canon 9 legal ethics

7/27/2019 Canon 9 Legal Ethics

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CANON 9PEOPLE V. VILLANUEVAOn September 4, 1959, the Chief of Police of Alaminos, Laguna, charged Simplicio

Villanueva with the Crime of Malicious Mischief before the Justice of the Peace

Court of said municipality. Said accused was represented by counsel de officio but

later on replaced by counsel de parte. The complainant in the same case was

represented by City Attorney Ariston Fule of San Pablo City, having entered his

appearance as private prosecutor, after securing the permission of the Secretary of

Justice. The condition of his appearance as such, was that every time he would

appear at the trial of the case, he would be considered on official leave of absence,

and that he would not receive any payment for his services. The appearance of City

Attorney Fule as private prosecutor was questioned by the counsel for the accused,

invoking the case of Aquino, et al. vs. Blanco, et al.,

L-1532, Nov. 28, 1947, wherein it was ruled that "when an attorney had been

appointed to the position of Assistant Provincial Fiscal or City Fiscal and therein

qualified, by operation of law, he ceased to engage in private law practice." Counsel

then argued that the JP Court in entertaining the appearance of City Attorney Fulein the case is a violation of the above ruling. On December 17, 1960 the JP issued

an order sustaining the legality of the appearance of City Attorney Fule.

Under date of January 4, 1961, counsel for the accused presented a "Motion to

Inhibit Fiscal Fule from Acting as Private Prosecutor in this Case," this time invoking

Section 32, Rule 27, now Sec. 35, Rule 138, Revised Rules of Court, which bars

certain attorneys from practicing. Counsel claims that City Attorney Fule falls under

this limitation. The JP Court ruled on the motion by upholding the right of Fule to

appear and further stating that he (Fule) was not actually enagaged in private law

practice. This Order was appealed to the CFI of Laguna, presided by the Hon.

Hilarion U. Jarencio, which rendered judgment on December 20, 1961, thepertinent portions of which read:

The present case is one for malicious mischief. There being no reservation by the

offended party of the civil liability, the civil action was deemed impliedly instituted

with the criminal action. The offended party had, therefore, the right to intervene in

the case and be represented by a legal counsel because of her interest in the civil

liability of the accused.

Sec. 31, Rule 127 of the Rules of Court provides that in the court of a justice of the

peace a party may conduct his litigation in person, with the aid of an agent or

friend appointed by him for that purpose, or with the aid of an attorney. Assistant

City Attorney Fule appeared in the Justice of the Peace Court as an agent or friend

of the offended party. It does not appear that he was being paid for his services or

that his appearance was in a professional capacity. As Assistant City Attorney of

San Pablo he had no control or intervention whatsoever in the prosecution of

crimes committed in the municipality of Alaminos, Laguna, because the

prosecution of criminal cases coming from Alaminos are handled by the Office of

the Provincial Fiscal and not by the City Attornev of San Pablo. There could be no

possible conflict in the duties of Assistant City Attorney Fule as Assistant City

Attorney of San Pablo and as private prosecutor in this criminal case. On the other

hand, as already pointed out, the offended party in this criminal case had a right to

be represented by an agent or a friend to protect her rights in the civil action which

was impliedly instituted together with the criminal action.

In view of the foregoing, this Court holds that Asst. City Attorney Ariston D. Fule

may appear before the Justice of the Peace Court of Alaminos, Laguna as privateprosecutor in this criminal case as an agent or a friend of the offended party.

WHEREFORE, the appeal from the order of the Justice of the Peace Court of

Alaminos, Laguna, allowing the apprearance of Ariston D. Fule as private

prosecutor is dismissed, without costs.

The above decision is the subject of the instant proceeding.

The appeal should be dismissed, for patently being without merits.1wph1.t

Aside from the considerations advanced by the learned trial judge, heretoforereproduced, and which we consider plausible, the fallacy of the theory of defense

counsel lies in his confused interpretation of Section 32 of Rule 127 (now Sec. 35,

Rule 138, Revised Rules), which provides that "no judge or other official or

employee of the superior courts or of the office of the Solicitor General, shall

engage in private practice as a member of the bar or give professional advice to

clients." He claims that City Attorney Fule, in appearing as private prosecutor in the

case was engaging in private practice. We believe that the isolated appearance of


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City Attorney Fule did not constitute private practice within the meaning and

contemplation of the Rules. Practice is more than an isolated appearance, for it

consists in frequent or customary actions, a succession of acts of the same kind. In

other words, it is frequent habitual exercise (State vs. Cotner, 127, p. 1, 87 Kan.

864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has

been interpreted as customarily or habitually holding one's self out to the public,

as customarily and demanding payment for such services (State vs. Bryan, 4 S.E.

522, 98 N.C. 644, 647). The appearance as counsel on one occasion is not

conclusive as determinative of engagement in the private practice of law. The

following observation of the Solicitor General is noteworthy:

Essentially, the word private practice of law implies that one must have presented

himself to be in the active and continued practice of the legal profession and that

his professional services are available to the public for a compensation, as a source

of his livelihood or in consideration of his said services.

For one thing, it has never been refuted that City Attorney Fule had been given

permission by his immediate superior, the Secretary of Justice, to represent the

complainant in the case at bar, who is a relative.

CONFORMABLY WITH ALL THE FOREGOING, the decision appealed from should be,

as it is hereby affirmed, in all respects, with costs against appellant..


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PEOPLE V. DE LUNAThis is an appeal, taken by the prosecution, from an order, of the Court of First Instance of

Manila, granting a motion to dismiss filed by the defendant in each one of the above entitled

cases, for lack of jurisdiction and, also, upon the ground that the facts alleged in the

amended informations, filed in said cases, do not constitute the crime of contempt of court

with which said defendants (Eustacio de Luna, Jaime P. Marco, Santos L. Paria, Estela R.

Gordo, Angelo T. Lopez, Generosa H. Hubilla, Oreste Arellano y Rodriguez, Abraham C.

Calaguas, Roque J. Briones, Alawadin I. Bandon, Balbino P. Fajardo, Maria Velez y Estrellas and

Emilio P. Jardinico, Jr.) are charged. It is alleged in said amended informations that, on or

about the 22nd day of December, 1954, in the City of Manila, Philippines, the person accused

in each one of these cases

". . . well knowing that he has not passed the bar examination and was not in any way

authorized to take his oath as a lawyer and after having been duly informed and notified that

certain portions of Republic Act No. 972, known as the Bar Flunkers Act of 1953, are

unconstitutional and therefore void and without force and effect, and that all the petitions of

the candidates including the accused who failed in the examinations of 1946 to 1952,

inclusive, for admission to the bar were refused and denied by the Resolution of the

Honorable, the Supreme Court, promulgated on March 18, 1954, did then and there wilfully,

unlawfully and contemptuously disobey and resist in an insolent and defiant manner the said

Resolution of the Supreme Court directed to him and each and everyone of the petitioners,

and perform acts constituting improper conduct and manifestations that tend directly or

indirectly to impede, obstruct or degrade the administration of justice in all courts of the

Philippines and impair the respect to and attack the authority and dignity of the Honorable,

the Supreme Court and all other inferior courts by then and there, without being lawfully

authorized to do so, taking an oath as a lawyer before a notary public and making

manifestations to that effect before the Honorable, the Supreme Court."cralaw virtua1aw

library

After quoting from Rule 64, section 4, of the Rules of Court, the pertinent part of which

reads:jgc:chanrobles.com.ph

"Where the contempt . . . has been committed against a superior court or judge, or against an

officer appointed by it, the charge may be filed with such superior court . . . ." (Italics our.)

and from the Corpus Juris Secundum, the rule to the effect that

"It is a well-established rule that the power to judge a contempt rest exlusively with the court

contemned and that no court is authorized to punish a contempt against another.

Accordingly, disobedience of the order of a state court is not punishable as for contempt by a

court of another state or by a federal court."cralaw virtua1aw library

the lower court concluded that the contemptuous act allegedly committed by appellees herein

"was committed not against" said court "but against the Supreme Court of the Philippines"

and that, accordingly, the Court of First Instance of Manila "has no jurisdiction to try and

punish" the appellees herein.

