-iocality, the: effeet will p!'&dicallr loe the.·untlonation and legaliation of ·• holdup. [cf,.ll,M c t.~i&'it01tN'1iC1:.; ·PERSON UNDER ·auARDIANSIUP. -"£•en in the uecutinn of -1rac;JI, .in the · ·abaence- 1 of ·a: ·1!atute to• the contrary.· the ·presumption ·of m,a:nity md mental incapacity is. only pri:Q1'2 facie. and may be rebutted ·bv evid. -ence~ -and·• ·perion under guardian:ihip fot in.sanity may .s.Ull enter into a Yai.id · contract ~d ·even· ·co.-Wey property, provided it is proven ··that at the time of entering into said ·con .. tract,· he wa'a not to interfere wi?h nr affect his capacity to apPreciate th.: Paulino Dumaguin. plainti/f-appellanl, mesni?111 and lig~ficance of the ~· A. }. Reynolds. Ji.. }. -Harriaan and tralllaction entered .i~to by him. ·· Big WeJge Mining Co., C.R. L-3572, 4. IN'SANITY, PERSONS MENTALLY September 3Q, /9)2, M~nlemayor, f; . DERANGED REGARJ;JING CERTAIN I. MINING EMPLOYERS AND EM- SUBIECTS MENTALLY cSOUND·IN the Intent to repeal or alter la manltut, althougoh the terms qt the general act are • broad enou;:h to .Include the ea.see. embraced In the apeclal law, x x x It la a canon ot statutory conatru"etion that a. later atatul•1 1•neral in Its hrms Gnd PLOYEES! LOCA1'10N 01'" M.INUJ..r OTff£R RESPECTS , ..... ."fhere are ·maCLAIMS -1-t would really be unfair. ny cues of perscn.s menta!ly derangeven agaiDot public pobcy to allow ed who al.hough they ho.ve beeu a person employed to .sta~e 81'.d lo- .ha'V'ing .obseuicns ,and delusioul for cate mining c1aiJns for his employer .many yean reguding certain subjects 10 make locations on his own ac- and situation:. .still are mentally count and for his own benefit tho sound in other JGpects. There are not expre1111y repealing a. prior 'Pllcial •tatute,. wlll ordlnarlly not atfeQt the epeelal provision• of such earlier statute. (St~mhoat Company va. Collector. 18 W-.11. [U.!!S.J, 471: Cu• County y9, GUlett. 100 U.S. &8&;. Minnesota. VL Hl~cheoclr:, 185 U.S. 318, ~96.) · (4) Sutherland, Statutoey Construction 3rd Ed. Vol. 1 p. 486. (i) Philippine Railway Co, v.· Colleet.0r of Int. Rev. G.R. No. L-3819, Mai-ch, 10&2. 648 done outside hour. of work Or em- others wh.o tbaugh insane; have their ploylltenl, because there is "'1. obvious lucid intervals when in all 'respect• incompr/.ibjlity and conflict of in-. they •re P"'fectly same and mentally terests benreen those Of the employer .soUnd.. . · ·· on one hand and those of the em- 5_. m • MINING· EMPLOYERS AND ployer On the other. unleu there ii a .EMPLOYEES·. El.iPLOYEf COULD deu and exurea agreemt.nt to the BE COMPELLED TO TRANSFER contrary. :~~~h ~~I~~ :i. P:':fL~~~;;; (6) liadrlga.I v. Rafferty, 38 Phil. 4U, Government v. Blnalonan, 82 PJlU.. 634 .. THE LAWYERS JOURNAL the. deed of sale of mining_. claims, the yencfor w:as still .~entaUy · incaDecember a;r., 1e5ao pacitated. -becau'8e of his moral a!'d legal obligation to transfer the mming claims. to his employers. he could through his ·suardian have been co~· pelled by the cowt to execute said transfer. or ·after the tenninati11r. _of his guardianshj~ obliged personally to execute said transfer to h~ employers. He acted as a trust~e for ~io~m,:y:s in~~ie~!s!:~ :'~:: tal incapacity to violate his trust. 6 ·coNTRAC.TS· VALIDITY OF ONE.. PESO CONSIDERATION.- Where in the two deeds of sale of mining clailll'S each mentions Pl.00 and other vafuable consideration, the . receipt whereof was acknowledged, to be the consideration, the consideration is sufficient, according to "fhe provisipn of law, (Art .. I 277 of the Civil Code). Besides, con~ideration in the contract will b~ presumed and it is licit, unless the debtor proves the contrary. i. MINING: EMPLQYERS AND EM PLOYERS, CONSIDERATION- FOR CONVEYANCE OF MINING CLAIMS NOT NECESSARY_-The mining daims liaving been located for the benefit of the employer by an ei;nployee in his capacity as s,Pch, paid for that purpose, no 1COdsideration ~or the CC?nveyances of the mining claims. by the . employee to the employee was neCessary. The employee was merely fulfilling an obligation and complying with a trust. T aiada, Pelaez 6' T eehankee for appdlant. Claro M. Recto for appellee. DECISION MONTEMAYOR. J.: For purposes of this decision, the following fact's may be said to be agreed upon by the parties ~ to be without dis·pute. Because the plaintiff-Paulino M. Dumaguin would appear to be the cep.tral figure in this case, we shall begin by making reference to this background and ·his status at the time he entered into the transaCtions and executed the deeds of wnveyance whose legality is now the subject of the p~t petition. . Paulino M. Dumaguin was a teacher in the -public elementary schools for a year and a hall, and from 1916 to 1918 was the Manager of the Head Waters Mining Company in B.aguio. As Manager of 1aid mining company Paulino acquired some knowledge of mining. On .l"r btlore May 21, 19.29, he was a sup!'f· ~~~~~nd::_n (~!ve2 ~uJ9i9)0~h~::; admitted to th,~ Insular Psychopathic Hospital at ~an Felipe Neri (now the ·December 31, 1952 National Psychopathic Hospital), Mandaluyong, · Rizal, ~aid to- ~ sufftring !com "paranecia". On October 15, 1929, Dr. Toribio Joson, assistant alienist of said Hospital, submitted the fol.lowing memorandum: MEMORANDUM TO: The Alienist In Charge Insula1• Psychopathic Hospital, So.n Felipe Neri, Rlzal. SUBJECT: Paulino M. DumagulnMale, married, 33 years old, Ex-Supervising Llnem~n of the BurClau of Posts, admitted to the hospital at 11:25 a.m. on May 21, 1929. 1. The pailent ~s well behaved, oriented In all sphere, coherent In his speech and has no more Illusion or hallucinations; but Is having a delusion that one of the P.atients in the hospital is ta·ylng to chloroform him. He consequently keeps away from the said patient. 2. He :Is a~o not sure that his former officemates- who~. he erroneously believed ch101•oformed him before, would not chloroform him anymore whC'n he goes home. 3. This type of insanity which Paulino M. Dumaguln ls suffering from is therefore that of Paranecia, which rune a very chronic course of u11ually a life time, but which may show improvement ae the patient grows older". (See Exhibits 42, folio 195; Italic ours) After Paulino"s discharge from the hos· pital on or about November 11. ,1929, in. order to enable his wife to withdraw his retirement gratuity from the government, on September I 6, I 930, she filed guar~ianship proceed~ngs in the Court o( Fint Instance of Camarines Sur. Said court relvirig Presumably- on the report of Dr. Joson above quoted granted the petition and a!)point~d her .as Paulim;.'s guarcfian. On F ebru_arv 2, 1931, Paulino and his guardiaii in a ioint motion before. the Court of Camarines Sur among others alleged that - "4. Que en la actualldad, el cltado Paulino M. Dumaguin, ya esta re-establecldo, por lo que se le ha permltldo dejar el l{ospital y ahora vive con su fami,lla en esta localtdad, que es su resldencla. ''t>. Que el menclonado PauUno M. Dumaguin ha reclbldo un chequn det Goblerno por la cantidad de 'P.412.36, como parte de su pension. "8. Que los compareclentes ner·~sltan el lmporte el importe de die.ho cheque para atender a sus subslstencJa, pucs se hallan en la actualldad !altos de todo necesarlo." a;.d asked that they be authorized to cash said check and use its proceeds for their support: "POR TANTO, .supllcan al Juzgado THE LAWYERS JOURNAL Philippine Decl•iOn• que se les poner de su produc~o para su manutenclon." fn 1934, the guardiaris~ip proCeedings were closed. In and before the year 1930, defend~ ants A. I. Reynolds and E. J. Harrisc.n 'SOid and transferred to the same demineral claims in the ltogon District, subp1ovince of Benguet, Mountain Province, kr.own as the "ANACONDA GROUP". They employed' F ructuoso Dumaguin. brotQ.er of plaintiff Paulino, in their work as prO'spectors. At the beginning of 1931, Fructuoso Dumaguin was thus working for said C:efendants Reynolds and Harrison relocating some of their mining claims prev;.ously located and locating new enes, for which work he wa~ paid P5.00 a day. About the same time his brother Paulino M. Dumaguin, plaintiff herein, leaving his home in Ca.marines Sur went up to Baguio in search of work. To help bm, F ructuoso got him employed by the defendants and the two brothers worked together in the mining business for the defendanni. The theory of the plaintitf .is _that he was employed only to re-locate defendants' mining claims in the ANACONDA GROUP while the defense claim's that like his brother Fructuoso, Paulino was employed not only to re-locate mining claims within the Anaconda Gtoup but also to stake and locate new mining claims for them. For said work Paulino was also paid by the day by defend~ ants. During the month's of May, June and July of tha! year 1931 ihe two brothers F ructuoso and Paulino staked and local· ed ten mining claims or fractions thereof named Victoria, Greta, Triangle, Lolita, Frank, Paul, Leo, Loreto, Arthur and G. Ubalde, all said claims or frac· tions being later registered in thC name of Paulino M. Dumaguin as locato~ in the office of the Mining Recorder. By virtue of an instrument (Exh. '"A") entitled . .. Deed of l)ansfer" dated September 10, 1931, Paulino M. Dumaguin conveyed and tramferred to defendants A· I. Reynolds and E. J. Harrison nine of the ten mineral claims just mentioned, and in another instrument (Exh. '"B") on the same date September IO. 1931, Paulino transferred and conveyed to defendant Reynolds the remaining claim Victoria. Later, Reynolds as vendee of the min· icg claim Victoria by virtue of a deed of . sale (Exh. "C") datea November 2, 193 I sold and tran'Sferred said daim to the defendant Big Wedge Mining Co. In another deed of sale (Exh. "D") dated June 2, 1933, Reynolds and Harrison sold and transferred to the !'lame dew ~ .......... lendant Bis W e<le• Mining Co. t!ie claims Frank, Paul, l.eQ\ L.eoeto and Arthur. In still another deed of lBI• (E.zh. "J"), Reynolds and Harn.on 'sold and transferred to the same Big Wedge .lllinio& Co. the Greta, Lolita aqd Trianak f,aetiona or miaefa.l claims. Al a ,...,k, all the ten minoral claims or froctions tranaferred by Paulino to Reynolds u.d Harrmon, with the excoptio~ of the elf.Un. G. Ubalde were in turn sold and tronsferred tq the Bill Wedge Mining Co.· What w .. done with this 1 .. 1 claim o: fraction G. Ubalde. does not appear on the record, but it must still remain in lhe narue of Reynolds and fiarrison. Roioi;lf Dumaguin. initiated this c.ase ia. tho Court of Fitat lµ&lance of Baguio ~ liliDI his '!Fi . I complaint cin November>~ l<A34, f;: amaiojing.it on J~lf 26, 1939 and finally r&:amending it J>~ J.Ao 4. 