Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No.

L-57338 July 23, 1987

WILLIAM B. BORTHWICK, petitioner, vs. HON. FLORELIANA CASTRO-BARTOLOME, Presiding Judge, Br. XV, Makati, of the Court of First Instance of Rizal; JOSEPH E. SCALLON, and JEWELL C. SCALLON, respondents. NARVASA, J.: By action commenced in the Circuit Court of the First Circuit, State of Hawaii, U.S.A.,1 Joseph E. Scallon sought to Compel payment by William B. Borthwick on four (4) promissory notes2 in the amounts of $32,408.95, $29,584.94, $2,832.59 and $40,000.00, plus stipulated interest. Scallon's complaint alleged, inter alia, that Borthwick, an American citizen living in the Philippines, owned real property interests in Hawaii where he last resided and transacted business therein; that business dealings which transpired in Honolulu, Hawaii had given rise to the promissory notes sued upon, and Borthwick had failed to pay the sums thereunder owing upon maturity and despite demand.3 Attached to the complaint were the promissory notes, which although uniformly specifying the city of Palos Verdes, Los Angeles, California as the place of payment, also provided that in the event that payment *** shall not have been made in full on or before the maturity date *** at *** (such) place ***, payee may select, at his option, Manila, Philippines, or Honolulu, Hawaii as additional places for payment *** and *** any court in any of said places having jurisdiction over the subject matter shall be a proper Court for the trial of any action brought to enforce payment of this note and the law of the place in which said action is brought shall apply. 4 Borthwick being then in Monterey, California, summons5 was served upon him personally in that place, pursuant to Hawaiian law allowing service of process on a person outside the territorial confines of the State, if he had otherwise submitted himself to the jurisdiction of its courts as to causes of action arising from, among others, the act of transacting any business within Hawaii6 alleged to consist as to Borthwick in the negotiation and dealings regarding the promissory notes. Borthwick ignored the summons. Default was entered against him, and in due course a default judgment was rendered as follows:
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DEFAULT JUDGMENT That Defendant WILLIAM B. BORTHWICK having fatted to plead or otherwise defend in the aboveentitled action and his default having been duly entered herein; Now, upon the application of the Plaintiff JOSEPH E. SCALLON and upon the affidavit that the Defendant WILLIAM B. BORTHWICK is indebted to said Plaintiff in the sum of $104,817.48. IT IS HEREBY ORDERED, ADJUDGED, and decreed that Plaintiff JOSEPH E. SCALLON recover from Defendant WILLIAM B. BORTHWICK the sum of $104,817.48 together with

(1) The transaction of any business within the State; xxx xxx xxx

(3) The ownership, use or possession of any real estate situated in this State; xxx xxx xxx

(b) Service of process upon any person who is subject to the jurisprudence of the courts of this State, as provided in this section, may be made as provided by sections 634-36, if he cannot be found in the State, with the same force and effect as though summons had been personally served within this State. [ 634-36] Manner of service under sections 634-33 to 35. When service of summons is provided for by sections 634-33, 634-34, or 634-35, service shall be made by leaving a certified copy thereof with the director of regulatory agencies or his deputy, *** provided that notice of the service and a certified copy of the summons are served upon the defendant personally by any person authorized to serve process in the place which he may be found or appointed by the court for that purpose, or sent by certified or registered mail ***. The service shall be deemed complete upon delivery of the required papers to the defendant outside the State, personally or by mail as provided; Rollo, pp. 143144 interest in the sum of $41,807.93, costs of Court in the sum of $37.00 and attorney's fees in the sum of $4,290.64 for a total sum of $150,953.05. DATED: Honolulu, Hawaii, APR. 30, 1987. (Sgd.) V. CHING Clerk of the above-entitled Court 7 However, Scallon's attempts to have the judgment executed in Hawaii and California failed, because no assets of Borthwick could be found in those states.8 Scallon and his