This conclusion is untenable. The above-quoted provision of the Rules of Court is permissive

in nature. It is merely declaratory of the inherent power of courts to punish those guilty of

contempt against the same. It does not declare that jurisdiction of the court concerned to so

punish the guilty party is exclusive. Indeed, in promulgating said Rules of Court, this Court

could not have validly denied to other Courts, to which the jurisdiction may have been vested

by statute, the right to exercise said authority, for the rule-making power of the Supreme

Court, under Article VIII, section 13, of the Constitution, is limited to the promulgation of

"rules concerning pleadings, practice and procedure in all courts, and the admission to the

practice of law," and does not extend to the determination of the jurisdiction of the courts of

justice in the Philippines. In fact, section 2 of said Article VIII of the Constitution explicitly

ordains that "Congress shall have the power to define, prescribe and apportion the

jurisdiction of the various courts," thereby implying, necessarily, that such power is withheld

from the Supreme Court. Needless to say, the aforesaid view, quoted from Corpus Juris

Secundum, is good law only "unless otherwise provided by statute" (17 C.J.S., 81), and such

statute, providing "otherwise", exists in the Philippines.

Moreover, the amended informations specifically allege that the defendants herein did

"perform acts constituting improper conduct and manifestations that tend directly or

indirectly to impede, obstruct or degrade the administration of justice in all courts of the

Philippines and impair the respect to and attack the authority and dignity of the Honorable,

the Supreme Court and all other inferior courts." To put it differently the acts charged were

committed, according to said amended informations, in contempt of the Supreme Court, as

well as of "all other courts of the Philippines," including the Court of First Instance of Manila.

Thus, the very authorities cited in the order appealed from do not justify the same.

Again, section 236 of Act No. 190 and section 6 of Rule 64 of the Rules of Court provide that

a person guilty of any of the acts of contempt defined, respectively, in section 232 of said Act

and section 3 of said Rule 64, "may be fined not exceeding one thousand pesos, or

imprisoned not more than six months." Pursuant to section 44 of the Revised Judiciary Act of

1948 (Republic Act No. 296), courts of first instance have original jurisdiction over criminal

cases "in which the penalty provided by law is imprisonment for more than six months, or a

fine of more than two thousand pesos." Inasmuch as a fine not exceeding P1,000 may be

imposed in the cases of contempt under consideration, it follows that the same are within the

original jurisdiction of the Court of First Instance of Manila, although such jurisdiction is

concurrent with that of the Supreme Court, in view of the inherent power of the latter to

punish those guilty of contempt against the same.


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It may not be amiss to add that, in the event of such concurrent jurisdiction over cases of

contempt of court, it would be a good practice to acknowledge the preferential right of the

court against which the act of contempt was committed to try and punish the guilty party.

However, insofar as appellees herein are concerned, on February 3, 1955, this Court passed

and promulgated a resolution of the following tenor:jgc:chanrobles.com.ph

"The Court received from Pedro B. Ayuda a communication of the following tenor:chanrob1es

virtual

"MANIFESTATION

"COMES NOW the undersigned for and in representation of the above-named attorneys and to

this Honorable Court, hereby respectfully makes manifestation that they have taken the oath

of office as Attorneys-at-Law on December 22, 1954 before Mr. Anatolio A. Alcova, a Notary

Public in and for the City of Manila, with office at R-201 Regina Building, Escolta, Manila, in

pursuance of the provisions of Republic Act No. 972;

"There are attached to this manifestation seventeen (17) copies of the oath of office as

Annexes A, B, C, D, E, F, G, H, I, K, L, M, N, O, P, and Q.

"Messrs, Alejandro P. Capitulo, Claro C. Gofredo, and Florencio P. Sugarol of the group took

the bar examinations in August, 1954. They also had taken their oath before this Honorable

Tribunal, January 20, 1955.

"This manifestation is made for all legal effects as they will practice law in all the Courts of

the Philippines.

"Manila, Philippines, January 28, 1955.

(Sgd.) PEDRO B. AYUDA

In his own behalf and on behalf of the others in his capacity as president of the 1946 - 1952

BAR EXAMINEES ASSOCIATION, 2034 Azcarraga, Manila.

"It appearing that the persons mentioned, except Capitulo, Gofredo and Sugarol, have not

passed the Bar Examinations, it was resolved:jgc:chanrobles.com.ph

"A. To refer the matter to the Fiscal, City of Manila for investigation and appropriate action in

connection with Section 3 (e), Rule 64;

"B. As Pedro Ayuda has assumed to be an attorney without authority, he is given 10 days from

notice hereof, within which to explain why he should not be dealt with for contempt of this

Court;

"C. The notary public Anatolio A. Alcoba, member of the Bar, who has illegally administered

the oath to the said persons in disregard of this Courts resolution denying them admission to

the Bar (except Capitulo, Gofredo and Sugarol), is hereby given ten days to show cause why

he should not be disbarred or suspended from the practice of law;

"D. The clerk of Court is directed to furnish copy of this resolution to the Court of Appeals

and to all courts of first instance, the Court of Industrial Relations, the Public Service

Commission, and the Department of Justice;

"E. As to Capitulo, Gofredo and Sugarol, proper action will be taken later in their respective

cases." (pp. 36-37, rec., G. R. No. L- 10245.)

It is clear, from the foregoing resolution, that this Court did not intend to exercise its

concurrent jurisdiction over the acts of alleged contempt committed by appellees herein and

that we preferred that the corresponding action be taken by the City Fiscal of Manila in the

Court of First Instance of Manila. In fine, the latter had no justification whatsoever in refusing

to exercise its jurisdiction over the cases at bar.

The next question for determination is whether the acts charged in the amended informations

constitute contempt of court. After quoting the allegation of said amended informations to

the effect that the defendant in each one of the instant cases

". . . did then and there wilfully, unlawfully and contamptuously disobey and resist in an

insolent and defiant manner the said Resolution of the Supreme Court directed to him, and

each and everyone of the petitioners and perform acts constituting improper conduct and

manifestations that tend directly and indirectly to impede obstruct or degrade the

administration of justice . . ."cralaw virtua1aw library

the lower court had the following to say:jgc:chanrobles.com.ph

"From this allegation, there is no hint whatsoever that any command, order or notification

from the judicial court or any non- judicial person, committee or body clothed by law with

power to punish for contempt has been disobeyed or violated by the herein accused.

Moreover, there is nothing shown in the resolution of the Honorable Supreme Court of March

18, 1974 directing the accused not to take their oath as lawyers. The mere fact of taking an

oath by any person as a lawyer does not make him automatically a lawyer without having

completed the requirements prescribed by the Supreme Court for the admission to the

practice of law. It is necessary before his admission to the Bar that he passes the required bar


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examinations and is admitted by the Supreme Court to practice law as attorney. Our statutes

punish as criminal contempt one assuming to be an attorney or an officer of a court and

acting as such without authority. (par. F. Rule 64, Rules of Court.) The mere taking of oath as

lawyers by herein accused, in the humble opinion of this Court, is not tantamount to practice

law. However, if this had taken one step further, as for example, after taking their oaths, they

have held out themselves as lawyers to the public, received cases for litigants, appeared

before any court of justice personally or by filing pleadings therewith, would be considered

that they are really engaged in the practice of law. These accused have not committed any of

these acts as enunciated by our Supreme Tribunal in the case of Bosque and Ney, 8 Phil., 146,

nor have they disobeyed or defied any command, order or notification of this Court or of the

Honorable Supreme Court. What they have done only was the taking of their oath as lawyers

before a notary public who was not authorized by law to take their oath as lawyers, as the

latter can only aware as such before the Supreme Court or any member thereof.

"Pursuant to the above stated reasons, this Court is of the opinion and so holds that no

criminal contempt has been committed by the herein accused before this Court and neither

before the highest Tribunal of this land."cralaw virtua1aw library

The aforementioned quotation from the amended informations is, however, incomplete. It did

not include the allegation to the effect that the defendant in each one of the cases at bar took

his "oath as a lawyer before a notary public" and filed the manifestation transcribed in the

resolution above quoted,

"well knowing that he has not passed the bar examination and was not in any way authorized

to take his oath as a lawyer and after having been duly informed and notified that certain

portions of Republic Act No. 972, known as the Bar Flunkers Act of 1953, are unconstitutional

and therefore void and without force and effect, and that all the petitions of the candidates

including the accused who failed in the examinations of 1946 to 1952, inclusive, for

admission to the bar were refused and denied by the resolution of the Honorable Supreme

Court, on March 18, 1954, . . . ."cralaw virtua1aw library

In other words, appellees knew that they did not pass the bar examination. Although they,

likewise, sought admission to the Bar under the provisions of Republic Act No. 972, known as

the Bar Flunkers Act of 1953, they were subsequently notified of the resolution of this Court

denying said petition. Inasmuch as the oath as lawyer is a prerequisite to the practice of law

and may be taken only, before the Supreme Court, by those authorized by the latter to

engage in such practice, the resolution denying the aforementioned petition of appellees

herein, implied, necessarily, a denial of the right to take said oath, as well as a prohibition of

or injunction against the taking thereof. When, this notwithstanding, appellees took the oath

before a notary public, and formally advised this Court, not only of such fact, but also, that

"they will practice in all the courts of the Philippines," they, accordingly, disobeyed the order

implied, and resisted the injunction implicit, in said resolution, thus violating section 232 of

Act No. 190, which declares in part:jgc:chanrobles.com.ph

"A person guilty of any of the following acts may be punished as for

contempt:jgc:chanrobles.com.ph

"1. Disobedience of or resistance to a lawful writ, process, order, judgment, or command of a

court, or injunction granted by a court or judge."cralaw virtua1aw library

and section 3, subdivision (b), Rule 64, of the Rules of Court, which is identical.

