G.R. No.
113216 September 5, 1997
RHODORA M. LEDESMA, petitioner,
vs.
COURT OF APPEALS and HON. MAXIMIANO
C. ASUNCION, in his capacity as Presiding
Judge of RTC, Quezon City, respondents.
PANGANIBAN, J.:
When confronted with a motion to withdraw an
information on the ground of lack of probable
cause based on a resolution of the secretary of
justice, the bounden duty of the trial court is to
make an independent assessment of the merits
of such motion. Having acquired jurisdiction over
the case, the trial court is not bound by such
resolution but is required to evaluate it before
proceeding further with the trial. While the
secretary's ruling is persuasive, it is not binding
on courts. A trial court, however, commits
reversible error or even grave abuse of discretion
if it refuses/neglects to evaluate such
recommendation and simply insists on
proceeding with the trial on the mere pretext of
having already acquired jurisdiction over the
criminal action.
This principle is explained in this Decision
resolving a petition for review on certiorari of the
Decision1 of the Court of Appeals,2 promulgated
on September 14, 1993 in CA-G.R SP No. 30832
which in effect affirmed an order of the Regional
Trial Court of Quezon City denying the
prosecution's withdrawal of a criminal information
against petitioner.
The Antecedent Facts
From the pleadings submitted in this case, the
undisputed facts are as follows:
Sometime in April 1992, a complaint for libel was
filed by Dr. Juan F. Torres, Jr. against Dr.
Rhodora M. Ledesma, petitioner herein, before
the Quezon City Prosecutor's Office, docketed as
I.S. No. 92-5433A. Petitioner filed her counter-
affidavit to the complaint.
Finding "sufficient legal and factual basis," the
Quezon City Prosecutor's Office filed on July 6,
1992 an Information for libel against petitioner
with the Regional Trial Court of Quezon City,
Branch 104.3 The Information filed by Assistant
City Prosecutor Augustine A. Vestil reads: 4
That on or about the 27th day of
June 1991, in Quezon City, Metro
Manila, Philippines, the said
accused, acting with malice, did,
then and there, wilfully, unlawfully
and feloniously send a letter
addressed to Dr. Esperanza I.
Cabral, Director of Philippine Heart
Center, East Avenue, this city, and
furnished the same to other officers
of the said hospital, said letter
containing slanderous and
defamatory remarks against DR.
JUAN F. TORRES, JR., which
states in part, to wit:
27 June 1991
Dr. Esperanza I.
Cabral
Director
Subject: Return of all professional fees due Dr.
Rhodora M. Ledesma, Nuclear Medicine
Specialist/Consultant, Philippine Heart
Center, from January 31, 1989 to January 31,
1991.
Respondents: Dr. Juan F. Torres, Jr., Chief, Nuclear
Medicine Section
Dr. Orestes P. Monzon,
Staff Consultant
Dear Dr. Cabral,
This is to demand the return of all
professional fees due me as a
consultant in Nuclear Medicine, this
Center, since January 31, 1989 until
my resignation effective January 31,
1991, amounting to at least
P100,000.00 for the year 1990 alone.
Records in the Nuclear Medicine
Section will show that from January
1989 to January 1991, a total of 2,308
patients were seen. Of these, I had
officially supervised, processed, and
interpreted approximately a total of
1,551 cases as against approximately
684 and 73 cases done by Dr. Monzon
and Dr. Torres respectively.
Until my resignation I had received a
monthly share of professional fees
averaging P1,116.90/month
supposedly representing 20% of the
total monthly professional fees. The
rest were divided equally between Dr.
Monzon and Dr. Torres. There was
never any agreement between us
three consultants that this should be
the arrangement and I am certain that
this was not with your approval. The
burden of unfairness would have been
lesser if there was an equal
distribution of labor and the schedule
of duties were strictly followed. As it
was, the schedule of duties submitted
monthly to the office of the Asst.
Director for Medical Services was
simply a dummy to comply with
administrative requirements rather
than a guideline for strict compliance.
Both consultants have complete daily
time records even if they did not come
regularly. Dr. Torres came for an hour
every week, Dr. Monzon came
sporadically during the week while I
was left with everything from training
the residents and supervising the
Techs to processing and interpreting
the results on a regular basis. I had a
part time appointment just like Dr.
Monzon and Dr. Torres.
In the
interest of fairness and to set a
precedent for the protection of future
PHC Nuclear Medicine Alumni I am
calling your attention to the unfair
and inhuman conditions I went
through as a Consultant in that
Section. I trust that your sense of
professionalism will put a stop to this
corruption.
I filed a Motion to Lift the Order dated September
suggest that a committee be formed
to make an audit of the distribution of
professional fees in this Section. At
this point, let me stress that since
professional fees vary according to
the type of procedure done and since
there was no equity of labor between
us I am not settling for an equal
percentage share. I demand that I be
indemnified of all professional fees
due me on a case to case basis.
Let
me make clear my intention of
pursuing this matter legally should
there be no favorable action in my
behalf. Let me state at this point 6
that the actions of Dr. Torres and Dr.
Monzon are both unprofessional and
unbecoming and are clearly violating
the code of ethics of the medical
profession and the Philippine Civil
Service Rules and Regulations
related to graft and corruption.
Thank you.
and other words of similar import,
when in truth and in fact, as the
accused very well knew, the same
are entirely false and untrue but
were publicly made for no other
purpose than to expose said DR.
JUAN F. TORRES, JR. to public
ridicule, thereby casting dishonor,
discredit and contempt upon the
person of the said offended party,
to his damage and prejudice.
A petition for review of the resolution of Assistant
City Prosecutor Vestil was filed by petitioner
before the Department of Justice pursuant to
P.D. No. 77 as amended by P.D. No. 911.
The Department of Justice gave due course to
the petition and directed the Quezon City
prosecutor to move for deferment of further
proceedings and to elevate the entire records of
the case. 5 Accordingly, a "Motion to Defer,
Arraignment" dated September 7, 1992 was filed
by Prosecutor Tirso M. Gavero before the court a
quo.6 On September 9, 1992, the trial court
granted the motion and deferred petitioner's
arraignment until the final termination of the
petition for review.7
Without the consent or approval of the trial
prosecutor, private complainant, through counsel,
9, 1992 and to Set the Case for
Arraignment/Trial.8
On January 8, 1993, the trial court issued an
Order setting aside its earlier Order of
September 9, 1992 and scheduling petitioner's
arraignment on January 18, 1993 at two o'clock
in the afternoon. 9
In a resolution dated January 27, 1993, then
Justice Secretary Franklin M. Drilon reversed the
Quezon City investigating prosecutor. Pertinent
portions of Drilon's ruling read: 10
From the circumstances obtaining, the
subject letter was written to bring to the
attention of the Director of the Philippine
Heart Center for Asia and other responsible
authorities the unjust and unfair treatment
that Dr. Ledesma was getting from
complainants. Since complainants and
respondent are government employees,
and the subject letter is a complaint to
higher authorities of the PHCA on a subject
matter in which respondent has an interest
and in reference to which she has a duty to
question the same is definitely privileged
(US vs. Bustos, 37 Phil. 131). Moreover,
in Ang vs. Castro, 136 SCRA 455, the
Supreme Court, citing Santiago vs. Calvo,
48 Phil. 922, ruled that "A communication
made in good faith upon any subject matter
in which the party making the
communication has an interest or
concerning which he has a duty is
privileged. . . although it contains
incriminatory or derogatory matter which,
without the privilege, would be libelous and
actionable.
The follow-up letter sent by respondent to
the director of the PHCA, is a direct
evidence of respondent's righteous
disposition of following the rule of law and is
a clear indication that her purpose was to
seek relief from the proper higher authority
who is the Director of PHCA.
The same interpretation should be
accorded the civil and administrative
complaints which respondent filed against
complainants. They are mere
manifestations of her earnest desire to
pursue proper relief for the alleged injustice
she got from complainants. If she was
motivated by malice and ill-will in sending
the subject communication to the Director
of the PHCA, she would not have sent the
second letter and filed the administrative
and civil cases against complainants.
Moreover, it is unbelievable that it took
complainants one year to realize that the
questioned letter subjected them to public
and malicious imputation of a vice or
omission. It is beyond the ordinary course
of human conduct for complainants to start
feeling the effects of the alleged libelous
letter — that of experiencing sleepless
nights, wounded feelings, serious anxiety,
moral shock and besmirched reputation —
one year after they read the communication
in question.
The claim that the case of Crespo
vs. Mogul, 151 SCRA 462 is applicable to
the instant case is unfounded. In the first
place, the instant cases are not being
reinvestigated. It is the resolutions of the
investigating prosecutor that are under
review. Further, the record shows that the
court has issued an order suspending the
proceedings pending the resolutions of the
petitions for review by this Office. In the
issuance of its order, the court recognizes
that the Secretary of Justice has the power
and authority to review the resolutions of
prosecutors who are under his control and
supervision.
In view of the foregoing, the appealed
resolutions are hereby reversed. You are
directed to withdraw the Informations which
you filed in Court. Inform this Office of the
action taken within ten (10) days from
receipt hereof.
In obedience to the above directive, Quezon City
Trial Prosecutor Tirso M. Gavero filed a Motion to
Withdraw Information dated February 17,
1993, 11 attaching thereto the resolution of
Secretary Drilon. The trial judge denied this
motion in his Order dated February 22, 1993, as
follows: 12
The motion of the trial prosecutor to
withdraw the information in the
above-entitled case is denied.
Instead, the trial prosecutor of this
court is hereby directed to
prosecute the case following the
guidelines and doctrine laid down
by the Supreme Court in the case
of Crespo vs. Mogul, 151 SCRA
462.
Petitioner's motion for reconsideration 13 was
denied by the trial judge in the Order dated
March 5, 1993, as follows: 14
Finding no cogent reason to justify
the reconsideration of the ruling of
this Court dated February 22, 1993,
the Motion for Reconsideration
dated March 1, 1993 filed by the
accused through counsel is hereby
denied.
Aggrieved, petitioner filed a petition
for certiorari and prohibition with the Supreme
Court. In a Resolution dated March 31, 1993, this
Court referred the case to the Court of Appeals
for proper determination and disposition pursuant
to Section 9, paragraph 1 of B.P. 129. 15
Respondent Court dismissed the petition "for
lack of merit," holding that it had no jurisdiction to
overturn the doctrine laid down in Crespo
vs. Mogul — once a complaint or information has
been filed in court, any disposition of the
case, i.e., dismissal, conviction or acquittal of the
accused, rests on the sound discretion of the trial
court. 16
Hence, this recourse to this Court.
The Issues
For unexplained reasons, petitioner failed to
make an assignment of errors against the
appellate court. Her counsel merely repeated the
alleged errors of the trial court: 17
I. The Orders, dated February 22, 1993
and March 5, 1993, of respondent Judge
Asuncion relied solely on the "Crespo vs.
Mogul" (151 SCRA 462) decision. It is
respectfully submitted that said case is
not applicable because:
1. It infringes on the constitutional
separation of powers between the
executive and judicial branches of the
government;
2. It constitutes or it may lead to misuse
or misapplication of "judicial power" as
defined in the Constitution;
3. It goes against the constitutional
proscription that rules of procedure
should not diminish substantive rights;
4. It goes against the principle of non-
delegation of powers;
5. It sets aside or disregards substantive
and procedural rules;
6. It deprives a person of his
constitutional right to procedural due
process;
7. Its application may constitute or lead
to denial of equal protection of laws;
8. It deprives the secretary of justice or
the president of the power to control or
review the acts of a subordinate official;
9. It will lead to, encourage, abet or
promote abuse or even corruption
among the ranks of investigating fiscals;
10. It does not subserve the purposes of
a preliminary investigation because —
(10.a) It subjects a person to the burdens
of an unnecessary trial, specially in
cases where the investigating fiscal
recommends no bail for the accused;
(10.b) It subjects the government, both
the executive and the judiciary, to
unnecessary time and expenses
attendant to an unnecessary trial;
(10.c) It contributes to the clogging of
judicial dockets; and
11. It has no statutory or procedural
basis or precedent.
II. On the assumption that "Crespo vs.
Mogul" is applicable, it is submitted that
—
1. Respondent Judge Asuncion
committed grave abuse of discretion,
amounting to lack of jurisdiction, when he
denied the Motion to Withdraw
Information since he had already
deferred to, if not recognized, the
authority of the Secretary of Justice; and
2. The facts in "Crespo vs. Mogul" are
different from the instant case. Hence,
respondent Judge Asuncion committed
grave abuse of discretion, amounting to
lack of jurisdiction, when he relied solely
on said case in denying the Motion to
Withdraw Information.
In sum, the main issue in this petition is: Did
Respondent Court commit any reversible error in
affirming the trial court's denial of the
prosecution's Motion to Withdraw Information?
The Court's Ruling
The petition is impressed with merit. We answer
the above question in the affirmative.
Preliminary Matter
Before discussing the substance of this case, the
Court will preliminarily address a procedural
matter. Prior to the effectivity of the 1997 Rules
of Civil Procedure on July 1, 1997, Section 2 of
Rule 45, which governed appeals from the Court
of Appeals to the Supreme Court, provided:
Sec. 2. Contents of petition. — The
petition shall contain a concise
statement of . . . the assignment of
errors made in the court below . . . .
A petition for review on certiorari under Rule 45
requires a concise statement of the errors
committed by the Court of Appeals, not of the
trial court. For failure to follow this Rule, the
petition could have been dismissed by this
Court motu proprio, considering that under
Section 4 of the same Rule, "review is not a
matter of right but of sound discretion."
We take this occasion to stress the need for
precision and clarity in the assignment of errors.
Review under this rule is unlike an appeal in a
criminal case where the death penalty, reclusion
perpetua or life imprisonment is imposed and
where the whole case is opened for review.
Under Rule 45, only the issues raised therein by
the petitioner will be passed upon by the Court,
such that an erroneous specification of the
issues may cause the dismissal of the petition.
We stressed this in Circular No. 2-90, entitled
"Guidelines to be Observed in Appeals to the
Court of Appeals and to the Supreme Court," as
follows:
4. Erroneous Appeals. . . . .
e) Duty of counsel. — It is therefore
incumbent upon every attorney who
would seek review of a judgment or
order promulgated against his client
to make sure of the nature of the
errors he proposes to assign,
whether these be of fact or of law;
then upon such basis to ascertain
carefully which Court has appellate
jurisdiction; and finally, to follow
scrupulously the requisites for
appeal prescribed by law, ever
aware that any error or imprecision
in compliance may well be fatal to
his client's cause.
FOR STRICT COMPLIANCE.
Be that as it may, the Court — noting the
importance of the substantial matters raised —
decided to overlook petitioner's lapse and
granted due course to the petition per Resolution
dated July 15, 1996, with a warning that
henceforth petitions which fail to specify an
assignment of errors of the proper lower court
may be denied due course motu proprio by this
Court.
Determination of Probable Cause
Is an Executive Function
The determination of probable cause during a
preliminary investigation is judicially recognized
as an executive function and is made by the
prosecutor. The primary objective of a
preliminary investigation is to free a respondent
from the inconvenience, expense, ignominy and
stress of defending himself/herself in the course
of a formal trial, until the reasonable probability of
his or her guilt has been passed upon in a more
or less summary proceeding by a competent
officer designated by law for that purpose.
Secondarily, such summary proceeding also
protects the state from the burden of
unnecessary expense and effort in prosecuting
alleged offenses and in holding trials arising from
false, frivolous or groundless charges. 18
Such investigation is not a part of the trial. A full
and exhaustive presentation of the parties'
evidence is not required, but only such as may
engender a well-grounded belief that an offense
has been committed and that the accused is
probably guilty thereof. 19 By reason of the
abbreviated nature of preliminary investigations,
a dismissal of the charges as a result thereof is
not equivalent to a judicial pronouncement of
acquittal. Hence, no double jeopardy attaches.
In declaring this function to be lodged in the
prosecutor, the Court distinguished the
determination of probable cause for the issuance
of a warrant of arrest or a search warrant from a
preliminary investigation proper, in this wise: 20
. . . Judges and prosecutors alike
should distinguish the preliminary
inquiry which determines probable
cause for the issuance of a warrant
of arrest from a preliminary
investigation proper which
ascertains whether the offender
should be held for trial or
released. . . . The determination of
probable cause for the warrant of
arrest is made by the Judge. The
preliminary investigation proper —
whether . . . there is reasonable
ground to believe that the accused
is guilty of the offense charged and,
therefore, whether . . . he should be
subjected to the expense, rigors
and embarrassment of trial — is the
function of the prosecutor.
We reiterate that preliminary
investigation should be
distinguished as to whether it is an
investigation for the determination
of a sufficient ground for the filing of
the information or it is an
investigation for the determination
 of a probable cause for the
issuance of a warrant of arrest. The
first kind of preliminary investigation
is executive in nature. It is part of
the prosecutor's job. The second
kind of preliminary investigation
which is more properly called
preliminary examination is judicial
in nature and is lodged with the
judge.
Sound policy supports this distinction. Otherwise,
judges would be unduly laden with the
preliminary examination and investigation of
criminal complaints instead of concentrating on
hearing and deciding cases filed before their
courts. The Separate Opinion of Mr. Chief Justice
Andres R. Narvasa in Roberts, Jr. vs. Court of
Appeals stressed that the determination of the
existence of probable cause properly pertains to
the public prosecutor in the "established scheme
of things," and that the proceedings therein are
"essentially preliminary, prefatory and cannot
lead to a final, definite and authoritative judgment
of the guilt or innocence of the persons charged
with a felony or a crime." 21
In Crespo vs. Mogul, 22 the Court emphasized the
cardinal principle that the public prosecutor
controls and directs the prosecution of criminal
offenses thus:
It is a cardinal principle that all
criminal actions either commenced
by complaint or by information shall
be prosecuted under the direction
and control of the fiscal. The
institution of a criminal action
depends upon the sound discretion
of the fiscal. He may or may not file
the complaint or information, follow
or not follow that presented by the
offended party, according to
whether the evidence in his
opinion, is sufficient or not to
establish the guilt of the accused
beyond reasonable doubt. The
reason for placing the criminal
prosecution under the direction and
control of the fiscal is to prevent
malicious or unfounded prosecution
by private persons. It cannot be
controlled by the complainant.
Prosecuting officers under the
power vested in them by law, not
only have the authority but also the
duty of prosecuting persons who,
according to the evidence received
from the complainant, are shown to
be guilty of a crime committed
within the jurisdiction of their office.
They have equally the legal duty
not to prosecute when after an
investigation they become
convinced that the evidence
adduced is not sufficient to
establish a prima facie case.
In the same case, the Court added that where
there is a clash of views between a judge who
did not investigate and a fiscal who conducted a
reinvestigation, those of the prosecutor should
normally prevail: 23
. . . . The Courts cannot interfere
with the fiscal's discretion and
control of the criminal prosecution.
It is not prudent or even permissible
for a Court to compel the fiscal to
prosecute a proceeding originally
initiated by him on an information, if
he finds that the evidence relied
upon by him is insufficient for
conviction. Neither has the Court
any power to order the fiscal to
prosecute or file an information
within a certain period of time,
since this would interfere with the
fiscal's discretion and control of
criminal prosecutions. Thus, a fiscal
who asks for the dismissal of the
case for insufficiency of evidence
has authority to do so, and Courts
that grant the same commit no
error. The fiscal may re-investigate
a case and subsequently move for
the dismissal should the re-
investigation show either that the
defendant is innocent or that his
guilt may not be established
beyond reasonable doubt. In a
clash of views between the judge
who did not investigate and the
fiscal who did, or between the fiscal
and the offended party or the
defendant, those of the fiscal's
should normally prevail. . . . . .
Appeal as an Exercise of the Justice
Secretary's Power of Control Over
Prosecutors
Decisions or resolutions of prosecutors are
subject to appeal to the secretary of justice who,
under the Revised Administrative Code,
exercises the power of direct control and
supervision over said prosecutors; and who may
thus affirm, nullify, reverse or modify their rulings.
Section 39, Chapter 8, Book IV in relation to
Section 5, 8, and 9, Chapter 2, Title III of the
Code gives the secretary of justice supervision
and control over the Office of the Chief
Prosecutor and the Provincial and City
Prosecution Offices. The scope of his power of
supervision and control is delineated in Section
38, paragraph 1, Chapter 7, Book IV of the Code:
(1) Supervision and Control. —
Supervision and control shall
include authority to act directly
whenever a specific function is
entrusted by law or regulation to a
subordinate; direct the performance
of duty; restrain the commission of
acts; review, approve, reverse or
modify acts and decisions of
subordinate officials or units; . . . . .
Supplementing the aforequoted provisions are
Section 3 of R.A. 3783 and Section 37 of Act
4007, which read:
Sec. 3. . . . .
subordinate officers perform their
duties. If the latter fail or neglect to
fulfill them, the former may take
such action or step as prescribed
by law to make them perform such
duties. Control, on the other hand,
means the power of an officer to
alter or modify or nullify or set aside
what a subordinate officer had
done in the performance of his
duties and to substitute the
judgment of the former for that of
the latter.
Review as an act of supervision and control by
the justice secretary over the fiscals and
prosecutors finds basis in the doctrine of
exhaustion of administrative remedies which
holds that mistakes, abuses or negligence
committed in the initial steps of an administrative
activity or by an administrative agency should be
corrected by higher administrative authorities,
and not directly by courts. As a rule, only after
administrative remedies are exhausted may
judicial recourse be allowed.

The Chief State Prosecutor, the
Assistant Chief State Prosecutors,
the Senior State Prosecutors, and
the State Prosecutors shall . . .
perform such other duties as may
be assigned to them by the
Secretary of Justice in the interest
of public service.
xxx xxx xxx
Sec. 37. The provisions of the
existing law to the contrary
notwithstanding, whenever
specific power, authority, duty,
function, or activity is entrusted to a
chief of bureau, office, division or
service, the same shall be
understood as also conferred upon
the proper Department Head who
shall have authority to act directly in
pursuance thereof, or to review,
modify, or revoke any decision or
action of said chief of bureau,
office, division or service.
"Supervision" and "control" of a department head
over his subordinates have been defined in
administrative law as follows: 24
In administrative law supervision
means overseeing or the power or
authority of an officer to see that
Appeal to the Secretary of Justice Is Not
Foreclosed by the Ruling in Crespo
In Marcelo vs. Court of Appeals, 25 the Court
clarified that Crespo 26 did not foreclose the
power or authority of the secretary of justice to
review resolutions of his subordinates in criminal
cases. The Court recognized in Crespo that the
action of the investigating fiscal or prosecutor in
the preliminary investigation is subject to the
approval of the provincial or city fiscal or chief
state prosecutor. Thereafter, it may be appealed
to the secretary of justice.
a
The justice secretary's power of review may still
be availed of despite the filing of an information
in court. In his discretion, the secretary may
affirm, modify or reverse resolutions of his
subordinates pursuant to Republic Act No. 5180,
as amended, 27 specifically in Section 1 (d):
(d) . . . Provided, finally, That where
the resolution of the Provincial or
City Fiscal or the Chief State
Prosecutor is, upon review,
reversed by the Secretary of
Justice, the latter may, where he
finds that noprima facie case exists,
authorize and direct the
investigating fiscal concerned or
any other fiscal or state prosecutor
to cause or move for the dismissal
of the case, or, where he finds
 a prima facie case, to cause the
filing of an information in court
against the respondent, based on
the same sworn statements or
evidence submitted without the
necessity of conducting another
preliminary investigation.
Pursuant thereto, the Department of Justice
promulgated Circular No. 7 dated January 25,
1990 governing appeals in preliminary
investigation. Appeals under Section 2 are
limited to resolutions dismissing a criminal
complaint. However, Section 4 provides an
exception: appeals from resolutions finding
probable cause upon a showing of manifest error
or grave abuse of discretion are allowed,
provided the accused has not been arraigned. In
the present case, petitioner's appeal to the
secretary of justice was given due course on
August 26, 1992 pursuant to this Circular.
On June 30, 1993, Circular No. 7 was
superseded by Department Order. No. 223;
however, the scope of appealable cases
remained unchanged:
Sec. 1. What May Be Appealed. — Only
resolutions of the Chief State
Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor
dismissing a criminal complaint may be
the subject of an appeal to the Secretary
of Justice except as otherwise provided in
Section 4 hereof.
Appeals from the resolutions of
provincial/city prosecutors where the
penalty prescribed for the offense charged
does not exceed prision correccional,
regardless of the imposable fine, shall be
made to the Regional State Prosecutors
who shall resolve the appeals with finality,
pursuant to Department Order No. 318
dated August 28, 1991 as amended by
D.O. No. 34 dated February 4, 1992, D.O.
No. 223 dated August 11, 1992 and D.O.
No. 45 dated February 2, 1993. Such
appeals shall also be governed by these
rules.
Sec. 4. Non-Appealable
Cases; Exceptions. — No appeal may be
taken from a resolution of the Chief State
Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor
finding probable cause except upon
showing of manifest error or grave abuse
of discretion. Notwithstanding the showing
of manifest error or grave abuse of
discretion, no appeal shall be entertained
where the appellant had already been
arraigned. If the appellant (is) arraigned
during the pendency of the
appeal, . . . appeal shall be
dismissed motu proprio by the Secretary
of Justice.
An appeal/motion for reinvestigation from
a resolution finding probable cause,
however, shall not hold the filing of the
information in court.
Apart from the foregoing statutory and
administrative issuances, the power of review of
the secretary of justice is recognized also by
Section 4 of Rule 112 of the Rules of Court:
Sec. 4. Duty of investigating fiscal.
—....
xxx xxx xxx
If upon petition by a proper party,
the Secretary of Justice reverses
the resolution of the provincial or
city fiscal or chief state prosecutor,
he shall direct the fiscal concerned
to file the corresponding
information without conducting
another preliminary investigation or
to dismiss or move for dismissal of
the complaint or information.
This appeal rests upon the sound discretion of
the secretary of justice arising from his power of
supervision and control over the prosecuting arm
of the government, not on a substantial right on
the part of the accused as claimed by petitioner.
Appeal Did Not Divest the
Trial Court of Jurisdiction
Where the secretary of justice exercises his
power of review only after an information has
been filed, trial courts should defer or suspend
arraignment and further proceedings until the
appeal is resolved. Such deferment or
suspension, however, does not signify that the
trial court is ipso facto bound by the resolution of
the secretary of justice. Jurisdiction, once
acquired by the trial court, is not lost despite a
resolution by the secretary of justice to withdraw
the information or to dismiss the case.
Judicial Review of the Resolution
of the Secretary of Justice
Judicial power is defined under the 1987
Constitution as the duty of courts to settle actual
controversies involving rights which are legally
demandable and enforceable. Such power
includes the determination of whether there has
been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any
branch or instrumentality of the
28
government. Under this definition, a court is
without power to directly decide matters over
which full discretionary authority has been
delegated to the legislative or executive branch
of the government. It is not empowered to
substitute its judgment for that of Congress or of
the President. It may, however, look into the
question of whether such exercise has been
made in grave abuse of discretion.
Judicial review of the acts of other departments
is not an assertion of superiority over them or a
derogation of their functions. In the words of
Justice Laurel in Angara vs. Elertoral
Commission: 29
. . . [W]hen the judiciary mediates
to allocate constitutional
boundaries, it does not in reality
nullify or invalidate an act of the
legislature, but only asserts the
solemn and sacred obligation
assigned to it by the Constitution to
determine conflicting claims of
authority under the Constitution and
to establish for the parties in an
actual controversy the rights which
that instrument sources and
guarantees to them. This is in truth
all that is involved in what is termed
"judicial supremacy" which properly
is the power of the judicial review
under the Constitution. . . . .
It is not the purpose of this Court to decrease or
limit the discretion of the secretary of justice to
review the decisions of the government
prosecutors under him. In Crespo, the secretary
was merely advised to restrict such review to
exceptionally meritorious cases. Rule 112,
Section 4 of the Rules of Court, which
recognizes such power, does not, however, allow
the trial court to automatically dismiss the case or
grant the withdrawal of the information upon the
resolution of the secretary of justice. This is
precisely the import
of Crespo, Marcelo, Martinez vs. Court of
Appeals30 and the recent case
of Roberts, Jr. vs. Court of Appeals, which all
required the trial court to make its own evaluation
of the merits of the case, because granting the
motion to dismiss or to withdraw the information
is equivalent to effecting a disposition of the case
itself.
The Marcelo and Martinez
Cases Are Consistent
In Marcelo vs. Court of Appeals, 31 this Court
ruled that, although it is more prudent to wait for
a final resolution of a motion for review or
reinvestigation from the secretary of justice
before acting on a motion to dismiss or a motion
to withdraw an information, a trial court
nonetheless should make its own study and
evaluation of said motion and not rely merely on
the awaited action of the secretary. The trial court
has the option to grant or deny the motion to
dismiss the case filed by the fiscal, whether
before or after the arraignment of the accused,
and whether after a reinvestigation or upon
instructions of the secretary who reviewed the
records of the investigation; provided that such
grant or denial is made from its own assessment
and evaluation of the merits of the motion.
In Martinez vs. Court of Appeals, 32 this Court
overruled the grant of the motion to dismiss filed
by the prosecuting fiscal upon the
recommendation of the secretary of justice
because, such grant was based upon
considerations other than the judge's own
assessment of the matter. Relying solely on the
conclusion of the prosecution to the effect that
there was no sufficient evidence against the
accused to sustain the allegation in the
information, the trial judge did not perform his
function of making an independent evaluation or
assessment of the merits of the case.
