Beruflich Dokumente
Kultur Dokumente
L-11390 March 26, 1918 In case of publication, where the residence of a nonresident or absent
defendant is known, the judge must direct a copy of the summons
EL BANCO ESPAÑOL-FILIPINO, plaintiff-appellant, and complaint to be forthwith deposited by the clerk in the post-
vs. office, postage prepaid, directed to the person to be served, at his
VICENTE PALANCA, administrator of the estate of Engracio Palanca place of residence
Tanquinyeng, defendant-appellant.
Whether the clerk complied with this order does not affirmatively appear.
Aitken and DeSelms for appellant. There is, however, among the papers pertaining to this case, an affidavit,
Hartigan and Welch for appellee. dated April 4, 1908, signed by Bernardo Chan y Garcia, an employee of the
attorneys of the bank, showing that upon that date he had deposited in the
STREET, J.: Manila post-office a registered letter, addressed to Engracio Palanca
Tanquinyeng, at Manila, containing copies of the complaint, the plaintiff's
affidavit, the summons, and the order of the court directing publication as
This action was instituted upon March 31, 1908, by "El Banco Espanol- aforesaid. It appears from the postmaster's receipt that Bernardo probably
Filipino" to foreclose a mortgage upon various parcels of real property used an envelope obtained from the clerk's office, as the receipt purports to
situated in the city of Manila. The mortgage in question is dated June 16, show that the letter emanated from the office.
1906, and was executed by the original defendant herein, Engracio Palanca
Tanquinyeng y Limquingco, as security for a debt owing by him to the bank.
Upon March 31, 1906, the debt amounted to P218,294.10 and was drawing The cause proceeded in usual course in the Court of First Instance; and the
interest at the rate of 8 per centum per annum, payable at the end of each defendant not having appeared, judgment was, upon July 2, 1908, taken
quarter. It appears that the parties to this mortgage at that time estimated against him by default. Upon July 3, 1908, a decision was rendered in favor
the value of the property in question at P292,558, which was about P75,000 of the plaintiff. In this decision it was recited that publication had been
in excess of the indebtedness. After the execution of this instrument by the properly made in a periodical, but nothing was said about this notice having
mortgagor, he returned to China which appears to have been his native been given mail. The court, upon this occasion, found that the indebtedness
country; and he there died, upon January 29, 1810, without again returning of the defendant amounted to P249,355. 32, with interest from March 31,
to the Philippine Islands. 1908. Accordingly it was ordered that the defendant should, on or before
July 6, 1908, deliver said amount to the clerk of the court to be applied to
the satisfaction of the judgment, and it was declared that in case of the
As the defendant was a nonresident at the time of the institution of the failure of the defendant to satisfy the judgment within such period, the
present action, it was necessary for the plaintiff in the foreclosure proceeding
mortgage property located in the city of Manila should be exposed to public
to give notice to the defendant by publication pursuant to section 399 of the sale. The payment contemplated in said order was never made; and upon
Code of Civil Procedure. An order for publication was accordingly obtained July 8, 1908, the court ordered the sale of the property. The sale took place
from the court, and publication was made in due form in a newspaper of the upon July 30, 1908, and the property was bought in by the bank for the
city of Manila. At the same time that the order of the court should deposit in sum of P110,200. Upon August 7, 1908, this sale was confirmed by the
the post office in a stamped envelope a copy of the summons and complaint
court.
directed to the defendant at his last place of residence, to wit, the city of
Amoy, in the Empire of China. This order was made pursuant to the
following provision contained in section 399 of the Code of Civil Procedure: About seven years after the confirmation of this sale, or to the precise, upon
June 25, 1915, a motion was made in this cause by Vicente Palanca, as
administrator of the estate of the original defendant, Engracio Palanca
Tanquinyeng y Limquingco, wherein the applicant requested the court to set
Jurisdiction over the person is acquired by the voluntary appearance of a Though nominally against person, such suits are to vindicate liens;
party in court and his submission to its authority, or it is acquired by the they proceed upon seizure; they treat property as primarily indebted;
coercive power of legal process exerted over the person. and, with the qualification above-mentioned, they are substantially
property actions. In the civil law, they are styled hypothecary actions,
10 | E l B a n c o E s p a n o l F i l i p i n o v . P a l a n c a / P o l i t i c a l R e v i e w 2
subsequent proceedings will be set aside, and the litigation will be renewed, The Code of Civil Procedure purports to be a complete system of practice in
proceeding again from the date mentioned as if the progress of the action civil causes, and it contains provisions describing with much fullness the
had not been interrupted. The proponent of the motion does not ask the various steps to be taken in the conduct of such proceedings. To this end it
favor of being permitted to interpose a defense. His purpose is merely to defines with precision the method of beginning, conducting, and concluding
annul the effective judgment of the court, to the end that the litigation may the civil action of whatever species; and by section 795 of the same Code it is
again resume its regular course. declared that the procedure in all civil action shall be in accordance with the
provisions of this Code. We are therefore of the opinion that the remedies
There is only one section of the Code of Civil Procedure which expressly prescribed in sections 113 and 513 are exclusive of all others, so far as
recognizes the authority of a Court of First Instance to set aside a final relates to the opening and continuation of a litigation which has been once
judgment and permit a renewal of the litigation in the same cause. This is as concluded.