This case is, in principle, analogous to that of U.S. v. Ney and Bosque (8 Phil., 146), which

involved two lawyers, an American, C.W. Ney, and a Spaniard, Juan Garcia Bosque, who sent

out a circular, signed "Ney and Bosque", stating that they had established an office for the

general practice of law in all courts of the Islands and that Bosque would devote himself

especially to consultation and office work relating to Spanish Law. Accused of contempt of

court, both were convicted as charged, although upon different grounds. As regards the

Spaniard, it was held that a former order of this Court denying his admission to the practice

of law in the Philippines, on account of alienage, "was directly binding upon him;" that the

aforementioned circular "amounted to an assertation of his right and purpose" to engage in

such practice of law; and that "consequently the conduct of the defendant Bosque amounts to

disobedience of an order made in a proceeding to which he was a party." As regards Ney, he

was found guilty of "misbehaviour" committed by "an officer of the court."cralaw virtua1aw

library

Likewise, by their aforementioned acts, as set forth in the amended informations, appellees

herein expressed clearly their intent to, and did, in fact, challenged and defy the authority of

this Court to pass upon and settle, in a final and conclusive manner, the issue whether or not

they should be admitted to the bar, as well as, embarrass, hinder and obstruct the

administration of justice and impair the respect due to the courts of justice in general, and

the Supreme Court, in particular. Thus, they performed acts constituting an "improper

conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of

justice," in violation of section 3, subdivision (b) of said Rule 64.

". . . Acts which bring the court into disrepute or disrespect or which offend its dignity, affront

its majesty, or challenge its authority constitute contempt of court.." . . . (12 Am. Jur. 395.)

The lower court is, seemingly, under the impression that appellees could not be guilty of

contempt of court unless they actually engaged in the practice of law or "held out to the

public" as lawyers "by means of circulars." Such view is inaccurate, for "assuming to be an

attorney . . . and acting as such without authority," is, only one of the means by which

contempt of court may be committed, under said Rule 64, section 3, of the Rules of Court. At


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any rate, by taking "the oath of office as attorney-at-law" and notifying the Supreme Court

that they had done so and would "practice law in all courts of the Philippines", the appellees

had, for all intents and purposes, "held out to the public" as such attorneys-at-law (U.S. v.

Ney and Bosque, supra).

Wherefore, the order appealed from is hereby reversed, and let the records of these cases be

remanded to the court of origin for further proceedings not inconsistent with this decision. It

is so ordered.


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LICHAUCO VS. ALEJANDRINOOn the 16th of July, 1908, the plaintiffs commenced an action against the

defendants, in the Court of First Instance of Pampanga, for the purpose of

recovering the sum of P1,657.75, with interest at 12 per cent from the said 16th of

July, 1908.

To this complaint the defendants demurred, which demurrer was, on the 23d of

November, 1908, sustained by the Hon. Julio Llorente, judge. On the same day (the

23d of November, 1908) the plaintiffs filed an amended complaint against the

defendants. The complaint was accompanied by Exhibit A, B, C, and D.

Later the defendants presented a demurrer which was overruled. On the 2d of July,

1909, the defendants presented a general and special answer, in which they prayed

to be relieved from all liability under the complaint, with costs against the

plaintiffs.

After hearing the evidence adduced during the trial of the cause, the Hon. Julio

Llorente, judge, on the 10th of February, 1901, rendered a judgment in favor of theplaintiffs and against the defendants for the sum of P610.22 Philippine currency,

with interest at 6 per cent from the 16th of July, 1908, with the provision that if the

defendants failed to pay the said amount, the plaintiffs were entitled to sell at

public auction one-sixth part of the land mortgaged under and by virtue of a

contract between Mariano Alejandrino and Cornelia Laochangco, dated the 30th of

July, 1886. (See Exhibit A.) Mariano Alejandrino was the father of the defendant,

Ana Alejandrino, and Cornelia Laochangco as the mother of the plaintiffs. Mariano

Alejandrino and Cornelia Laochangco are both dead.

From the judgment of the lower court the plaintiffs appealed.

From an examination of the record, the following facts seem to be true:

First. That on the 30th of July, 1886, the said Mariano Alejandrino borrowed from

the said Cornelia Laochangco the sum of P6,000 Mex., under certain conditions

mentioned in the said contract. (See Exhibit A.)

Second. That on the 15th of August, 1895, the said Mariano Alejandrino and

Cornelia Laochangco liquidated the amount due under the said contract, Exhibit A,

and it was found on the date that there was still due under the said contract the

sum of P4,115.75. On the same day (August 15, 1895) the said Mariano

Alejandrino borrowed from Cornelia Laochangco the additional sum of P234.25,

making a total amount due of 4,350 pesos Mex. (Exhibit B.)

Third. That on the 15th of December, 1906, all of the children of the said Mariano

Alejandrino, except the defendant herein, Ana Alejandrino, entered into a contract,

by the terms of which they obligated themselves to pay to the plaintiffs the balance

due from their father, Mariano Alejandrino. (See Exhibit D.)

Fifth. That on the 23d of April, 1898, the amount due on the said contract of July

30, 1886, was again liquidated and it was found that there was remaining due and

unpaid on the said contract, the sum of P4,465. (See Exhibit C.)

Under the provisions of Exhibit D (the contract which was entered into by all of the

heirs of Mariano Alejandrino, except the defendant herein, Ana Alejandrino), they

obligated themselves to pay their proportional amount of the indebtedness of theirfather, together with 12 per cent interest. The plaintiffs claim that the amount due

on the contract of July 30, 1886, at the time of the commencement of the present

action (the 15th of July, 1908), together with the interest amounted to the sum of

P9,946.50, and that the defendant herein, Ana Alejandrino, was liable for one-sixth

part of said sum, or the sum of P1,657.75.

The defendant, Ana Alejandrino, was not a party to the contract represented by

Exhibit D. she did not agree to pay 12 per cent interest on the amount remaining

due on the 23rd of April, 1898, of the debt between her father and the plaintiffs

herein. There is no proof in the record that any demand was ever made upon her

for the payment of her aliquot part of the balance found to be due on the 23rd ofApril, 1898, either judicially or extrajudicially. She was, therefore, not liable to pay

interest or her aliquot part of the said amount. The lower court correctly held,

however, that she was liable for the payment of one-sixth part of said amount by

virtue of her having accepted her proportional part of the property involved and

covered by the original contract between her father and the mother of the

plaintiffs, bearing date of July 30, 1886, or for the sum of 744.16 pesos Mex.,


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which, reduced to conant, amounted to P610.22, the amount for which the lower

court rendered judgment, with 6 per cent from the 16th of July, 1908.

While we have not discussed the assignments of error in detail, we believe that we

have answered each of them in effect. We have discussed the question upon their

merits as they are presented in the record. There is a question of parties, however,

which has not been presented, which we can not overlook.

It will be noted that Faustino Lichauco has brought this action for himself and in

representation of his co-heirs. So far as the record shows, the co-heirs have no

knowledge of the pendency of the action. Faustino Lichauco shows no authority for

representing his co-heirs except the mere allegation in the title of his complaint.

He speaks of himself as the plaintiff. The attorney signs himself as attorney for the

plaintiff ? not for the plaintiffs. Faustino Lichauco represents himself and his co-

heirs, and the attorney-at-law, who signs the complaint, represents as he alleges

"the plaintiff." There is nothing in the record which shows that the co-heirs are not

capable of representing themselves. There is nothing in the record which shows

that they ever gave their consent to the commencement of the present action. It

may be assumed that they did, but this not sufficient. The Code of Procedure inCivil Actions provides that in Courts of First Instance a party may conduct his

litigation personally or by the aid of a lawyer, and his appearance must be either

personal or by the aid of a duly authorized member of the bar. (Sec. 34, Act No.

