Cases-conflicts of Law

8/12/2019 Cases-conflicts of Law

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HILTON v. GUYOT, 159 U.S. 113 (1895)

159 U.S. 113

HILTON et al. v.GUYOT et al. (two cases).

Nos. 130 an 3!.

"#ne 3, 1895. $159 U.S. 113, 11!% T&e ' st o' t&ese two cases was an act on at law, * o#+&tece-*e 18, 1885, n t&e c c# t co# t o' t&e Un te States 'o t&e So#t&e n st ct o' New

Yo , */ G#stave e t n G#/ot, as o'' c al l # ato o' t&e ' - o' 2&a les o t n 4 2o., an */ t&e s# v v n+ -e-*e s o' t&at ' -, all al ens an c t ens o' t&e e6#*l c o' ance,a+a nst Hen / H lton an 7 ll a- L **e/, c t ens o' t&e Un te States an o' t&e state o'New Yo , an t a n+ as co6a tne s, n t&e c t es o' New Yo an a s, an elsew&e e,

#n e t&e ' - na-e o' . T. Stewa t 4 2o. T&e act on was #6on a :# +-ent ecove e n aenc& co# t at a s, n t&e e6#*l c o' ance, */ t&e ' - o' 2&a les o t n 4 2o., all o' w&ose -e-*e s we e enc& c t ens, a+a nst H lton 4 L **e/, t a n+ as co6a tne s, asa'o esa , an c t ens o' t&e Un te States an o' t&e state o' New Yo .

T&e co-6la nt alle+e t&at n 188;, an s nce, # n+ t&e t -e o' all t&e t ansact onsncl# e n t&e :# +-ent s#e on, H lton an L **e/, as s#ccesso s to le


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e< st n+ #n e t&e laws o' t&e e6#*l c o' ance, an &av n+ :# s ct on o' a66eals ' o-t&e ' nal :# +-ents o' t&e t *#nal o' co--e ce o' t&e e6a t-ent o' t&e Se ne, w&e e t&ea-o#nt n s6#te ea c& 19, 188!, an e-a n n+ o' eco n t&e o'' ce o' ts cleat a s, a'te &ea n+ t&e seve al 6a t es */ t&e co#nsel, an #6on '#ll cons e at on o't&e -e ts, s- sse t&e a66eal o' t&e e'en ants, con' -e t&e :# +-ent o' t&e loweco# t n 'avo o' t&e 6la nt ''s, an o e e , #6on t&e 6la nt ''sA a66eal, t&at t&e/ ecovet&e a t onal s#- o' 15@,5@8 ' ancs, w t& 18@,8!9 ' ancs 'o nte est on all t&e cla -sallowe , an 1@,559 ' ancs 'o costs an e


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T&e answe '# t&e alle+e t&at, n t&e o + nal s# ts * o#+&t a+a nst t&e e'en ants */o t n 4 2o., t&e c tat ons we e le't at t&e sto e&o#se n a s= t&at t&e/ we e t&enes ents an c t ens o' t&e state o' New Yo , an ne t&e o' t&e- at t&at t -e, o w t& n

'o# /ea s *e'o e, &a *een w t& n, o es ent o o- c le w t& n, t&e :# s ct on o' t&att *#nal, o owe an/ alle+ ance to ance= *#t t&at $159 U.S. 113, 11?% t&e/ we e t&eowne s o' 6 o6e t/ s t#ate n t&at co#nt /, w& c& wo#l */ t&e law o' ance &ave *eenl a*le to se # e ' t&e/ not a66ea n t&at t *#nal= an t&at t&e/ #nw ll n+l/, an solel/'o t&e 6# 6ose o' 6 otect n+ t&at 6 o6e t/, a#t&o e an ca#se an a+ent to a66ea 'ot&e- n t&ose 6 ocee n+s= an t&at t&e s# ts * o#+&t */ t&e- a+a nst o t n 4 2o. we e

* o#+&t 'o t&e sa-e 6# 6ose, an n o e to -a e a 6 o6e e'ense, an to esta*l s&co#nte cla -s a s n+ o#t o' t&e t ansact ons *etween t&e 6a t es, an to co-6el t&e6 o #ct on an ns6ect on o' o t n 4 2o.As *oo s, an t&at t&e/ so#+&t no ot&ea'' -at ve el e' n t&at t *#nal.