1940. Under. his .re-amended "'"nPWm ,.hjeh -tail\I thJee causes ol action. ho olleges that when he executed the do<lo!s of. tr•• (qdis. A and B) .he was D!lder 11uardiaoship Biid did not ,PQ'8W ~-·mental c;apacity \o cOIUract and 10 a'sked the court that the said t"1o deeds. be doclared null and void. He alsO alleged that those two deeds being void, ROfnold1 and Ha,rri1on had no till• tO ~ansmit to the Big W~e Mini~guC~ by virtQe of the deeds of 1ale, Exhs. C a11d "D" (plaintiff evidently ov<rlookod th~ deed. Eich. "}''), and thoW<>re thooe ""° deed1 of sale (Exhs. C and D) ... oukl abo be declared null and :void. and that he (Paulino} should be declared the owner of ~· ten minin« claims or fraction.sin question. Finally, i"t~ claim~ ed tllAI thi& B.i~ Wedge Mining Co, had illog~ talon P"'80SROD of the too mininll cJaimo end j>rOfitably,. WO<kod 01 ~·tod tho.. ••d ·..,, hc wed th8' saia company ~e ~. tQROder an a.ccouJ)t-ina gf itO oii.OrOliqno and. the Jirofils made tterelrom, an~ tl>At the cWendants should bi> Ordered joint!~ and oeverally io. pay t<> the J?lainlil,f 1UC:h i?Iofilll. as ..,, _have been derived by tho Bi• Wedaell'lining Co ............. bM ~s ace-ts. ~dant& Reynolds and· H.rrilOD ~.d 1~3t =r'A~nii2~19°35.J;~ lively, both 's!!.oerlleded by their amended ..,.wen on· J'anuarv 22; 1936. Defend.ant B~ Wedge Minin~ O>. filed· its answer on /anua,cy ·30, 19.35. which was amended on January 18, t9:36 .nd la'"' re-amended• on February 5, 1940. Reynolds and Harrison daimed' in their •-• that pl.ointill PauliPo a"d his b."<>lher F ructu- had been ••Pl'~:.IJ! emc pior;~- by thern to lo~te an~· .-tll!ke n;1i~ n..al claims. and ""'t said. two l,iothers stal<ed and located. the ten min.,a1 claims in queo,tion f,,, them (dofQdants), and .::\~in:t~:ia~ddth!t~::PdRe~~=~ that soid.millO'al .W.....> lO<Atild~d evon1u41ly be trailtfom:d to them. In lit t.,n d,elendant Bis Wedge Minin& Co. lolluwed :the theory of Keynolds and Hanison about Paulino ha¥ing ~n employed by them and having •~de the )c.,.cation of the mineral clai• in question for their employers, said that the company was not aware of the allege.f rr.ental capacity of plaintiff at the time that he executed 'the deedo of tran&ler in favor of Reynolds and Harris?!., and that even if p~antiff was undef guardian~ ship at the time, vet he confirmed and rocified the dee,ds of transfer by his acts and letters after his release frore. guar~ dianship, and that said compony bought the said mineral claims in good f~ith an~ for valuable a:>nsidetation from the reg.;stered owners. Hearing was held· on July 31, 1940. The evidence sub:mitted was mainly do-cumentary. Only ~ witn$1es -k the witness stand. Atty. Alberto Ja111ir was -ted bv the Big Wed>e Mining Co. to identify a copy of a d.tcision n.ndered by the Securities and E:J""hange CommL'lion. Defendant Refnoldo · testified for ·the defeltse. Fqr the plaintiff, c.r.ly Fructuoso Dumaguin testififc' for his brother. Whv Paulino, the ola;ntiff, did not take the witness stand, if not :o sl.pport the allepa\ions of his compl•int. &l lea§t to refute the evidence for the defense wticulad. that which tendod to "show that he wu omDloyed by defendanto Reynolcl. and He.rri- to stake and lcc;aJe .Uneral claims. {OI: thotll "ith \he w•derstandiu1 th8' ho would !~tor tunsfet said claim• to his employers. ii not known to this C:Ourt, Aftor trial, }qdoe Jose R,, C11J'l0.. hefore who,. !he hoari1111 was hold. ronder.d judgment on JanW1.•Y 1,6, 1941, dinllissing the OOIDP!aint. Paulino DumaRuin appealed frqm that decision. His Record on Aill"'al wauppIOVed on Aoril 16, 1.941 Appel• !ant's brief was filed on November 3, 1941 and the brief for the Big W edle ~\!;0·3rast~i~ it r:th:iisk~!~ whether defendants Reynolds and· lt>rrison ever filed a brief. The fact is that the record' of the case was lost or de .. :~f~h! = ~e ;:eain~nd1the coi::; were 1alvaged. As to the oral and de>cumentary evidence which .was lost. QDly those porti9ns· of the transcript .::iond de>cumen(s reproduced· and' appearing in "the briefs are now available. But •he r.arties have agreed' to the correctness of these portions so quoted in the briefs. After the reconstitution. of the case, the Court of A~oeals wliieh kad taken charge · of the appeal found •hat the amount involved was bejond: its juris~ diction. and so. Ulltified· ·the caie to u:e. N.ithor ReJMl<>Ws . ..,. Hanisoa lw. appoored. bol<n the. ColUl of Appeals or b.itf<ne. this Court. Appelllllll's ottorney n;preaonte,d that .Harrison'• COU111tl could not "PP•ar in the aonoal duo to lack of authoritr not h-viuP beard hom his climt .;iice 1...iborlltioo .,..d LOin1 of the belief that his c1ieiit is dead. 1\ere was .;.., ;pf.,mation to tho elloct that ~ <lanb Reynalds had been kilW;I .during tbe eOII~ part of tho ~'!!,ion. .by the Ja-o. S.., oaly \he Bi& Wecire Min;..,_ Co.. is opp<!lil)a the pr,eseni oppeal. The decisive and pnotal qualion here ;. whether plaintiff l"aalino M. Dumaguin and his brGlher F ructuaoo uling on their """"'111t staked and locat<.'tl theoe mining cl8inis or hac:tioBs in dispute for Paulino. or whether they acting as. em~lss>eos and •-ts of defendant& ReyaoQs aad Harrmon, &laked an'!! lecate!l said ci.,;.,. for' and in behalf of their omp)OJOIL We agree with the trial co.urt tht tho iueat p>eponderanee of •vidence is to the effect that these claitn< ....., Jo.. col<d Jor R.,.nql.do. and Harrisoa I,,. Poulino and Fr•- as ompl.,..., and tlW. the latter ...,. purpdle)y ~JDployed ~~~dtoler~ .:::!i !.. "l:.:t.'"ci aaid claims and tho ,..m.atiau. of the cc -diag dodarolions of location -. .,.id hv Royuids. and Ha· riton. It u. 'tmU! that in one pBlt of hi's toltilaony, FA1Ct"""' cl.timed lhat. h .. and bis ~ t1ttr _.. OJ11ployed . ....,.. to· re-locate th miniaa claims of deloadant&. within the Anaconda Croup but i- OD, ·he adm~ted in his testimony and also in. his al'lida.vit (Exh_ "I") wllieh was prepared before th~ p~edinp were iiiitif,ted in COUii thal ho and h.l'a. brother Paulino working together were paid by th• defendant& Roxnolds. and Harrison to lo.cate new mining daims outside the Ana-conda Group; that as a matter of f!ld, Paulino engaged._;., this. work at the beaiuniog.. btu boc- be (Fn1-) lcuDAI that P.,.Jm. physioal)y """' QQt eq.ual II> tho ,...,.., -k of dimbin11 up ond down -illll to f\lako &DI! locate claims, ho ,... nlneecl ia clwge of th• payroll "of tbe defendants and detailed to do pwork which, tt LI .,. .. wiw1. wcluoled "'• registntion of .... declarations, Qf location of the- mining_ claims. io the office of the Mining RoCO<der, i~ his JJ•me. F ructuosQ also admitted that there was an understanding ·Defore and· ~ding the staking and lccah'"on. of said mining claim• that they would eventually be tran&ferred to. their real owner,, Reynold. and Harrison. Iii. C011SOD.ance with· this cerrect tbeory lhat these minina claims. were located. for cefenJlan11s Reynolds aDlll Hacison. as counsel for appellee well observ.s, Ezbi1'.its A and B are both entitled "Deed· of Tran.ten'".. This. con1eri the idea tli&t ~uldlci· .... 'all!relY tralllfening tO 'th\i.· rftl··- ~y· wbicli le!:]mlcally' and in name -.. ~end ·ai lrilo olvn.-, Qdr.,;;.,;,e; ii lie i:dllY owned thae min-· ing daim1, the two ·deeds (Ediibit.. :A . and 8) '19<1u!d have been IDOl'e a"'"'" i priaiely entitled "Doed of Sale" and the ' body of· iaid i.-meab ohould have st .. t<d that he ..... oellin• the mining daims. , On the other 'hand, we ·have' the in1tru-. meDb (Exhibib c and 0) whetein·Re·im.lds· and ·Ham.on sold oaid mining · daims cw lractibll1- t.o the Big Wedi!"· Mining Ca. aDd the decuments Wf're eaeh · eillitled "Doed Of .Sale". It would really be unfair, even againot '. public policy to· allow a - employed . ID 'ltake and locate mining dairi>o fer bis · emp. t.o mu.e locatiom OD· his ~ . .....,nt and fer bil own benefit though . doH; aullide houn· of wcwk or emp~ menti became there is an obvious incopt .. · pab'bility. and c:oaflict of in-t.a between" those of the employer .. on the .one hand and. those of the l!J!l_ployee °" the olher. uillaa there Is a dear and express agreeaient. to the coii1rarv. Judge Carlos ib bi• well-considered decision c0rrei:tly 1talu tlie. fiduciary ·relation between Paulino· aild his wp)Dyen Reynolds ·and Harri~ aiid the iOUnd and correct :ule and P.Uhlic policy on. this matter. . .. , .• '-rhe lld.ucla'l'Y ;reta.uon betwMll .the pJatnttff and tHe defendant• A. L . Rey-. • no1411 and : IL J; Hil.rrl11on la verJ' clear from the matin(Se. ll'ructuomo 111. Dumapin has cleil.rlJ' atated that h1a brother, • Paulino· JI'. Dumaguln, was worldn&' under him while he wa.a loea.tlng tht eta.Ima In q.ueatlon· for A. L Reyuolda a.nd. E. J. Harrllton.- Tbere aan be no 4oubi thll.t th .... ela:lma 1n qunUOD. were a:mon11 thOIB& which theae 4erenaan.ts wanted •taked: becau•e, aocorcllnc to Jl'ructumio 11. Dutnanculn htmaelf, they all adJbtn the· Anaocmda Group, which ground he 'WUI - 9p8ctftcally Instructed. :to •~e for the antd defend&ata. The pla.hltltt h_ereln, theretor.e-. lea.med. of tbs mstence, ffP8· olDltir.ot .the fractional mineral. claimll,_ becauae he was with the party who eta.k~ the rut or the clalm• In that local .. tty. To' permit the plaintiff herein to aa8'rt: lils' claim of· ownenhlp over tlioe· cla.tma tn· question wouia be tantil.inount to allowing him.' to Violate and lilfrlnce an the a0und atld• mge=-old rules· whtch &'OV&I"!' pr:J~pii.t 8:nd agenL There cim' tie mr doubt ttm.t · thla relation 'e:dilted. bec!auae Fructuoao M. Dumaguln, the eole w.l~n~ for the plalntltt, etated. f&• tegorlcally In hla affidavit Ezhlblt "]" th,at all the claim~ •\lbJect of thla lltlga:.. tlon, ezcept the C. "Uba.lda iiilneial cla.lm, . had been located and staked bv hlrit. fO'I/ ;4-; l .. Ke)l'nolBs an,d. B. 1. J!lll'rla~, tbouch t.he, ~· ~~ ra~~d l;n ~J;le n&1;ne of his brother Paultno. It la· qui~ evl.~~t~ December 31, .1962 _ U1eret'Ore_. ~.~n: ..,. ~ :irat}erera .·Wfl'.9: .. made·iOlf··Blll:~lbJta ;~:A"·~ "B''. di~· not. - .U.t, i thefe, tw,01 ... ren4anu wwald aWl be1 eqUtled to aa.asalgnmtnt of' the 881d , olalnt.1, Th• nldac& oi the ftduclari M- i lat.IOll)betwe~ tbe plalntUf and .. the ite- - fendants A •. J •. ftefDO)da·~d.B..J, Har-·. rll!on waa given by nqne qther th.'ln Fruc- r tuocio M. Duma.pin. the brother lhe onlf wltnea• o.r the. P.l~~rr In tbla. t"ase., PllillP.pine: Declalana; :·that·' llkewla"- lftlonp ·to- ·the ·pl"lnolJJl'I, not ·Only .. ·bectauaer. the , principal· bu ,to aeahm• the l'NPonalbWtY: oi: the <transac- tlon,· but· also becaus• .the agent: cannot be. permit.Ced to derive adva,.taga. trqm hie own- default. 