Despite the pronouncement in Marcelo that a
final resolution of the appeal to the Department
of Justice is necessary, both decisions followed
the rule in Crespo vs. Mogul: Once a complaint
or information is filed in court, any disposition of
the case such as its dismissal or its continuation
rests on the sound discretion of the court. Trial
judges are thus required to make their own
assessment of whether the secretary of justice
committed grave abuse of discretion in granting
or denying the appeal, separately and
independently of the prosecution's or the
secretary's evaluation that such evidence is
insufficient or that no probable cause to hold the
accused for trial exists. They should embody
such assessment in their written order disposing
of the motion.
The above-mentioned cases depict two extreme
cases in complying with this rule. In Marcelo, the
dismissal of the criminal action upon the
favorable recommendation of the Review
Committee, Office of the City Prosecutor, was
precipitate in view of the pendency of private
complainant's appeal to the secretary of justice.
In effect, the secretary's opinion was totally
disregarded by the trial court. In contrast,
in Martinez the dismissal of the criminal action
was an "erroneous exercise of judicial discretion"
as the trial court relied hook, line and sinker on
the resolution of the secretary, without making its
own independent determination of the merits of
the said resolution.
No Grave Abuse of Discretion in the
Resolution of the Secretary of Justice
In the light of recent holdings
in Marcelo and Martinez; and considering that
the issue of the correctness of the justice
secretary's resolution has been amply threshed
out in petitioner's letter, the information, the
resolution of the secretary of justice, the motion
to dismiss, and even the exhaustive discussion
in the motion for reconsideration — all of which
were submitted to the court — the trial judge
committed grave abuse of discretion when it
denied the motion to withdraw the information,
based solely on his bare and ambiguous reliance
on Crespo. The trial court's order is inconsistent
with our repetitive calls for an independent and
competent assessment of the issue(s) presented
in the motion to dismiss. The trial judge was
tasked to evaluate the secretary's
recommendation finding the absence of probable
cause to hold petitioner criminally liable for libel.
He failed to do so. He merely ruled to proceed
with the trial without stating his reasons for
disregarding the secretary's recommendation.
Had he complied with his judicial obligation, he
would have discovered that there was, in fact,
sufficient ground to grant the motion to withdraw
the information. The documents before the trial
court judge clearly showed that there was no
probable cause to warrant a criminal prosecution
for libel.
Under the "established scheme of things" in
criminal prosecutions, this Court would normally
remand the case to the trial judge for his or her
independent assessment of the motion to
withdraw the information. However, in order not
to delay the disposition of this case and to afford
the parties complete relief, we have decided to
make directly the independent assessment the
trial court should have done. The petitioner has
attached as annexes to the present petition for
review the information, which contains a
complete and faithful reproduction of the subject
letter, the resolution of the secretary of justice,
the prosecution's motion for reconsideration of
the trial court's Order of February 22, 1993, and
even the private complainant's opposition to said
motion. The records below have been
reproduced and submitted to this Court for its
appreciation. Thus, a remand to the trial court
serves no purpose and will only clog the dockets.
We thus proceed to examine the substance of
the resolution of the secretary of justice. The
secretary reversed the finding of probable cause
on the grounds that (1) the subject letter was
privileged in nature and (2) the complaint was
merely a countercharge.
In every case for libel, the following requisites
must concur:
(a) it must be defamatory;
(b) it must be malicious;
(c) it must be given publicity; and
(d) the victim must be identifiable.
At the preliminary investigation stage,
these requisites must show prima facie a
well-founded belief that a crime has been
committed and that the accused probably
committed it. A cursory reading of the
information immediately demonstrates a
failure on the part of the complainant to
establish the foregoing elements of libel.
Every defamatory imputation, even if true, is
presumed malicious, if no good intention or
justifiable motive for making it is shown. There is
malice when the author of the imputation is
prompted by personal ill will or spite and speaks
not in response to duty but merely to injure the
reputation of the person who claims to have been
defamed. 33 In this case, however, petitioner's
letter was written to seek redress of proper
grievance against the inaccurate distribution and
payment of professional fees and against unfair
treatment in the Nuclear Medicine Department of
the Philippine Heart Center. It is a qualified
privileged communication under Article 354(1) of
the Revised Penal Code which provides:
Art. 354. Requirement of publicity.
— Every defamatory imputation is
presumed to be malicious, even if it
be true, if no good intention and
justifiable motive for making it is
 shown, except in the following
cases:
1. A private communication made
by any person to another in the
performance of any legal, moral or
social duty; and
xxx xxx xxx
The rule on privileged communication is that a
communication made in good faith on any
subject matter in which the communicator has an
interest, or concerning which he has a duty, is
privileged if made to a person having a
corresponding interest or duty, although it
contains incriminatory matter which, without the
privilege, would be libelous and actionable.
Petitioner's letter was a private communication
made in the performance of a moral duty on her
part. Her intention was not to inflict an
unjustifiable harm on the private complainant, but
to present her grievance to her superior. The
privileged nature of her letter overcomes the
presumption of malice. There is no malice when
justifiable motive exists; and in the absence of
malice, there is no libel. We note that the
information itself failed to allege the existence of
malice.
Thus, we agree with the ruling of the secretary of
justice: 34
. . . (T)he subject letter was written
to bring to the attention of the
Director of the Philippine Heart
Center for Asia and other
responsible authorities the unjust
and unfair treatment that Dr.
Ledesma was getting from
government employees, and the
subject letter is a complaint . . . on
a subject matter in which
respondent has an interest and in
reference to which she has a duty
to question the same is definitely
privileged (US vs. Bustos, 37 Phil.
131). Moreover, in Ang vs. Castro,
136 SCRA 455, the Supreme
Court, citing Santiago vs. Calvo, 48
Phil. 922, ruled that "a
communication made in good faith
upon any subject matter in which
the party making the
communication has an interest or
concerning which he has a duty is
privileged although it contains
incriminatory or derogatory matter
which, without the privilege, would
be libelous and actionable.
The follow-up letter sent by
respondent to the director of the
PHCA, is a direct evidence of
respondent's righteous disposition
of following the rule of law and is a
clear indication that her purpose
was to seek relief from the proper
higher authority . . . .
The same interpretation should be
accorded the civil and
administrative complaints which
respondent filed against
complainants. They are mere
manifestations of her earnest
desire to pursue proper relief for
the alleged injustice she got from
complainants. If she was motivated
by malice and ill-will in sending the
subject communication to the
Director of the PHCA, she would
not have sent the second letter and
filed the administrative and civil
cases against complainants.
In Alonzo, the settled rule is that, when a public
officer, in the discharge of his or her official
duties, sends a communication to another officer
or to a body of officers, who have a duty to
perform with respect to the subject matter of the
communication, such communication does not
amount to publication within the meaning of the
law on defamation. 35 Publication in libel means
making the defamatory matter, after it has been
written, known to someone other than the person
to whom it has been written. 36 The reason for
such rule is that "a communication of the
defamatory matter to the person defamed cannot
injure his reputation though it may wound his
self-esteem. A man's reputation is not the good
opinion he has of himself, but the estimation in
which others hold him." 37 In this case, petitioner
submitted the letter to the director of said
hospital; she did not disseminate the letter and
its contents to third persons. Hence, there was
no "publicity" and the matter is clearly covered by
paragraph 1 of Article 354 of the Penal Code.
Further, we note that the information against
petitioner was filed only on July 27, 1992 or one
year after June 27, 1991, the date the letter was
sent. It is obviously nothing more than a
countercharge to give Complainant Torres a
leverage against petitioner's administrative action
against him.
Ineluctably, Judge Asuncion's denial of the
motion to withdraw the information and the
reconsideration thereof was not only precipitate
but manifestly erroneous. This is further
compounded by the fact that he did not explain
his grounds for his denial inasmuch as he did not
make an independent assessment of the motion
or the arguments in the resolution of the
secretary of justice. All in all, such rash action did
not do justice to the sound ruling in Crespo
vs. Mogul upon which, ironically, he supposedly
rested his action, or to the directive
in Marcelo and Martinez where this Court
required trial courts to make an independent
assessment of the merits of the motion.
WHEREFORE, the assailed Decision is hereby
REVERSED and SET ASIDE. The Motion to
Withdraw the Information dated February 17,
1993 filed before the trial court is GRANTED. No
costs.
SO ORDERED.
Davide, Jr., Melo and Francisco, JJ., concur.
Narvasa, C.J., took no part.
G.R. No. L-25716 July 28, 1966
FERNANDO LOPEZ, petitioner,
vs.
GERARDO ROXAS and PRESIDENTIAL
ELECTORAL TRIBUNAL, respondents.
Vicente Francisco for petitioner.
Sycip and Salazar for respondents.
CONCEPCION, C.J.:
Petitioner Fernando Lopez and respondent
Gerardo Roxas were the main contenders for the
Office of Vice-President of the Philippines in the
general elections held on November 9, 1965. By
Resolution No. 2, approved on December 17,
1965, the two Houses of Congress, in joint
session assembled as the board charged with
the duty to canvass the votes then cast for
President and Vice President of the Philippines,
proclaimed petitioner Fernando Lopez elected to
the latter office with 3,531,550 votes, or a
plurality of 26,724 votes over his closest
opponent, respondent Gerardo M. Roxas, in
whose favor 3,504,826 votes had been tallied,
according to said resolution. On January 5, 1966,
respondent filed, with the Presidential Electoral
Tribunal, Election Protest No. 2, contesting the
election of petitioner herein as Vice-President of
the Philippines, upon the ground that it was not
he, but said respondent, who had obtained the
largest number of votes for said office.
On February 22, 1966, petitioner Lopez instituted
in the Supreme Court the present original action,
for prohibition with preliminary injunction, against
respondent Roxas, to prevent the Presidential
Electoral Tribunal from hearing and deciding the
aforementioned election contest, upon the
ground that Republic Act No. 1793, creating said
Tribunal, is "unconstitutional," and that, "all
proceedings taken by it are a nullity."
Petitioner's contention is predicated upon the
ground, that Congress may not, by law, authorize
an election contest for President and Vice-
President, the Constitution being silent thereon;
that such contest tends to nullify the
constitutional authority of Congress to proclaim
the candidates elected for President and Vice-
President; that the recount of votes by the
Presidential Electoral Tribunal, as an incident of
an election contest, is inconsistent with the
exclusive power of Congress to canvass the
election returns for the President and the Vice-
President; that no amendment to the Constitution
providing for an election protest involving the
office of President and Vice-President has been
adopted, despite the constitutional amendment
governing election contests for Members of
Congress; that the tenure of the President and
the Vice-President is fixed by the Constitution
and cannot be abridged by an Act of Congress,
like Republic Act No. 1793; that said Act has the
effect of amending the Constitution, in that it
permits the Presidential Electoral Tribunal to
review the congressional proclamation of the
president-elect and the vice-president-elect; that
the constitutional convention had rejected the
original plan to include in the Constitution a
provision authorizing election contest affecting
the president-elect and the vice-president-elect
before an electoral commission; that the people
understood the Constitution to authorize election
contests only for Members of Congress, not for
President and Vice-President, and, in interpreting
the Constitution, the people's intent is
paramount; that it is illegal for Justices of the
Supreme Court to sit as members of the
Presidential Electoral Tribunal, since the
decisions thereof are appealable to the Supreme
Court on questions of law; that the Presidential
Electoral Tribunal is a court inferior to the
Supreme Court; and that Congress cannot by
legislation appoint in effect the members of the
Presidential Electoral Tribunal.
Pursuant to the Constitution, "the Judicial power
shall be vested in one Supreme Court and in
such inferior courts as may be established by
law.1
This provision vests in the judicial branch of the
government, not merely some specified
or limited judicial power, but "the" judicial power
under our political system, and, accordingly, the
entirety or "all" of said power, except, only, so
much as the Constitution confers upon some
other agency, such as the power to "judge all
contests relating to the election, returns and
qualifications" of members of the Senate and
those of the House of Representatives which is
vested by the fundamental law solely in the
Senate Electoral Tribunal and the House
Electoral Tribunal, respectively.2
Judicial power is the authority to settle justiciable
controversies or disputes involving rights that are
enforceable and demandable before the courts
of justice or the redress of wrongs for violations
of such rights.3 The proper exercise of said
authority requires legislative action: (1) defining
such enforceable and demandable rights and/or
prescribing remedies for violations thereof; and
(2) determining the court with jurisdiction to hear
and decide said controversies or disputes, in the
first instance and/or on appeal. For this reason,
the Constitution ordains that "Congress shall
have the power to define, prescribe, and
apportion the jurisdiction of the various courts,"
subject to the limitations set forth in the
fundamental law.4
Prior to the approval of Republic Act No. 1793, a
defeated candidate for president or vice-
president, who believe that he was the candidate
who obtained the largest number of votes for
either office, despite the proclamation by
Congress of another candidate as the president-
elect or vice-president-elect, had no legal right to
demand by election protest a recount of the
votes cast for the office concerned, to establish
his right thereto. As a consequence,
controversies or disputes on this matter were not
justiciable.5
Section 1 of Republic Act No. 1793, which
provides that:
There shall be an independent
Presidential Electoral Tribunal ... which
shall be the sole judge of all contests
relating to the election, returns, and
qualifications of the president-elect and
the vice-president-elect of the Philippines.
has the effect of giving said defeated candidate
the legal right to contest judicially the election of
the President-elect or Vice-President-elect and to
demand a recount of the votes cast for the office
involved in the litigation as well as to secure a
judgment declaring that he6 is the one elected
president or vice-president, as the case may
be,7 and that, as such, he is entitled to assume
the duties attached to said office. And by
providing, further, that the Presidential Electoral
Tribunal "shall be composed of the Chief Justice
and the other ten Members of the Supreme
Court," said legislation has conferred upon such
Court an additional original jurisdiction of an
exclusive character.8
Republic Act No. 1793 has not created a new or
separate court. It has merely conferred upon the
Supreme Court the functions of a Presidential
Electoral Tribunal. The result of the enactment
may be likened to the fact that courts of first
instance perform the functions of such ordinary
courts of first instance,9 those of court of land
registration, 10those of probate courts, 11 and
those of courts of juvenile and domestic
relations. 12 It is, also, comparable to the situation
obtaining when the municipal court of a provincial
capital exercises its authority, pursuant to law,
over a limited number of cases which were
previously within the exclusive jurisdiction of
courts of first instance. 13
In all of these instances, the court (court of first
instance or municipal court) is only one, although
the functions may be distinct and,
even, separate. Thus the powers of a court of
first instance, in the exercise of its jurisdiction
over ordinary civil cases, are broader than, as
well as distinct and separate from, those of the
same court acting as a court of land
registration or a probate court, or as a court of
juvenile and domestic relations. So too, the
authority of the municipal court of a provincial
capital, when acting as such municipal court, is,
territorially more limited than that of the same
court when hearing the aforementioned cases
which are primary within the jurisdiction of courts
of first instance. In other words, there is only one
court, although it may perform
the functions pertaining to several types of
courts, each having some characteristics
different from those of the others.
Indeed, the Supreme Court, 14 the Court of
Appeals 15 and courts of first instance, 16 are
vested with original jurisdiction, as well as with
appellate jurisdiction, in consequence of which
they are booth trial courts and appellate courts,
without detracting from the fact that there is only
one Supreme Court, one Court of Appeals,
and one court of first instance, clothed with
authority to discharged said dual functions. A
court of first instance, when performing the
functions of a probate court or a court of land
registration, or a court of juvenile and domestic
relations, although with powers less broad than
those of a court of first instance, hearing ordinary
actions, is not inferior to the latter, for one cannot
be inferior to itself. So too, the Presidential
Electoral Tribunal is not inferior to the Supreme
Court, since it is the same Court although
the functions peculiar to said Tribunal
are more limited in scope than those of the
Supreme Court in the exercise of its ordinary
functions. Hence, the enactment of Republic Act
No. 1793, does not entail an assumption by
Congress of the power of appointment vested by
the Constitution in the President. It merely
connotes the imposition of additional duties upon
the Members of the Supreme Court. 17
Moreover, the power to be the "judge ... of ...
contests relating to the election, returns, and
qualifications" of any public officer is essentially
judicial. As such — under the very principle of
separation of powers invoked by petitioner herein
— it belongs exclusively to
the judicial department, except only insofar as
the Constitution provides otherwise. This is
precisely the reason why said organic law
ordains that "the Senate and the House of
Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all
contests relating to the election, returns, and
qualifications of their respective Members"
(Article VI, Section 11, of the Constitution). In
other words, the purpose of this provision was
to exclude the power to decide such contests
relating to Members of Congress — which by
nature is judicial 18 — from the operation of the
general grant of judicial power 19 to "the Supreme
Court and such inferior courts as may be
established by law.
Instead of indicating that Congress may not
enact Republic Act No. 1793, the aforementioned
provision of the Constitution, establishing said
Electoral Tribunals for Members of Congress
only, proves the exact opposite, namely: that the
Constitution intended to vest Congress with
discretion 20 to determine by law whether
or not the election of a president-elect or that of a
vice-president-elect may be contested and, if
Congress should decide in the affirmative, which
court of justice shall have jurisdiction to hear the
contest. It is, even, debatable whether such
jurisdiction may be conferred, by statute, to a
board, commission or tribunal composed partly
of Members of Congress and Members of the
Supreme Court because of its possible
inconsistency with the constitutional grant
of the judicial power to "the Supreme Court
and ... such inferior courts as may be established
by law," for said board, commission or tribunal
would be neither "the Supreme Court, 21 nor,
certainly, "such inferior courts as, may be
established by law."
It follows, therefore, not only that Republic Act
No. 1793 is not inconsistent with the Constitution
or with the principle of separation of powers
underlying the same, but, also, that it is in
harmony with the aforementioned grant of "the
judicial power" to said courts. Indeed, when
Claro M. Recto, Chairman of the Constitutional
Convention, proposed that the original move
therein to include in the fundamental law a
provision creating an Electoral Commission 22 to
hear election contests against the President-elect
and the Vice-President-elect, be given up, he
expressed the view that the elimination of said
provision would have the effect of leaving in the
hands of the legislative department the power to
decide what entity or body would "look into the
protests for the positions of President and Vice-
President." 23 Twenty-two (22) years later, or on
May 3, 1957 then Senator Recto reiterated this
view, when, in the course of the debates on the
Bill which later became Republic Act No. 1793,
he stated:
... Mr. President, as far as I can
remember, the intention of the
constitutional convention was to leave this
matter to ordinary legislation.
Such was, also, the impression of Dr. Jose M.
Aruego, another prominent Member of the
Convention, who says 24that
Election protests for the Presidency and
the Vice-Presidendency were left to be
judged in a manner and by a body
decided by the National Assembly.
(Emphasis ours.)
No less than one of the main counsel for
petitioner herein, himself, another delegate to the
Constitutional Convention, evidently shared this
view as late as September 30, 1965, for the
introduction to his 1965 edition of "the Revised
Election Code" states that "he will always be
remembered for ... his famous bill creating the
Presidential Electoral Tribunal ...". Indeed as a
member of the Senate, on January 3, 1950, he
Introduced Senate Bill No. 1 seeking to create a
Presidential Electoral Tribunal "to try, hear and
decide protests contesting the election of the
President and the Vice-President of the
Philippines", which shall be composed of three
Justices of the Supreme Court, including the
Chief Justice, and four Senators and four
Members of the House of Representatives.
Then, again, the records of the Convention show,
that in voting eventually to eliminate, from the
draft of the Constitution, the provision
establishing a Presidential Electoral Commission,
the delegates were influenced by the fact that
there was no similar provision in the Federal
Constitution of the United States. Having
followed the pattern thereof, it must be assumed,
therefore, in the absence of any indicium to the
contrary,25 that the Convention had adhered,
also, to the interpretation given to this feature of
said Federal Constitution, as may be deduced
from the fact that, by an act of Congress of the
United States, approved on January 29, 1877, an
Electoral Commission was created to hear and
decide certain issues concerning the election of
the President of said nation held in 1876. It is,
also worthy of notice that pursuant to said Act,
nothing therein "shall be held to impair or affect
any right now existing under the Constitution and
laws to question, by proceedings in the judicial
courts of the United States, the right or title of the
person who shall be declared elected, or who
shall claim to be President or Vice-President of
the United States, if any such right
exists". 26 Thus the absence of a provision in said
Federal Constitution governing protests against
the election of the President and the Vice-
President had been construed to be without
prejudice to the right of the defeated candidate to
file a protest before the courts of justice of the
United States, if the laws thereof permitted it. In
other words, the Federal Congress was deemed
clothed with authority to determine, by ordinary
legislation, whether or not protests against the
election of said officers may properly be
entertained by the judicial department.
Needless to say, the power of congress to
declare who, among the candidates for President
and/or Vice-President, has obtained the largest
number of votes, is entirely different in nature
from and not inconsistent with the jurisdiction
vested in the Presidential Electoral Tribunal by
Republic Act No. 1793. Congress merely acts as
a national board of canvassers, charged with
the ministerial and executive duty 27 to make said
declaration, on the basis of the election returns
duly certified by provincial and city boards of
canvassers. 28 Upon the other hand, the
Presidential Electoral Tribunal has
the judicial power to determine whether or not
said duly certified election returns have been
irregularly made or tampered with, or reflect the
true result of the elections in the areas covered
by each, and, if not, to recount the ballots cast,
and, incidentally thereto, pass upon the validity of
each ballot or determine whether the same shall
be counted, and, in the affirmative, in whose
favor, which Congress has power to do.
It is, likewise, patent that the aforementioned
authority of the Presidential Electoral Tribunal to
determine whether or not the protestant has a
better right than the President and/or the Vice-
President declared elected by Congress would
not abridge the constitutional tenure. If the
evidence introduced in the election protest shows
that the person really elected president or vice-
president is the protestant, not the person
declared elected by Congress, then the latter had
legally no constitutional tenure whatsoever, and,
hence, he can claim no abridgement
thereof.1äwphï1.ñët
It is similarly obvious that, in imposing upon the
Supreme Court the additional duty of performing
the functions of a Presidential Electoral Tribunal,
Congress has not, through Republic Act No.
1793, encroached upon the appointing power of
the Executive. The imposition of new duties
constitutes, neither the creation of an office, nor
the appointment of an officer. 29
In view of a resolution of this Court dated July 8,
1966, upholding the validity of Republic Act No.
1793, upon the ground that it merely vests
additional jurisdiction in the Supreme Court,
petitioner has filed a motion dated July 13, 1966,
praying this Court "to clarify whether or not" this
"election contest should as a consequence ... be
docketed with, and the records thereof
transferred, to this Supreme Court, and all
pleadings, papers and processes relative thereto
should thence forth be filed with it". The motion
is, evidently, based upon the premise that the
Supreme Court is different and distinct from the
Presidential Electoral Tribunal, which is
erroneous, as well as contrary to the ruling made
in said resolution.
Wherefore, the petition herein is hereby
dismissed and the writs therein prayed for denied
accordingly. The aforesaid motion is, moreover,
denied. With costs against the petitioner. It is so
ordered.
Reyes, J.B.L., Barrera, Dizon, Regala,
Makalintal, J.P. Bengzon, Zaldivar, Sanchez and
Castro, JJ., concur.
Footnotes
1
Article VIII, Section 1, of the Constitution.
2 10
Article VI, Section 11, of the Constitution.
3
Black, Constitutional Law, 2nd ed. p. 82;
Ruperto vs. Torres, G.R. No. L-3785,
February 27, 1957, citing 34 C.J. 1183-
1184; Wheeling & Elm Grove Railroad
Co., Appt. vs. Town of Philadelphia, et al.,
4 LRA (NS) pp. 321, 328-329.
4
Article VIII, Section 2.
5
Thus in Channie Tan vs. Republic, G.R.
No. L-14159, April 18, 1960, in which this
Court ruled that an action for judicial
declaration of citizenship was held not to
be a justiciable controversy,
because there is
nolegislation authorizing the institution of
such proceeding. Tan Yu Chin vs.
Republic, G.R. No. L-15775, April 29,
1961; Tan vs. Republic, G.R. No. L-16108,
October 31, 1961; Santiago vs.
Commissioner, G.R. No. L-14653, January
31, 1963; Reyes vs. Republic, G.R. No. L-
17642, November 27, 1964; Dy Poco vs.
Commissioner of Immigration, et al., 13,
March 31, 1966. See, also, Mabanag vs.
Vito, 78 Phil. 1, in which it was held that
"political questions are not within the
province of the judiciary, except to the
extent that power to deal with such
questions has been conferred upon the
courts by express constitutional or
statutory provision."
6
Not the candidate proclaimed elected by
Congress.
7
If the evidence so establishes it.
8
See, for instance, Sec. 2. Act 496 (Land
Registration Act), Sec. 14, Act 1956
(Insolvency jaw), and Sec. 8, CA 473
(Revised Naturalization Law), which
confer upon courts of first instance
additional original jurisdiction.
9
The Courts Of First Instance function not
only as Courts of General Jurisdiction, i.e.,
competent to decide all cases, civil and
criminal, within their own jurisdiction (12
CJS 20-21, I Moran xxxiii; Rep. Act 296.
Secs. 39, 44) but also as Courts of
Special Jurisdiction, empowered to decide
certain specified matters, such
as probate, admiralty, naturalization,
bankruptcy, cadastral and
land registration cases.
The powers and functions of the Court of
Land Registration, established by virtue of
Act 496, Sec. 2, were
subsequently conferred "upon the Courts
of First Instance and judges thereof," by
authority of Sec. 10, Act 2347.
11
Aside from performing the functions of
a probate court (Sec. 44, par. [e], Republic
Act 296, as amended), courts of first
instance also act as admiralty courts (Sec.
44[d], Republic Act 296), bankruptcy
courts (Act 1956), and as courts of
juvenile and domestic relations (Republic
Act No. 1401, Sec. 1).
12
Except in Manila. Republic Act No. 409,
Sec. 38-A, as amended by Republic Act
No. 1401.
13
See Sec. 88, Republic Act 296, as
amended, pursuant to which "municipal
judges may, with the approval of the
Secretary of Justice, be assigned by the
respective district judge in each case to
hear and determine cadastral or land
registration cases covering lots where
there is no controversy or opposition, or
contested lots the value of which does not
exceed ten thousand pesos, x x x ." Also,
said municipal and city judges, "in the
absence of the District Judge from the
province, may exercise within the
province like interlocutory jurisdiction as
the Court of First Instance, which shall be
held to include the hearing of all motions
for the appointment of a receiver, for
temporary injunctions, and for all other
orders of the court which are not final in
their character and do not involve a
decision of the case on its merits, and the
hearing of petitions for a writ of habeas
corpus." Sec. 87, Republic Act
296 confers upon municipal judges in the
capitals of provinces and sub-provinces
and judges of city courts like jurisdiction
as the Court of First Instance to try parties
charged with an offense committed within
their respective jurisdictions, in which the
penalty provided by law does not
exceed prision correccional or
imprisonment for not more than six years
or fine not exceeding six thousand pesos
or both, and in the absence of the district
judge, like jurisdiction within the province
as the Court of First Instance to hear
application for bail.
14
In addition to the original and
the appellate jurisdictions conferred upon
the Supreme Court by the Constitution
(Art. VIII, Sec. 2), Republic Act 296, Sec.
17 vests it with concurrent jurisdiction with
courts of first instance.
15
Sections 29 and 30, Republic Act 296,
as amended.
16
Sections 44 and 45, Republic Act 296,
as amended.
17
The imposition by the legislature to a
constitutional body of additional duties not
inconsistent with those already prescribed
by the Constitution is a practice
recognized in many jurisdiction. See, 42
Am. Jur. Public Officers, Secs. 31, 9, pp.
902, 1949; State vs. Caldwell, 23 So. 2d
855, Terrell, J., Supreme Court of Florida;
Rouse vs. Johnson, 28 S.W. (2d) 745, 70
A.L.R. 1077, CA Kentucky (1930). Even
this Court has recognized the authority of
the Legislature to add to, but not to
diminish, the jurisdiction of the Supreme
Court. In re Guariña, 24 Phil. 37; United
States vs. Limsiongco, 41 Phil. 94, 2 PAL.
309.
18
"The Constitution makes each house of
Congress the judge as to the elections
and returns of its members. This would
appear on its face to be essentially judicial
function. In fact, in England and in some
of the British dominions, it is assigned to
the courts. This was not the case,
however, at the time of the adoption of our
Constitution and we followed the plan then
existing in that country whereby the House
of Commons passed on election
contests." American Constitutional System
— Mathews — p. 98.
"There are certain matters which
each house determines for itself,
and in respect to which its decision
is conclusive. x x x it decides upon
the election and qualifications of its
own members. x x x In determining
questions concerning contested
seat the house will exercise judicial
power, but generally in accordance
with a course of practice which has
sprung from precedents in similar
cases, and no other authority is at
liberty to interfere." Cooley, Thomas
M., A Treatise on the Constitutional
Limitations, Vol. 1, pp. 270-271,
1927 ed.
"Determining of existing facts and
resultant and controverted rights
and duties, is a judicial function."
23 W & P 147 (1965 Pocket Part)
"After primary election has been
held and results have been
ascertained, question regarding
qualifications of candidates
becomes one which relates to his
eligibility to hold office to which he
aspires and one which requires the
exercise of "judicial functions" to
decide x x x ". State ex rel. Tanner
vs. Duncan, 10 So. 2d 507, 511, 23
W & P. 148 (1965 Pocket Part)
19
Made in Section 1 of Art. VIII of the
Constitution.
20
Which is denied thereto in connection
with election contests affecting its own
members.
21
In which Members of Congress may not
— under the principle of separation of
powers — sit.
22
Consisting of members of the legislative
department and members of the Supreme
Court.
23
The journal of the Convention shows that
the following statements were made on
the floor thereof:
"The Acting President. — Is there
any objection to this proposition?
(Silence). The Chair does not hear
any. Approved.
"Delegate Saguin. — For an
information. It seems that this
Constitution does not contain any
provision with respect to the entity
or body which will look into the
protests for the positions of
President and Vice-President.
"President Recto. — Neither does
the American constitution contain a
provision over the subject.
