The Lawyers Journal

Media

Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume XXV (Issue No. 6) June 30, 1960
Year: 1960
Language: English
Rights
Abstract: THE LAWYERS JOURNAL is published monthly by Hon. Vicente J. Francisco, former senator and delegate to the Constitutional Convention, practising attorney and president of the Francisco College (formerly Francisco Law School).
extracted text: APR 14 1976 / 1~ J,.A WYERS JOURNAL MANILA, PHILIPPINES J U:-IE 30. 1960 NUMBER 6 VICENTE J. FRANCISCO Editor and Publisher HI CARDO J, FRA:-ICISCO Buljim•sa Mt111ug e1· CONNIE V. FRANCISCO A asist1rnt Du~iuess .1Iu1wr1.i· THE LAWYERS JOUH~AL !~ published m:mth\y by Hon. \ '1 cente J, Francisco, former SCll· Htor and dc!cgutc to the ('onsti· t utio11al Convention, p rnctisin~ uttorney und president o[ the F rnncisco College (formedy l•'ranciseo Lnw School ). SUBSC RIPTIO N A~D AU\'f!; J{. TISING HAT~: Subscription. In the l'hilippines-1'~0. 0 0 for one yea!'; PIO.CO for t; months; 1'2.0U per copy. In the Ullitt' c.l States an<l foreign countries$20.UO fot· one year; $10.00 for G months; $2.00 pel' copy. A1lvest.ising: Full 1rnge-Pl 05.0U; llalf page-l'G5.00; One.fourth page- P-15.00; One-eight page-35.00; One-sixteenth page1125.00; Back Issues: h the -P_ hilippines-fl25.00 - lwe!Ye is sues ; !'3.00-pet· i~sue. ln th• ED IT01{JALS: ARUSE 01" THE PR l\' ILEGED HO UR C'0M~ 1""'-'c-A TJO N POH COUNSEL DE OF ICIO l'HESIDE NT EI S E ~ H OWEH'S ADDRESS TO CONG HESS l'llESJDENT E IS E N HOWER'S S PEECH ON 1'H E EVE OF lllS DF:PARTURE 8 U PREl\IE COU RT DECIS IONS: Nat ional Sh ip~·;1 rd & Steel Co. vs. C. l.R . . Abi<lny ct 111. - J11q/f('1' U.•11[JznH Pricc Stabilization C'o. v.c;. C. 1.R . and PRI SCO \Vnrke1·s' Union - ./1111/ir<' 1:a1·1·n·11 f.:tUl'Cllte \'S. C':IUllCl\ - ./11 sf'i1·p na 1r//.,/a ;\ U!J<'/O Hoblcs vs. Tinrn1 io ct al. - J11sfi1·<' Lu/JJ(lf/flr Standard Vacuum Oil Co. vs. Tan and ('ou1t of Appc:ds - ./11"-/ic(' G1rlif'ITf'Z n 1n• il/ Prop!<.' \'S . Buli11 g - ./l(.<;/ia l.nbi'frl/o1· Castillo vs. Snmonte - ./11.-</if'<' n1•r11Trt Jn the i\latter of Testate F:statc of P. Tampoy vs. A!hef<aslinc - ./us/it'<' nn •1/i.~/u A 11r1dn .l inlf'Jltz <'l al. v ~ . C'anm1a ct al. -./us.tic<' /:ru 1"c1·1r l 11su111ncc Co. of No1th Amc1 ·ica vs. Phil. Ports T el'lninal - Justire Jf o)1fem,1yor Guanwn vs. Arngon et n\ - J11sliN /Ja uli.~la A llye/n lnco ct nl. \'.~. £ nl'iqucz - ./1•sfit·<' J./J.L. Reues Acic1·to et al. \"s. Lapcral - J 1r.~ ' ic1' /Jal(ti<;lll A 119elo l nc"in <'l nL \"f<. lion. Cano11oy etc.' - Ju. <;ticc /.,abrarlor R C'1 nube & Co, vs. Ddgado Brothers Inc. - ./ 11~/ice fla n·cra lfarcno vs. The Hon. Co111·t of Appeals ck.____, ./101lice J.fl. f ,. Camuf< vs. The Hon. Court of Appeals ctr. - J usl'ia .J.!J.f,. HOOK REVIEW: Undci·standinK .Juvenile Delinquellcy - By l~ee R. S1,..h1cr United St:ates and foreig'n conntries-S25.00-tweh·e IS· ~nes: S:J.00-per issue. Entered as second class mail matter at the Post Office. flPS!XESS OFFICES: P.-508 Samanillo Bldg. Escolta, !\l;rnila - Tel. !\o. 4-13-18 R<:11<'.<; fl<'11es lGI 161 162 164 ir:r. ir:r: Jr.7 1r:!'l 172 174 17(i 178 l7!l '" 1:-:2 184 JRfi !Rf. 187 IR!l ~90 192 ~I I 1 OFF THE PRESS FRANCISCO'S TRIAL TECHNIQUE AND PRACTICE COURT Volume IV THIRD EDITION This volume contains the actual trials of celebrated ca'Ses in the 'Philiifpines, like : • 'The case of U.S. v. Bel'ry, for estafa, which was the first criminal case during the early period of the American regime that a Filipino fiscal (the late President Quezon) dared to file suit against ani American, and the first that a • Fiipino secured an American's conviction in a court presided over by an, American Judge. oi: The case of U.S. v. Kalaw, for libel, whnen the offended party was an American m:.mber of the Philippine Commission and Secretary of the Interior of the Philippines in the first stage of the American regime. The allegedly libelous matt£r was an editorial in the El Renac imie n~.o entitled "Birds of P1·ey:', denouncing \:Vorcestf:r as prostituting his office and squandering public funds fer the purpose of promoting his personal welfare. * The case of Peovle v. Start, rfor abortion. This became a sensational case among the members of the medical profession in the country because the defendant was a well-known American physician in Manila and at the trial of the case, some noted American physicians testified in his favor and others, against him. * In re 1t'ill of Toma s Rodriguez, which is one of the celebrated cases on the matter of insanity. The most noted psychiatrists of ihe country, including American alienists, testified at the trial of the case. The attention of the members of the medical and legal profession was attracted becm1se of the highly illuminating testimony of t.he psychiatrists. * The petition for baU of Justiniano Montano. This case stirred public interest in view of the gravity of the offense chargEd, involving the infamous Maragonct·on massacre, and due to the position of the accused who was then a senator. Other cases included in this volume because the issues involvE d therein have been the source of difficulties for lawyers to prove during the trial are: * Libel by caricature. People v. Sotto. Guevara (G) - Sotto (V). * Recovery of physician's compensati on for services. Gomez v. Superior de los PP. de la Compania de Jesus de Filipinas. Jimenez-Araneta. * RE: covery of lawyer's compensation for services. Delgado v. De la Rama. Fisher - Melliza. * Theft of Electricity. People v. Carlos. Southworth (L.M.) - Gibbs & McDonough. '' Probate of a will. - Impeachment of attesting witne s~ . In re estate of deceas.ecl Gregorio Tolentino. Gutierrez (E.)- Lua Iha ti (G.). * Illustrative case on how to secu re th~ probate of a will when there is no opposition. ln re will of Bartolome Cuenca. Francisco (V.). * Illustrative case on how to secure the probate of a will when there is opposition without pnsenting one of the three attesting witnesses due td physical disabil· ity. In re will of Gabina Raquel. Franci sco (V.) - Barredo (A.). Acknowledgment of natural child. De Gala v. De Gala. Recto (C.) - Generoso (J.). Natunil ization. Re naturalization of Manuel Elizalde y Diaz - Moreu. Recto (C.) - Almeda Lopez (N.). PRICE : P40.70 SET OF FIVE VOLUMES 'P!79.00 EAST PUBLISHING R-508 SAMANILLO BLDG. ESCOLTA, MANILA 4 - l 3. l 8 Additional PI.20 per book for mailing expenses. ABUSE OF THE PRIVILEGED HOUR So much internal heat has 1'ecently been genera;Ud by politics that no less than two major expWsi.ons erupted m. Congress during the last days of its special session. The detcmatWn, if we may use the same figure of speech, was such that i't wa.s heard not anly through the length and b"eadth of the Philippines but al.oo abroad to the evident embariassment of the entire Filipino people. Both occurred in the Hall of the House of Repres-entatives and partook of the same nature: prim"leged spe.ech, or the use of the privileged hour. The first was the pri'!Jileged "Lett!Jr to Garcia" by Congressman Sergio Osmeiia, Jr., accusi.ng President Ca.r7os P. Garcia of having raceived somewhere 10 million pe.eos' b?-ibe for his 11eto on the Rice and Corn Nationalization Bill. The second was the vaJ.edictor-y address of Congressman Cipriano Primicia.s, Jr., who is scheduled to be ousted soon if ha is no't yet ousted, impugning the honesty and integrity of three membiers of the S1tpr~me Court, Justices Padilla, Labrador and Angelo Bauti,stc.. wko, in compliance with Article VI, Section 11 , of the Constitution, form a v#al part of the House Electora.l Tribunal upcn designation of the Chief Justice. For the first time after Liberation, three members of the highest tribunal of the land were atlMked on the floor of the. House of Representatives for no other rea,.. son than that in a decision of six to thre.e they decla·red that young Prirnici.as, whn Uiter attacked them vnder the mantel of parliamentary immunity, had not been duly electe.d. Prim~ias pointed out no error com1nitted by the three juNts he was accusing or that the-'IJ had erred in their judgment; it was app~ntly enough to him that they were appointed Supreme Cowrt justice:J by Liberal Presidents, and that the ~ior member 1vho presi.des over the Hauss. Electoral Tribunal is al,. 1.f-gedly his father's ''political arch-rival" in Pangasinan. With aU the riecklessness and aba'tUlcJn of one sure that what M was saying was absolutely privileged and that he crnild not be held accountable for it, Congressman Primicias even forgot that he was casting a reflection on. thie Chief Justice · who under the Constitution i.s directly responsible for the designation of the three Justices it•, the House Elecioral T'1'ibunal. He gave vint to his anger and disappointnient by charg· ing that because they voted with the three Liberal members and not toith the three Nacionalistas, they made thiemselves "unwO'rthy to ?'em.a.in as ·members of the Supreme Court from which they shaul<l volunta1-ily [Jet out 01· g.et thrown out." The language u.sed, in our opinWn, was not only violent and improper but wholly. unparliamentary and it's a pity that the congressman from Pangasinan used it. In th<J same vein, w.e believ.e that, in the absence of any vroof or evidence, the charges hurled against the Justices (Cont'imted on po.91 ' 162) COMPENSATION FOR COUNSEL DE OFICIO In the convention of judges held in May, 1958, EzSenatxn· Vicente J~ Francisco. sugge,stetl the giving of compensation to counsel de oficio, as part of his over~ all proposal to improve tlve administration of ju,st·ice in the Philippines. He pointed out that "almost every day, we see courts appointing counset de oficio for accu$ed who appear witlwut lawyer. Thes~ lawyers de ofieio are required to render service for the defernse of the accused as a necessary service; for the maintenance of public justice. ThetiJ are not paid anything for such service. It 1s said that the remuneration of such extra work must be found in the gene1·al income of his profession of which it is one of the incidents. Thi.s view is not consistent with sound public policy. If the State pays to convict its guilty subjects, it shoitld al.so pay counsel to acquit those who are innocent. The State of Nettv Ym·k pays the appointed attorney in capital offenses $1,000. 00. It is sug·gested, therefore, that attorneys de oficio re·ceio11.1e reinuneration from the Government. Only in very ra1·e cases do attorneys de oficio render their services 1dth enthusiasm. They usually ask for postponemm:t of t:ial be~ause they have to attend to ca.aes f01· whu:h. thei-1· services have been paid. By giving remu11eration to suck lawyers, we will help rnany young lawyers make a living out of their profession. As everybody knowtJ., the law profession is overcrowded and many lawyers cannot live on what they iearn from their pract~oe, and eventually they are compelled to accetpt posit·1.ons as clerks, police officers or civil service men." Congrnss recently (August 1, 1959) enacted into law Ex-Senator Francisco's proposal and is now P--m.bodied hi Republic Act No. 2613, mnending Republic Act 296, the perUnent portion of which reads as follows: "SEC. 6. Disposition of moneys paid into court. - All moneys accruing to the Governm.ernt in the Supreme Court, in the Court of Ap-peals, and in the Co.urts of First Instance, including fees, fines, forJe:itures, costs, ,or. other miscellaneous receipts, and all trust or deposttory funds paid into such courts shall be received by the corresponding clerk of court and, in the absence of special provision shall be paid by him into the NatiOnal Treasury f.o the credit of the proper account or fund and under such regulation.~ as shal,l be prescribed by the Auditor General: Provided, however, That twenty .per c~nt of all f(es collected shall be set aside as special fund for the compensation of attorneys de oficio as may be provid€d for in the rules of court." Unfortunately, however, the laudable objective of the law has th'US far remained unattained because no provision in the Rules of Court has yet been made for its imple· men'tation, as requfred by the Act. The e-nactmen-t of implementing rules is therefore imperative. June 30, 1960 LAWYERS JOURNAL JG! PRESIDENT EISENHOWER'S ADDRESS TO CONGRESS' I am keenly sensible of the high honor this assembled body has paid to me and to my oountry by inviting me to be present hHe and to addrE!SS this body, a body representing the political leadership of a great republic in the Asian sector. I am indeed overwhelmed by ~our kindness and I can say only "Mabuhay!" (Applause), You will understand the flood o( memories that swept ovet· me on coming back to this land, where I feel that I am revisiting a11 old home _ and old friends and renewing ties of long standing. Here my wife and I sprnt _ four happy years, making friendships that we shall ever cherish. Herc our son went to school and grew into young manhood. Here I saw the first beginnings of this Republic and worked with men whose vision of g!-eatness for the people of the Philippines has been matched by its realization. Through many days I could talk of life as I knew it hern a quarter of a century ago. Fo1· hours on end I could make comparisons of what was in those days and what is now. Bu-t I have only minutes in which I c.an address myself to the subject. Even in the short space I have been here, however, I have been struck by the vigor and progress that is evident everywhere. I see around me a city reconstructed out of the havoc and dest:·uction of a world war. I know of the Binga Dam; and the Maria Cristina Power and Industrial Complex; the Mindanao highway system ; rural electrification; the disappearance of epidemic diseases; the amazing growth of Manila industry. Everywhel'e is inespablc physical evidence of energy and dedication and a surging faith in the future. But of deeper significance is the creation here of a functioning democracy-a sovcl'· eign people directing thci1· own destinies; a sovereign people con. cuned with their responsibilities in the community of nations. Those responsibilities you have discharged magnificently even as you toiled to rebuild and to glorify your own land. Certainly, we Americans salute Philippine pa!·ticipat:on in the Korean war; the example set the whole free world by the Filipino nurses and doctors who went to Laos and Vietnam on Operation Brotherhood; your contribution to SEATO and the defense of your neighbors against aggression; your charter membership and dynamic leadership in the Unit.ed Nations; your active efforts to achieVe closer aultural and economic relations with other Southeast Asian countries. The stature of the Hepublic of the Philippines on the world scene is the creation of it-s own people---of their skill; their imagination; their courage; and above all, their commitment to freedom . But their aspirations would have gone unl'ealized were they not animated by a spirit of nationalism, of a patriotic love of their own land and its independence, which united and directed them and their efforts. •Text of the addl'""S by t'NlOlidenl Dwight D. Eiacnhower before " s1>e,,ial join! aeuiott of the Senate nnd the H ouse or Repr<"Senta.tives. Manila, the Philippines, .1unel5, 1960. ABUSE . . (Continued from page 161) were 11tte1·l71 false and irresponsible. We a!free with an En,qlish writer when he 1·emarked that a iudge 01· a just-i~e puts off his relation!i to anybody when he puts on ?is robes, and that no bulge howeve1· hon1est and prudent w. a?ove criticism. But precis~l?f because judges fall within the purview of public c1·iticism, i1tmost care shou'rl. always be taken, because of the delicate nature of their This spirit was described by your late great leader and my Jl('l'SOnal friend, Manuel Quezon, when he with great eloquence said: "Rightly conceived, felt and practised, nationalism is a tremendous force for good. It strengthens and solidifies a nation. It preserves the best traditions ;)f the past and adds zest to the ambition of enlarging the inheritance of the people. It is, therefo1e, a dynamic urge for continuous self-improvement. In f ine, it enriches the sum total of mankind's cultural, moral, and material pos5essions through the individual and characteristic contribution of each people." Significantly, President Quezon liad this caution to offer. '·So Jong as the nationalistic sentiment is not fostered to the point whel'e a people forgets that it forms a part of the human family; that the good of mankind should be the ultimate aim of eac:h and eve1·y nation; and that Conflicting national interests are only temporary; R"nd that there is always a just formula for adjusting them- nationalism then he said, is .'.l. noble, elevating and most beneficial sentiment . " In theSe words of clarity and timeless wisdom, President Q11,..1.0n spuke a message fovever applicable to human a_ ffairs, partiCl:lady fitted to the circumstances of this era . Nationalism is a mighty and a relentless force. No conspirncy of power, no compusion of arms can stifle it forever. The <~onstructive nationalism defined' by Pl'esident Quezon is a noble, rcrsistent. fiery inspirntion; essential lo the development of a young nation. Within this ideal my own country since its earliest days has striven to achieve the American dream and destiny. We respect this quality in our sister nation. Communist leaders fear constructive nationalism as a mortal foe . This fear is evident in the continuing efforts of the Comr.1unist conspiracy to penetrate nationalists' movements, to pervert them, and to pirate them for their own evll objectives. To dominate-if they can-the eternal impulse of national patriotism, they use force and threats of fo-1·cc, subvc-11 sion and bribery, propaganda and spurious promises . They deny the dignity of men and have subjected man.y millions to the execution of master plans dictated in faraway places . Communism demands subservience to a single ideology, to a straight jacket of ideas and approaches and methods. Freedom of individuals or nations, to them is intolerable. But free men, free nations, make their own rules to fit their own needs within a universally accepted frame of justice and law. Under freedom, thriving sover-cign nations of diverse political, economic and social systems are the basic healthy cells that make up a thriving world commuriity. Freedom and independenr'e for each is in the interest of all. F or that very reason- in our own enlightened self-interest in the interest of all our frirnds-the purpose of American as. sistance programs is to protect the right of nations to develop the political and social instittition of their own choice. None, we lielieve, should have to accept the extremist solutious under the position, that whatever is said against them is based on solid fact and not on ,<;pite. And when a congressman in a priviliqed speech a.tt(},Cks the-m, riaht ·in the hall of the con.oress, where they cannot defend themselves, his parliarrumtary irnniunity makes it an oblipq,tion of honor for him to exercise such privilege with the fullest sense of respons·ibility. 162 LAWYERS JOURNAL June 30, Hl60 whip of hunger, or the threat of ar~ned attack and t.lomination. We, free, self-governing peoples readily accept the fact that there is a great variety of sooial, political, and economic systemf: in the world, and we accept the further fact that there is no single best way of life that nnswers the needs of everyone everywhere. The American way satisfies the United States. We think it best for us. But the United States need not believe that all should imitate us. What we do have in common with the free nations in Asia, Africa, Europe and Latin America are basic and weighty convictions, more important than differences of speech and color and culture. Some of these convic:tions are: thut man is n being capable of making his own dedsions; that all people should be given a fair opportunity to use their God-given talents, to be worthy heirs of their fathers, to fulfill their ~estiny as children of God; · that volunta1 y cooperation among g1·oups and nations is vastly preferable to cooperation by force-indeed, voluntary cooperation is the only fruitful kind of effort in the long run. True enough, in a too lengthy period of history, wme European nations seemed convinced that they were assigned the mission of controlling the continents. .But always powerful voices within these countries attacked the pol:cy of their own governments. And we of the AmeriC"'Jll Republics-twenty-one indepe"nJ. cnt nations, once European colonies----denied in arms and in bat•tle died there because true nationalism was a more potent force. Since 1945, thirty-three lands that were once subj\!ct to Western control have peaceably achieved self-determination. These countries have a population of almo::it a billion p1.:oplc. Durini; the same period, twelve countries in the Sino-Soviet sphere have been forcibly deprived of their independence . The question might be asked: Who are today the colonialists? The basic antagonism of the Communist system to anything which it cannot control is the single, most important cause of the tension between the free nations in all theil' va1·iety on the one hand, and, on the other, the rigidly controlled Jed Communist bloc. One purpose of the Communist system's propaganda is to obscure these true facts. Right now, the principal target is thu United States of America. The United Siales is painted as a1: imperialistic seeker of limitless power over a!l the peoples of the \Uorld, using them as pawns on the chess.board of war, exploiting them and their 1 ·esources to enrich our own economy, degradini.: them to a role of beggarly dependence. The existence, the prosperity, the prestige of the Republic of the Philippines proves the falsity of those charges. You, as a people, know that our American Republic is no empire of tyr<inny. Your leaders repeatedly ha·1e so testified before the world. But for a few minutes I should like to speak to you on what America stands fol': what it stood for before I became P1·esident and what it will continue to stand for after I have left office . More important than any one year, any one incident, or a11y orie man is the role we have played through our whole historythe role we shall continue to play so long as our J{epubl ic endures. Two hundred years lacking sixteen, have passed since our forefathers proclaimed to the wodd the tl'Uths they held self-evi<l· ent; that all men arc created equal; that t.hey are endowed with inalienable rights to life, liberty and the pursuit of happiness; that governments are instituted nmong men to secu re these rights. deriving their j ust powers only from the consent of the governed. On the day of that proclamation, you and we and scores of othet· now free nations were colonies. Mankind everywhere \\·as engaged in a bitter struggle for bare survival Only a few by the accident of birth enjoyed ease without back-breaking toil. Kaked power, more often than not, was the decisive element in human affairs . Most men died young after an all too short life of poverty. Since then, free l'nen-using their rights, embracing their opportunities, daring to venture and to risk, recognizing that justice and good will fortify strength-have transformed the world. The wilderness and jungle of nature have \)een conquered. The mysteries 'of the universe are being unlocked. The poWers of the elements have been harnessed for human benefits. The .rncient tyrannies of hunger and disease and ignorance have been r{']entlessly reduced in their domains. The evil of our forebeius' time were manifold and entrenched and often accepted without murmur . But to free men who ~aw in their fellow men the image of God, who recognized in themSl'lvcs a capacity to transform their circumstances and environment-to such free men, these evils were unbearable. Not all these evils were vanquished at the first assault. Intit:ed, many still survive. Not always was success persistently prosecuted to ultimate triumph. Free men, however mighty theil' i1~spiration, are humanly ~rail. At times they may be fearful when they should be girding nnd brncing themselves for more vigorous effort; trading words when they would be working; bickering over trifles when they should be uniting on essentials; rioting when they should be c:.hnly planning. Often they may dissipate their energies in futile and wasteful exercise . O~ten they arc mistaken or for a while misled. Being human these thir.gs are true about all of Nevertheless, the resou rces of free men Jiving in free communities, coopcri>.ting with their neighbors at home and overseas, constitute the mightiest creative temporal force on earth. In your sister Republic of the United States, the greatest nchievement of our history is that our rebels against colonialism against subjection, against tyranny, were the first in this era to raise the banner of frMom and decent nationalism, to C'arry it beyond your own shores, and lo honor it everywhere. What we stood for in 1776, when we were fighting fo1· our own freedom, we still stand for in 1960. To maintain our stand for pence and friendship and freedom .rmong the nations, the United States must remain sti·on;; and fnithful to its friends, making clear that propaganda p1·essure~, rocket 1~attling and even open aggression are bound to fail. Beyond the g·uarantees of American strength, we seek to c:.pand a collective security. 5EATO demonstrntes what can be accomplished. Since its inception not one inch of free Southeast Asia territory has been lost to an aggressor . Collective serni·ity must be based on all fields of human en. cicavo1-, requiring cooperation and mutual exchange in the a reas of politics, economics, culture and science . We believe in the ex1mnsion of relations between nations as a step towa1·d more formal regional cooperation. In accord with this belief, we support the initiative taken by the Goveriiment of the Philippines during the past several years in establishing closer ties with its neighbors. Patience, forebearance, integ1;ty, n11 enclui·ing t1·ust, must !Jet\\een our two countries characte11ize om· mutual relations . Never, I pray, will the United State:,; because of its favored po3ition in size and numbers and wealth, attempt to dictate or to e.xercisc any unfair pressure of any kind, or to forget or to ignore the Hepublic of the Philippines-its equal in scvereignty dignity. (applause) And never, I pray, wi!l the Philippines deem it advantageous either at home or abroad or to make a whipping bo~· of the United States. (applause). Each of us pn,iudly recognizes the other as a sovereign equal. My friends, at this point, I ju3t want to interpolate one ~i mple thought; in the cooperative efforts for own security, for o.dvancing the standards of Jiving, of peoples, for everything that June 30, 1960 LAWYERS JOURNAL 103 PRESIDENT EISENHOWER'S SPEECH ON THE EVE OF HIS DEPARTURE' 1\11·. President, you, on behalf of the Filipino people, have just bestowed a great honor upon me. Proudly, I accept, in the name of the American people, the nward of Rajah in the Ancient Order of Sikatuna. My friends, t.his Luneta was for more than four years the se'ene of my habitual evening walks. To this day it lives in memory as one of the most pleasant - even indeed one of the most romantic spots - I have known in this entire world. (Applause) Leaving the front entrance of the Manila Hotel of an evening I could walk to the right to view the busy docks where Philippine commerce with the world was loaded and unloaded. From here, looking across the peaceful waters of Manila Bay, I could see the gorgeous sunsets over :Marivcles. Walking toward lhe Club of the Army and the Navy, and looking down toward the city itself, I nearly always paused for n moment before the statue of the great Jose Rizal before returning to my quarters. One thing that made those evening promenades so pleasant, so meaningful, was the deep sense of feeling I had of Philippine-American friendi;,hip. To you, assembled before this platform - to Filipinos and Americans everywhere and to those who are gone from among us - is due the credit of having forged our close friendship in war and in peace. (Applause) Now, upon both om peopl::s still rest the grave responsibility of working together tirelessly in the promotion of liberty and world peaoe. The voluntary association of free peoples produces - from the sharing of common ideals of justice, equality and liberty -· a strength and moral fiber which tyrannies never attain by coercion, control and oppression. Such tyrannies cnn, of course, concentrate upon a single objective the toil of millions upon millions of men and women; working endless hours; denied even the smallest happiness of human living; sometimes whipped, sometimes cajoled, always treated as robots bereft of human dignity. For a spaoe of years, particularly if the peoples they regiment havC' known little of freedom or of a decent prosperity, such dictatorships may seem to achieve marvels. But in their denial of human dignitytheiri destruction of individual self-esteem - they write the eventual doom of their system. Long before many of us here today were bom, a great Filipino, Jose Rizal, in vivid and eloquent language, foretold the eruption of these tyrannies and predicted their ultimate fate. He said: "Deprive a man of his dignity, and you not only dep:·i\·e h''ll of his moral strength but you a!So make him useless even for •Remarks by Pr..,,ident Dwil(ht D. Eisenhower at J)ublic reception Qt Luneta, June 16. 