T&e answe '# t&e alle+e t&at 6en n+ t&at l t +at on t&e e'en ants scove e + oss

' a# s n t&e acco#nts o' o# t n 4 2o., t&at t&e a * t ato an t&e t *#nal ecl ne toco-6el o t n 4 2o. to 6 o #ce t&e *oo s an 6a6e s 'o ns6ect on, an t&at, ' t&e/ &a

*een 6 o #ce , t&e :# +-ent wo#l not &ave *een o*ta ne a+a nst t&e e'en ants.

T&e answe '# t&e alle+e t&at, w t&o#t an/ 'a#lt o ne+l +ence on t&e 6a t o' t&ee'en ants, t&e e was not a '#ll an 'a t al o' t&e cont ove s es *e'o e t&e a * t ato , n

t&at no w tness was swo n o a'' -e = n t&at 2&a les o t n was 6e - tte to -a e, an -a e, state-ents not #n e oat&, conta n n+ -an/ 'alse&oo s= n t&at t&e 6 v le+e o'

c ossBe


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con #cte acco n+ to t&e #sa+es an 6 act ce o' t&e co--on law, an t&e alle+at ons an6 oo's + ven */ sa o t n 4 2o., #6on w& c& sa :# +-ent s 'o#n e , wo#l not *eco-6etent o a - ss *le n an/ co# t o t *#nal o' t&e Un te States, n an/ s# t *etweent&e sa-e 6a t es, nvolv n+ t&e sa-e s#*:ectB-atte , an t s cont a / to nat# al :#st cean 6#*l c 6ol c/ t&at t&e sa :# +-ent s&o#l *e en'o ce a+a nst a c t en o' t&e Un teStates= an t&at, ' t&e e &a *een a '#ll an 'a t al #6on t&e -e ts o' t&e cont ove s esso 6en n+ *e'o e sa t *#nals, no :# +-ent wo#l &ave *een o*ta ne a+a nst saStewa t 4 2o.

A e'en ants, '# t&e answe n+, alle+e t&at t s cont a / to nat# al :#st ce t&at t&e :# +-ent &e e n*e'o e -ent one s&o#l *e en'o ce w t&o#t an e


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1881 *een es ents o' t&e state o' New Yo , o w t& n t&e :# s ct on o' t&at state, *#t t&ee'en ants we e, an alwa/s &a *een, es ents o' t&at state.

T&e answe concl# e */ e-an n+ t&at t&e 6la nt ''sA $159 U.S. 113, 1@0% co-6la nt *es- sse , an t&at t&e e'en ants &ave :# +-ent a+a nst t&e- #6on t&e co#nte cla -s,

a-o#nt n+ to C10@,[email protected].

T&e 6la nt ''s ' le a e6l cat on to so -#c& o' t&e answe as -a e co#nte cla -s, en/ n+ts alle+at ons, an sett n+ #6 n *a t&e eo' t&e :# +-ent s#e on.

T&e e'en ants, on "#ne @@, 1888, ' le a * ll n e # t/ a+a nst t&e 6la nt ''s, sett n+ 'o t&t&e sa-e -atte s as n t&e answe to t&e act on at law, an 6 a/ n+ 'o a scove /, an'o an n:#nct on a+a nst t&e 6 osec#t on o' t&e act on. To t&at * ll a 6lea was ' le , sett n+#6 t&e enc& :# +-ents, an #6on a &ea n+ t&e * ll was s- sse . !@ e . @!9. o- t&e

ec ee s- ss n+ t&e * ll an a66eal was ta en, w& c& s t&e secon case now *e'o e t& sco# t.

T&e act on at law a'te wa s ca-e on 'o t al */ a :# /, an t&e 6la nt ''s 6#t n t&eeco s o' t&e 6 ocee n+s an :# +-ents n t&e enc& co# ts, an ev ence t&at t&e

:# s ct on o' t&ose co# ts was as alle+e n t&e co-6la nt, an t&at t&e 6 act ce 'ollowe ,an t&e -et&o o' e