"Delegate Saguin. — But, then,
who will decide these protests ?
 "President Recto. — I suppose that
the National Assembly will decide
that." (Emphasis ours.)
24
In his work on "The Framing of the
Philippine Constitution" Vol. I, p. 410,
printed in 1937.
25
And none has been brought to our
attention.
26
Emphasis ours.
27
Just like that of any municipal, city or
provincial board of canvassers.
28
Article VII, Section 2, Constitution of the
Philippines.
29
"Imposition of new duties upon an officer
already elected or appointed does not
constitute the creation of an office or the
appointment of an officer. When new
duties are thus attached to an office, a
reappointment of the officer need not be
made." (42 Am. Jur., Public Officers, Sec.
90, p. 949).
"In the United States, except for
such offices as are created by
Constitution, the creation of public
offices is primarily a legislative
function. In so far as the legislative
power in this respect is not
restricted by constitutional
provisions, it is supreme, and the
legislature may decide for itself
what offices are suitable,
necessary, or convenient. When in
the exigencies of government it is
necessary to create and define new
duties, the legislative department
has the discretion to determine
whether additional offices shall be
created or these duties shall be
attached to and become ex
officio duties of existing offices."
(42 Am. Jur., Public Officers, Sec.
31, p. 902; 40 ALR 1052, 1057.)
x x x the legislature may impose
additional powers and duties on
both constitutional and statutory
officers so long as such duties are
not inconsistent with their duties
imposed by the constitution. x x x
the legislature may make an
existing officer the member of
another and different board by
enlarging his duties." (State vs.
Caldwell, 23 So. 2d 855, Terrell,
Supreme Court of Florida.)
"That the Legislature may annex
additional duties to a constitutional
office, or confer powers upon a
constitutional officer other than
those expressly prescribed by the
Constitution, unless inhibited from
so doing by that instrument,
is everywhere recognized and
practiced in this and other
jurisdictions, x x x ." (Rouse vs.
Johnson, 28 S.W. [2d] 745, 70 ALR.
1077, C.A. Kentucky [1930].)
x x x Congress may create an
office, it cannot appoint the officer x
x x . It cannot be doubted, x x x that
Congress may increase the power
and duties of an existing office
without thereby rendering it
necessary that the incumbent
should be again nominated and
appointed. (Shoemaker vs. United
States, 37 Law ed. 170, 185.)
G.R. No. L-10144 January 27, 1915
ANASTASIA PAMINTUAN, ET AL., petitioners,
vs.
JULIO LLORENTE, Judge of First Instance,
and CLEMENTE DAYRIT, respondents.
Pedro Abad Santos and Aurelio Pineda for
petitioners.
William A. Kincaid and Thomas L. Hartigan for
respondents.
PER CURIAM, J.:
This is an applicant for the writ of mandamus. Its
purpose is to compel the Honorable Julio
Llorente to continue with the trial of a cause
commenced in the Court of First Instance of the
Province of Pampanga, while he was yet judge of
said court. The important facts alleged in the
complaint are as follows:
First. That on the 3d day of August, 1910, the
defendant (Clemente Dayrit) commenced an
action in the Court of First Instance of the
Province of Pampanga against the plaintiffs in
this action. Said action was numbered 507.
Second. That at the time of the commencement
of said action (the 3d of August, 1910), the said
Honorable Julio Llorente was judge of the Court
of First Instance of said province.
Third. That on the 1st day of July, 1914, the
Honorable Julio Llorente ceased to be judge of
said court and became judge, on said date, of
the Fifth Judicial District, in accordance with the
provisions of Act No. 2347.
Fourth. That sometime between the 3d day of
August, 1910, and the 1st day of July, 1914, the
said judge had entered upon the trial of said
cause; that the declarations of some of the
witnesses had been taken; that he had seen and
heard said witnesses; that he had made an
ocular inspection of the property in question in
said cause No. 507.
Fifth. That on the 1st day of July, 1914, the trial
of said cause was still pending.
Sixth. That after the 1st day of July, 1914, and
after the Honorable Julio Llorente had ceased to
be judge of the Court of First Instance of the
Province of Pampanga and had become judge of
the Fifth Judicial District, he refused to continue
with the trial of said cause, No. 507, for the
reason that he claimed that he was incompetent
to try the same.
The plaintiffs, upon the foregoing facts, prayed
that a writ of mandamus should be issued by this
court, directing, requiring, and compelling the
said Honorable Julio Llorente to continue the trial
of said cause No. 507 until its conclusion.
To said petition, the defendants or respondent
presented a demurrer, alleging that the facts
stated were not sufficient to constitute a cause of
action; that the facts stated in said complaint
showed that the Honorable Julio Llorente had
been judge of the Fifth Judicial District from the
1st day of July, 1914, and was, therefore,
incompetent to continue the trial of said cause
No. 507 pending in the Court of First Instance of
the Province of Pampanga, the Seventh Judicial
District.
Upon the issue thus presented the cause was
submitted to this court.
The simple question presented by the petition
and the demurrer is, whether or not, under the
provisions of Act No. 2347, a judge who had
commenced the trial of a cause and who had
ceased to be the judge of the particular court in
which said cause was pending, before the
termination of the same, may be compelled by
mandamus to continue with the trial of the same.
The petitioners in the present cause rely upon
the provisions of section 24 of said Act No. 2347.
Said section 24 provides:
All criminal or civil cases, and all judicial
proceedings of a like nature, pending
decision or sentence, orpending
continuance of the evidence in the present
Courts of First Instance, at the time when
this Act takes effect, shall remain under
the jurisdiction of said courts, until their
final decision; and all civil or criminal
cases, and all judicial proceedings of a
like nature that have been filed or initiated
and are pending trial or a hearing in said
courts shall be transferred to their
successors for trial and sentence, and all
pending decision or decree, or
continuance of the evidence in the Court
of Land Registration at the date on which
this Act takes effect, shall continue until
their final decision under the jurisdiction of
the judges of said court to whom such
cases were assigned, and all cases filed
or begun, but pending trial or a hearing in
the Court of Land Registration, shall be
transferred to the judges of the Court of
First Instance of the provinces where said
lands made the object of said cases are
situate.
The particular part of said section upon which the
petitioners rely is the following:
All criminal or civil cases . . . pending
decision or sentence in the
present Courts of First Instance at the
time when this Act takes effect, shall
remain under the jurisdiction of
said courts, until their final decision.
If the quoted provision of said section 24 was the
only provision of said Act No. 2347, there might
be but little difficulty in ascertaining the purpose
of the Legislature. We find, however, another
section which bears an important relation to the
interpretation of said section 24. Section 7 of said
Act, among other things, provides:
The present judges of Courts of First
Instance, judges at large, and judges of
the Court of Land Registration vacate
their positions on the taking effect of this
Act.
This Act took effect on the 1st day of July, 1914.
It will be noted that section 7, in effect, provides
that the present judges (those appointed prior to
July 1, 1914) shall vacate their positions on the
1st day of July, 1914. The language used in the
phrase "shall vacate their positions" is very
strong language. The Legislature could hardly
have used stronger language if its real purpose
was to terminate the judicial authority of the
"present judges." The word "vacate" means,
according to Webster, "To make vacant; to leave
empty; to cease from filling or occupying; to
annul; to deprive of force; to make of no authority
or validity; to defeat; to put an end to."
The Standard Dictionary also defines the word
"vacate" as follows: "To make vacant; empty; to
surrender possession of by removal; to put an
end to; give up; quit; leave."
Bouvier, in his valuable Law Dictionary, defines
the words "vacate" as follows: "To annul; to
render an act void."
Black, in his Law Dictionary, defines the word
"vacate" to mean: "To annul; to cancel or rescind;
to render an act void."
Mr. Ladd, in the case of Bautista vs. Johnson (2
Phil. Rep., 230) defines the word "vacate," as
used in Act No. 267, to mean: "To annul; to
render void." Mr. Ladd continues by saying: "No
stronger word could have been employed by the
Commission (Legislature) in the law in question
to signify absolute extinction."
If then the judicial authority of the "present
judges" was ended or terminated or
extinguished, by what authority could they
continue to act? And suppose also that the
"present judges" had not been reappointed, by
what authority could the act? But the petitioners
argue that under the provisions of section 24 (Act
No. 2347) "all criminal or civil cases . . . pending
decision or sentence, or pending continuance of
the evidence in the present courts . . . shall
remain under the jurisdiction of said courts, until
their final decision," and that, therefore, the
"present judges" are vested with authority and
jurisdiction to continue to consider said cases
until their final decision. A careful reading of said
provisions discloses the fact, however, that said
"criminal or civil cases," etc., "pending decision,
shall remain under the jurisdiction of the courts,"
and not under the jurisdiction of the judges. The
purpose of this provision was to clearly indicate
that the existing Courts of First Instance were to
continue; that the existing courts were not
"vacated" or terminated or extinguished. Had the
existence of the courts been terminated or
"vacated," then, of course, all actions pending
would have been ended, and it would have been
necessary to recommence them in the new
courts. It was clearly not the intention of the
Legislature to destroy the existing Courts of First
Instance. The law clearly indicates the contrary.
Its purpose was simply to change
the personnel of the judges, or at least to require
all the judges to be reappointed under the new
law and under new qualifications. Had the
Legislature intended that all criminal and civil
cases pending decision, etc., etc., shall remain
under the jurisdiction of the "present judges," it
would have said so. On the contrary, it is said
that all criminal and civil cases pending decision,
shall remain under the jurisdiction of the courts
then existing.
The petitioners argue at length that the word
"judges" and "courts" are used synonymously
and interchangeably. That is true, generally
speaking. In ordinary parlance judges are
spoken of as the courts and the courts are
referred to, when the person speaking means the
judge simply. It is common for persons, lawyers,
and judges, as well as the law, to use these
terms interchangeably. But, notwithstanding that
fact, there is an important distinction between
them which should be kept in mind. Courts may
exist without a present judge. There may be a
judge without a court. The judge may become
disqualified, but such fact does not destroy the
court. It simply means that there is no judge to
act in the court. The courts of the Philippine
Islands were created and the judges were
appointed thereto later. In a few instances, the
judges were appointed before the courts were
established. A person may be appointed a judge
and be assigned to a particular district or court
subsequently. So it appears that there is an
important distinction between the court, as an
entity, and the person who occupies the position
of judge. In the most general sense these words
may be used interchangeably. In the statute
under consideration, however, it is clear that the
Legislature intended to make a distinction
between "courts" and "judges." It is clear, when
sections 7 and 24 are read together, that when
the Legislature "vacated" the "present judges" by
section 7, that they did not intend to "vacate" the
"court," or otherwise they would not have
provided that "all criminal and civil cases,
pending decision," etc., "shall remain under the
jurisdiction of the courts." It was clearly not the
intention of the Legislature to "vacate" the courts.
Its purpose was simply to change the personnel
of the judges of the courts. In other words, on
and after the 1st of July, 1914, there were no
judges of the Courts of First Instance until and
unless others were appointed. But the courts still
existed, just as though the law had not been
changed. The law simply changed the personnel
of the courts.
Certainly the Legislature did not intend to
provide, after it had vacated, terminated and put
an end the judicial authority of the "present
judges," that said judges should continue to
exercise judicial authority, unless and until they
were reappointed. The Act nowhere provides that
the existing courts shall be supplanted. It (the
Act) simply changes the district. It expressly
recognizes the existence and continuance of the
present courts, with the same jurisdiction which
theretofore existed. The new judges which were
appointed under and by authority of said Act (No.
2347) "have the same jurisdiction and
competency as conferred by existing law upon
the Courts of First Instance." attempt even to
change the jurisdiction of the Court of First
Instance, except to confer upon them the
jurisdiction which had theretofore been exercised
by the Court of Land Registration. In every other
respect the "Courts" of First Instance existed
after the 1st of July, 1914, with the same powers
and jurisdiction which they had exercised
theretofore.
The petitioners further argue that the Honorable
Julio Llorente, having heard a part of the proof in
case No. 507, should, for that reason, hear it all
and decide the case. In answer to that argument,
as we have pointed out above, he is no longer
judge of that court and has no more authority to
act as judge of the same than any other person.
His authority was "vacated" and terminated and
extinguished to act as judge in said district, after
the 1st of July, 1914.
The question presented by the petitioners here
has already been decided by this court. In the
case of United States vs. Soler, 6 Phil. Rep.,
321, the court, speaking through the late Mr.
Justice Willard, said:
The seventh assignment of error in the
brief of the appellant is to the effect that
the judgment is void because the judge
who tried the case had ceased to be the
judge of the Court of First Instance of
Sorsogon at the time he signed the
judgment, and at that time was the judge
of the Court of First Instance of the
Eleventh Judicial District, the Province of
Sorsogon being included in the Eighth
Judicial District. It is admitted in the brief
of the Solicitor-General that on the 30th
day of April, 1904, when the judgment was
signed, the judge who signed it was not
the judge of the district court in which the
action was pending. We think that this
assignment of error must be
sustained. . . .
The judgment of the court below is set
aside and the case is remanded for a new
trial. Upon the new trial it will not be
necessary to retake the evidence already
taken and appearing in the record, but the
parties will be at liberty to present such
other evidence as they see fit, with the
costs of this instance de officio.
See also U. S. vs. Singuimuto, 3 Phil. Rep., 176.
In the case of the United States vs. Macavinta, 8
Phil. Rep., 447, this court held that: "A judge who
hears a part of the testimony and leaves the
jurisdiction of the court where the cause was
being tried before the same is finally closed and
submitted, has no jurisdiction to impose a
sentence in said cause."
In that case, from the record it appears that the
Honorable Mariano Cui heard a part of the proof
presented. Before the close of the trial he was
transferred to another district and the Honorable
W. F. Norris was appointed as the regular judge.
The case was again called up to trial and the
parties litigant renounced their right to present
further proof. Whereupon the said Norris ordered
a transcription of the notes taken by the
stenographer during the trial of the cause and
remitted the same to the Honorable Mariano Cui,
who had heard the evidence during the trial of
the cause, in order that he might prepare the
sentence. Later the said Cui, while he was judge
of another district, prepared the sentence in said
case, finding the defendant guilty of the crime
charged. From that sentence the defendant
appealed to this court. In this court the defendant
and appellant contended that the said Honorable
Mariano Cui had no jurisdiction to prepare the
sentence, not having concluded the trial.
After a consideration of the assignments of error
made by the appellant, this court said: "The
Honorable Mariano Cui did not have jurisdiction
over the said cause at the time it was submitted
to the court of said province, he had no authority
or jurisdiction to render the decision therein, and
for this reason the said sentence is reversed and
the case is hereby ordered to be remanded to
the Court of First Instance of the Province of
Capiz, with direction that the judge thereof render
such sentence in the cause as the record and
evidence justify."
See also the case of U. S. vs. Autiz, 10 Phil.
Rep., 233.
If then a judge who has been transferred or
changed from one court or province to another,
cannot decide a case which he tried, but had not
yet decided before his transfer, how can the
"present judges" whose position have been
vacated continue to take jurisdiction of "pending
decisions?" In view of the above-quoted
decisions of this court, the question contains its
own answer. The mere fact that a judge
happened to be reappointed cannot change the
result, unless he happens to be assigned to the
same district or province. In the latter case it will,
of course, be his duty to dispose of the case.
There is not a word nor a single provisions in
said Act (No. 2347) which tends to show or to
intimate that the Legislature intended to
establish, in the place of the existing courts,
other and different Courts of First Instance. Said
Act changed the personnel of the judges of the
existing Courts of First Instance only.
In the case of Santos vs. Johnson, 6 Phil. Rep,
473, this court, speaking through Mr. Chief
Justice Arellano, said:
It appearing that the defendant judge was
not at that time the judge of the province
in question, we hold that he properly
refused to sign and certify the bill of
exceptions presented to him in a case
which he had tried. The certification and
signing of a bill of exceptions are
jurisdictional acts which cannot be
executed by one who has no jurisdiction
over the matter on account of his having
ceased to be the judge of the court in
which the case was tried by him as such
judge. He has no right to exercise any
jurisdiction in a court of which he has
ceased to be the judge.
(Enriquez vs. Watson, 3 Phil. Rep., 279;
Ricamora vs. Trent, 3 Phil. Rep., 137;
Osmeña vs. Gorordo, 5 Phil. Rep., 37.)
In a very recent case decided by this court
(Mapiot vs. Mapiot, R. G. No. 7748, not
reported), one judge heard all of the proof
submitted and later another judge decided the
case, without any objection from either of the
parties, upon the proof theretofore submitted,
and the decision of the lower court was affirmed
by the Supreme Court. Many more instances
might be given showing where one judge of the
Court of First Instance had heard a part or all of
the proof in a particular case, and where the
decision was rendered by another judge upon
the same, and in some instances, additional
proof.
We do not believe that it was the intention of the
Legislature to provide that a judge whose
position had been vacated on the 1st of July,
1914, and who had been appointed and
transferred to another district as judge, should
continue to act in his original district and to
continue to have jurisdiction of cases, criminal or
civil, theretofore pending before him. It is our
opinion that one who has been judge of the court
of a particular district and who is afterwards
appointed judge of another district, has no
authority, after he becomes judge of the latter
district, to take any action in cases pending in the
former district, at the time he retired therefrom.
For all of the foregoing reason, we are of the
opinion and so hold that the petitioners are not
entitled to the writ of mandamus as prayed for.
The demurrer is therefore hereby sustained, with
costs against the petitioners.
Arellano, C.J., Torres, Johnson and Araullo,
JJ., concur.
Trent, J., concurs in the result.
Separate Opinions
CARSON, J., concurring:
I concur. Whatever may have been the effect of
the legislative enactment in vacating the office of
the respondent judge on the first day of July, and
without expressing any opinion in that regard, it
not being necessary for the proper disposition of
this case, I am of opinion that, it affirmatively
appearing that he did in fact vacate the office of
judge of the Court of First Instance of the
Province of Pampanga on that date, he cannot
now be compelled by mandamus to assume
jurisdiction to act in any matter pending in that
court at that time.
G.R. No. 8692 September 10, 1913
GODOFREDO B. HERRERA, as municipal
president of Caloocan, petitioner,
vs.
ALBERTO BARRETTO, judge of first instance
of Rizal, and CONSTANCIO
JOAQUIN, respondents.
Office of the Solicitor-General Harvey for
petitioner.
R. Diokno, and Gibbs, McDonough and Blanco
for respondents.
MORELAND, J.:
This is an application for a writ of certiorari to the
Court of First Instance of the Province of Rizal.
It appears that on or about the 1st of March,
1913, Constancio Joaquin, believing himself
entitled to a license to open and exploit a cockpit
in the municipality of Caloocan, and the
authorities thereof refusing to issue it to him,
began an action against Godofredo B. Herrera
as municipal president of said municipality, the
officer whose duty he claimed it was to issue
cockpit licenses, to obtain
a mandamus compelling said official to issue
such license.
On the presentation of the verified complaint and
upon the facts stated therein and the exhibits
annexed thereto, the plaintiff asked that the court
issue a mandatory injunction directed to the
defendant requiring him to issue a provisional
license under which the plaintiff might conduct
his cockpit during the pendency of the action.
The court, in pursuance of such request and
upon the facts stated in the complaint and
exhibits annexed thereto, issued such order ex
parte without notice of the defendant.
Thereupon the defendant in that action began a
proceeding in this court against the judge of the
Court of First Instance who had issued the
mandatory injunction relative to the provisional
license referred to, Honorable Alberto Barretto,
and Constancio Joaquin, plaintiff therein, for a
writ of certiorari, alleging that the court below and
had acted without jurisdiction in the following
particulars:
1. That the said Honorable Alberto
Barretto exceeded his jurisdiction in
issuing a mandatory injunction, because,
according to paragraph ( j), section 40, of
the Municipal Code and article 4 of
municipal ordinance No. 8 of Caloocan
(Exhibit 1 a), the issuance of cockpit
licenses in Loma and Maypajo does not
pertain to the municipal president of
Caloocan but to the municipal council
thereof.
2. That the said Honorable Alberto
Barretto exceeded his jurisdiction in
issuing the mandatory injunction ex
parte without giving the municipal
president opportunity to show cause why
such injunction should not be issued as
required by section 202 of the Code of
Civil Procedure.
3. That the said Alberto Barretto exceeded
his jurisdiction in issuing such mandatory
injunction for the reason that the cockpit
license which the president of Caloocan
had erroneously issued in favor of
Constancio Joaquin, on the day of
__________, 1913, has been annulled
and cancelled by virtue of ordinance No.
_____ of the municipal council of
Caloocan, which ordinance has been duly
approved by the provincial board of Rizal.
4. That there being another action pending
between the same parties, founded upon
the same facts and reasons, the Court of
First Instance of Rizal had no jurisdiction
to issue the mandatory injunction of the
1st of March, 1913 (Exhibit 4), for the
reason that such injunction tends to
render inefficacious and null the final
decision which this honorable court will
render in civil case No. 8673.
The action referred to in this paragraph is one
begun by Antonio Bertol and Tranquilina T.,
windows of Angeles, against Godofredo B.
Herrera and others relating to the validity of a
certain ordinance.
5. That there being pending civil case No.
986 mentioned in the previous
paragraphs, the Court of First Instance of
Rizal lacked jurisdiction to issue the
mandatory injunction which he issued on
the 1st of March, 1913, for the reason that
it tends to render inefficacious and null the
decision which the Honorable Richard
Campbell will render in civil cause No.
986.
This objection is based upon an action previously
begun by Antonio Bertol and Tranquilina T.,
windows of Angeles, against the municipality or
the officials thereof for the purpose of having
declared null and void municipal ordinance No. 8
of Caloocan, which is the same ordinance upon
which was based the complaint of Constancio
Joaquin and in which the mandatory injunction
was issued.
6. That the said Constancio Joaquin at the
present time does not possess a license
to maintain and run the said cockpits of
 Loma and Maypajo, nor does he have the
right to exploit the same.
It has been repeatedly held by this court that a
writ of certiorari will not be issued unless it
clearly appears that the court to which it is to be
directed acted without or in excess of jurisdiction.
It will be not be issued to cure errors in the
proceedings or to correct erroneous conclusions
of law or of fact. If the court has jurisdiction of the
subject matter and of the person, decisions upon
all questions pertaining to the cause are decision
within its jurisdiction and, however irregular or
erroneous they may be, cannot be corrected
by certiorari. The Code of Civil Procedure giving
Court of First Instance general jurisdiction in
actions for mandamus, it goes without saying
that the Court of First Instance had jurisdiction in
the present case to resolve every question
arising in such an action and to decide every
question presented to it which pertained to the
cause. It had already been held by this court
that, while it is a power to be exercised only in
extreme cases, a Court of First Instance has
power to issue a mandatory injunction to stand
until the final determination of the action in which
it is issued. While the issuance of the mandatory
injunction in this particular case may have been
irregular and erroneous, a question concerning
which we express no opinion, nevertheless its
issuance was within the jurisdiction of the court
and its action is not reviewable on certiorari. It is
not sufficient to say that it was issued wrongfully
and without sufficient grounds and in the
absence of the other party. The question is, did
the court act with jurisdiction?
It has been urged that the court exceeded its
jurisdiction in requiring the municipal president to
issue the license, for the reason that he was not
the proper person to issue it and that, if he was
the proper person, he had the right to exercise a
discretion as to whom the license should be
issued. We do not believe that either of these
question goes to the jurisdiction of the court to
act. One of the fundamental questions in
a mandamus against a public officer is whether
or not that officer has the right to exercise
discretion in the performance of the act which the
plaintiff asks him to perform. It is one of the
essential determination of the cause. To claim
that the resolution of that question may deprive
the court of jurisdiction is to assert a novel
proposition. It is equivalent to the contention that
a court has jurisdiction if he decides right but no
jurisdiction if he decides wrong. It may be stated
generally that it is never necessary to decide the
fundamental questions of a cause to determine
whether the court has jurisdiction. The question
of jurisdiction is preliminary and never touches
the merits of the case. The determination of the
fundamental questions of a cause are merely the
exercise of a jurisdiction already conceded. In
the case at bar no one denies the power,
authority, or jurisdiction of the Court of First
Instance to take cognizance of an action
for mandamus and to decide every question
which arises in that cause and pertains thereto.
The contention that the decision of one of those
questions, if wrong, destroys jurisdiction involves
an evident contradiction.
Jurisdiction is the authority to hear and determine
a cause —the right to act in a case. Since it is
the power to hear and determine, it does not
depend either upon the regularity of the exercise
of that power or upon the rightfulness of the
decisions made. Jurisdiction should therefore be
distinguished from the exercise of jurisdiction.
The authority to decide a cause at all, and not
the decision rendered therein, is what makes up
jurisdiction. Where there is jurisdiction of the
person and subject matter, as we have said
before, the decision of all other questions arising
in the case is but an exercise of that jurisdiction.
In the case of Chase vs. Christianson (41 Cal.,
253), the court said: "Here, then, was jurisdiction
of the subject matter and of the person and these
conditions conceded, the decision of all other
question arising in the case is but the exercise of
that jurisdiction and an erroneous decision of any
of these other questions could not impair the
validity and binding force of the judgment when
brought in question collaterally.
It is not the particular decision given which
makes up jurisdiction, but it is the authority
to decide the question at all. Otherwise all
distinction between erroneous exercise of
jurisdiction upon the hand, and a total
want of it upon the other, must be
obliterated.
In the case of Freeman vs. Thompson (53 Mo.,
183), the following is quoted with approval
from Paine vs. Mooreland(15 Ohio, 435): "The
court once having, by its process, acquired the
power to adjudicate upon a person of thing, it
has what is called jurisdiction. . . . The distinction
is between a lack of power or want of jurisdiction
in the court, and a wrongful or defective
execution of the power. In the first instance, all
acts of a court, not having jurisdiction or power,
are void; in the latter, voidable only. A court, then
may act, first without power or jurisdiction;
second, having power or jurisdiction, may
exercise it wrongfully; or third, irregularly. In the
first instance the act or judgment of the court is
wholly void, and is as though it as though it had
not been done; the second is wrong and must be
reversed upon error; the third is irregular and
must be corrected by motion."
In Hardin vs. Lee (51 Mo., 241), the court said:
"The judgment though grossly erroneous was not
void, the court having acquired jurisdiction of the
subject matter. . . . In a word, error and nullity are
not legal equivalent or synonymous."
In Hagerman vs. Sutton (91 Mo., 519), the court
said: "The power to decide correctly and to
enforce a decision when correctly made
necessarily implies the same power to decide
incorrectly and to enforce a decision when
incorrectly made. (Devis vs. Packard, 10 Wend.,
71.)"
In Paine vs. Mooreland (15 Ohio, 435), the court
said: "The distinction is between a lack of power
or want of jurisdiction in the court, and a wrongful
or defective execution of the power. In the first
instance all acts of the court, now having
jurisdiction or power, are void; in the latter
voidable only."
In the case of Colton vs. Beardsly (38 Barb., 51),
the court said: "The test of jurisdiction is, whether
the court has power to enter on the inquiry, and
not whether its decision is right or wrong."
In Wertheimer vs. Boonville (29 Mo., 25 4), the
court said: "It is hard to conceive how the
question of jurisdiction can be made to depend
on the fact whether the judgment was right or
wrong. The mayor unquestionably has authority
to decide whether the ordinance had been
violated, and after he has determined it, how can
it be said he had no jurisdiction?"
In O'Rielly vs. Nicholson (45 Mo., 160), the court
said: "A judgment, though informal, even to the
extent of granting a relief not contemplated in the
petition, when the parties are before the court
and the relief is within its jurisdiction, is not a void
proceeding. The doctrine laid down in Fithian vs.
Monks (43 Mo., 502), 'in that it fails to make the
readily observable distinction between
jurisdiction to act in a given cause, and
erroneous exercise of such jurisdiction, . . .
should no longer be followed . . . Jurisdiction
being acquired error could not oust it, although
that error consisted in granting relief not
warranted by law.'"
In the case of Gray vs. Bowles (74 Mo., 419), the
court said: "When a court has jurisdiction of the
subject matter of the action and the parties to it,
a judgment rendered by it, although it may be an
erroneous, irregular, or wrong judgment, cannot
be said to be void, but remains valid and binding
until reversed or set aside on the ground of such
error or irregularity."
In States vs. Second Judicial District (24 Mont.,
238), the court said: "A judgment was rendered
against Baker, who appealed but could not
furnish the necessary bonds or security on
appeal. The purpose of this application is to set
aside the judgment, the relator asserting that the
district court was without jurisdiction. The right to
hear and determine necessarily carries with it the
power to decide wrong as well as right. It did not
exceed its jurisdiction although the court may
have erred, yet it regularly pursued its
authority. Certiorari may not be used to correct
errors committed within the jurisdiction of the
court."
In Central Pac. vs. Board (43 Cal., 365) the court
said: "Mere irregularly intervening in the exercise
of an admitted jurisdiction — mere mistakes of
law committed in conducting the proceedings in
an inquiry which the Board had authority to
entertain, . . . are not to be considered here
upon certiorari, otherwise that writ would be
turned into a writ of error . . . Jurisdiction over a
question presented being conceded, carries with
it necessarily the authority — the mere power —
to decide the question either way."
In Lewis vs. Larson (45 Wis., 353), the court
said: "The judgment of a justice of the peace will
not be reversed on a common-law certiorari, if
the justice had jurisdiction to render it, no matter
how irregular or erroneous it may be."
In the case of Utah Association vs. Budge (16
Idaho, 751), the court said: "If the court had
jurisdiction of the person and the subject matter,
then it is clear that whatever mistakes has been
made has been only an error committed on the
part of the trial court in exercising his judgment
and applying the law to the case, rather than an
excess of jurisdiction in acting in a matter
wherein he had not acquired jurisdiction to act or
wherein his court has no jurisdiction of the
subject in litigation. . . . The court had the
jurisdiction, power, and authority to hear and
determine that question. It accordingly did so. If
the court committed an error in deciding the
question thus presented, we answer that the
court had jurisdiction to commit the error."