1960. we do together, there is of course differences in the ability of each nation to make contributions. Each of us, as an individual, is different from every other individual. Physically, mentally, in the possession of world goods, we are rnmewhat different but I submit, members of the Congress, that the1 e is one field where no man, no one, no nation need take a secondary plaC'e, and that is, in moral leadership. The spirit of a people does not-is not-tr. be measured by its size or its riches or even its age . It is something that comes from the heart, a11d from the very smallest T1ation can come some of the great ideas, particularly those great inspirational ideas that inspire men to strive always upwa:·d and onward. Therefore, when I say the1·e are two nations that are sovereign equals, I mean it in just that spirit in the sense that those that wish to make use . of him. Every creature has its stimulus, its mainspring. Man's is his self.esteem. Take it away from him and he is a co1pse ... " Now, tyra nnies of many sorts still exist in the world. All are i·ejected by free men. Some authoritarian governments, being narrow in ambition, content themselves with local and confined dominance. Others are blatant in their boasts of eventual su1>rcmacy over continents and even the world; constant in their boast that eventually they will bury all systems of freedom. That boast will never come true. Even in the lands that Communists now master with an iron rule, the eternal aspiration of humanity cannot be forever suppressed. The truth enunciated by J ose Rizal is universal in its application. But tyrannies, heforf\ their fated deterioration and disappearance, can, sometimes for many years, engulf and eiislave free people unable to resist them. In that knowledge, the free wodd -- two.thirds of the earth's population - step by step moves towards a more effective part'nership that freedom, human dignity, the noble heritages of many centuries may withstand successfully all aggression. Some nations are still reluctant to commit themselves fully; others are divided on commitments already made, or of bribe; possibly oonfused by propaganda and threat - oppose even the most obviously profitable associations. But most stand firmly together. The free world must increase in ·strength - in military defenses, in economic growth, in spiritual dedication. Thus the free world will withstand aggressive pressu .. es, and move ever forward in its search for enduring peace. Your government has recently reaffirmed your determination t-O stand steadfast by joining only two weeks ago in t he oommunique issued in Washington by the Council of Ministers of the eight nations of SEATO. They staled clearly that; "The Council availed itself of this timely opportunity to reemphasize the firm unity of purpose of the member countries of SEATO and their determination to maintain and develop, both individually and collectively, their peac~ and security in the Treaty Area." May I say here that the United States is proud, indeed, is thankful to be so closely associated and so staunchly allied with t he Philippines both in SEATO and in the Mutual Defense Treaty h~tween our two countries. (Applause) But in this world of continuing tension and yearnings for social change, it is insufficient that the free world stand ·Static in its defense of freedom. ·we must, all of us, move ahead with imagination and pasitive (Continued on page 191) we (applause) that you have just as much to contribute to the world and to yourselves and to freedom as the greatest and most powerful nation in the world. (Applause). F inally, in the great cause of peace and friendship and freeclom, we who are joined together will succeed. The eternal aspirntions, purposes, ideals of humanity inspire and hearten and urge us to success . But we face repeated challenges; endless .temptations to relax, continuous campaigns of propaganda and threat. Let us stand more firmly together against them all, and so doing and with God's help we shall he great and (prolong applause) good friends. 164 LAWYERS JOURNAL J une 30, 1960 SUPREME COURT DECISIONS / Nationnl S liipyard mu{ Steel Corpor<1tio11, P et itfoll.{H", vs. Court •·/ fod11 strial Rcla t'ious, Jose Abiday Pt al., Uespo11detils, G.R. No. L-13888, A pril 29, 1!)60, B cngzo11, J. LABOR LAW; WHEN COURT OF INDUSTRIAL RELATIONS HAS JURJSDICTION OVER CLAIMS FOR OVERTIME CO!llPENSATIOr:l. - In the case ut bnr, the controversy between 39 employees and the NASSCO over payment for work in exce~s of eight hours, including Sundays, legal holidays and nighttime, may properly be regarded to be within the scope of the powers of tjie Industrial Court. since it is practically a. labor dispute that may lead to confli~t between the employees and the management. If the claimants were not actual employees of the NASSCO, a s for example, they ha\'e severed their connection with it or were dismissed, but do not insist on reinstatement, their claim for overtime compensation would bcrome simply a monetary demand properly cognizable by the re~u\ar courts and not by the Court of Industrial Relations. SilTH'Qll M. GQpr11uco & Lorenzo R .. ~fosq11eda, for the petitioner. Onofn. P. G1rnvaru, for the respondents. Alfrrclo Salas, for the respondent Court C. I . R. DECI S IO N As stated in petitioner's memorantfo m in lieu of oral an,'1.1r>1ent, the question in this case is whether the Court of Industrial Relations has jurisdiction to take cognizance r.f monetary d t?.iins for overtime work. The facts are: On April 15, 1957, Jmoe Abidn~' and 38 other persons, all emr-loyees of the National Shipyard and Steel Corporation - NASS. CO for short - filed with the said Court, a petition for addi. tional compensation due to overtime services rendered. They alleged they had been required by the Corporation t.o work, and worked, on Sundays and legal holiciays, at nighttime, and morn than eight hours a day, without receiving extra wages. Resisting the clnim, the Corporation challenged the Court's jurisdiction. After trial, the Court on November 22, 1957, entered an order requi ri ng additiorial compensation for such overtime work. It also directed t.he Examiner of the Court to compute from the books and l'ecords of the Corporation the amounts truly owing to each of the claimants. A motion for reconsideration was denied. Then on February 14, 1958, the Court Exami11cr rendered a partial report. Over the Corporation's opposition, the Court approved such report and accordingly direct.cd execution of its order to pay. Whereupon NASSCO announced its intention W appeal for review to this Supreme Court ; and on April 2, 1958, it filed a petition (G .R. No. L-13732) submitting the following issues : " 1. Does the Court of Industrial Relations have the jurisdiction after the passage and effeetivity of the Industrial Peace Act (Republic Act No. 875) on June 17, 1953, over money claim for alleged unpaid overtime compensation? and 2. ls the ''Order" of the Court of Industrial Relations which directs the Court Examiner to compute and report to the court the amount of overtime compensation of the claimnnts a decision \•1hich becomes final when no appeal is interposed therefrom within the reglamentary period? Denying the jurisdiction of the Industrial Court, NASSCO cited several decisions of this Tribunal which at first glance, sustained its position. However, in viC'w of other decisions upholding such jurisdiction, the petition fo1· review was on April 11, 1958, dismissed /01· lack of ?nerit. A motion for reconsideration failed. Thereafter, en May 16, 1958, after the said dismissal of NASSCO's petition, the Court Examiner presented to the Industrial Court another partial report of the additional compensation tc which tht> claimant-employees were entitled for overtime work. NASSCO filed its opposition, but it wr.s overruled pnrtly because it was filed b<>yond the five-day period provided by the Rules of Court; partly because the matter of payment and the computation of overtime pay had been practically approved by the Su· premc Court when it dismissed the petition in G. R. No . L-13732; ti.lld principally because the opposition to the Report ( 1) did not rest on an}' valid foundation . Consequently, 011 June 14, 1958. NASSCO submitted this new petition f or review by writ of certiorari, against the same par. ties impleaded in G.R. No. L-13732 and raising the same question of jurisdiction of the Indust rial Court. Besides, it alleged that its opposition to the additional Report had been set aside in pursuance of a Ruic of the Industrial Court, which ~ petition.er conh'nds - is either non-existing or illegal. This petition was given due course because of the allegations concerning the five-day period. Upon careful consideration, however, it appears that the objci:tion to the Report (2) turned out to be without factual basis. Realizing its slim chance to prevai l on question of fact, pe· titioner finally limited it.s contention to the question of jurisdiction. However, that point was the pri11(:i pal isi;sue in G.R. No L-13732, between the same parties arising from the same particular controversy before the Industrial Court; and we ruled hy our resolution of April 14, 1958, that petitioner's petition on the matter had no m.erit. That resolution having become final, i ~ now the law of the case ; and the implementation of the order thereby upheld, may not be blocked by this second petition. At any rate, we think that this controversy between 39 cmr!oyees and the NASSCO over payment for work in excess of <>ight hours, including Sundays, legal holidays and nighttime, may properly be regarded to be within the scope of the powers of the Industrial Court, since it is practically a labor dispute that may lrad to conflict between the employees and the management. If the claimants were n~t actual employees of the NASSCOe.g . they have severed their connection with it or were dismissed, but do not insist on reinstatement - their claim for overtime compensation would become simply a monetary demand propel'ly cognizable by the regular courts. The petition for review is denied. The order appealed from i~ affirmed. Paras, C.J., llautistci A 11yclo, La;n·ador, Concepcion, B1ulen· cia aml G11licr1 ·cz David, JJ. , concurred. Padilla, Montemayol' a11d Barrcm, JJ., took no part. ( 1) The computation of wages was inexact, and there deductions to be made, etc. (2) See footnote No. 1. J unc 30, 1060 LAWYERS JOURNAL 165 II / Pl·icc Stabilization C&rporatnon, Petit-ioner, vs. Court of !nd:ustrial Relations and Prisco Workers' Union, et al., G.R. No. L13806, May 23, Hl60, Barrera, J. 1. LABOR LAW· OVERTIME COMPENSA'fION; JURISDICTION. - Wh~re the employer-employee relationship is still existing or is sought to be reestablished because of its wrong:Cul severance, as where the employee seeks reinstatement, the Court or Industrial Relations has jurisdiction over all claims arising out of, or in conneation with the employment, such as those related ~o the Minimum Wage Law and the Eight-Hour Labor Law. After the termination of the relationship and no reinstatement is sought, such claims become mere money claims, and come within the jurisdiction of the regular courts. " CIVIL L!_\W; CONTRACTS; RATIFICATION. - In the case at bar, a contract of employment "Xists between petitioner and and claimants-respondents, and that pursuant to the terms there· of, the latter are to render 8 hours labor. When petitioner's official required respondents to render an additional hour work, and the respondents had to comply, a supplemental contractual obligation was created both under the terms of the original contract of employment and of the Eight Hour Labor Law, such that additional work was to be compensated. That the memorandum giving rise to this situation was original!y ·unauthorized did not make it illegal to the extent of not being capable of ratification by the duly authorized official of petitioner corporation. DECISION This is a petition for review by ce1 tiorari tnken by the Pr'c" Stabilization Corporation (PRISCO) from the decision of the Court of Industrial Relations (in case No. 840-V[67]) of December 2i, 1957. It appears that. under date of F ebruary 15, 1955, respondent PRISCO Workers' Union, a labor organization duly registered with the Department of Labor, filed with respondent court, a petition vraying that herein petitioner-employer PRISCO be ordered to pay its present employees, claimants-members of the said Union, their basic pay and at least 25% additional compensation for one hour overtime work they had previously rendered as security guards of petitioner, from April 17, 1958 to January 13, 1954, and the additional compensation of at least 25% for the work they have been 1·endering on Sundays and legal holidays, from March 7, 1954 and Or, March 15, 1955, the petitioner filed an answer denying respondent Union's claim for payment of one hour overtime work, asserting that such ov.ertime, if rendered, not having been authorized; although some of the said claimants had rendered work on Sundays and legal holidays, the same had already been paid from March 6, 1954; and f inally alleging that the said claim for work on Sundays and legal holidays had already been withdrawn. The case was thereafter heard and. after hearing, respondent court on December 27, 1957, issued an order requiring petitioner to pay the said claimants, members of respondent Union, their basic pay and 25% additional compensation for the one hour overtime work they had rendered from April 16, 1953 to January 1S, 1954. However, for lack of evidence and in view of a petition signed .by 59 of the 131 claimants wlthd:·awin;:t" th ~ir claim for pay for work per-formed on Sundays and legal holidays, the court dismissed the second claim. On January 8, 1958, petitioner corporation filed a motion for reconsideration of said order, which motion was resolved by res· pondent eourt, en bane, as follows: 2 judges voting for strai.g-ht denial; 2 judges voting for the setting aside of the order as null and void on the ground of lack of jurisdiction; and 1 judge ooncurring in the denial of the motion for reconsideration, on the ground that the question of lack of jurisdiction has not been raised in the pleading. As a result, petitioner ccrporation has filed this present petition. There are 2 questions of law to be determined in this case, t.0 wit: (1) whether respondent court had jurisdiction over the present claim for overtime pay filed by respondent Union; and (2) whether the same couit correctly applied Articles 1393 and 1396 of the new Civil Code to the case. As to the first question, there still seems to be some laek of clear and definite understanding of the jurisdiction of the Court of Industrial Relations, with regards to money claims of laborers or employees against their employers The fact that in the present case the judges themselves of the Court of Industrial Relations, are divided on this matter, attests to the existence of such misapprehension. It is well therefore to review some of the leading decided cases touching on this point, fo!" the purpose of clarifying this fundamental question. In the PAFLU v. Tan oasc, (') we held that the Court ol Industrial Relations has jurisdiction over cases (1) when the labor dispute affects an industry which is indispensable to the national interest and is So certified by the President to the industrial court (Sec. 1(}, Rep. Act No. 875); (2) when the controversy refers to minimum wage under the Minimum Wage Law (Rep. Act No. 602); (3) when it involves hours of employment ~nder the Eight-Hour Labor Law (Com. Act No. 444); and (4) when it involves an unfair labor practice (Sec. &-a, Rep. Act No. 875). Later, in the oase of Detective and Protective Bureau Incorporated v, Felipe Guevara, et al., (l) involving claims for refund of deductions from respondents' salaries, payment of adciitional compensation for work performed on Sundays and holidays, and for night work, and grant of vacation and sick leave pay this Court held that the Court of Industrial Relations had jurisdiction, inasmuch as the claimants were all employees of the Detective and Protective Bureau, Ina. at the time of the filing of their claims in Case No. 764-V in the Court of Industrial Relations. To the same effect is the case of Isaac Peral Bowling Alley v. United Employees Welfare Association, et al. (G.R. No. L-9831, prom. October 30, 1957). Subsequently, in the case of Santiago Aguilar v. Jose Salumbidcs (G.R. No. L-10124, prom. December 28, D57), this Court declared that the Court of Industrial Relations had no longer jurisdiction to hear and determine the claims of ex-employees against their former employer for overtime, wage differential, and separation pays. Again, in the cases of Roman Catholic Arelhbishop of Manila v. Yanzon, et al. (G.R. No. L-12341) and Elizalde & Co., Inc. v. Yanzon, et al. (G.R. No. L.12345) jointly dcdded on April 30, 1958, this Court, in a unanimous opinion, declared: "In the present case, it is apparent that the petition below is simply for th~ collection of unpaid salaries and wages alleged to be due for services rendered years ago. No labor dispute appears to be presently involved since the petition itself indicatts that the employment has long terminated and petitioners nre not asking that they .be reinstated. Clearly, the petition does not fall under any of the cases enumerated in the Jaw as coming within the jurisdiction of the Industrial Court, so that it was an error for that court not to have ordered its dismissal. " Indeed, even under Commonwealth Act No. 103, as amended by Com. Act No. 559, the court below could not have taken cognizance of the present case. For in order for that court to acquire jurisdiction under that law, the requisites mentioned in section 4 thereof ~ust nil be present, (') G.R. No. T."1 l5. n rom Aul?'11 ~ t :n. 1956, 52 O.G. fi835. (2) G.R. No. L8738, prom. May 31, 1957. 166 LAWYERS JOURNAL June 30, 1960 one of them being that there must be an industrial or agricultural dispute which is causing or likely to cause a strike or lockout. With the employment already terminated yea1·s ago, this last mentioned requisite cannot be supposed to still exist." Then came the decision in the NASSCO v, Almin, et al. case (G.R. No. L-9055, prom. Novemlx!r 28. 1958) in which this Cuurt upheld again the jurisdiction of the Court of Industrial Relations to hear and determine the claim of respondents at the time presently and actually in the employ of the petitioner - for oYertime compensation for work they were then rendering since 1950 on Sundays and holidays and even at night. On the sa~e theory, this Tribunal, in the Chua Workers' Union (NLU v. City Automotive Company, et al. case,(l) where the claimants for differential and overtime pays were former employees of the respondent company, ruled that the Court of Industrial Relations had no jurisdiction. The latest case is that of Monares v. CNS Enterprises, et al. (G .R. No. L-11749, prom. May 29. 1959) in which this Cou1 ·t, speaking through the Chief Justice, held that the Court of Industrial Relations and not the Court of First Instance, has jurisdiction where the claimant, although no longer in · the service of the employer, seeks in his petition the payment of differential ar.d overtime pay and his reinsfate-mcnt. by the management, General Manager De la Cru7. told the secu1·ity guards that the reason why it was being cnforc.ed, was to discipline them and that their work was only light and that I hour was of no importance. This, the lower court held, amounted to a tacit ratification of the memorandum, on the part of thrsaid official who, as claimed by petitioner itself, had the power to validly act for it. (See also Sec. 6, Exec. Order No. 350 series of 1950.) Hence, the lower court concluded, applying the provisions of Articles 1393 and 1396( ~) of the new Civil Code, that any defeci:, if any, which said memorandum of the Assistant Chief Sccurity Officer may have at the time it was constituted was, therefore, cor rected. But petitioner urgE's that Articles 1393 anti 1396 refer to vuidable contracts and the questioned memorandum is not such a contract but an order issued by one not authorized and, therefore, is illegal and cannot be ratified tacitly. This view is without merit, There is no question that a cont ract of employment exists bet.ween J>C t itioner and claimimts-rcspondents, and that pursuant to the terms thereof. the latter are to render 8 hours labor. When petitioner's official required respondents to render an additional hour work, and the respondents had to comply (as non-compliance was punishable and actually punished with disciplinary action), a >bupplemental con>tractual obligation was created both under the terms of the original contract of employment and of the Eight-Hour Labor Law, Analyzing these cases, the underlying principle, it wi!l be ' that such additional work was to be compensated. That the menoted in all of them, though not stated in express terms, is that. where the employer-employee relationship is still existing or is sought to be reestablished because of it.s wrongful severance (as where the employer seeks reinstatement), t.he Court of Industrial Relations has jurisdiction over all claims arising out of, or in ~onnection with the employment, such as those related to the Minimum Wage Law and the Eight-Hour Labor Law. After the termination of the relationship and n{' reinstatement is sought such claims become mere money claims, and come within the .jurisdiction of the regular courts. We are aware that in 2 cases,(4 ) some statements implying a different view have been made. but we now hold and declare the principle set forth in the next preceding paragraph as the one governing all cases of this nature. It appearing that in t he present case, the respondent-claim· ants are, or at least were, at the time of presenting their claims, actually in the employ of herein petitioner, the Court of l ndustTial Relations correctly took cognizance of the case. In respect of the second issue, it appears that claimants· security guards have been employed and required to observe a 24-hour guard duty divided into 3 shifts of 8 hours each. On April 15, 1953, the Assistant Chief Security Of!icer of petitioncrcorporation, acting for the Chief Security Officer, issued a Memorandum (Annex A). directing the security guards to report for duty 1 hour in advance of the usual time for guard wo1·k. Pursuant thereto, claimants had been rendering such overtime work until January 13, 1954, when the order was revoked after a change of management. Petitioner, however, contends that said memorandum of the .Assistant Chief Security Officer was issued without authority and, therefore, it is not bound to pay for the alleged overtime. But, as found by respondent court, shortly after t he enforcement of the aforementioned memorandum, the security guards protest· eel to the management of petitioner corporation, more particularly to Mr. Santiago de la Cr uz, General Manager, Atty. Graciano Borja, Director, and ]\fr. Espiritu, Director. Instead of revoking said memorandum on the ground that it was unauthorized (l) G.R. No. L-11655, prom. April 29, 1959. ( 4 ) Mindanao Bus Employees Labor Union (PLUl\I) v. Mindanao Bus Co., et al., G.R . No. L-9795, prom. December 28, 1957; Gomez v. North Camarincs Lumber Cil., Inc., G. R. No. L-l l!l45, prom. August 18, 1958. morandum giving rise to this situation was originally unautho;·. ized did not makt: it illegal to the e:ictcnt of not ,being capable of ratification by the duly authorized official, the General Manager of petitioner corporation. Hence, the lower court correctly applied Articles 1393 and 1396, upon the facts found by it in this case and amply supported by the record. WHEREFORE, finding no error in the deeision appealed from and the resolution upholding it, the same arc hereby affirmed, with costs against the petitioner. SO ORDERED. Pa)'(IS, C.J., Bengzr .m, Mo11tc11111.yor, /Ja uti;;ta Angelo, Labratlor, Concepcion a11d Gutierrez David, JJ., concurred. J.B.L. Reye11, J., on leave, took no part. j Ill · d . . . A . Margarita Leyson Laurent\?, A tnlntstratrix- ppd/ce, vs. E liseo Caunca, Mavant-Appellanr, G. R. No. L-1467'7, A pril 29 1960, Bautista Angelo, J. 1.,ATORNEY'S FEES ; REASONABLE AWARD OF ATTORNEY'S FEES. - In the case at bar, although the services of appellant to the estate were not considered to the satisfaction of the heir and of the court, yet the oourt decided to award as attorney's fees the sum of fl,700.00, in addition to the sum of P80000 already received by him from the former administrator. This award is reasonable considering that the value .of the gross assets of the estate only amounts to Pl5,973.65. ') ID.; WHEN ATTORNEY'S FEES SHOULD NOT BE CHARGED AGAINST THE ESTATE. - Where the contract calls for payment of attorney's fees for services C may render personally to the administratix M, the latter should be the one liable for such services and not the estate, although such services redounded indirectly to the benefit of the estate. ( 5) "ART. 1393. Ratification may be effected expressly or tacitly. It is understood that there is a tacit ratification if, with knowledge of the reason which renders the · contract voidable a nd such reason having ceased, the person who has a right to invoke it should execute an act which necessarily implies an intention to waive his right." "ART. 1396. Ratification cleanses the cont ract from all it~ defects from the moment it was const ituted." June 30, 1960 LAWYERS JOURNAL 167 Fidel J. Silva, for administratrix-appellee. Eliseo Camtctt, for movant-appe\lant. DECIS I ON Honofre Leyson died in the City of Manila on December 18, 1946 leaving no will but real and personal properties worth ra0,275.89. He died single. He left neither ascendant nor descendant, but was survived by Margarita Leyson Laurente, daughter of a sister who predied the deceased. On March 4, 1947, one J usta Gomes, cousin of the deceased, instituted intestate proceedings for the settlement of his estate prnying that she !rn appointed special administratrix and alleging that she was the only nearest collateral relative that survived the deceased. In view of opposition to her appointment on the part of Margarita Leyson Laurente, in order not to delay the appointment _ of a regular administrator, on December 8. 1!)47, Pablo M. Silva and Victorio L. Rodriguez were appointed ' joint administrators, though before their appointment Justa Gomes was allowed to act as special administratix. On January G, 1948, the court issued an order requiring all persons having claims against the estate to file the same with the clerk of cpurt within six months from first publication, which orde1· was publish in a newspaper on January 10, 17 and 24, 1948. Then a series of incidents had taken place relative to the claim of Justa Gomes for compensation as special administrairix as well as the claim of her counsel A Uy. Pablo M. Silva for at. turney's fees, including the incident relative to the appointment of the Philippines National Bank as regular administrator, as enumerated in appellant's brief, which reached not only the Court of Appeals but the Supreme Court. These incidents a1·e oited as instances showing the extent of the services rendered by appellant redounding to the benefit of the estate. Other incidents refer to the claims of Justa Gomes that she was a partner of the cieceased in acquiring the assets left by him upon his deatll, which was also opposed by appellant in representation of hi~ client. Then came· several attempts made by Atty. Pablo M. Silva on behalf of Justa Gomes to deprive MargaJ"ita Leyson Laurente of her right to inherit the properties which culminated in the denial of the claim of Gomes and in the declaration of said Margarita as the sole heiress of the estate. In all th::se incidents appellant intervened as counsel of heiress Margal'ita. ,On July 27, 1954, appellant filed an amended motion with the court praying that his attorney's fees for services rendered not only in behalf of Margarita Leyson but of the estate be fixed 3t P5,000.00 considering the volume of work performed and the extent of the services rendered by him not only for the benefit of his client but aho for that of the estate without prejudice of deducting from said amount the sum already advanced to him a.-; partial payment of his services. On August 9, 1955, the l!dministratrix and sole heiress of the estate, who was appellant's former client, filed a vigorous opposition alleging, among other things, that appellant has already collected the sum of P801).00 from the estate as attorney's fees with prior authority of the court while he also colected the sum of Pl,700.00 from the former administrator without authority of court, which latter amount forms part of the funds of the estate which were squandered by former administrator in connivance with appellant, so that, in her opinion, appellant was only entitled to the sum of P'800.00 as attorney's fees, for which reason sl}e prayed that he be ordered to return to the estate the sum of f'l,700.00 he received without s3nction of the court. In said written opposition, the administratrix makes a narration of several incidents wherein appellant has participated but where he has proven to be remiss in the pe1 formanoe of his duties as counsel. On June 5, 1958, the court issued an order wherein, insofar as the claim of appellant is concerned, it states: "Regarding the fees of Atty. Eliseo CauncB., this Court hereby award said attorney the amount of f>l,700.00 as fees for services rendered for and in behalf of the estate, which amount of Pl,700.00 has already been paid to him by the former administrator Victorio L. Rodriguez." Di~satisficd with this orcler, he interposed the present appeal. It appears that in contracting his services as counsel of Margarita Leyson Laurente who claims to be the sole heiress of the estate of Honofre Leyson, appellant entered into a written cvntraet with said Mal'garita ·to the effert that if after the services had been rendered she would get nothing, counsel would a!ro get nothing, but if she would secure what she wanted which is to be clcclared as the sole heiress of the estate, then counsel would be given reasonable fees. Later, however, this contract was amended by fixing his professional fees at P3,000.00 which ccntract is now made the basis of appellant's claim. But berause of the extra sei·vices he claims to have rendered to l\Iaq,rarita, a;; well as to the estate, he filed the present amended claim praying that his attorney's fees be increased to P5,000.00 which, as already stated, was strongly objected to by the present administratrix who is the very client who conh'acted his servkes and with whom he executed the contract abovementionccl. The question to be determined is whether the trial court acted conectly in awarding to appellant as attorney's fet's only this amount of t'l,700.00 which he has already received from the former adminisfrator. We are inclined to uphold the affirmative. In the first 11\ace, the contract he entered into v:ith Margarita Leyson Laurente was in connection with the services lie l'endered to the latter for the purpose of enablng her to be dedared as the sole hefress of the estate. Margal'ita was forced to enter into such contract in view of the claim of Justa Gomes th.tt she was the only nearest ~ undving relative of the deceased who was entitled to inherit exclusively his property. In effect, all the services rendered by him were in furtherance of l\Iargarita's interest although indirect· ly they redounded to the benefit of the estate. On the other hand, the record shows that in the course of the proceedings relative to the settlement of the estate, when Vic· h•rio L. Rodriguez was appointed as co-administratoi:, uppellant 11lso acted as his counsel, even if in doing so he had to act adversely to the interest of his client Margarita, and for his services to such administrator, he was paid as attorney's fees with prior 11uthority of the court the sum of P800.00. In addition, as the record shows, he was alsu paid by said administrator the sum of f'l,700.00, without authority of court, which, as claimed, was taken from the fu nds belonging to the estate which were squandered by said administrato1· in the course of his administration. And although his services to the estate apparently were not considered to the satisfaction of the heir and of the court, yet the latter decided to award as attorney's fees the sum of Pl,700.1 0-0, in addition to the sum of PS00.00 already received ·by him from the former r,dministrator. After examining the record of this case, and considering that the value of the gross assets of the estate, according to the inventory submitted by the administsratrix, only amounts to P15,193.65, we ;i.re the <opinion that this award is reasonable. While it may be true that appellant has rendered services k Margarita Leyson Laurente, the present administratrix, in many incidents which redounded to her benefits, altho indirectly trJ the benefit of the estate, we believe that the fees for such M•rvices should be charged not against the estate but against Margal'ita herself. This is in accordance with the contract he has e!',tered into with her which was presented as evidence. The contract calls for payment of attorney's fees for services he may render personally to Margarita. The latter, therefore, should be the one liable for such services. Wherefore, the order appealed from insofar as the fees of appellant is concerned, is affi1 med, without pronouncement as to costs. Paras, C.J., Bcn[J;:on, Padilla, illontemayOT, /,abradQ?", Connepcion, Endencia, Ba,r1·era a.11d G1dicrrei David, JJ., concurred. 