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o''e e to 6 ove t&at t&e/ we e es ents an c t ens o' t&e state o' New Yo , an ne t&eo' t&e- &a *een, w t& n 'o# /ea s 6 o to t&e co--ence-ent o' t&ose s# ts, o- c leo es ent w t& n t&e :# s ct on o' t&ose co# ts= t&at t&e/ &a a 6# c&as n+ a+ent an asto e&o#se n a s, *#t onl/ as a -eans o 'ac l t/ to a n t&e t ansact on o' t&e6 nc 6al *#s ness, w& c& was n New Yo , an t&e/ we e neve ot&e w se en+a+e n

*#s ness n ance= t&at ne t&e o' t&e- owe alle+ ance to ance, *#t t&e/ we e t&eowne s o' 6 o6e t/ t&e e, w& c& wo#l , acco n+ to t&e laws o' ance, &ave *een l a*le tose # e ' t&e/ &a not a66ea e to answe n t&ose s# ts= t&at t&e/ #nw ll n+l/, an solel/'o t&e 6# 6ose o' 6 otect n+ t&e 6 o6e t/ w t& n t&e :# s ct on o' t&e enc& t *#nal,a#t&o e an a+ent to a66ea , an &e a66ea n t&e 6 ocee n+s *e'o e t= an t&att&e -ot on to co-6el an ns6ect on o' t&e 6la nt ''sA *oo s, as well as t&e s# ts * o#+&t */t&e e'en ants n ance, we e necessa / */ wa/ o' e'ense o co#nte cla - to t&e s# tst&e e * o#+&t */ t&e 6la nt ''s a+a nst t&e-.

-on+ t&e -atte s w& c& t&e e'en ants alle+e an o''e e to 6 ove n o e to s&ow t&at

t&e enc& :# +-ents we e 6 oc# e */ ' a# we e t&at o t n 4 2o., w t& ntent toece ve an e' a# t&e e'en ants, an t&e a * t ato an t&e co# ts o' ance, ente e n

t&e *oo s, an 6 esente to t&e e'en ants, an to t&e enc& co# ts, acco#nts *ea n+#6on t&e t ansact ons n cont ove s/ w& c& we e 'alse an ' a# #lent, an conta nee


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ev ence= an t&at none o' t&ose -atte s, ' 6 ove , wo#l *e a e'ense to t& s act on #6ont&at :# +-ent.

T&e co# t ecl ne to a - t an/ o' t&e ev ence so o''e e */ t&e e'en ants, an ectea ve ct 'o t&e 6la nt ''s n t&e s#- o' C@??, ??5.!!, *e n+ t&e a-o#nt o' t&e enc&

:# +-ent an nte est. T&e e'en ants, &av n+ #l/ e


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7hether the cler+ co#plied with this order does not affir#atively appear. There is, however, a#on$the papers pertainin$ to this case, an affidavit, dated 2pril , 1908, si$ned by !ernardo han y

arcia, an e#ployee of the attorneys of the ban+, showin$ that upon that date he had deposited inthe Manila post-office a re$istered letter, addressed to n$racio )alanca Tan%uinyen$, at Manila,containin$ copies of the co#plaint, the plaintiff s affidavit, the su##ons, and the order of the courtdirectin$ publication as aforesaid. /t appears fro# the post#aster s receipt that !ernardo probably

used an envelope obtained fro# the cler+ s office, as the receipt purports to show that the lettere#anated fro# the office.

The cause proceeded in usual course in the ourt of irst /nstance4 and the defendant not havin$appeared, 6ud$#ent was, upon &uly , 1908, ta+en a$ainst hi# by default. pon &uly 3, 1908, adecision was rendered in favor of the plaintiff. /n this decision it was recited that publication had beenproperly #ade in a periodical, but nothin$ was said about this notice havin$ been $iven #ail. Thecourt, upon this occasion, found that the indebtedness of the defendant a#ounted to ) 9,3 . 3 ,with interest fro# March 31, 1908. 2ccordin$ly it was ordered that the defendant should, on orbefore &uly ', 1908, deliver said a#ount to the cler+ of the court to be applied to the satisfaction ofthe 6ud$#ent, and it was declared that in case of the failure of the defendant to satisfy the 6ud$#entwithin such period, the #ort$a$e property located in the city of Manila should be e(posed to publicsale. The pay#ent conte#plated in said order was never #ade4 and upon &uly 8, 1908, the courtordered the sale of the property. The sale too+ place upon &uly 30, 1908, and the property wasbou$ht in by the ban+ for the su# of )110, 00. pon 2u$ust , 1908, this sale was confir#ed by thecourt.