190.) In the present case the co-heirs are neither in court personally nor by the a

duly authorized member of the bar. Therefore they are not in court at all, and any

judgment which we might render in the present case, with reference to the heirs,

either pro or con, would in no way be binding upon them. (Espiritu vs. Crossfield

and Vicente Guasch, No. 5313).[[1]]

The present case seems to have been tried in the lower court upon the theory that

all of the interested parties were present, and for that reason we have discussedthe case upon its merits, believing that the parties would deem further litigation

unnecessary, once being informed of the views of this court upon the facts

presented. This assumption, however, is based upon the ground that even though

the co-heirs had been represented in the trial of the cause, in accordance with law,

no other or different evidence would have been adduced.

Therefore, following the decision of this court in the case of Lichauco vs. Limjuco

(19 Phil. Rep., 12), the judgment of the lower court is hereby set aside, unless the

coheirs of Faustino Lichauco, within a period of ten days from notification of this

decision, shall appear personally or by attorney in the Court of First Instance of the

Province or Pampanga, either as plaintiffs or defendants, and in writing indicate

their full conformance with the proceedings had in the present cause. In which

case, the Court of First Instance of the Province of Pampanga is hereby directed to

enter a judgment confirming the judgment heretofore rendered by said court on

the 10th day of February, 1910.

ROBINSON VS. VILLAFUERTEOn April 30, 1908, W. W. Robinson entered suit in the Court of First Instance of Tayabas

against Marcelino Villafuerte y Raola, alleging as a first cause of action: That the plaintiff was

engaged, in the city of Manila and at the time specified further on, in the importation and sale

of flour and other products from abroad, with an office in the city of Manila, a business which

he still continued, through the agency of Castle Brothers, Wolf & Sons, established therein;

that the defendant, a resident of Lucena, Tayabas, by an instrument duly executed on October19, 1906, by his attorney in fact and legal representative, Vicente Marcelo Concepcion, who

was fully empowered and authorized for the purpose, and ratified on the same date before

the notary public of Manila, D. R. Williams, acknowledged and confessed that he owed the

plaintiff the net sum of P3,852.50; that by the said instrument duly executed the defendant

bound and pledged himself to pay to the plaintiff the said sum of P3,852.50 in four monthly

installments from that date, at the rate of P1,000 for each of the first three installments and

P852.50 for the last one, and likewise the interest thereon at the rate of 8 per cent per

annum, to be adjusted and paid at the time of paying each of the installments fixed; that in

the said instrument the defendant moreover bound himself to pay to the plaintiff the sum of

P500 for costs and expenses, in case the latter should recur to judicial process for the

collection of the aforementioned debt; and that, as security for the payment of the said debt,

of the interest thereon and of the amount for costs and expenses, the defendant voluntarilyexecuted, by means of the said instrument and in favor of the plaintiff, a special mortgage

upon the properties of his absolute ownership and control, which are: XXX

The respective bounderies of each one of the estates above enumerated were set fourth in the

said instrument of mortgage, which was duly inscribed in the property registry of Tayabas.

This deed does not appear to have been canceled, and constitutes an encumbrance on the

properties described in favor of the plaintiff. It was stated in the instrument referred to, that

the liability of the property mortgaged was distributed in the following manner: Total

4,352.50


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It was stated further, as an express condition, that default of payment of any of the

installments specified in the fourth preceding paragraph would cause the entire obligation to

mature and would entitle the plaintiff (it says "defendant") to require the payment of the same

in its totality and forthwith to institute foreclosure proceedings against any and all of the

mortgage properties.

The complaint further alleged, as a first cause of action, that, notwithstanding the repeated

demands made upon the defendant, the latter had not paid his debt nor the interest thereon,

excepting the sum of P550, paid on different dates on account of the debt and interest due,

wherefore the defendant owed the plaintiff the sum of P3,302.50, the remainder of his debt

and besides P385.57 as interest due from December 6, 1906, to the date of the filling of the

complaint; that the plaintiff was then the legal owner of the mortgage, and that he had not

been paid the whole nor any part of the sum expressed in the preceding paragraph.

As a second cause of action against the defendant, the complaint alleged, among other

things: That the defendant, by means of an instrument duly executed on December 21, 1906,

by his attorney in fact and legal representative, Vicente Marcelo Concepcion, who was fully

empowered and authorized an instrument ratified on the same date before the notary

Daniel R. Williams and in consideration of the credit which the plaintiff agreed to allow the

said defendant up to the sum of P3,560, executed a special voluntary mortgage of the

properties of his absolute ownership and control which are described as follows: XXX

The respective boundaries of each of the estates above enumerate were set forth in the said

instrument of mortgage, which was duly inscribed in the property registry of Tayabas, and

does not appear to have been cancelled, and constitutes an encumbrance on the properties

described, in favor of the plaintiff. It was stated, in the instrument referred to, that the

liability of the property mortgaged was distributed in the following manner: TOTAL 4,160.00

That the aforementioned mortgage was executed as security for the payment to the plaintiff

of the sum or sums which the defendant might owe him by reason of the said credit, which

was granted under the following terms and conditions:

1. That the said credit should not exceed the sum of P3,560 and was granted for the

period of six months from the 20th of November, 1906, and defendant was to make use of it

in taking flour from the plaintiff's warehouse, at current prices, by means of written duebills

or orders signed by the defendant or by his attorney in fact.

2. That the said written duebills or orders should be paid within thirty days from their

date, and it was stipulated that the amount or value of each one of them should bear an

annual interest of 8 per cent from the date of their maturity, if not paid before.

3. That total amount of what the defendant might be owing, by reason of the said

credit, should be settled and entirely paid, together with the interest thereon, by the 20th of

May, 1907, on which date all the orders or duebills issued by the defendant against the said

credit should be considered as matured, even though the extension above mentioned should

not have expired.

4. That it should be optional be optical on the part of the plaintiff to honor the duebills

or orders which the defendant Marcelino Villafuerte might issue against the said credit, in the

event that the latter should fail to pay the amount of his previous duebills or orders at the

time they should respectively fall due, or should fail to comply with and observe any of the

conditions and stipulations contained in the said instrument of October 19, 1906, ratified

before notary Williams; that the defendant should be bound to pay to the plaintiff P600, in

case of litigation, and also to pay all the expenses that might be occasioned by the execution

of the said instrument of December 21, 1906, those of its inscription in the registry,

cancellation, and release, as well as the expenses incurred by the plaintiff on account of the

instrument of October 19, 1906, referred to in the first cause of action, together with those of

its inscription in the registry; provided, moreover, that the aforementioned instrument of

December 21, 1906, should be retroactive in its effect from the 20th of November of the

same year, and that the flour which the said defendant, through his attorney in fact, Vicente

Marcelo Concepcion, had withdrawn from the plaintiff's warehouses since the 20th of

November, 1906, should be include in the credit opened; that the estates described under the

Nos. 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13, bore a first mortgage in favor of the plaintiff

executed as security for the obligation, the fulfillment of which is demanded in the first cause

of action; that, by clause 14 of the said instrument of December 21, 1906, it was stipulated

that in case W. W. Robinson, the plaintiff, should have to institute foreclosure proceedings

against the property above described, either by reason of the mortgage hereby placed on the

same, or of the obligation affecting the said property, in his favor, by virtue of the said

instrument of October 19 of the present year, Robinson should be entitled to take charge of

the management of all or any of the said realities until they should be sold, and to collect

their revenues, rentals, fruits, and products for the purpose of applying the same to the

payment of the judgment; that, by clause 15 of the said instrument of December 21, 1906, it

was also stipulated that it was expressly covenanted that, in case Robinson should have to

proceed judicial against the property therein mentioned in order to collect any amount to the

payment of which they were subject, all the orders or duebills issued on account of the credit

granted in the said instrument should be considered as matured and payable, and Robinson

should be entitled forthwith to demand the payment of any balance found to be due him by

Marcelino Villafuerte y Raola, with the privilege of levying upon all or any of the realities

comprised with the mortgage mentioned in the said instrument; that the amount credited for

the expenses referred to in No. 7 of the fifth paragraph of this cause of action reached

P174.95; that the defendant, availing himself of the credit granted in the aforementioned

instrument of December 21, 1906, took and withdrew from the plaintiff's warehouses, on

different dates between the 20th of November and the 19th of December, 1906, inclusive,