wife, Jewell, then came to the Philippines and on March 15, 1980 brought suit against Borthwick in the Court of First Instance of Makati,9 seeking enforcement of the default judgment of the Hawaii Court and asserting two other alternative causes of action.10 The sheriff's initial efforts to serve summons on Borthwick personally at his address at 861 Richmond St., Greenhills, Mandaluyong, Metro Manila having been unsuccessful Borthwick was "always out on official business" the sheriff effected substituted service by leaving a copy of the summons and the complaint with Borthwick's "house caretaker," a man named Fred Daniel.11 Borthwick filed no answer to the Scallons' complaint. He was declared in default. After due proceedings judgment by default was rendered against him, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered as follows: 1. The decision of the Court of Hawaii in Civil Case No. 56660 reading:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff JOSEPH E. SCALLON recover from Defendant WILLIAM B. BORTHWICK the sum of $104,817.48 together with interest in the sum of $41,807.93, costs of Court in the sum of $37.00 and attorney's fees in the sum of $4,290.64 for a total sum of $150,53.05. may be, as it is hereby ordered, enforced in the Philippines. 2. The second alternative cause of action in the event that the satisfaction of the said judgment becomes impossible, the rescission of the agreement (Exh. L) of the parties is hereby granted. Defendant Borthwick is hereby ordered: (a) To return and deliver to plaintiffs Joseph and Jewell Scallon their 800 shares of stock of Manila Memorial Park Cemetery, Inc. and 180 shares of stock of TransPacific Development Management Corporation, together with any and/or all stock dividends, cash dividends and similar corporate distributions accruing to said shares of stock from and after December 3, 1973 (the date of the Agreement, Exh. L); (b) In the event that such shares cannot be returned and delivered, to pay to plaintiff Scallon the value of the same from the execution of the agreement, Exh. L, together with any increase in value from the said date to the finality of this judgment. SO ORDERED. 12 Again, it was with Fred Daniel, Identifying himself as Borthwick's "houseboy," that a copy of the decision was left.13 No response from Borthwick was forthcoming until after the Court subsequently amended its judgment so as to make the sums due under the Hawaii Court decision payable in their equivalent in Philippine currency.14 Notice of this amendatory order was somehow personally accepted by Borthwick at this time. Borthwick then moved for a new trial, claiming that it was by accident, mistake and excusable negligence that his "off and on itinerant gardener," Daniel, failed to transmit the summons to him, which omission consequently prevented Borthwick from knowing of the judicial proceedings against him. Alleging too that "the promissory notes did not arise from business dealings in Hawaii," nor "did (he) own real estate" therein,15 Borthwick contended that the judgment sought to be enforced was invalid for want of jurisdiction of the Hawaii Court over the cause of action and over his person. The motion for new trial was denied by the Trial Court upon the factual finding that "Fred Daniel is a responsible person" "of suitable age and discretion" "resident of the address *** (of the) defendant" on whom substituted service of summons had been duly made.16 As to Borthwick's attack on the validity of the foreign judgment, the Trial Court ruled that "under the ** (Hawaii Revised Statute) cited by the defendant the Hawaii Court has jurisdiction" because the factual premises upon which the exercise of such jurisdiction was based "had not been refuted by the defendant" although he "appears to be a lawyer, and the summons in the Hawaii case was served personally on him."17 Finally, the Trial Court disposed of Borthwick's other defenses18 saying that the present action "is (for) the enforcement of a foreign judgment" where the validity of his defenses to the original action is immaterial.19 Borthwick proceeded directly to this Court and filed a petition for review,20 raising issues of law, framed as follows: 1. Is a foreign judgment against a person rendered without jurisdiction over the cause of action and without proper summons to the defendant enforceable in the Philippines?