168 LA\VYERS JOURNAL June 30, 1960 J IV Ce>iar Robles a11d Efoa G. de Rvbl£s, Peti6oncrs, vs. Do11a.t(l Ttmario, Consuelo S. de T-im<wio, and the CourlJ of First /nsumcc of Camari11e8 Sur, Rcsp<mdr:i1 ts, G.R. No. /,-13911, April 28, 1960, Lo..brador, J. l. COURTS; POWER OF COURTS ·ro AMEND THEIR JUDGMENTS CAN NOT BE INVOKED TO CORRECT AN OVERSIGHT OR ERROR. - In the case at bar, there was an oversight on the part of the judge and of the Court o.f Appeals in not including an order for the payment of interest, and a parallel neglect of counsel for the plaintiffappellee in nOt seeking a modification of the judgment in either court by the inclusion of the interest on the amount of the judgment. There was a judicial oversight which counsel has negleded to i·emedy both in the Court of First Instance and in the Cou1t of Appeals. The situation is one in which an oversight is sought to be remedied by cla'.iming an ambiguity not apparent .in the dispositive part. While it was within the power or duty of both the Court of First In· stance and the Court of Appeals to have rendered judgment for the interest on the amount of the judgment, .neither of said courts had noted or remedied the omission. The general po,ver of courts to amend their judgments or orders to make them conformable to justice, can not he invoked to correct an oversight or error, as a judicial error may not be -con. sidered as a mere ambiguity, curable without a proper pro· ceeding filed befoi·e the judgment had become fi nal. 2. ID.: I D. - In the present case, considering that the dispo· sitive part of both the decision of the Court of First Instance and of the Court of Appeals, contain no provision on the in· terest to be paid on the judgment, it is beyond the power of the respondent court to issue a writ of execution for the payment of the principal obligation with the interest there. on. because the amount of the interest was not included 'in both judgments: Mqntemayqr, J .. dissenting: 3. ID.: DISPOSITIVE PART OF FINAL DECISION CAN BE CORRECTED WHEN IT DOES NOT REFLECT THE DE· CJSION ITSELF. - There is nothing sacred in the dispo· ioitive part of a final decision which precludes its being touched, amended, corr~ted and clarified, when it clearly appears thnt said disposit.ive part does not reflect and emlxidr :is it should the decision itself. The di~positive part merely con· sclic!ates and expresses briefly the body of the decision and its oonclusion and gives it due course. If it makes a mis· take, clerical or otherwise, through oversight, omission, that mistake could and should, in the interest of justice, be strick· l'n down as an intruder that has no reason to be there and the corresponding 0correction immediately effected. Otherwise, courts of justice would fail in their -mission and the respon~ sibility to administer real, substantial justice or as near it as is possible, to the parties on the merits of their claims and defenses, if said court place too much emphasis on and adhe1·e too closely to the technicalities of the law. 4. ID.; ID.; TRIAL COURT SHOULD BE ALLOWED TO CORRECT ITS OWN ERROR. - Ordinarily, the judgment in a case contained in the dispositive part should be respected and followed, specially when it has become final, but when, as in the case at bar, there is a manifest error or omission which substantially affects the rights of one of the parties, and the trial court which had oommitted that error itself is disposed and wants to correct its error or omission, the Supreme Court should disregard tcC"hnicalities and allow the trial cou1·t to correct its own error. 5. JD.; ID.; FINAL DECISION MUST BE ENFORCED IN ITS ENTIRETY. - A final decision must be enforced faithfully. fully and in its entirety and courts can not enforce the pay· ment of legal interest for another uction fo; enforC"Cment. Otherwise, that would mean multiplicity of suits because tho winning party would have to bring another action to enforce that part of the decision regarding payment of the interest which was involuntary omitted in the enforcing decision. DECISION The records of this Cl.l.Stlo disclose ~hat on May 12, 1!)55, decision was rendered by Hon. T. Surlida, Judge of the Court of F irst Instance of Camarines Sur in Civil Cnse No. 2516, Consuelo J. Timario, plaintiff, vs. Cesar Robles and E lisa G. de Robles, de· fendants, declaring that the defendants are indebted to the plaintiff in the sum of P9,218,00, with interest at legal rate from the f;lin~ of the action until the amount is fully paid. The judgment was not appealed and so it became final. The deeision had been nmdercd on a complaint filed on November 9, 1953, but the extended period of redemption of the land which had been Mid with right to repurchase and which was then subject of the suit did not expire until January 6, 1954. However, no objection was interposed on the ground that the cause of action did not exist at the time of the filing of the complaint, so the objection that the action was premature was" waived. On June 14, H.155, the plaintiff brought another civil action ngainst the same defendants in the same court (civil case No. 3015) , alleging the existence of the jl<.dgment above alluded to and praying that the amount of the judgment (for the sum of PH,218.00, with legal interest from November 9, Hl53 until the full amount is paid) as well as the costs, be paid by the defendants to the plaintiff. In this latter case, the Court of First Instance rendered judgnient on October 17, 1955, ordering the defendants to pay plaintiff "the sum of P9,218.00 with costs against them." No order for the payment of interf'st was made in the decision, although the court made reference to its own decision in Civil Case No. 2516, declaring defendants indebted to plaintiff in the sniount of P9,218.00, together with legal interest thereon from November 9, 1953. This second case, Civil Case No. 30il5, was appealed from the Court of First Instance to the Court of Appeals. The appellate court rendered judgment affirming the decision of the lower court in the following terms : "WHEREFORE, the decision oppealed from is hereby affomed, with double costs against the appellants, the present appeal being frivolous and manifestly intended for delay (Sec· lion 3, Rule 131, Rules of Court)." (Annex "B") The case having been remanded to the Court of First In· st:i.nce for execution, the judge thereof on November 9, 1957, issued an order for execution to issue, including double the amount of the costs, in accordance with the confirmatory decision of the appellate court (Annex C). On December 14, 1957, the order was amended to read ns follows: "The writ of execution is hereby amended by including therein the legal interest in the sum of P9,218.00 from Nov. ember 9, 1953 until fully paid ond by doubling only the cost in the Court of Appeals." (Annex "D"). A motion to reconsider this amending orde1· was denied, for the ulleged reason that in paragraph 1 of the decisiqn, defendants were ordered to pay interest. Henro the case was brought to this Court upon petition for certiorari, petitioner alleging that th~ C(JUl"t of First Instance acted without or in excess of its juris.. diction in ordering the amendment of the writ of execution, which amendment has altered or changed the decision in Civil Case No. 3015, whic1' had become final and executory long before the amendment. On the filing of the petition, We ordered that the petition bP. given due course and that a writ of Preliminary injunction issue to prevent the Sheriff of Camarines Sur from continuing the sale of the properties of the petitioner u_nder the writ of e:x· ccution. The respondents herein have filed an answer to the petition June 30, 19GO LAWYERS JOURNAL 169 fur cC!rtiorari, alleging that the. inclusion of the legal interest in the order sought to be set aside iS in accordance with the de<:ision cf the court in Cjvil Case No. 3516, and that the omission of the legal interest in the dispositive part of the subsequent case the duty of both the Court of First Instance and the Court of Appeals to have rendered judgment for the interest on the amount of the judgment, neither of said courts had noted or remedied the omission. The general power of courts to amend their judgwas a mere oversight which had made the decision ambiguous ments or orders to make them conformable to justice, can not and subject to clarification, ~;uah that an amendment is necessary be invoked to correct an oversight or error as a judicial error in order to make the judgment conform with the pleadings and · may not be considered as a mere ambiguity, curable without a the evidence as disclosed in the record itself. JJroper proceeding filed before the judgment had become final. The authorities cited by the respondents arC! the cases of Locsin vs. Paredes and Hodges, 63 Phil. 87, Velez vs. Martinez n.nd Chacon, 63 Phil. 231, Beltran vs. Reyes, 55 Phil. 1004, am! Halla vs. Director of Lands, 46 O.G. No. 115487, and the citations in 49 C.J.S. Sec. 436, pp. 863-864; 867.868. In the first c::se of Locsin vs. ParedC!S and Hodges, supra, it was found that the word "severally'' was omitted in the decision the amendment of which was sought, and it was decided therein that the omis. sion of the .word ''sevC!rally" in the judgment created an ambiguity which may be clarified ev.en after the decision had become final. Note that the omission of the word "severally" actually created an ambiguity in the body of the decision. In the case of Velez vs. Martinez and Chacon, sitpi:a, Velez was sued in his capacity as administrator of the estate, but in the judgment he was personally made to pay for the amount of the judgrnent. The judgment reads as follows: "'In \.;ew of the foregoing, it is hereby ordC!rC!d that. the herein defendant give to the herein plaintiff Ramon Chacon the possession of the land described in the complaint head· ing this case and to turn ovC!I', furthermore, to the said plail\· tiff the amount of Pl,326.54 \\;th interest at G per cent 1ic1· annum from March 30, 1930, until fully paid, without costs. It is so ordered." A writ of execution was issued by virtue of the judgment, and proceedings having been taken to prevent its enforcement against Velez in his capacity as administrator, the judgment is not agaiI)st him personally but in his capacity as administrator. We held in that case that the. order issued by the judge was rendered he· yond his authority and that the execution issued by virtue of the order was also null and void. In the first case dted, Locsin vs. Paredes and Hodges, we decla1ed there was ambiguity in the judgment, which ambiguity could -be remedied by amendment, a situation which does not ap· pear in the case at .bar, in which no ambiguity exists at all. The second case of Velez vs. Martinez and Charon is also no authority for the case at bar. The action was to annul an order anr' a writ of execution issued in pursuance thereto ; it was not a mere amendment of a final judgment. Neither can it therefore, be applicable to !.he case at bar. So also all the cases of Beltran vs. Reyes, .suPJ•a, and Ralla vs. Director of Lands, JJupra, wherC!in ambiguous stl.!-tements in the decision needed interpretation, and such ambiguities authorized inquiry into the body of the decision for the purpose of clarification. In the case at bar, no ambiguity of any kind exists in the dispositive part of the judgment. The dispositive part of th,, judgment rendered in Civil Case No. 3015, both by the Court of First Instance and the Court of Appeals, absolutely makes no mention of ally interest on the amount of the judgment, hence there is no ambiguity to be clarified from the statements made in the body of the decision. What actually happened in th1.> C" at bar is an oversight on the part of the judge and the Court (lf Appeals, in not including an order for the payment of int,.,· and a parallel neglect on the part of counsel for the plaintiffappellee in not seeking a modification of the judgment in either court by the inclusion of the interest on the amount of the j11dgment. There was a judicial oversight which counsel has neglected to remedy both in the Court of First Instance! and in th" Court of Appeals. The situation is one in which an oversight is rnught to be remedied by claiming an ambiguity not apparent i11 the dispositive part. While it was within the power or within The situation in the case at bar is covered by Freeman on Judgments, quoted by Us in the case of Marasigan vs. Ronquilto, G.R. No. L.5810, prom. January 18, 1954. "The general power to correct clerical errors and omissions does not authorize the court to repair its own inaction, to make the record and judgment say what the court did not adjudge, although it had a clear right to do so. The court cannot under the guise of correcting its record put upon it an order or judgment it never made or rendered, or add something to either which was not originally included al. though it might and should have so ordered or adjudged in the first instance. It cannot thus repair its own lapses and omissions to do what it could legally and properly have done at the right time. A. court's mistake in leaving out of its decision something which it ought to have put in, and ,something in issue of which it intended but failed to dispose, is a judicial error, not a mere clerical mispi-ision, and cannot be corrected by adding to the entered judgment the omitted matter on the theory of making the entry conform to the actual judgment entered." (Freeman on Judgments, Sec. 141, Vol. I, p. 273). "But the failure of thC! court to render judgment according to law must not be treated as a clerical misprision. Where there is nothing to show that the judgment entered is not the judgment ordered by the court, it cannot be amended. On the one hand, it is certain that proceedings for the amendment of judgments ought never to be permitted to become revisory or appellate in their nature; ought never to be the means of modifying or enlarging the judgment or the judg. ment record, so that it shall express something which the court did not pronounce, even although the proposed amendment embracC!s matter which ought clearly to have been s? pronounced." (Freeman on Judgments, Vol. I, Sec. 142, pp. 274-275). A case in point was decided by this Cou1t in Jabon, et al., vs. Alo, et al., G.R. No. L-1094, prom. August 7, 1952. In this latter case, the court declared plaintiff owner of the portions of the land in question, but no directive! was made in the said judgment to put plaintiff in possession of the said portions adjudic· ated to him. After lapse of more than one year since the deci· sion had become final, plaintiff moved for a modification of the dispositive part of the dC!cision by including therein an order directing defendants to vacate the portons of the land in question. We held that the dispositive part of the decision can no longer be modified as ~rayed for. The authorities cited in the memorandum filed by th~ petitioner seem to be in point. They are as follows: "The only portion of the decision that becomes the subject of execution is that ordained or decreed in the dispositive part. WhatC!ver may be found in the body of the deci· sion can only be considered as part of the reasons or conclusions of the Court and while they may serve as guide or enlightenment to determine the 'l"Gtio dccidcndi, what is controlling is what appears in the dispositive part of the decision." (Rosario Nery Edwards, et al., vs. Jose Arce et al, 12 Off. Gaz., 2337). "The Court should not require the collection of interest when the judgment on which it is issued does not give it. and interest is not allowed by statute. This has been held 170. LA WYERS JOURNAL June 30, 1960 to be the rule even where interest on judgment is aUowed by statute, if the judgment docs not include it." (33 C.J.S. No. 75b, p. '216). Considering that the dispositive part of both of the deci!!ions of the Court of First Instance in Civil Case No. 3015, and of the Court of Appeals in CA G.R. No. 17320-R, contain no proVision on the interest to be paid on the judgment, we hold that it. is beyond the power of the respondent court to issues a writ oi execution for the payment of th~ principal obligation with the interest thereon, because the amount of the interest was not included in both judgments of the Court of First Instance and the Court of Appeals. WHEREFORE, the order sought to be reviewed is hereby sd aside. The injunction issued by Us is hereby declared per. manent, with costs against the respondent Donato Timario and Consuelo S. de Timario. Paros, i:.J., Bfmgzon, Ba11ti~ta Aw1elo, Co11ccpcion, and CuCiert·ez David, JJ., concurred. Mcmtcmayor, J., dissenting: It is with deep regret that I feel myself constrained to dissent from the learned majority opinion penned by Mr. Justice Labrador. It is an opinion comprehensive and well written and states the facts of the ease correctly and fully. Only that, in my opinion, it suffers from a flaw in that it perhaps unwittipgly permits a miscarriage of justice by sticking too dosely and strictly to the rules and to the technicalities of the law, oveI"looking the justice and the relief that respondent Donat.a Timario and Consuelo S. de Timario fully deserve. Respondent obtained a judgment which has long b~ome final, against petitioners on May 12, 1955 for the sum of P9,218.0Q with interest at t'hJJ legal rate frolTt the filing of the action, that is to say, from November 9, 1953. There is absolutely no question that the obligation was for f9,218.00 with legal interest1 • Respondents brought the present action to enforce said judgment for the payment of, P9,218.00 with legal interest. The trinl court in its decision mnde reference to this former, final decision., calling for the payment of P9,218.00 with legal interest and it approved and granted the enforcement, only that in the dispositive part of the decision, it involuntarily omitted or forgot th(' payment of legal interest. It was a clear oversight or inYoluntary omission. Even the majority opinion says so when it stated, "what actually happened in the case at bar is oversight on the part of the judge and of the Court of Appeals, in not inciuding an order for the payment of interest." Shall we allow a party to suffer actual, real and substantial injustice and be c!eprived of the payment of interest even at tho legal rate, which interest has been declaI"ed, sanctioned and determined in a final decision, the courts have overlooked, omitted and forgotten to mention the payment of said legal interest? There is, in my opinion, nothing sacred or sacrament in the dispositive part of a final decision which precludes its being touched, amended, corr~ted and clarified, when it dearly appears that said dispositive part does not reflect and embody as it should the decision itself. The dispositive part merely consolidates and expresses briefly the body of the decision and it;; conclusion, and gives it due course. If it makes a mistake, clerical or otherwise, through oversight, omission, eto., that mistake could and should, in the interest of justice be stricken down as an outlaw or intruder that has no reason to be there, and the corresponding correction or clarification immediately effected. OthenYise, courts of justice would fail in their mission and the responsibility to administer real, substantial j ustice or as near i t as is possible, to the parties on the merit of their claims and defenses, if said courts place too much emphasis on and adher<' too closely to technicalities of the law. Supposing that in the present case, although th~ final deci· s;on sought to be enforced called for the payment of P9,218.00, the dispositive part of the present decision, although in its body it made reference as it did to and correctly stated the said amount of P9,218.00, through oversight or clerical error, placed the comma between the figures 2 and 1 and added one zero after 8, fol. i.~wed by the decimal point, so as to make the sum P92,180.00 instead, and the t rial court and the Court of Appeals and the parties, through oversight, carelessness or overconfidence had allowed said decision with the erroneous dispositive part to become final and conclusive. Surely, that 'kind of error would not entitle the respondents to receive P92,180.00 instead of P9,218.00, neither could it compel the petitioners to pay the said clearly incorrect and e1Toneous amount. In that case, this High Tribunal would intervene, examine the record of the case, examine the body of the decision, strike down the error in the dispositive part and make it conform to the body of the dedsion and the merits of the case as found by the trial court. The noble edifice of the administration of justice would not long stand and endure if judicial errors unintentionally committed through oversight, arc allowed to undermine it. And this danger could be effectively :n-oided and prevented by a more liberal interpretation and ap-. plication of the law. The Rules of Court themselves provide for a liberal construction or· the same, 3aying that the rules shall be construed liberally in order to promo~ their objective and fr, assist the pm·ties in obtaining just, speedy and inexpensive de. termination of every action and proceeding. In the first case cited by the majority opinion, Locsin vs. Paredes nn<l Hodges, 63 Phil. 87, the decision of the trial court omitted the word ,.severally", and yet when this Tribunal found out even after said decision had become final, that the obligation was not only joint but several, we ignored the omission and allcwed the trial court to cure it by considering that the omitted word "severally" was actually contained in the decision. Although the decision in that case was already final, still we virtually modified it by practically allowing the insertion of the word "severally", whic:h word was not there in the first place, in order to make the decision conform to the merits of the case, although we said that it was to elarify the ambiguity in the dispositive part. 'Vhy could not we in the present case cure the error or omission committed by inserting as it were the phrase, "with interest at the legal rate from the filing of the action", knowing that the respondents are fully entitled to said legal interest and the petitionel's liable to pay it on the basis of the final decision being enforced. That would clear the ambiguity. But the niaJC.rity opinion says that there is no ambiguity in the present case. I believe there is, because whereas the dispositive part makes nc. mention of the payment of interest, the decision sought to be enforced provides for said payment of interest, and the very body of the present decision refers io said payment of interest and in effect grants and approves its enforcement. Again, in the case of Velez vs. Martinez and Chacon, 63 Phil. ~81, cited and discussed in the majority opinion, the trial court in its decision sought to hold the defendant personally responsible for the payment of a ce.rtein amount with interest. In order tG correct the encr and administer justice, we had to examine the record of the ease and when we found that the defendant was sued not in his personal capacity but as administrator, we held that the trial court could not h~Icl him personally responsible but only as an administrator. In other words, t:o administer justice in that case, we went through and beyond, even ignored the dispositive part of a trial court's final decision and after e:-;amining the record, we in effect modified the dispositive part of said final deci~ion so as to conform to the record and the merits of the ease. I agree with the majority that ordinarily, the judgment in n case contained in the dispositive part should be respected and followed, specially when it has become final, but when, as in the present case, there is a manifest error or omission which subJune 30, 1960 LAWYERS JOURNAL 171 stantially affect the right;; of one of the parties, and the trial court which had committed that error itself is disposed and wants t< i correct its error or omission, we should disi·egard technicalities and allow t he trial court lQ correct its own error. In try. ing to do so, the trial court in its order of January 15, 1958, said: ''Although the dispositive part of the decision does not order the defendants to pay interest on the sum of P9,218.0D, nevertheless, in paragraph 1 of the decision it clearly appears that the defendants were ordered to pay legal interest on the said sum. Por this reason, the motion to set aside the order of this court of December 14, Hl57 orderinr. payment of said interest is denied." However, we through the majority opinion decline and refuse to allow said trial court to make correction of its involuntary error. And to my mind, there lies the whole trouble, nay, the tragedy of the whole unfortunate situation. Another point of view suggests itself. As already stated, the present actiOn was brought merely to enforce the first or final decision which called for the piiyment of P9,218.00 and the pay1ne11t of legal 1~nl'.;rest. Since the present decision authorizes said enforcement, may it or can it in the process of enforcement modify the final decision to be enforced by increasing oi: diminishing the amount or omitting the payment of legal interest? I do not .believe so. It must enfot'ce the final decision if it at all, faithfully, fully and in its entirety. It cannot enforce the payment of the amount and leave the payment of legal interest for another· action for enforcement. Jn other words, a final decision may not be enforced by means of or through a. subsequent decision, piece· meal. Otherwise, that would mean multiplicity of suits because the winning party would have to bring another action to enforce that part of the deeision regarding payment of the interest which was involuntarily omitted in the enforcing decision. This, in my opinion, is another reason why the dispositive part of the present decision should be clarified and made to conform to the body of the decision and the record of the case by considering as included in said dispositive part, the payment of legal interest. The amount i1wolved in the legal interest is quite substantial. It is interest at the legal rate from November 9, 1953 on the rather considerable amount of P9,218.00. The respondents who were adjudged by final decision liable for said amount and interest have delayed the said payment and even had taken the C'ase on appeal to the Court of Appeals, which court declared the appeal to be frivolous and condemned them to pay double costs. By the time this decision becomes final, almost seven years will have passed from November 9, 1953. The interest on P9,218.00 for that period at the legal interest would be quite substantial and with the majority opinion, we -shall be depriving respondents of that, in my opinion, unjustly, merely on technical grounds. In conclusion, I hold that an err'Jr committed through oversight in the dispositive part of a decision may be corrected even if the latter has become final, in order to conform to the body of the decision, this, in order to serve the interests of justice; that where as in the present case, the error was really unintentional because the body of the decision as to the amount of the judgment and the payment of legal intere.st, is clear, and the trial court that committed the error realizes it and to make amends, w~nts to correct the error, it should be allowed to do so by this Tribunal; that where as in the present case, the decision in ques· tion and the dispositive pa_rt thereof merely seek to enforce a prior final judgment, said final decision must stand in its entirety and integrity without any all<?ration, amendment, increase or diminution of the amount involved including the payment of interest, and the decision enforcing the same must enforce it fully, in its entirety, and it may not intentionally or otherwis2, modify, alt.er, diminish or increase the amount of the judgment. Neither may it enforce the prior judgment only partial\y or piecemeal so as to leave the enforcement of the rest of the judgment t1.> a subsequent action for that would mean multiplicity of suits. For the foregoing reasons, I dissent. /s tan:Wrd-Vacnnm Oil Co., ~titionct, v11. Anita Ta11 and The Com·ti of Appeals, Rc.~pondents, G. R. No. D-13048, Feb. 27, 1960, Gutierrez David, J. CIVIL LAW; ARTICLES 1902· AND 190.3 OF OLD CIVIL CODE CONSTRUED. - The liability of the employer under arti· cles 1902 and 1903 of the old Civil Code is primary and direct, based upon his own negligence (culpa aquiliana) and not on that of his employees <1r servants. Ross, Selp, Carra.scosa & Janda, for petitioner. Alberto R. de Joya, for respondent. DECISION On May 3, 1949, Julito St&. Domingo and lgmidio Rico, employees of the Standard Vacuum Oil Company (hereinafter re· ferred to as STANVAC), were delivering gasoline from a tank truck trailer to the Rural Transit Co. at its garngc at Rizal Avenue Extension, City of Manila. While the gasoline was being discharged to a subterranean tank, the discharge hose suddenly caught fire. It .spread to the rear part of the tank truck, and as somebody shouted, "Fire! fire!'' Sto. Domingo, who w:1s then busy writing his report inside the cab of the truck, went down to investigate. He · saw that his helper, Rico, had already removed the hose and closed the cap screw of the tank. Obeying lhe signal of Rico, who sustained burns on his face, Sto. Domingo drove out the truck from the gasoline section compound towards Rizal A venue Extension. But upon reaching the street, he abandoned the truck without setting its parking brake. Consequently, the vehicle continued moving to the opposite side of the street causing three houses on that side - one of them belonging to Anita Tan - to be burned and destroyed. Juiifo Sto. Domingo and lgmidio Rico wc•re subsequently chal'ged with arson through reckless imprudence in the Court of First Instance of Manila. Both were, however, acquitted after due trial because their negligence was proven and nobody knew what caused or started the fire, it being "an unfortunate 2cc:ident." Anita Tan then filed a complaint in the Court of First Instance of Manila against STANVAC, Julito Sto. Domingo and Igmidio Rico, seeking to recover the sum of Pl2,000. 