'It la onl7 by, rigid e4her:ence . to tb1a .. rule that .aJJ: temptation· can be· remov'~ from one. a.cttnc In a, fiduciary ra~ltY. to abuse. hla· tr1111t 011 ·IUHt)l hi• .ow-n adva,ni.ce, In the AoalJ:IQn which Ii afto,da him~:" "ADJ' Ut or IJQ agent, the obJ8Ct Or tendency of which ta to· commit a rrai.iJ or,.b.reacb of th• apney, should be dhoouraged. Jn the 11.rat place, auch aete In view· of. our cond. and ~ are cOruJemnei( by public! policy. They ~-the.e mining· daima were~•t.abd·and arf.! &gal~ the morale:· tiaerefore, they · located for I.he benefit of defeadanta should neve.r be tolerate"-· Al;I agent or Reynolds and .Harrison, the other poinrs truatee, or any~• wh!> acte In. !J..fldu· and queationa involved in the appeal·exclar:r caP'l,clt}', ehi:nald never be P.~mlt- J..aUll:ively,·in detail and with· a:wealtb of :! : C:~~:1.1: ~:~4!:t:1;:' o~°:::~ authcritiao discussed by counsel ~for both prlncf-1, or emplo1er. :lili~~4=.:i ·:t~~!,f m:i! ''It bu been the Prfietlce o~ mlhe.·e ·::;~cfi':!::°:.i~':~:::;·::=u:: to emploY othere to ata.ke ml~lns clafm!I much to streDR,thea· om decision· but 118 .. ~:.~~:;r:".!v!• .:.:~l' ~::.~!,; t:~ t1ter·.10 render more dear our· views. Appellant· contends thar the deeds of ~=•n:h:Z'~~.! at11C:'::e10:~:· ;:;; _ bander (Em.· A. and .Q) shouldtbe anteave· fractional mineral' ctalma In b'!t-' :::: !;>11.!:~ ~=r =~!be ween the Claims W1thout reporting the: dei' ardiao eXlatence of tbeae fractions to Ma prini:-:C,:t~ntf~hat·· ..t"~~ ::en~ .. ~ ·· ::·. 1~~~~ ~e:;.~~:::a:!n. c!:!:: , cution of a will by . a testator who wlls fide mlnm ................ up by th• .... der , ... dianibio fer meotal· deranpVel'l' m~ whom they· have emP1GYH to ment;. the ·presumption of ·insanity: is· odly atake tflelr mining clalmti. If the mining juris lantu~, subiect to rebuttal. neverlnduatry 8hall 'be fu-0~ and th'e ex·· thel•, mental ia'capacity as regards c:ODplol~tloD of the natural reSP'urceA of 'thl:!i. tracta particularly those tran~ng ptocountry encoura.Pd, aucli practice ehoulll perty, under. similar circumitaricei. ·jn.. n~ be' toler4ted.· The wi-ong or the da,. volves 8 conclusive presumptiDn: wbii:h 11'18.le that can be done la unlimited. It' ::~beth~~m:r·~~· agentl!I or employeea Ol' laborera are per- adduced ·i,y··both-coCuiJ,ef On· tbii'J;oiot ::~.~~;:::=!:; :::;1~ce;h~:·::: ra1u1·we ·ate f?Clinecl to qree'wiih as.mm~ J,h,yer *110 Pve them apec1nc 1netruc- for a~peilde'that· the better lule'·ii· that' tlona to stake the·entlre grourid In a·COo"-· e,l"eB in the Gecution'of conb'acb, in the: 'absence of .• st•!Ute t.o th• contrary, the !:~1u;;:!'~::: ei:;:i 7!::'1~:a1~/: Presuaiption Of iasanitt ~d mental inea~ holdup. For the reason, 11echem •on ~~· ii onty Prima . facie · and may 'be: ,Acency, sec. 1i24, aatd t~ following: lebUtted ·by 6Yidence: and tluit a penoa:· under guardianship f~· insaiOty may itiJI= :. 'The we11-liett1ea ··and· &atutarJ" prln-. ~te,r. in~:• ~d mntrac;t .ao«;l even conclpJ'e that peraon who Uhdertakea to act -vey prQpeily, ,pfOYided it is .proven that. toi ·another shall not, be In .the eame, at the time of ~teri,Dfj jnto aa,id contract,~ .matter, act ror htinaalf, reeult alao la he was not insa~e or that hit me.11.tal ... th~ other rule, that· all profttil made and• feet .if: mentallv deran~ did. not ipter-. lldvantace 1&1ned 'by the acent in. the fere with· er a.ff~ hD capacity to appr.-. e:ncutlon of the agency belong to th&· .ci~,.the_melUliDg a,nd, li111if1C&Dce ,of~· Prlncl~. ·And If matters not wheth<tt tra~ .~tere~ inte by .him. such profit Ol' adYantace be the: result or· the perforri:iiLn'ce or or the vJolatlon . of the daty of the agent If ft ·be the rfult .Or the aleiacy. If ·hie duty be atrk:Uy performed, ih• •/, .. ,, '•' ·' . r~u~tl~ profit ~ea ~ th~ pi1nelpal' P .. t~e. ~4!£1tl'1'8ite ~,_~~.11-~n~~ of ~he re~ ·la,~n;,. U profit a~u1111 trom h1a vlolatlQn ·9f ~uty·"';b»e u:~cutl118' ~· airen.cr .. . ''l'H'.& i.AWYERS.-.JO.t1BNAL . "Sec. SI. G~~er'ally~ - or Coizl'Be, not· every eubatandani inentallty or even· every me~tal 1nrirm1tY. baa' the fltteCt Or' nnderlns 'the afflicted· peraoil dleablell for lhe Purpoa8" or: enter1n8' lntO Oon_, !'l::~:r:e pi=~~~-:=::~·e:;, ~ .~ coUrta fbf' ttie p.h,,oae of a9termintng whether. 'an ~~nrm1tj; .'op.w.i.t!"' to render 661 a person lnca.~e of• blnd'lns him.self lino ·was- diRha\lgfid· from: dur !iaipitlal absolutelJ'· ·bJ' contrnt. ta .whetbeii: ·his presumably beeause..Jiis-ccmditionuhad·immtn\I haa been so affected as: to render Provedi and·on Febtuuy1 Z1 ·1931, Pau:!: •::~e':~.::u;.~:~:s ::: •;, ~n'!,h~=::n::s=~~..:: more exactly, whether hill mental powers was already re-established (ya uta rehave become 80 far affected •• to make establicido). Several -monl:hs later tie him unable to undel'fltand the Cha.1'8.Cter went to Baguio IOGking for work. It is of the tranaaetton In qu..U.on. :z: x-:z: Some tO be presumed that he was ·then no lonauthorltlea take the view that a guarantor ger insane. It i's eq_ually to be presumed may be competent to e:.:eeu.te a deed not- tJ;.at his broth• Fructuoso ~uld not wlthstandlns hie dlaablllty to tranaact have recommended him for emplOymeut bU.slness Pllfr&lly, provided he under- by defendants Reynolds and HarrisOn stands the nature of what he Is doing and actually let him work for them, at and reoollecta the property.ot.whleb he la tlae beginning , dimbing up and dC?WD doing ·and·· recollects •the· Pl'!)Pert'J'· of ,n.ouDtains to stake and l~ claims for whtcb ·he is making a dlspoalUo.1 &nd to hii employers: and if Paulino was then whom he 1a ConvQ"lll&'- IL. other author- : Dane. it was not likely that Reynolds 1tln, however, take the poeltlon ·that. to· ai.id Harrison. would employ him lo aastaln'. a deed. the crantor must have. do the work of staking and locating the abluty ·to ·transact ordtnary 1 ualneea. claims to aay · nothiDR' of taking charge .In any·event, If It appear• that lhe gran- of the payroll of their emoloyer. and re:.::; :.a:::.-:·!=: :~~c;::::.~ r::o:~ t:.~:i:r !::«!rm!: ment, when ·,made. aeeuted, and . dell- There is ev.ery reason to beU,eve as we do vered, would be to. divest him of tlUe to and hold that .at least from about the the land ~ed by. the lnatrumentJ· It la beginning ~ the year 1931 when ·Pau. ~=- b::::.· u=· :~~: .:,~ p7;." '.-:::.~!::; :io~e::d w.:.~~ a~~e:t:t ~ '!z x z Even· partial Insanity wlll ·not cuted Edu. A and B. he had the ~en render a. contract.voldable unleas lt·extsta, tal capacity to. transact ordinary bteiln .connection· wlih .or 18 referabi.& to the 11eu and wu mentally capable oF validly subject matter of the contract. Blm~lar- entering in~ c;on.b'act even conveyi~~ ly, a. t1elqalon If .unconnected with. the• pioperty to another. But even assuming tl'al)eaatlon tn .qu~tlon, la not .uttlclent that at the time of executing E;.xhibits A to-. a.(fect the. :validity ·of a contract con- . and B. Paulino were "Still mentally in.umma.ted by the peraon thus affected. c:apacitated, .1till, became of his moral Mqnoma,nla or -a mental ·fl::l:!Ltl,on: or .. .a.b· and legal obligation . to trander said ,normality respecting a matter dlscOiD8'ct·. ciaims to his employers, he could through eO: W:I~ the a.ct of conveying. propei·ty hi• guardian have been compelled by the 1 will. not attect. the valldlty o( the con- court to execute iaid transfer, or afier .. veyance. ~ .x ~· (Ibid., .. p.. 701). the termination. of his guardianship oblir,Tliire me. iiiaa,y cues of penon1 men.t~lbt .clorllllged who although' ,they bave liee1i"haYinl oliieaions and dolusiciiis for. .nlany ~i'i .regarding certain 1ubjects. . ond lil\iatio01, •. 11ill· are. mentally .10Unol iR other respects. There ue othezs who. though .~e; .ha:ve .\heir lucid intervals >yhen in all ~pOcts theY are R<r!ect!Y ...... and ~t~lly sou.a., In the ·cue .of ·Paulino M. Dumaaliin;· . accorclin .. io the doctor 'who . nboerved 'and .examined him, and who made his report on October IS, 1929, and that was more than tWo years "before Exhibits A and ·B ·were· aec:uted, he (Paulino) while 'in 'the hoip~al wu "well behaved, oriented in · all 'splieree. coherent in his speech and has no more illu.ion or hall_u~tions; but is havinR' a delu:iic;m that . one M the patients .in the hospital is trv~ · ir19 .to .chlorOforin him. He 'cqnsequently ~ away from said patient;•• and that ht. was "'not sure that his former officenia~U wliom he erroneoltsly believed chloioformed. him before woold oot chi•' · Jt1form him anymore when hei KO~ home.•• This waS ·in l929 .. The same year Pau611ll ed e_ersonally to execute said transfer .to his employen. He acted as a trustee for ... employen and the .law will not allow liim to invoke imanity or .mental incapacity to violate his trust •. In relation wi~ this alleged incaPacity ot Paulino, it i$ interestin1 to note that when he and· his lawyers filed his tint complaint in ·1934, t~ ji, about three Yf:&rs after executing t:.xhs. A and .B. they ~aid n01hin• about beinR mentally r. capacitated in 1931. Thev did not ask .for the annulment of the deeds of transfer (Exhibits A and R) on the ..,....d of lack of mental capacity. They assumed and took it for ara~~ed and led o•ben to believe that said deed. of transft-r were valid. They only asked for the payment. of damqes .. It w.. not until five years later in the year 1939 when th•y filed the lint amended complaint that they raioed his questi!>D of mental inc:pacity. It~ him and his la~ers almost five years to discover_ .~cl claim that he (Paul~no) wa1 qot meo~ally capable to enter. into a contract" When. he executed exhibilll A and · B. In vie,. of ·'THE' LAWYERS. JOURNAL :!!.~r:.,~z ili!~':h!~!::=:: employ.d by.ReynOJds,and Harrioool,to, Jocate.and.register .mining claims.for them. 1 · am:La~. the time that. he executed Exhi- , bits A and B .Del for several yean thereafter <When .he cobtinued in their.employ,. neither FiuctU010,. Paulino's brother ·nori def.endanlll. Reynolds and Harrison had any reason to suspect, much less. to be.-~ lieve that Paulino wu other than a saae. . respomibl<, and mentallv capable indi- . vidual, able to take ·cate not only. of .him~ ,.