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various quantities of flour, the total value of which amounted to P5,588.15; that the

defendant had not paid any part of this amount, except the sum of P375.00, and was owing a

balance of P5,213.15; that at the time of the complaint the said defendant owed the plaintiff

the sums of P174.95 and P5,213.15, in addition to P503.79 as interest due up to the date of

the complaint; that the plaintiff was then the legal owner of the mortgage above referred to,

and that none of the sums mentioned nor any part thereof had been paid to him: wherefore

the plaintiff asked that judgement be rendered in his favor against the defendant, for the

following amounts: (1) For the sum of P3,302.50, the principal demanded in the first course

of action, and interest thereon at 8 per cent per annum from date until its payment; (2) for

the sum of P385.57, as interest due on the principal mentioned in the preceding paragraph

and remaining unpaid, and, in addition, the interest on this sum at the rate of 6 per cent per

annum from the date of the complaint until paid; (3) for the sum of P5,213.15, the amount of

the debt claimed in the second cause of action, together with the interest thereon at the rate

of 8 per cent per annum from date until it's payment; (4) for the sum of P503.79, the interest

due on the principal mentioned in the preceding paragraph, with interest thereon at 6 per

cent per annum from date until payment; (5) for the sum of P174.95, claimed in paragraph 9

of the second cause of action, with interest thereon at 6 per cent per annum from the date of

the complaint until payment; and, (6) for the sum of 1,000 for costs and attorney's fees.

The plaintiff further prayed that an order be issued directing the delivery to the plaintiff of the

properties described in the complaint, in order that he might administer them during the

course of this suit and until they should ultimately be sold, and authorizing him to collect and

receive the revenues, rentals, fruits, and other products of the said estates and to retain them

in his possession in order to satisfy the judgment that would be rendered in this case, and

that in case the said judgment be not satisfied thereby, the sale of the said properties be

ordered and the proceeds thereof be applied to the purpose.

The defendant, in his answer, made a general and specific denial of each and all of the

allegations of the plaintiff for each and all of the actions instituted by him in each and all of

the paragraphs of the complaint, and as a special defense, and in his crosscomplaint, alleged:

That the defendant did not execute, consent to, nor authorize the execution of a power of

attorney of any kind whatsoever in favor of Vicente Marcelo Concepcion, empowering the

latter to mortgage, pledge, or otherwise dispose of, to the plaintiff or to any person whatever,

any of the properties mentioned in the complaint, nor to accept from and open with the

plaintiff any credit nor establish with him any business in flour; nor execute any power of

attorney nor grant any authority whatever in favor of the said Concepcion so that the latter

might represent him and accept in his name credit, or moneys whatsoever from any person;

nor dispose of, mortgage, or encumber any of the properties described in the complaint; that

the defendant received no sum whatever from the plaintiff nor was he in the latter's debt for

the amount claimed in the complaint, nor for any other sum of money; that he did not give

his consent to all of to any one of the mortgages alleged in the complaint, and that all the

said mortgages on the properties therein mentioned were founded on a supposed power of

attorney said to have been executed by the defendant in favor of Vicente Marcelo Concepcion,

which power of attorney was fictitious, false, fraudulent, null and void, that it was not

executed by the defendant, nor did the latter intervene therein and that the said power of

attorney had no true reason for existence; wherefore the defendant asked that judgment be

rendered absolving him from the complaint with the costs against the plaintiff, by annulling

each and all of the mortgages alleged in the complaint and the inscription of each of them in

the office of the register of property of Tayabas, and by ordering the cancellation of all the

inscriptions of the said mortgages and encumbrances of the aforementioned properties.

The plaintiff, in answering to the counter complaint, set up a general and specific denial of

each and all of the allegations of the defendant with respect to each and all of the actions

brought by him in each and all of the paragraphs of the counter complaint, and prayed that

judgment be pronounced in his favor, and against the defendant, in conformity with the

petitions made in his complaint.

The case came up for hearing on November 30, 1908, and after the presentation of oral

evidence by both parties, the documentary evidence being attached to the record, the court,

on December 15 of the same year, rendered judgment whereby it directed that the plaintiff

should recover from the defendant the sum specified in the first instrument of mortgage,

P3,302.50, as principal, the additional sum of P385.57 as interest up to April 30, 1908,

besides the interest on the said principal, at the rate of 8 percent per annum from the date

just above mentioned until its complete payment, also the P500 stipulated in the said

instrument as payable by the defendant as costs and expenses in case of litigation; and the

sum mentioned in the second instrument of mortgage, P5,213.15 as principal, besides

P503.79, as interest up to the 30th day of April, 1908, in addition to the interest on the said

principal at the rate of 8 per cent per annum, form the date just of P174.95, as expenses for

the execution of the instrument, for its inscription, cancellation, and acquaintance, as

provided for in clause 17 of the said instrument, and the additional sum of P600, which it was

stipulated in the second instrument the defendant should pay for costs and expenses in case

of litigation. The judgment further ordered that the defendant should pay the several

amounts above mentioned, with the interest and costs, on or before the first day of the sitting

of the court in April, 1909, and that, in case such order should not be compiled with, the

mortgages should be foreclosed and a final writ should be issued directing that all the

properties before described the sold, the proceeds of the sale to pay the principal, interest,

and costs. The defendant, when notified of this judgement, took exception thereto,

announced that he would file a bill of exceptions, and moved for a new trial on the ground

that the evidence was insufficient to warrant the judgment rendered and that the latter was

contrary to law. This motion was denied and exception was taken by the appellant, who filed

the proper bill of exceptions, which was certified to, approved, and forwarded to the clerk of

this court. By an order of March 1, 1909, it was provided that the execution of the aforesaid

judgment should not be suspended pending the appeal, unless the defendant, for the reasons

stated in the said order, should give a bond for P10,000.


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The purpose of the suit filed by the plaintiff, W. W. Robinson, is the collection of various sums

owed by the defendant, Marcelino Villafuerte y Raola, the payment of which is secured by a

mortgage on the real properties set out in the two notarial documents evidencing the debt,

exhibited under letter A and B, and inscribed in the property registry of the Province of

Tayabas.

The mortgage action brought by the creditor, based upon the two aforementioned notarial

documents is proper, inasmuch as it is sought to collect certain sums specified in the said

instruments on account of their not having been paid within the periods therein stipulated,

and consequently the real properties offered as security for the solvency of the debts

contracted by the debtor are duly liable for the satisfaction of the same; and although the

credit of P3,852.50, the value of the flour furnished to Camilio C. Gomez, in account with the

defendant, and referred to in the instrument lettered A, was to have been paid in four

installments from October 19, 1906, at the rate of P1,000 in each one of the three first

months and P852.50 in the fourth and last month, yet since the debtor, notwithstanding the

demands made upon him, did not comply with his obligation nor pay his debt in conformity

with the tenor of the said instrument, letter A, for he only paid the creditor the sum of P550

delivered partially on different dates, the default of payment of any of the installments agreed

upon produces the effect that all of these must be deemed to have matured and entitles the

creditor to demand the payment of his entire credit and to proceed against the mortgaged

properties for the purpose of collecting his credit, which amounts to P3,302.50, after the

deduction of the said P550 from the principal, with the interest due from the 6th of

December, 1906, amounting to P385.57.

With respect to the credit mentioned in the instrument, Exhibit B, and granted by the plaintiff

to the defendant Villafuerte under agreement that the latter should make use of the said

credit by taking flour from the creditor's warehouse by means of written duebills or orders

signed by the debtor, or his attorney in fact, under condition that the value or amount of the

said duebills should be paid within thirty days from their date and that these

acknowledgments of debts should bear interest of 8 per cent per annum from the date of

their maturity, it was also a condition that the aforesaid instrument should be deemed to be

retroactive in its effect, from November 20, 1906, that the quantities of flour which were

taken from the plaintiff's warehouse since the said November 20, 1906, should be considered

as included, and that the total amount of whatever the defendant might owe, by reason of the

credit mentioned together with the interest thereon, should be settled and entirely paid on

May 20, 1907, on which date all the orders or duebills issued against the said credit should

be deemed to have matured, even though the thirty days' delay stipulated should not have

expired.

In view of the fact that the defendant succeeded in withdrawing flour to the value of

P5,078.15, without his having paid the amount due therefor, except P375, it can not be

denied that there still remains a balance to be paid of P4,703.15 (pp. 5 and 88 of the record).

In the account, Exhibit E, there appears a statement of the sacks of flour which were taken on

account of the said credit by means of the nine duebills, Exhibit F, attached to the

aforementioned account, in which it also appears that the value of the said sacks of flour was

P4,703.15, after the deduction of P375.