00 which was the cost of the construction and repair of her house, plus legal interests. This complaint was later amended to ask for 11.ctual and moral damages and to include as defendant the Rural Transit Company . Upon defendants' motion, the complaint was dismissed. But on appeal, the order of dismissal was affirmed b:r this Court only with respect to defendants Sto. Domingo and Rico, and reversed with regard to the other two defendants. {Anita Tan vs. Standard Vacuum Oil Co. et a!., G.R. No. L4160, July 29, 1951.) In the court a quo after the case had been remanded, the complaint was finally amended to include additional party defendants and to substitute the name of Rural T ransit Co. 'vith Eachrach Motor Co .. Inc., it having been found that the former was but a garage and gasoline station owned and operated by the latter. After the issues had been joined and several hearings held, the trial court rendered judgment, thi? dispositive part of which re.ads: "IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, an alternative and conditional judgment is hereby l'endered as follows: "I. Under the first cause of action for culpa aqniliana, the defendants Standard Vacuum Oil Company and the Bach· rach Motor Company are hereby ordered to pay the plaintiff, jointly and severnlly, (a) the sum of ·vto,630.80 for what plaintiff has spent in the reconstruction of her house No. 2540, Rizal Avenue Extension, this City, with interest thereon at the rate of 6% per annum from january 6, 1950, the date of the filing of the original complaint in this case; (b) 172 LAWYERS JOURNAL June 80, 1960 P2/700.00 for rentals which she failed to rec'Clve while. said house wss under construction; (c) Pl,000.00 for moral damages; (d) fifteen per cent (15'/o ) of the amounts mentioned in (a). (b) and (c) of this paragrph !or attorney's fees; and (d) to pay the costs; "2. Under the second C"ause of action and in pursuance of the provisions of Art. 101, 2nd par. of the Revised Penal Code, defendants Pilar T. Bautista, Milagros G. Tinio, and the Heirs of the deceased Inocencio Gochangco, to wit, Severina L. Gochangco, Conrado Gochangco, Segundina Alcazar and Noemi G. Palma (these heirs as one), are hereby ordered to pay plaintiff the same amounts which appear in No. 1 of the dispoSitivc part of this decision in proportion to the values of their respective properties as above set forth but, if this judgment is executed against them and they do pay, their payment shall be without prejudice to seek proportional reimbursement from defendants Gloria Posadas Arkonel nad the -Bachrach Motor Co_ mpany, whose properties haVe ahm been saved from the conflagration; "3. Plaintiff shall not be entitled to both of the re· medics mt!ntioned in Nos . 1 and 2 hereof, nor can the defendants in either number seek reimbursement from those in the other." Frcm that judgment, the two defendant companies appealed to the Court of Appeals. On September 18, 1957, that court r~nd dNed its decision absolving Bachrach Motor Co. Inc., from any J!abilitv. but affirming the appealed judgment with respect to · STANVAc, with the modification that it shall pay plaintiff Anita Tan only the amount of P13,036.00, plus legal interest. £TANVAC in due t.ime filed a motion for reconsideration, but th(' snme having been denied, it filed the present petition for review on certiorari. The Court of Appeals in the decision complained of expresslr found that "the record of the case showing that if the fire th.at. ~utted the house of Anita Tan was not caused by Sto. Domingo's nnd Rico"s criminal .negligence, c\'idently it was so caused by their fault and lack of equanimity in the presence of the fire which suddenly and for unknown reason sparked in the diseharge hose and which could have been put out by the proper and opportune l1sk of the fire extinguishers with which the tank-trailer was equipped." It also found that there was negligence on the part of the employer, herein petitioner STANVAC itself, in the direction or supervision of its two employees. To better show the acts or omissions constituting the fault or negligence of petit.ioncr and its two employees, the pertinent portion of the de::ision of the Court of Appeals is hereunder quoted as follow s : "It is admitted thnt the Rural Transit Station had n shaded portion and' an open cemented space. The main opening ot its subterranean tank was n~arer the shaded part than Rizal Avenue Exte'nsion. It is presumed that during the d;:;: cha1·ge operation the tank-trailer was parked in the middle of the open space which had an area of 65 f eet (Exh. 'Q'). Hence, had the tank-trailer truck been left in t.hat open sapce, appel!ee's house would not have been burned nor would an explosion of the underground tank have occurred because, according to Sto. Domingo himself, when he drove the truck out of the street, Rico had already removed the hose from the opening of said tank and closed it with the cap screw (t.s.n., p. 100 Santiago) This conclusion is fully sustained by then Acting Deputy Chief of the Manila Fire Department, Bi aulio Alofla who, when asked if the subterranean tank would have exploded had not the tank-trailer been removed from the place where it caught fire, categorically answered, "No, Scfior, no explotaria.' (t.s.n., p. 9 - Quimpo.) "It is likewise admitted that the two fire extinguishers which the tank.trailer carried (appellant's brief, p. 24) were not detached and put to use by Sto. Domingo and Rico. Instead in open violation of condition No. 8 of the Permit for the Transportation of Combustible by Tank Truck (Exh. 'X-2') - which provides that 'whenever refilling or filling work is conducted, fire e~tingu~she1: m1_;1st be on hand and readied for fi re emergency by an ~xperienced operator until the fill or discharge operation is completed' -Sto. Domingo went into the c:ab of the truck to write his report while Rico watch with empty hands the unloading of the gasoline. Had both employees of the appellant oil company complied with the condition j ust ·quoted by closely observing the discharge operation with the fire extinquishers in their hands ready for use, they could have used these instruments instantly and would certainly have been able to put out the spark that ignited the hose dm;ng the discharge opnation - just as the foreman of the Rural Transit Station succeeded in putting out the :fire at the mouth of the underground tank by the proper usage of the station's only extinguisher. "The above transcribed condition speaks of an 'experienced operator' who must use and operate the fire extinguisher. Yet, Sto. Domingo, who, according to appellant's evidence had some training and took periodic refresher course on the proper way of making delivery of its highly inflamable pro· ducts by means of tank-trailer , including the use and operation of the fire cxlinguisher, did not personally attend to the discharge of the gasoline but entrusted this very delicate and most risky task to Igmidio Rico, who had no trai,ning at all - or if he had some, it was not proven during the trial. "While the dischharge of the gasoline to the underground_ tank vias undertaken, there were many persons waiting for the passenger truck 'about two er three meters' from the tank-trailer truck, milling about it (t .s.n., pp. 9 and 10 - Garcia) Even Sto. Domingo admitted that when he stopped writing and turned around because of the shout of 'fire' fire! he saw a woman at the left side of his trut=k who run towards a bus inside the Rural Transit garage (Exh. ;N-2'). It was indeed lack of foresight, bordering on c:ulpable negligence, on the part of Sto. Domingo and Rico to have allowed many perso11s to roam around near the tanktrailer while the discharge of the gasoline was under way, considering the high volatility and inflammability of this liquid. "Sixta Lazaro, who lived directly across the street from the Rural Transit Station, declared: 'On May 3 1949, bet ween 3 and 3 :Zd o'clock in the afternoon I was picking clothes stretched under the sun and I heard somebody shouting ';sunog, sunog" "(fire, fire"). When I turned my head to look at the direction from which the shout t'ame, I saw inside the garage of the Rural Trnnsit Company a green trnck discharging gasoline, with the rear part already aflame. I went to our bathroom to see .better what was happening. I saw the driver started the truck perhaps to drive it out from the premises but before the truck reached the street the driver jumped out from his seat. I saw the truck coming right to the direction of our house so I picked up my boy about two years old and I went downstairs. ' Ve have just reached downstairs when I heard the truck was jummed at the ditch infront of our house.' (t.s.n., pp. 21 and 22, Garcia). According: to this witness, after the driver jumT>Cd out. 'the truck continued in motion' (t.s.n., p. 26 - Garcia)' and the flame at the rear part of the truck was still 'about one foot high from the bottom of the tank' (t.s.n ., p. 28 - Garcia) in a place marked as circle 1 in Exhibit 'D'. Evidently, Sto Domingo was seized with panic and abandoned the truck without sett.i11g its parking brake and without using the fire extinquisher which was 'placed · on the usual place on the side of the truck' (t.s.n., p. 25 - Garcia). Had he stopped the truck on the western side of Riz:li A yenue Extension and operated the fire extinguishet instead of running away from the scene of occurrence, most probably he could June 30, 19GO LA WYERS JOURNAL 173 rear part of the tank-trailer '\\.&S only about one foot high. "The facts narrated in the five preceding paragraphs prove that the employees of appellant oil company did not exercise special care and diligence required by the exceptional character of the work they were undertaking on May 3, 1949, in the ccurse of their employment in the service of appel!ant oil company. "Another equally unmcritoiious contention of appellant oil company is that the trial court erred in holding that thi;1 appellant was negligent in not having appropriately instructed its employees. "It is of • c01nmo11 knowledge that gasoline is a highly volatile and combustible liquid. For this reason, aside from the requirements that tank-trailers should have drag chains or other flexible metallic devices long enough to reach thil ground; that it should use only ek-cti-ic lights with fuses or automatic circ:,uit breakers: . that smoking is absolutely prohibited during deliveries or when the tank is being filled: and others (Exh. 'N-2'), the owne1·s or !::ellers of said liquid must pt'operly instruct their laborers and rcmployecs charged with the delivery or handling of the liquid on how to manipulate the fire extinguishers so that they may instantly put out any spark. They should likewise be given the location of the nearest fire nlnrm for immediate notification of the fire dc11artment if the spark assumes pro.portions greater t han can he extinguished by the small hand apparatus. It has not been shown that lgmidio Rioo received any such in.~truction or training from appellant: and Julito Sto. Domingo, who undersent some trnining, te:otifi ed that during his training period and three years of service, he was not instructed on the usage and shown the locations of the fire alarms in the vicinity of the stations where he used to deliver gasoline, neither was he given by appellant any sketch or map to show the locu.tions of said fire alurtns (t.s.n., pp. 31 and 32 - Boaqiiia). Thus, he was not able to locate any fire alarn1 during his ten-minute laborious search. Had an early warning Crum Sto. Domingo been re· ceived by the fire department, the destruction of appcllee's house might have been prevented by the prompt action of the firemen. "On the other hand, appellant oil compm1y knew of the practice of Sto. Domingo of writing his reports in the cb.b of the truck dul"ing discharge operations, and yet appelbnt oil company did not advise him against it nor prnhibit him from doing it (t.s.n., pp. 60, 63 and G4 - Santiago). Had appellant ordered Sto. Domingo to stop this practice and instructed him to personally attend to the dischar~ of the gasoline with the fire extinguishc!· ready, he would irulubitably have been able to check the fire at its inception, taking into acoount his special training which Rico did not have. "Obviously, those considerations frustrate appell:>.nts's attempt to exculpate itself under the last paragraph of Article 1903 of the old Civil Code, by trying to futilely pmvc that it exercised the diligence of a good father of a family to prevent the damage to appellee's property." Counsel for petitioner STANVAC contends that si-,1ce its employees Sto. Domingo and Rico had previously been found by competent court to be not negligent - referring to the court ac· quitting them in the criminal c:ase for arson thru reckless imprudence - said petitioner cannot now be held liable for damages. The contention, in our opinion, cannot be sustained. l t is admitted that respondent Anita Tan sought to hold STANVA C liable under Articles 1902 and 1903 of the old Civil Code. the law i11 force at the time the fire in question occurred. Under those articles, the liability of the employer is primary and di rect, based upon ,his own negligence (culpa aqui!iana) and not on that of liis employees or servants. (Ca·ngco vs. Manila Railroad Co., 38 Phil. 768.) The present prooeeding, therefore, is entirely un· related to the judgment in lhc criminal case where petitioner's two employees were acquitred because their criminal negligence was not proved and the i.:ause of the fire could not be detNmined. Parenthetically, after the trial court had ordered the dismissal of respondent Anita Tan's complaint, this Court on 1111peal reversed that order as to STANVAC and authorized the proceedings against said company, which was sued ''not precisely because of the negligent aets of its two employees but because of acts of its own which might have· contributed to the fire that destroyed the house of plaintiff (herein respondent Anita Tan)." Continuing, this CoUJ t further observed that - "x x x The complaint contains dt>finite allegations of negligent acts properly nttributable to the company which if proven an.d not refuted may serve as basiR of its civil liability. Thus, in paragraph 5 of the first cause of action, it is expressly alleged that this company, through its employe(!"S, failed to take the. necessary preo:rnt:ons or measures to insure safety and avoid harm to persons and do.mage to property as well as to observe that decree of care, precaution and vigilance which the circumstances justly demanded, thereby causing the gu1oline they were unloading to catch fire. The precautions or measures which this company has allegedly failed to take to prevent fire arc not clearly stated, but they are matters of evidence which need not now be determined. Suffice it to say that such allegation furnishes enough basis for a cause of action against this company· x x x." Taking great pains in minutely scrutini7.ing the allegations in the complaint < !Junsel for petitioners avers that STANVAC was merely referred to herein as the employer and was not at all char"cd with negligenc'-0. Be that as it may, it is undisputed that'"' no objection was made to the presentation of evidence as to the negligence acts of STANVAC during the trial of the case. As a matter of fact, it even tried to overcome that evidence of its own tending to show that it had employed the diligence of a good father of a family to prevent the damage. The issue, therefore, regs1:ding the negligence of petitioner ST AN~ AC - even assuming that the complaint does not really contam all~ vations of negligent acts properly attributable to it - must b~ considered as it if had been raised in the pleadings. And the CoUJt of Appeals, whose factual findings are final and ~onc!~ sive upon this Court, having found that petitioner com~auy did fail to take necesary precautions or measures t o prevent fi re, and that the fire that destroyed respondent Anita Tan's house could have been avoided had petitioner exercised due care in the supervision or control of its employees, the appellate court's rullfog on ?ts liability cannot now be distu!'bed . In view of the foregoing, the decision sought to be reviewed is hereby affirmed, with costs against petitioner. Paras, C. J., llen9zon, Montemayor, D.aiitista A ngelo, Labra· dor, Co11eepe·fo11, J. B. L. Reyes, E1ulenefo an<l Barrera, JJ., con'"Z, l'<epl< of "" Philippi::., Plah•"lf-Appdl", '"· v,,,,,,,_ vcnt.iira Buli11g, Dcfe11dant-Appllant, G. R. No. L-13315, Apr-1 l 27, 1960, Lab1·ador, J. 1. CRIM INAL PROCEDURE; DOUBLE JEOPARDY; CASE AT BAR. - On December 7, 1956, defendant was charged in the justice of the peace court with Jess sel"ious physical in· juries, the complaint alleging that the injuries of the offended party would require medical attendance and incapacitate him from 10 to 15 days. AccusC'd pleadi?d guilty and served fully the sentence. The injuries did not hc:tl within the said p<'riod, so the Provincial F iscal filed a Se<'ond infMmation against the defendant for serious physical injuries with the Court cf First Instance, alleging that the injuries would require medical attendance and incapzcitate the offended pa1ty 174 LAWYERS JOURNAL June 30, 1960 have checked the fire and prevented the burning of appeilce's house, because even at that moment the fire in th" from 1-1/ 2 months to 2-1 /~ months. Defendant having been convicted of serious physical injuries, appealed, Issue: ·whether tho prosecution and oonviction of defendant for less serious physical injuries is a bar to the necond prosecution for serious physical injuries. Held: Sin=e no new supervening fact has existed or cccurrcd which has trans formed the offense from Jess serious physical injuries, the prose(<l1tion and conviction of defendant for Jess serious physical injuries is a bar to the second prosecution for serious physical injuries. 2. ID. ; ID.; ID. _.:._ In the case at bar, the new .finding of fracture which lengthened the period of healing of the wound was duo to the very superficial and inco;ic!usive examination made on December IO, 1956. Had an x.ray examination taken at the time, the -fracture would have certainly been disclosed. The wound causing the dC'luy in .healing was already in ex i s ten ~ at the time of the fi rst examination, hut said delay was caused by the '·cry superficial examination then made. No supervening fact had occurred and, therefore, the general rule on double jeopardy should be applied. Francisco A. P1n·ay, for defendant-appellant. Asst. Sol. Generu.l E8mcraldo Umllli and Sol. Emerito M. Sall:11, for plaintiff-appellec. DECISION . Appeal from a judgment of the Court of First Instance o( Leyte, Hon. Gaudenclo Gloribel, prcsiding, finding the accused Buenaventura Buling guilty of serious physical injuries and sentencing him to imprisonment of four months of arresto mayor, as niinimum, to one year of prison correccional, as maximum, to indemnify the offended party. The following uncontroverted facts appear in the record : 0:1 December 7, 1956, the accused was charged in the Justice of the Peace Court of Cabalian, Leyte, with the crime of less serious ph1•sical injuries for · having inflicted wounds on complain.ing witness Isidro Balaba, which accordirig to the complaint would require medical attendance for a period from 10 to 15 days and will incapacitate the said Isidro Balaba from the performance of his customary labors for the same per iod of time." The accused pleaded guilty to the complaint and was on December 8, 1957 found guilty of the crime charged and sentenced to I month and 1 day cf arresto mayor and to pay damages to the offended party in the r.u m of P20.00, with subsidiary imprisonment in case of insoh·cnCJ-. On the same day he bei:ran to serve l:is sentence and has fully served the same. However, Bahiba's injm·ics did not heal within the pci·iod estimated, and so on February 20, 1957, the Provincial Fiscal fiied an information against the accused before the Court of First Instance of Leytc, charging him of serious physical injuries. '!'he information alleges that the woun<is inflicted by the accused on Isidro Balaba require medical attendance and incapacitated him for a period of 1-/ 12 months to 2-1/ 2 months. After trial the accused was found guilty of serious physical injuries and sentenced in the manner indicated in the first paragl'aph hereof. This is the decision now sought to be set aside and reversed in this appeal. The only question for resolution by this Court is, whether the prosecution and conviction of Balaba for less serious physical injuries is a bar to the second prosecution for serious physical injuries. Two conflicting doctrine on double jeopardy have been enunciated by this Court. one in thP. case of People Tarok, 73 Phil. 260 and People vs. Villasis, 81 Phil. 881, and the other, ln the cases of Melo vs. People, 85 Phil. 76G, People vs. M:anolong, 85, Phil. 829 and People vs. Pct.illa, L-5070, prom. December 29, 1952 . But in Melo vs. People, supra, we expressly repealed our ruling in the case of People vs. Tarok, suvra, and followed in the case of People vs. Villasis, supra. In the Melo vs. People case, we stated the ruling to be that: ''x x x Stating it in another form, the rule is that "where after the first prosecution a new fact supervenes for which the defendant is responsible, which changes the character of the offense and, together with the facts existing at the time, constitutes a new and distinct offense" (15 Am. Jur, 66), the accused cannot be said to be in second jeopardy if indicted for the new offense." (85 Philippine Reports, pp: 769. 770). Do the facts in the ease at bar justify the application of the new ruling? In other words, has a new fact supervened, like cieath in the case of Melo vs. People, which changes the character of the offense into one which was not in existence at the time the case for less serious physical injuries was filed? We <lo not believe that a new fact supervened, or that a new fact has come into existence. What happened is that the first physician that examined the wounds of the offended party certified on December 10, 1956 that the injury was as follows: "wound, inciised, Wl'ist, lateral, 1;ght, 3/4 inch long, sutured" and that the same would take from 10- to 15 days to heal and incapacitated (t.11e wounded man) for the same period of time from his usual wurk (Exh. 3). It was ~n the basis of this certificate that on December 8, 1956, defendant-appellant was found guilty of less scl'ious physical injuries and sentenced to imprisonment o.,f 1 month and 1 day of arrcsto ma11or, etc. But on January 18, 1957, another physician examined th<' offended party, taking an X-ray picture of the arm of the offended party which had been wounded. The examination discloses, nccording to the physician, the following injuries : "Old stab wound 4 inches long. With infection, distal end nrms, right. X-ray plate finding after one month and 12 days - Fracture old oblique, incomplete distal end, radiu.:i right, with slight calus." (Exh. "E"). nnd the certification is to the effect that treatment will take from J-1/2 months to 2-1/ 2 months barring complications. Counsel for the appellant claims that no faC'.t had supervened in the case at bar, as a result of which another offense had been committed. It is argued that the injury and the condition there· of was the same when the first examination was made on December 10, 1956, as when the examination was made on January 18, 1957, and that if any new fact had been disclosed in the latter examination failure of this new fact to be disclosed in the previous examination may be attributed tc; the incompetence on the pi-:rt of the examining physician. We find much reason in this argument. What happened is no X-ray examination of the wounded hand was made during the first cx~1mination, which was merely s1:perficial. The physician who made the first examination could not have seen the fracture at the distal end of the right arm, ~nd this could only be apparent or visible by X-ray photography. Under the ci~umstances above in<licated, we are inclined to P .gree with the contention made on behalf of appellant that no n£w supervening fact has existed or occurred, which has transformed the offense from less· ser ious physical injudes to serious physical injuries. But the Solicitor General cites the case of People vs. i\Iano.. long, supra, and argues that om· ruling in said case should apply to the case at bar, for the reason that in the said case the first crime with which the accused was charged was Je;s serious physical injuries and the second one was serious physical injuries arid yet we held that there was no jeopardy. We have carefully examined this case and have found that the first examination mnde of the offended party showed injuries which would take from 20 to 30 days to heal, whereas the subsequent examination disclosed that the wound of the offended party would require medical attendance and incapacitate him for labor for a period of 90 days, "causing deformity and the Joss of the u~e of said member". No finding was made in the first examination that the injuries had caused deformity and the Joss of the use of the l;ght hand. June 30, 1960 LA WYERS JOURNAL 175 As nothing wns mentioned in the firsL medical certiflc'ate .about DE C I S I 0 N the deformity and the Joss of the- use of the right hand, we pre· Aituro Samonte has interposed this appeal froin the decision s1.1me that such fuct was not apparent or could not have been of the Court of First Instance of Bulacan (in Civil Case No. ciisccrnible at the time the first examination was made. The 1424), directing him to reconvey, under the terms of Article course (not the length) of the healing of an injury may not btl 1088 of the new Civil Code, certain property and pay attorney's determined before hand; it can only be definitely known after the fees to plaintiff.appcllee Val1::ntin Castillo. i:-ericd of healing has ended. That is the reason why the court Defendant spccificaliy took this nppeal directl.v to this Court rnnsidered that there was a supervening fact occurring since the stating in his notice of appeal and piayer for approval of the filing of the original information· record on appeal that "esta apelacion envuelve tan solantente But such circumstances do not exist in the case at bar. If cuestion de derecho". In view thereof, he is bound by the the x.ray examination discloses the existence of 11 fracture on findings of fact of the court a quo, and this court wi\l, therefore, Jirnuary 17, 1957, that fracture must have existed when the first <lecide this appeal purely on the question of Jaw raiscd.( 1) uamination wa~ made on December 10 1956 . There is, there- The facts, as found by the trial court, arc th '"at Romualda fore, no new or supervening fact that could be said to have de· Meneses was, during her lifetime, the owner of the unregistered v~loped or arisen since the filing of the original action, which land in question located at Bambang, Bulacan, Bu1acan, with an \1ould justify the application of the ruling enunciated by us in approximate area of 394 square meters. Upon her demise, she the cases of Melo vs. People and People vs. Mano\ong, supm. left as compulsory heirs the plaintiff herei11 and his brothers and We attribuie the new finding of fracture, whieh evidently !eng'lh· sisters Gregorio, Amando, Jose, and Melencia, (2) all surnamed cned the period of healing or' the wound, to the very superficfol Castillo. Said property i·emaincd undivided as the heirs did not and inconclusive examination made on Decembet· 10, 1956. Had partition the inherited estate either judicially or extra-judicially. r. n X-ray examination taken at the time, the fracture would have On July 13, 1953, one of the heirs, Gl'egorio Castillo, without Ct'rtainly been disclosed. The wound causing the delay in heal- g;ving any notice in Y•·riting to his co.heirs, including plaintiff ing was already in existence at the time of the fii·st examination, herein, sold for rt,000 .00 his undivided interest in the property but said delay was caused by the very superficial examination lo defendant who, on July 16, 1953, succeeded in registering the then made. As we have stated, we find therefore that no super- <leed of sale ( Exh. 2) with the Register of Deeds of Bulacan. rnning fact had occurred which justifies the application of the · rule in the case of Melo vs. People and People vs. Manolong, for which reason we are constrained to apply the general rule of double jeopardy. We lake this opportunity to invite the attention of the prosecuting officers that before filing informations for physical injuries, thorough physical and medical examinations of the injuries should first be made to avoid instances, like the present, where by reason of the important Constitutional provision of double jeopardy, the aocused can not be held to answer !or the graver' offense committed. The decision °appealed from is hereby reversed. The judg· ment of conviction is set aside and the defendant.appellant CJl.;itted of the charge of 1<erious physical injmies. Without costs. Para.t:, C.J., Ben9zo11., Montemayor, Ba"tista A nye/o, Concepcion, Endenci«, Ba-rrera ar.d GuC ier1"c:: David, JJ., concuned. I VII Vale11tin Castillo, Pwi:J'ti/f·Ap1>ellee, v.s. Artnro Samonte, De· /e1ulant-Ap7Jcllant, G. R. N). L-13146, Jrm. 30, 1960, Barrera, J. 1. CIVIL LAW; ARTlCLE 1088 NEW CIVIL CODE CONSTRUED. - Reimb .. :--acment to the purchaser within the t:ieriod of one month from the notice in writing a s provided for in Article 1088 <J! the New Civil Code is a requisite or condition precedent to the exereise of the right of legal redemption. The Lrlr.ging of an action in court is the remedy to enforce that r.gh~ in case the purchaser refuses the re· demption. 