follows:
The motion in the present case does not conform to the requirements of
SEC. 113. Upon such terms as may be just the court may relieve a either of these provisions; and the consequence is that in our opinion the
party or legal representative from the judgment, order, or other action of the Court of First Instance in dismissing the motion was proper.
proceeding taken against him through his mistake, inadvertence,
surprise, or excusable neglect; Provided, That application thereof be If the question were admittedly one relating merely to an irregularity of
made within a reasonable time, but in no case exceeding six months procedure, we cannot suppose that this proceeding would have taken the
after such judgment, order, or proceeding was taken. form of a motion in the cause, since it is clear that, if based on such an
error, the came to late for relief in the Court of First Instance. But as we
An additional remedy by petition to the Supreme Court is supplied by have already seen, the motion attacks the judgment of the court as void for
section 513 of the same Code. The first paragraph of this section, in so far as want of jurisdiction over the defendant. The idea underlying the motion
pertinent to this discussion, provides as follows: therefore is that inasmuch as the judgment is a nullity it can be attacked in
any way and at any time. If the judgment were in fact void upon its face, that
When a judgment is rendered by a Court of First Instance upon is, if it were shown to be a nullity by virtue of its own recitals, there might
default, and a party thereto is unjustly deprived of a hearing by possibly be something in this. Where a judgment or judicial order is void in
fraud, accident, mistake or excusable negligence, and the Court of this sense it may be said to be a lawless thing, which can be treated as an
First Instance which rendered the judgment has finally adjourned so outlaw and slain at sight, or ignored wherever and whenever it exhibits its
that no adequate remedy exists in that court, the party so deprived of head.
a hearing may present his petition to the Supreme Court within sixty
days after he first learns of the rendition of such judgment, and not But the judgment in question is not void in any such sense. It is entirely
thereafter, setting forth the facts and praying to have judgment set regular in form, and the alleged defect is one which is not apparent upon its
aside. . . . face. It follows that even if the judgment could be shown to be void for want
of jurisdiction, or for lack of due process of law, the party aggrieved thereby
It is evident that the proceeding contemplated in this section is intended to is bound to resort to some appropriate proceeding to obtain relief. Under
supplement the remedy provided by section 113; and we believe the accepted principles of law and practice, long recognized in American courts,
conclusion irresistible that there is no other means recognized by law a proper remedy in such case, after the time for appeal or review has passed,
whereby a defeated party can, by a proceeding in the same cause, procure a is for the aggrieved party to bring an action to enjoin the judgment, if not
judgment to be set aside, with a view to the renewal of the litigation. already carried into effect; or if the property has already been disposed of he
may institute suit to recover it. In every situation of this character an
11 | E l B a n c o E s p a n o l F i l i p i n o v . P a l a n c a / P o l i t i c a l R e v i e w 2
appropriate remedy is at hand; and if property has been taken without due had no opportunity to be heard, certainly we cannot say that there is due
process, the law concedes due process to recover it. We accordingly old that, process of law. Resultantly, "A judgment which is void upon its face, and
assuming the judgment to have been void as alleged by the proponent of this which requires only an inspection of the judgment roll to demonstrate its
motion, the proper remedy was by an original proceeding and not by motion want of vitality is a dead limb upon the judicial tree, which should be lopped
in the cause. As we have already seen our Code of Civil Procedure defines off, if the power so to do exists. It can bear no fruit to the plaintiff, but is a
the conditions under which relief against a judgment may be productive of constant menace to the defendant." (Mills vs. Dickons, 6 Rich [S. C.], 487.)
conclusion for this court to recognize such a proceeding as proper under
conditions different from those defined by law. Upon the point of procedure
here involved, we refer to the case of People vs. Harrison (84 Cal., 607)
wherein it was held that a motion will not lie to vacate a judgment after the
lapse of the time limited by statute if the judgment is not void on its face;
and in all cases, after the lapse of the time limited by statute if the judgment
is not void on its face; and all cases, after the lapse of such time, when an
attempt is made to vacate the judgment by a proceeding in court for that
purpose an action regularly brought is preferable, and should be required. It
will be noted taken verbatim from the California Code (sec. 473).