(f and his .inlerest but also of .the .in- . terests of his emRioyen. ~either ·did the . other employ ... of Revnolds and Harrif<!n to whom :PaUlino, ~id wq:e. ·on . .,._y. daya; .he beinR in dJanio; of the payroll, · ar.c:I the MininR Rec:ordeo-,before · whom he uecuted proper and valicl raffidavi,. . r:f loc&tions. for DUJ'pDllel ·of reaistrati&n. note any mental incapacity on the ppt , of Paulino. All. this goes to reinforce the· finding, that ·Paulino was mentally sane: and capable in 1931. Counsel !Or appe]lani oat ·conten.ds !hat Exhibits "A" and ."B" 'should be dodareci void for. lack of .COJ>aideration Said two deeds each mentions Pl .00 and other . valuable consideration, th~ receiot whereof w~ acknowledged, to· be the c:omideratioli. We believe that that consideration is sufficient, this aside from the· provision of law (Article 1277) of. the Civil Code), that conside.alion in a COi•• tract will ~e pr.,..med and . that ·it is licit, unless the debtor piove the contr .. - ry which Paulino in this cue failed .to 'e•tablish. Furthermore, acc:ordina to Reynolds, in conlideration.:of .the trans-. fer of .these minina dailqa,, he had .later ('aid Paulino b~ween .1'3,000.00 .. and ·l'S,000.00. This w ... not refuted by Paulino. Moreover. under the ·:view we take .of the ·minin« claims havinw. beeD '·located for the benefit of· defendants Reynolds and Harrison,. by Paulino·. in his capacity as their employee,· paid fpr ihat !JIU'POSI', no consideration· for. the conveyani;es was even ne~. He was r'orely fulfillina an obliaation ·and' c:om'plyinR w,ith a fr.Ult. In conclusion we find and hOld that Exhibits "A" and ."B" were valid. c:onvezancea executed bv .one who wa1 .ment•lly capable. Conseqµently, Reynaids and Harrison had .a. valid title to conyey u they .did c:onve.v to defendant Bia 'W edae Minin Co. in Exhibit> "C", • D", and-"J"~ · · . In view of the foreRoini, finding no l't'venible error in the ~ecilion appealed from the s&me ip herel;>y affirmed, with .~t~ J>rz;m. C./., &ngzori, Padillii, Ju¥•· :=d;,inre!D.- aird Labfatlor, JI., Decemb"' 31, 1952.'. M-.. Justic:eo Feria, TuUoll, Reyes end ,Pablo did not take part. · VII Peopl< of the Phi&,.,...,,_ plaintiff· appeUee, va. Nutorio 1Wnalanfe, defendant-appellant, G.R. L-3512, September 26, 1952, Padilla, /. 1. MURDER; KIDNAPPING; INTEN· "TION TO KIDNAP THE VICTIM; PREsENCE OF QUALIFYING CIR· CUMSTANCE-While T accompanied by two others was on the w,y to her hoaie in the barrio of Guma· toaa, mUnicipality of Dagami, proviiice of Leyte coming from.her farm, ohe· met a IJOUP of more than ten men all armed with rillet, '°""' of diem with heard. reaching the breaS!. R, one of the bearded men, approached, took hold of and draned "r toWard the .si~io of SewahOn. Hardly had the companion> of T walkod one kilometer when they heard gun reporb. The following day T was found dead in Sawahon with two gunshot ivounds, th< points of entry beili• at the· back and of exit at the left breast and shoulder. R was charaed with the complex crime of kicfnapping with murder. Held: There is no 1ufficient eYidence of intention to kidnap because &om the moment T wa'll held and dragg_ed to the time-when the gun rep;rtl were heard nothin2 ·was done or said by R or his confederates to ohow or indicate that the captors intended tq deprive her of her liberty for llOIDe· time and for some - and thereafter se~ her free or kill he•. The interVal was 'Short as to negative the idea implied in kidnapping. Her shon detention and illtreatment are included or lonn part of the perpetration of the crime of murder. It is murder becauae of the con..:urrence of at le_aat one qualifying circumotance, either of. treachery, or of abuse of .superior strength, or -with the aid of llJ"!lled men, the first shown by the entry of the shot:a at the ba4 and the •econd and the third by the number of the armed cap.,,., the appellant and his companion&. some or one of whom killed T. -,. EVIDENCE; MARAUDERS; DISSIDENTS; BANDITS· (GROWING OF BEARD_-The fact that the appellant grew bel.rd reaching his breast· as some of his companioc.s did j's a poaitive and dear proof that lae was a member of the of maca\Jders, di:uid~ta. bandits who were haranini the pe(icelul jnh•bitants of the .. : tb~n qf Oaga~i .a.ad ~ epyi~ns. 3 .. ID .. ; CONSPIRACY; ·ACTS SHOW :. CONSPiR-:ti.CY - Where one in a December-81, 1952 group of more than ten men all armed with rifles UJlOD meeting the victim who wU on the way to her home, approached, took hold and drag~ her away and the ~°"' day the victim wu found dead with two gunshot woundt, the acts of the malefacton show and constitute conspiracy which renders the appellant liable for the crime committed by his CO!DpaniOlll, although no one witnetsed the killing of "the victim. Modeito R. Ramol<le . for appella~t. Solicitor Gene.al Pompeyo Diaz and A.ssislant Soliaiior Ceneral Franc~ Carreon for appellee. DECISION PADILLA, f,: At about 4:00 o'clock in the alter· noon of 18 March 1948, while Mercedes Tobias accompaliled by Eusebio Gerilla and Lucia Pelo was on the way to her home in the barrio of GuinaroDa, munici pality of Dagami, nrovince of Leyte, coming from her farm in Maanghon, 'ohe met a group of more than ten men all armed with rifles. some of them with beard reaching the breast. Nestorio Remalante, one of the bearded men, ap~· took hold of and dragged en:'!d r=..:~. ~ ::r.i:·~:.: ahe had done him no wrong. Remalante continued to drag and •truck her with the butt of his rifle on different parts of her body. The comoaniOll'I of Mercedes were told to continue their way. They saw Mercedes being dra"8ed toward the nlio of Sawahon.. Hardly hd they walked one kilometer when they heard gun reports. The following day Mercedes Tobias wu found dead in Sawahon with two gunshot wounds, the :1:~t~h:n11t :.:t a:n~~:i~n&: MbitA). - Nestorio Rrimalante was charged with the complex crime of kidnappipg with murder. His companions have not been aporehended. Alter trial the Court of .first Instance of Leyte found him t:uilty of the crime char~d and se.n· tencecl him to reclu1ion perp<t.ua. the ,a,c. ceuories of the law. to indemnify the l·eiH of the deceased in the sum of P2,000 and to pay the C011:1. He ha's appealed. The apoellant _ claims that at about I :00 o'clock in the afternoon of that day •·hile he to .. ther with Emelerio Arellano was workinrr on his farm at B~nag the .i:..id..ito apprehended and .detained him because they were not satisfied with hi"I enowers as to whether he had been fur. r.1shin1 the con&tabular soldiets infor· THE LAWYERS JOURNAL Philipsilne DHielon•. c:aation •bout them; that as he begged to be excued from .aing with them Uiey brat him up with their rifle'& hitting him ::m the head and causing him to lose ccnaci.ousneas; d1,.• when he came to the diuidents took him t02ether with another male prisoner alonir with them ·and on their way they met Merced.. T obiu and hu comoaniom: that uoon orders of the leader 01 the band he (the aopellant) took hold of Merced,, Tobias and when h •. informed the leader that oho iefuaed to go with theni the leader again beat him up (the appellant); that the dilliden~ t°"eth~ with the three captives conbnued thm wav: that after walking I 00 meters thev stopoed: that the leader commanded five soldiers and the two male pri'sonl?'.8 to prepare the mtal and the otlier roldiers to take Mercedt:s Tobias away: that not long hereafter the appelfant heard JUn reports from a place about a kilC!Dleler away; and that after taking their meal he (the appellant) was further questioned and the bideota sa· tisfied •liat he wu not an informer reltased him. The appellant admits be took hold and dragged Mercedes Tobias on that GCcuion. althou1rh he pretends it was upon orders of the leader of the band. II it u true that he wu illtreated by the captors and fell uncomcious as a result thereof. it is strange that he did not ex· hibit or ehow anv bru~ or wound "which would have leh a scar. The oorroborarive evidence of his claim is given by Emeterio Arellano who is the huoband ol his mother's mster. The fas:t that the appellant grew beard· reaching hu breast a:a some of his comoanioas did is a ~ .. tive and clear proof that he was a mein.. ber <>!'·th• IJOUP of maraudert, diloidents, ~and1~ who - · haraaaing the peaceful mhab1tants o( the town of Dagami and it& environs. It is true that no one wit.. n.,.ed the killing of Mercedes -Tobias, but the acts of the malefac:tor1 show and constitute conspiraCy which renden the appelJant liable for the crime committed h)· his companions. There. is no mfli.cient evidence of intcn,tion to kidnap becaUse from thf' moment 'Mercedes Tobias was held and dragged to the time when the gun reports were heard nothing wa• done or "saic:J ~y the appellant or his conf«icrates ro show Or indicate that the captors in· knded to deprive her of her libmy le< =~:r :e~d h~°fre~ kfij?:_e Th~ inte~al was so '$hort as to negative the icea implied in kidnappjng. Her short detention and illtreatment are :.:.eluded or form part of the peroetration of the crime of murder. It is murder· becaof the cOncurrence of at least one quali .. fying circums!ance, either of treDC"bery. 658 Oi' ~f abuse of superior strength, m with the aid of anneq men, the fi@t shown by the entry of the 'shots at the baclc and t!>e oecond and the third by the number cf the armed captors. the appellant and his companions. some or one of whom killed Mercedes Tobias. For laclc of 1ufficient ·number of ·votes as required bv law, the death penalty recommended by the Solicitor General cannot be imposed. The judgment appealed from is affi1m~d, with co'.sb against the ap1Jellant. Paras, C.J., Rengzon, Jugo, Pablo, Montemayor, BautUta Angelo, and La.brador, JJ., concurred. Messn. Justiw Feria and R.:yes took no part. I certify that Mr. T111tice T ua'IOn concurred in this opinion. <SGD.) RICARDO PARAS Chief Justice VIII Administrative Cau, No. 126, cs. /n re: Alty. Tranquilino ROrJero, rt!spondent, October Z4, 1952, Para., C. /. 1: ATTORNEY-AT-LAW: ACTS OF ATTORNEY NOT IN THE EXERCISE OF LEGAL PROFESSION. - Under Sec. 25, Rule 127 of the Rules of Court, a member of ·the bar may be removed or &11$J,ended from his office as attorney for a conviction of a crime involving moral turpitude. and this ground ia a part from any deceit, malpractKt· or other gross misconduct in office as lawyer. 