2·. ID.; RIGHT 01' LEGAL REDEMPTION; WHEN IT MAY BE EXERCISED . - The right of legal redemption must be done within tf," one-month period whereas the bringing of an action in court to enforce said right must be done within the prescri11~\·a period provided in the Statute of Limitations. A rede1e1ptioner who has offered to redeem the property within the isl'-day period fixed by Article 1088 of the new Civil Code ma7 thereafter bring an action to enforce the redemption, Wt if the said period is allowed to elapse before the right •~ availed of, the action to enforce the redemption will not prosper, even if brought within the ordinary prescriptive period. Sometime in September, 1956, when the place was surveyed cadastrally, plaintiff learned for the first time about the -sale and forthwith (on September 15, 1956), he offered to redeem the property from defendant, but the latter refused to re.sell the same to him. Plaintiff, therefore, on December 19, 1956, filed a complaint in the above.mentioned court praying that defendant be ordered to re-sell the property to him. On September 6, 1957, the court rendcl'ed a decision, the dispositive part of which rea.ds as fol!ows: "FOR ALL THE FOREGOING CONSIDERATIONS, . the Court hereby renders judgment in favor of the plaintiff and against the defendant, ordering the latter to reeonvey or transfer the portion of the property in question to the plaintiff herein, upon the payment by the latter to the former of the amount of ONE THOUSAND PESOS (l'l,000.00), which is the consideration of the sale made by Gregorio Castillo in favor of the defendant; to pay the plaintiff the amount of TWO HUNDRED PESOS (P200 .00) as attorney's fees, and the costs of this action". Defendant, in this appeal, claims that the court a quo, erred : (1) in not ordering the heir.vendor Gregoi-io Castillo to be in· eluded either party plaintiff or party defendant in the case; (2) in upholding defendant's right to redeem the propefty sub-. ject to the controversy; and (3) in uwarding to plaintiff attorney's fees. As to the first assigned error, the trial court had no ob!i. gation to order the inclusion of the vendor either as a party plaintiff or party defendant in the case, because while he may be a nect!ssary party, sti!l he is not indispensable in the sense that the matter before it could not be completely adjudicated without him . The deed of sale in favor of appellant clearly states that what is being sold is an undivided 1/ 5 portion of the land jointly owned by the vendor and his brothers and nephew. The vendee·appellant is, therefore, conclusively presumed to know the law that under such circumstances, the co.heirs are entitled to redeem the portion being sold within 30 days from notice in writing of the sale, under Article 1088 of the New Civil Code. In effect, he is a vcndee with notice of the right of redemption by the vendor's co.heirs. ( 1) Sec. 3, Rule 42, Rules of Cou1t; Millar v. Nadres, 74 Phil. 307. ( 2) Now deC"Cased and represented by he0 r only son Gregorio Asuncion. 176 LAW¥ERS JOURNAL June 30, 1960 Moreover, if the vcndee-appellant believed he had a cluim against the vendor by reason of the warranty, it was his duty to have filed a third-pa rty complaint against the latter pur· suunt to Section 1, Rule 12, of the Rules of Court, which states: "SECTION 1. Claim against one noD a pa1·ty to an tteli<m. - ·when a defendant claims to be entitled against a ')_)erson not a party to the action, hereinafter called the third)Jarty defendant, to contribution, indemnity, subrogation or any other relief, in respect of the plaintiff's claim, he may file, with leave of court, against such person a pleading which shall state the nature of his claim and shall be ca!led the third-pa1iy complaint." ln re~pect q,f the second assigned error, Article 1088 of the Civil Code, pro\·ides: "ART. 1088. Should any of the heirs sell his heriditary rights to a stranger before the partition, any or all the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, pfovided they do w withi11 the period of c.ne montli f1·01n i'he tim .. ~ lhey were nol'ified in writi11g of tlte sale by the vendor." (Emphasis supplied.) Frnm the facts found by the trial court, it is indisputable that plaintiff is entitled to redeem the hereditary right over the 1/ 5 undivided share sold by his brother Gregorio Castillo to herein tlefenda11t-appellant. The only remaining question is whether plaintiff exercised his right within the period prescribed in the law. It is admitted that plaintiff, as ro-heir, has never been notifieJ in 11Jl'iting of the sale made .by his brother, Gregorio Castillo. Nor wei·e the other co-heirs. But defendant-appellant argues that the registration of the deed of sale (Exh. 2) on July 16, 1953, with the Register of Deeds of Bulacan, was sufficient notice of the sale under the provisions of Section 51 of Act No. 49G (Land Registration Act), which reads: "SEC. 51. Every conveyance, mortgage, lease, lien, attachment, or(jer, decree, instrnment, or entry affecting rcgisrci·cd laud which would under existing laws, if recorded, fill'd or entered in the office of the register of deeds, affect the real estate to which it relates shall, if registered, filed, or entered in the office of the register of deeds in the pro\•ince or city where the real estate to which such instrument relates lies, be notice to all persons f;·om the time such registering, filing or entering ." (Emphasis supplied.) But the above-quoted provision of the statute applies only to 1"cgiste1·c<l lan<l.s, and has no application. whatsoever to the instant c~sc, for the reason that the property herein involved is, admittedly, unregistered land.( l) In this connection, the court a 111.1.0 correctly observed that "Both the letter and spirit of the New Civil Code argue ,against any attempt to widen the scope of the notice specified in Article 1088 by including therein any other kind of notice, such as verbal or by registration. If the intention of the law had been to include verbal notice or anv other means of information as sufficient to give the effect of this notice, then there would haVe been no necessity or reason to specify in Article 1088 of the New Civil Code that the said notice or information was sufficient. (1) It is nevertheless urged by appellant that since appel!ee admits having learned about the sale in September, 1956, and fikd his complaint only in December of the same year, or after a lapse of three months, his action has already prescribed, arguing that aetual knowledge constitutes and supplies the written notice required by Al'ticle 1088 of the new Civil Code. In the view . ( 3) There is no registration of title to speak of relative to Such ;;~~)of lands. (Ventura, Land Titles and Deeds (4th Ed.] ( 4 ) Art . 1067, old Civil Code; Hernaez v. Hernaez, 32 Phil. 214, \ve take in this case, we ne:ed not now' decide whether actual knowledge will dispense with the notice in writing mentioned in the law. Suffice it to note that herein appellee, upon learning of the sale in September, 1956, within 30 days thereafter (specifically on the 15th of the same month), offered to repurchas('! the property from the appellant. This, in our opinion established his right to re~eem, and he could bri11g an action in court tr> enforce the righ/J of redemption at any time th ercaftcl' p1•ovided it is not barHd by the Statute of LimiV.itions. Interpreting a similar provision in Article 1524( 5) of the old Civil Code, this Court held that the same was not a prescriptive period, and ·stated: ·•x x x the right of legal redemption and the right to commence actions "are of an entirely different nature. The first creates a substantive right which, in the absence of the article, would never exist; the second 'Testrfotls the period in which a canse of actioli may be asse7ted." (Sempio v. Del Rosario, 44 Phil. 1, at 3) To the same effect is the case :.if Villasor v. Medel et al. (46 Off. Gaz. [Supp. 10] 344, 348) whel'e this Court, speaking through Mr. Justice Tuason further stated : "x x x An actipn seeks to assert a fundamental, primary right of v1hich the plaintiff has been unlawfully deprived, or to redress a wrong which has been inflicted; legal redemption is in nature of a mere privilege created by law partly for reasons of public policy and partly for the ben.e-' fit and convenience of the redemptioner, to afford him a way out of what might be a disagreeable or inconvenient asso· ciation into which he has been thrust. (10 Manrern, 4th ed., 317)" It would seem clear from the uilove that the ?"ei111burs1..numt to Ifie purchaser within the period of one 11ionth f'Tom the notice 1 ·n writi11g is a requisite or condii!ion precedent to the exercise of the right of legal redemption; the b'Tinging of an action in court fa th e 'Temedy Co c11force that right in case the purchaser refuses t'he redemption. The first must be done within the month-period; the second within the prescriptive period provided in the Statute of Limitations. If a redemptioner, therefore, has offered Co redecin the property within the period fixed, he has complied with the condjtion prescribed by the law, and may thereafter bring an action to enforce the redemption. If, on the other hand, Vhe 7>eriod is allowed to lapse bcjore. the. right! is made 1rne of, then the act~on to cnfo1·ce the 1·cdemption will 1tot prosper, even if b1·oughV within the ordinary prescr-iptivc period.(b) The case of Asuncion v. Jacob et al. decided by the Court of Appeals (48 Off. Gaz., 2786) and cited by defendant-appellant is not authority to support his submission that the complaint for redemption must be filed '\ ithin the one month period especially where it appeal's that ·such a statement was a mere obiter not supported by the finding that the complaint in that case was filed after a lapse of fourteen (14) years from the time the redemptioner was informed of the sale. Regarding the last assigned error, defendant cites as authority the case of Jimenez v. Bucoy (G. R. No. L-10221, prom. February 28, 1958). In said case, as in the instant case, the fower court awarded attorney·s fees to plaintiff without explaining why it made the award. Disapproving said award, on appeal, we stated as follows: "Under the new Civil Code, attorney·s fees and expenses of litigation may be 'awarded in this case if 'defendant acted in gl'oss and evident bad faith in refusing to satisfy plaintiff's plainly valid, just and demandable claim' or 'where the court deems it just and equitable that attorney's fees be recovered' (Art. 2208, Civil Code) 'These are - if ap( 5 ) No\\. Article 1623 of the New Civil Code. (b) V. Tolentino, Civil Code of the Philippines (1959 Ed.), 163, 164. June 30, 1960 LAWYERS JOURNAL 177 plicable - some of the exceptions tv the general rule that in the absence of 1itipulation no attorney1s fees shall be awarded. "The trial court did iwt explain why it orde·red 7>ay11umt of oozmul fees. 1\'eedlcss to say, it is dcsfrablc that t•he decisioJt sho11fd state the 1·eason why such, au!IM"d is made, bearing in 11ii11d tha.t ir must necessarily rest. on an exceptional situaticm. Unless of course the te.xt of the decision plainly shows the case to fall into one of the exceptions, for instance 'in actions for legal support,' 'when exemplary damages arc awarded,' etc. x x x If the trial judge considered it 'just and equitable' to require payment of attorney's fees because. the defense x x x proved to be untenable in view of this Court's applicahle rulings, it would be error to uphold his view. Othe1-wise, cvc1·y time a defeiuia:nt loses, attonwy's fees would follow as a maf)tcr of c01u-se. Under the articles above cited, even a clearly untenable defense would Oc no ground for awarding attorney's fees unless it amounted to 'gross and evident bad faith." (Emphasis supplied.) In conformity with the above ruling and, since in the instant case, it does not appear that defendant had acted in gross and evident bad faith in refusing plaintiff's offer to redeem the property in question, or that there ere in the text of the appealed decision reasonable or equitable reasons for allowing the award of attorney's fees to plaintiff, we are constrained to· disallow the same. WHEREFORE, modified as above indicated, the judgment of the court a quo is affirmed in all respects, with costs against the defendant-appellant. SO ORDERED. 'Pal'as, C, J., Bengzo11, Padill.a, Bautista Angelo, T_,abrado1-, Concepcion, J. TJ. L. Reyes, Endcncia and Gutierrez !)avid, JJ., concurred. XIII In the Matter of the Testate Esta t'c of Pcf1'ouila Tampoy, Deceased, vs. Diosdada Albesasti11e, I'c t'~tiat1wr.Appellant, G. R. No. L-14322, February 25, 1960, Bantista Angelo, J. 1. CIVIL LAW; WILLS; A WILL WHICH DOES NOT BEAR 'l'HUMBMARK OF TESTATRIX ON ITS FIRST PAGE CANNOT BE ADMITTED TO PROBATE - Section 618 of Act 190, as amended, requires that the testator sign the will and each and every page thereof in the presence of the witnesses, and that the latter sign the will and each and every page thereof in the presence of the testator and of each other, which requirement should be expressed in the attestation clause. ThiS requirement is mandatory, for failure to compllo- with it is fatal to the vaEdity of the will. In the cas& at bar, the will suffers from a fatal defect be~ause it does not bear the thumbmark of the testatrix on its first page even if it bears the signature of the three instrumental witnesses and, therefore, fails to comply with the law and cannot be admitted to probate. DEC I S IO N This concerns the JJrObate of a document "hich purports to be the last will a·nd teslamcnt of one Petronila Tamroy. Aftcl' the petition was published. in accordance with law and petitioner bad presented oral documentary evidence, the trial court denied the petition on the ground that the left hand margin of the first page of the will does not bear the thumbmark of the testatrix. Petitioner appealed from this ruling but the Cou1i. of Appeals certified the case to us because it involves purely a question of law. The facts of this case as found by the trial court arl' as follows: "De las pl'ueba11 result.a que Pet1·onila Tampoy, ya viuda y sin hijos, rogo a Bonifacio Mifioza que la leyera el testa· mento Exhibito A y la explicara su contenido en su casa en la calle San Miguel, del municipio de Argao, provincia do Cebu, on 19 de noviembre de 1939, y asi lo hizo Bonifacio Mifioza en presenma de los trcs testigos instrumentales, Rosario K . Chan, Mauricio de l;i Peiia y Simeon Omboy, y despues de conformarse con el contenido de! testamento, ella rogo a Bonifacio Miiloza, que escribiera su nombre al pie de! testamento, en la pagina segunda, y asi lo hizo Bonifacio l\1iiioza, y despnes ella estampo su mar<'!a digital entre su nombre y appellido en prescncia de todos y cada uno de los tres tcstigos instrumcntalcs, Rosario K. Chan, Mauricio de la Peiia y Simeon Omboy y de Bonifacio I'\liiloza, y despues, Bonifacio Minoza firmo tambien al 11ie de! testamento, en la pagina 2, en presencia de la testadora y de todos y oada uno de los tres te.stigos arriba nombrados. La testadora asi como Bonifacio Miiioza no finnaron, sin embargo, en la margen izquicda ni en ninguna parte de la primera pagina de! teslamcnto que se halla compuesto de dos paginas. Todos y cada uno de los hes testigos instrumentales, Rosario K. Chan, Mauricio de la Pefia y Simeon Omboy, firmaron al pie de la clausula de atestiguamicnto que esta escrita en la pagina SC'gunde dcl testamento y en la margen izquierda de la misma pagina 2 y de la pagina primera en presencia de la test.adorn, de Bonifacio l\1ifioza, de! abogado Rintenar y de cada uno de ellos. El testamento fue otorgado por la testadora libre y cxpontaneamente, sin haber sido amenazada, forzada o intimidada, y ·sin haberse ejecido sobre ella influencia iindebida, estando la misma en piano uso de sus facultades mcntales y disfrutando de buena salud. El testadora fallecio en su casa on Argao on 22 de febrero de 1967 (Vease certificado de defuncicn Exhibito B). La heredcra instituida en el testamento, Carmen Alberastino, murio • dos semanas despues que In test.adora, o sea, en 7 de Marzo de 1957, deja·ndo a su madre, la solicit::mte Diosdada Alberastinc." The above facts arc not controverted, there being no opposition to the probate of the will. However, the trial court denied the petition on the ground that the first page of the will docs not bear the thumbm9.rk of the testal'ix. Petltionei· nCiw prays that this ru.Jing be set aside fol' the reason that, although the first pnge of the will does not bear the thumbmark of the testatrix, the same however expresses her true intention to give the property to her whose claim remains undisputed. She wishes to emphasize thst no one has filed any opposition to the pNbate of the will and that while the first page does not bear the thumhmark of the testatrix, the second however bears her thumbmark and both pages were signed by the three testimonial witnesses. l\Im·eover, despite the fact that the petition for probate is unopposed, the three testimonial witnesses testified and manifested to the court that the document expresses the true and voluntary will of the dee'.eased. This contention cannot be sustained as it runs count~r to the express provision of the law. Thus, Section 618 of Act. 190, as amended, requires that the testator sign the will and each and every page thereof in the presence of the witnesses, and that the latter sig·n the will and each and every page thereof in the µrescnce of the testator and of each other, which requirement should be expressed in the attestation clause. This requirement is mandatory, for failure t.o comply with it is fatal to the validity of the will (Rodriguez v. Alcala, 55 Phil., 150-). Thus it has been held that "Statutes prescribing the formalities to be observed in the execution of wills are very strictly construed. As stated in 40 Cyc., at page 1097, 'A will must be executed in accordance with the statutory requirements; otherwise it is entire178 LAWYERS JOURNAL June 30, 19GO Jy yoid.' All these i-equircmcnts stand a.s of equa.l importance and must be observed, and courts Ca.nnot supply the deiccth·e execution of a will. No power or discretion is vested in them, <'ither to superadd other conditions •)r dispense with those enumerated in the statutes"(Uy Coque v. Navas L. Sioca, 43 Phil., 406, 407; Sec also Saiio v. Quintana, 48 Phil., 506; Gum ban v. Gorecho, 50 Phil., 30 ; Quinto v. Mora ta, 54 Phil., 481). Since the will in question suffers from the fatal defect th:i.t it dO('S not bear the thumbmark of th~ testatrix on its first pa3'C even if it bears the signature of the three instrumental witnnesses, we cannot escape the conclusion that the snme fails to comply with the . law and, therefore, cannot be admitted to pl'Obate. Wherefore, the order appealed f; om is :i.ffirml'<I, without pronouncement as to costs. Paras, C.J., Beng::on, Monte11w.yor, Labrador, Co11cepcio11 , J.ll.L. R eyes, E11de~1ci<i, Barrera rwcl ~11ticrrc: David, JJ., concurY.ed . I IX -/vicc11t1• Jimenez, ct al., Plaintiffs-Ap]JCl/ailt~. l'.~. Carm~·lo S. Cnmara, ct al., Defe1ufrrnt~-Appe/lcetl, G. R. No. L-14718, Maii:h 30, 1960, Barrera, J. 1. CIVIL PROCEDURE; ACTIONS; WHERE BREACH OF CONTRACT IS TOT AL. - The rule is that where the covenant or contract is entire and the breach total, there can be only one action. 2. ID.; ALL MATTERS ARISING OUT OF CONTROVERSY TO BE DETERMINED IN ONE AND SAME SUIT· PURPOSE. - When a trial is had, it is intendr!d that all ~1attcr"!\ growing out of the controversy ai·e to be fin:llly determined in one and the same suit so as to prevent a multiplicity of actions and to prevent the possibility of one part of the cause being tried before one judge which would unnecessarily harrilss the parties and produce needless litigations and accumulate costs. _Enriqitc E. Ma..rin.o, for plaintiffs-appellants. Benedicto, Sumbi11uco & Associates, for defendnnts·a!Jliellee~. DECISION This is an appeal, certified to this Court by the Gou: t of Ap· pea~s, from the order of the Court •>f First Instance of Negros Ocmdental (in Civil Case No. 3362), dismissing plaintiffs' comulaint to compel defendnnt Carmelo S. Camara to execute the ncCl'Ssary deeds of conveyance of 17 parcels of land in favor of plaintiffs. Plaintiffs Vicente Jimenez, Arturo Jimenez and Filomeno Jimenez, together with four others were: originally the rci:"istercd co-Owners of the 24 lots, situated in Isabela, Bago and La Ca:·lota, Negros Occidental. All 24 lots were mortgaged to the PhiliJ;pine National Bank. Due to the owners-mortgagors' failure to pay their indebtedness on time, the said bank foreclosed the mortgage and acquired the said properties in public action, subject to redemption. The mortgagors renounced their rights of redemption in favor of one Adriano Golez, who appointed Vicente Jimenez, one of herein plaintiffs, as his attorney-in-fact. In order to redeem said properties from the Philippine Na· tional Bank, Adriano Golez and said Vicente Jimenez obtained the intervention and .services of defendant Carmelo S. Camara, and on December 29, 1931, a document entitled "E.scritura <fo Compromise de Venta" (Annex A) was duly executed by su.id bank in favor of Camara, wherein the former promised to sell to ~he latter all its rights and interests in the mortgaged properties for the sum of PSS,160.00. To give effectivity to said contract, the conformity of the judgment debtors, was necessary ; and this conformity was given, subjcc:t to the condition that dt:fen<lant Camarn should reconvey to Adriano Golez whatever rights and interests Camara may acquire from the Philippine National Bank over said properties. Simultaneously with the execution of said contract (Annex A), the previous owners-mortgagors ceded and renounced all their rights, interests, and participations on the redemption of said 11roperties in favor of Adriano Golez. On December 31, 1931, Golez and his :ittorney-in-fact Vicente Jimenez, with the con. formity of the previous owners-moTtgagors executed a contract of lease known as "'Escritura de Arrcndamiento" (Annex B), in fnvor of defendant Camara over seven (7) of the 24 lots for a period of 8 agricultural years, with 2 years option, and ending with agricultural year 1941-1942. With the execution of the aforementioned contracts (Anne::xe.s A and B), the possessic,n, ("ontrol, use and enjoyment of the 7 leased lots comprising Haciendas Buenavista and Aurelia were delivered to Camara. The other prope1-ties (17) lots situated in Bairo and La Carlota remained in possession of plaintiffs. By virtue of said contracts (Annexes A ant.I B), Camara, on ..":muary 2'5, 1945, paid the entire obligation of the mortgaged properties to the Philippine National Bank, in the amount of P34,541.18 as the balanre ~f sa~d debt, plus interest,.. /As a consequenc:e of ~aid payment (totalling P55,1G0.00·), said bank, 011 January 3, 1946, executed a document of absolute sale known as , "Escritura de Venta Definitiva" on all of the aforesaitl propertietl in favor of Cnmara. Thereafter , Camara caused to .be registered in his name all the said 24 lots in the Office of the Register of Deeds, without notice to plaintiffs, notwithstanding his commitment under said contracts, Annexes A and B, to re-transfer nnd reconvey all said properties to Adriano Golez, or to his assigns, successors-in-interests and/or cessioners, the contract of lease (Annex B) having terminated .:in November 1, 1942. Because of Cumara's refusal to relinquish possession of the 7 lots comprising Hacienda Buenavita and Aurelia notwithstanding the expiration of the lease, a complaint was filed with the ' Court of First Instance of Negros Occidental on March 16, 1946, aocketed in said court as CiYil Case No. 306, entitled "Adriano Golez, plaintiff vs. Carmelo S. Camara, defendant". Jn this case, the true import of the lease contract as well as the resUlting 1·clationship between the parties, was put in issue. From the decision of the lower court in that case, plaintiff appealed to this Court (G.R. No. L-4460), and on October 31, 1953, we promulgated a decision in which we said: "l<~rom all the circumstances and equities of the caS;e. we are led to the conclusion t hat the relation between the appellant and the appelll'e was ir: effect one whereby the a.ppellee accommodated the appellant in the sense that he assumed the obligation of paying the price necessary to i·edecm the undivided portions of Haciendas Aurelia and Buenavista from the Philippine National Bank, under t"he terms hereinbefore already noted, namely, that PS,516.00 wus the down payment and the balance was payable by annual instalments of 1,000 piculs' of sugar to the bank. The appellee, in return, was given by the appellant a leasehold over the two farms, in addition to the possessiOn of the portions already acquired by the bank, with the t·ight of course to receive and enjoy the produce ther~of, after deducting only 1,000 piculs of sugar to be delivered to the bank yearly beginning with the crop year 1932-1933. No other rental was paid to the owners. Besides, the appellant admits his obligation to pay ~mpound interest of twelve per cent on the sum of f'5,516.00, representing the down payment made by the appellee to the bank and on other amounts paid upon account of the purchase price. x x x "There is now no question as to the right of the appellant to redeem the properties in question from the appellee, the latter not having appealed, and the only point that June 30, 1960 LA WYERS JOURNAL 179 arises refers to the amount whi"ch the appellant has to pay. From the foregoing observations we are inclined to hold that the appellant should pay to the appellee the sum of P5,5I6.00, kss P3,Q60.00 already paid on said item, or fl,956.00, with 12 per cent interest compounded annually from January, 1932, (it being admitted under appellant's evidence - transcript, pp . . 37-388 - that the sum of P'3,5£00 was paid at the com· mcncement of the lease contract executed on December 31, 1931), plus the sum of ¥55,541.18 .. The latter amount, which was paid by the appellce on January 24, 1945, in J apanese Military notes must be reduced to actual Philipine currency under the Ba11antyne Scale, since said disbursement could have been repaid in the same currency by the appellant during the Japanese occupation. After being so reduced, it shall also bear compound interest of twelve per cent per annum fron~ January 24, 1945, "Wherefore, it being understood that the appellant is indebted to the appcllee upon account of the repurcftase price of the land in question only in the sums of Pl,956.00, with twelve per cent compound interest from J anuary, 1932, and f296.18 with compound interest of twelve per cent fr:om January 24, 1945, which indebtedness should first be settled by the appellant before h(' is entitled to a conveyance of the land in question, the ap11ealed judgment is in all other respects affirmed, except further that the 90-day period fixed therein shall be computed from the date this decision becomes final. "So ordered without costs." In compliance with said decision of this Court, Adriano GoIC?Z, on March 26, 1954, through his attorney-in-fact Vicente Jimenez, deposited with the Clerk of Court of the Court of First Instance of Negros · Occidental the sum of P386.33 in cash and P25,000.00 in P. N. B. Cashier's check or a total of P25,386.33. Thereupon, two questions arose again in the lower court ( 1) whethCr the deposit in check was valid, and (2) whether Camara was under obligation to reconvey to Golez only the 7 lots under lease or all the 24 Jots acquired by him from the Philippine National Bank in virtue of the contracts Annexes A and B. The trial court sustained the validity of the deposit and also ordered the reconveyance of the 24 lots. Camara appealed from this otder and again the case rea0hed this Court. Pending this ;:ippeal in this Court, (in G.R. No. L-9160) the present plaintiffs-appellants, as assignee~ of Golez. filed the inst<int case (No. 3364) on March 12, 1955, in the Court of First Ins· tance of Occidental Ni!gros against the same Camara, praying, iJ1ter alia, that defendant be orderd to execute the necessary deeds of conveyance in their favor of the remaining 17 lots acquired by Camara from the Philippine National Bank in the manner already narrated. On August 8, 1955, defendant filed a motion to dismiss, on the grounds that (1) the complaint states no cause of action, and (2) the action is violative of the rule on splitting a cause of action under Section 3 and 4, Rule 2 of the Rules of Court. Resolving said motion to dismiss and the opposition thereto filed by defendant on August 18, 1955, the court, on August 31, 1955, issued an order dismissing plaintiffs' complaint, sustaining the view that since plai11tiffs' predecessor-in-interest (Adriano Go. Jez), in the previous case No. 306 against the same defendant, sought the recovery of 7 of the lots mentioned in Annex B in pursuance to the terms thereof, where he, (Golez) could have also demanded the conveyance of the other 17 lots C'ilvered by the s~me contract Annex B relied upon by the plaintiffs in the present case, the instant action constitutes but a part of the former and, consequently, violates the rule against splitting a cause o! action. From this order of dismissal, the plaintiffs have taken the appeal now before us. We do not believe the lower court committed an error in clis.missing the complaint upon the ground stated by it. The cause (Jf act.ion in the previous case No. 306 arose out of the violation of the terms of the contract Annex B by the defendant Camara. Plaintiffs' cause of action in this case No. 3364 is predicated likewise in the alleged infringement of the same Annex B by the same defendant Camara. Present plaintiffs are successors-in-in. tcrcst of Golez, plaintiff in the first case. There is on\)' one delict or wrong upon which both complaints are based. Plaintiffs, however, argue that there is no splitting of a cuuse of action because the issue involved in said Civil Case No. 306 was recovery of possession of Haciendas Buenavi.sta and Aurelia, after the lease contract. (Annex B) expired which dcfrndant refused to surrender to Adriano Golez, whereas the issue in the present case in the reconveyunce of the titles of the 17 lots mentioned in the "Escritura de Compromiso de Vent.a" (Annex A). This is not e)(actly the case. T he two contracts are not separate from o:· independent of each other.,, They are both part of a single transaction; to carry out and facilitate the redemption from the Philippine National Bank of the mortgaged properties. The lease Gontract. was resorted to provide a mode of payment to the bank by the delive1y of 1,000 piculs of sugar u year, which is the agreed rental of 7 of the mortgaged lots. In fine, both actions arc founded on one and the same contract, and the rule is that where the covenant or contract is entire irnd the .breach total, there can be only one action. (Blossom & Co. v. Manila Gas Corporation. 55 Phil. 226.) When a trial is had, it is intended that all matters growing out of the controversy are to be finally determined in one at~d the same suit. The object is to prevent a multiplicity of actions and to p!'event the possibility of one part of the cause being tried before one judge which would unnecessarily harass the parties and produce ne:edless litigations and accumulate costs. (Pascua v. Sidceo, 24 Phil. 2£: Strong v. Gutierrez Repide, 22 Phil. 9.) There is another reason why the questioned order of the court a quo must be upheld. Earlier in this opinion, we adverted to the appeal taken by Camara from an 01·der of the trial court in Case No. 306, directing him to reconvey to Golez all the 24 lots in quest.ion. That appeal (G.R. No. 1.,.9160, entitled "Adriano Golez, plaintiff.appellee vs. Carmelo S. Camara, clefendant appellant"), was decided by this Court on April ::w, 1957, wherein we held that - ''It is clear from the foregoing facts that Comani is bowul to convey to Golcz, no~ .ndy the inUrest. of /sUim·o Jimenez, Aurelia Jimenez and Vicente J\rmencz Yam:on in the .~even (7) lots constitutino f'he Haciendas A11rclia and Bmmavist.a, but, a/.