The conclusions stated in this opinion indicate that the judgment appealed
from is without error, and the same is accordingly affirmed, with costs. So
ordered.
Separate Opinions
12 | E l B a n c o E s p a n o l F i l i p i n o v . P a l a n c a / P o l i t i c a l R e v i e w 2
DIGEST 1 subsequent thereto. The basis of this application was that the order of
default and the judgment rendered thereon were void because the court had
* JURISDICTION, HOW ACQUIRED: Jurisdiction over the property which is never acquired jurisdiction over the defendant or over the subject of the
the subject of the litigation may result either from a seizure of the property action.
under legal process, whereby it is brought into the actual custody of the law,
or it may result from the institution of legal proceedings wherein, under ISSUE:
special provisions of law, the power of the court over the property is
recognized and made effective. * Whether or not the lower court acquired jurisdiction over the defendant
* The action to foreclose a mortgage is said to be a proceeding quasi in rem, and the subject matter of the action
by which is expressed the idea that while it is not strictly speaking an action
in rem yet it partakes of that nature and is substantially such.
* DUE PROCESS IN FORECLOSURE PROCEEDINGS: Property is always * Whether or not due process of law was observed
assumed to be in the possession of its owner, in person or by agent; and he
may be safely held, under certain conditions, to be affected with knowledge
that proceedings have been instituted for its condemnation and sale. RULING:
On Jurisdiction
FACTS:
The word “jurisdiction” is used in several different, though related, senses
since it may have reference (1) to the authority of the court to entertain a
Engracio Palanca Tanquinyeng y Limquingco mortgaged various parcels of
particular kind of action or to administer a particular kind of relief, or it may
real property in Manila to El Banco Espanol-Filipino. Afterwards, Engracio
refer to the power of the court over the parties, or (2) over the property which
returned to China and there he died on January 29, 1810 without returning
is the subject to the litigation
again to the Philippines. The mortgagor then instituted foreclosure
proceeding but since defendant is a non-resident, it was necessary to give The sovereign authority which organizes a court determines the nature and
notice by publication. The Clerk of Court was also directed to send copy of extent of its powers in general and thus fixes its competency or jurisdiction
the summons to the defendant’s last known address, which is in Amoy, with reference to the actions which it may entertain and the relief it may
China. It is not shown whether the Clerk complied with this requirement. grant.
Nevertheless, after publication in a newspaper of the City of Manila, the
cause proceeded and judgment by default was rendered. The decision was How Jurisdiction is Acquired
likewise published and afterwards sale by public auction was held with the
bank as the highest bidder. On August 7, 1908, this sale was confirmed by Jurisdiction over the person is acquired by the voluntary appearance of a
the court. However, about seven years after the confirmation of this sale, a party in court and his submission to its authority, or it is acquired by the
motion was made by Vicente Palanca, as administrator of the estate of the coercive power of legal process exerted over the person.
original defendant, wherein the applicant requested the court to set aside the
order of default and the judgment, and to vacate all the proceedings Jurisdiction over the property which is the subject of the litigation may
13 | E l B a n c o E s p a n o l F i l i p i n o v . P a l a n c a / P o l i t i c a l R e v i e w 2
result either from a seizure of the property under legal process, whereby it is and is conducted as such. This, however, does not affect the proposition that
brought into the actual custody of the law, or it may result from the where the defendant fails to appear the action is quasi in rem; and it should
institution of legal proceedings wherein, under special provisions of law, the therefore be considered with reference to the principles governing actions in
power of the court over the property is recognized and made effective. In the rem.
latter case the property, though at all times within the potential power of the
court, may never be taken into actual custody at all. An illustration of the
jurisdiction acquired by actual seizure is found in attachment proceedings,
where the property is seized at the beginning of the action, or some
subsequent stage of its progress, and held to abide the final event of the
litigation. An illustration of what we term potential jurisdiction over the res,
is found in the proceeding to register the title of land under our system for
the registration of land. Here the court, without taking actual physical
control over the property assumes, at the instance of some person claiming
to be owner, to exercise a jurisdiction in rem over the property and to
adjudicate the title in favor of the petitioner against all the world.
14 | E l B a n c o E s p a n o l F i l i p i n o v . P a l a n c a / P o l i t i c a l R e v i e w 2
DIGEST 2
15 | E l B a n c o E s p a n o l F i l i p i n o v . P a l a n c a / P o l i t i c a l R e v i e w 2