Although certiorari may be considered a direct
attack upon a judgment as distinguished from a
collateral attack, nevertheless, under the laws of
these Islands the only ground for the issuance
of certiorari being the failure of jurisdiction of the
inferior tribunal, the basis of the direct attack
upon the judgment becomes in this jurisdiction
the same as for collateral attack, inasmuch as,
generally speaking, a collateral attack against a
judgment is sustainable only when the judgment
is void for lack of jurisdiction in the court to
pronounce it. Therefore the authorities relative to
the ground necessary for a successful collateral
attack upon a judgment are authorities in a large
sense, pertinent to a discussion as to when a
court may be held to have acted without or in
excess of jurisdiction.
In the case of Cooper vs. Reynolds (10 Wall.,
308), the court said: "It is of no avail, therefore, to
show that there are errors in the record, unless
they be such as prove that the court had no
jurisdiction of the case, or that the judgment
rendered was beyond its power. This principle
has been often held by this court and by all
courts, and it takes rank as an axiom of the law."
In the case of Cornett vs. Williams (30 Wall.,
226), it was declared that "the settled rule of law
is, that jurisdiction having attached in the original
case, everything done within the power of that
jurisdiction, when collaterally questioned, is to be
held conclusive of the rights of the parties,
unless impeached for fraud."
These two cases were cited and approved in the
case of Manson vs. Duncanson (166 U. S., 533),
wherein the court said: "When a court has
jurisdiction it has right to decide every question
that may arise in the cause; and whether its
decisions be correct or not, its judgment, until
reversed, is regarded as binding in every other
court. These principles apply in all respects and
with special force in this case. It was for the court
whose decree is attempted to be impeached, not
only to decide on the facts before it, but upon the
construction and legal effect of all deeds and
muniments of title upon which the proceeding
was based. The court having general jurisdiction
over the subject matter of decreeing the sale of
real estate of a deceased debtor and for the
payment of debts, it had the right and was
required to determine the question as to the
liability of the property for the debts, and whether
the case was within its jurisdiction; and though its
decision may have been erroneous, it could only
be reversed upon a direct appeal."
See Shepard vs. Adams, 168 U. S., 618; Gunn
vs. Plant, 94 U. S., 664; Parker vs. Kane, 22
Howard, 1; Huff vs. Hutchinson, 14 Howard,
586; Thompson vs. Tolmie, 2 Pet., 157; Hatcher
vs. Hendrie, 68 C. C. A., 19.
See also, the long list of authorities cited as
sustaining this doctrine in 23 Cyc., 1090, where
the rule is stated as follows: "Where a court has
jurisdiction of the parties and the subject matter,
its judgment, although irregular in form, or
erroneous or mistaken in law, is conclusive, as
long as it remains unreversed and in force, and
cannot be impeached collaterally."
In the case of Miller vs. Rowan (251 Ill., 344), the
court said: "A judgment or decree is not binding
upon anyone unless the court rendering the
same had jurisdiction of the parties and the
subject matter of the cause. The court did have
jurisdiction of the parties, and the appellant, who
is disputing the binding effect of the decree, was
one of the complainants. Jurisdiction of the
subject matter is the power to adjudge
concerning the general question involved, and if
a bill states a case belonging to a general class
over which the authority of the court extends, the
jurisdiction attaches and no error committed by
the court can render the judgment void. It the
court has jurisdiction, it is altogether immaterial,
when the judgment is collaterally called in
question, how grossly irregular or manifestly
erroneous its proceedings may have been. The
judgment cannot be regarded as a nullity, and
cannot, therefore, be collaterally impeached.
Such a judgment is binding on the parties and on
every other court unless reversed or annulled in
a direct proceeding and is not open to collateral
attack. If there is a total want of jurisdiction in a
court its proceedings are an absolute nullity and
confer no right and afford no protection but will
be pronounced void when collaterally drawn in
question. (Buckmaster vs. Carling, 3 Scam., 104;
Swiggart vs. Harber, 1 id., 364;
People vs.Seelye, 146 Ill., 189; Clark vs. People,
146 id., 348; O'Brien vs. People, 216 id., 354;
People vs. Talmadge, 194 id., 67.)"
Trombly vs. Klersy (146 Mich., 648); Chapman
vs. Taliaferro (1 Ga. App., 235); Smith vs.
Schlink (44 Colo., 200), where the court said:
"That the court had jurisdiction of the parties and
the subject matter cannot be questioned. This
being true, and it not appearing that the
judgment was not within the issues presented by
the pleadings, however, erroneous it may be, the
judgment cannot be held to be void, so as to
bring this case within the rule that disobedience
of a void decree does not constitute contempt of
court."
Baldwin vs. Foster (157 Cal., 643), where the
court said:
Throughout this consideration the fact is
to be borne in mind that we are not
reviewing this judgment under attack
made on direct appeal where errors
prejudicial to those appealing would call
for a reversal, but we are considering it
upon collateral attack, where every
intendment is in favor of the judgment and
where mere errors and irregularities will
not be considered. Upon collateral attack
the judgment will be set aside, generally
speaking, for but one of three reasons:
Lack of jurisdiction of the person, lack of
jurisdiction of the subject matter of the
action, or an absolute lack of jurisdiction to
render such a judgment as the one given.
(Moore vs.Martin, 38 Cal., 428;
Mayo vs. Foley, 40 Cal., 281; In re James,
99 Cal., 374; 37 Am. St. Rep., 60; 33 Pac.,
1122; Wood vs. Jordan, 125 Cal., 261; 57
Pac., 997.)
Goodman vs. City (164 Fed., 970); Sawyer vs.
Kelly (148 Iowa., 644); Lucy vs. Deas (59 Fla.,
552).
That certiorari will lie only in case of failure of
jurisdiction has been consistently held by this
court. The following are substantially all of the
cases decided by this court referring
to certiorari or prohibition. We include those
referring to prohibition for the reason that the
ground of its issuance is the same as that
in certiorari, viz, lack or excess of jurisdiction:
In the case of In re Prautch (1 Phil. Rep., 1 32),
the court said: "Under the provisions of the code
in certiorari proceedings, it is necessary that it
would appear both that the inferior court has
exceeded its jurisdiction and that there is no
appeal from such court."
In his concurring opinion Judge Willard says:
"Considering the existence of facts which may
confer jurisdiction, the question of whether those
facts are presented in such a manner in the
affidavit as to invoke the exercise of this
jurisdiction is one which the court has the same
right to determine as it would have in the
decision of any other questions which might arise
in a matter within its recognizance. In the
exercise of this power it may issue an erroneous
order, but such an order is not absolutely void;
unless it is remedied during the same action by
means of an appeal or otherwise, it will have the
effect of a valid order. The Court of First Instance
should not give a judgment upon a complaint on
a promissory note which does not state a cause
of action, but if it does so its judgment is valid
unless it is reversed by means of appeal. We
cannot defer to any decision of the supreme
court of California which sustains a contrary
doctrine. Article 528, already cited, establishes
the law of these Islands, and we must submit to
that. To accept the other rule would be to convert
the writ of habeas corpus into a writ of error, a
thing which is in no wise permissible. It would
make it possible for any defendant by means of
such writ to interpose an appeal to this court in
all those cases in which an order of arrest should
be issued and would oblige us to review the
errors of law which are alleged to have been
committed by the court in investigating the
sufficiency of the affidavit, and this is, in our
opinion the very practice which article 528 seeks
to avoid."
In the of Reyes vs. Roxas (1 Phil. Rep., 625), the
court held that the refusal to hear witnesses
offered by the defense in a criminal action might
constitute error, but was not an excess of
jurisdiction to be remedied by certiorari, the court
saying: "The complaint in this case does not
allege that the court which convicted the
petitioner had no jurisdiction to try the case.
Neither does it allege that in the prosecution of
the case there has been any affirmative action by
the judge outside of his jurisdiction. It simply
alleges that he has failed to take action; that he
has refused to hear the witnesses for the
defendant. This, if true, would constitute error,
but it would be error committed by the judge in
the exercise of a jurisdiction which he
possessed. The remedy by certiorari does not
apply to this case."
In the case of Dy Chuan Leng vs. Amber (1 Phil.
Rep., 535), the court said: "We cannot grant an
injunction under this section unless there is a
compliance with article 164 and 166. It must
appear from the complaint that the plaintiff is
entitled to recover in the action. If the complaint
states no cause of action no preliminary
injunction can be issued. The complaint filed in
this court is defective in this respect. It shows
upon its face that the petitioner are not entitled to
an order of prohibition against the court below.
That court had jurisdiction of the action to
dissolve the partnership. In that action it had the
power to grant a preliminary injunction (art. 164),
and to appoint a receiver (art. 174). Having those
powers, if in the exercise of them any errors were
committed, they could be corrected only on
appeal from the final judgment. The facts as
alleged, that the complaint was ambiguous; that
the judge believed that the plaintiff below was a
partner when the defendants denied it; that he
fixed the bonds at $1,000 instead of $30,000, as
requested by the defendants; that no mention of
the bond was made in the writ of injunction; that
he refused to hear the defendants' witnesses;
that he refused to dissolve the injunction upon a
bond which the defendants offered to give, all of
these do not show that the court was acting
outside of its jurisdiction. They simply show, if
they are true, that the court has committed
certain errors in exercising its jurisdiction, errors
which must be corrected by appeal."
In the case of Ivancich vs. Odlin (1 Phil. Rep.,
284), the court said at page 287: "The ground
upon which the second prohibition is sought is
that the attachment ordered by the court is not
such an attachment as is authorized by articles
424 et seq. of the Code of Civil Procedure of the
Philippine Islands, but on the contrary is an
attachment under a procedure not in force here,
although it is in force in the United States of
America in maritime cases, and that the
attachment, moreover, was levied without
affidavit, bond, or any of the securities
established by law whereby the owners of the
steamer can obtain reparation for any damages
which may be occasioned them by the unlawful
detention of the said steamer; and that the
procedure of the court below is devoid of all the
formal requisites established by law for the
levying of such attachments.
xxx xxx xxx
The judge, did not, therefore,
act without jurisdiction when directing the
attachment of the vessel in question, and
has not exceeded his jurisdiction. If the
excess of jurisdiction upon which the
argument was based consists in his
having levied the attachment without the
fulfillment of the necessary conditions and
without following the form prescribed by
some law of procedure applicable to the
case, it is our opinion that this error is not
such an excess of jurisdiction as can be
secured by prohibition, and the petitioner
has other means whereby this error or
procedure may be corrected or remedied.
Upon these grounds we decide that the
petition for a writ of prohibition must be
denied, with the costs to petitioner, and it
is so ordered.
In the case of Araneta vs. The Heirs of
Tranquilino Gustilo (2 Phil. Rep., 60), this court
said: "This is a petition for a writ of certiorari to
review the action of the Court of First Instance of
Occidental Negros in requiring a supersedeas
bond under section 144 of the Code of Civil
Procedure. It does not appear from the petition
what the amount involved in the litigation is, nor
on what sum that bond was fixed by the court,
but it is alleged that the bond is excessive. The
court below had jurisdiction to require the bond
as a condition of a stay of execution, and to fix its
amount. Assuming that the bond was excessive,
yet nothing is alleged in the petition which shows
that the court exceeded its jurisdiction in the
premises or committed any irregularity in its
proceedings in exercise thereof. The writ must
therefore be denied."
In the case of Springer vs. Odlin (3 Phil. Rep.,
344), the court said: "The court, on the 30th of
May, after hearing both parties, made an order
by which it was adjudged that the claim of Co-
Banco had a preference over the claim of
Springer and ordered the money in the custody
of the clerk to be believed to Co-Blanco, but
requiring him to execute a bond for the sum of
P400 with sureties for the protection of Springer
in case he appealed to the Supreme Court to
annul the order.
The plaintiff, Springer, alleges in his
application for certiorari that the Court of
First Instance acted without jurisdiction in
making this order of the 30th day of May,
1903; that not being a party in the cause
of the United States vs. Catalino Mortes,
he has no right to appeal nor has he any
plain, speedy, and adequate remedy from
the order; and further alleging that Co-
Banco had no lien upon the P259.50 in
dispute, either by attachment or by
execution; nor did the said Co-Blanco on
the date of the making of the order in his
favor have any right of any other character
upon said money.
If the Court of First Instance had
jurisdiction to render the judgment of the
13th day of May, 1903, in favor of Co-
Banco in the case of the United
States vs. Catalino Mortes, and in the
proceeding in which Springer intervened
resulting in the order of May 30, or if the
plaintiff, Springer, had any plain, speedy,
and adequate remedy by a bill of
exceptions, appeal, or otherwise from the
order of the 30th day of May, 1903, by
which the money in question was directed
to be paid to Co-Banco, then the
proceeding in certiorari will not lie.
In the case of Felizardo vs. Justice of the Peace
of Imus (3 Phil. Rep., 635), the court said:
"Attorneys Pineda and Escueta, on behalf of
Flaviano Felizardo and Francisca Felizardo,
upon the facts stated by their complaint, dated
April 4, 1904, and upon the ground that there
was no other speedy and adequate remedy in
the ordinary course of law, pray for an order
dissolving the attachment levied upon the
property of the petitioners, and that a writ issue
to the justice of the peace of Imus, requiring him
to absolutely refrain from all further proceedings
until a final decision is rendered upon the
complaint.
By intervening in the suit result in which
the attachment was levied, the parties
may avail themselves of all the legal
remedies provided for the defense of their
lawful rights, but cannot avail themselves
of the writ of prohibition for the purpose of
obtaining a discharge of attachment
complained of. The case is one which
pertains exclusively to the jurisdiction of
the judge who is trying it, and there is no
authority of law for interference with the
proceedings.
In the case of Rubert & Guanis vs. Sweeney (4
Phil. Rep., 473), the court said: "The court below
had jurisdiction of the subject matter of that suit
and of the parties thereto. It had power by law to
grant an injunction in the case and power to
dissolve it or modify it. There can be no doubt of
the correctness of these propositions, but it is
claimed by the plaintiff in this suit that the
stipulation made between the parties to the suit
below to the effect that the sheriff should hold the
money until the final judgment in that case,
deprived the court of jurisdiction to make the
order modifying the injunction and requiring to
sheriff to pay the money to the defendant Lo Shui
upon his furnishing a proper bond.
When section 516 of the Code of Civil
Procedure speaks of a tribunal exercising
functions which are without or in excess of
its jurisdiction, it covers those cases only
in which such tribunal acts without or in
excess of the jurisdiction conferred upon it
by law. It has no reference to cases where
it is claimed that such tribunal acts in
excess of jurisdiction which the parties
may have attempted by stipulation to
confer upon it, or in excess of a
jurisdiction to which the parties may by
stipulation have attempted to limit the
court. The fact that the judge may have
committed an error in disregarding the
stipulation of the parties has nothing to do
with the question of the jurisdiction which
by law the judge was authorized to
excess. If there was such error in the
action of the court below, it was an error
that must be corrected by appeal. An
action of prohibition cannot be maintained
in such cases. (Citing cases.) There is
nothing in the case of Yangco vs.
Rohde (1 Phil. Rep., 404), relied upon by
the plaintiff, in conflict with this rule. As
was stated in the case of Dy Chuan Leng
vs. Amber above cited, the writ of
prohibition was there granted upon the
ground that in no case where the fact of
marriage was denied did the Court of First
Instance have any jurisdiction to grant
temporary alimony.
In the case of Castaño vs. Lobinger (7 Phil. Rep.,
91), the court said: "The concrete questions
raised by the parties to these proceedings are (1)
whether or not the judge of the Court of First
Instance of Leyte had power to issue an
injunction against the justice of the peace of
Manila in an action pending in his court, and (2)
whether the judge of the said Court of First
Instance of Leyte could entertain a petition for a
writ of certiorari against the said justice of the
peace of the city of Manila.
xxx xxx xxx
The judge of the Court of First Instance of
Leyte had no jurisdiction over the judge of
the peace of the city of Manila, and were a
judge of the Court of First Instance
permitted to grant such extraordinary
remedies against a justice of the peace in
a district or province other than his own, it
would be a serious interference with the
proper administration of justice, and a
procedure relating to appeals from and
other remedies against the judgments of
inferior courts would be subverted. It
should be borne in mind that the
enforcement of the laws jurisdiction of the
various courts, concerns the interests of
the community at large.
The judge of the Court of First Instance of
Leyte had no power to take cognizance,
on appeal, of a case originally tried in the
justice court of the city of Manila, nor has
he the power to take cognizance of cases
that should ordinarily be tried in the Court
of First Instance of Manila, unless by
virtue of a special commission. Nor has he
the power to issue writs of injunction in
 connection wit other special and
extraordinary remedies sought from the
decisions of said justice of the peace.
In the case of Herman vs. Crossfield (7 Phil.
Rep., 259), the court said: "After the term at
which judgment was rendered, a Court of First
Instance made an order opening the case for the
introduction of additional evidence, the motion
therefore having been made and argued during
said term. Held, That such order was not void
because made after the close of said term and
that it could not be reviewed on certiorari."
The court at page 261 said: "Whether the order
made on the 14th of April was right or wrong is
not before us for decision. The court had
jurisdiction to decide the motion, even if it were a
motion for a new trial, a point which we do not
determine. If it decided it incorrectly, the plaintiff
who was the defendant in that case, had the right
to except to the order and, although he could not
bring the case here at once for decision because
that order was not a final judgment, yet he could
do so after final judgment had been entered and
could then have the order in question reviewed."
In the case of Somes vs. Crossfield (8 Phil. Rep.,
284), the action was one of certiorari. The court
said: "The plaintiff, in an action brought by
himself in the Court of First Instance of Manila,
made a motion for a preliminary injunction
restraining the defendants from selling certain
property upon execution. After a hearing upon
the motion, the court after saying that the plaintiff
was not entitled to the preliminary injunction,
made the following order:
"According, the petition for a
preliminary writ of prohibition is
denied, and it is hereby further
ordered that the proceeds of the
sales under the executions already
issued, and pending, either in this
court or in the hands of the sheriff
of the Province of Albay, be
deposited in this court, subject to
the further orders thereof, upon a
bond of P10,000 being filed by the
plaintiff to answer for any loss
resulting from the failure to apply
said proceeds as ordered in the
execution issued."
The plaintiff thereupon commenced this
original action of certiorari in this court,
claiming that the court below, in making
the order in question, exceeded its
jurisdiction. The defendants have
demurred to the complaint, and the case
is now before us for decision upon such
demurrer.
xxx xxx xxx
That the court below did not exceed its
jurisdiction in making that order is free
from doubt. (Rubert &
Guamis vs. Sweeney, 4 Phil. Rep., 473.)
In the case of Artacho vs. Jenkins (11 Phil. Rep.,
47), the court said at page 48: "It is alleged in the
complaint that, in ordering the issue of a second
execution, the defendant judge exceeded his
jurisdiction and that such order was absolutely
void. This contention cannot be sustained. The
court of Pangasinan had jurisdiction of the case
of Tan Chu Chay against the plaintiff Artacho,
jurisdiction both of the parties and of the subject
matter, and the mere fact that some creditor of
Tan Chu Chay had attached the debt due from
Artacho to the former did not oust that court from
its jurisdiction to proceed with the case. (See
among other cases decided by this court: Rubert
& Guamis vs.Sweeney, 4 Phil. Rep., 473;
Somes vs. Crossfield, 8 Phil. Rep., 284; and
Yambert vs. McMicking, 10 Phil. Rep., 95.)"
In the case of Lagahit vs. Nengasca and
Wislizenus (12 Phil. Rep., 423), the action was
one of certiorari. The action in the court below
was one over a contested election. The court,
speaking through Mr. Chief Justice Arellano,
said: "Whether or not the below acted rightly in
considering the other candidate as the 'adverse
party' and the party defeated in the proceedings
is not a matter on which action may be taken by
this court in the exercise of its appellate
jurisdiction. It is evident that it was a matter
within the jurisdiction of the court below to tax the
'adverse party' with the costs. The remedy
of certiorari is, therefore, not available, as the
purpose thereof is to prevent and remedy extra
limitations of jurisdiction and authority, not to
correct errors in decisions or mistakes of law,
which are proper subjects for appeal and
cassation.
The first finding is perfectly in accordance with
the provision of the law. The court below in
deciding upon the protest against the contested
election for president of Aloguisan said: 'The
court believes that the majority of the electors at
the present election voted in favor of the
petitioner, Simeon Nengasca.' Whether or not
this opinion of the court below is proper cannot
be the subject or review by this court. It is a
decision which is within the jurisdiction of the
lower court as conferred by law.
As a result of this opinion of the court
below, and in compliance with the
provision of the law, the judgment should
have been: "Let a writ of mandamus be
issued against the board of canvassers
requiring the board to correct its canvass
in accordance with the facts as found."
For the reason above set forth we decide
that the order of the Court of First Instance
of Cebu recognizing Nengasca as
president-elect at the elections in the
municipality of Aloguisan, in said province,
should be, and is hereby annulled for the
reason that it is not within the jurisdiction
of the said court to recognize or proclaim
a president in a contested election.
The action of Ocampo vs. Jenkins (14 Phil. Rep.,
681), was one of prohibition. It was held there:
"The fact that an appeal is pending in the
Supreme Court in a criminal case for libel, under
Act No. 277 of the Philippine Commission, does
not prevent the prosecution of a civil action for
damages under the same Act, which clearly
recognizes two distinct actions upon the theory
that there are two separate and distinct injuries
received from the crime, one by the State and
the other by the individual damaged by the libel.
In such a case, therefore, a petition for a writ of
prohibition enjoining the prosecution of the civil
suit while the criminal appeal is pending will be
denied."
There are certain cases like Lagahit vs.
Nengasca and Wislizenus above cited wherein
the court has held that certiorari would lie. In the
case of Encarnacion vs. Ambler (3 Phil. Rep.,
623), the court said at page 624: "In the case
of Eugenio Bonaplata vs. Byron S. Ambler et al.
(2 Phil. Rep., 392), which involved the validity of
the appointment of Antonio Torres as receiver of
the estate of Tan-Tonco in the said cause
of Sergia Reyes vs. Fulgencio Tan-Tonco, it was
held by this court that section 174 of the Code of
Civil Procedure, under which the appointment of
the receiver was made, did not authorize the
appointment; that no property belonging to
Fulgencio Tan-Tanco was the subject of litigation
in the case of Sergia Reyes vs. Tan-Tonco; nor
did the case fall within either of the other
subdivisions of section 174; that the placing of
the property of the defendant in said cause in the
hands of the receiver for the purpose, after
praying fees and expense of distributing the
property among the creditors, was practically a
bankruptcy proceeding; that there are no
bankruptcy laws in force in these Islands; that
bankruptcy proceedings have been expressly
forbidden by section 524 of the Code of
Procedure in Civil Actions until a law shall be
enacted; and that consequently the Court of First
Instance acted in excess of its jurisdiction in
appointing Antonio Torres receiver in said action.
We adhere to the views expressed in the
decision of this court in the said case of Eugenio
Bonaplata vs. Byron S. Amber et al."
In the case of United States vs. Siatong (5 Phil.
Rep., 463), the court said: "Without its being our
purpose to decide if the remedy
or certiorari invoked by the provincial fiscal is
proper in this case or not, we cannot admits his
petition on account of its not being made in due
form. The remedy of certiorari should be
petitioned for by formal complaint having all of
the requirements prescribed by the Code of
Procedure in Civil Actions, and the petition
formulated by the fiscal in the form of a brief in a
criminal cause does not come up to these
requirements, for which reason it is set aside in
accordance with law."
In the case of Rocha & Co. vs. Crossfield (6 Phil.
Rep., 355), the court, on page 358, after quoting
the section of the Code of Civil Procedure
relating to cases in which a receiver may be
appointed, said: "The case at bar does not fall
within any of the provisions of this section. There
is no allegation in the complaint, as has been
before stated, that the plaintiff is the owner of any
of the property of Rocha & Co., nor is there any
allegation that he has any lien thereon, nor are
there any facts alleged in the complaint from
which it could be inferred that he was the owner
of such property of had any lien thereon. On the
contrary, from the facts that are alleged in the
complaint it would seem that his separation from
the partnership of Carman & Co. left that
partnership as a going concern and did not
dissolve it. The effect of the provisions of the
articles of partnership which are referred to in the
complaint is that after the withdrawal of any
partner the remaining partners became the
owner of all the assets of the partnership and he
became a general creditor of the partnership.
xxx xxx xxx
The case not being one in which a
receiver could be appointed, the order
making such appointment was void and
was beyond the jurisdiction of the court,
although that court had jurisdiction of the
 main action has been settled adversely to
the defendants in this suit by the case
of Bonaplata vs. Amber (2 Phil. Rep., 392;
see also Encarnacion vs. Amber, 3 Phil.
Rep., 623; Findlay & Co. vs. Amber, 3
Phil. Rep., 690).
That certiorari is the proper remedy in
such cases was decided in the case
of Blanco vs. Amber (3 Phil. Rep., 358,
735).
In the argument in this court it was
claimed that this extraordinary remedy
would not, lie because the plaintiff, Rocha
& Co., had a right to appeal from the order
appointment a receiver, although that
appeal could not be taken until a final
judgment had been entered in the case.
That argument is answered by what is
said in the case of Yangco vs. Rohde (1
Phil. Rep., 404)."
In the case of Bañes vs. Cordero (13 Phil. Rep.,
466), the court said: "And, if the jurisdiction has
not been exceeded, there is not nor could there
be any legal ground for the issuance of the writ
of certiorari, because these proceedings can only
exclusively be granted to remedy abuses
committed in the exercise of a power or
jurisdiction. Sections 217 and 514 of the Code of
Civil Procedure providing for such relief
unequivocally and specifically refer to the act of
exceeding or going beyond the jurisdiction; and
this court has repeatedly held that, in order
that certiorari may issue, it is absolutely
necessary to show that the respondent has
exceeded his power or jurisdiction. (In
re Prautch, 1 Phil. Rep., 132; De los
Reyes vs. Roxas, 1 Phil. Rep., 625;
Springer vs. Odlin, 3 Phil. Rep., 344.)"
In the case of Arzadon vs. Chanco (14 Phil.
Rep., 710); the court decided as follows:
"Certiorari is the proper remedy whenever an
inferior tribunal, board, or officer exercising
judicial functions has exceeded its or his
jurisdiction, and no appeal, nor any plain,
speedy, and adequate remedy exists to correct
such excess or extra limitation. (Secs. 217 and
514, Code of Civil Procedure). The jurisdiction of
Courts of First Instance to hear and decide
election contests is exclusive and final (sec. 27
of the Election Law); consequently, decisions
rendered by them in the exercise of said
jurisdiction cannot be reviewed by means of an
appeal. As they are not appealable and as
against them no other plain, speedy and
adequate remedy exists, it is evident that they
constitute a proper subject for the extraordinary
remedy of certiorari. Therefore, if the court below
has exceeded his jurisdiction in rendering the
above-cited decision it is proper to annul and the
same by virtue of said proceedings."
In that case the Court of First Instance made the
following order: "By the foregoing, Silvestre
Arzadon appears to have violated the provisions
of the Election Law which prohibit every action,
influence, and promise of any kind, for the
purpose of obtaining votes. These should
indicate the free will of the voters, and for such
infractions his election for the office of municipal
president of the town of Badoc must be
considered illegal.
Therefore, it is declared by the court that
the election of Silvestre Arzadon for the
office of president, held on the 15th day of
November last in the municipality of
Badoc, Ilocos Norte, was not legal, and
another special election for the said office
must be held at the expense of the said
Arzadon who shall not then be eligible,
and any vote entered in his favor shall not
count; the costs and expenses of these
proceedings shall also be charged to him.
In respect to that order the Supreme Court said:
"It is our opinion that he has so exceeded his
jurisdiction. The jurisdiction of Courts of First
Instance hear election protests is conferred upon
them by the aforesaid section 27 of the Election
Law, and neither the said section, nor any other
legal provision, authorizes the court, in deciding
such protests, to declare ineligible in future
elections the person against whom the protests
was presented, nor to sentence him to pay the
expenses of the new election to be held. Hence,
the court below had no power to enter such
rulings in the case as gave rise to these
proceedings, and in consequence there of said
rulings must be entirely annulled."
See also Topacio vs. Paredes (23 Phil. Rep.,
238).
The case of Yangco vs. Rohde (1 Phil. Rep.,
404) was one relating to the allowance of
alimony pending the trial of an action for a
divorce. The court below allowed alimony
although the answer denied the marriage.
Prohibition was brought in this court, and after
hearing, the lower court was enjoyed from
levying and collecting alimony. The court said at
page 414: "The court below had jurisdiction to try
the divorce suit, but he was without jurisdiction to
grant alimony when the right to claim alimony
had not accrued in accordance with the
provisions of the Civil Code. This code only
grants the right to alimony to a wife. This status
not appearing by a final judgment, the court is
without jurisdiction to make any order in the
matter."
See also U. S. vs. Crossfield (24 Phil. Rep.,
321); Young Wampo vs. Collector of
Customs (id., 431).
The reasons given in these cases last cited for
the allowance of the writ of prohibition are
applicable only to the class of cases with which
the decisions deal and do not in any way militate
against the general proposition herein asserted.
Those which relate to election contests are
based upon the principle that those proceedings
are special in their nature and must be strictly
followed, a material departure from the statute
resulting in a loss, or in an excess, of jurisdiction.