2. Has the respondent Judge acquired jurisdiction over the person of defendant when summons was served on an itinerant gardener who did not reside in defendant's house? 3. Where a motion for new trial was filed on time, duly supported with affidavits to prove the grounds relied upon, should not the Court grant the same? 21 It is true that a foreign judgment against a person is merely "presumptive evidence of a right as between the parties," and rejection thereof may be justified, among others, by "evidence of a want of jurisdiction" of the issuing authority, under Rule 39 of the Rules of Court.22 In the case at bar, the jurisdiction of the Circuit Court of Hawaii hinged entirely on the existence of either of two facts in accordance with its State laws, i.e., either Borthwick owned real property in Hawaii, or the promissory notes sued upon resulted from his business transactions therein. Scallon's complaint clearly alleged both facts. Borthwick was accorded opportunity to answer the complaint and impugn those facts, but he failed to appear and was in consequence declared in default. There thus exists no evidence in the record of the Hawaii case upon which to lay a conclusion of lack of jurisdiction, as Borthwick now urges. The opportunity to negate the foreign court's competence by proving the non-existence of said jurisdictional facts established in the original action, was again afforded to Borthwick in the Court of First Instance of Makati, where enforcement of the Hawaii judgment was sought. This time it was the summons of the domestic court which Borthwick chose to ignore, but with the same result: he was declared in default. And in the default judgment subsequently promulgated, the Court a quo decreed enforcement of the judgment affirming among others the jurisdictional facts, that Borthwick owned real property in Hawaii and transacted business therein. In the light of these antecedents, it is plain that what Borthwick seeks in essence is one more opportunity, a third, to challenge the jurisdiction of the Hawaii Court and the merits of the cause of action which that Court had adjudged to have been established against him. This he may obtain only if he succeed in showing that the declaration of his default was incorrect. He has unfortunately not been able to do that; hence, the verdict must go against him. It is not for this Court to disturb the express finding of the Court of First Instance that Daniel was Borthwick's resident domestic houseboy, and of sufficient age and discretion to accept substituted service of summons for Borthwick. Under Rule 42 of the Rules of Court, a party appealling from the Courts of First Instance (now the Regional Trial Courts) to the Supreme Court may "raise only questions of law (and) no other question **,"23 and is thus precluded from impugning the factual findings of the trial court, being deemed to have admitted the correctness of such findings24 and waived his right to open them to question.25 In any case, a review of the records shows that the Trial Court was correct in refusing to believe Borthwick's representation that "Daniel gardens at the residence of Borthwick, then goes home to La Union after gardening itinerantly." As said Court observed, that situation is "ridiculous," it being I "queer and hardly coincidental why on all papers served on the defendant, it was Fred Daniel who signed and acknowledged receipt. "26 There was therefore no error committed by the Trial Court when it denied Borthwick's motion to lift the order of default (which is what the motion for new trial actually is) because Borthwick had failed to establish any proper ground therefor. WHEREFORE, the petition for review is denied, with costs against petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC GR No. L-3693 July 29, 1950 MARGARET cherubin relapsing-Appellant, v.. SILVESTRE cherubin turned-appellee. Manuel A. Algiers in representation of the appellant and appellant. Maximino V. Bello representation of appeal and appeal. PAUL, J. : Querubin is Caoayan Silvestre, Ilocos Sur, Filipino parents. In 1926 he moved to the United States with the object of study but for the purpose of returning to his native country after. He earned the title of "Master of Arts and Sciences" in the "University of Southern California," institution located in Los Angeles, California, where the appeal began to live since 1934. On October 20, 1943, Silvestre Querubin married the appellant, Margaret Cherubin, in Albuquerque, New Mexico.As a result of this marriage was born Querubina Cherubin, who, at the time of the hearing of the case in the Court of First Instance of Ilocos Sur, was four years old or so. The appellant filed in 1948 a petition for divorce against the appeal, based on "mental cruelty." On February 7, 1948 the divorce was granted to the husband pursuant to a counterclaim filed by and based on the infidelity of his wife. On April 5, 1949, and at the request of the defendant and contrademandante (used inthis Starring of habeas corpus ), the Los Angeles Superior Court issued an interlocutory order provides: It is THEREFORE ordered, adjudge and decree