2. IO.; MORAL TURPITUDE. DEFINED; CONVICTION OF SMUGGLING. - Moral turpitude . includes any act done contrary to ju'stice~ honesty, modesty or good morals. The conviction of an attorney of amuggling by final decision of the Court of Appeals certainly involves an ac.L done contrary at least 'to honesty or good morals. · First Anlstant Solicitor General RuFtrto Kapunan, Jr. and Solicitor Jesus A. Avancefia as complainants. Respondent in his own behalf. RESOLUTION PARAS. C. J,, The Solicitor-General has filed the present complaint for ~barment agairrst Atty. Tranquilino Rovero. on the •rau•ds that on March 31, 1947. "respondent T ranquilino Rovero, havi•?i& been fcund in a final decision rendered by t)ie then Insular Collecw of Custams to have violated the customs law by fraudulc:ntly concealing a dutiable importatien, w~ fined in an amount egual to three times the cull~ d~ty dqe on a .pieee of 664, jewelry which he omitted to dec.lare and which was subsequently found to be. conctaled in hit wallet", and that on October 28, 1948, .. ....,pondent Transquilino Rovero was convicted of amuggling by final decision Of the Court of Aotieals in Criminal Case No. CA-G. R. No. 2214-R, allirminR a iud1D1ent of the Court of First Instance of Manila 1entencing him to pay a line of P2,500.00, With subsidiary imprisonment in rue of iJ15olvencv. said case involving a iraudultnf practice against custotn& reveaue. a's defined and penalized by Section 2703 of the Revised Administrative Code." The -iespondeD.t admits the existence of tl.e decision of the Collector of Custom1, 'and his -Conviction by the Court of Appeata, but sets up the defense that they are not sufficient to disqualify him from tl.e practiCe of law, especially be~aqse the acts of which he was found guilty, wbi.le at most merel.v discteditabio, had bUn committed hv him as an inciivicfual arid not in oUrsu8nce cir in the exercise of his legal prol~•ion. Under section 25, Rule 127, ol the Rulei of Court. a member of the bar may be removed or suspended ,rom his office as attorney for a conviction ·of a CJime involving moral turpitude. and this ground is apart from any cleceit. malpractice or other_ gross misconduct in of .. fi.ce as lawyer. Moral turpitude includes any act done contrary to justice, hGueSJYo modesty or good moral's. (In re 1 Basa, 41 Phil. 275.) ' Respondent's conviction of smvggling by final decision of the Court of AJ>peals certainly involves an act done cnntrary at least to -honesty c;>r good morals. The 11ound invoked by he Solicitor General is awavated by the fact that the respondent 'sought to defraud, not mere]y a private penon, but t.he Goverriment. Wherefore, the respondent Tranquilino R.overo is hereby disbarred from the practice of law, and he is hereby directed to iurrender to this Court his lawyer's certificate wil:Jlin I 0 days after this resolution 'shall have become final. So ordered. Pablo, Bengzon, Padilla, Montemayor, Jugo, Bautirta Angelo anJ Labrador, /./., concurred. IX In re: Peiition for the Probate of t/1e Will of the Dec<;>sed Da, Leona Sinpon. D.r. Manuel Singson, peiitionerappeli«, IJI. Emilia Florentino, Trinidad Florentino de Paz, el al, L-4603, October~. 19n, Bautia.ta Ali1eio. /. t. WILL: TRIAL: DEllOSIT·ION".OF· INSTltUMENTAL WJTNES-S . ...,.; THE LAWYERS JOURNAL Where the instrumental witneu of the will is within the 'seat of the cnurt Put is unable to appear at the trial because of sickneea his depoeitioa may be taken under Sec. 11 .. Rule 77 in conneclicn with Sec. 4, Rule 18 of the Rules o( Court. i. JD.; ATTESTATION CLAUSE; ~UMBER OF PAGES UPON WHICH WILL IS WRITTEN.- The provision of Sec. 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the atte'station clause sball state the number of pages or sheets upon which the will is written is mandatory u an effective safeguard asainst the poll· sibility of interpolation or ommiuion of some of the pages of the will to the prejudice of the heirs to whom the property is intended to be bequeathed. 3. ID.: ID.: FAILURE TO STATE NUMBER OF PAGES UPON WHICH WILL IS WRITTEN.~ Where the attestation cla111e of the will does not \late the number of sheets or pages upon which the will is writLen, but th• last part of the body of the ~I contains a statement that it is composed of eight pages, the will ii drafted in substantial compliance with tli~ law. - · 4. ID.; IL>.; PLACE WHERE SIGNATURE OF TESTATRIX HAD BEEN AFFIXED.- The attestation clause of the will reads: "NOIOlros Ins t.,._ tigos, conforme al ruego de Da Leona Singson, en este testamento. despues de anunciarnos que e:."U es su testamento donde hizo am ordenes sobre su verdadera y ultima voluntad, tinno -o imprimiO su carca digital en presencia de todos nosotros; y nosotros firmamos tambien en preseucia de ella y delante de cada uno de nosotros al pie del citado testamento y en el margen izquierdo de sus otru pqinas. Y hemos observado que Da. Leona Singson eataba en su sano juicio, pensamiento y uso de '"' senticlns," Held: The attestation clause at fint glance would appear that the ~ merely signed or """1ped her thumbmark on the will in the presence of the ~tnesses. without stating the place where aiRnature or thumbmark had been affixed, which impreuian iS caused by the fact that right after the sent~ "'firmo e imprunio 1u marca digital en pre'sencia de todos nosotros.'' there appean a semicolon; but ii this semicolon ii disreg~d. it would appear that the testatrix si$ned or affixed her thumbmark not only at the bottom of . the will fiut also on the left martin of •adi and · overy .. page th....00. c:onliiltri111 the cancluding part of the """tenee December 31, 1962 Th.::W: u:~4 t.t.~ placed there by mistake or through inadvertence, as may be deducod from the use of .the word "tambien" made by the witnesses in the sentence immediately following, which conveys the idea of oneneH in action both on the 1>Mt of the !estatrix and the witnesses. Thus considered and interpreted. the attestation clause com.Plies aubstantially with the law. Vicente PaZ. for oppositon-appellants. Felix V. Vergara and Pedro Singson for petitioner-appellee Dr. Ma!1Uel Sing· IOI!- p.Dd: lqateet Consolacion Florentiro and Rosario F. de Donato. mown to t!ie court. If a subscribing ·witness is. - t in the Philippines but oti~de the province where the will has beeii filed, his depoUtion must be taken. In this c~e Fidel Reyes was not OUbide of the province. in fact be was then living in the place where the case was pending trial He,, therefore. must appeu in court and his depo,;tion cannot be taken. And llo !!i.ey contend that the lower cow' erred in. admittin.C his deposition inste~d of taking his testim911y. It mould be noted that o.. of t)ie three instrumental witnesses of the will. namely, Bonifacio· Brillantes. wa's already dead when the case cat.!'.le up for trial ·and the only witnesses then available were Victoriano Lazo and Fidel Reyes D E c J s 1 o ~ who was then unable to appear because of his phyiical ailment. And when tl>is BAUTISTA ANGELO, J.• matter was brought to the knowledge of the court, the latter manifested its desire This is an appeal from a der.:sion of to go to the h01Ue of ~e · ailing witness the Court of Fint Instance of Ilocos Sur for the taking of his testimony, but the admitting to probate the la'lt will. and move was prevented because of the contestament of the late J..eona Sing:::on. formity of ~nsel for the oppositors to On J anuaiy 13, 1948 •. Leona singson die taking of his deposition. And bedied in Vigan. llocos Sur. leaving a will. c&~ of this conf91mitv. the depogition In said will the deceased instituted as was taken and on that occasion opposing beirt her brothen Evaristo. Dionisio and counsel was qresent and actuaJly took ·::Qe!En!i6a n}i!n~:~ar!~[·T~n,~d :J.~tf:1ce ~ft-:J:!: f!ct~e ::P::~·th!~ Florentino de Paz, her srand nie.e 4"- while the taking bl the clepooition was solacion Florentino. and some servaqts. not made in strict compliance with the She named her brolhers Evaristo and Mo.- rule ('°ctio~ 11, rule 77), the deficienc;y, nuel as executors of the will. On Feb-- it any. has be~n cured by the waiver ruary 2, 1948, Manuel Singson filed a e.inced by counsel for the oppositon petition for the probate of said will. which ~ented the court from ccmstitut.On March 6, 1948. Emilia Florentino, ing . f in the residence of the witness. Trinidad Florentino c!e Paz and J~i- We believe, however, that the dOlJO<ina Florentino V cla. de Lim, daughters lion may al\io be justified by in~ of a ..U.er of the deceased, opposed !he preting section 11, rule 77, in connection petition alleginR among other grounds with rule 18, 1eciion 4(c), of the Rules, t1iat· the signature app~ing in the will relative to the taking of the d~osition are not. du;: genuine U.:natures of the de- of a witness in ordinary cases when he ceued. and that the will has not been is unable to testify because of sickne'.11. 'executed in accordance with the for- Interpreting and harmonizing together malities of the law. · diese two provisions we may draw the After due trial. the court found that . :!:isn ~~h~ :b':~~t ~ t~:t~en:! the will has been executed in accordan~e is unable to appear becall!e of rickness. 'Wih law and admitted the same. to pro- as in this caie. his clepmition may still · ~t o~pp°:J~si:,:s th:~::e!~~o la~: be taken. for a different interpretati911 ·certified to this Court for the reason that would b~ sene~ess and impractical and it involves purely questions of la.v. :'id~1~17tt!d. ~°';.,:'.~pose which The fint error assiined .refer11 to the Another point raiilcd by cppositon readmission by the lower court of the <lo- lers to the alle,_ed failure of the attella. == :h~:a~:~e:~ :C~z:!~uhe~~:! tion dause to . state the number of the then suffering from '""'aralysis ami was sheets or pages in which the will is ~it thus physically incapacita~ed to df!pear ten which. it is claimed. is fatal because and testify in court. It is the claim of it is contrary to the . eJ:.PrE!ss requiremGt the oJ>POli!9rs that. under seCtio:i 11, rule of the law. 77 of the Rules, if the will is cc,ntested, The law referred to ia article 618 of ·all the aubscn'binP" witneases· prtseilt in the Code of Civil Procedure. as amended t~e PhilipPine1 mUll be produu:d and by Ad No. 2645, which requires that examined, and if thev are dead. absent the attestation clause shall state the or insane. fJ!is fact must be satM actorily number of pages or sheets uptt:1 which December 81, 19t:: THE LAWYERS JOURNAL Philippine DecteiOne the will i's written. which requir.emeot. has l:<en held to be mandatory as an effective safeguard again11 the possibility of interpolation or omission of some of the pages of tlie will to the prejudice of heirs to Whom the property is intended to be b&oueathed f In re will of Andrada, 42 Phil. 180; C!v Coque v. Navas L. Sioca, 43 Phil. 405; Gumban v. Gorecho, 50 Phil. 30; Quinto v. Morata, 54 Phil. 48h in re will of Maximo Sarmiento v. Roman Sarmiento, et al., 38 Off. Gaz., 2632). 