The cases relating to receivers are based, in a
measure, upon the same principle, the
appointment of a receiver being governed by the
statute; and in part upon the theory that the
appointment of a receiver in an improper case is
in substance a bankruptcy proceeding, the taking
of which is expressly prohibited by law. The case
relative to the allowance of alimony pendente
lite when the answer denies the marriage is more
difficult to distinguish. The reasons in support of
the doctrine laid down in that case are given in
the opinion in full and they seem to place the
particular case to which they refer in a class by
itself.
It is not light thing that the lawmakers have
abolished writs of error and with
them certiorari and prohibition, in so far as they
were methods by which the mere errors of an
inferior court could be corrected. As instrument to
that end they no longer exist. Their place is now
taken by the appeal. So long as the inferior court
retains jurisdiction its errors can be corrected
only by that method. The office of the writ
of certiorari has been reduced to the correction
of defects of jurisdiction solely and cannot legally
be used for any other purpose. It is truly an
extraordinary remedy and, in this jurisdiction, its
use is restricted to truly extraordinary cases—
cases in which the action of the inferior court is
wholly void; where any further steps in the case
would result in a waste of time and money and
would produce no result whatever; where the
parties, or their privies, would be utterly
deceived; where a final judgment or decree
would be nought but a snare and a delusion,
deciding nothing, protecting nobody, a judicial
pretension, a recorded falsehood, a standing
menace. It is only to avoid such results as these
that a writ of certiorari is issuable; and even here
an appeal will lie if the aggrieved party prefers to
prosecute it.
A full and thorough examination of all the
decided cases in this court touching the question
of certiorari and prohibition fully support the
proposition already stated that, where a Court of
First Instance has jurisdiction of the subject
matter and of the person, its decision of any
question pertaining to the cause, however
erroneous, cannot be reviewed by certiorari, but
must be corrected by appeal.
It must be remembered that the people of the
Philippine Islands may go to the Court of First
Instance to require a public officer to perform his
duties; and they have the right to have that court
pass upon the whole case and upon every phase
thereof and upon every question arising therein.
This right is conferred by statute. It would be
respected by the courts as well as by others. It
would be manifestly illegal, as it would be
flagrantly unjust, so long as the court acts within
its jurisdiction, to withdraw from the Court of First
Instance the consideration of that caseunder
color of any proceeding whatever. As long as the
court is considering that case, its right and the
rights of the litigants to continue to final
determination are inviolate.
The fact that another action may have been
pending involving the same subject matter and
even between the same parties, which was not
the fact in this case, does not touch the
jurisdiction of the court to act.
We cannot leave the case without suggesting
that the applicant herein, before coming to this
court, should, as the better practice, have made
the proper application to the Court of First
Instance for a dissolution or modification of the
mandatory injunction, and thereby given that
court an opportunity, after full argument of
counsel and citation of authorities, to pass upon
the question of his power and jurisdiction and,
even, the correctness and propriety of his action,
should power and jurisdiction be found by the
court to exist. Questions which Courts of First
Instance are required by law to decide should not
be summarily taken from them and presented to
this court without first giving them an opportunity
of deliberately passing on such questions
themselves. The most natural and proper thing to
do, when such court, in the judgment of one of
the parties, has issued an injunction erroneously,
is immediately to call the attention of that court to
its supposed error and ask for its correction. The
strongest reasons of policy and courtesy if not
actual legal rights itself, require such procedure;
and we discourage all attempts to come to this
court upon questions which a court below is
entitled to decide without first invoking its
judgment thereon. There are special reasons for
following this course in cases where the court
has acted ex parte.
The writ is denied and the proceeding is
dismissed. So ordered.
Arellano, C.J., Torres and Mapa, JJ., concur.
Trent, J., concurs in the result.
G.R. No. L-6287 December 1, 1911
THE MANILA RAILROAD COMPANY, plaintiff-
appellee,
vs.
THE ATTORNEY-GENERAL, representing the
Insular Government, et al., defendants-
appellants.
W. A. Kincaid and Thomas L. Hartigan, for
appellant.
Antonio Constantino, for appellee.
MORELAND, J.:
This is an appeal from a judgment of the Court of
First Instance of the Province of Tarlac
dismissing the action before it on motion of the
plaintiff upon the ground that the court had no
jurisdiction of the subject matter of the
controversy.
The question for our consideration and decision
is the power and authority of a Court of First
Instance of one province to take cognizance of
an action by a railroad company for the
condemnation of real estate located in another
province.
In the month of December, 1907, the plaintiff
began an action in the Court of First Instance of
the Province of Tarlac for the condemnation of
certain real estate, stated by the plaintiff in his
complaint to be located in the Province of Tarlac.
It is alleged in the complaint that the plaintiff is
authorized by law to construct a railroad line
"from Paniqui to Tayug in the Province of Tarlac,"
and it is for the purpose of condemning lands for
the construction of such line that this action is
brought. The land sought to be condemned is
69,910 square meters in area. The complaint
states that before beginning the action the
plaintiff had caused to be made a thorough
search in the office of the registry of property and
of the tax where the lands sought to be
condemned were located and to whom they
belonged. As a result of such investigations the
plaintiff alleged that the lands in question were
located in the Province of Tarlac. The defendants
in one action all of the different owners of or
persons otherwise interested in the 69,910
square meters of land to be condemned. After
filing and duly serving the complaint the plaintiff,
pursuant to law and pending final determination
of the action, took possession of and occupied
the lands described in the complaint, building its
line and putting the same in operation. During
the progress of the action a commission to
appraise the value of the lands was duly
appointed, which, after taking oral testimony,
amounting to 140 typewritten pages when
transcribed, and after much labor and prolonged
consideration, made a report consisting of about
55 typewritten pages, resolving the question
submitted to it. On the coming in of this report the
court, by order entered the 27th of September,
1909, set the 11th day of October following for
the hearing thereon.
On the 4th day of October the plaintiff gave
notice to the defendants that on the 9th day of
October a motion would be made to the court to
dismiss the action upon the ground that the court
had no jurisdiction of the subject matter, it having
just been ascertained by the plaintiff that the land
sought to be condemned was situated in the
Province of Nueva Ecija, instead of the Province
of Tarlac, as alleged in the complaint. This
motion was heard and, after due consideration,
the trial court dismissed the action upon the
ground presented by the plaintiff. This appeal is
taken from said judgment of dismissal.
The decision of the learned trial court was based
entirely upon the proposition, already referred to,
that in condemnation proceedings, and in all
other proceedings affecting title to land, the Court
of First Instance of a given province has no
jurisdiction, power or authority where the land is
located in another province, and that no such
power, authority, or jurisdiction can be conferred
by the parties.
Sections 55 and 56 of Act No. 136 of the
Philippine Commission confer jurisdiction upon
the Courts of First Instance of these Islands with
respect to real estate in the following
words:1awphi1.net
 SEC. 55. Jurisdiction of Courts of First
Instance. — The jurisdiction of Courts of
First Instance shall be of two kinds:
1. Original; and
2. Appellate.
SEC. 56. Its original jurisdiction. — Courts
of First Instance shall have original
jurisdiction: .
xxx xxx xxx
2. In all civil actions which involve the title
to or possession of real property, or any
interest therein, or the legality of any tax,
impost, or assessment, except actions of
forcible entry into, and detainer of lands or
buildings, original jurisdiction of which is
by this Act conferred upon courts of justice
of the peace.
It is apparent from the wording of these sections
that it was the intention of the Philippine
Commission to give to the Courts of First
Instance the most perfect and complete
jurisdiction possible over the subject matters
mentioned in connection therewith. Such
jurisdiction is not made to depend upon locality.
There is no suggestion of limitation. The
jurisdiction is universal. Nor do the provisions of
sections 48, 49, 50, 51, and 52 at all militate
against the universality of that jurisdiction. Those
provisions simply arrange for the convenient and
effective transaction of business in the courts
and do not relate to their power, authority, or
jurisdiction over the subject matter of the action.
While it is provided in these sections that a
particular court shall hold its sessions in any
other province (except under certain specified
conditions), the assertions is nevertheless true
that the jurisdiction of a particular court is in no
wise and in no sense limited; and it is nowhere
suggested, much less provided, that a Court of
First Instance of one province, regularly sitting in
said province, may not under certain conditions
take cognizance of an action arising in another
province or of an action relating to real estate
located outside of the boundaries of the province
to which it may at the time be assigned.
Certain statutes confer jurisdiction, power, or
authority. Other provide for the procedure by
which that power or authority is projected into
judgment. The one class deals with the powers
of the Court in the real and substantive sense;
the other with the procedure by which such
powers are put into action. The one is the thing
itself; the other is the vehicle by which the thing
is transferred from the court to the parties. The
whole purpose and object of procedure is to
make the powers of the court fully and
completely available for justice. The most perfect
procedure that can be devised is that which gives
opportunity for the most complete and perfect
exercise of the powers of the court within the
limitations set by natural justice. It is that one
which, in other words, gives the most perfect
opportunity for the powers of the courts to
transmute themselves into concrete acts of
justice between the parties before it. The
purpose of such a procedure is not to restrict the
jurisdiction of the court over the subject matter,
but to give it effective facility in righteous action.
It may be said in passing that the most salient
objection which can be urged against procedure
to-day is that it so restricts the exercise of the
court's powers by technicalities that the part of its
authority effective for justice between the parties
is many times an inconsiderable portion of the
whole. The purpose of procedure is not to thwart
justice. Its proper aim is to facilitate the
application of justice to the rival claims of
contending parties. It was created not to hinder
and delay but to facilitate and promote the
administration of justice. It does not constitute
the thing itself which courts are always striving to
secure to litigants. It is designed as the means
best adopted to obtain that thing. In other words,
it is a means to an end. It is the means by which
the powers of the court are made effective in just
judgments. When it loses the character of the
one and takes on that of the other the
administration of justice becomes incomplete and
unsatisfactory and lays itself open to grave
criticism.
The proper result of a system of procedure is to
insure a fair and convenient hearing to the
parties with complete justice between them as a
result. While a fair hearing is as essential as the
substantive power of the court to administer
justice in the premises, and while the one is the
natural result o the other, it is different in its
nature and relates to a different thing. The power
or authority of the court over the subject matter
existed and was fixed before procedure in a
given cause began. Procedure does not alter or
change that power or authority; it simply directs
the manner in which it shall be fully and justly
exercised. To be sure, in certain cases, if that
power is not exercised in conformity with the
provisions of the procedural law, purely, the court
attempting to exercise it loses the power to
exercise it legally. This does not mean that it
loses jurisdiction of the subject matter. It means
simply that he may thereby lose jurisdiction of the
person or that the judgment may thereby be
rendered defective for lack of something
essential to sustain it. There is, of course, an
important distinction between person and subject
matter are both conferred by law. As to the
subject matter, nothing can change the
jurisdiction of the court over diminish it or dictate
when it shall attach or when it shall be removed.
That is a matter of legislative enactment which
none but the legislature may change. On the
other hand, the jurisdiction of the court over the
person is, in some instances, made to defend on
the consent or objection, on the acts or
omissions of the parties or any of them.
Jurisdiction over the person, however, may be
conferred by consent, expressly or impliedly
given, or it may, by an objection, be prevented
from attaching or removed after it has attached.
In the light of these observations, we proceed to
a consideration of those provisions of the law
which the plaintiff claims are decisive of his
contention that a Court of First Instance of one
province has no jurisdiction of the subject matter
of an action by a railroad company to condemn
lands located in another province. The plaintiff
relies for the success of its cause upon section
377 of the Code of Civil Procedure and upon the
special laws relating to the condemnation of
lands railroad corporations. We take up first the
section of the Code of Civil Procedure referred
to.
The fact that such a provision appears in the
procedural law at once raises a strong
presumption that it has nothing to do with the
jurisdiction of the court over the subject matter. It
becomes merely a matter of method, of
convenience to the parties litigant. If their
interests are best subserved by bringing in the
Court Instance of the city of Manila an action
affecting lands in the Province of Ilocos Norte,
there is no controlling reason why such a course
should not be followed. The matter is, under the
law, entirely within the control of either party. The
plaintiff's interests select the venue. If such
selection is not in accordance with section 377,
the defendant may make timely objection and, as
a result, the venue is changed to meet the
requirements of the law. It is true that this court
has more than once held than an agreement to
submit a controversy to a court which, under the
procedural law, has not been selected as the
appropriate court, generally speaking, to hear
such controversy, can not be enforced. This
means simply that either party to such a contract
may ignore it at pleasure. The law will not compel
the fulfillment of an agreement which deprives
one of the parties to it of the right to present his
cause to that court which the law designates as
the most appropriate. But the principle asserted
in the cases which hold thus is no authority for
the proposition that two persons having a
controversy which they desire to have decided by
a competent tribunal may not, by appropriate
procedure, submit it t any court having
jurisdiction in the premises. In the one case the
relation is contractual to be enforced over the
objection of one of the contracting parties. In the
other relation is not contractual because not
between the parties; but, rather, between the
parties and the court. In the one case it is a
contract to be enforced; in the other, a condition
to be met.
This being so, we say again, even though it be
repetition, that after jurisdiction over real property
in the Islands has been conferred so generally
and fully by Act No. 136, it is not to
be presumed or construed that the legislature
intended to modify or restrict that jurisdiction
when it came to frame a Code of Civil Procedure
the object of which is to make that jurisdiction
effective. Such modification or restriction should
be held only by virtue of the clearest and most
express provisions.
The wording of that section should be carefully
examined. It reads as follows:
SEC. 377. Venue of actions. — Actions to
confirm title to real estate, or to secure a
partition of real estate, or to cancel clouds,
or remove doubts from the title to real
estate, or to obtain possession of real
estate, or to recover damages for injuries
to real estate, or to establish any interest,
right, or title in or to real estate, or actions
for the condemnation of real estate for
public use, shall be brought in the
province were the lands, or some part
thereof, is situated; actions against
executors, administrators, and guardians
touching the performance of their official
duties, and actions for account and
settlement by them, and actions for the
distribution of the estates of deceased
persons among the heirs and distributes,
and actions for the payment of legacies,
shall be brought in the province in which
the will was admitted to probate, or letters
of administration were granted, or the
guardian was appointed. And all actions
not herein otherwise provided for may be
brought in any province where the
defendant or any necessary party
defendant may reside or be found, or in
any province where the plaintiff, except in
cases were other special provision is
made in this Code. In case neither the
 plaintiff nor the defendant resides within
the Philippine Islands and the action is
brought to seize or obtain title to property
of the defendant within the Philippine
Islands and the action is brought to seize
or obtain title to property of the defendant
within the Philippine Islands, the action
shall be brought in the province where the
property which the plaintiff seeks to seize
or to obtain title to is situated or is
found: Provided, that in an action for the
foreclosure of a mortgage upon real
estate, when the service upon the
defendant is not personal, but is by
publication, in accordance with law, the
action must be brought in the province
where the land lies. And in all cases
process may issue from the court in which
an action or special proceeding is
pending, to be enforced in any province to
bring in defendants and to enforce all
orders and decrees of the court. The
failure of a defendant to object t the venue
of the action at the time of entering his
appearance in the action shall be deemed
a waiver on his part of all objection to the
place or tribunal in which the action is
brought, except in the actions referred to
in the first sixteen lines of this section
relating to real estate, and actions against
executors, administrators, and guardians,
and for the distribution of estates and
payment of legacies.
Leaving out of discussion for the moment actions
and proceedings affecting estates of deceased
persons, they resting upon a different footing
being governed by special laws, it is to be
observed that the section contains no express
inhibition against the court. It provides simply
that certain actions affecting real estate "shall be
brought in the province where the land, or some
part thereof, is situated." The prohibition here is
clearly directed against the one who begins the
action and lays the venue. The court, before the
action is commenced, has nothing to do with
either. The plaintiff does both. Only when that is
done does the section begin to operate
effectively so far as the court is concerned. The
prohibition is nor a limitation on the power of the
court but on the rights of the plaintiff. It is not to
take something from the court but to grant
something to the defendant. Its wording clearly
deprives the court of nothing which it had, but
gives the defendant, as against the plaintiff,
certain rights which he did not have. It
establishes a relation not between the court and
the subject ,after, but between the plaintiff and
the defendant. It relates not to jurisdiction but to
trial. It touches convenience, not substance. It
simply gives to defendant the unqualified right, if
he desires it, to have the trial take place where
his land lies and where, probably, all of his
witnesses live. Its object is to secure to him a
convenient trial. If it had been the intention of the
law-makers by section 377 to put a limitation to
the jurisdiction of the court, how easy it would
have been to say so squarely. "No Court of First
Instance shall have or take jurisdiction of an
action touching title to or interest in real property
lying wholly in a province other than that in which
such court is authorized to hold sessions," or a
similar provision, would have been sufficient.
This would have been clearly a limitation on the
court rather than the party. There would have
been no room for doubt. The legislature,
however, did not do so. It, rather, chose to use
language which imposes a limitation on the rights
of the plaintiff.
In saying this we do not desire to force
construction.1awphil.net Courts should give to
language its plain meaning, leaving the
legislature to take care of the consequences. The
Philippine Commission having, in fullest phrase,
given the Courts of First Instance unrestricted
jurisdiction over real estate in the Islands by Act
No. 136, we are of the opinion that the
jurisdiction ought not to be held to be withdrawn
except by virtue of an Act equally express, or so
clearly inconsistent as to amount to the same
thing. The fact that section 377 is not such Act,
that it is found in code of Procedure rather than
in the substantive law, that it deals with the
relative procedural rights of parties rather than
the power of the court, that it relates to
the place rather than to the thing, that it
composes the whole of a chapter headed simply
"Venue," lead us to hold that the Court of First
Instance of Tarlac had full jurisdiction of the
subject matter of this action at the time when it
was dismissed.
That it had jurisdiction of the persons of all the
parties is indisputable. That jurisdiction was
obtained not only by the usual course of practice
— that is, by the process of the court — but also
by consent expressly given, is apparent. The
plaintiff submitted itself to the jurisdiction by
beginning the action. (Ayers vs. Watson, 113
U.S., 594; Fisher vs.Shropshire, 147 U.S., 133.)
The defendants are now in this court asking that
the action be not dismissed but continued. They
are not only nor objecting to the jurisdiction of the
court but, rather, are here on this appeal for the
purpose of maintaining that very jurisdiction over
them.
Nor is the plaintiff in any position to asked for
favors. It is clearly guilty of gross negligence in
the allegations of its complaint, if the land does
not lie in Tarlac as it now asserts. It alleged in its
complaint:
4. That, according to the information
secured after a minute investigation in the
offices of the land registry and of the land-
tax record of the municipalities within
whose jurisdiction lie all the parcels
composing the tract of land in question,
the owners and occupants of the same,
with their names as they appear on the
plan, are as follows.
At the time it commenced the action it was
possessed of every fact which a complete
knowledge of the location of the lands sought to
be condemned required. It had the map of its
entire line from Paniqui to Tayug, showing
theprovinces and the various municipalities
through which it runs. Not only that: Before
beginning its action it had to know the name of
every necessary defendant, the land he owned,
and the extent of that portion to be condemned.
The investigation required to ascertain these
facts would of necessity force into plaintiff's mind
the knowledge required to bring the action in the
proper court. That the plaintiff at the time it
commenced this action did not know in what
province its proposed stations and terminals
were is difficult to believe. That it did not know in
what province the land lay which it was about to
make the subject of so important a proceeding is
still more difficult to believe. In spite of all this,
however, it deliberately laid the venue in a
province where no part of the land lay, took
possession of the land in controversy,
constructed its line, switches, and stations, and
after nearly two years of litigation, accompanied
with great trouble to the court and trouble and
expense to the parties, calmly asks the dismissal
of the case for the reason that it did not know
where its own railroad was located. Under such
circumstances a dismissal of the action over the
objection of the defendants ought not to be
permitted expect upon absolute necessity and
then only on payment of the costs and expenses
of the defendants and of the actin.
(Ayers vs. Watson and
Fisher vs.Shropshire, supra.)
There is no equitable ground, then, upon which
the plaintiff may claim that it has not yielded itself
to the jurisdiction of the court. Nor, as we have
seen, is there a legal ground. As we have
already said, the plaintiff, having brought the
action, of necessity submitted itself to the
jurisdiction of the court. It took advantage of the
situation it itself created to take possession of the
lands described in the complaint, construct its
lines, switches, stations, yards and terminals,
and to carry the cause through two years of
expensive litigation. It now attempts to make all
this go for naught alleging its own negligence as
a reason for such attempt. (Ayers vs. Watson
and Fisher vs. Shropshire, supra.)
While the latter part of section 377 provides that
"the failure of a defendant to object to the venue
of the action at the time of entering his
appearance in the action shall be deemed a
waiver on his part of all objection to the place or
tribunal in which the action is brought," except, a
month other things, in actions affecting real
estate, we apprehend that it was not intended
that a defendant can not waive such objection in
such excepted cases. Nor we do believe that
such provision is controlling in this case. In the
first place, the application is restricted to "the
time of entering his appearance in the action." It
might well have been in the mind of the
lawmakers that, at the time of entering his
appearance in the action, the defendant would
not ordinarily be fully informed of all the facts of
the case, at least not sufficiently to warrant his
being held to a waiver of important rights;
whereas, later in the cause, as when he files his
answer or goes to trial, being fully informed, he
might justly be held to have waived his right to
make such objection. for this reason it might well
be that the Legislature purposely refrained from
extending the time for his protection beyond the
"time of entering his appearance in the action."
Moreover, there is, in said clause, no prohibition
against an express waiver of his rights by the
defendant. The general rule of law is that a
person may renounce any right which the law
gives unless such renunciation is expressly
prohibited or the right conferred is of such a
nature that its renunciation would be against
public policy. This right of renunciation is so
thoroughly established, and was at the time of
the enactment of the Code of Civil Procedure,
that its exercise by a defendant in relation to the
venue of the action will not be held to have been
abridged by section 377 without very clear
provision therein to that effect. There is no part of
that section clear enough to warrant such a
holding. Even though the terms of said section
were much clearer than they are in this respect,
we should still hold, if they were much short of
express, that the right of renunciation is not
abridged, founding ourselves not only upon the
principles already laid down but also upon the
proposition of general law embodied in section
294 of the code of Civil Procedure which
provides that:
 When a statute or instrument is equally
susceptible of two interpretations, one in
favor of natural right and the other against
it, the former is to be adopted.itc-alf
Moreover, it should be noted that this prohibition,
if it be such, against waiver refers exclusively to
the defendant. The plaintiff is given no rights
respecting it. Yet it is the plaintiff who is here
calling for the application of the provision even
against the declared will of the person who is
expressly named as the sole beneficiary. We will
not by interpretation extend this provision so as
to contravene the principles of natural rights. We
will not construed it so as to included in its terms
nor named as its beneficiary. But even if the
plaintiff were entitled to invoke the aid of the
provision he is estopped from so doing.
(Wanzer vs. Howland, 10 Wis., 7;
Babcock vs. Farewell, 146 Ill. App., 307;
White vs. Conn. Mutual Life Ins. Co., 4 Dill
(U.S.), 183; Shuttle vs. Thompson, 15 Wall., 159;
Beecher vs. Mill Co., 45 Mich., 103;
Tomb vs. Rochester R. R. Co., 18 Barb., 585;
Ferguson vs. Landram, 5 Bush (Ky.), 230;
State vs.Mitchell, 31 Ohio State, 592;
Counterman vs. Dublin, 38 Ohio State, 515;
McCarthy vs. Lavasche, 89 Ill., 270;
Ricketts vs. Spraker, 77 Ind., 371;
Strosser vs. City of Fort Wayne, 100 Ind., 443).
Section 333 of the Code of Civil Procedure
reads:
Conclusive presumptions. — The
following presumptions or deductions,
which the law expressly directs to be
made from particular facts, are deemed
conclusive:
1. Whenever a party has, by his own
declaration, act, or omission, intentionally
and deliberately led another to believe a
particular thing true, and to act upon such
belief, he can not, in any litigation arising
out of such declaration, act, or omission,
be permitted to falsity it.
(Rodriguez vs. Martinez, 5 Phil. Rep., 67; 69;
Municipality of Oas vs. Roa, 7 Phil. Rep., 20, 22;
Trinidad vs. Ricafort et al., 7 Phil. Rep., 449, 453;
Macke et al vs. Camps, 7 Phil. Rep., 553, 555.)
The fact is, there are very few rights which may
not be renounced, expressly or impliedly.
(Christenson vs.Charleton, 34 Atl., 226, 227, 69
Vt., 91; Donahue vs. Windsor County Ins. Co.,
56 Vt., 91; Donahaue vs. Windsor Ins. co., 33
Atl., 902, 904, 66 Conn., 21, 40;
Fitzpatrick vs. Hartford Life & Annuity Ins. Co., 56
Conn., 116, 134, 17 Atl., 411, 7 Am. St. Rep.,
288; Lewis vs. Phoenix Mut. Life Ins. Co., 44
Conn., 72, 91; State vs. Hartley, 52 Atl., 615,
617, 75 Conn., 104; First Nat. Bank vs. Hartford
L. & A. Ins. Co., 45 Conn., 22, 44;
Johnson vs. Schar, 70 N.W., 838, 839, 9 S. D.,
536; Corey vs. Bolton, 63 N.Y., Supp., 915, 917,
31 Misc. Rep., 138; Mason's Supply
Co. vs. Jones, 68 N. Y. Supp., 806, 809, 58 App.
Div., 231; Monroe Waterworks Co. vs. City of
Monroe, 85 N.W., 685, 688, 100 Wis., 11;
Fraser vs. Aetna Life Ins. Co., 90 N.W., 476, 481,
114 Wis., 510; Cedar Rapids Water
Co. vs. Cedat Rapids, 90 N.W., 746, 749, 117
Iowa, 250; Kennedy vs. Roberts, 75 N.W., 363,
366, 105 Iowa, 521; Shaw vs. Spencer, 100
Mass., 382, 395, 97 Am. Dec., 107, 1 Am. Rep.,
115; West vs. Platt, 127 Mass., 367, 367, 372;
Fulkerson vs. Lynn, 64 Mo. App., 649, 653;
Michigan Savings & Loan Ass'n. vs. Missouri, K
& T. Trust Co., 73 Mo. App., 161, 165;
Perin vs. Parker, 18 N. E., 747, 748, 126 Ill., 201,
2 L.R.A., 336, 9 Am. St. Rep., 571;
Keller vs. Robinson & Co., 38 N. E., 1072, 1075,
152 Ull. 458; Star Brewery Co. vs. Primas, 45
N.E., 145, 148, 163 Ill., 652; United Firemen's
Ins. Co. vs. Thomas (U.S.), 82 Fed., 406, 408, 27
C.C. A., 42, 47 L.R.A., 450; Rice vs. Fidelity &
Deposit Co. (U.S.), 103 Fed., 427, 43 C.C.A.,
270; Sidway vs. Missouri Land & Live Stock Co.
(U.S.), 116 Fed., 381, 395; able vs. United States
Life Ins. Co. (U.S.), 111 Fed., 19, 31, 49 C.C.A.,
216L Peninsular Land Transp., etc.,
Co. vs. Franklin Ins. Co., 35 W. Va., 666, 676, 14
S.E., 237; Dey vs. Martin, 78 Va., 1, 7; Liverpool
& L.& G. Ins. Co. vs. T.M. Richardson Lumber
Co., 69 Pac., 938, 951, 11 Okl., 585;
Livesey vs. Omaha Hotel, 5 Neb., 50, 69;
Cutler vs. Roberts, 7 Nebr., 4, 14, 29 Am. Rep.,
371; Warren vs. Crane, 50 Mich., 300, 301, 15
N.W., 465; Portland & R.R. Co. vs. Spillman, 23
Oreg., 587, 592, 32 Pac., 688, 689; First Nat.
Bank vs. Maxwell, 55 Pac., 980, 982, 123 Cal.,
360, 69 Am. St. Rep., 64;
Robinson vs. Pennsylvania Fire Ins. Co., 38 Atl.,
320, 322, 90 Me., 385; Reed vs. Union Cent. Life
Ins. Co., 61 Pac., 21, 21 Utah, 295;
Dale vs. Continental Ins. Co., 31 S.W., 266, 269,
95 Tenn., 38; Supreme Lodge K.P. vs.Quinn, 29
South., 826, 829, 95 Tenn., 38; Supreme Lodge
K.P. vs. Quinn, 29 South., 826, 827, 78 Miss.,
525; Bucklen vs. Johnson, 49 N.E., 612, 617, 19
Ind. App., 406.)
We have delayed until this moment the citation of
authorities relative to the proposition that venue
is not jurisdictional as to subject matter and that
defendant's rights in respect thereto are such
that they may be waived, expressly or by
implication, for the reason that we desired that
the principles which rule the case should first be
discussed and presented in the abstract form. In
the case of First National Bank of Charlotte vs.
Morgan (132 U.S., 141), it was held that the
exemption of national banks from suits in State
courts in counties other than the county or city in
which the association was located was a
personal privilege which could be waived was
located was a personal privilege which could be
waived by appearing in such brought in another
county, but in a court of the same dignity, and
making a defense without claiming the immunity
granted by Congress. the court said:
This exemption of national banking
associations from suits in State courts,
established elsewhere than in the county
or city in which such associations were
located, was, we do not doubt, prescribed
for the convenience of those institutions,
and prevent interruption in their business
that might result from their books being
sent to distant counties in obedience to
process from State courts. (First Nat.
Bank of Bethel vs. National Pahquioque
Bank, 14 Wall., 383, 394;
Croker vs. Marine Nat. Bank, 101 Mass.,
240.) But, without indulging in conjecture
as to the object of the exemption in
question, it is sufficient that it was granted
by Congress, and, if it had been claimed
by the defendant when appearing in the
superior court of Cleveland County, must
have been recognized. The defendant did
not, however, choose to claim immunity
from suit in that court. It made defense
upon the merits, and, having been
unsuccessful, prosecuted a writ of error to
the supreme court of the State, and in the
latter tribunal, for the first time, claimed
the immunity granted to it by Congress.