~o, t:lt tt otheJ' 1tcvc11 teen (17) lvts described 1·n the 'p1·omise to sell' and in th e contract of lease above-11umtio11e<l. "It is true that the sale at public auction of the sha re of Isidro Jimenez, Aurelia Jimenez a nd Vicente Yamzo11, in said hacic1!das, was the factor responsible for the intervent ion of Camara in the contracts already adverted to. Th is fact, and the circumstances that the property leased to Camara were said haciendas, explain the emphasis given thereto in the pleaddings jj.nd in the former decisions of the Court of First Instance and of this Court. Again, the issues then submitted for determination revolved on the amou nt to be paid by Golez to Camara, which hinged primarily on the interpretation of said 'cscritura de arren<l.amiento; thus Jocussing attention on said contract of lease and on the pro· perty leased - flrs.dendas Aurelia and Buenavista. 180 LAWYERS JOURNAL June 30, 1960 "However, neither suid '~ompromiso de venta', nor the aforementioned 'escrilura de arrendamicnto,' was limited to a contract of lease . The former involved, also, a cession of the right of redemption, which, although ostensibly made (in the promise to sell) in favor of Camara, turns out, in the language of the contract of lease - which was pa-rt of one whole .~chemc agreed upon by the parties - to be 'por y para el Sr. Adriano Go!ez'. The latte:- (contract of lease) contained, also, a promise to assign or sell in favor of Gole1.. In any e.vc11t, .mid 'coinpromiso de vent(~' cx!n·essly rcfet'red, Clerk of Court as to the date of receipt of the case by the court of origin and it is only on that date of notification that the parties are officially informed that OOl!'ll't proceedi;ngs arc being resumed beC'ause the jurisdiction of the trial court over the case which it had lost h'mporarily in view cf the appeal, has once agai11 been re-acquired because of the re· mantling to it by the appellate tribunal. Only from that date of notification will the diffel'cnt periods for filing plcad4 ings, such as, answer to the complaint, answer to the counter· claim, would begin to run or continue to run. 1wt only to aaid hacienda.1, bitt, dso, to the scv611teen (17) "· .other lot.« therein described. Simi/,u,dy, the aforementioned 'cscrit!tra d1i arren.damicnt-0' e.rplieit'ly states that one of the c•ntsiderations therefor is .:;;aid 'compro·miso de venta' of twen.t/J·f01!r (24) lots, tl1e itlcnt·ifitJ!Ition nmnber of, and the location, aroo, (llld tke interest held ·in each of which are speci· ID.; CIRCUMSTANCES SHOWING DENIAL OP DAY IN COURT; WHEN COURT PROCEEDINGS J\1AY BE CON· SIDERED VOID. - In the case at bar, defendant was not given its day in court for the purpose of answering the complaint after the di~mb,sal of the same at its instancc had been set aside by the appellate tribunal; it was not ~pprised of the ex-par·te petition. for default, of the order of default, setting the case for hcaJ"ing, and of the decision itsdf. The granting or denial of a petition for relief, under such circumstance does not rest upon the discn>tion of the trial court. Petitioner as a matter of right is entitled to it und the court proceedings starting .from the order of default to the decision it~elf may be considered void and of no effect and not binding upon the petitiouer. fied tlt ~·ein. S:i.id deed of lease, moreover, stipulates clearly that 'una vez hecho el pago de la cantidad dicha al · citado Banco Nacional Filipino, dichas pi·opiedades enbicrtas por d·i· cha escritura dv conipromiso de 1'enta x x x estaran todas e:ntregalla y en p<Jscsfrm del x x x Sr. Adriano Golez.' In the the light of the foregoing, and r.onsidering that the decision of this Court of October 3, 1953 (G.R. No. L-4460), and that of the former dedsion of the lower court, fixing the amount t-0 be paid by Golez, obviously regarded that payment thereof is a condition precedent to, or the consideration fo1· the· conveyance undNtaken to be made by Camara, there is no doubt in our -mind that the phrase 'fa,nd ;,,. q11cstion' 1ised 1'.n the dispositive part of our aforementi-Oned decision, referred to the f~venty-fonr (24) lots described in both. deeds, mid that Ca11mra -i.~ bo1111d to convey said twenty-/011;• (24) lots to Golez." (Emphasis rnpplied.) In t.he light of the above ruling by this Court, it b clear that the question involved in the instant case has become moot or 1'CS adjmlicara. · WHEREFORE, finding no reversible error in the order of the court a q110, the saree is hereby affirmed, with oosts against the plaintiffs-appelle.n'.s, without prejudice to their tight, as assignees of Adriano Golez, to enforce the decision of this Court in G.R. No. L-9160 above referred to, SO ORDERED. PaJ"as, C. J., Bengzon, illo11temayc1r, Bautista Angelo, Labra· riur, Concepcion, J. ll. L. R eyn1 and G1ttierr1 'z David, JJ., concurred. /111mra11ce Compa11y n.f 1Vort: America, Pla'.ntiff-Appel/ce, vs. PlliNppi1ic Porl'.;J TeNJiina/, Inc., Defendant-Appellant, G. R. No. L-14133, A1wil 18, 1960, Montemayo1', J. l. CIVIL PROCEDURE; REMANDING OF CASE FOR FURTHER PROCEEDINGS; COURT OF ORIGIN SHOULD NOTIFY PARTIES OF RECEIPT OF APPEALED CASE.The Rules of Court are silent as to whether or not a court of origin whose case is taken to a higher court on appeal and which case is later remanded to it for further proceedings, has the duty to notify the parties of the receipt of said case in order to resume the interrupted proceedings. 'I- Reason and justice indicate if not ordain that the court of origin 5hould notify the parties because, without such notice, the parties would not know when to proceed or resume proceedings, and file other necessary pleaditigs •n .order to continue the case until its termination. The notifiration of the decision of the appellate court to the parties is neither adequate nor sufficient for this purpose. 2. ID.; ID.; DATE OF NOTIFICATION AS BASIS FOR COMMENCEMENT OF PERIODS FOR FILING PLEADINGS. - The parties have a right to be notified by the DEC I SION This is an appeal from the order of the Court of First Instance of Muni!a in Civil Case No. 16658, denying defendant's pet1tion for relief, for supposed lack of merit. The facts in this case are not in dispute. Sometime in September 1949, the Henry W. Peabody & Co. of California shipped on the SS President Van Buren one case of machine knives consigned to the Central Sawmill, Inc. of Manila. Plaintiff Insurance Company of North America, later referred to as Jn • . surance company, insured the shipment. The Ti1ei·chandise was supposedly dischai·ged into the custody of defendan'7 Philippine Ports Terminal, Inc:., then the contractor and operator of the arrastre .service at the Port of Manila. It was claimed that said sliipment was never delivered to the consignee, as a result of which, the insurance company was held answerable therefor, pre· sumably paid the value thereof, and was later subrogated to the rights and interest of the consignee. So, the insurance company filed the present Civil Case No. 16658 on May 28, 1952, in the Court of First Instance of Manila, to recover from the def•:n<lant the amount paid by it, pins ?I,000.00 as attorney's fees, and the costs of the suit. On the twelfth day from service of a copy of the C"Omplaint, cif·fendant Ports Terminal filed a motion to dismiss on the ground that the cause of act;on. had already prescribed, pursuant to the 1n·ovisions of Public Act 521 of the 7th United States Congress, known as "Carriage of Goods by Sea Act", which had been made i;,pplicable to the RhilippineS by Commonwealth Act. No, G5. The trial court granted the motion to dismiss and on June 30, 1952, is.!'ued an order dismissing the complaint. From said order of dismissal, plaintiff insurance company nppe::iled to us on a ques· tron of law, the ap1Jeal being docketed as G. H. No. L-6420 . On J uly 18, 1955, this Tribunal promulgated a decision rnversing the appealed order of dismissal on the ground that the Carriage of Goods by Sea Act, which provides that the carrier and the ship shall be discharg-ed from all liability in respect of loss or damage unless suit is brought within one year after ciclivery of the good or the date when the g·o.ods should have been delivered, <lid not apply to and could not be invoked by defendant Ports Terminal for the reason that it was not. a canier. Our c!.ecision directed that the case be remanded to the CQUrt of origin for further proceedings. A copy of ..-iur decision was received by defendant Ports Terminal on July 21, Hl55. June 30, 1960 LA WYERS JOlJ'.RNA·&· 181 The cnse was eventually remanded to the trial court which received the case on September 14, 1955. The clerk of said court on S(>ptember 16, 1955 notified counsel for plaintiff insurance company of the fact that he had received the case from the Supreme Court. HowC!vcr, according to counsel for defendant Ports Temiinal, not denied by counsel for the plaintiff, ::ind not shown to be otherwise by the record of the case, neither defendant Ports Terminal nor it.s counsel was notified by the clerk of court of origin of the remanding of the case by the Supreme Court to the trial court and receipt by the latter of said case. On December 12, 1955, plaintiff insurance company, through counsel, filed an ex-parte petition for default against the defendant on the ground that from the time the case was received by the trial court on September 16, 1955 from the Supreme Court, defendant had not answered plaintiff's complaint. The trial court found the ex-parte petition for default well founded and by order of December - 17, 1955, declared defendant in default and set the case for hearing on December 27, '1955 for the reception of plaintiff's evidence. On March 20, 1956, on the l:asis of evidence presented by the plaintiff, the trial court rendered its decision, ordering the defendant to pay plaintiff P3,796.00 with legal interest from the date of the filing of the complaint, plus the sum of P1,boo as attorney's fees, and costs. Neither the defendant nor its counsel was notified of the petition for default filed by the plaintiff, of the order of default itself which set the case for hearing .for the r eception of evidence of plaintiff, nnd of the court's decision. According to defendant's counsel, it was only sometime in the second week of April, 1958, when Enrique 1\L Belo of the law firm acting as counsel for defendant, in the coui-sc of a telephone conversation with Josefino Corpus, counsel for tho JJ!aintiff, that he learned that the judgment had been rendered by the trial court against the defendant. Upon verification of the records of the case, counsel for defendant found that a decision had in fact been rendered by the trial court on March 20, lfi56, and that defendant had been declared in default in an orcier dated December' 17, 1955, in pursua11ce of an ex-partc petition for default filed on December 12, 1955 by counsel for plaintiff. This explains why defendant filed the petition for relief from judgment only on April 18, Hl58. In support of said petition for relief, defendant's counsel alleged that neither he nor his client was ever notified by the clerk of court that the case had been remanded to and received by the trial court from the Supreme Court, as a result of which, he failed to file defendant's answer within the reglamentary period, and that no notice was ever received of the ex-parte petition for default, the order of default and the decision rendered. The legal question involved in this case is one of first impression. We do not recall having had a similar case brought before us. The Rules' of Court are silent as to whether or not a court of origin whose case is taken to a higher court on appeal and which ca~e is later remanded to it for further proceedings, has the duty to notify the parties of t he receipt of said case in order to resume the interrupted proceedings. Reason and justice, in our opinion, indicate if not ordain that the cou1t of origin should notify the parties; otherwise, said partif.'s without such nr,tice would not know when to proceed or resume proceeding.:;. end file other necessary pleadings in order to oontinue the case Ulltil its termination. Notification of the decision of the appell:ite court to the parties is neither adequate nor sufficient for this purpose. It is true that by said notification, the parties are advised of the decision of the appellate coui·t, either affirtni11g, reversing, or modifying the appealed decision or order, and that tl1e case would eventually be remanded to the trial coui t. But when? The remanding or retu rn of a case is bound to tak!! time because the same cannot be done until the decision of the appellate tribunal becomes final, and before it becomes final, the appcl!ate court may have occasion to rule upon motions for reconsideration by either party, and for which the movants may ask for extension of time; and not infrequently, more than one motion for reconsideration is filed. So, the parties are not iu n. position to know when the case is actually returned to and re· ceived by the court of origin. It would be too much to expect the parties of their counsel to go to the trial court everyday to find out if the case has already been returned. Consequently, they have a right to be notified thereof by the Clerk of Court.. It is only on that date of notification that the parti~s are of· ficially informed that court proceedings arc being resumed because the jurisdiction of the trial court over the case which it had lost temporarily because of the appeal, has once again been reacquired because of the remanding t.o it by the appellate tribunal. Only from that date of notification will the different periods for filing pleadings, such as, answer to the complaint, answer to the counterclaim, etc., would begin to run or continue to run. In the present case, defendant Ports Terminal was not given its day in court for the purpose of answering the complaint dter the dismissal of the same at its instance had ,been set aside by the appellate tribunal. :"c was not apprised of the ex-parte y;etition for default, of the order of default, setting the case for hf.'aring to receive evidence for the plaintiff, and of the decision itself. The granting or denial of a petition for relief, under such circumstances, docs not rest upon the discretion of the trial court. The petitioner as a matter of right is entitled to it; and the court proceedings starting from the order of default to the decision itself may be considered void and of no effect and not binding upon the petitioner. ( I) IN VIEW OF THE FOREGOING, we find and hold that the appealed order of default and the decision rendered by the lower court are null and void. The order denying the petition for rdief is reversed. The case is hereby remanded to the court of origin for further procedings, with the understanding that the defendant·apelant be allowed to file its answer within a reasonable time. Plaintiff-appellee will pay the costs. Paras, C. J., Bengzon, Bantista Angelo, Labrador, Concepcion, J. fl. L. Reye{';, Barre-ra and Gntierrez David, JJ., concurred. I XI Horacio Gtian::o~~. Petitioner vs. Franci~co Aragon, Hon. Gui!· lcrnw Romero and T!tc Prov. She)"iff of Rizal, Respo11denCs G. R. No. L-14436, March 21, 1960, BautisCa Atigclo, J. CIVIL PHOCEDURE; PETITION FOR RELIEF; FAILURE TO OBSERVE PROCEDURE PRESCRIBED IN SECTION 24, RULE 127 OF RULES OF COURT C'.ANNOT BE CONSIDERED EXCUSABLE NEGLIGENCE. - Under section 24, Rule 127 of the Rules of Court, an attorney may only retire from a case either by the written consent of his client or by permission of the Court, after due notice and hearing, in which event the attorney should see to it that the name of the new attorney be recorded in the case. Failure to observe such procedure cannot be considered ~.s excusable negligenc.c on the part of counsel, much less a basis for relief within the meaning of Rule 38 of the Rules of Court. Ramon C. F ernandez, for petitionel". Delgado, Florez & Macapagal, for r€spondent. DECISION On September 21, 1957, Francisco Aragon brought an action ap;ainst Horacio Guanzon before the Justice of the Peace Cour t of Parafiaquc, Rizal, praying that the latter be ejected from the land mentioned in the complaint. In due time, Guanzon filed his answer to the complaint. Meantime, one Pablo Lozada moved to intervene claiming lo be entitled to the own.ership and possession of the propc1ty and when the motion was denied, Lozada in· stitutcd an action for mandamus before the Court of First Instance of Rizal. This action was dismissed,· the court sustaining (i) Valerio vs . Tan. G.R. No. L-844G, Sept. 19, 1955. 182 LAWYERS JOURNAL June 30, 1960 the order of the justice of the peace court denying the inter\•ention. Despite the mandamus case, the ejectment case was continued whcl"(!in Aragon completed the presentation of his evidence. Then the trial was suspended on Guanzon's petition, its continuation having been set for March 4, 1958 for the reception of Guanzon's evidence. . Of this hearing Guanzon's counsel, Atty. Cesar Leutcrio, was duly ndtified, but desptte said notification neither Guanzon nor his counsel appeared as a consequence of which the Justice of the Peace Court of Parafiaque considered the case m .1bmjtted fdr decision. Accordingly, on April 3fr, 1%8, the court rendered decision ordering Guanzon to vacate the land in question and to restore its possession to Aragon, declaring Guanzon to be a builder in bad faith, and ordering furthermore Guanzon to pay the sum of f'l00.00 a month as rental, plus the sum of 1'200.00 as attorney's fees, with costs. On June 11, 19SS, Guanzon's counsel received a copy of the decision, and when t.he same became final and executory, Aragon asked for a writ of execution. Acceding to the request, the Justice of the peace court issued the writ, and the provincial £heriff set a date for the sale at public auction of tbe building standing on the land. On August 6, 195S, a few days before the scheduled sale, Guanzon filed with the Coult of First Instance of Rizal a petition for relief from the judgment of the justice of the peace cOurt with a prayer for preliminary injunction. This petition was given due . course, the court requiring Aragon to file his answer, but upon a motion for reconsideration wherein Aragon moved for the dis· missal of the petition, the lower court, after proper hearing, resolved to deny the petition for relief on the ground that the reasons alleged therein do not constitute excusable negligenee as to warmnt the reopening of the case before the Justice of the Peace Court of Parafiaque. Hence the present appeal. In the petition for relief filed by appellant for the !'eopeni°ncr of the case before the Justice of the Peace Couit of Parafiaque, he set forth the following reasons as justification; tl1at he did not- appear in the continuation of the hearing of the case set for .March 4, 195S because he was not notified thereof either by the c<-urt or by his counsel due to the circumstances stated in the latter's affidavit; that he could not appeal from the decision rendered by the justice of the peace court because he came to know thereof only on July 30, 1958 when he received a notice from the provincial sheriff that his property will be sold at public auction on August 14, 1958 to satisfy the judgment; that because of the above circumstances he was not able to present his evidence and so he was deprived of his day in court; that his petition was filed within 60 days after he learned of the decision and within 6 months after the s!l.me was entered; !l.nd that he has a good and substantial defense, to wit; that he constructed a semi-complete building on the lots in question on the strength of a contract of partnership he entered into wi-th one Pablo Lozada who contributed thereto the lots aforsaid as his capita! and who claimed to be entitled thereto by virtue of an agreement to sell executed in his favor by the Director of Lands, appellant believing in good faith that Lozada was the owner thereof, and that the question of ownership of the land was still the subjeCt of litigation between Aragon and Lozada in the Office of the President of the Philippines. On the other hand, the failure of appellant's counsel to notify him of the date of the continuation of the hearing as well a;; to furnish him with a copy of the decision appears explained by counsel in affidavit attached to the petition for relief, which explanation appellant claims to be his justification for the reopening of the case. The affidavit contains the following averments; that after the initial hearing of this case before the justice of the Peace Court of Parafiaque, appellant t.pok all the p'apers of the case from the affiant and turned them over to Atty. Eliseo Tenza so that the latter may prepare the necessary pleadings for the renndamus case appellant wants filed before the Court of First Instance of Rii:al; that because of the employment of Atty. Tenza as additional counsel and the fact that the papers of the case were taken by appellant, affiant had the impression that appellant has already terminated his services; that when on March 8, HISS he received a notice from the court that the continuation of the hearing would take plaoe on March 4, 195S, he went to the clerk of court to inquire whether Atty. T<:nza was also notified of the hearing and when he received an affirmative answer, he felt that his appearance at the hearing was no longer necessary; that on June 11, 195S, he received a copy of the decision of the justice of the peace court and when he failed to contact appellant, he merely notified one Ponciano ::.ievilla, a responsible employee of appellant, whom he instructed to relay to appellant the information that the court had rendered an adverse decision against him, and Sevilla assured him that hf' will transmit the message to appellant. Ponciano Sevilla, in turn, stated the following in his affidavit of merit: that on June 13, HISS, he received a telephone call from Atty. Cesar Leuterio instructing him to transmit a message to appellant to the effect that the Justice of the Peace Court of Parafiaque rendered an adverse decis:on against him; and that he wrote the instruction on a piece of paper and placed it 0 ;1 his counter, but unfortunately the iSame was lost; and that because when he received the telephone call he had many customers and was busy attending to thm, he was not able to relay the message to appellant until July 30, 195S when appellant made an ii1quiry regarding said telephone call. In considering the foregoing circiumstances as not sufficient to constitute excusable negligence within the spirit of Rule 3S, the trial court made the following observation: "The petitioner mainly relics on the ground of excusable negligence for his petition for relief from the judgment. The petition states that petitioner Guanzon did not appear in the continuation of the trial of Civil Case No. 464 on March 4, 195S because he did not know of said hearing as he was not notified of it either by the Clerk of the Justice of the Peace Court of Paraii.aque or by his counsel Atty. Cesar Leuterio. The failure of petitioner Guanzon to appear in the hearing of Civil Case No. 464 held on March 4, 19SS because he was not notified of said hearing by the Clerk of the Justice of the Peace did not constitute excusable negligence because there is no duty on the part of the Court to notify him of the hearing a s he was represened by his counsel of record, Atty. Cesar Leuterio, to whom notice of hearing was sent. Thero was neither excusable negligence when Guam.on failed to attend the hearing in the Justice of the Peace Court because his lawyer Atty. Cesar Leuterio did not notify him oI said hearing. Notification of hearing to Atty. Leuterio was sufficient (Sec. 2, Rule 27, Rules of Court). If the presenco of Guanzon was essential jn the trial of March 4, 1958, then his counsel, Atty. Leuterio, would certainly have knowledge of this circumstance and he should have notified his client of said hearing. Atty. Leuterio attempted to explain that he did not notify Guanzon of the date of hearing nor did he appear at said hearing because he was of the honest belief that his services as the lawyer of Guanzon had already been terminated by the latter. But a lawyer, of ordinary prudence knows t.hat the relief of the counsel of rcoord a case MUld only be effected in the modes outlined in Section 24 of Rule 127 of the Rules of Court and Atty. Leuterio had not been retired as counsel for Guanzon in any of the modes so specified in said Section 24. His assumption that he was already relieved as counsel for Guanzon had th~refore no legal basis so that his failure to appear at the hearing was no omission which an ordinary prudent lawyer under the circumstances would not have committed and hence hii said failure constituted gross negligence." (Record on Appeal, pp. 75-77) There is nothing in the foregoing observation from which we June 30, 19CO LA WYERS JOURNAL' 183 can infer that the trial court acted erroneously or with abuse c;f discretion. On the contrary we find it to be in accordance with U:e law and to be supported by the circumstRnces surrounding the fai lure to appear of appellant as well as of his counsel in the continuation of the hearing of the case. Indeed, the claim of appellant's counsel that he failed to notify his client of the hearing because when appellant took from him the papers of the case to institute the mandamus case in the Court of F irst Instance of Rizal he got the impression that appellant has al1·eady te1minated their relation as attorney and client is untenable, for it runs counter to the mode prescribed in Sect.ion 24 of Rule 127 which provides that an attorney may only retire from a ease either by the written consent of his client or by pem1ission of the comt, afte1· due notice and hearing, in which C:Yent the attorney should see to it tliat the name of the new attorney be recorded in the case. Verily, failure to observe such procedure cannot be considered as excusable negligence on the part of counsel, much Jess a basis for relief within the meaning of Rule 38. The claim of counsel that his failure to notify his client is due to the information given him by the clerk of court that Atty. Eliseo Tenza was also notified of the continuationr of the hearing cannot be entertained for, aside from the reasons stated abo\•e, it appears that Atty. Tenza was the attorney of record of inter· venor Pablo Lozada. He was only employed by appellant when the latter decided to institute mandamus proceedings to secrure . the admission of Lozada's petition for intervention on the ejectmcnt case. It is true that one of the factors that may be considHed in ddermining the sufficiency of the circumstances that may justify t he: grant of a petition for relief is that the petitioner has n good and valid defense which, if considered, may have the effect of reversing or altering the nature of the decision. This upon the theory that a petition for relief is addressed to the sound discretion of the court. But here the a!l~·ged good and · substantial defense set up by appellant is that he entered into a partner:shir contract with one Pablo Lozada who claims to be th~ owner of the la.nd on which he erected a semi-complete building and that the ownership of said lot was still pending determination in the Office of the President when appellant filed his petition for relief, which claim is not correct, for the record shows that when said petition was filed the administrative c:1se between Lozada ancl appellee has already been finally passed upon by said office. Thus, from the record it appears that on Ap1•il 5, Hl57 the Of. fice of the President decided the case advel"sely to Lozad.~ by virtue of the api:eal taken by Aragon from the decision of the Secretary of Agriculture and Natural Resources, while the motion for reconsideration filed by Lozada was denied by said office on April 11, 1958. (Annex A). On the other hand, the record shows that the petition for relief from judgment was filed by appellant on August G, 1958 and the same was denied on August 20. 1958. We find, therefore, no plausible reason for disturbing the action taken by the trial com"t considering that the alleged s~pecial defense, even if considered, could not have the effect of altering the nature of the decision of said justice of the peace. " But it i;hould be noted that the granting or denial of a motion for new trial is, as a general rule, discretionary with the courts, whose judgment should not be disturbed unless there is clear showing of abuse of diseretion. In the instant case, we find that the lower court did not abuse its discretion. While it is true that the failure of the defendants to appear is due to inadvertence 01· mistake on the part of an employee which ordinary prudence could not have guarded against, we should not lose sight of the fact that the lower court deemed it wise to deny the motion because it considered futile and unsubstantial the defense set up by the defendant which, even if proven, could not have the effect of altering the nature of the decision. In this respect we agree with the trial court." (Miranda Ys. Legaspi, ct al., 48 0.G. No. 11, p. 4822.) Wherefore, the order appealed from is affirmed, with costs ngainst appellant. Pa,raS-, C. J., B engzon, llfantemayor, La-bmdar, Conccpci<m, B11de11cia Mid G1ttie1Tez David, JJ., concurred. J. B. L. Reyes, J., concuned in 'the result. Ba'r'T"era, J., took no part. I XII David /n{;(), et al., P etitioner, vs. Go<lofredo E nriquez, Resvondent, G. R. No. L-13367, Feb. 29, 19GO, Reyes, J. ll. L., J . l. CIVIL LAW; DOCTRINE OF P ARI DELICTO. - Where. the parties to a contract are in puri dclicto, the contract cannot be set aside or enforced by either party and the court.a will leaYe the parties where it finds them. ~. ID.; POWER OF COURT TO F'IX PERIOD Of' LEASE. - The mere absence of a provision under Aii.icle 1687 of the new Civil Code authorizing the court to fix 11 term where the rental is pa~•ablc. yearly does not prevent the court of power to fix periods under the general rule of article 1197 of the same Code, especially where the contract is basically a compromise to settle contradictory claims and not an or· di nary lease . Ramws, Constnnti1w & Pi1i.cda, for petition.e1-s. Salonga, 01·donez, Gonzales & Associates, for respondent. DEC I SION This is a petition for certiorari to review the decision of the Court of Appeals in CA-G. R. No. 19207-R. For severul yeai·s prior to 1944, Eduvigis Aquino was the IE:ssee of Lots Nos . lG-B and 17, Block 3 of the "Capel!ania de C-0ncepc:ion", better known as the Tambobong Estate, and the owner of a house of strong materials built thereon. On April 10, 1944, she (Aquino) sold the said house, together with the leasehold rights, to the spouses David lnco and Leonor Constantino, petitioners herein. In the contract of sale, it further appears that <>f the aforementioned lots, Andres Ochanco, Julio Sanchez, Na1·C:so Cruz, Moises Mangah and Florentino Magkalas hud their own l"l'Spective residential house!; as sub-tenants of Aquino. In Ul46, TC'Spondent Godofredo Enriquez purchased from Narciso Cruz the lnt-ter's house which he thenceforth occupied to the present. Sometime in L9<17, the b.ndcd property constituting the Tambobong Estate was acquired by the National Government for e..ib. <livision and resale to tenants pursuant to Republic Act 14-00. Both petitioners and respondent seem to have been desirous of purchasing the lots afore-described f1 om the Government . On May 6, 1952, however, petitioner David Inca, as Party of the F'irst Part, and respondent Godofredo Enriquez and Acasia Santos, as Parties of the Second .P art, entered into a contract of lease and waiver (Exhibit C or 3). whereby petitioner Inco agreed to al!ow respondent Enriquez to continue occupying the area posbessed by him as long as respondent paid to lnco the sum of l'l.00 a month or P12.00 a year as rental. In exchange, respondent Enriquez executed an affidavit (Exhibit D or 4) whereby he renounced whatever rights he had to buy the portion of the lot occupied by him in order that l nco might acquire the entire lot. As a result of the agreement, Transfer Certificate of Title No. 3687"7 was thereafter issued to Inco a11d his wife. Informed of this fact, respondent EnriquE'z sought to have the contract o/ lease annotated at the back of the title. The Registrar of Deeds, however, refused to effect t he annotation, on the ground that it did not bear the approval of the Department Secretary. Awakened by that action of the Registrar, petitione"n declined to accept further payment of rentals, and on May 16, 1955, initiated an action in the Court of First Instance of Rizal to ha\'C the lease oon184 LA WYERS J OURNAL June 30, 1960 tJ"act declared null and \•oid or else to have the comt fix the duration of the same. From the decision of the trial co\lrt adjudging the contract of lease to be a nu\!ity, respondent Enriquez appealed to the Court of Appeals. The latter modified the judgment by upholding the vdidity of the lease and fixing a term of ten years, counted from !