1]ie ralio t/ecit/ent/i of the'te cases seems to be that the attestation clause must contain a statement of the number of sheets or pages Composing t~e will and that if this is missing or is omitted. it will have the effect of invalidating the wih if the deficiency cannot be Slipplied. not by evidence aliunde, but by a ceRsideration or examination of the will itself. But here the situation la different. While the attestation clause does not ,.tate the number of sheets or pasres upon whi<;Ji the will is written, however, the lut part of the body of the will contains a \ltatemen~ that it is composed. of eifht pues. which circumstance in our opinion takes this case out of. the rigid rule of construction and places _it within the realm of similar cases .where • ·broad a1 d more liberal view has been tdoQ)ed to prevent the will of the t<lstator from being defeated by purelv techn.ic>I considerations. One of such cases is De Gala v. Gonzales and Ona. 53 Phil. 104 Here on.e cJ the objections raised was that ~e attestation clause doe:s. not state thai rhe will had been signed in the pmence of the witnesses althouldi t]ps fact appe~ ir the lall para~ran~ of the body of the will, and the Court, in overruling the objection, said that "it may be conceded that the attestation clause is not anistically drawn and that. stanqing alone. it does not auite meet the requirements of the 1tatute, but taken in connection with the !all clause of the bod.v 0 1 the will. it is fairly clear and sufficiendy carries out the lqislativJ intent; it leave'.aJ no possible doubt as to the authentiCity of the document'". Another case that may be cited is Mendoza v. Pilapil, 40 Off. Gaz., No. 9, p. 1855. (lune 27, 1941 ). In this case. the objection was that the attestat~on clause does not state the number of vages upon which ·',e will was written, and yet the court held that the law has been substantially complied with inasmuch a: in the body of the will and qn the same pase wherein the attedation clause appean written it is expressly stated. that "ill contains three ·pages each of which was numbered in letten• and in figures. Said the court: . "El propoaito de la ley al estableCer las formlllldades que se requleren en un 655 Philippine Deci•ions testamento, es lndudablemente asegura.r y garantlzar su autentlcldad. contra la mala re y el !raude, para evltar que aquellos que no tlenen de1•ecbo a suceder al tMtador. le suceden y salgan bene!ictados con la legallzaclon del mlsmo. Se ha cumplldo dlcho pro11osito en el caso de Que se vlene hablnn<lo POl'fllle, en el ml8mo cuer110 dPI tcstamento y en la mlsma 1>aglna donde aparece la cJausula de ate11tlguamlento; o sen la tercera, se expresa que el te11tamento consta de tres Jiaglnas Y pl)rque cada una de las dos prlmeras llevn en parte la nota en Ietrns, Y en 1>arte l.n nota en guarismos, de que 510n respecti\•amente la primer.a ~· segU11da paglnas del mismd. Estos hed1os excluyen evldentcmente todo temor, toda sospechn, o toclo asomo de cludn. de que se haya sustltuido nlgunn de sus 1mgJnas con otra." (Me.mlo:m v. Pilapl!, et al., 40 O!f. Gaz., No. 9, Jlp. J8a5, 1862). Considering the form in which the will quest-ion is written in the light of the liberal ruling above adverted to the condusion is ine!capable 1 that the will has been drafted in substantial compliance with the law. This opiriion ~s bolstered uP, when we examine the will itself which 'shows o~ its face that it is really and actually composed of eight pages duly "SiRned by the testatrix and her instrumental witnesses. . The femainin2. question to b~ determined is: does the attestation clause state that the testafrix signed each and ev~ page of the will in the presence of the three instrument.al witnes'.ses as required by law) · The disputed attestation clause reads as follows: "N"OSOTROS los tcstl:;os, conro1•me nl ruego <le Da Leonn Slngson, en este testnmento, lles1mes <le· aunchu·nos que este ·es AU testa.mento doude hizo sus ord-enes sobre su \'<'rcl:Hl!>rn )' ultima volnntnd, flrmo o tm1>rinlio su mori::a digital en presencla <le todos nosotros; y nosotros flrmnmos tamhlen en r-resencia. de ella Y dPlante de cacla uno de nosoti•os al 11le de-I <'itndo t<'stamento y en el mn1·gen iV.(JUlerclo de sus otras pnglnns. Y h<'mos obsE-r\':ulo que Da. Leona Singson cstnbn en su sano julcio, mlenlo ,_. uso cle sus sentillos. (Exh. A·l)'", A perusal of the above attt>station clause wc;iuld at fitst glance give the impre'ssion that the te.statrix merely signed or stamped her thum!:>mark on the will in the presence of the witnesses, without srating the place where her signature· or thumbmark had been affixed, which impression is caused by the fact that right after the sentence firmo e imprimio su marca digital en presencia de todos nosotros, there appears a semicolon; but if this semicolon is disregarded, we would 656 at once see ·that dn: ttstatrix signed or affixed her th"umbmark ·-not only at the bottom ·of the will but also on the leh margin tif -each and every page thereon, considering the concluding part of the sentence concerning the signing of tJte will. That semicolon undoub~edly has been placed there by mistake or through inadverte:ice, as may be deduced from the u2e of the word t!lmbien made by the witnes~es in the sentence immediately following, which cq_nv~ys the idea of oneness in action both on the part of the testatrix and the witnesses. Thus consi<iered and interpreted, the attestation clause complies substantially wi'th the law. "The a111>ellanls enrnestly conttnd that the attei;tntion clnuse falls to show that the w1tnesse11 signed the wlll ll.nd ~nch and e\·e1•y page tllf!l'eor because a simply says 'que posot1·os los testlgos hemos tambien flrmndo en presencla d~ la testatlora Y en la )lresencla del uno al otro' (that we the witnesses also signed In the 1>resence of the testatrix and ot ea.oh other). In answer to this contention it may be salcl that this po1·tlon of the attestation clause mu~t be read in connection with the )lortlon preceding It w'hlch 11tnt1>s that the \estatrlx signed the will and on nil the margins thereof In the 11re11C'ncP of the witnesses; especl!itly, because the word also used therein establishes n very close connC'ctlon between said two portions of the atte9tat1on clause. Thl11 word also should: therefor,~ he giv<'n its full mc-anlng which, In the Instant cm~<'. Is thnt the witnesses signed the will In the same manner as the testntrlx clld. Th<' language or tlle whole attestation rlnu.se. taken together, clearll' shows that the witnesses signed the will nnd on all the margins thereof In the p1·esenC'e of thc testatrix and of each other." (Rey v. Cartagena, 56 Phil pp. 282, 284.) In view of the foregoing, we find that the lower court did not commit any of the errors assigned by appellants and, therefore, we affirm the decision appealed frob, with costs. Paras, C.J., Pablo, Bengzon, Padilla, and Montemayor, ]/., concurred. Messrs. Justices Jugo and Labradcr cC'ncurred in the result. x Eugenio Evangelista and Simeon Evangelista, plaintiffs-appelle:es, os. Brigida Soriano, defendant-appellant, L4625, October 29, 1952, Padilla, f. I. DEFAULT; ANSWER; EFFECT OF FILING ANS\.VER.- Where the defendant in an action for detainer and ~llection of rentals due aii.d unpaid 'I'HE LAWYERS JOURNAL filec:.I her answer within the time pro,vided for in Sec. I, Rule 9 of the Rules of Court, she could not be deemed and declared in default (Sec. 3, Rule 7). 2. APPEAL: WHO COULD \VITHDRA w THE APPEAL.- Under the provisions of Sec. 9, Rule 40 of Pie Rules of Court, the oartv who could withdraw the appeal to the Court ·of Fit':rt Instance from the judgment of the municipal court was tht: appellant, because such withdrawa.i would revive the judgment against her re_n· dered bv the municipal court. Ob· viously. the ap'lellees for. whom judgm~nt was rendered could not ask for lhe withdrawal of the -appeal. They would not ask for the dismissal of the ca'.>e because the Judgment secured by them would not be revived thereby and they would be left without judizment wlJich 'Was vacated upon oerfection of the ap. peal 3. ID.; FAILURE TO APPEAR t'T THE TRIAL: WITHDRAWAL OF APPEAL.·- When the defendant or her attorney in an aCtion for detainer and collection of rentals due and unpaid failed to appear at the· resumption of the trial, the court could not dismiss the appeal to the Court of First Instance from the judgment of the municipal court becau'.ie it was nat authorized to do so, but was in duty bound to hear the evidence of the plaintiffs and render judgment ther•;on unlt:ss for gcod reasons it deemed it justified to postpone the hef!r· ing of the. case. Nor· could it dismj.n the case and grant the remedy prayed for, such as the payment of rentals, even if the defendant had vacated already the premises, without a finding that such rentals were really due and unpaid, for a dismissal of the case, if granted, would leave the prevaiiing parties in the municipal court bereft of or without a judgment. The failure of the defendant or her attorney to appear at the resumption of the trial of the ca'se could not be deeme~ a withdrawal of her appeal. And as there are no findings of fact upon which a judgment mav be based and rendered, the order of the court holding tha,t defendant's fe1;ilure to appear and prosecute her appeal is tantamount to a withdrawal cf the case on the merit'.> (section J 2, Article VIII, of the Constitution). 4. PARTY: DEATH OF PARTY \.VHE.i.'\l CASE IS PENO I KG. - WheM a party died when the case is pending, her attorney should Prove the fact of l\Cr death and the c~urt shall order, upon proper n~ice, the legal repre-~ntati_ye of the deceased to appear December 31, 1952 for her within. 30 claya or such time u IQ&)' be aranted, u provided for in •lion 17. Rule 3 of th. Rule1 of Coiirt. DECISiON PADILLA, J,1 ·This ii an action for detainer and c:ollection of rentals due and unpaid. After 1.ria,I judgment wu rendered for the plaintifft. Tb.• defendant appealed filing a supenedeu bond. In the Court of Fint Instance the defendant filed an aUWer -..iting up illeiality of the rentals -ht .to be collected and of he a.