This was too late. Considering the object
as well as the words of the statute
authorizing suit against a national banking
association to be brought in the proper
State court of the county where it is
located, we are of opinion that its
exemption from suits in other courts of the
same State was a personal privilege that it
would waive, and, which, in this case, the
defendant did waive, and, which, in this
case, the defendant did waive, by
appearing and making defense without
claiming the immunity granted by
Congress. No reason can be suggested
why one court of a State, rather than
another, both being of the same dignity,
should take cognizance of a suit against a
national bank, except the convenience of
the bank. And this consideration supports
the view that the exemption of a national
bank from suit in any State court except
one of the county or city in which it is
located is a personal privilege, which it
could claim or not, as it deemed
necessary.
In the case of Ex parte Schollenberger (96 U.S.,
369), the court said:
The Act of Congress prescribing the place
where a person may be sued is not one
affecting the general jurisdiction of the
courts. It is rather in the nature of a
personal exemption in favor of a
defendant, and it is one which he may
waive. If the citizenship of the parties is
sufficient, a defendant may consent to be
sued anywhere he pleases, and certainly
jurisdiction will not be ousted because he
has consented. Here, the defendant
companies have provided that they can be
found in a district other than that in which
they reside, if a particular mode of
proceeding is adopted, and they have
been so found. In our opinion, therefore,
the circuit court has jurisdiction of the
causes, and should proceed to hear and
decide them.
In the case of St. Louis and San Francisco
Railway Co. vs. McBride (141 U.S., 127), the
court used the following language:
The first part of section 1 of the Act of
1887, as amended in 1888, gives,
generally, to the circuit courts of the
United States jurisdiction of controversies
between citizens of different States where
the matter in dispute exceeds the sum of
two thousand dollars exclusive of interest
and costs. Such a controversy was
presented in this complaint. It was
therefore a controversy of which the circuit
courts of the United States have
jurisdiction. Assume that it is true as
defendant alleges, that this is not a case
in which jurisdiction is founded only on the
fact that the controversy is between
citizens of different States, but that it
comes within the scope of that other
clause, which provides that "no civil sit
shall be brought before either of said
courts, against any person, by any original
process or proceeding, in any other district
than that whereof he is inhabitant," still the
right to insist upon suit only in the one
district is a personal privilege which he
may waive, and he does waive it by
pleading to the merits. In Ex parte
Schollenberger (96 U.S., 369, 378), Chief
Justice Waite said: "The Act of Congress
prescribing the place where a person may
be sued is not one affecting the general
jurisdiction of the courts. It is rather in the
nature of a personal exemption in favor of
a defendant, and it is one which he may
waive." The Judiciary Act of 1789 (sec. 11,
Stat., 79), besides giving general
jurisdiction to circuit courts over suits
between citizens of different States,
further provided, generally, that no civil
suit should be brought before either of
said courts, against an inhabitant of the
United States, by any original process, in
any other district than that of which he
was an inhabitant, or in which he should
be found. In the case of Toland vs.
Sprague (12 Pet., 300, 330), it appeared
that the defendant was not an inhabitant
of the State in which the suit was brought,
nor found therein. In that case the court
observed: "It appears that the party
appeared and pleaded to issue. Now, if
the case were one of the want of
jurisdiction in the court, it would not,
according to well-established principles,
be competent for the parties by any acts
of theirs to give it. But that is not the case.
The court had jurisdiction over the parties
and the matter in dispute; the objection
was that the party defendant, not being an
inhabitant of Pennsylvania, nor found
therein, personal privilege or exemption,
which it was competent for the party to
waive. The cases of Pollard vs. Dwight (4
Cranch., 421) and Barry vs. Foyles (1 Pt.,
311) are decisive to show that, after
appearance and plea, the case stands as
if the suit were brought that exemption
from liability to process and that in case of
foreign attachment, too, is a personal
privilege, which may be waived, and that
appearing and pleading will produce that
waiver." In (14 Wal., 282), the jurisdiction
of the circuit court over a controversy
between citizens of different States was
sustained in a case removed from the
State court, although it was conceded that
the suit could not have been commenced
in the first instance in the circuit court. See
also Claflin vs. Commonwealth Ins.
Co. (110 U.S., 81 [28:76].) Without
multiplying authorities on this question, it
is obvious that the party who in the first
instance appears and pleads to the merits
waives any right to challenge thereafter
the jurisdiction of the court on the ground
that the suit has been brought in the
wrong district. (Charlotte Nat.
Bank vs. Morgan, 132 U.S., 141;
Fitzgerald E. M. Const.
Co. vs. Fitzergerald, 137 U.S., 98.)
In the case of the Interior Construction and
Improvement Co. vs. Gibney (160 U.S., 217), the
court held as follows:
The circuit courts of the United States are
thus vested with general jurisdiction of civil
actions, involving the requisite pecuniary
value, between citizens of different States.
Diversity of citizenship is a condition of
jurisdiction, and, when that does not
appear upon the record, the court, of its
own motion, will order the action to be
dismissed. But The provision as to the
particular district in which the action shall
be brought does not touch the general
jurisdiction of the court over such a cause
between such parties; but affects only the
proceedings taken to bring the defendant
within such jurisdiction, and is matter of
personal privilege, which the defendant
may insist upon, or may waive, at his
election; and the defendant's right to
object that an action within the general
jurisdiction of the court is brought in the
wrong district, is waived by entering a
general appearance, without taking the
objection. (Gracie vs. Palmer, 8 Wheat,
699; Toland vs. Sprague, 12 Pet., 300,
330; Ex parte Schollenberger, 96 U.S.,
369, 378; St. Louis & S. F. R.
Co. vs. McBride, 141 U.S., 127; Southern
Pacific Co. vs. Dento, 146 U.S., 202, 206;
Texas & Pacific Railway Co. vs. Saunders,
151 U.S., 105; Central Trust
Co. vs. McGeorge, 151 U.S., 129;
Southern Express Co. vs. Todd, 12 U.S.
app., 351.)
In the case of Central Trust Co. vs.
McGeorge (151 U.S., 129), the court disposed of
the case as follows:
The court below, in holding that it did not
have jurisdiction of the cause, and in
dismissing the bill of complaint for the
reason, acted in view of that clause of the
Act of March 3, 1887, as amended in
August, 1888, which provides that "no suit
shall be brought in the circuit courts of the
United States against any person, by any
original process or proceeding, in any
other district than that whereof he is an
inhabitant;" and, undoubtedly, if the
defendant company, which was sued in
 another district than that in which it had its
domicile, had, by a proper plea or motion,
sought to avail itself of the statutory
exemption, the action of the court would
have been right.
But the defendant company did not
choose to plead that provision of the
statute, but entered a general
appearance, and joined with the
complainant in its prayer for the
appointment of a receiver, and thus was
brought within the ruling of this court, so
frequently made, that the exemption from
being such out of the district of its domicile
is a personal privilege which may be
waive and which is waived by pleading to
the merits.
(Improvement Co. vs. Gibney, 16 Sup. Ct., 272,
160 U.S., 217; 40 L. ed., 401;
Walker vs. Windsor Nat. Bank, 5 C. C. A., 421,
56 Fed., 76, 5 U.S. App., 423; Von
Auw. vs. Chicago Toy & Fancy Goods Co., 69
Fed., 448 McBride vs.Grand de Tour Plow Co.,
40 Fed., 162; Black vs. Thorne, Fed. Cas. No. 1,
495 (10 Blatchf., 66, 5 Fish. Pat. Cas., 550);
Norris vs. Atlas Steamship Co., 37 Fed., 279;
Hoover & Allen Co. vs. Columbia Straw Paper
Co., 68 Fed., 945; Blackburn vs. Railroad Co.,
Fed., Fed., Cas. No. 1, 467 (2 Flip., 525);
Vermont Farm Mach. Co. vs. Gibson, 50 Fed.,
423.)
In the case of Security Loan and Trust Co. vs.
Kauffman (108 Cal., 214), the court said:
The constitution, Article VI, section 5,
declares that, "All actions for the
enforcement of liens" shall
be commenced in the county in which the
real estate or some portion thereof is
situated; and at the time this action was
"commenced" the property was situate
within the boundaries of San Diego. The
constitution does not, however, require
property is situated, and the statutory
provision in section 392 of the Code of
Civil Procedure, that actions 'for the
foreclosure of liens and mortgages on real
property' must be tried in the county in
which the subject of the action, or some
part thereof, is situated, "subject to the
power of the court to change the place of
trial," shows that "the place of trial" is not
an element going to the jurisdiction of the
court, but is a matter of legislative
regulation. The provision for the transfer of
certain actions to the superior court of the
county of Riverside, which is contained in
section 12 of the act providing for the
organization of that county, shows the
extent of this regulation which the
legislature deemed necessary, and implies
that only the actions there designated
were to be transferred for trial.
In the case of Chouteau vs. Allen (70 Mo., 290),
the court held as follows:
The statutory provision in respect to
personal actions is more emphatic,
requiring that "suits instituted by
summons, shall, except as otherwise
provided by law, be brought: First, when
the defendant is a resident of the State,
either in the county within which the
defendant resides, or in the county within
which the plaintiff resides, and the
defendant may be found," and yet it was
held in reference to this statute in the case
of Hembree vs. Campbell (8 Mo., 572),
that though the suit was brought in the
county in which the plaintiff resided, and
service had upon the defendant in the
county of his residence, unless a plea in
abatement to the jurisdiction of the court
over the person of the defendant, was
interposed in the first instance, the
objection on the score of lack of
jurisdiction could not subsequently be
successfully raised. And this, upon the
generally recognized ground that the court
had jurisdiction over the subject matter of
the suit, and that the defendant's plea to
the merits acknowledged jurisdiction over
his person, and precluded objection on
account of absence of regularity in the
instituting of the action. So also, in Ulrici
vs. Papin (11 Mo.., 42), where the then
existing statute required "suits in equity
concerning real estate, or whereby the
same may be affected, shall be brought in
the county within which such real estate or
greater part thereof is situate," and by
demurrer to the bill it was objected that the
suit was not brought in the proper county
in conformity with the statutory provision,
Judge Scott remarked: "That it does not
clearly appear where the greater part of
the lands lie. This objection, if tenable,
should have been raised by a plea to the
jurisdiction." And the same learned judge
remarks, in Hembree vs. Campbell, supra,
"No principle is better established than
that a plea in bar is a waiver of all dilatory
matter of defense. That the matter of
abatement was apparent upon the writ
can make no difference. Such matters are
 and should be pleaded." And pleas to the
jurisdiction are as necessary in local as in
transitory actions. (1 Tidd. Prac., 630.)
It is not meant to convey the idea that the
mere failure to plead to the jurisdiction of
the court would have the effect to confer
jurisdiction where none existed before; for
it is well settled that even consent of
parties can not confer jurisdiction.
(Stone vs. Corbett, 20 Mo., 350.) But all
circuit courts have a general jurisdiction
over the foreclosure of mortgages.
In the case of Armendiaz vs. Stillman (54 Texas,
623), the court disposed of the question involved
in the following words:
In our opinion, however, these common
law rules respecting local and transitory
actions have no more to do in determining
with us where a suit can be brought and
maintained, than the like rules in respect
to the form and names of actions; but this
is solely regulated by and dependent upon
the proper construction of the constitution
and statutes of the State. In the first, it is
emphatically declared in the bill of rights
as a fundamental principle of government,
"All courts shall be open, and every
person for an injury done him in his lands,
goods, person or reputation, shall have
remedy by due course of law." Now a
party may not have an action in rem for or
concerning land in foreign jurisdiction,
because redress can not be given or had
by such proceeding in due course of law;
but personal damages may be given for
such injury and enforced by due process
of law within the State. "And it would seem
if the State failed to give to one of its
citizens a remedy against others for
injuries of this kind, it would fail in the
pledge made in the constitution as plainly
as if the injury had been in a foreign
jurisdiction to one's goods or person."
There is, as Judge Marshall himself says,
no difference in principle in giving redress
for injuries to land in the jurisdiction where
the defendant is found, which may not be
equally applicable in other cases. He
says, speaking of the fiction upon which
transitory actions are sustained, where the
cause of action occurred out of the
jurisdiction where they are brought: "They
have" (i. e., the courts), "without legislative
aid, applied this fiction to all personal torts,
wherever the wrong may have been
committed, and to all contracts wherever
executed. To this general rule contracts
respecting lands from no exception. It is
admitted that on a contract respecting
lands, an action is sustainable wherever
the defendant may be found. Yet in such
case every difficulty may occur that
present itself in an action of trespass. An
investigation of title may become
necessary, a question of boundary may
arise, and a survey may be essential to
the full merits of the case. Yet these
difficulties have not prevailed against the
jurisdiction of the court. They are
countervailed by the opposing
consideration, that if the action be
disallowed, the injured party may have a
clear right without a remedy in a case
where a person who has done the wrong,
and who ought to make the compensation,
is within the power of the court. That this
consideration loses its influence where the
action pursues anything not in the reach of
the court is inevitably necessary, but for
the loss of its influence, where the remedy
is against the person, and is within the
power of the court, I have not yet
discovered a reason, other than a
technical one, which can satisfy my
judgment.'
In the case of De La Vega vs. Keague (64 Texas,
205), the court said:
Our statutes in force at the time the
reconvention was filed provided that suits
for the recovery of land should be brought
in the county where the land or a part
thereof is situated. This is one of the
exceptions to the general rule requiring
suits to be brought in the county of the
defendant's residence. This requirement is
not a matter that affects the jurisdiction of
the district courts over the subject matter
of controversies about the title or
possession of lands. Every district court in
the State has cognizance of such suits;
the requirement as to the county in which
the suit may be brought is a mere
personal privilege granted to the parties,
which may be waived like any other
privilege of this character.
(Ryan vs. Jackson, 11 Tex., 391;
Morris vs. Runnells, 12 Tex., 176.) A
judgment rendered by the district court of
Galveston County, when the parties had
submitted to the jurisdiction, would settle
the title to land in McLennan County as
effectually as if rendered in its own district
curt. Jurisdiction of causes may be
obtained by defendants in counties other
than those in which the statute requires
them to be brought, in other ways than by
express consent or by failure to claim the
personal privilege accorded by law. A suit
upon a monied demand, brought in the
county of a defendant's residence by a
resident of another county, may be met
with a counter demand against the
plaintiff, and a recovery may be had upon
the counter demand, though if suit had
been originally commenced upon it, the
county of the plaintiff's residence would
have had exclusive jurisdiction. And so
with other cases that might be supposed.
A plaintiff calling a defendant into court for
the purpose of obtaining relief against him
invites him to set up all defenses which
may defeat the cause of action sued on,
or any other appropriate and germane to
the subject matter of the suit, which
should be settled between the parties
before a proper adjudication of the merits
of the cause can be obtained. He grants
him the privilege of setting up all such
counterclaims and cross actions as he
holds against the plaintiff which may
legally be pleaded in such a suit.
This is particularly the case in our State,
where a multiplicity of suit is abhorred,
and a leading object is to settle all
disputes between the parties pertinent to
the cause of action in the same suit. The
question of the original right to bring the
cross action in the county where the suit is
pending can not be raised; otherwise this
design would, in a large number of cases,
be defeated, and the various matters
which could well be settled in the cause
might have to seek a number of different
counties, and be asserted in a number of
different suits, before the controversy
between the parties could be settled. The
plaintiff must be considered as waiving
any privilege to plead to the jurisdiction in
such cross actions, and as consenting that
the defendant may assert in the suit any
demands which he could plead were it
commenced in the county where such
demands were properly usable. The
question then is, La Vega have set up the
matters pleaded in his answer in
reconvention had the land sought to be
partitioned been situated in Galveston
County? This question must be
determined by the solution of another, viz,
can a defendant to a partition suit who
claims through the title under which the
partition is sought set up a superior title to
the whole land? "It is doubtless true that,
in a partition suit, a court of equity will not
entertain any controversy as to the legal
title, whether it arises between the part
owners as to their respective interests, or
by reason of a claim set up by one or
more of them to the entire land by title
superior to the one under which the
partition is asked to be decreed. In our
State, where there is no distinction
between law and equity in the
determination of causes, an action to
settle disputed titles, whether legal or
equitable, may be combined with one to
partition the land between the plaintiff and
defendant. Hence there can be no
objection to determining any questions as
to title between the coowners in a partition
suit in our State, and the strict rules of
chancery do not prevail.
In the case of Kipp vs. Cook (46 Minn., 535), the
court made use of the following language:
1. The appellant contends that the district
court for the county of Sibley, and of the
eighth judicial district, was without
jurisdiction, and could not properly
determine the rights or interests of either
litigant to lands located in Sherburne
County, which is in the seventh judicial
district; but this question was passed upon
many years since, in the case of Gill vs.
Bradley (21 Minn., 15), wherein it was
held that, although the proper place for the
trial of an action to recover real property,
or for the determination, in any form, of a
right or interest therein, was, by virtue of
an existing statute — now found as Gen.
St. 1878, c. 66, par. 47 — in the county
wherein the lands were situated, the
district court of the county designated in
the complaint had jurisdiction over the
subject matter, and had power to before
the time for answering expired, in
accordance with the express provisions of
another section — now section 51 — of
the same chapter, and the place of trial
had actually been changed by order of the
court or by consent of parties.
In the case of the west Point Iron Co. vs.
Reymert (45 N.Y., 703), the court said:
The action was tried in the county of
Dutches, and by the court without a jury,
without objection on the part of the
defendants. If the trial should have been in
Putnam, and by a jury, it was for the
 defendants to assert their rights at the
trial; and by not them claiming them, they
waived them, and must be regarded as
having assented to the place and mode of
trial.
We transcribe the following from decisions of the
supreme court of Spain:
Considering, further, that Pedrosa, instead
of immediately objecting to the jurisdiction
of the court and asking for a change of
venue, sued for recovery of title, thereby
submitting himself to the jurisdiction of the
court of first instance, which reserved its
decision thereon until plaintiff had
presented the petition in due form.
(Judgment of May 30, 1860, 5 Civ. Jur.,
465.)
Considering that although other
proceedings were had in the first court
(Salvador de Granada) and in the courts
of first instance of Sagrario and Guerra of
said city subsequent to the death of the
count, the truth of the matter is that his
daughter, the countess, the only party now
claiming relief, not only had the
proceedings taken in the first of said
courts dismissed but asked the court of
first instance of Castilla de la Nueva to
accept, and the court accepted, her
express submission to its jurisdiction:
Considering that far from objecting, as she
might have objected, to the jurisdiction of
the court, the countess acknowledged
such jurisdiction as did the other coheirs
when thru asked the court to proceed with
the testamentary proceedings, thus
creating a jurisdictional situation perfectly
in harmony with the respective claims of
the parties and so binding upon them that
they are now absolutely estopped from
denying its importance or legal force.
(Judgment of May 30, 1860, 5 Civ. Jur.,
465.)
He who by his own acts submits himself to
the jurisdiction of a court shall not
thereafter be permitted to question such
jurisdiction. (Judgment of December 30,
1893, 29 Civ. Jur., 64.)
According to article 305 (of the Ley de
Enjuiciamiento Civil) the plaintiff shall be
presumed to have tacitly submitted
himself to the jurisdiction of the court by
the mere act of filing his complaint therein,
and in the case of the defendant where
the latter after appearing in the action
takes any step therein other than to object
to such jurisdiction. (Judgment of
September 21, 1878, 40 Civ. Jur., 232.)
Plaintiff and defendant are presumed to
have submitted themselves to the
jurisdiction of the court, the former by the
mere act of filing his complaint therein and
the latter by his answering the same and
taking any step other than demurring to
such jurisdiction as provided in articles 56
to 58 of the Ley de Enjuiciamiento Civil.
(Judgment of July 27, 1883, 52 Civ. Jur.,
511.)
In order that a tacit submission based
upon the mere act filing the complaint may
be valid the court must be one of ordinary
jurisdiction as provided in article 4 of the
Ley de Ebjuiciamiento Civil. (Judgment of
August 27, 1864, 10 Civ. Jur., 14.)
The following language is taken from The Earl of
Halsbury's Laws of England (vol. 1, p. 50):
The old distinction between 'local' and
'transitory' actions, though of far less
importance than it was before the passing
of the judicature acts, must still be borne
in mind in connection with actions relating
to land situate outside the local jurisdiction
of our courts. 'Transitory' actions were
those in which the facts in issue between
the parties had no necessary connection
with a particular locality, e.g., contract,
etc.; whilst "local" actions were those in
which there was such a connection, e.g.,
disputes as to the title to, or trespasses to,
land.
One importance of this distinction lay in
the fact that in the case of local actions
the plaintiff was bound to lay the venue
truly, i.e., in the county (originally in the
actual hundred) in which the land in
question lay. In the case, however of a
transitory action, he might lay it wherever
he pleased, subject to the power of the
court to alter it in a proper case. Local
venues have now been abolished, and,
therefore, so far as actions relating to
land in England are concerned, the
distinction may be disregarded.
It is, however, important from another
point of view, viz, that of jurisdiction as
distinct from procedure. In the case of real
 actions relating to land in the colonies or
foreign countries the English relating
courts had, even before the judicature
acts, no jurisdiction; and, therefore, the
removal by those acts of a difficulty of
procedure — viz, the rule as to
local venue — which might have stood in
the way, if they had and wished to
exercise jurisdiction, did not in any way
confer jurisdiction in such cases. The lack
of jurisdiction still exists, and our courts
refuse to adjudicate upon claims of title to
foreign land in proceedings founded on an
alleged invasion of the proprietary rights
attached thereto, and to award damages
founded on that adjudication; in other
words, an action for trespass to, or for
recovery of, foreign land can not be
maintained in England, at any rate if the
defendant chooses to put in issue the
ownership of such land.
There is no decision of the Supreme Court of the
Philippine Islands in conflict with the principles
laid down in this opinion. In the case of Serrano
vs. Chanco (5 Phil. Rep., 431), the matter before
the court was the jurisdiction of the Court of First
Instance over the actions and proceedings
relating to the settlement of the estates of
deceased persons. The determination of that
question required the consideration of section
602 of the code of Civil Procedure rather than
section 377 of that code. The argument of the
court touching the last-named section, is
inapplicable to the case at bar and would not
affect it if it were. The reference to the jurisdiction
of the court made in that argument based on
section 377 was unnecessary to a decision of the
case.
The case of Molina vs. De la Riva (6 Phil. Rep.,
12), presented simply the question whether or
not an agreement between parties to submit
themselves to the jurisdiction of a particular court
to the exclusion of the court provided by law as
the appropriate court in the premises could be
enforced. As we have before intimated, it
touched no question involved in the litigation at
bar.
In the case of Molina vs. De la Riva (7 Phil. Rep.,
302), the action was one to foreclose a mortgage
upon a real and personal property. In discussing
the matter before it the court said:
The demurrer was also based upon the
ground that this was an action to foreclose
a mortgage and by the provisions of
sections 254 and 377 of the Code of Civil
Procedure it should have been brought in
the Province of Albay where the property
was situated. The action is clearly an
action to foreclose a mortgage, lien, or
incumbrance upon property, but it will be
noticed that section 254 relates only to
mortgages on real estate. This contract
covered both real and personal property,
and while, perhaps, an action could not be
maintained in the Court of First Instance of
Manila for the foreclosure of the alleged
mortgage upon the real estate situated in
Albay, yet so far as the personal property
was concerned, we know of no law which
would deprive that court of jurisdiction.
As will readily be observed, the court in the
remarks above quoted was not discussing or
deciding the question whether or not an action
could be maintained in the Court of First Instance
of the city of Manila to foreclose a mortgage on
real estate located in Albay; but, rather, whether
or not an action could be maintained in the Court
of First Instance of the city of Manila to foreclose
a mortgate on personal property located in the
Province of Albay. The remark of the court
that perhaps the former action could not be
maintained was not intended to be decisive and
was not thought at the time to be an indication of
what the decision of the court might be if that
precise case were presented to it with full
argument and citation of authorities.
The case of Castano vs. Lobingier (9 Phil. Rep.,
310), involved the jurisdiction of the Court of First
Instance to issue a writ of prohibition against a
justice of the peace holding his court outside the
province in which the Court of First Instance was
sitting at the time of issuing the writ. The
determination of the question presented different
considerations and different provisions of law
from those which rule the decision of the case at
bar.
We, therefore, hold that the terms of section 377
providing that actions affecting real property shall
be brought in the province where the land
involved in the suit, or some part thereof, is
located, do not affect the jurisdiction of Courts of
First Instance over the land itself but relate
simply to the personal rights of parties as to the
place of trial.
We come, now, to a consideration of the special
laws relating to the condemnation of land by
railroad companies upon which also plaintiff
relies. Of those laws only one is of importance in
the decision of this case. That is Act No. 1258. In
it are found these provisions:
SECTION 1. In addition to the method of
procedure authorized for the exercise of
the power of eminent domain by sections
two hundred and forty-one to two hundred
and fifty-three, inclusive, of Act Numbered
One hundred and ninety, entitled "An Act
providing a Code of Procedure in civil
actions and special proceedings in the
Philippine Islands," the procedure in this
Act provided may be adopted whenever a
railroad corporation seeks to appropriate
land for the construction, extension, or
operation of its railroad line.
xxx xxx xxx
SEC. 3. Whenever a railroad corporation
is authorized by its charter, or by general
law, to exercise the power of eminent
domain in the city of Manila or in any
province, and has not obtained by
agreement with the owners thereof the
lands necessary for its purposes as
authorized by law, it may in its complaint,
which in each case shall be instituted in
the Court of First Instance of the city of
Manila if the land is situated in the city of
Manila, or in the Court of First Instance of
the province where the lands is situated,
join as defendants all persons owing or
claiming to own, or occupying, any of the
lands sought to be condemned, or any
interest therein, within the city or province,
respectively, showing, so far as
practicable, the interest of each defendant
and stating with certainty the right of
condemnation, and describing the
property sought to be condemned.
Process requiring the defendants to
appear in answer to the complaint shall be
served upon all occupants of the lands
sought to be condemned, and upon the
owners and all persons claiming interest
therein, so far as known. If the title to ant
lands sought to be condemned appears to
be in the Insular Government, although
the lands are occupied by private
individuals, or if it is uncertain whether the
title is in the Insular Government or in
private individuals, or if the title is
otherwise so obscure or doubtful that the
company can not with accuracy or
certainty specify who are the real owners,
averment may be made by the company
in its complaint to that effect. Process
shall be served upon resident and no
residents in the same manner as provided
therefor in Act Numbered One hundred
and ninety, and the rights of minors and
persons of unsound mind shall be
safeguarded in the manner in such cases
provided in said Act. The court may order
additional and special notice in any case
where such additional or special notice is,
in its opinion, required.
SEC. 4. Commissioners appointed in
pursuance of such complaint, in
accordance with section two hundred and
forty-three of Act Numbered One hundred
ad ninety, shall have jurisdiction over all
the lands included in the complaint,
situated within the city of Manila or within
the province, as the case may be, and
shall be governed in the performance of
their duties by the provisions of sections
two hundred and forty-four and two
hundred and forty-five, and the action of
the court upon the report of the
commissioners shall be governed by
section two hundred and forty-six of Act
Numbered One hundred and ninety.
The provisions of the Code of Civil Procedure
referred to in these sections are, so far as
material here, the following:
SEC. 241. How the right of eminent
domain may be exercised. — The
Government of the Philippine Islands, or
of any province or department thereof, or
of any municipality, and any person, or
public or private corporation having by law
the right to condemn private property for
public use, shall exercise that right in the
manner hereinafter prescribed.
SEC. 242. The complaint. — The
complaint in condemnation proceedings
shall state with certainty the right of
condemnation, and describe the property
sought to be condemned, showing the
interest of each defendant separately.
SEC. 243. Appointment of
Commissioners. — If the defendant
concede that the right of condemnation
exists on the part of the plaintiff, or if, upon
trial, the court finds that such right exists,
the court shall appoint three judicious and
disinterested landowners of the province
in which the land to be condemned, or
some portion of the same, is situated, to
be commissioners to hear the parties and
view the premises, and assess damages
to be paid for the condemnation, and to
report their proceedings in full to the court,
and shall issue a commission under the
seal of the court to the commissioners
 authorizing the performance of the duties
herein prescribed.
We are of the opinion that what we have said in
the discussion of the effect of section 377 relative
to the jurisdiction of Courts of First Instance over
lands is applicable generally to the sections of
law just quoted. The provisions regarding the
place and method of trial are procedural. They
touched not the authority of the court over
the land but, rather, the powers which it may
exercise over the parties. They relate not to the
jurisdictional power of the court over the subject
matter but to the place where that jurisdiction is
to be exercised. In other words, the jurisdiction is
assured, whatever the place of its exercise. The
jurisdiction is the thing; the place of exercise
its incident.
These special laws contain nothing which in any
way indicates an intention of the legislature to
alter the nature or extent of the jurisdiction of
Courts of First Instance granted by Act No. 136.
As we said in discussing the provisions of section
277 of the Code of Civil Procedure, we can not
hold that jurisdiction to be limited unless by
express provision or clear intendment.