The complaint which gave rise to the present suit is in accordance with the provisions of

section 255 of the Code of Civil Procedure, and the mortgages constituted in the two

instruments aforementioned fulfill the conditions and requirements prescribed in articles

1857, 1874, and 1875 of the Civil Code; wherefore judgment should be rendered favorable to

the mortgage creditor, in accordance with section 256, and following, of the Code of Civil

Procedure.

The defendant debtor denied the existence of the obligations contained in the said

instruments; he asserted that the latter, and the powers of attorney executed in favor of

Vicente Marcelo Concepcion were false, and likewise denied that he owed the plaintiff any of

the amounts claimed in the complaint, or that he had authorized the said Concepcion to

mortgage the realties described in the said complaint, and in asking for his release, he prayed

that the aforementioned mortgages and the inscriptions of the same in the property registry

be declared null and void.

If it is true, as it appears to be, that the defendant Marcelino Villafuerte y Raola executed, on

July 11 and October 29, 1906, in this city, the powers of attorney, Exhibits C and D, in favor

of Vicente Marcelo Concepcion, before the notaries Eugenio de Lara and Daniel R. Williams,

respectively, it not having been proved at trial that the said powers of attorney were false or

null and void, the mortgages upon the real properties, executed by the attorney in fact, duly

authorized for the purpose, in the instruments designated under letter A and B, the first of

them ratified in the notarial record, letter G, by the debtor before the same notary, Williams,

must be accepted as valid and in force, inasmuch as the said mortgage deeds appear to have

been ratified in due form by contracting or interested parties before the said notary in Manila,

it not having been proven at trial that they contained any flaw or defect which might operate

to annul them.

The evidence adduced by the defendant in his attempt to prove that, on the two dates before

mentioned, when the said two powers of attorney appear to have been executed, he was in

Lucena, Tayabas, and not in this city of Manila, has not resulted in defeating the validity,

authenticity, and force of the said powers of attorney, for the truth of their contents as well as

their ratification by the person executing them was certified to by notaries before whom they

were exhibited respectively in the presence of two witnesses; the oral testimony presented by


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the defendant was insufficient to prove that the notaries Lara and Williams untruthfully

certified that Marcelino Villafuerte, whom they attested under oath that they knew, personally

appeared before them and ratified in its totality the contents of the aforementioned

document, declaring that he had executed it freely and voluntarily and exhibited for the

purpose his cedula, No. 453963, issued in Lucena, Tayabas, on January 15, 1906.

In order to establish the conclusion, as the logical result of the evidence, that the said two

notaries, falsely, and entirely irrespective of the truth, issued the certificates which appear

under their respective signatures and seals at the foot of the powers of attorney, letters C and

D, it is not sufficient to prove, by means of the testimony of witnesses, (mostly relatives) and

by unauthenticated documents, that on the dates of the execution of the powers of attorney

the persons executing them was not here in Manila, where the instruments were certified to,

but in Lucena, Tayabas; clear, strong, and irrefutable proof must be adduced to prove that the

said notaries could not have averred that the said person was actually in their presence, that

they heard him ratify the contents of the respective documents, and could have certified to

the number of his cedula, the only one exhibited to both notaries, without having ostensibly

perverted the truth. The defendant himself, who averred that he was in Lucena on July 11,

1906, the date of the first power of attorney, said that he was not sure whether on October

29 of the same year, the date of the second, he was in the said pueblo or in this city of

Manila.

Public instruments authenticated by a notary or by a competent public official, with the

formalities required by law, are evidence, even against a third person, of the fact which gives

rise to their execution and of the date of the latter. They shall also be evidence against the

contracting parties and their legal representatives with regard to the declarations the former

may have therein. (Arts. 1216 and 1218, Civil Code.)

The force of proof of depositions of witnesses shall be weighed by the courts in accordance

with the provisions of the law of civil procedure, taking care to avoid that, by the simple

coincidence of some depositions, unless their truthfulness be evident, the affairs may be

finally decided in which instruments, private documents, or any basis of written evidence are

usually made use of. (Art. 1248, Civil Code.)

The defendant debtor having been requested by letter, in the beginning of the year 1907, to

pay his debt, were it true that he had not contracted the obligations contained in the

instruments lettered A and B, nor executed in favor of Vicente Marcelo the powers of attorney

lettered C and D, would have at that time made the proper investigations and taken the

necessary steps for the annulment or invalidation of the said instruments. The defendant did

not even attempt to do anything of the kind, and we do not find any just reason nor any legal

ground whatever to warrant a discussion of the conclusion arrived at by the evidence

presented in this suit.

Were it true that on the dates of the 11th of July and the 29th of October, 1906, the

defendant Villafuerte was in Lucena, Tayabas, and not in Manila, it is not understood how two

notaries who attested that they personally knew him could have certified that, on the

respective dates aforementioned, the said defendant appeared in person before them, ratified

the instrument of power of attorney which he had executed, and, to identify his personality,

exhibited to the said notaries his certificate of registration, the only one and the same one

which he presented at each of his appearances on the said dates. Without proof, nor rational,

acceptable explanation, it is impossible to be lieve that the personal certificate of registration,

which identifies a citizen, was for some four months in the possession of another person

residing in a distant place. It was not proved in a satisfactory manner at the trial how or why

the said cedula, or registration certificate, came to remain for so long a time in the

possession of the Chinaman Sy Chuy Chim or of Vicente Marcelo, as averred by the defendant

or his counsel, and under this supposition, so strange, anomalous, and out of the ordinary

rule that every citizen should necessarily keep his certificate of identification in his

possession, no explanation whatever was given by the defendant's counsel as to the purpose

for which the defendant parted with his cedula and sent it to either the said Chinaman or

Marcelo. The Chinaman was not examined in this litigation and the attorney in fact, Marcelo,

denied that he had received the said cedula sent by his constituent. So that for the reasons

hereinbefore stated, it is evident that the defendant Villafuerte personally exhibited the said

cedula to the two aforementioned notaries, on his ratification of the respective instrument of

power of attorney before each one of them, and it is not permissible to conclude that the

instruments of power of attorney executed by the defendant, as well as the certifications

subscribed by the notaries Lara and Williams, are false, because of the absolute absence of

proof as a foundation for such a charge; for a notarial document, guaranteed by public

attestation in accordance with the law, must be sustained in full force and affect so long as he

who impugns it shall not have presented strong, complete, and conclusive proof of its falsity

or nullity on account of some flaw or detect provided against by law.

Although the documents exhibited by the defendant's counsel could not, for lack of proof of

their authenticity, destroy or impair the value and force of the notarial documents or

instruments on which the plaintiff's claim is based, it is, however, to be noted that Pedro

Cantero, whose signature appears attached to the papers found on pages 159, 162, and 170,

of the record, was not examined either, even for the purpose of identifying his signature, he

being a Spaniard and an attorney it is not possible to believe that he wrote the

aforementioned documents in the form and style in which they appear to have been drawn

up; wherefore, on account of these circumstances, it is reasonable to presume that the

documents of pages 159 and 170, and the note of page 162, of the record, were not

authentic.

It is also to be observed, in the document or letter found on page 136 of the record, and

which also was unauthenticated, that the aforementioned dates of the 11th of July, 1906,

appear therein with a correction, made in the proper place, of the figures 11 and 6 of the first


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date, a repetition and details which induce the presumption that the said letter was written on

a different date.

By the foregoing it has been duly shown that the fourth, fifth, sixth, and seventh errors

attributed to the judgment are devoid of reason and legal foundation. With respect to the

third error alleged we hold that the admission of the documents designated by the letters L

and M was proper for the purpose for which they were presented, because that of letter L is

an original and one of the triplicates drawn up for a single purpose, as stated therein, and

that of letter M is also an original ratified before a notary, in the certificate of which, dated

July 13, 1906, there certainly appears an annotation of the dame number 453963 of the

cedula of the defendant Villafuerte which he exhibited to the notaries who authenticated the

powers of attorney Exhibits C and D.