That the interlocutory Judgement of divorce hereinbefore Entered on February 27, 1948, in Book 1891, page 319, be and is hereby modified the Same in the Following particulars in Connection with the custody of the minor child of the parties only: (1) The care, custody and control of the minor child of the parties, Cherubim Cherubin, is hereby Award to defendant and cross-complainants; (2) Said child is to be Maintained in a neutral home, subject to the right of reasonable visitation on the part of Both parties to this action; (3) Each party Shall Have the right to take said child home away from said neutral plaintiff and cross-But defendant is restrained from child said to her Taking place of residence; (4) Each party is restrained from Molesting the other, or interfering in Any Way With The other's right of reasonable visitation of said child; (5) Each party is restrained from Removing the child from the State of California Without First Securing the permission of the court, said parties are restrained from Further Keeping the

child out of the County of Los Angeles for more than one Day Without Securing the first Consent of the court. The defendant left San Francisco on November 7, 1949, arriving at Manila on 25 March. In 27 months I get to Caoayan above, Ilocos Sur, where he now lives, taking the girl Querubina, who brought to the Philippines because, as a father, wanted to prevent it from reaching her knowledge of the improper conduct of its own mother.The defendant wanted his daughter to be educated in an environment of high morality. At the request of the appellant Margaret, the Superior Court of Los Angeles, California, on November 30, 1949 amended its order of April 5, 1949, provides as follows: Under interlocutory decree of March 7, 1949, the child, a girl now 3 1 / 2 years old, WAS deft Granted to husband, But the child WAS to be Kept in a neutral home; Both parties Were Given reasonable visitation and restrained Were Both Removing the child from out of the state. Deft have taken the child with him to the Philippine Islands. At time of trial denied custody WAS Apparently she Was Then pft Because Living with Another Man. She is now married to this man and They Have a well equipped home. Appears to be a ptf Devoted mother. She have one child, the issue of her present marriage, and is caring for a child Also That Was abandoned by friends of hers Certain. Regularly ptf's husband is employed and Permanently.Witnesses testified in Behalf of the ptf in reference to her motherly Qualities and the condition of her home.She visited the child in question sufficiently It WAS When the child in the home and neutral Brought her toys and other articles. Service of the Order to Show Cause Was Made on deft's attorneys of record. The interlocutory decree is modified so as to Provides that of the child custody Shall Be Awarded to ptf and deft Shall Have the right of reasonable visitation. Deft ptf Shall pay for the support of the child $ 30 Each month on the 1st day thereof, commencing Jan. 1950. On the day of the hearing of this cause of habeas corpus in Ilocos Sur, the defendant stated that I never try to change their citizenship, that when he came to the country had a P2, 000 saving, that three weeks after his arrival he received offers to teach with P250 monthly salary at the school established by Dr. Sobrepea in Villasis, Pangasinan, which has never been deprived of parental rights by a court, or found absent from the Philippines, or subject to civil interdiction. According to the court a quo , the defendant is of irreproachable conduct. On February 10, 1950 the appellant Margaret Cherubin, through his attorney, presented in the Court of First Instance of Ilocos Sur a request for habeas corpus claiming custody of his daughter Querubina, citing as grounds the court's interlocutory decree California he gave her such custody. After the corresponding view, the court a quo, on February 28, 1950 denied the request. The appellant comes on appeal before this Court. The appellant contends that under Article 48 of Rule 39, Exhibit A-1 Order of the Court of Los Angeles, California, to be met in the Philippines. Its operative part reads: The interlocutory decree is modified so as to the custody of the Provides that child Shall Be Awarded to ptf and deft Shall Have the right to reasonable visitation. Deft ptf Shall pay for the support of the child $ 30 Each month on the 1st day thereof, commencing Jan. 1950. An interlocutory decree concerning the custody of a child is not a final decision. By their nature is not fixed. It is subject to change as circumstances change. In the first decree gave the father custody of the child. At the request of the father, was issued on April 5 decree forbidding the mother to the