We have thus far drawn an analogy between
section 377 of the code of Civil Procedure and
section 3 of Act No. 1258, asserting that neither
the one nor the other was intended to restrict,
much less deprive, the Courts of First Instance of
the jurisdiction over lands in the Philippine
Islands conferred upon them by Act No. 136. We
have extended that analogy to include the
proposition that the question of venue as
presented in the Acts mentioned does not relate
to jurisdiction of the court over the subject matter,
it simply granting to the defendant certain rights
and privileges as against the plaintiff relative to
the place of trial, which rights and privileges he
might waive expressly or by implication. We do
not, however, extend that analogy further. On
reading and comparing section 377 of the Code
of Civil Procedure with section 3 of Act No. 1258.
both of which are hearing set forth, a difference
is at once apparent in the wording of the
provisions relating to the place of trial. Section
277 stipulates that all actions affecting real estate
"shall be brought in the province where the
land, or some part thereof, is situated." Section 3
of Act No. 1258 provides that in an action
brought by a railroad corporation to condemn
land for its uses the plaintiff "may in its complaint,
which in each case shall be instituted . . . in the
Court of First Instance of the province where the
land is situated, join as defendants all persons
owning, etc . . . land within the city or
province . . ." Section 1 of that Act, as we have
already seen, says that: "In addition to the
method of procedure authorized for the exercise
of the power of eminent domain by sections two
hundred and forty-one to two hundred and fifty-
three" of the Code of Civil Procedure, "the
procedure in this Act may be adopted whenever
a railroad corporation seeks to appropriate
land . . . ."
From these provisions we note, first, that the
procedure expressly made applicable to actions
for the condemnation of land by railroad
corporations is not that contained in section 377
but that found in sections 241 to 253 of the Code
of Civil Procedure. Section 377 is nowhere
expressly mentioned in Act No. 1258 nor is it
anywhere touched or referred to by implication.
The procedure embodied in that Act to
consummate the purposes of its creation is
complete of itself, rendered so either by
provisions contained in the Act itself, rendered so
either by provisions contained in the Act itself or
by reference to specific sections of the Code of
Civil Procedure which by such reference are
made a part thereof.
In the second place, we observe that, so far as
venue is concerned, Act No. 1258 and section
377 are quite different in their wording. While the
latter provides that the actions of which it treats
shall be commenced in the province where the
land, or some part thereof, lies, Act No. 1258,
section 3, stipulates that the actions embraced in
its terms shall be brought only in the province
where the land lies. This does not mean, of
course, that if a single parcel of land under the
same ownership, lying party in one province and
partly in another, is the subject of condemnation
proceedings begun by a railroad corporation, a
separate action must be commenced in each
province. Nor does it mean that the aid of section
377 is required to obviate such necessity. The
situation would be met and solved by the general
principles of law and application of which to
every situation is an inherent or implied power of
every court. Such, for example, are the
prohibition against multiplicity of actions, the
rules against division of actions into parts, and
the general principle that jurisdiction over a
subject matter singly owned will not be divided
among different courts, the one in which the
action is first brought having exclusive jurisdiction
of the whole. The provisions of these two laws,
section 377 and Act No. 1258, differ in the
manner indicated because they refer to subjects
requiring inherently different treatment, so
different, in fact, as to be in some respects quite
opposite. While it is true that section 377 speaks
of action for the condemnation of real estate,
nevertheless it was intended to cover simply the
ordinary action affecting title to or interest in real
estate, where the land involved is comparatively
speaking, compact together. Its provisions were
not intended to meet a situation presented by an
action to condemn lands extending contiguously
from one end of the country to the other. Act No.
1258 is a special law, enacted for a particular
purpose, and to meet a particular exigency. The
conditions found in an action for the
condemnation of real estate by a railroad
company might and generally would be so
different that the application of the provisions of
section 377 permitting the venue to be laid in any
province where any part of the land lies would
work a very great hardship to many defendants
in such an action. To hold that a railroad
company desiring to build a line from Ilocos
Norte to Batangas, through substantially the
whole of the Island of Luzon, might lay the venue
in Batangas, it being a province in which a part of
the land described in the complaint was located,
would be to require all the parties defendant in
Ilocos Norte and intervening provinces, with their
witnesses, to go to Batangas, with all the
inconvenience and expense which the journey
would entail, and submit the valuation of their
lands into only to the Court of First Instance of
Batangas but to a commission appointed in that
province. The hardship to such defendants under
such a holding is so manifest that we are of the
opinion that it was not intended that section 377
of the code of Civil Procedure should apply to
actions for condemnation. Under the provisions
of that section, the defendant has no right to ask
for a change of venue if the land involved in the
litigation, or any part thereof, is located in the
province where the court sits before which the
action has been commenced. When, therefore,
an action such as is detailed above is begun by a
railroad company in Batangas against persons
whose lands lie in Ilocos Norte, there being also
involved lands lying in Batangas, such
defendants would have no right under section
377, if it were applicable, to demand that the trial
as to their lands take place in the Province of
Ilocos Norte. We do not believe that this was
intended. We believe, rather, that under the
provisions of the special laws relating to the
condemnation of real estate by railroad
companies, the defendants in the various
provinces through which the line runs may
compel, if they wish, a separate action to be
commenced in each province in order that they
may have a fair and convenient trial not only
before the court but also before commissioner of
their province who are not only before
commissioners of their province who are not only
conveniently at hand, but who are best able to
judge of the weight of testimony relative to the
value of land in that province.
We, therefore, hold that section 377 of the Code
of Civil Procedure is not applicable to actions by
railroad corporations to condemn lands; and that,
while with the consent of defendants express or
implied the venue may be laid and the action
tried in any province selected by the plaintiff
nevertheless the defendants whose lands lie in
one province, or any one of such defendants,
may, by timely application to the court, require
the venue as to their, or, if one defendant, his,
lands to be changed to the province where their
or his lands lie. In such case the action as to all
of the defendants not objecting would continue in
the province where originally begun. It would be
severed as to the objecting defendants and
ordered continued before the court of the
appropriate province or provinces. While we are
of that opinion and so hold it can not affect the
decision in the case before us for the reason that
the defendants are not objecting to the venue
and are not asking for a change thereof. They
have not only expressly submitted themselves to
the jurisdiction of the court but are here asking
that that jurisdiction be maintained against the
efforts of the plaintiff to remove it.
The principles which we have herein laid down
we do not apply to criminal cases. They seem to
rest on a different footing. There the people of
the state is a party. The interests of the public
require that, to secure the best results and
effects in the punishment of crime, it is necessary
to prosecute and punish the criminal in the very
place, as near as may be, where he committed
his crime. As a result it has been the uniform
legislation, both in statutes and in constitutions,
that the venue of a criminal action must be laid in
the place where the crime was committed. While
the laws here do not specifically and in terms
require it, we believe it is the established custom
and the uniform holding that criminal
prosecutions must be brought and conducted,
except in cases especially provided by law, in the
province where the crime is committed.
For these reasons the judgment below must be
reversed and the cause remanded to the trial
court with direction to proceed with the action
according to law. So ordered.
Torres, Johnson, Carson and Trent, JJ., concur.
G.R. No. 118328 October 8, 1998
MARCIANA SERDONCILLO, petitioner,
vs.
SPOUSES FIDEL and EVELYN BENOLIRAO,
MELITON CARISIMA, and COURT OF
APPEALS, respondents.
MARTINEZ, J.:
This petition for review assails the decision of the
Court of Appeals dated July 14, 1994 in CA G.R.
CV No. 392511which affirmed the decision of the
Regional Trial Court of Pasay City, (Branch 108)
in Civil Case No. 7785, dated June 30, 1992
directing herein petitioner to demolish and
remove all illegal structures which she
constructed in front of the subject lot, to vacate
the said property and right of way, and return
possession thereof to the respondents.
The antecedent facts:
The subject premises was formerly part of the
estate of H. V. Ongsiako, comprising of 1,806
square meters, more or less, located at the
corner of Pilapil and N. Domingo Streets, Pasay
City. The legal heirs of H.V. Ongsiako organized
the United Complex Realty and Trading
Corporation (UCRTC) which subdivided the
property into fourteen (14) lots, Lots 555-A to
666-N. The subdivided lots were then offered for
sale with first priority to each of the tenants,
including the private respondents and
petitioner.2 Lot 666-H has an area of 248 square
meters, consisting of two (2) parts. One part is
the residential portion with an area of 112 square
meters purchased by private respondents-
spouses Benolirao3 while the second part is the
right of way for Lot 666-I and the aforesaid
residential portion.4 Private respondent Carisima
purchased Lot 666-I. Petitioner, who was
occupying the western end and front portions of
the aforesaid lots declined the offer to purchase
any of the lots offered for sale by UCRTC.7
Petitioner continued paying rentals to H.V.
Ongsiako's wife, Mrs. Rosario de Jesus.
Thereafter, the collection of rentals was stopped
prompting petitioner to file on June 30, 1987,
Civil Case No. 5456 before the Metropolitan Trial
Court of Pasay City for consignation of rentals
against UCRTC, Rosario de Jesus and the
spouses Carisima. The consignation was granted
by the trial court and was eventually affirmed on
appeal by the Regional Trial Court of Pasay City,
Branch 109 on October 25, 1989.6
On May 5, 1989, UCRTC executed a deed of
absolute sale in favor of private respondents-
spouses Benolirao for Lot 666-H. 7 This sale was
annotated at the back of UCRTC's title on Lot
666-H.8
On June 2, 1989, after unsuccessful oral and
written demands were made upon petitioner,
UCRTC instituted an action against her for
recovery of possession of the subject premises
before the Regional Trial Court of Pasay City,
Branch 114 docketed as Civil Case No 6652. 9 On
July 15, 1990, the trial court rendered its decision
dismissing the complaint of UCRTC, stating in
part, to wit:
It is clear, therefore, that plaintiff,
not having been authorized in
writing for the purpose, may not
validly bring an action to enforce a
perceived easement of right of way
pertaining to the owners of Lots
666-H and 666-I or the Benolirao
and Carisima families, while
Benjamin Ongsiako possessed the
authority to institute the case
(Exhibit "G"), plaintiff is not the real
party in interest. Furthermore, the
situation obtaining does not call for
the enforcement of an easement of
right of way. Defendant Seldoncillo
is not the owner of and has never
claimed ownership over the portion
of Lot 666-H on which her house is
erected. A servitude is an
encumbrance imposed upon an
immovable for the benefit of
another immovable belonging to a
different owner (Article 613, New
Civil Code). In the present case the
ejectment of defendant Serdoncillo
from the portion of Lot 666-H
occupied by the house at the
instance of the proper party
(Renato Bolinarao's family ) would
remove the obstruction.
xxx xxx xxx
WHEREFORE, in view of all the
foregoing consideration, the
complaint against the defendant
Marciana Serdonillo, as well as
defendant's counterclaim, is
dismissed for lack of merit. Without
pronouncement as to costs.
SO ORDERED.10
UCRTC did not appeal the aforesaid decision of
the Regional Trial Court, hence, the same
became final.
On November 20, 1989, Serdoncillo instituted
Civil Case No. 7749 for the Exercise of
Preferential Rights of First Refusal against
UCRTC and private respondents-spouses a Fidel
and Evelyn Benolirao praying for the annulment
of sale of a portion of lot 666-H sold to the
Benolirao spouses on the ground that said
transfer or conveyance is illegal. She claimed
that she has the preferred right to buy the said
property and that the same was not offered to
her under the same terms and conditions, hence,
it is null and void. UCRTC and private
respondents prevailed and this case was
dismissed. On appeal to the Court of Appeals,
the same was dismissed on July 9, 1992. 11
On November 20, 1990, private respondents
made their final demand on petitioner reiterating
their previous demands to vacate the
property.12 On December 13, 1990, private
respdndents filed their complaint for recovery of
possession of the subject premises against
petitioner before the Regional Trial Court of
Pasay City, Branch 108, docketed as Civil Case
No. 7735, which compiaint alleges these material
facts:
5. That plaintiffs, being then
registered owners of the properties
designated as lot 666-H and 666-I,
are likewise the owners/grantees of
the right of way granted by United
Complex Realty and Trading
Corporation which was
correspondingly annotated in its
title (Annex "B-3" ) under Entry No.
205154/T-172291 of the Register of
Deeds of Pasay City;
6. That since 1982 the defendant
has built and constructed a
residence and pig pen on the
plaintiffs' right of way as well as on
the front portions of the latter's
properties leaving them virtually
obstructed with no ingress or
egress from the main road;
7. That verbal and written demands
made upon the defendant by the
plaintiffs to remove and demolish
her structures had been ignored,
the last of which was on November
20, 1990, xerox copy of which is
hereto attached as Annex "C" and
taken as an integral part hereof, but
despite such demands, the
defendant failed and refused and
still fails and refuses to remove and
vacate her illegal structures on the
portion of the properties as well as
on the right of way of plaintiffs.
8. That plaintiffs in compliance with
the Katarungang Pambarangay
Law lodged a complaint before the
Barangay Captain, Barangay 84,
Zone 10 of Pasay City, which
certified filing of the same in court,
xerox copy of said certification is
hereto attached as Annex "D" and
taken as integral part hereof;
9. That due to the unjustified
refusal of the defendant, the
plaintiffs are suffering the
unnecessary inconvinience of the
absence of decent and sufficient
ingress and egress on their
properties, and will continue to
suffer the same unless the illegal
structures are finally demolished
and/or removed by the
defendants;13
Petitioner, in her Answer, put up the defense that
she is the legitimate tenant of said lots in
question since 1956, pertinent portions of which
are quoted hereunder, thus:
13. That Lot 666-H and Lot 666-I
mentioned in the complaint are
formerly portions of a big track(sic)
of land consisting of 1,806 square
meters then owned by H.V.
Ongsiako;
14. That since 1956 and before the
1,806 square meters of lot owned
by H.V. Ongsiako was subdivided
into fourteen (14) lots in 1982,
defendant is (sic) already a
legitimate tenant and occupant
family of around 400 square meters
of the 1,806 square meters of the
said land then owned by H.V.
Ongsiako by erecting her
residential house thereon at the
agreed monthly rental of P15.00
and increased to P 100.00;
15. That upon the death of H.V.
Ongsiako his heirs continued
collecting the monthly rental of the
premises from the defendants;
16. That the heirs of H.V. Ongsiako
formed a corporation known as
 UNITED COMPLEX REALTY AND
TRADING CORPORATION and the
big parcel of land consisting of
1,806 square meters was
transferred to the said corporation
and subdivided in 1982 into
fourteen (14) lots, two (2) of which
lots are the very same lots leased
by the defendant from H.V.
Ongsiako and later from his heirs
and then from United Complex
Realty and Trading Corporation as
alleged in the preceding pars. l3,
14, and 15;14
The issues having been joined, trial on the merits
ensued. On June 30, 1992, the trial court
rendered its decision in favor of private
respondent, the dispositive portion of which
reads:
SO ORDERED.15
Aggrieved by the trial court's decision, petitioner
appealed to the Court of Appeals alleging that: 1)
the lower court should have dismissed the
complaint of private respondents considering that
based on the letter of demand dated November
20, 1990, the action filed should have been
unlawful detainer and not an action for recovery
of possession; 2) the action filed by private
respondents is barred by res judicataconsidering
that the present action is identical with that of
Civil Case No. 6652; 3) the lower court erred in
not dismissing the complaint for lack of cause of
action with respect to enforcement of right of
way vis a visdefendant; and 4) the lower court
erred in ordering that defendants vacate the
properties in question since the lease of
defendants thereon was still in existence and had
not yet been terminated.16

WHEREFORE, IN VIEW of the On July 14, 1994, the respondent Court of

foregoing, and finding Appeals rendered its decision sustaining the
preponderance of evidence in findings of the trial court and dismissed the
plaintiffs' favor, judgment is hereby appeal of petitioner, stating in part as follows:
rendered as follows:
The issue as to the proper action
1) Ordering the defendant to has been resolved by the
demolish and remove all illegal respondent court, to wit:
structures she constructed on the
front portions of the subject lots and The defense that
on the right of way of the plaintiff; what should have
been filed is an
2.) Ordering the defendant to ejectment case and
vacate the property and right of not recovery of
way and return possession thereof possession, is not
to the plaintiffs, also correct. The filing
of this case for
3) Ordering the defendant to pay recovery of
the cost of suit. possession, instead
of an ejectment case,
As to the damages (actual and is not altogether
moral) no award is given. In the unjustified. The
absence of proof of fraud and bad Benoliraos and
faith by the defendants, the latter Carisima became the
are (sic) not liable for damages owners as early as
(Escritor Jr. vs. IAC, 155 SCRA May, 1989. Verbal
577). and written demands
had been ignored.
Actual and compensatory damages There is an
require substantial proof. In the immediate need for
absence of malice and bad faith, plaintiffs to use the
moral damages cannot be awarded right of way, which up
(Capco vs. Macasaet, 189 SCRA to the present time is
SCRA 561). obstructed. At most,
what surfaced is a
As to the attorney's fees, each technicality which
party should shoulder his/her should be
expenses. abandoned.
 A plain reading of the complaint
shows that plaintiff-appellees cause
of action is for recovery of
possession of their property which
was encroached upon by
17
defendant-appellant.
A motion for reconsideration of the aforesaid
decision filed by petitioner on August 8,
199418 was denied by the respondent on
September 23, 1994.19
Hence, this petition.
Petitioner ascribes one single error committed by
the respondent court, to wit:
THE RESPONDENT REGIONAL TRIAL COURT
AND THE COURT OF APPEALS (Sp. Fifteenth
Division) COMMITTED GRAVE ABUSE OF
JURISDICTION IN DECIDING AS AN ACCION
PUBLICIANA AN EJECTMENT OR UNLAWFUL
DETAINER CASE (THE JURISDICTION OF
WHICH CLEARLY PERTAINS TO THE
INFERIOR COURT), A CASE BASICALLY
INVOLVING AN EASEMENT OF RIGHT OF
WAY.
Petitioner asserts that the respondent court erred
in sustaining the trial court's finding that the
complaint filed by private respondents for
recovery of possession of the subject premises is
an accion publiciananotwithstanding the fact that
the action was filed within one (1) year from
demand. Petitioner contends that private
respondents should have filed an action for
unlawful detainer and not an action for recovery
of possession against petitioner. Consequently,
the trial court is without jurisdiction to hear and
determine Civil Case No. 7785. In support of her
contention, petitioner cited the cases of Bernabe
vs. Luna20 and Medina vs. Court of
Appeals,21 which she states is strikingly similar to
the facts of this case. Consequently, the rulings
of this Court in these two cases are squarely
applicable and controlling in the case at bar.
Private respondents, however, aver that they
were merely successors-in-interest of UCRTC
and therefore step into the shoes of the latter.
They claim that the demand to vacate required
by law should at the very least be reckoned from
June 2, 1989, the date of the filing of the
complaint in Civil Case No. 6652 considering that
their demands are simply a reiteration of
UCRTC's demands against petitioner. Private
respondents further contend that the allegations
in the complaint determine the jurisdiction of the
court. Thus, the complaint in Civil Case No. 7785
specifically alleged that private respondents are
the owners of lots 666-I and 666-H as evidenced
by transfer certificates of title and prayed for
recovery of possession of a portion thereof
including its right of way illegally and unlawfully
possessed by petitioner.
Petitioner's position is without merit.
It is an elementary rule of procedural law that
jurisdiction of the court over the subject matter is
determined by the allegations of the complaint
irrespective of whether or not the plaintiff is
entitled to recover upon all or some of the claims
asserted therein. As a necessary consequence,
the jurisdiction of the court cannot be made to
depend upon the defenses set up in the answer
or upon the motion to dismiss, for otherwise, the
question of jurisdiction would almost entirely
depend upon the defendant. 22 What determines
the jurisdiction of the court is the nature of the
action pleaded as appearing from the allegations
in the complaint. The averments therein and the
character of the relief sought are the ones to be
consulted.23Accordingly, the issues in the instant
case can only be properly resolved by an
examination and evaluation of the allegations in
the complaint in Civil Case No. 7785.24
In this regard, to give the court jurisdiction to
effect the ejectment of an occupant or deforciant
on the land, it is necessary that the complaint
must sufficiently show such a statement of facts
as to bring the party clearly within the class of
cases for which the statutes provide a remedy,
without resort to parol testimony, as these
proceedings are summary in nature. 25 In short,
the jurisdictional facts must appear on the face of
the complaint. When the complaint fails to aver
facts constitutive of forcible entry or unlawful
detainer, as where it does not state how entry
was effected or how and when dispossession
started, the remedy should either be an accion
publiciana or an accion reivindicatoria.26
In the case of Javier vs. Veridiano II 27 this Court
held that the doctrine in Emilia v. Bado,28 decided
more than twenty-five years ago, is still good law.
It preserved the age-old remedies available
under existing laws and jurisprudence to recover
possession of real property, namely: (1) accion
interdictal, which is the summary action for either
forcible entry or detentacion, where the
defendant's possession of the property is
illegal ab initio; or for unlawful detainer
or desahucio, where the defendant's possession
was originally lawful but ceased to be must be so
by the expiration of his right to possess, both of
which must be brought within one year from the
date of actual entry on the land, in case of
forcible entry; and from the date of last demand,
in case of unlawful detainer, in the proper
municipal trial court or metropolitan court;
(2) accion publiciana which is a plenary action for
recovery of the right to possess and which
should be brought in the proper regional trial
court when the dispossession has lasted for
more than one year; and, (3) accion
reivindicatoria or accion de reivindicacion which
seeks the recovery of ownership and includes
the jus possidendi brought in the proper regional
trial court.
Accion reivindicatoria or accion de
reivindicacion is thus an action whereby plaintiff
alleges ownership over a parcel of land and
seeks recovery of its full possession. It is
different from accion interdictal or accion
publiciana where plaintiff merely alleges proof of
a better right to possess without claim of title. In
Banayos vs. Susana Realty, Inc., 29 this Court
held that:
We have consistently held that a
complaint for forcible entry, as
distinguished from that of unlawful
detainer, in order to vest jurisdiction
upon the inferior court, must allege
plaintiff's prior physical possession
of the property, as well as the fact
that he was deprived of such
possession by any of the means
provided in Section 1, Rule 70 of
the Rules of Court, namely: force,
intimidation, threats, strategy and
stealth, "for if the dispossession did
not take place by any of these
means, the courts of first instance,
not the municipal courts, have
jurisdiction.
xxx xxx xxx
The aforesaid Rule 70 does not,
however, cover all of the cases of
dispossession of lands. Thus,
"whenever the owner is
dispossessed by any other means
than those mentioned he may
maintain his action in the Court of
First Instance, and it is not
necessary for him to wait until the
expiration of twelve months before
commencing an action to be
repossessed or declared to be
owner of the land." Courts of First
Instance have jurisdiction over
actions to recover possession of
real property illegally detained,
together with rents due and
damages, even though one (1) year
has not expired from the beginning
of such illegal detention, provided
the question of ownership of such
property is also involved. In other
words, if the party illegally
dispossessed desires to raise the
question of illegal dispossession as
well as that of the ownership over
the property he may commence
such action in the Court of First
Instance immediately or at any time
after such illegal dispossession. If
he decides to raise the question of
illegal dispossession only, and the
action is filed more than one (1)
year after such deprivation or
withholding of possession, then the
Court of First Instance will have
original jurisdiction over the case.
The former is an accion de
reivindicacion which seeks the
recovery of ownership as well as
possession, while the latter refers
to an accion publiciana, which is
the recovery of the right to possess
and is a plenary action in an
ordinary proceeding in the Court of
First Instance.
A reading of the averments of the complaint in
Civil Case No. 7785 undisputably show that
plaintiffs (private respondents herein) clearly set
up title to themselves as being the absolute
owner of the disputed premises by virtue of their
transfer certificates of title and pray that
petitioner Serdoncillo be ejected therefrom.
There is nothing in the complaint in Civil Case
No. 7785 alleging any of the means of
dispossession that would constitute forcible entry
under Section (1) Rule 70 of the Rules of Court,
nor is there any assertion of defendant's
possession which was originally lawful but
ceased to be so upon the expiration of the right
to possess. It does not characterize petitioner's
alleged entry into the land, that is, whether the
same was legal or illegal nor the manner in which
petitioner was able to construct the house and
the pig pens thereon. The complaint merely
avers that a portion of the lot owned by private
respondents and its right of way have been
occupied by petitioner and that she should
vacate. The action therefore is neither one of
forcible nor of unlawful detainer but essentially
involves a dispute relative to the ownership of 4.1
square meters of land allegedly encroached
upon by petitioner and its adjoining right of way.
Indeed, the Ocular Inspection Report of the
Branch Clerk of Court, states that:
. . . (T)he right of way hit directly
the defendant Serdoncillo's
property consisting of a two-storey
residential house made of wood
and GI sheets and occupying the
entire width of the rear portion of
the right of way. A coconut tree
stands on the middle of the road, at
the back of which is a shanty made
of rotten G.I. sheets around it which
is used as pigpens and place of
washing clothes extended from
defendant's house. To gain access
to plaintiff's property, the group
turned right and passed between
an "aratiris" tree and cemented
firewall owned by Mr. Belarmino
making only one person at a time to
pass. This passageway has only a
width of 0.5 meter which is being
used by the defendant and her
members of the family aside from
the plaintiffs.
. . . Two (2) monuments of the lot
boundary of the plaintiff's property
are existing, but the rest are
nowhere to be found. According to
Mrs. Benolirao, they are located
within the premises of the
defendant's house. At the back of
Benolirao is a private property
gutted by fire.
. . . Upon request, the group wass
granted permission by the relatives
of the defendant to inspect the
place. The group further noticed
that defendant's improvements
were even encroaching on the
plaintiff's lot by approximately 4.1
meters, more or less. The house of
the defendant is facing the
plaintiff's property; there is a small
chicken house and there is also a
dog house standing near it.30
It is noted that at the time of the filing of said
complaint, Civil Case No. 7749, an action for
annulment of the sale between UCRTC and
private respondents Benolirao of Lot 666-H
initiated by petitioner was likewise pending in
another court. This case puts in issue the validity
of private respondents' acquisition of the subject
lots and ultimately their ownership of Lot 666-H.
Thus, what is noticeable in the complaint is that
private respondents definitely gave petitioner
notice of their claim of exclusive and absolute
ownership, including their right to possess which
is an elemental attribute of ownership.31 It is
immaterial whether or not private respondents
instituted their complaint one month from date of
last demand or a year thereafter. What is of
paramount importance is that the allegations in
complaint are of the nature of either an accion
publiciana or an accion reivindicatoria.
Petitioner's reliance on the Bernabe and Medina
cases, which she claims to be squarely
applicable under the circumstances herein, is
entirely misplaced. While it is true that in these
two cases the complaints were filed before the
one-year period had expired from date of last
demand, the allegations in the complaint failed to
state material facts which are indicative of a case
of either an accion publiciana or accion
reivindicatoria. Thus, the Court in Bernabe stated
that:
In their complaint, plaintiffs
(petitioners herein) allege that they
are the owners of a parcel of land
with an area of 199.4 square
meters more or less, located in
Tondo, Manila, that defendant
(private respondent herein)
constructed a house on said lot
without plaintiff's permission; that
on November 14, 1980, plaintiffs
thru counsel made a written
demand for the removal of said
house as well as for the recovery of
damages for the reasonable use
and occupation thereof; and that
defendant refused and failed to
comply despite repeated demands.
xxx xxx xxx
We have noted that while
petitioners allege in their complaint
that they are the owners of the lot
on which the house of the private
respondent is constructed, their
attached TCT shows that the lot is
still in the name of Fejosera
Investment Incorporated, Private
respondent and said company
entered into a contract of lease in
1950 for the use and occupation of
said lot. Petitioners allegedly
bought the lot in question in 1973,
and they must have been fully
aware of the occupancy of the
 private respondent of the premises
in question. Yet, they did not take
any action to remove the house of
the private respondent or to inform
the respondent that they had
become the new owners of the lot
in question. It is clear therefore that
the lease was allowed to continue.
xxx xxx xxx
Consequently, the possession of
private respondent over the lot in
question became illegal only on
November 14, 1980, when the
formal demand to pay and vacate
the premises was sent to him.32
The allegations in the complaint clearly show that
plaintiffs were already the owners of the property
when defendant constructed a house on the
disputed lot without their permission. That
despite formal demand defendant failed to
vacate and surrender possession of the property
to them. Indeed, the averments in plaintiffs'
complaint present jurisdictional facts which do
not illustrate plaintiffs' action as either an action
publiciana or accion reivindicatoria but that of
forcible entry or unlawful detainer. Thus, the trial
court correctly dismissed plaintiffs' complaint,
pertinent portion of which is quoted hereunder:
It is clear on the face of the
complaint that at the time of the
filing of this case on February 19,
1981, the defendant was in
possession, as a tenant, of the
premises. When plaintiff's counsel,
therefore sent a written notice on
November 4, 1980 requiring
defendant to vacate the premises
when this action was brought, the
one (1) year period after the
unlawful deprivation or withholding
of possession has not yet set in. It
is clear that this is an ejectment
case within the exclusive
jurisdiction of the City Court of
Manila.
SO ORDERED.33
We likewise find the Medina case, relied upon by
petitioner, to be inappropriate. The facts distinctly
show that the complaint filed by the owners of
the property before the Metropolitan Trial Court
of Manila, Branch 47, was for unlawful detainer.
It was the action resorted to by the plaintiffs after
advising the defendant (the lessee of the
premises in question) that a member of the
family, Dr. Igama, urgently needed the house and
after repeated demands to vacate made on the
lessee proved to be unsuccessful. All these
incidents, from notification to the filing of the
complaint dated May 16, 1985, transpired within
a period of six (6) months. Indeed, the factual
background of this case is a classic illustration of
an action for unlawful detainer. Verily, the facts
are therefore diametrically opposite to the facts
or case at bar.
Petitioner has therefore no legal basis to insist
that the present case is similar to the Bernabe
and Medina cases and from which this Court
should base its findings and conclusions. The
doctrine laid down in Tenorio vs. Gomba is still
controlling. In that case the Court ruled that
courts of first instance have jurisdiction over all
actions involving possession of land except
forcible entry and illegal datainer, and therefore
the lower court has jurisdiction over the action
alleged in the appellant's complaint because it is
neither of illegal detainer nor of forcible entry. 34
Petitioner maintains that her leasehold right as a
tenant of the subject premises had been settled
in Civil Case No. 5456, an action for
consignation, which she won before the
Metropolitan Trial Court and affirmed on appeal
by the Regional Trial Court of Pasay City, Branch
109. Said court ruled that the latter is a tenant of
the site or premises in question and that she
cannot be ejected therefrom, even on the
assumption that her house and pig pen are
allegedly standing on a right of way. She claims
that pursuant to Section 49 (b) (now Section 47)
Rule 39, Rules of Court, the issue of tenancy in
said case is now conclusive between her and
private respondent with respect to the subject
premises in question.