\.fay l(l, 1955, for its duration. The spouses Inco, in their petition for certiorari, aver that th0 e contract of lease is a nullity, and that the Court of Appeals had no authority to fix a period . Petit ioners base their first contt'ntion on the propositions that (I ) the contrnct of lease lacks t-he writte11 consent and approval of t he Sec1 ·etary of Agriculture and Natural Resources; and that (2J it is void without the consent of the wife of David Inco. Reliance is placed on paag raph 16 of Administrative Order No. H-3 on Landed Estates (which took dfect on November 15, 1951, l1aving been published in the O.{ficial Gazette for December; 1951, Vol. 4i, No. 12, p . 6075) providing: "Proliib iCion to Alie11atc, - The ~ppell:mt shall not sell, a ssign, encumber, mortgage, or transfer, his right under the agreement to sell or in the property subject thcrCof without first obtaining the written consent of the Secretary of Agriculture and Natural Resources and this oondition shall subsist until the lapse of 5 years from the date of the execution of the final deed of sale in his favor and shall be annotated as a n encumbrance on the certificate of tit.le of the property that may be issued in his favor." And also upon paragraph 18 of the same order: "Any sale, assi;rm,nent, encumbrance, mortgage, ot· fransfer made in violation of the provisions of the next two preceding paragraphs hereof is null nnd void, and shall be sufficient ground for the Secretary of Agriculture and Natural Re.sources to cancel the deed of sale and to order the reVersion of the land to the government and the forfeiture of whatever paynlents made on account thereof. In case, how. ever, a deed of sale has already been issued, the violation of the said provisions shall be sufficient ground for the Secretary of Ag riculture and Natural Resources to take appropdate action in comt with a view to obtaining the reversion of the land involved to the government. AU lands reverted to the government s halt be disposed of as vacant lot." But the Court of Appeals held that said paragraphs notwith· standing, the act ion for annulment could prosper because the parties are in pari delicto and hence, the contract cannot be set aside or enforced by either party; for under the said doctrine, the couits will leave the parties where it finds them. Petitioner Inco, however, urges that the application of thr. pari delicto doctrine is not unlimited, in that whenever public policy is considered as advanced by allowing either party to sue for relief against the transaction, the rule does not apply. It may well be argued that the contract did not violate the administrative regulations invoked, since it was concluded before the government recognized Inco's preferential right to the Jot. But even disregarding this aspect of t.he case, we believe that the Court of Appeals correctly applied the pari dclicto rule, and that petitioner Inco nnd his wife cannot invoke furtherance of the public policy in order to escape from it. Undeniably, petitioners would not have obtained a certificate of title over the entire lot, practically amount to a fraud upon the respondents Enriquez. Such a result would not further public policy but defy all justice and equity. The interests of society demand that bad faith and fraud be severely repressed, and the Courts cannot consent to their futherance, directly or indiredly . It is noteworthy that the prohibition against alienations of the lots in the Tambobong estate is primarily designed to protect the occupants from being rendered homeless through improvidence, ignorance, or sheer necessity. These dangers do not flow from the maintenance of the contract now before us. Neither party will be deprived of a homestead, their respective houses being erected on different portions of the lot. Fmthermore, the decision of the Court of Appeals limits the tenure of respondent Enl iquez to ten years, and the ultimate reversion of the entire lot to the registered owner is thereby assured. Thus construed, .the contract is not utimately violative of the purposes of the statute and there is no reason, therefore, why equity should not prcvaviL The pari delicto rule applies equally well to the wife, Leonora Cor.stantino. Although not a signatory to the contract of lease and waiver, she has sufficiently manifestt>d by affirmative acts her unequivocal concurrence to the contract in controversy (Dee 1\Iontederanos vs. Ynopoy, 54 Phil. 457; Lo. Urbana vs. Villasor, 5!.J Phil. 644). She and her husband .benefited from the transaction and continuously received the agreed rentals paid by the respondent from the execution of the contract until l!J55. Ac0 ceptancc of benefits raises a strong presumption of knowledge and consent. Appellants argue that Article 1687 of the new Civil Code does not authorize the Comt to fix a term where the rental i;; payable yearly. The mere absence of a provision under Article 1687 docs not prevent the court of power to fix periods under the general rule of Article 11!J7, since this contract was basically a compromise to settle contradictory claims and not an ordinary lease. WHEREFORE, we find no error in the judgment of the Court of Appeals, and hereby affirm it, with costs against JJetitione1-s David Inco and his wife, Leonora Constantino. Pams, C, J., Bcngwn, Montemayor, Bauti8ta, Angelo, Dabi·ador, Concepcion, E'ndcni:ia and Barrera, JJ., concuned. Gutierrez David, J., took no part. Padilla, J., on leave, took no part. / XIII Max ima Acicrto, ct al., Pecitio11a s, v~. Victorina G. de Lap~ral-, ct al., l?espomlents, G. R. No . L-15966, April 2!.J, l!J60, /'!aidi;;ta Angelo, J. 1. CIVIL PROCEDURE; PERFECTED APPEAL OPERATES TO VACATE THE JUDG MENT OF INFERIOR COURT, EXCEPTION. - The rule that a perfected appeal shall operate to vacate the judgment of the justice of the peace or the municipal court, and the action when duly entered in the court of first instance shall stand de 11ovo upon its merits in accordance with the regular procedure in that court as though the same had never been tried before and had been originally there commenced, applies only to ordinary actions, and not to cases of ejectement which arc governC'd by Section 8, Rule 72 of the Rules of Court which sets out a particular procedure that may be deemed to be an exception to the provision of Section 9 of Rule 40. at least without protracted litigation, had not the spouses Enriquez 2 · ngreed to give up their own claims over the portion they occupied. SPECIAL CIVIL ACTION; SECTION 8, RULE 72 OF RULES OF COURT CONSTRUED. - It is settled that un: der Section 8, Rule 721 of the Ruh~s of Court, when the judgment is in favor of plaintiff, it is l·equired that it be executed immediately in order to prevent fmther damages to him caused by the loss of his possession. It is equally obvious that the sole consideration for the withdrawal of the Enriquezes from the field was lnco's promise to allow them to remain in possession at a nominal rental. To annul this cover.ant now would deprive the Enriquezes of any benefit thereunder, after the Incos had reaped full advantage from it. Without any 3. possibility of a return to the sfotus quo ante, the annulment would ID.; ID.; HOW DEFENDANT MAY STAY THE EXECUTION OF JUDGMENT. - The defendant may stay the June 30, 1960 LAWYERS JOURNAL 185 execution of the judgment (a) by perfecting his appeal and filing a supersedeas bond; and (b) by paying from time to time either to the plaintiff or to the court of first instance, during the pendency of the appeal, the amounts of rents or the reasonable value of the use and occupation of the property as fixed by the justice of Hl<' peace, or the municipal court in its judgment. 4. ID.; ID. - The provision of Section 8, taken in relation to that of Section 9, Rule 72 of the Rules of Court, is mandatory. DECISION On February 16, 1959, Maxima Aciert-0, et :l!. filed before the Municipal Court of Manila :lgainst Rohrto Laperal and his wife an action praying that they be allowed to deposit the rentah of the premises they were occupying with the court pending term· ination of the action, that the court declare that the need for the construction of a building on the occupied premises is not a ground for ejectment under the law, and that it fix a longer period of lease between the 1iarties considering the circumstances obtaining under Article 1683 of the new Civil Code. Defendants, in their answer, admitted the existence of the Jea~e agreement, but alleged that the same is on a month to month basis, and that on September l, 1958, plaintiffs were. notified to vacate the premises occupied by them but t hey refused and in view of such refusal defendants gave plaintiffs the requisite 15 days notice to vacate with the warning that if they foil to comply with the demand an action for ejectment would b:! filed against them. Defendant set up a counterclaim asking for ejectment of plaintiffs. On April 11, 1959, after trial, the t".ourt rendered judgment ordering plaintiffs to vacate the premises occupied by them and each to pay the monthly rental at the rate therein specifjed from December, 1958 until they shall have surrendered their possession to defendants. In due time, plaintiffs appealed to the court of first instance. The appeal having been given due course, the court set the case for hearing on June 2, 1959, notice thereof having been received by counsel for plaintiff~ on May 26, 1959. On May 29, 1959, plaint:iffs' oounsel filed a motion d'or postponen1enb al· leging that he had a trial in Castellejos, Zambales on June ::; a nd 3, 1959, but due to the fact that said motion was not set for hearing by movant and no !?roof was presented of the allegations contained therein, the court denied the motion and declared the appeal abandoned. From this ordf:r, plaintiffs appealed to the Supreme Court. On August I, 1959, defendants filed a petition for execution of the judgment of the municipal court in view of plaintiffs' failure to deposit. the rentals which they were sentenced to pay as required by the rules, which petition was granted on August 20, 1959. And their motion for reeonsideration having been denied, plaintiffs interpreted the present petition for certiorari alleging that respondent judge has acted without or in excess of his jurisdiction. The only issue posed in this petition is whether the appeal taken by plaintiffs irom the decision of the Municipal Court of Manila to the court of first instance had the effect of vacating said decision as is the case in ordinary actions as provided for in Section 9, Rule 40, of the Rules of Court. While in an ordinary action a perfected appeal shall operate to vacate the judgment of the justice of the peace or the municipal court, and the action v,hcn duly entered in the court of first instance shall Stand de novo upon its merits in accordance with the regular procedure in that court as though the same had never been tried before and had been originally there commenced (Section 9, Rule 40), this rule only applies to ordinary act:ons, and not to cases of ejectment which are gove111ed by Section 8, Ruic 72. This rule sets out a particular procedure that may be deemed to he an exception to the provisions of Section 9, Rule 40 (Torres v. Ocampo, 80 Phil., 36; Taguilimot v. Makalintal, 47 O.G., 2318). Thus, it has been held that under said Section 8, Rule 72, when the judgment is in favor of plaintiff, it is required that it be exeeuted immediately in order to prevent further damages to him caused by the loss of his posse:ssion (Pascua v. Nable, 71 F'hil., 186; Yu Tiong Tay v. Barrios, 79 Phil., 597; Sumintac v. Court, 71 Phil., 445; Arciila v. Del Rosario, 74 Phil., 445). The defendant may, however, stay the execution (a) by perfecting his appeal and filing a superscdeas bond; and (b) by paying from time to time either to the plaintiff or to the court of first instance, during the pendency of the appeal, the amounts of rents or the reasonable value of the use and occupation of the properyty as fixed by the justice of thc peace, or the mun.icipal court in its judgment (Sections 8, Rule 72). This is the situation herein obtained. Plaintiffs failed not only to put up a supersedeas bond but to deposit the rentals that had become due with the clerk of court thus forcing defendants to petition for a writ of execution. It has been held that the provision of Section 8, taken in relation to that of Section 9, Rule 72 is mandatory (Arcilla v. Del Rosario, 8Upr-:i; Cunanan v. Rodas, 78 Phil., 800). It is true that plaintiffs claim that the action they have institut.<!d is for consignation with a view to securing a judicial declaration that the use of the premises for the construction of a building is not legal ground for cjectment, and is not for illegal detainer, but it is likewise true that defendants have put up as a special defense the fact that plaintiffs had been notified to vacate the premises after having been given the requisite .notice and that, as they failed to do so, they prayed that an order of c.iectment be entered against them. This relief was granted by the inferior court. In fact, said special defense was considereil by the trial court as partaking of the nature of ejectmen!:.. Considering the Jaw and jurisprudence on the matter, we find no plausible reason for entertaining the claim of petitioners that the trial court committed a grave abuse of discretion in issuing the writ of execution prayed for by respondents. \Vhercfore, petition is denied, without pronouncement as to costs. Pa,ras, C. J., Bengzon, f1a.dilla, ilfontcm.ayor, Labrador, CQnccpcion, Endencia, Barrera a11d Gutierre;: David., JJ., concurred. XIV h lbcrto Ines-in, EulogW Torneto and Felix Waya, Petitioners, vs. The Ht:m. Mateo Canonoy, in his capacity as DUtrict Judge of the C<>urt of First lnstancr. of Zamboanga del Sur, and Vicenta Bcnodin, Respondents, G.R. No. L-13231, February 29, 1960, Labrador, J. CIVIL PROCEDURE; N.OTICE OF HEARING; WHEN MOTION FOR RECONSIDE RATION WITHOUT NOTICE OF HEARING CANNOT BE CONSIDERED AS MERE SCRAP OF PAPER. - In the case at bar, although the the motion for reconsideration to set aside the judgment was not aecompanied by a notice of the date set for the hearing of the motion, said motion cannot be con· sidered as a mere scrap of paper which did not suspend the period of appeal, considering that the session in Pagadian, Zamboanga <lei Sur, are not continuous throughout the year but only once a year to be fixed by the district judge and the attorney for the movant could not set the motion for hearing, not kno,ving on what date or in what month the next yearly session in Pagadian was to take place. v1·cenzo A. Sagun, for petitioners. Ber~'J,les & Bersales, for respondents. 186 LA WYERS JOURNAL June 30, 1960 DECISION This is an original action for certiorari and prohihition filed with us to reverse an order of the Court of First Instance of Zamboanga de! Sur, Hon. Mateo Canonoy, presiding, setting aside a previous order of the court dated December 2fl, 196, disn1issing an action instituted· by herein respondent Vicenta Be. nodin against the herein petitioners, Alberto lnesin, Eulogio Tor1:cto and F elix Waga which is civil case No, 194 of the Court of First Instance of Zamboanga del Sur, Pagadian. In said civil case No. 194 herein respondent Benodin brought action against petitioners lnesin, Torneto and "\Vaga to recover from them damages for serious physical injuries suffered by plaintiff for having been thrown out of a tartanilla in which she was riding, which was struck from behind by a bus owned and operated by Albert.o Inesin and Euligio Torneto, and driven recklessly by Felix Waga. Upon receiving the summons counsel for defendants moved to dismiss the eomplaint by reason of the fact that a final judgment had already been previously rendered between the same parties for the same cause of action and that \Vaga has not been shown to have any relation with his other co-defendants, The motion was set for hearing on September 27, 1955. The court granted the motion and dismissed the action on the ground that the driver of the bus had been prosecuted in the justice of the peace court of Pagadian for negligence, and found guilty, and in said case plaintiff Vicente Benodin had not. reSt'rved the right to institute an independent civil action. The record shows that counsel for defendants received copy of the order of dismissal on October 7, 1955 and on October 31, they presented a motion for the re<:onsideration of the order of dismissal. The motion for reconsideration does not give notice of the day set for the hearing thereof, but on December 6, lft56, such notice was presented a sking the clerk of comt to set the motion for reconsideration for hearing on December 22, 19.56. The motion was opPQsed because it contained no notice of hearing ~md it, therefore, should be considered as a mere sC'rap of fiaper which did not affect the runni ng of the period for th:! judgment to become final. On December 29, 1956, the court be]{•\V granted the motion for reconsideration and set aside the wder of dismissal. Thereupon attorney for defendants presented :!.. motion to reconsider the order which is set forth above but the court denied this motion for reconsideration on J anuary 15, 1957. In the case at bar it is the claim of the petitioners before us that as the motion for reconsideration, submitted by the defcndt<.nt in the court below to set aside the judgment, was not accompanied by a notice of the date set for the hearing of the motion, said motion should be considered as a mere scrap of paper and did not produce the effed of suspending the period of appeal. So, it is claimed that the judge below, in setting aside the order of dismissal, acted in ,excess of his jurisdiction. It is to be noted that the Court of First Instance holds its sessions in Pagadian, Zamboanga del Sur, only once a year on the dates to be fixed by the district judge (Sec. 161, Rev. Adm. Code, superceeded by Sec. 54 of Republic Act No. 296). A.s the sessions in Pagadian are not continuous throughout the year, and since it is not shown that at the time respondents herein presented the motion to reeonsider the order of dismissal the judge of the Court of First Instance had already set a date for the next term, attorney for the movant, respondent herein, could not set the motion for hearing, not knowing on what date or in wr.at month the next yearly session in Pagadian was to take place. It is true that the attorney for the respondent could have set the motion for hearing on the first day of the term, asking the clerk of court to :::et it for hearing on that date, but the failure to adopt such a step could not have meant negligence or neglect on the part of attorney for the rnovants, for said attorney had the alternative to set the motion for hearii1g as soon as the judge has fixed the following term of the court in that municipality. Under th.e rules which we have enjoined to be intt1 preted liberally, and under the circumstancES, we are not prepared to declare that the motion, which was accepted by the clerk of court, without the designation of the date for its hearin~, was a mere scrap of paper. Judging from the order of the respo.ndent court, the next sessions after the sessions in September, 1955, must have taken place in October, 1956, when the inotion for rc::consideration in question was set fcii- hearing by oounsel for the rnovant-respondent. Perhaps it was only in December, 1956 that the plaintiffs had bee~ apprized that the comt was going to hold its term of comt during the month of December, 195G and it was on the sixth day of that month that said attorney for the plaintiff, respondent 1ierein, promptly notified the clerk and the adve1 se party of the date of said hearing. The judge, who should know this special provision of the Judiciary Act on the holding of sessions in Pagadian, denied the motion to strike out the motion for reconsideration for failure to contain a notice of the date of hearing, and he must have taken into account the fact that there is only one term of the court in Pagadian. Wherefore, the petition should ,be, as it hereby, denied, withcut costs. Paras, C. J., B cngzon, Montemayor, Haidista Angelo, Concepcion, J, B. L. Reyes, Endencia, flarl'era un(l Gutierrez Da"l!id, JJ., concurred. I xv Jose Bernabe & Co., Inc., Plaintif/-Appel/an,t, vs. Delgado Br~ titers, Inc., Dcfendant-Appcllcc, G.R. No. L-1-1360, February 29, 1960, Barre1"a, J. CIVIL LAW; CONTRACTS; EFFECT OF ACCEPTANCE OF BENEFITS OF A CONTRACT. - When a third person accepts the benefits of a contract, he is also bound to accept the concomitant obligations oorresponding thereto. Perez Cardrmas, for plaintiff-appellant. LeoOlldio de Asis, for defendant-appellee. DECISION Plaintiff-appellant Jose Bernabe & Co., owner of a shipmenl of machine spare parts unloaded into the custody of defendantappeilee Delgado Brothers, Inc., as arrastre operator in the Port of Manila, filed in the Court of First Instance of Manila (in Civil Case No. 30615) a complaint against appellee, seeking to recover from the latter the sum of P2,8~5.00, representing the replacement value of a diesel machine flywheel damaged, allegedly, while in the custody of appellee. Appellee in his answer denied liability therefor, and on the date of the hea1fog, the case was submitted upon the following. " STIPULATION OF FACTS "COME NOW the parties in the above-entitled case, through their respective counsel, and to this Honorable Court respectfully submit the following Stipulations of Facts : "L That plaintiff is the owner of a shipment C'.:insisting of machine spare parts unloaded from the S . S. 'BENCLEUCH' in the Port of Manila, under Registry No. 1434, Bill of Lading No. 22, which arrived in Manila on December 5, 1955; "2. That at the time the S.S. 'BENCLEUCH' arrived in Manila and unloaded her cargo, the defendant was the arrastre contractor for the Port of Manila and, as such, in charge of receiving cargo unloaded from vessels unto the piers, and delivery of same to consignee or their duly authOTized representatives, pursuant to and subject to the Management Contract entered into between the Bureau of Customs and herein defendant a copy of which is hereto attached, marked ANNEX 'A' and made a part hereof. The parties stipulate, however, that plaintiff is not a signatory to tho said Management Contract; "3. That the aforementioned shipment included a Diesel Engine GL913 (FLYWHEEL FOR TANG.YE) which was unloaded from the S.S. 'BENCLEUCH' and was received June 30, 1960 LAWYERS JOURNAL 187 188 at nighttime b)• defendant in the course of its arrastre operations uncra.ted and unpacked and in apparent good order condition, and the corresponding dean T.'l.lly Sheet therefo re was issued, as per attached ANNEX 'B'; "4. That at the time plaintiff's representative broker appeared before the defendant to take delivery of said shipment consigned to plaintiff, said representative requested for a Bad Order Examination of the Flywheel which inspection was conducted by a representative of the defendant in the presence of plaintiff's representative and the result of the e:x· amination appears in the B.O. Examination Report hereto attached, marked ANNEX 'C'; "5. That as a result of the findings of the B. 0. Exam· ination of thu Flywheel in question, plaintiff's representative filed a Formal Clain1 on December 28, 1955 in further refe.rence to claim under Ref. 8193-E-12-55: "G. That plaintiff's representative or broker t-0ok · deliver)' of the Flywheel in question from the defendant by sign· ing and presenting permit to deliver imported goods with Entry No. 99075, File No. 5100, and in reverse side of which there appears the following notice in rubber stamp, . to wit; 'IMPORTANT NOTICE 'This permit is presented subject t-0 all the terms ~d conditions of the Management Contract between the Bureau of Customs and Delgado Brothers, Inc., dated October 21, 1950, and amendments thereof or alterations thereof, particularly but not limited to Paragraph 15 thereof limiting the Company's liability to f500.0() per package, unless the value of the goods is otherwise specified, declared or manifested and the corresponding arrastre charges have bee.n paid; providing exemptions or restrictions from liability unless suit is brought within one (1) year from the date of the arrival of the goods or from the date when the claim for the value of the goods has been rejected, provided each claim is filed with the Company within 15 days from date of arrival of goods.' a photostatic copy of which is hereto attached and marked ANNEX 'D' hereof; "7. That upon the presentation of the permit to deliver imported goods with the defendant, herein defendant issued a Gate Pass, No. 36051, and in which there appears the following printed words, to wit: 'The undersigned, duly authorized to respe<:tively represent the Bureau of Customs the above named CON. SIGNEE and the Arrastre Service Operator hereby certify to the correctness of the above description of the goods covered by this Gate Pass. Issuance of this Gate Pass constitutes delivery to and receipt by CONSIGNEE of the goods as described herein, subject to all the terms and conditions contained in the Management Contract between the Bureau of Customs and Delgado Brothers, Inc., dated October 21, 1950, and all amendments thereto or alterations thereof, particularly but not limited to Paragraph 15 thereof limiting the oompany's liability to f500.00 per package, unless the value of the goods is otherwise specified or manifei;ted, providing exemptions from liability unless suit is brought within one (1) year from the date when the claim for the value of the goods has been rejected, provided such claim is filed with the Company within 15 days from the date of the arrival of the goods.' a photostatic copy of which is hereto attached and marked ANNEX 'E'. "The Gate Pass containing the above notation was also duly signed by plaintiff's representative or hrnker. "8. That the parties herein rc'serve the right to pre.sent evidence on points not covered hy the above Stipulation of Facts; "9. That the parties herein reserve the right to present simultaneous memoranda within thirty days from receipt. of order admitting the Stipulation of Facts." Subsequently, the parties submitted a "Supplemental Stipulation of Facts", as follows: "SUPPLEMENTAL STIPULATION OF FACTS "COME NOW the parties in the abov&-entitled case, and in accordance with the commitment made in open court on December 18, 1956, respectfully submit this Supplemental Stipulation of Facts; "1. That the parties admit that; as lo the replacement cost of Flywheel GL-913, had plaintiff presented a witness, he would have identified the attached Letter, dated December 15, 1956, of the Pacific Exchange Coi·poration giving quotation of replacement cost, and which letter is her~ of; "2. That to date. plaintiff has not as yet received the replacc ement for tho Flywheel." On the basis of the foregoing Stipulation and Supplemental Stipulation of Facts, the court rendered decision which, in pa1t, reads: "The Court is of the opinio11 that the plaintiff is bound by the provisions of the management C-Ontract. As a matter of fact, it complied with such provisions as were necessary for it to take delivery of the cargo. Plaintiff should not take advantage of the management ' contract when it suits him to do so, and reject its provisions when it thinks otherwise. "The management contract provides for a liability of not more than P500.00. This being the case, defendant is only liable to this amount. "IN VIEW OF THE FOREGOING, judgment is hereby rendered in favor of the plaintiff and against the defendant. ordering the latter to pay to the former, the amount of 1'500.00, plus 25% of this amount as attorney's fees. Defendant shall also pay the costs." Not satisfied with said decision plaintiff appealed to the Court of Appeals, but said court, in its resolution dated August 5, 1958, elevated the case t-0 us, on U.e ground that it involves only question of law. The pivotal issue presented by the a.ppeal is whether the provisions of Paragraph 15 of the Management Contract between arpellee a.nd the Bureau of Customs, limiting appellee's liability W Pti00.00 per package of merchandise, unless the value thereof is othe1"W"ise specified or manifested and the corresponding arrastre charges had been paid, are binding upon plaintiff-appellant, despite the fact that the latter was never a signatory to the contract. Paragraph 15 of the Management Contract in question, reads in part, as follows: "15. It is further understood and strictly agreed that the CONTRACTOR (nppellee) shall at its own expense handle all merchandise upon or over said piers, wharves and other designated places, and at its own expense perform all work undertaken by it hereunder diligently and in a skillful workmanlike and efficient manner; and the CONTRACTOR (appellee) shall be solely responsible as an independent contractor for, and promptly pay to the steamship company, consignee, consignor, or other interested party or· parties the invoice value of each package but which in no case shall be more than five hundred pesos (P500.00) for each package, unles~ the value is otherwise specified or manifested, and the corresponding arrastre charges had been paid, including all da· LA WYERS JOURNAL June 30, 1960 mages that may be suffered on account of loss, destruction, or damage of any merchandise while in the custody or under the control of the CONTRACTOR (appellee) upon any pier, wharf or other designated place under the supervision of the BUREAU, x x x." (Emphasis supplied.) In support of appellant's contention that the above contractual provision (the intrinsio validity of which is not questioned in this case) is not binding upon it, reliance is placed on the pro\'isions of Article 1311 of the Civil Code, reading thus: "Art. 1311. Contracts take effect only between the pa1ties their assigns and heirs, except hi case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the prope1ty he Teceived from the decedent. "If a contract should contain some stipulation in favor of a third person, he may demand its fulfillment provit;ted he communicated his acceptance t o the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clear!