With regard to the first two alleged errors, relative to Jose Moreno Lacalle being permitted to

address questions to some of the witnesses during the hearing of the case, notwithstanding

the presence of Attorney Agustin Alvarez, who represented the plaintiff, it is unquestionable

that the intervention of the said law clerk and employee of Messrs. Haussermann, Cohn &

Williams, the plaintiff's attorneys in this suit, was improperly admitted; it was not authorized

by any law, for the reason that the said Lacalle did not have the capacity and qualifications of

a lawyer admitted under oath to practice his profession before the courts of these Islands,

and therefore, on objection being made to his present at the hearing of the case, the judge

should have sustained such objection and should have excluded Lacalle and not permitted

him to address questions to the plaintiff's witnesses, notwithstanding the fact that Attorney

Agustin Alvares, designated in substitution of the said Haussermann, Cohn & Williams as the

plaintiff's representative in the Court of First Instance of Tayabas, was present.

Notwithstanding this, the acts performed in the course of some of the proceedings under the

direction of Jose Moreno Lacalle are not subject to annulment, as no positive detriment was

caused to the defendant, although such intervention is in no manner permitted by the law of

procedure.

However, even though the questions addressed by Lacalle to the plaintiff's witnesses and the

presentation of documents of various kinds exhibited at the trial be stricken out for the

reason that they were made by a person who was neither a party to the suit nor counsel for

the plaintiff, yet we do not find any reason, based upon any positive prohibition of the law, to

authorize the striking out to the answers given by the witnesses interrogated by Lacalle, even

though the said answers may have been evoked by questions addressed by a person not

authorized by law, and there is much less reason for rejecting the cross-questions addressed

to the same witnesses by the defendant's attorney, and the answers thereto.

Although the presentation of the documents which support the claims of the plaintiff party be

deemed to be improper, on account of their having been made by a person who had not the

qualifications of a practicing attorney it is nevertheless true that their presentation was

authorized by the attorney Alvarez and the documents exhibited continued to be united to

the record and were not stricken out therefrom on motion by the other side, but, on the

contrary, the attorney for the defendant or his counsel discussed the authenticity and validity

of the said documents, made allegations against the same and concluded by asking that these

documents, and also the inscription of those designated under letters A and B, be declared

null and void.

From the preceding statements it is concluded that the intervention of Jose Moreno Lacalle in

the present suit has in no manner prejudiced the rights and interests of the defendant and

that, if judgment was rendered against him and in favor of the plaintiff, it was in consequence

of the merits of the evidence adduced by the plaintiff and of the inefficacy and worthlessness

of the testimony given by the defendant.

If the defendant Marcelino Villafuerte had presented substantial, strong and convincing

evidence of the falsity of the two powers of attorney executed in favor of Vicente Marcelo

Concepcion, the plaintiff's documentary evidence would have been totally invalidated and

annulled, and this suit would have had a different ending.

For the foregoing reasons, it is proper, in our opinion, to affirm the judgment appealed from,

as we hereby do, with the costs against the appellant, and in consequence thereof we acquit

the plaintiff from the cross complaint relative to the declaration of nullity of the mortgages

and inscriptions, as requested by the defendant. The first day of the term of court

immediately following the date on which the fulfillment of this judgment is ordered shall be

set for the payment of the amounts due and the foreclosure of the said mortgages. So

ordered.


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DE GUZMAN V. VISAYAN RAPID TRANSITThis is a petition for certiorari to review the decision of the Court of Appeals of September 20,

1938, in the above-entitled case on various alleged errors of law.

The Visayan Rapid Transit Co. and the Negros Transportation Co., Inc., during the time the

legal services are claimed to have been rendered by the petitioner, were operating automobile

lines in the Province of Occidental Negros. The respondent, Nicolas Concepcion, was at the

time the president, general manager, and controlling stockholder of these two transportation

companies. In January, 1933, Concepcion engaged the professional services of the petitioner,

who was then a law practitioner in the City of Manila. The employment was for the purpose of

obtaining the suppression, reduction and refund of certain toll rates on various bridges along

the line operated by the respondent transportation companies. According to the petitioner,

these toll bridges are in places known as Bago, Calatrava, Danao, Hinigiran, Malogo, Talavan-

Dacu, Talabangay, Bagacay, Binmalayan and Sicaba. At the time of the employment of the

petitioner, it appears that the respondent transportation companies had paid the sum of

P89,816.70 as toll charges up to December 31, 1932, an amount said to represent one-

seventh of their gross income up to that date, and in view of their high rates, the payment of

the toll charges were detrimental to the transportation business of the respondent if not

remedied in time. The herein petitioner accordingly took steps to obtain first the suppression,

and later the reduction of toll rates on said bridges and also the refund of P50,000 of toll

charges already collected by the Province of Occidental Negros. For this purpose, he appears

to have signed Exhibit A which Concepcion brought to Manila, asking that the Bago and

Malogo bridges be declared free, and said petition was filed with the Secretary of Public Works

and Communications in January, 1933.

Believing that the suppression of tolls on the Bago and Malogo bridges could not be effected,

the petitioner filed with the said Secretary of Public Works and Communication, petition

Exhibit B asking for the reduction of toll charges over the eleven (11) bridges in Occidental

Negros. This fact was brought to the knowledge of Nicolas Concepcion who in turn wrote to

the petitioner, Exhibit K-1, the pertinent part of which reads thus:

Now compadre if this toll business will not all be effected I would like to request you

therefore to work for at least 50 per cent reduction on all toll bridges, so that our little

business will prosper a bit. We will always hope of course for the best to come. (In English.)

The Insular authorities readily saw the justice of the transportation companies' petition and

urged the provincial board of Occidental Negros to act favorably. The provincial board,

however, declined to follow the suggestion. The Secretary of Commerce and Public Works

warned the provincial officials by sending them the communication, dated April 23, 1934,

with the admonition that "if the toll rates have not been revised by . . . June 15, 1934, this

office, much to its regrets, will be forced to withdraw its approval of the existing toll rates." By

reason of this communication, the provincial board, on March 7, 1934, with the conformity of

Nicolas Concepcion, adopted a resolution reducing the tolls for 2-ton trucks or more, the

only kind of motor vehicles operated by the respondents, from P1.20 to P0.50 on one bridge,

and from P1.20 to 0.40 on the other. And on April 10, 1935 "upon authority of the Insular

Auditor, concurred in by the Department of the Interior" the provincial board refunded

P50,000 as bridge tolls illegally collected from the Visayan Rapid Transit Company, Inc., and

the Negros Transportation Company, Inc., said amount to be applied to future payments for

tolls by said companies. As a result of this reduction of tolls, the respondents have been

benefited with an economy of P78,448 for every eighteen months. (Exhibit V.)

The various incidental questions raised by the petitioner revolves around the reasonable

compensation to which he is entitled, and we pass on to the consideration of this point.

Although the professional services rendered by the petitioner are purely administrative and

did not require a high degree of professional skill and experience, the fact remains that these

services were rendered and were productive of substantial beneficial results to his clients. It is

clear that for these services the petitioner is entitled to compensation, and the only question

is the reasonable amount to which he is entitled. He claimed in the lower court the sum of

P20,000. The trial court awarded him P10,000. On appeal, the Court of Appeals reduced this

amount to P3,500.

Section 29 of the Code of Civil Procedure provides that "a lawyer shall be entitled to have and

recover from his client no more than a reasonable compensation for the services rendered,

with a view to the importance of the subject matter of the controversy, to the extent of the

services rendered, and the professional standing of the lawyer . . .." The following are the

circumstances to be considered in determining the compensation of an attorney: the amount

and character of the services rendered; the labor, time, and trouble involved; the nature and

importance of the litigation or business in which the services were rendered; the

responsibility imposed; the amount of money or the value of the property affected by the

controversy, or involved in the employment, the skill and experience called for in the

performance of the services; the professional character and social standing of the attorney;

the results secured; and whether or not the fee is absolute or contingent, it being a

recognized rule that an attorney may properly charge a much a larger fee when it is to be

contingent that when it is not. The financial ability of the defendant may also be considered

not to enhance the amount above a reasonable compensation, but to determine whether or

not he is able to pay a fair and just compensation for the services rendered, or as as incident

in ascertaining the importance and gravity of the interests involved in the litigation. (Delgado

vs. De la Rama, 43 Phil., 419; Panis vs. Yangco, 52 Phil., 499.)

The services of the petitioner in this case were not limited to the preparation and filing with

the authorities concerned of the petitions Exhibits A and B and other papers submitted in

evidence, for he appears to have had various conferences with the Secretary of Public Works


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and Communications, the Secretary of the Interior, the Secretary of Labor and the Insular

Auditor, and had otherwise taken steps to secure the objectives of his clients. The

importance, merits and value of professional services of a lawyer are measured not alone by

his work taken separately, but by his work taken as a whole. There are services which, when

taken separately, may not in themselves have any noticeable special merit, but when

considered in connection with the other works and services of the lawyer to which they are

related, acquire an unquestionable value. That is why even the time employed is not itself an

appropriate basis for fixing the compensation. (Haussermann vs. Rahmeyer, 12 Phil., 350;

Bachrach vs. Teal and Teal Motor Co., 53 Phil., 631, 634.)