Petitioner's contention is devoid of merit.
Sec. 49 (now Section 47), provides that:
Sec. 49. Effects of Judgments. —
the effect of a judgment or final
order rendered by a court or judge
of the Philippines having jurisdiction
to pronounce the judgment or
order, may be as follows:
(a) xxx xxx xxx
(b) In other cases the judgment or
order is, with respect to the matter
directly adjudged or as to any other
matter that could have been raised
 in relation thereto, conclusive
between the parties and their
successors-in-interest by title
subsequent to the commencement
of the action or special proceeding,
litigating for the same thing and
under the same title and in the
same capacity;
The fundamental principle upon which the
doctrine of res judicata rests is that parties ought
not be permitted to litigate the same issue more
than once, that when the right or fact has been
judicially determined, the judgment of the court,
so long as it remains unreversed, should be
conclusive upon the parties and those in privity
with them in law or estate.35
Thus, for res judicata to bar the institution of a
subsequent action the following requisites must
concur: (1) the former judgment must be final; (2)
it must have been rendered by a court having
jurisdiction of the subject matter and the parties;
(3) it must be a judgment on the merits; and, (4)
there must be between the first and second
actions; (a) identity of parties; (b) identity of
subject matter; and (c) identity of cause of
action.36
There is no dispute as to the presence of the first
three (3) requirements and the identity of the
subject matter. The only issues remaining are
whether as between Civil Case No. 5456 and
Civil Case No. 7785, there is identity of parties
and of causes of action in Civil Case No. 5456 to
bar the institution of Civil Case No. 7785.
There is identity of parties. The record shows
that the parties in Civil Case No. 5456 are
petitioner as plaintiff while the defendants were
UCRTC, the spouses Meliton and Efremia
Carisima and Rosario de Jesus. Private
respondents-spouses Fidel and Evelyn Benolirao
acquired lot 666-H from UCRTC and are
therefore the successors-in-interest of UCRTC
by title subsequent to the commencement and
termination of the first action. As such, private
respondents merely stepped into the shoes of
UCRTC and acquired whatever capacity and title
the former had over the same property or subject
matter of the action. Indeed, there is actual, if not
substantial, identity of parties between the two
actions.37
There is however, no identity of causes of action
in both cases. In the case of Garcia vs. Court of
Appeals,38this Court held that the test of identity
of causes of action lies not in the form of an
action but on whether the same evidence would
support and establish the former and the present
causes of action. Petitioner's complaint in Civil
Case No. 5456 is an action for consignation of
rentals while Civil Case No. 7785 is an action for
recovery of possession.
In other words, the issue in Civil Case No. 5456
is whether or not consignation of rentals is proper
under the circumstances obtaining in that case.
Private respondents action for recovery of
possession requires them to present evidence of
their claim or title to the subject premises and
their right to possess the same from petitioner.
Stated conversely, the evidence in Civil Case No.
5456 is entirely different to that in Civil Case No.
7785. Thus, the decision in Civil Case No. 5456
does not in any way affect nor bar Civil Case No.
7785.
Indeed, the Court noted that the parties had
been at odds since 1987 when petitioner initiated
Civil Case No. 5456, and then Civil Case No.
7749. Private respondents' predecessor UCRTC
likewise initiated Civil Case No. 6652 and the
present case under appeal, Civil Case No. 7785,
all because of the use of a right of way and an
encroachment of only 4.1 meters of the subject
premises. At some point in time, all these
squabbles must end. Thus, the respondent court
stated that:
It is true that it is the purpose and
intention of the law that courts
should decide all questions
submitted to them "as truth and
justice require", and that it is greatly
to be desired that all judgments
should be so decided; but
controlling and irresistible reasons
of public policy and of sound
practice in the courts demand that
at the risk of occasional errors,
judgment of the courts determining
controversies submitted to them
should become final at some
definite time fixed by law.39
In passing, We reiterate the time-honored
doctrine that findings of facts of the Court of
Appeals are binding and conclusive upon the
Supreme Court, and the Court, will not normally
disturb such factual findings unless the findings
of the court are palpably unsupported by the
evidence or unless the judgment itself is based
on misapprehension of facts.40 In this case, We
find the said decision to be totally supported by
the evidence on record.
Based on the foregoing premises, it is
unnecessary to pass upon the other issues
raised in the petition.
WHEREFORE, the petition for review is hereby
DISMISSED and the decision of the Court of
Appeals in CA-G.R. CV NO. 39251 is
AFFIRMED. No pronouncements as to costs.
SO ORDERED.
Regalado, Melo, Puno and Mendoza, JJ.,
concur.
Footnotes
G.R. No. 141020 June 12, 2008
CASINO LABOR ASSOCIATION, petitioner,
vs.
COURT OF APPEALS, PHIL. CASINO
OPERATORS CORPORATION (PCOC) and
PHIL. SPECIAL SERVICES CORPORATION
(PSSC), respondents.
DECISION
PUNO, C.J.:
This petition for certiorari1 assails the
Decision and Resolution3 of the Court of
2
Appeals (CA) in CA-G.R. SP No. 50826. The CA
dismissed the petition for certiorari filed by the
petitioner against the First Division of the
National Labor Relations Commission (NLRC)
and denied petitioner's motion for
reconsideration.
The series of events which ultimately led to the
filing of the petition at bar started with the
consolidated cases4 filed by the petitioner labor
union with the Arbitration Branch of the NLRC. In
an Order5 dated 20 July 1987, the Labor Arbiter
dismissed the consolidated cases for lack of
jurisdiction over the respondents therein,
Philippine Amusement and Gaming Corporation
(PAGCOR) and Philippine Casino Operators
Corporation (PCOC).
On appeal to the NLRC, the Commission en
banc issued a Resolution6 dated 15 November
1988, which dismissed the separate appeals filed
by the petitioner on the ground that the NLRC
has no jurisdiction over PAGCOR.
Petitioner then elevated the case to this Court,
via a petition for review on
7
certiorari, entitled Casino Labor Association v.
National Labor Relations Commission,
Philippine Amusement & Gaming
Corporation, Philippine Casino Operators
Corporation and Philippine Special Services
Corporation and docketed as G.R. No. 85922.
In a Resolution8 dated 23 January 1989, the
Third Division of the Court dismissed the petition
for failure of the petitioner to show grave abuse
of discretion on the part of the NLRC.
Petitioner filed a motion for reconsideration, but
the same was denied with finality in a 15 March
1989 Resolution.9The Resolution states, in part:
x x x Any petitions brought against private
companies will have to be brought before
the appropriate agency or office of the
Department of Labor and Employment.
Based solely on that statement, petitioner filed a
Manifestation/Motion10 with the NLRC praying
that the records of the consolidated cases be
"remanded to the Arbitration Branch for proper
prosecution and/or disposition thereof against
private respondents Philippine Casino Operators
Corporation (PCOC) and Philippine Special
Services Corporation (PSSC)."
Acting on the Manifestation/Motion, the NLRC
First Division issued an Order11 dated 30 June
1989, which granted the motion and ordered that
the records of the cases be forwarded to the
Arbitration Branch for further proceedings.
Respondents PCOC and PSSC filed a motion for
reconsideration. In an Order12 dated 22 July
1994, the NLRC First Division granted the
motion, set aside the 30 June 1989 Order for
having been issued without legal basis, and
denied with finality the petitioner's
Manifestation/Motion. Petitioner's motion for
reconsideration was likewise denied in a
Resolution13 dated 28 November 1997.
Petitioner filed a petition for certiorari 14 with this
Court asserting that the NLRC First Division
committed grave abuse of discretion in ignoring
the mandate of G.R. No. 85922. Petitioner
argued that, with the statement "(a)ny petitions
brought against private companies will have to
be brought before the appropriate agency or
office of the Department of Labor and
Employment," this Court laid down the law of the
case and mandated that petitions against
respondents PCOC and PSSC should be
brought before the NLRC. By way of
resolution,15 this Court referred the case to the
CA in accordance with the ruling in St. Martin
Funeral Homes v. NLRC.16
On 22 June 1999, the CA rendered its Decision
dismissing the petition for certiorari. The CA
found no grave abuse of discretion on the part of
the NLRC First Division when it issued: (a) the 22
July 1994 Order, which set aside its 30 June
1989 Order remanding the case to the Arbitration
Branch for further proceedings; and (b) the 28
November 1998 Resolution, which denied
petitioner's motion for reconsideration. Petitioner
filed a motion for reconsideration, which the CA
denied in its 6 December 1999 Resolution.
Hence, the instant petition for certiorari in which
the petitioner raises this sole issue:
CAN THE COURT OF APPEALS IGNORE
THE MANDATE OF THE HONORABLE
SUPREME COURT'S RESOLUTION IN
G.R. 85922, THAT PETITIONS AGAINST
PRIVATE RESPONDENTS PCOC AND
PSSC SHOULD BE TRIED BY THE
COMMISSION (NLRC) THRU ITS
ARBITRATION BRANCH?
To determine whether the CA acted with grave
abuse of discretion correctable by certiorari, it is
necessary to resolve one core issue: whether the
Supreme Court, in G.R. No. 85922, mandated
that the NLRC assume jurisdiction over the
cases filed against PCOC and PSSC.
The resolution of the case at bar hinges on the
intended meaning of the Third Division of the
Court when it stated in its 15 March 1989
Resolution in G.R. No. 85922, viz:
x x x Any petitions brought against private
companies will have to be brought before
the appropriate agency or office of the
Department of Labor and Employment.
Petitioner considers the foregoing statement as a
legal mandate warranting the remand of the
consolidated labor cases to the Arbitration
Branch of the NLRC for further proceedings
against respondents PCOC and PSSC.
We do not agree.
A court decision must be read as a whole. With
regard to interpretation of judgments, Republic
v. De Los Angelesstated:
As a general rule, judgments are to be
construed like other written instruments.
The determinative factor is the intention of
the court, as gathered from all parts of the
judgment itself. In applying this rule, effect
must be given to that which is unavoidably
and necessarily implied in a judgment, as
well as to that which is expressed in the
most appropriate language. Such
construction should be given to a
judgment as will give force and effect to
every word of it, if possible, and make it as
a whole consistent, effective and
reasonable.17
Hence, a close scrutiny of the full text of the 23
January and 15 March 1989 Resolutions in G.R.
No. 85922 sheds much needed light. In the first
Resolution, the Third Division of this Court
dismissed the petitioner's case in this wise:
The issue in this case is whether or not
the National Labor Relations Commission
has jurisdiction over employee-employer
problems in the Philippine Amusement
and Gaming Corporation (PAGCOR), the
Philippine Casino Operators Corporation
(PCOC), and the Philippine Special
Services Corporation (PSSC).
The present Constitution specifically
provides in Article IX B, Section 2(1) that
"the civil service embraces all branches,
subdivisions, instrumentalities, and
agencies of the Government, including
government-owned or controlled
corporations with original charters."
(Emphasis supplied)
There appears to be no question from the
petition and its annexes that the
respondent corporations were created by
an original charter, P.D. No. 1869 in
relation to P.D. Nos. 1067-A, 1067-C,
1399 and 1632.
In the recent case of National Service
Corporation, et al. v. Honorable Third
Division, National Labor Relations
Commission, et al. (G.R. No. 69870,
November 29, 1988), this Court ruled that
subsidiary corporations owned by
government corporations like the
Philippine National Bank but which have
been organized under the General
Corporation Code are not governed by
Civil Service Law. They fall under the
jurisdiction of the Department of Labor
and Employment and its various agencies.
Conversely, it follows that government
corporations created under an original
charter fall under the jurisdiction of the
Civil Service Commission and not the
Labor Department.
 Moreover, P.D. 1869, Section 18,
specifically prohibits formation of unions
among casino employees and exempts
them from the coverage of Labor Code
provisions. Under the new Constitution,
they may now form unions but subject to
the laws passed to regulate unions in
offices and corporations governed by the
Civil Service Law.
CONSIDERING the failure of the
petitioner to show grave abuse of
discretion on the part of the public
respondent, the COURT RESOLVED to
DISMISS the petition.
Thus, in resolving the issue of whether or not the
NLRC has jurisdiction over employer-employee
relations in PAGCOR, PCOC and PSSC, the
Third Division made the definitive ruling that
"there appears to be no question from the
petition and its annexes that the respondent
corporations were created by an original charter."
The Court collectively referred to all respondent
corporations, including PCOC and PSSC, and
held that in accordance with the Constitution and
jurisprudence, corporations with original charter
"fall under the jurisdiction of the Civil Service
Commission and not the Labor Department." The
Court stated further that P.D. 1869 exempts
casino employees from the coverage of Labor
Code provisions and although the employees are
empowered by the Constitution to form unions,
these are "subject to the laws passed to regulate
unions in offices and corporations governed by
the Civil Service Law." Thus, in dismissing the
petition, the ruling of the Third Division was clear
- - - it is the Civil Service Commission, and not
the NLRC, that has jurisdiction over the
employer-employee problems in PAGCOR,
PCOC and PSSC.
In its motion for reconsideration, petitioner
lamented that its complaint might be treated as a
"pingpong ball" by the Department of Labor and
Employment and the Civil Service Commission. It
argued:
x x x the petitioner will now be in a
dilemna (sic) for the reason, that the
charter creating PAGCOR expressly
exempts it from the coverage of the Civil
Service Laws and therefore the petitioner,
will now be in a quandary whether it will
be allowed to prosecute its case against
PAGCOR before the Civil Service
Commission while its own charter
expressly exempts it from the coverage of
the Civil Service Law x x x18
The Third Division denied the motion for
reconsideration in a Resolution dated 15 March
1989, which contained the statement upon which
the petitioner's whole case relies. The Court
stated:
The petitioner states in its motion for
reconsideration that the PAGCOR charter
expressly exempts it from the coverage of
the Civil Service Laws and, consequently,
even if it has an original charter, its
disputes with management should be
brought to the Department of Labor and
Employment. This argument has no merit.
Assuming that there may be some
exemptions from the coverage of Civil
Service Laws insofar as eligibility
requirements and other rules regarding
entry into the service are concerned, a law
or charter cannot supersede a provision of
the Constitution. The fear that the
petitioner's complaint will be rejected by
the Civil Service Commission is
unfounded as the Commission must act in
accordance with its coverage as provided
by the Constitution. Any petitions
brought against private companies will
have to be brought before the
appropriate agency or office of the
Department of Labor and Employment.
CONSIDERING THE FOREGOING, the
COURT RESOLVED to DENY the motion
for reconsideration. This DENIAL is
FINAL. (emphasis added)
Petitioner contends that the "private companies"
referred to therein pertain to respondents PCOC
and PSSC, and consequently, this Court has laid
down the law of the case in G.R. No. 85922 and
has directed that the cases against PCOC and
PSSC should be prosecuted before the
Department of Labor and Employment or NLRC.
Petitioner's contention is untenable. It is well-
settled that to determine the true intent and
meaning of a decision, no specific portion thereof
should be resorted to, but the same must be
considered in its entirety. 19 Hence, petitioner
cannot merely view a portion of the 15 March
1989 Resolution in isolation for the purpose of
asserting its position. The 23 January 1989
Resolution already ruled on the NLRC's lack of
jurisdiction over all the respondents in the case -
PAGCOR, PCOC and PSSC. The Third Division
neither veered away nor reversed such ruling in
its 15 March 1989 Resolution to petitioner's
motion for reconsideration. A reading of the two
aforementioned resolutions clearly shows that
the phrase "private companies" could not have
referred to PCOC and PSSC for that would
substantially alter the Court's ruling that
petitioner's labor cases against the respondents
are cognizable by the Civil Service Commission,
and not by the NLRC. In its assailed decision,
the Court of Appeals ratiocinated:
Evidently, the [March 15] Resolution
containing the questioned pronouncement
did not give legal mandate to petitioner to
file its Petition with the Department of
Labor and Employment or any of its
agencies. On the contrary, the Resolution
decided with finality that petitions brought
against the PAGCOR or similar
agencies/instrumentalities of the
government must be filed with the Civil
Service Commission which has jurisdiction
on the matter. The questioned
pronouncement, to Our mind, was made
only to illustrate the instance when
jurisdiction is instead conferred on the
Department of Labor vis-à-vis the Civil
Service Commission; that is, when the
petitions are filed [against] private
companies.
Finally, as pointed out by the Office of the
Solicitor General, the subject matter of the
pronouncement in question is "any
petition" not the petition filed by
petitioners. Likewise, the petition must be
one which is brought against "private
companies" not against private
respondents. Apparently, the abovequoted
pronouncement is intended to be a
general rule that will govern petitions filed
against private companies. It is not
intended to be a specific rule that will
apply only to the petition filed by herein
petitioners. Where the law makes no
distinctions, one does not distinguish.
A fortiori, where the questioned
pronouncement makes no distinctions,
one does not distinguish.
We agree with the CA. The statement that "(a)ny
petitions brought against private companies will
have to be brought before the appropriate
agency or office of the Department of Labor and
Employment," upon which petitioner's entire case
relies, is of no consequence. It is obiter dictum.
In its memorandum,20 petitioner presents a
second issue not otherwise raised in its petition
for certiorari, contending that respondents
waived their rights to controvert petitioner's valid
and just claims when they filed a motion to
dismiss the consolidated cases with the labor
arbiter on the ground of lack of jurisdiction.
However, in our 20 August 2003 Resolution
requiring the parties to submit their respective
memoranda, we specifically stated that "no new
issues may be raised by a party in his/its
Memorandum." Moreover, petitioner, in support
of this additional issue, presents its arguments
on the merits of the consolidated labor cases.
This Court is not a trier of facts. In Santiago v.
Vasquez, we reiterated:
We discern in the proceedings in this case
a propensity on the part of petitioner, and,
for that matter, the same may be said of a
number of litigants who initiate recourses
before us, to disregard the hierarchy of
courts in our judicial system by seeking
relief directly from this Court despite the
fact that the same is available in the lower
courts in the exercise of their original or
concurrent jurisdiction, or is even
mandated by law to be sought therein.
This practice must be stopped, not only
because of the imposition upon the
precious time of this Court but also
because of the inevitable and resultant
delay, intended or otherwise, in the
adjudication of the case which often has to
be remanded or referred to the lower court
as the proper forum under the rules of
procedure, or as better equipped to
resolve the issues since this Court is not a
trier of facts. We, therefore, reiterate the
judicial policy that this Court will not
entertain direct resort to it unless the
redress desired cannot be obtained in the
appropriate courts or where exceptional
and compelling circumstances justify
availment of a remedy within and calling
for the exercise of our primary
jurisdiction.21
In this case, the Civil Service Commission is the
proper venue for petitioner to ventilate its claims.
The Court is not oblivious to petitioner's plea for
justice after waiting numerous years for relief
since it first filed its claims with the labor arbiter
in 1986. However, petitioner is not completely
without fault. The 23 January 1989 Resolution in
G.R. No. 85922, declaring the lack of jurisdiction
by the NLRC over PAGCOR, PCOC and PSSC,
became final and executory on March 27, 1989.
The petitioner did not file a second motion for
reconsideration nor did it file a motion for
clarification of any statement by the Court which
petitioner might have thought was ambiguous.
Neither did petitioner take the proper course of
action, as laid down in G.R. No. 85922, to file its
claims before the Civil Service Commission.
Instead, petitioner pursued a protracted course
of action based solely on its erroneous
understanding of a single sentence in the Court's
resolution to a motion for reconsideration.
IN VIEW WHEREOF, the instant petition for
certiorari is DISMISSED. The assailed 22 June
1999 Decision and 6 December 1999 Resolution
of the Court of Appeals in CA-G.R. SP No. 50826
are AFFIRMED.
SO ORDERED.
EULALIA RUSSELL, RUPERTO TAUTHO,
FRANCISCO TAUTHO, SUSANA T.
REALES, APITACIO TAUTHO, DANILO
TAUTHO, JUDITHA PROS, GREGORIO
TAUTHO, DEODITA T. JUDILLA,
AGRIPINO TAUTHO, FELIX TAUTHO,
WILLIAM TAUTHO, AND MARILYN
PERALES, petitioners, vs.
HONORABLE AUGUSTINE A. VESTIL,
ADRIANO TAGALOG, MARCELO
TAUTHO, JUANITA MENDOZA,
DOMINGO BANTILAN, RAUL
BATALUNA AND ARTEMIO
CABATINGAN, respondents.
DECISION
KAPUNAN, J.:
Before us is a Petition for Certiorari to set
aside the Order dated January 12, 1995 issued
by respondent Judge Augustine A. Vestil of the
Regional Trial Court of Mandaue City, Branch 56,
dismissing the complaint filed by petitioners on
ground of lack of jurisdiction, as well as his Order
dated February 13, 1995 denying petitioners'
Motion for Reconsideration of the order of
dismissal.
The facts of the case are as follows:
On September 28, 1994, petitioners filed a
complaint against private respondents,
denominated "DECLARATION OF NULLITY AND
PARTITION," with the Regional Trial Court of
Mandaue City, Branch 56, docketed as Civil
Case No. MAN 2275. The complaint, in
substance, alleged that petitioners are co-owners
of that parcel of land, Lot 6149 situated in Liloan,
Cebu and containing an area of 56,977.40
square meters, more or less. The land was
previously owned by the spouses Casimero
Tautho and Cesaria Tautho. Upon the death of
said spouses, the property was inherited by their
legal heirs, herein petitioners and private
respondents. Since then, the lot had remained
undivided until petitioners discovered a public
document denominated "DECLARATION OF
HEIRS AND DEED OF CONFIRMATION OF A
PREVIOUS ORAL AGREEMENT OF
PARTITION," executed on June 6, 1990. By
virtue of this deed, private respondents divided
the property among themselves to the exclusion
of petitioners who are also entitled to the said lot
as heirs of the late spouses Casimero Tautho
and Cesaria Tautho. Petitioners claimed that the
document was false and perjurious as the private
respondents were not the only heirs and that no
oral partition of the property whatsoever had
been made between the heirs. The complaint
prayed that the document be declared null and
void and an order be issued to partition the land
among all the heirs.[1]
On November 24, 1994, private respondents
filed a Motion to Dismiss[2] the complaint on the
ground of lack of jurisdiction over the nature of
the case as the total assessed value of the
subject land is P5,000.00 which under section 33
(3)[3] of Batas Pambansa Blg. 129, as amended
by R.A. No. 7691,[4] falls within the exclusive
jurisdiction of the Municipal Circuit Trial Court of
Liloan, Compostela.[5]
Petitioners filed an Opposition to the Motion
to Dismiss[6] saying that the Regional Trial Court
has jurisdiction over the case since the action is
one which is incapable of pecuniary estimation
within the contemplation of Section 19(l) of B.P.
129, as amended.[7]
On January 12, 1995, the respondent judge
issued an Order granting the Motion to Dismiss.
[8]
A Motion for Reconsideration of said order was
filed by petitioners on January 30, 1995 alleging
that the same is contrary to law because their
action is not one for recovery of title to or
possession of the land but an action to annul a
document or declare it null and void, [9] hence,
one incapable of pecuniary estimation failing
within the jurisdiction of the Regional Trial
Court. Private respondents did not oppose the
motion for reconsideration.
On February 13, 1995, the respondent judge
issued another Order denying the motion for
reconsideration.[10]
Hence, this petition wherein the sole issue
raised is whether or not the Regional Trial Court
has jurisdiction to entertain Civil Case No. MAN-
2275.
We find merit in the petition.
Petitioners maintain the view that the
complaint filed before the Regional Trial Court is
for the annulment of a document denominated as
"DECLARATION OF HEIRS AND DEED OF
CONFIRMATION OF PREVIOUS ORAL defendants are not the only heirs of Casimero
PARTITION," which is clearly one incapable of Tautho; plaintiffs are also legal heirs and
pecuniary estimation, thus, cognizable by the descendants of said deceased; moreover, there
Regional Trial Court. has been no oral partition of the property;
Private respondents, on the other hand,
9. That pursuant to said document (Annex "B"),
insists that the action is one for re-partition and
defendants had procured tax declarations of the
since the assessed value of the property as
land for their supposed "shares" to the great
stated in the complaint is P5,000.00, then, the
damage and prejudice of plaintiffs;
case falls within the jurisdiction of the Municipal
Circuit Trial Court of Liloan, Compostela, Cebu.
10. That the property in controversy should be
For better appreciation of the facts, the divided into seven (7) equal parts since
pertinent portions of the complaint are Casimero Tautho and Cesaria N. Tautho had
reproduced hereunder: seven children;
xxx
11. That the parties had failed to settle the
controversy amicably at the barangay level;
3. That the plaintiffs and the defendants are the
attached hereto as Annex "C" is Certification to
legal heirs of spouses Casimero Tautho and
file Action;
Cesaria N. Tautho who died long time ago;
12. That by reason of the foregoing unjust and
4. That in life the spouses became the owners in
illegal act of defendants, plaintiffs were forced to
fee simple of a certain parcel of land, which is
bring instant action and contract the services of
more particularly described as follows:
the undersigned counsel with whom they bind
themselves to pay P30,000.00 as attorney's fees.
A parcel of land containing 56,977.40 square
meters, more or less, located at Cotcot, Liloan,
WHEREFORE, it is most respectfully prayed of
Cebu.
this Honorable Court to declare null and void the
document (Annex "B") of declaration of heirs and
designated as Lot 6149 per Technical Description
confirmation and to order the partition of the land
and Certification issued by the Office of the Land
into seven (7) equal parts; each part shall
Management copy of which are hereto attached
respectively go to the seven (7) children of
as Annexes "A" and "A-1" and are made part
Casimero Tautho and considering six (6) of them
hereof: total assessed value is P5,000.00;
died already the same shall go to their children or
descendants, and to order the defendants to pay
5. That the land passed to the children of the plaintiffs attorney's fees in the amount
spouses.(who are all deceased except for of P30,000.00.
defendant Marcelo Tautho), namely: Zacarias,
Epifania, Vicenta, Felicisimo, Maria, Lorencia
Plaintiffs further pray for such other reliefs and
and Marcelo, and which in turn passed to the
remedies just and equitable under the premises.
plaintiffs and defendants upon their death they [11]
being their descendants and legal heirs;
We agree with petitioners.
6. That the subject parcel of land has for year
been undivided by and among the legal heirs of The complaint filed before the Regional Trial
said previous owners; Court is doubtless one incapable of pecuniary
estimation and therefore within the jurisdiction of
7. That, very recently, plaintiffs discovered a said court.
public document, which is a declaration of heirs
In Singsong vs. Isabela Sawmill,[12] we had the
and deed of confirmation of a previous oral
occasion to rule that:
agreement, of partition, affecting the land
executed by and among the defendants whereby
[I]n determining whether an action is one the
defendants divided the property among
subject matter of which is not capable of
themselves to the exclusion of plaintiffs who are
pecuniary estimation this Court has adopted the
entitled thereto; attached hereto as Annex "B"
criterion of first ascertaining the nature of the
and is made part hereof is xerox copy of said
principal action or remedy sought. If it is primarily
document;
for the recovery of a sum of money, the claim is
considered capable of pecuniary estimation, and
8. That the instrument (Annex "B") is false and
whether jurisdiction is in the municipal courts or
perjurious and is a complete nullity because the
in the courts of first instance would depend on
the amount of the claim. However, where the
basic issue is something other than the right to
recover a sum of money, where the money claim
is purely incidental to, or a consequence of, the
principal relief sought, this Court has considered
such actions as cases where the subject of the
litigation may not be estimated in terms of
money, and are cognizable exclusively by courts
of first instance (now Regional Trial Courts). [13]

Examples of actions incapable of pecuniary

estimation are those for specific performance,
support, or foreclosure of mortgage or annulment
of judgment;[14] also actions questioning the
validity of a mortgage,[15] annulling a deed of sale
or conveyance and to recover the price
paid[16] and for rescession, which is a counterpart
of specific performance.[17]
While actions under Sec. 33(3) of B.P. 129 are
also incapable of pecuniary estimation, the law
specifically mandates that they are cognizable by
the MTC, METC, or MCTC where the assessed
value of the real property involved does
exceed P20,000.00 in Metro Manila,
or P50,000.00, if located elsewhere. If the value
exceeds P20,000.00 or P50,000.00 as the case
may be, it is the Regional Trial Courts which
have jurisdiction under Sec. 19(2).[18]
However, the subject matter of the complaint
in this case is annulment of a document
denominated as "DECLARATION OF HEIRS
AND DEED OF CONFIRMATION OF
PREVIOUS ORAL PARTITION."
The main purpose of petitioners in filing the
complaint is to declare null and void the
document in which private respondents declared
themselves as the only heirs of the late spouses
Casimero Tautho and Cesaria Tautho and
divided his property among themselves to the
exclusion of petitioners who also claim to be
legal heirs and entitled to the property. While the
complaint also prays for the partition of the
property, this is just incidental to the main action,
which is the declaration of nullity of the document
above-described. It is axiomatic that jurisdiction
over the subject matter of a case is conferred by
law and is determined by the allegations in the
complaint and the character of the relief sought,
irrespective of whether the plaintiff is entitled to
all or some of the claims asserted therein.[19]
WHEREFORE, premises considered, the
petition is hereby GRANTED. The Order
dismissing Civil Case No. MAN-2275, as well as
the Order denying the motion for reconsideration
of said Order, is SET ASIDE.