minus key to her house because she was again in adulterous relations with another man. When he was not the defendant in Los Angeles, because they had come to the Philippines, last amended the order and ordered that custody was entrusted to the appellant, the Respondent paid her $ 30 a month for handling the child. The pension is not fixed and increases or decreases as increases or decreases the needs of the pensioner or as conditions warrant that gives economicasdel. Because the interlocutory decree, Exhibit A-1, does not constitute final decision, there is no compliance order in the Philippines. In the United States itself can not be ordered compliance with an interlocutory order in the court of another state. The rule of Common Knowledge That is the definitive Judgement of a Court of Another State Between the parties on the Same Same cause of action, on the Merits of the case is conclusive, But It Must Be a Judgement on the Merits definitive only. Where is Merely the interlocutory Judgement, the determination of the question by the court it did not rendered Which settle and finally adjudge the rights of the parties. "(National Park Bank v.. Old Colony Trust Co., 186 NYS, 717.) As Already Stated the Minnesota decree, to the Extent That it is final and not subject to modification, is Entitled to the protection of the full faith and credit clause of the federal Constitution and enforced In This Must Be state. If, howeve, a part of the Minnesota decree in not final, is subject to modification But the court Which rendered by it, Then Neither the United States Constitution The Principle of comity rules compels the courts to enforce state of This That part of the decree ; court for no other Than the one original decree Granting the undertaker to administer relief Could Without Bringing About a conflict of authority. (Levine vs..Levine, 187 Pac., 609.) A Judgement rendered by a Competent court, HAVING jurisdiction in one state, is conclusive on the Merits in the courts of Every other state, made the basis of when to an action and can not be reinvestigated the Merits. Our own Supreme Court Holds so. Cook vs. Thornhill, 13 TEX. 293, 65 Am Dec. 63. But Before Judgement rendered in Such a state one is Entitled to Acceptance, in the courts of Another State, as conclusive on the Merits, It Must Be a Final Judgement and not an interlocutory decree Merely. Freeman on Judgement, 575, Baugh vs. Baugh, 4 Bibb (7 Ky.) 556; Brinkley vs. Brinkley, 50 NY 184, 10 Am Rep. 460; Griggs, vs. Becker, 87 Wis.. 313, 58 NW 396. (Walker v.. Garland et al., 235 SW, 1078.) In general, a divorce decree entrusting the custody of a child of the marriage to one of the spouses is respected by the courts of other states "at the time and under the Circumstances of STI rendition Such a decree But That has no controlling effects in Another state as to facts or subsequently to the Conditions Arising date of the decree, and the state courts of the Latter May, in proper proceedings, the award upon proof of custody Otherwise Matters Subsequent to the decree Which justify the change in the interest of the child . " (20 ALR, 815.) In this case, circumstances have changed. Querubina is no longer in Los Angeles but Caoayan, Ilocos Sur. Under the care of his father. There is an enormous distance from Los Angeles and the present residence of the child and the cost of passage to that city would be very high, and it is still possible that this was the extent of the appellant.There is no evidence that she is able to pay the travel expenses of the child and to accompany it. She is not a pack of cigarettes that can be sent by mail to Los Angeles. No evidence that the circumstances that occurred in November 1949 in Los Angeles, in the same condition prevailed until the time that was the case in the Court of First Instance of Ilocos Sur. Nor is there evidence that the applicant has sufficient funds to cover the girl's journey from Caoayan

Querubina, Ilocos Sur, to Los Angeles, California, and to answer your food, care and education, and the record shows that the father, more than anyone, is interested in the care and education of his daughter, and you have savings of more than P2, 000 deposited in a bank, we believe the Court a quo did not err in denying the request. The court could not, without sufficient evidence, to have no remorse of conscience delivery of the child to the appellant's lawyer: It is your obligation to ensure the safety and welfare of it. It is not just to solve the preferential right of the father and the mother in custody. The vital and momentous question of the future of the child is above every consideration. The State ensures its citizens. Article 171 of the Civil Code provides that "the courts may deprive parents of parental rights , or suspend the exercise of this, if we tried their children with excessive harshness or if they give orders, advice or examples corrutores. " In Cortes against Castillo and another (41 Phil., 495), this Court stated that no errors the court of first instance by appointing the grandmother and guardian of two children, instead of his mother who was convicted of adultery. Article 154 of the Civil Code provides that "The father and mother in his absence, have authority over their legitimate children not emancipated." However, if done improper exercise of this power, the courts, as already mentioned, it can render a citizen and to instruct the child to the other institutions, as provided in Article 6 of Rule 100, which is reproduction