-d value of the le...,.! premi1e1 upon wlilch the ina:eaaed rental was based. failure of . the plaintiffs to make plUin_!,uig {epmrs in the leased premisa, a counter~ !'laim for P128 daimed to be an .ei<ee88 ·of the amount of . rental authorized by law from February 1945 to· DllCOlllber · 1946. both indusive, and damqs in the sum of P250. On 21 January 1949 the attorneys for the plaintifs filed a motion praying for the dismi..ial of the case, ~~=·~!d r. ~-=~ ~34~~5ou:".i withdrawal by them of the an.ount of Pl 76 for rentals dep.oited by the defendant, for the reaaon that the latter had. vacated the premiles on 19 January 1~9 and because 'lhe and her ~ney {ailed to appear at . the resumption of the trial of the cue Gt! 21 January the plaintiffs waivinR "payment of reiital; for .luly, October, November and Docember ·!948 and half of January 1?49, to RUI ·an :end to the liti"'°ation, withcut costs. ·on that date, after stating that the case ;':;' ~:~tl~=!~:i ~J.u~ t i~r..~a:i the derk of the mwiicip&l court to forward the exhibits pre'sented by the plU'ties, and that the r~mption of the trial ,set for 24 Au"11st and 23 SePternber was _postponed again upon mOtion of the at-.tor.ney for the defendant and set for 21 .Jilnuuy 1949 on which date the defendant and her attOmey faaed . to ·appear and the attorneys for the plaintiffs moved for the dismi1sal of the case and i>rayed that the plaintiffs be allowed to withdraw the reil~als deposited .. in court by the defendant, the coun entered an ~holding thet '.'her failure to appear and prosecute her appeal is tantamount to a withdrawal of said appeal" and that "the appeal is colllidered withdrawn, the jud1111ent of the Municipal Court is deemed mived and let the record of the case be remanded to the Mun~f.al Court in aceordance with Sec. 9, R:u e 40, rif the Rules of Coun, for the enforcement of the judgment fendered by it in the case ... o~ 24 January 1949 the ~tlorney for t~e defencliint filed a 1110liOD J>".aying that the proceedings be sus~~ 1111\il al~er the provisions of secDecember 81, 1962 lion 17, ~ule 3, 'lhall have been com. plied with; in view of the fact that the defendant had died on 9 January 1949, and nplaining that his (attorney'~) failure to appeu at the resumpton of the trial OD 21 January was due to the fact that there was a proposal for an amic· able settlement and that·not having heard from the defendant <!esi>ite his letter to her sent on the 15th. he thought that the cue had been 'settled amicably. On 29 January 1949 both motions for dismiisal of the cue filed OD bebalf of the plaintiffs and for suspenaion of the pro·ceedings [led in bebalf of the defendant were acted upon. the Court inviting at· .tontion to its order of 21 Januuy 1949. ·which, according to it, diaposed of the two moliOD10 and funher holding that the case was ""within the jurisdiction of the Municipal Court for the uec11tion of the judaaient rendered by it in his case."' On 18 May 1949, acting upon a motion filed by the plaintiffs, the coun authorized the atorneyalor th~ plaintiffs to withdraw the 'IWD of Pl 76 in cub for rentals ~~S:.'i!.:r~nt 1u~~1:.~ "ii..:~r.i.'~ withdrawal is authorized in accordal)Ce with the judgment reD.dered in this case on 21 January 1949." On 21 June 1949 attorney ~or the defendant moved ·for reconsideration of the order of 18 May 1949, OD the around that it wall COD• tr~l'f to la'." and.·entered without j~ ·dictJOn. 111.11 mobon was denied.· A notice of appeal, an appeal bond and a 1ecord on appeal were filed, The appeal was certified to this Coun because only :f~tions of law are rais~ and involv· Section 90 Rule 40. provides: . "A per~ted appeal ab.all operate to vacate the Judgment . of x x x the municipal court, and the action when duly entered in the Coun of Fint Instance !shall stand for trial de nova upon its merits in. accordance with the regular procedw-e in that Coun. as though the same had nev<r been tried before and had been originally there commeneed. If the appeal ;s withdrawn, the judgment shall be deem· ed rmved and shall !Orthwith be ~ manded to the x x x mUDicipal court for execu~on." The defendant filed her an .. wer within the rime provided foir n _. ti<>n I, Rule 9, so she could noi be deemed and dedlU'ed in default (section 3, Rule 7). Even if she had failed to file her answer Within the time required and were dedared in default. the plaintif& w~ bound to present their evidence upon which judpient could ·be rendered. In accordance with the abOve quoted provisi ... of section 9, Rule 40, the pany who could withdraw the appeal was the appellant, because such withdr11wal would revive the judgment against "her rendered by the municip~I coun. Ob. THE LAWYERS JOURNAL ;Philippine. ~illlo ... . vinmly, tbe appelleeo for whom judgment wu rendered could not ask for the withdrawal of the appeal." They would nOt ask for the dismissal of the cue because the judgment secured by them would not be revived thereby and they would ~· left without judgment which was vacated upon Derfection of the ai>peal. It is contended that ~ 9 Rule 4~. is not applicable to appeals 'in detamer cases bee~ the appeal does not vacate the judgment but suspends only as may be inf~ed from the authorii; of the court to which th~ cUe ·has - appealed to order execution of the judgment during the pendency of. the appeal upon fail~~ of the ~,ppellant to pay to ~e prevadms party or to depoait iii court the stipulated rentals or the reUODable com~nsation, for the preceding mouth OD or before the tenth day of each month fo_r the use or occupation of the ~ DUIO's, as fund by the judRIDODt of tho mu~1~pal or justice of the -peace court. This authority to direct execut.ion ·expr'"81y provided for in section 8, Rule 72, m no way alters the provisions of section 9, Rule 40. on the effect of an appeal upon a iudgment rendered by a municipal or justice of the peace court. And pl'OQ,f of this is the provision in tJ.e same section that -uch execution shall not be ~ bar to the appeal !•king its courae unt~ the finpl disoosition thereof on its ments. When the defendant or her attorney fail~ to appear at the resumption of the trial on 21 January 1949 the court could not dismin the appeai became: it was not authorizec;I to do so. but was 1n duty bound tO hear the evidence of the plaintif& and render judgment thereon unless for good rMIOllS it deemed it jintified to postpone the hearina of the case. Nor could it dismiss the case and .grant the remedy prayed for, such as the payment of rentals, even if the defendant had vacated already the premises, without a finding that such rentah were really due and unpaid. for· a dismissal of the ·case, if Rranted. would leave the prev&11ing parties in· the municipal court bereft of or without a judgment. The f&lure of the defendant or her attorney to appear at the resumption of the tril!J of the ca"' OD 21 January 1949 could not be deern·ed a withdrawal of her appeal. And as there are no findings of facts upon which a judgment may be ba'sed and rendered. the order of 21 January 1949 is not and cannot be deemed a judgment of the case on the merits (section 12. Anicle VIII of he Constitution). ' As to the substitution of the· defendant, her attorney should prove the fact of her death and the court shall order, upon proper notice, the legal repraentative of the dece ... d to appear for her within 30 days or 911Ch t°"' u may be 657 'PliitlPPiiie· aicie:t•IOn11 ~rited~. -as i;nJvideci"·for'·iri.-~•iOrl- f7. ·Hui• 3. · The CO)irt ·coiild not Ciiler the )ega·J rej:>resentaive of -the decease to a.Ppear for" her because · it' considered the 'order Of 21 January 1949 as judgment Cittered in the case and riotice of the defendarit's death w8.s given it 'three days la:tei' or on 24 January 1949. · The trial court seems to be of the be, hef and opinion that the os:der of 21 J·~nuary .J 949 .is a judgment, where it held that failure of the defendaet or .her .attorney tO appear at the resuniption of the hearing · of the case on that date was tantamount to a withdrawal of the appe~. th~t the judgment of the municipal comt was revived,_ and that for that reason if directed the record of the ease to be remand"ed to the municipal court for execution. For the reasons above ~t forth--this is an error, because as ihe appellant did not withdraw the appeal there was no withdrawal thereof.. On the other hand, as already stated~ the appellces could not ask for the withdrawal -of the appeal becawe it· was not their -~p peal and would not ask for the. dismissal 'of the case · because •. if granted.· they would have been left without a judgment. The orders of 29 January aDd 18 May 1949..- being Predicated upon an erroneous Opinien that the order of 21 January 1949 is a .iudgment, which is not and is a nullity, -.re \let aside and the c.ise remanded to· tl-.e court bdow for fur~~. proceedinos in accordance with ·W.~., w1t~out costs. Paras, C.J., Pablo. Bengzon, Montemayor, Jugo, Bautista Angelo· and Labrador, J /.. concurred. XI Alicia S, Conzales, plaintiff.-appellee, vs. Asia Life /nsu1·<ince Co., deffindantap,,.llant, L-5188, October 29, 1952. Berrgzon, /. · ·,. INSURANCE: TENDER OF PREMI.UM REFUSED. -On Ap•il 15, 19'40, the defendant A'sia Life Insurance Company insured the life of G. The premium was p3.yable _annually og. _ or befqre April 1 S. The pt~~iu~s fpr the first two vears w~re duly paid. On· or before April 15, 1942' the insured tendered' t~e. premium for the. thir.d policY year to the branch· office of the -cpmpany in U )ilO. City, but the insurer refused to aci;ept it, be£ause the office w<:s clasing for the day on account of thethreat of bombing by Japanese planes. On Seotember ·22, 194.2 G died. Held: The ·refusal ta accept payment was no• iustified~- The insurer, therefore, ma:V not asset nonpayment. of the premium as a ·defame to: an action en the policy, The . .&118 · act of the instiref o~ &is agent in- refusing ·the b:nder. of -a p1:emium propeily made, wiU necessarily estop · the insurer from daimino- a ·forfeiture from nQD .. oayment. ]._ A. Wolfson for appellant. F ulgencio V c~a for appellee. DECISION DENGZON, J.: · On. April 15, 1940, ;he defe~clant American corporation issued its twentyyear endowment aolicy insuring the life of Ce!.o R. Gonzales and designating the· plaintiff Alicia S. ·Gonzales, · as beP.eficiary .. The premiulD' was payable an~ nually on or before April 15. The premiums for the first two years were duly ~aid. The . premium accruing April 15, 1942 was not actually paid. But aceording to the· court of first instance of hoilo, where this case wa's tried, '"On or btfore April 15, · 1942 ·the premiwn for the third policy year was tendered' to the branch offi~ of_ the companv .in. lloilo City, but was not accepted because at the time it was tendered· the office was do::ing fei the day on account of the tlareat of bombin'1 b-~ J apane'se planes. Ther~ is some coil.troversv between the parties as to this fact:. the defendant denying· that tender pf payment was ever made, while on the other hand the plaintiff's witness Carlos Soriano. who wa's the one who had been delegated bv the ine-urecl to make the oayment, coulQ. not remember the· nrecise date when he of~ fored it. But that there was tender of l>~yment of the third-near premium cm 01 before its due date, which however was not accepted for the reason- already referred ta. ma.v reasonably be inf.en:ed from the fact that the plaintiff'•i statei.. meat to- tbat effect in her. cilaim .. letter wDi.tten tO' the defendant on N.