The respondents in their brief insinuate that the services of the petitioner were unsolicited

and unauthorized. The trial court as well as the Court of Appeals, upon the proof submitted,

concluded that the employment of the petitioner was duly made and solicited by the

president and manager of the respondent corporations, and such finding cannot be

disturbed. "It is elementary that an attorney is entitled to have and receive the just and

reasonable compensation for services performed at the special instance and request of his

client . . . That is to say, as long as the plaintiff was honestly and in good faith trying to serve

and represent the interest of the client, he should have a reasonable compensation for his

services. . . ." (Wolfson vs. Anderson, 48 Phil., 672, 675.)

The amount of the professional fees to be paid to the petitioner had not been fixed, but the

intention and promise to pay him is evidently shown by the records in this case. And in any

case, whether there is an agreement or not, the courts can fix a reasonable compensation

which lawyers should receive for their professional services. (Panis vs. Yangco, 52 Phil., 499,

502.)

No hard and fast rule can be stated which will serve even as a guide in determining what is or

what is not a reasonable fee. That must be determined from the facts in each case. (2

Thornton on Attorney at Law, p. 783.)

We have noted in the beginning that the services here were rendered in a case of an

administrative nature. But that does not alter the application of the proper rule:

Professional services, to prepare and advocate just claims for compensation, are as legitimate

as services rendered in court in arguing a cause to convince a court or jury that the claim

presented or the defense set up against a claim presented by the other party ought to be

allowed or rejected. Parties in such cases require advocates; and the legal profession must

have a right to accept such employment and to receive compensation for their services; nor

can courts of justice adjudge such contracts illegal, if they are free from any taint of fraud,

misrepresentation, or unfairness. (Stanton vs. Embry, 23 Law. ed [U.S.], 983, 985.)

As warranted by the records, it is obvious that as a result of the reduction of the rates of the

toll of the bridges in the said province, the respondents were benefited with an economy of

P78,448. The refund to the said corporations of the amount of P50,000 is a great relief and

enhancement of their business. Facts and circumstances considered, we are of the opinion

that the reasonable compensation of the petitioner is P7,000, deducting therefrom, however,

the sum of P1,280 which the petitioner had already received.

The judgment of the Court of Appeals is accordingly modified, without pronouncement

regarding costs. So ordered.


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PAAR V. BORROMEOTeofilo Paar is charge in Manila with treason before the People's Court, and prayed

that he be assisted in his defense by Andres R. Camasura who is not a member of

the bar. The People's Court denied the petition, hence, this action for mandamus.

Section 3 and 4 Rule 112 are as follows:

SEC. 3. Duty of court to inform defendant of his right to have attorney. If the

defendant appears without a attorney, he must be informed by the court that it is

his right to have attorney before being arraigned, and must be asked if he desires

the aid of attorney. If he desires and is unable to employ attorney, the court must

assign attorney de oficio to defend him. A reasonable time must be allowed for

procuring attorney.

SEC. 4. Who may be appointed attorney `de oficio'. The attorney so employed or

assigned must be a duty authorized member of the Bar. But in provinces where

duly authorized members of the bar are not available, the court may, in its

discretion, admit or assign a person, resident in the province and of good reputefor probity and ability, to aid the defendant in his defense, although the person so

admitted or assigned be not a duly authorized member of the Bar.

Section 29 and 31 of Rule 127 read:

SEC. 29. Attorney for destitute litigants. "A superior court may assign an

attorney to render professional aid free of charge to any party in a case, if upon

investigation it appears that the party is destitute and unable to employ an

attorney, and that the services of counsel are necessary to secure the ends of

justice and to protect the rights of the party. It shall be the duty of the attorney so

assigned to render the required service, unless he is excused there from by thecourt for sufficient cause shown."

SEC. 31. By whom litigation conducted. In the court of a justice of the peace a

party may conduct his litigation in person, with the aid of an agent or friend

appointed by him for that purpose, or with the aid of an attorney. In any other

court a party may conduct his litigation personally or by aid of an attorney, and his

appearance must be either personal or by a duly authorized member of the

bar.lawphil.net

It is clear form these provisions that in Manila where there are many members of

the bar, defendants in the People's Court may be assisted only by members of the

bar.

Petition denied, without costs.

DE CASTRO V. SALASThis is an original action commenced in the Supreme Court. Its purpose was to

obtain the extraordinary legal remedy of mandamus to require the Court of First

Instance to reinstate and to decide upon its merits a certain election contest

heretofore dismissed by the respondent judge upon a motion to quash. The said

motion to quash was based upon the ground that the "motion" (or contest) had notbeen signed by the contestant personally.

While the pleadings present some minor questions of general importance, in view

of the urgency for a decision upon the main question, we will now limit ourselves

to a discussion and to a decision of that question only, which is: In an election

contest by a "candidate voted for," for the office of president of a municipality, may

he present or file the "motion," provided for by section 27 of Act No. 1582, (Section

576, Administrative Code), signed by his attorney, or must such "motion" be signed

by him personally?

The facts upon which this actions are based are undisputed and are as follows:

First. On the 6th of June, 1916, an election was held in the municipality of

Casiguran, of the Province of Sorsogon, for the election of a president.

Second. At said election several candidates were voted for. Among such candidates

were the petitioner, Emilio de Castro, and the respondent, Segundo Santiago.


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Third. At the close of said election the ballots were counted and it was found

upon said count that the respondent, Segundo Santiago, had received 258 votes

and that the petitioner, Emilio de Castro, had received 248 votes, and as a result of

said count Segundo Santiago was declared elected president of said municipality,

by the municipal council thereof, on the 12th of June, 1916.

Fourth. That later, and on the 17th of June, 1916, Emilio de Castro contested said

election by presenting a "motion" in the Court of First Instance of the Province of

Sorsogon. Said "motion" was not signed by the "candidate voted for" but was

signed by his attorney.

Fifth. That on the 10th of July, 1916, the respondent, Segundo Santiago,

answered said "motion," and among other defenses presented, prayed that the

"motion" be quashed or dismissed for the reason that it had not been signed by the

"candidate voted for" as is required by law. (Section 576, Administrative Code.)

Sixth. That on the 28th of July, 1916, the respondent judge, Fernando Salas, after

hearing the respective parties, dismissed said "motion" for the reason that it had

not been signed by the contestant himself, Emilio de Castro. The court held that byvirtue of said section 576, the "motion" or contest could only be initiated by the

contestant himself by signing said "motion" himself personally; that said contest

could not be initiated by presenting a "motion" signed by his attorney.

Seventh. That thereafter, on the 31st of July, 1916, the petitioner, Emilio de

Castro, by his attorney, presented a motion for a reconsideration of the order

dismissing his "motion" or contest.

Eighth. That on the same day (the 31st of July, 1916), the respondent judge,

Fernando Salas, denied said motion for a reconsideration of his order dismissing

said "motion" or contest.

Ninth. That on the 2d of August, 1916, the petition for the remedy prayed for in

this court was presented, which was amended by the substitution of another

complaint on the 9th of August, 1916.

Tenth. That on the 9th of August, 1916, the Attorney-General, representing the

respondent, Fernando Salas, presented an answer to said petition.

Eleventh. That on the 15th of August, the respondent, Segundo Santiago,

presented a demurrer to said petition.

Upon the foregoing facts and the issue presented by the petition, the answer, and

the demurrer, and after hearing the respective parties, the questions involved were

presented to his court. Upon the main question presented for our consideration,

authorities and precedents have not readily been found. The respondents contend

that the law (section 576, Administrative Code) is mandatory and explicit, and cite

Act No. 1773 and some decisions of this court, which they deem to be authority for

their contention, while the petitioner contends that the law is not mandatory and

does not limit the signing of the "motion" to the contestant himself personally, and

cites the provisions of section 34 of Act No. 190, as amended by section 1 of Act

No. 2453, in support of his contention.

It is true that the criminal actions mentioned in said Act No. 1773 can only be

initiated by a complaint of the aggrieved person, or of the parents, grandparents,

or guardian of such person. (U. S. vs. Narvas, 14 Phil. Rep., 410; U. S. vs.

Castaares, 18 Phil. Rep., 210; U. S. vs. Arzadon,

canon 9 legal ethics

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