of Article 771 Act No. 190. In the case of Lozano against Martinez and De Vega (36 Phil., 1040), in which the first, in a writ of habeas corpus , claiming against his wife custody of their child under 10 years, this Court, in appeal, stated that the court a quo did not abuse the discretion granted to it by Article 771 of the Code of Civil Procedure to deny the request. This interpretation of the article as a proper exercise of the discretion of a court of first instance has been reaffirmed in the case of Pelayo against Lavin (40 Phil., 529). In the submission, there is not even claim that the court a quo has abused its discretion. This Court should not overturn his performance. At the hearing of the case in the Court of First Instance of Ilocos Sur, the defendant stated he had brought his daughter to the Philippines because he wanted to prevent her knowing about the misconduct and infidelity committed by the mother, preventing the saw live with the man who had insulted his father. The defendant said he wanted his daughter criase in an atmosphere of high morale, and not indirectly punish the infidelity of the wife.Under the Divorce Act No. 2710, the guilty spouse is not entitled to custody of minor children. The current legislation, morality and public order interesesdel advise that the child must be outside the care of a mother who has violated the oath of fidelity to her husband. We believe that this Court should not enforce a decree issued by a foreign court, in contravention of our laws and the sound principles of morality that inform our social structure on family relationships. In the matter of Manuela Barreto against Augusto Gonzales Gonzales (58 Phil., 72), were asked by the applicant that the divorce obtained by the defendant in Reno, Nevada on November 28, 1927, was confirmed and ratified by the Court of First Instance of Manila. This court ruled in light of the request. Taking into account Article 9 of the Civil Code provides that "The laws relating to family rights and duties, or the status, condition and legal capacity of persons, forced the Spaniards (Philippines) even if they reside in a foreign country" and Article 11 of the code that reads in part qye "... prohibitive laws concerning persons, their acts or property, and aimed at public order and morality, was not without effect by laws or judgments, or by rules or conventions acordades in a foreign country, "this Court, on appeal, stated:" The parties, by mutual agreement, can not compel the court to approve their own acts, or to allow personal relationships citizens of these islands are affected by the decrees of foreign countries in a way that our government believes it is contrary to public policy and moral line, "and reversed the lower court decision.

The judgments of foreign courts can not force proper in the Philippines they are contrary to the laws, customs and public order. If such decisions, for the simple theory of reciprocity, international comity and civility are sufficient basis for our courts to decide on the basis of the same, then our courts would be in the poor position of having to make decisions contrary to our laws, customs and public order. This is absurd. In Ingenohl against Olsen & Co. (47 Phil., 199), discussed the alcanse of comity. Article 311 of the Code of Civil Procedure, which is now Article 48, Rule 39, was the basis for action by Ingenohl. Requested in its application that the Court of First Instance of Manila, according to sentencing dictated by the Supreme Court of Hongkong. After the corresponding view, the court ruled in favor of the plaintiff with a legal interest and costs. On appeal it was argued that the lower court erred in not declaring that the decision and the Supreme Court ruling was dictated Hongkong and registration as a result of a manifest error of fact and law. This Court stated that "It is a principle well established that, in the absence of a treaty or law, and under the courtesy and international law, a conviction by a court of competent jurisdiction of a foreign country in which the parties have appeared and discussed an issue in the background, will be recognized and enforced in any other foreign country. " But taking into account Article 311 of the Code of Civil Procedure which provides that "the sentence can be rejected by a lack of competition test, or having been issued without prior notice to the party, or that there was collusion, fraud or manifest error of law or fact, "concluded:" Under the Act when a person tries to enforce a foreign sentence, the defendant is entitled to exercise any such defense, and if there were to demonstrate that any of them properly, destroy the purposes of sentencing. " Decision reversed the lower court ruling and declared that "the ruling of the Court of Hong Kong against the defendant, constituted a manifest mistake of fact and law, and for that reason should not be enforced in the Philippines . " If the request is granted, the child would be under his mother feud cuidadode judicially declared guilty of marital infidelity, would live together under one roof with the man who dishonored his mother and