--vember 2. 1945 IExh. 1 }, was not chaUenged ~ .denied by the lattei:'s agent in lloilo, 'who simolv transmitted- said letter to the Manila office for· adjudication of the claim on the ba'sii of what was therein stated." Oru September 22; 1942 Cdso R. Conzales died. After th.r deliberation., · in. January l947 this suit was instituted. The defense was. based. oa. non-payment ef the premium, and the conseqaent lapse of the oclicv before the insucecfs. death. The Hon, Queruben Macalintal. allowed the plaintiff beneficiary to recover· tm: the ~1ounds:· (I) that the premium for April 15, 1942 had &een tendered on or 6 ... fcre that date but was refused. and (2) because non-oavme:it of that · oremium was excUsed 1--·· tlie occureDce of the war. the American insurance companv having clooed its Hoilo office on and after April 16, 1942. .THE. LAWYEKS JOURN'AL ~ · ni:ere ii 110qut.im,-;· tl'iac Un~ the terms 1>f the -polic;y, non-oayment. al prein~s~ ~on time . would came "lhe-- lapse thereof. There is also no· quatimi that the annual premium for same policy was due and payable on April 15. 1942 there being no allegation or claim. that such- smrender Value and accwiiulated &om .which the premium could be. ad·vaa.ced- by the_ insurer. . . . Appellant'.• sole aaaisrunent nf .error is that tbe trial ~ourt erred in not bold.ing that thi polic)'I lapsed by reason of non-paymeat of premi.11188. The only ar·~~t ill. support of this miplmmt is our decision in Conitantino v-. Asia Li& Insurance Com.nar·· .47. Of. G87. Suppl. 12 p. 428 and alhen, holding that llieoc.curence of war was no ei:cuse for nonpayineut .ol premiums.. In the ·face of our._ rJdings the lower coud'.s decision to follmving a_ contrary - dactrine must be held erraneous. . JiPw...,.. ~ does not follow that defend.ant is entitled to reversal~ His Honor declar.ed that the premium h.'td. been tendered on or before April 15. 1942, the inaulier refU..ing to a~pt it. "'becau·se the office was closing for _the- day on accou-nt of the threat of bombina by Japanese planes." That is a finding of fact which we find na reason to. distw:h. Tlie refusal t@ accept payment was ·not justified. The: insurer,_ therefore. may not assei:t non-payment of the pienµum ais a defense to an. actian. OD the policy. . "'The act of the inslD"er or hi! ag~t in refusing the tender of a pr~iu~ properly ma~e. Wlll necessarily estop tlie ins~er from claiming a foi:feiture· from non .. payment." (Varice on Insurance 2d F;.d. p. 294 Citing Meyer v. Irr•. ·co. 29 Am. Rep .. 200; Continental 1.ns. Co. v. Miller 30 N.E. 718). According to Corpus Juris, Vol. 32. tender to an agent authorized to receiye payment of premiums is obviously sufficiCiit to orevent a forfeiture for nonpayment. ·(p. 1311) · "When ~he aljlSUL'ed was -Involved Jn no default, but ~as at _the place 0wh~n a.nd where .payment was to be made, ready and wtlllng to p11.y, but wa.s prevented by the dlsa.blllty of the company to receive payment, from whatever aauae, he having had no agency In producing It, the comlllUIY Is not . entitled ~o claim the foi·relture, 01• to be reU~ved from Its obligation to pay the sum assured." (l(an~ttan I. lns. Co. v. Ww-wlck. aupro.) (Note, Corpus Juris Vol. 3Z p. 1306) Again the situation here de.scribed bears some 'Similarity to· the case where die insured made efforts to .. Po!'V at the office of the insular but could not P4lY due to the absence of the latter's agent~ (I) Randered before publlcatlon of our·v~•& Decemier 31. 19111!!'. nAb11ence from oHlce.-Wllll• lnabllltY ot' ln11ured to m&kll navment at tb11 or:. flee or Insurer beea~ or the ab81111ce of· Ila reprea11ntaUv11S do1111 not excuse nonpayment where It doM not appear that the effort to make payment wu made 4!urlng_ rea11onable omce hour... where 1n11ured ha11 made reasonable etforbl to P&J' during office houl'8 but 18 p?evented b1' aueh absence, nonpayment 18 n:• cuaed.'" (Corpua Juria Sec. Vol 4& p. "'74) Wherefore, it io - . lo affirm the decision requiring the insmer to pay with legal iaterat, the value of the policy mi' nm' the amount of the premium unpaid on September 22, 1942. · The question ~er the insurer was juatified in contesting the daim and oliould pay the beneficiary legal interest for the duration of the delay m. may C~i:': a:..":r:\'.'°ked, beeause plaintiff JJHlgmen! affirmed, with ~ Para., CJ., PaJ,Io,' Padilla, Monie. mayor, Ju10, Bauti.ta Anplo and Lalmulor, I/., concerred. XII Peoph! of the Phi/ippjnu, ploinliffa,,,..llee, vs. Bienvenido Capialrano, JeJenJant-appellant, .·L-4549, · Oclober 2Z, 1952, Ju10, /. 1. CRIMINAL LAW.: PENALTY; MINORITY CONSIDERED AS A SPECIAL MITIGATING CIRCUM· STANCE-The UCl1S!CI was more ·"than nine but leas than fifteen of age at the time he committed. the crime of treason. However, the accused acted with discernment, yet it may be lr?ader or commander of the raiding party. Held: Although his minorilY does D!ll Ol<empt him from criminal responsibility for the reason that he acted with discernment, yet it may be cousidered as a 'special mitigating cirCumstiances lowering the oenalty by I.WO degrees. :!. ID.; MINORS; ·SUSPENSION OF SENTENCE. - Where the accused ._wu more than nine but less than fifteen yean but was over eighteen years old at the time of the trial, Art. 80 of the Revised Penal Code providing for suape!lsion of senten~ of minor delinquents cannot be applie~. (I) Section 91-A Insurance Act as amended. Allcla s. Gonzales v. Aala Life Insurance Company. December 81, 1962 Miruel F. Trim for appelanL Se1i£i1ar General Pompeyo Diaz and Soli"citor Ermera!Jo Umali for appellee. DECISION JU'GO. '·' Bienvenido Capistrano was charged before the Court of Finl Instance of Que. zon province with the crime of treaon on lour (4) counts. He was found guilty bv said court and setenced lo suffer life imprisonment -and to pay a fine of Pl0.000.000 and the c:Osts. The attorney, d~ oficio of the appellant stat.. in a petition filed ·with this Court that alter having read, reread, and siuclied the evidence, he finds no substantial error Committed by the trial court and prays for .the af6nnance of the judgment. The evidence of record. eotabfahes the following; . The accused Bienvenido Ca.pibtrano admitted being ·• Filipino ~tizen. Count No. I Alejo Enriquez "W;ong and Carmen Verdera testified that ihe defendant was a so-called Y oin. whiCh. means an an:Ded oolclier of the Jaoahe~ Wearing a Japanese army ~ a guard of a Japane1e iiarriooo; To tlie .am. effect, the witn.,. Placer Canada testified. The defendant argued at the trial court that there was no evidence showing that he had been· appointed a Y oin or that he was a Makapjli. While no written formal apoointment was introduced in evid.ence. ~t it is dear that he was engaged in .the work of guarding the Japanese 11arrison. armed with a ttUl1 .and wearing a r apanae uniform and .taking part in the military drills of the Japanese army. Count No. [[ At about 3:00 o'dock in the morning cJ January 8, 1945, the defendant with other Filipino members of the Y oin and several Japanese solclien, all ar111ed, arrived near the houlle of Carmen Verdera ;n barrio Malav Municipality of Lopez, Province of Tayaba• (now Quezon), and ordered the inmates therein to open t~• door. The appellant and his compar.iom entered the house raised the mpsquito nets and ordered. the inmates to rise. The appellan• and his companions tied Graciano Fortuna, Carmen Verdera: Alejo Enriquez Wontt, Rufino Rivera: Maria Canada, Bris.ilio Canada, Reme---oOo-THE LA WYERS .JOURNAL Philippine DecleioM d;oo Anastasio. QoJwa Enriquez, Teodara Zamora. ~tacion Anutaeio. ancf · Pl- Canada wi1h a rope which wu used as a dothesline. 1fte intruden then sean:h the premUe. and seized I.Alejo Ei!riquez Wong $1,000.00, U. S. canenc;r, and P4,000.00, Philippine curR'DCy. They took Graciano Fortuna and the other imaates to the Japanese g• rlton at Lopez, T ayabu (Quezon) and then to tbe Yoin garriooo in the ..,.. toWD. The motive for the raid was that Pedro Canada, a brother of Placer, was a guerilla lieutenut in Lopez and Salvador Fortuna, son of Graciano., wu a soldier in the said organiZation. One. night, during the detention of Placer and her companions in the Y oin garrison, the appellant Ill/empted lo aexually abuse Placer and her girl companions, but when ·the women cried and the Japanese came, the defendant escaped.. Placer and her companions were released after one month when ihcy paid to the Chief of the Y oin and the appellant the llll1L of P2.500.00 in Japanese war n- This cbuge was t~fied to by the several victims. .... The accl!sed was more ihan nine (9) but less than fifteen ( 15) years of age at the time that he committed the crime charred. However, the court wl:Uch had tbe opponunity to see and hear the ac• cused at the trial found that he acted with discernment. It ohould be noted, furthermore, that be appear.d as the leader or commander of the raidi~ party. Although his minority does not ""empt him from criminal rQponsibility for the reaSloD. that he acted with discunment. yet it mav be considered, as a special mitigating circWllll:ance lowering the penalty by tWO (2) degrtes. Article 80 of the Revised Penol Code cennot be applied lo the accused beeauoe h<. was over eighteen ( 18) yean old- at ihe time of the trial (P-le vs. Eotela, 47 Off. Gaz., No. 11, 5652). In view of the above apecial mitig•ticg circumstance of minority. th:: penaltv impooed · upon the accused is hereby modified by ii!iposing upon him lour ( 4) rm~n of of r:rn~00o1::!d"~; T:.c1~:~if; Alejo Enriquez Won- in the 11uaa of 1'6,000.00 with subsidiary impri1011111ent i11 case of iattolvency in the payment of the fine and the indemnity, with COllts. It isooorJ~. Pablo, Benrzon, Padilla, Monf.,,,,.. yor, Bautilla Anrelo and Labrador, If., concurred. Mr. Chief Justice Paras took no part. 669