~· and deliberately oonferred a favor upon a third person." Appellant argues, that in the light of the above-qu'oted article contracts are binding and enforceable only between the parties, their· assigns and heirs, the only exception being a third person not a party thereto, in whose favor a benefit is clearly a nd deliberately conferred. Although appellant admits that the aforemen. tioned Management Contract contains provisions "benefitting persons not parties thereto for said contract pertains to serving the public (sic)'', a nd that "anyone desiring to avail of such ser vices has the right to demand it despite the fact tha.t he was :not a party to the Management Contract", it claims, nevertheless, that such third parties can not ,be bound by stipulations and conditions thereunder which are onerous or prejudicial to them. Appellant's argument does not accord with and is not j4st. if;ed by the spirit (if not the letter) of the law. When a third person accepts the benefits of a contract, he is also bound to ac<"ept the concomita0nt obligations corresponding thereto. As the lower court correctly observed: " Plaintiff should not take advantage of the management contract when it suits him to do so, and reject its provisions when it thinks otherwise." Appellant, further, contends that the contractual obligation in the aforequoted paragraph 15 of the Management Contract limiting appellee's liability is arbitrary, unjust, and unreasonable being practically forced upon it, since there was absolutely no way for it to receive the imported cargo except by engaging appellce's services as sole operator of the arrastre service in the port of Manila. Its consent, it is claimed was not voluntary, and hence, not valid. In answer, it may be stated that appellant could adequately protect Itself, by sinlply specifying or manifesting the actual \-aJue of the imported cargo in the various documents required of it under the law,( 1) and paying the corresponding arrastre charges of the same, pursuant to the provisions of said paragraph 15, and of the "Important Notice" contained in the Delivery Permit and Gate Pass which its representative or broker accepts, signs, and utilizes, upon taking delivery of the imported cargo from appellee arrastre operator, in which event, the latter expressly binds itself and undertakes to reimburse appellant the act· ual value of the cargo, in case of its damage, destruction, or loss while under its custody. If appellant failed to state the value of merchandise in any of these documents required by law before he cleared its goods, and paid only the arrastre charge based on a lesser value, it can not in justice now demand the full undeclared value. We find, therefore, t hat Paragraph 15 of the Manage:no:::nt ( 1) Import entry (Sec. 1267, Rev. Adm. Code: written <i<'"'foration (Sec. 1268-6, in connection with Secs. 1269 and 1271. Rev. Adm. Code). Ccntract is binding upon the herein plaintiff.appellant. Decaion ap. pealed from is hereby affirmed, with costs against the plaintiffappellant. SO ORDERED. Bengzon, Montemayor, Ba.utiata A11gelo, LabradOT, J.B.L. Re.r yea and Endcncia, JJ., concurred. Padilla, J. on leave, took no part. XVI /viccnte Barcng, Petitoner, vs. The Hrm. Court of ApPcal&, Patrocinio Alegria and Agitst'in Ruiz, Respondents, G. R. No. L12973, April 25, 1960, Reyes, J. B. L., J. • . CIVIL LAW; PAYMENT OF LEGAL INTEREST . - In the case at bar, petitioner was in default on the unpaid balance of the price of • the equipment in question from the date of the filing of the complaint by A. and under Article 2209 of the New Civil Code, he must pay legal interests thereon from said date. 2. ID. ; LIQUIDATED I NDEBTEDNESS. - Where the indebtedness is liquidated, the obligation to pay any unpaid balance thereof did not cease to be liquidated and determined simply because the vendor and the vendee, in a suit for collection, disagreed as to its amount. Carlos P. Barcng, for petitioner. Ruiz, Ritiz, Ruiz & Ruiz, for respondents. DECISION Appeal by ce1tiorari from that portion of the judgment of the Court of Appeals in C. A.-G.R. No. 12496-N sentencing petitioner ViC'Cnte Ba reng to pay respondent Patrocinio Alegr.ia, in addition to the amount of P3,600 representing his indebtedness Lo the latter, "sus interes legales desde la presentaci6n de este demanda." The facts insofar as material to this appeal, may be summarized as follows: On November 29, 1951, petitioner Bareng purchased from respondent Alegria the cinematographic equipment installed at the Pioneer (now Rosamil) Theater in Laoag, Ilocos Norte, for the sum of P15,000, Pl0,000 of which was paid, and for the balance, Barcng signed four promissory notes falling due on the following dates: Pl,000 on December 15, 1951; Pl,50Q on Feb. ruary 15, 1952; Pl,500 on March 15, 1952; and Pl,000 on April, 1952. The first promissory r.ote was duly paid by petitioner. On February 12, 1952, shortly before the second note fell due, the other respondent Agustin Ruiz informed petitioner that he was a co-owner of the equipment in question, and several days thereafter, Ruiz sent petitioner a telegram instructing him to suspend payments to Alegria of the balance .:if the price as he was not agreeable to the sale. On the same day, Alegria sought to collect t•pon the second note, but petitioner refused to pay on account ofRuiz' claims. Only P400 was paid on the second note and there. after, petitioner refused to make any more payments to Alegria until the latter had settled · his dispute with Ruiz . On March 31, 1952, Ruiz filed suit against Alegria and petitioner Bareng (Civ. Case No. 1327) for his share in the price of the cinema equipment in question. On May 21, 1952, Alegria and Ruiz reached a compromise in the case, wherein the· fo1·mer recognized the latter as co-,owner of the equipment sold to petitioner, and promised to pay him 2/ 3 of whatever amount he could 1·ecover from the latter. Whereupon, on May 28, 1952, Alegria sued Bareng for the amount of Pl3,500 allegedly representing the unpaid balance of the price of said equipment. Bareng answered the complaint, alleging that only P3,600 had not been paid on the price of the equipment in question, praYed for the rescission of the sale for supposed violation by Alegria of certain express warranties as to the quality of the equipmen~. and asked for payment of damages for alleged violation of Alegria's warranty of title. After a joint trial of the two cases, the lower court rendJune 30, 1960 LAWYERS JOURNAL 189 ered judgm ent declaring Alegria and Ruiz co.owners of the cinema Alegria was unliquidated until its amount was fixed equipment in question in Civil Case No. 1527; and dismissing Ci- by the Cou1t of Appeals at f"3,®0.00, and that conseql!-ently, he vii Case No. 1554, without prejudice 1.o the co-owners' filing an- cannot be made answerable for interests on the amount due before other actions against petitioner Bareng for the balance of the judgment in the Court of Appeals. The argument is completely price of said equipment. On appeal to the Court of Appeals by untenable. The price of the equipment in question under petiboth parties, the decision of the court a. q110 was reversed and tioner and Alegria's contract of sale was determined and known, instead, Bareng was ordered in Civil Case ·No . 1554: to pay Alegria hence, liquidated; and the obligation to pay any unpaid balance the sum of P3,600 plus legal interests from the filing of the com- thereof did not cause to be liquidated and detennined simply beplaint; and in Civil Case No. 1527, Alegria was ordered to pay c1't1se vendor and vendee, in the suit for collection, disagreed as Ruiz 2/ 3 of the total amount he would recover from Bareng in to its amount. If petition~r had wanted to free himself from Civil Case No. 1554. Not agreeable to that part of the decision any responsibility for interest on the amount he had always acmaking him liable for legal interests on the pdncipal amount due knowledged he still owed his vendor, he should have deposited the to Alegria, Bareng, as already stated, appealed to this Coult. same in Court at the very start of the action. Petitioner Bareng claims he is not liablj to pay interest to Alegria .because he was justified in suspending payment of the balance of the price of the equipment in question from the time he learned of Rui z' adverse claims over said equipment. Iii fact, Bareng adds, even the Court of Appeals found that "bajo dichas circumtancias, la actitud de! demando Vicente Barcng de suspender el pago de aquel saldo de P3,600. 00 estuvo justificado". The right of a vendee to suspend payment of the price of the thing sold in the face of any danger that he might be disturbed in its possession or ownership is conferred by Article 1590, New Civil Code, to wit : .. As for the other errors raised by petitioner in his brief, we need not consider them because they were not raised in the pl'tition for review and are, therefore, considered waived. WHEREFORE, the decision appealed from is affirmed -in tuto, with costs against petitioner Vicente Bareng. Paras, C. J., Bengzon, Padilla., Mo'item\!fyor, Ba1itista Angelo, LabradtYr, Concepcion, Barrera and Gutierrez Davi((, JJ., concurred. XVII lredro C. Ca.11Ut.S. Petitioner, vs. 1'lw Ho n. Cou1·t of A7>pcals, Hon. Ed1w1Tdo D. E nriq11ez, Judge of the Cou1·t of First Instance uf Negros Occidentul, and L eon G. Moya, Resp-011dents, G. R. N'o. L-13125, February 13, 1960, Reyes, J. B. L., J. "Art . 1590. Should the vendec be disturbed in the ·possession or ownership of the thing acquired, or should he ha,•e reasonable grounds to fear such disturbance, by a vindicatory action or a foreclosure of mortgage, he may suspend the payment of the price until the yendor has caused the distur- 1. CIVIL LAW; OBLIGATIONS; PAYMENT BY ONE OF THE SOLIDARY CO-DEBTORS. - In the case at bar, the payment by the surety to appellee extinguished the obligation of the two solidary co-debtors to appe\Jee and the juridical tie between the creditor and the solidary debtors was dissolved and, therefore, there is no more need to maintain nppellant'>i appeal from the decision of the lower court ordering him and his co-debtor to pay their obligation to the appellee. APPEAL; WHEN APPEAL MAY ' BE DISM ISSED. - Where it would serve no useful purpose to decide the appeal because no actual relief ot' practical result can follow therefrom, the appeal will be dismised. bance or danger to cease, unless the latter gives seeurity for the return of the price in a proper case, or it has been stipulated that, notwithstanding any such contingency, the vendee shall be bound to make the payment. A mere set of trespas~ shall not authorize the suspension of the payment of fhe price." There is no qu~stion that , as found by the Court of Appeals, 11etitioner Bareng had the right to suspend payment of the balance 2. of the price of the cinema equipment in question to his vendor, respondent Alegria, from the time he was informed by Ruis of the latter's claims of co-own ership thereof, especially upon his i·eCEipt of Ruiz' telegram wherein the latter asserted that he was not agreable to the sale. Nevertheless, said right of Bareng ended as soon as "the vendor has caused the disturbance or dange1· to ciense''. In this case, respondent Alegria had caused the di ~· turbance or danger to petitioner's ownership or possession to cease when he (Alegria) reached a compromise with Ruiz in Civil Case No. 1527 whereby Ruiz cxprei;sed his conformity to the si:le to Bareng, subject to the payment of his share in the price by Alegria. Petitionei· Bareng cannot claim that he was not v.ware of this compromise agreement between the two owners, because he was a party-defendant in Civil Case No. 1527, From the time Alegria and Ruiz reached this settlement, there was no longer any danger or threat to Bareng's ownership and full enjoyment of the equipment he bought from Alegria. And it . was by virtue of this settlement that Alegria, two (iays later, :oued petitioner for the unpaid balance of the price of said equipment. Jn his . :rnswer to Alcgria's plaint, petitioner admitted his indebtedness to Alegria in the amount of P3,600, yet he <lid not tender payment of said :>mount nor did he deposit the same ;n court, but instead sought to have the sale rescinded upon claims of violation of warranties by Alegria that the Court of Appeals found not to have been proved or established . It is clear, therefore, that petitioner Ba· reng was in default on the unpaid iJalance of the price of the r.quipment in question from the date of the filing of the complaint by Alegria, and under Article 2209 of the Ch·il Code, he must pay legal interests hereon· from said date. Petiticner also argues that his indebtedness to respondent Dcogracias T. Reyes & L uison & Cruz, for petitioner. Delgado, Flores & Ma capagal, for respondents. DECISION On July 13, 1956, herein respondent Lem G. Moya sued petitioner Pedro C. Camus and the Luzon Surety Co., In. in the Court of First Instance of Negros Occidental for the payment of a promissory note in the sum of P2,500, signed by Camus and guaranteed by a surety bond of the Luzon Surety Co., Inc. At t he trial, petitioner Camus failed to appear; whereupon, the coU l't heard plaintiff's evidenC'e and rendered judgment condemning the defendants to pay, jointly ~nd severally, the amount claimed by 1 1laintiff. Camus £Ought reconsideration of the judgment and a new trial, alleging-, inter lalia., that he had a good defense to the complaint, namely, usury ; and when the court denied both, he filed his notice of appeal, record on appeal, and appeal bond. Said appeal was, however, disallowed by the court because Cnmus' motion for reconsideration and new trial was found to he pro forma . Camus applied to the Court of Appeals for a wl'it of mandamus to have his appeal allowed, but the latter court sustained the <lisallowance thereof by the trial court. From this j udgment, Camus nppealed to this Court by. certiorari. After the filing of appellant's brief, appellee Moya moved to dismiss the present appeal for the reason that appellant's co-defendant, the Luzon Surety Co., Inc.., had already paid the judgment of the couit below in his favor, so that the issues in this c.ase had become academic; and waived the filing of an appellee's 190 LA WYERS JOURNAL June :rn, 1%0 brief. Consideration of the motion for dismissal \·ra3 deferred by us until the case is set for deliberation on the mel"its. We fin<l uo necessity to go into the merits of the appeal, :for, upon a careful consideration of the reasons adduced in appelJee's motion to dismiss, we agree thnt the appeal should .be dismissed. Appellant does not deny that his co-defendant and so\idary co-debtor, the Luzon Surety Co., Inc., had already paid the judgment of the lower court during the pendency of his petition fot· mandamus in the Court of Appeals. Article 1217, New Civil Code, provides that "'payment made by one of the solidary debtors extinguishes the obligation" . The payment by the Luzon Surety Co., Inc. to nppellee, therefore, extinguished the obligation of the two solidary co-debtors to appellee Moya, and the judicial tie bet· ween the creditors on the one hand, and the solidary debtors, on the other, was dissolved thereby. For this reason, there . is no more need to maintain appellant Camus' appeal from the decision of the lower court ordering him and his co-debtor to pay their obligation to appellee l\Ioy.:i.. Whatever controversy remains from here on is solely between the two co-debtors . Appellant argues, however, that the payment made by his co· debtor was premature and, therefore, did not extinguish the principal obligation. We can not see how said payment can be _premature when the obligation of appellant Camus and the surety company to appellee was based on a promissory note that was long overdue when the complaint was filed. Even assuming that :ippellant's only alleged defense of usury to the complnint is true, the same does not in any way affect the m.:i.turity and demand&bility of the debt but if sustained would only reduce the creditor's recovery. There is no question, of course, that the payment by appellant's co-debtor to appellee did not extinguish his defense of usury, which he may still set up against his co-debtor when he is sued by the latter-; but until the surety company files such action against app~llant, it is purely an academic matter whether ~ppellant is entitled to such defense or not. Appellant also urges that the Luzon Surety Co., Inc. should be substituted as plaintiff in this action to avoid multiplicity of suits . We have no power to order such substitution, since the st.rely company has not even intervened or shown any interest in these proceedings relative to appellant'!!. right to appeal from the PRES. EISENHOWER SPEECH . (Continued /'l'OITt page 164) programs to improve conditions in which human freedom can flouri8h. We must, collectiVely and individually, strive for a world in which the rule of law replaces the rule of force. Your country and mine have reaffirmed our faith in the principles of the United Nations Charter. We share a common desire to settle international disputes by peaceful means. The task is not an easy one. Communist intransigency at the conference table, whenever they do agree to sit at one, makes the attainment of an equitable agreement most difficult. Moreover, the record of Communist violations of agreements is long. The continuation of Communist provocations, subversion, and terrorism while ne· gotiations are underway serves only to compound the difficulty of arriving at peaceful settlements. But we shall never close the door to peaceful negotiations. All of us, all free nations always hold out the hand of friend ship as long as it is grasped in honesty and integrity. We shall contiuue to make it clear that reason and common sense must prevail over senseless antagonism and distorted misunderstandings and propaganda. The arms race must be brought under control and the nuclear menace that is poised in delicate rnspcn zion over th~ lower court's judgment. Neither we nor appellunt can dictate the step which the surety company may choose to ·take against 3J)pellant for the protection of its interests. Finally, appellant daims that the dismissal of this case would necessitate the filing of another action by him against the appellee for the recovery of whatever usurious interest the latter had ('Xacted from him. The claim is completely untenable. Appellant can file such action against aI'.pellee only if he had already paid his indebtedness to the latter plus the alleged usurious interest. But it was precisely his failure to pay that compelled the appellee to sue him for payment of thll debt, and appellant's defense of usury, even if true, would, as already stated, only reduce his liability to his creditor, but \·:ould not entitle him to rec0ver any amounts from the latter. And even if appellant's solidary co-debtor, the surety company, had paid appellee more than it should (granting arguendo that the promissory note sued upon represented capital plus usurious interest, as appellant claims), such overpayment gives appellant no cause of action to collect from appdlee what his solidary co-debtor had overpaid the Iattc?r, tiut his defense of usury would only serve to reduc~ his liability when he is sued by the Surety company. All in all, vie agr~ with appellee that it wnuld serve no use, ful purpose to still decide the present appeal, since no actual relief or practical result can follow therefrom. A11 we held in Velasco vs. Rosemberg, 29 Ph.ii. 212, ''if pending an appeal, an event occurs to grant any relief", and "similarly, where a litigation has ceased to be between parties having an adverse inte. rest, the appeal will be dism.issed." As to the merits of the case, suffice it to point out that appellant Camus has not appended to Ois petition for review any copy of his motion for new trial in the Court o! First Instance, and without it, this Coure is in no position to say that the Court , 0( Appeals committed error in declaring it insufficient and pro Jorma. WHEREFORE, the present appeal is dismissed. Costs against appellant Pedro Camus. Paras, C. J., Bengzo11, PadiU.a, Montcmayo1·, Baut fata Angelo, [,abrador, Ccmccpcfon, Endencia, Ba'l'rera and GntiC>r1·ez David, heads of all mankind must be eliminated. This, I am convinced, can be done, without appeasement or sunende;·, by continuing a course of patient, resourceful and businesslike dealings with the Soviet leaders. The goal of a world peace in friend~hip wit.h freedom is so worth the attaining that every feasible and honorable avenue must be explored. The support, understanding and participation of all who cherish freedom is essential to this noblest endeavor in history. The Philippine contribution will be mighty in its impact on the future. And now my friends I cannot cJ03e without attempting once more to express my ve ry deep appreciation of all the cordial hospitality and friendliness that has been exhibited to me and to all the members of my party during my too brief stay in this lovely country. We know that in greeting us along the highway or in a magnificent crowd such as this, you are reall:¥ expressing :\-·our basic affection for the American people, (Applause) And I assure you, all of you, as the spokesman · <>f the American people that their concern for :rou, your fate, your future, your well· being, their affections for you is equally deep with yours. Thank you. (Applause). June 30, 1960 LAWYERS JOURNAL 191 Book Review UNDERSTANDING JUVENILE DELINQUENCY By LEE R. STEINER In his fascinating and instructive book, Good Behaviour, Sir f:ear about it, it left him no impression ; he merely shrugged his Harold Nicholson, famous English biogTapher and authority on shoulders as if it were none of his or his family' s concern. 'l'oday, diplomacy, makes some pertinent observations which are occasion- it conveys an increasingly serious and alarming social and domestic ally curious if not humorous. Says he, speaking of Arrierican p:·oblem in the United States and to a limited extent in the I-'hili.ppines, especially in the chartered cities where vice and crime are becoming rampant. "It seems strange to m.: . that whereas American adults sometimes seem to be inhibited by conventions which . have long What seems to hav~ inspired Mrs. Steiner to publish the been discarded in the Old World, American children and ado· result of her study and research is that juvenile delinquency has lescents are accorded a license without bond or bound. The adula- broken and continues to break many a peaceful and happy home. tion accorded to children and young boys and girls is to our m_inds At the same time, it has left a long trail of blood and tears bewildering. The pert, pampered and loud-voic:ed infants of the 'from victims and relatives. What ..:auses juvenile delinquency? Great Republic are for us almost incomprehensible as the .bunching, Why has it spread terror across the land from Maine to Califor. · petting, dare-seeking boys and girls of the universities and col- nia as well in the Philippines through the baneiul influence of lEges." cheap magazines? Is it symptomatic of the breakdown of the home, the school and the church? Has the bad example of wellThis revealing passage from an admittedl y keen and judicious n1 eaning but seemingly irresponsible parents anything to do with observer flashed before us as we ploughed through the well-docu- it? mented book, Understan<li11g Juvenile Delinq1iency, publisherl in the United States of America, by Lee R. Steiner whose picture ado1;ns the back cover. The author, we gather, is not only a certified psychologist, but is also a recognized psychoanalyst and consultant in personal problems. She thus h~d already access to those intimate problems with which American teen-agers are faced today t'l the bafflement and disappointment of their pa l'ents, who, in their doting fondness, luwe spal'ed the l'Od and spoiled the CJhild. An American t!eviewer describes Mr!', Steiner's recent publication as a "brutally frank" and ··hard-hitting" treatise or diagnosis. It is more than that. It is ~ometimes diagnostically as shocking in its factuality as it is in its clinical frankness. It calls a spade a spade for want of a worse name, In her passion for tTuth and accuracy, she quotes a word which, banned by Webster as well as Oxford Dictionary, we saw printed for the first time. Some modern novelists in their attempt to appear realistic and photographic might have used the word. Still we have always wondered, possibly in our conservatism or provincialism, what constructive purpose its use could serve Ol' accomplish. Determined no ci.oubt to be always factual and accurate as becomes a scientist, the author copiously quotes from reports that could easily fall under the category of pornographic, however noble or lofty might have been her moti\•e or intention. Over a decade ago, juvcnjJe delinquency was at best a legal terminology with hardly any clear meaning or evil connotation to the reading public. That was particularly true in the Phil· ippines where the influence of the home, salutary and unquesThe last seems to be the opinion of Dr. H. H. Remmers cf Purdue University. According to Mrs . . Steiner, he has "drawn the conclusion after years of research that the difficulty is not so much with the young as with the pattern their elders are setting - a pattern of meaningless activity and boredom." The same authority holds that young people have "a more accurate ar:praisal of the adult world than vice.versa." This reverses the !ltand taken by a famed Englesh writer who said to a young man, "You think we (old men) arc fools; but we know that you arc." What is the solution? The author views the whole matter quite pessimisticallyj. She quotes Dr. Jacques M. May, Vice~ P resident of the National Organization for Mentally l11 Children, as saying that the problem of juvenile delinquency "will not be solved by more policemen, only by more unbiased sc-'ientist exploring the depths of the cells." And far from improving tho situation, many of the judges presiding over juvenile courts in the States are blamed for making it worse. "Instead of using psychiatric knowledge to make the young ptrson's life easier," complains Mrs. Steiner, "some of these maladj usted judges use it as one more weapon of sadism. Actually, many of these judges who bandy a!'Ound the psychiatric lingo don't want anything to do with psychiatrists. In private, they will tell you that they think psychiatrists are dopes, And many psychiatrists return the compliment by belittling judges." Understanding evidently holds the key to the whole problem, but how C'an one attain understanding when . the authorities themselves, scientific and othenvise, do not or cannot understand ono tioned, as well as of the school and the church, was then strong. another, much less the unfortunate patients who are brought lf the man in the street happened to read the expression or before them for treatment? 192 LAWYERS JOURNAL June 30, 1960 Lawyers Directory AGUILA, PAULO Office: R-Zl S-B fieginu Ilhlii . E scolrn, lllanil~ Tel. 3·8!·% Pn>V. Di·nnch Office: /\HTUltu A. ALA l"IHZ & /\SSOCIAT~;:-; Atto1•ne3·s & Cuunsellors nt Lnw Suite 40G- ~ Oll He;:i11" llld11 . Ellculta, Mani],. 'J'ek: ANTONl~I. ltOMAN JI. l'lu>~• (:ul!i. Maui1'1 'J'd~. :!-\11-80 3-61-JO Ue$, T el. 2-16-36 ART IAGA. SAN'J'IAUO J I(. Suite 309 Snmnnillo Hid;:, Escohn, MHni!a AS/\, l.Z.:UN I. Frnucisc" ].r"v (Hfic"" lt-2U l S""'""ilh• llhlir. i<:<cohn, Mnnih1 T el. :1-3:!-6' l!J<:LtNAl .UlJ, ltll:A l\UO MAI;. A ~~ t. Alturney: J.EtlNAltllU S. HAI.AN Suite 301 l:u l/11jic11.: HM.:. 208 lhsmat·ii111s, M•..,iln lle•i•lcu«e: &ii-&74 llerlH»I" cur, 'l'mo•lu. l\l h II i :,. C Hll'ECO & A LETA LAW OF'FJ Cf:S Suit.e 40' FCI lluiltlin11: /·· ~:l!NANl!l•: 'I., ICSTANlSl,All H - '~0 Hornun Stuo\ns l!JJK. l'la ~n {;uili, l\lnui],. Tel.<. 3-~l-8U l·6' ·40 FUAN C ISGO. A l.Jml!TO .I. U-201 R""'"''illu 1! 1 .1., .• T~I. ~-:n.r.1 l"JtANt;ISl:U, lt-20 I S:u11" 11 i ~I" lllt!" ., ---- ,. .. ;- !l-~~-6 ( - - FltANClSt:U, HUUOl.VU J. H-20! S11nt111oi:lo lthl11: .. FltANCISl:U, VJCJ::N'l'J:: J. l!-201 Su11u1ni:lu Jll.!11: .• '!'cl. ~-33-G' a-sa:~a :>AHCIA, IJIENVENIDO I., 210 Culvo JJJdg. Es.,.,1tu,l\111nila 'J'~L 3-68-33 • CUZMAN. DOMINGO F. DE Suite 312 FCI Hl<la:. 416 Das m11rif1ns St. l\lnnilo 1;\JZMAN, l'ltUl!J•:NCIO lH:, HENJ'l'O, .l llST INO 'I. (;llZMAN, l"lt\IDEN C IO Ill·:. It-201 l.cy\rn lll•li:. 381 l111 ~ 11111ril111 ~ . Mu11ila T••I. Nu. :1-21-1~ Jl1IW ,\N TJ•;t; lllt.:•1 I.AW tlFJ•'ICJo:S 1\o~udale . .: Cuoimiru .S. J'.o J . 1~m·io .). M 11 11 d11 ~•l11 Unu l:ln1nn Hldl£. .Soule 2u l-~Ul, ll14 'J'. l'i111oi11 l.ul'Hcl' U11i;pi11, Mu,,il:. Tel. i-l:l7-lJ; ll-f>l-:Jr,: :1-1~-r, , J,IW AG LAW OFFICES Loren"" J , Liwu11 l(u"c F. Homu~ 'l'et·e~ito de IH r~. Snlvado1• T. Hey._.. Suite 302 Free Press Illdg. Hiznl Avenue, Manila Tel.•. 22-01%, 3.;1&-G(l & 3-2~-f.5 l\tunALES. Elt~ESTO '!'. Sod!e G09 rt"""'" Sa.,to• l!ld~ . Pln~a Goili , lllunila T el. :1-~J .:!I n ~"· 1921 D" l<ut", J\l,o],,te. l\111ulln ;,,,.,.,,..~~~d11 ocui•>· -ofluc"tila1theofficeol practicinii; attorneys, •he Journal publi•heo thi• tlirecto1·y 10 acquaint not only their ciienw; but also the public ol their addreu. Lawyen may ava il them!<'lH• of this •e•vice upon payme111 of 1'wo Pu~ tor ~ach i~5ue of this public:nion or Si:: P eoos for one year payablt in adv::iice. OL I VEnos I.AW OFl-' ICE 'l'eotlnlo 'J'. Oli•''l'OS 8~f· Gci·onim" Si. SarnJ>'1lue. M:inilQ IWXAS. ltlJHJo:N L. 202 Calvo ll~di:. SAN .lllAN, AHUt.:A, \'NH;u~;z & lll·:NJo: DICTU ~HO l'a1h·c hmm, Jo:nnil"• Tek: r •. 7u .n & r.-70-13 SANTOS, JOSI•: 'I'. JH; LO::> SANTOS, Clll lA CU T . Im J.OS SANTOS. JOHCJo: 'J'. lH: I.OS 211.I Flno1· EMA Bhl11:. No. 111 Q11in1>u. l\ln11iln Tel. 3-:!l-,\I SA YSON, t.: lltlACO G. E scoltu, Maull" '!'cl. 3-58-IO S'"' Francisco <lei Mu" ·' Qll<'ZUll Ci1y SYC.:11', S,\LAZA Jt & ASSUGlATJo:.S fo\to 1"hu1·. 'J'n"I" An•! Cot11mc1·ce ltltl" 215 .l11n11 """"· Ma,.iln Tek z. 1; ~.o~ . 2-1;!1-U7 ,fl; 2 - G~ - OH S\'l/UIA & l•'H"N C ISGC! LAW J<:NHIQIJI•: l'. S\0 Qlll/\ c1t1,;i-;t;1·;Nt;IO M. Fl<ANCISCO Ato•h'"" I.. l!"ltuzn1· - ( J,.,.c C. 1.1.ul'etn 303-.i Aun:i llltli:. 6311 llizul """·• ~l~uila T .. k l-ii-52 &. 3-F.G-Ol J·;~11m1·:Nt:JAN/\ s l'ACJIJ,;t.:o-'J'H: l .AO 2~~ 1-J\ ;;,,,. A "lon. Td. a-~r.-io OLIVEH lJANA\'O t;j,;:;~!UNIJO ' & HICAIWO 7 .. 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