offended his father would play and grow with the fruit of love adultery of his mother would come to puberty with the idea that a woman who was unfaithful to her husband is entitled to custody of his daughter. In such an environment can not a girl growing up in a proper way: if you come to know during his teens that his father has been betrayed by his mother with the man she lives, that girl would live under an impression of moral inferiority of incalculable consequences and therefore would never be happy, and if, under the influence of his mother, came to believe that infidelity of a wife is just one incident change so fleeting as touched, she would go on the road to perdition. And the moral education that can give her stepfather can hardly be better. If the application is refused, the girl would live with his father the benefit of exclusive paternal care, not the divided attention of a mother who has to attend to her husband, her two daughters and a third girl, the protegee. For the welfare of the child Querubina, which is what matters most in this case, the custody of the father should be considered preferential. In the United States itself, the cardinal point that the courts take into account, is not the claim of the parties or the strength of the interlocutory decree, but the welfare of the child. A Consideration of all the facts and Circumstance leads to the Conclusion That comity does not require the state courts of This, Regardless of the well-being of the child, to lend Their aid to the enforcement of the Iowa decree by Winifred Returning to the custody of her grandmother. A child is not a chattel to Which title and the right of possession by the secured May Be Any decree of court. If the decree rendered by HAD Been a domestic court of Competent jurisdiction, It Would not Have the right to conclusively ESTABLISHED the custody of the child. Between rival in a contest Claimants, This Would Have Been free court,

notwithstanding the decree, to award the custody Solely With An eye to the child's welfare. (State ex rel.Aldridge vs. Aldridge, 204 NW 324.) On habeas corpus by the mother to Obtain possession from the father of two children aged four and six years, Whose custody she HAD Been Alleged her in divorce proceedings Awarded in Another State, it WAS mother Appeared Without That the property, and Had No Means of support save her staff earnings of $ 15 per month, WAS in poor health, and Lived With Her mother, in immoral surroundings, and That the father Was an industrious and sober man, earnings $ 100 per month. Held, That the welfare of the children WAS the only thing to be Considered, and a Judgement Awarding custody to the mother Their Should be reversed. (Kentzler vs. Kentzler, 28 Pac., 370.) The appellant, as a last resort, it invokes the comity of nations . Reciprocity, comity is not absolute. Applies when there is no treaty and equality legislation. It adopts the doctrine of reciprocity when the foreign court has jurisdiction to hear the case, the parties have appeared and discussed the matter at the bottom. Sometimes granted as a privilege but not as strict law. The requested courtesy has not been recognized by this Court when it declared that the rights and duties of family, state, condition and legal capacity of persons are governed by the laws of the Philippines and not those of America (Gonzales against Gonzales, supra ) and gave no credence to the Supreme Court's ruling was erroneous in Hongkong because its findings of fact and law (Ingenohl againstOlsen & Co., supra ). The reciprocity between the states of the American Union is not absolute. It is unbreakable rule. The several cases cited above demonstrate. This is another case: On the question of comity, This court said in the habeas corpus case of In re Stockman, 71 Mich. 180, 38 NW 876: "Comity can not be Considered in a case like this, When the future welfare of the child is the vital question in the case. The good of the child is superior to all other considerations. It is the polar star to guide to the Conclusion in all cases of infants, whether the question is raised upon a writ of habeas corpus or in a court of chancery. " ( Ex parte Leu, 215 NW, 384.) We have seen that the interlocutory order giving custody of the child to the appellant is in conflict with the express provisions of the laws in force in the Philippines. In the first decree and the amendatory entrusted with the custody of the child's father and was banned in the amended order, the mother carrying the child to her house because she was again in illegal relations with another man. But the last amendatory decree, contrary to the sense of justice, law and morality, entrusted the custody of the minor who was the wife of cheating because he was married to who committed adultery. And under the doctrine of comity of nations , the appellant contends that must be met in the Philippines that decree. We believe that for various reasons stated above, the claim is untenable. It confirms the original ruling. The appellant pay the costs. Ozaeta, Bengzon, Montemayor and Reyes, JJ., are satisfied. Tuason, J., concurs in the result.