2bout seven years after the confir#ation of this sale, or to the precise, upon &une , 191 , a #otionwas #ade in this cause by :icente )alanca, as ad#inistrator of the estate of the ori$inal defendant,

n$racio )alanca Tan%uinyen$ y *i#%uin$co, wherein the applicant re%uested the court to set asidethe order of default of &uly , 1908, and the 6ud$#ent rendered upon &uly 3, 1908, and to vacate allthe proceedin$s subse%uent thereto. The basis of this application, as set forth in the #otion itself,was that the order of default and the 6ud$#ent rendered thereon were void because the court hadnever ac%uired 6urisdiction over the defendant or over the sub6ect of the action.

2t the hearin$ in the court below the application to vacate the 6ud$#ent was denied, and fro# thisaction of the court :icente )lanca, as ad#inistrator of the estate of the ori$inal defendant, hasappealed. ;o other feature of the case is here under consideration than such as related to the actionof the court upon said #otion.

The case presents several %uestions of i#portance, which will be discussed in what appears to bethe se%uence of #ost convenient develop#ent. /n the first part of this opinion we shall, for thepurpose of ar$u#ent, assu#e that the cler+ of the ourt of irst /nstance did not obey the order ofthe court in the #atter of #ailin$ the papers which he was directed to send to the defendant in

2#oy4 and in this connection we shall consider, first, whether the court ac%uired the necessary 6urisdiction to enable it to proceed with the foreclosure of the #ort$a$e and, secondly, whether thoseproceedin$s were conducted in such #anner as to constitute due process of law.

The word "6urisdiction," as applied to the faculty of e(ercisin$ 6udicial power, is used in severaldifferent, thou$h related, senses since it #ay have reference es a court deter#ines the nature and e(tent of its powers in$eneral and thus fi(es its co#petency or 6urisdiction with reference to the actions which it #ayentertain and the relief it #ay $rant.


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&urisdiction over the person is ac%uired by the voluntary appearance of a party in court and hissub#ission to its authority, or it is ac%uired by the coercive power of le$al process e(erted over theperson.

&urisdiction over the property which is the sub6ect of the liti$ation #ay result either fro# a sei>ure ofthe property under le$al process, whereby it is brou$ht into the actual custody of the law, or it #ay

result fro# the institution of le$al proceedin$s wherein, under special provisions of law, the power ofthe court over the property is reco$ni>ed and #ade effective. /n the latter case the property, thou$hat all ti#es within the potential power of the court, #ay never be ta+en into actual custody at all. 2nillustration of the 6urisdiction ac%uired by actual sei>ure is found in attach#ent proceedin$s, wherethe property is sei>ed at the be$innin$ of the action, or so#e subse%uent sta$e of its pro$ress, andheld to abide the final event of the liti$ation. 2n illustration of what we ter# potential 6urisdiction overthe res, is found in the proceedin$ to re$ister the title of land under our syste# for the re$istration ofland. ?ere the court, without ta+in$ actual physical control over the property assu#es, at theinstance of so#e person clai#in$ to be owner, to e(ercise a 6urisdiction in re# over the property andto ad6udicate the title in favor of the petitioner a$ainst all the world.

/n the ter#inolo$y of 2#erican law the action to foreclose a #ort$a$e is said to be a proceedin$

%uasi in re#, by which is e(pressed the idea that while it is not strictly spea+in$ an action in rem yetit parta+es of that nature and is substantially such. The e(pression "action in re#" is, in its narrowapplication, used only with reference to certain proceedin$s in courts of ad#iralty wherein theproperty alone is treated as responsible for the clai# or obli$ation upon which the proceedin$s arebased. The action %uasi re# differs fro# the true action in re# in the circu#stance that in the for#eran individual is na#ed as defendant, and the purpose of the proceedin$ is to sub6ect his interesttherein to the obli$ation or lien burdenin$ the property. 2ll proceedin$s havin$ for their sole ob6ectthe sale or other disposition of the property of the defendant, whether by attach#ent, foreclosure, orother for# of re#edy, are in a $eneral way thus desi$nated. The 6ud$#ent entered in theseproceedin$s is conclusive only between the parties.

/n spea+in$ of the proceedin$ to foreclose a #ort$a$e the author of a well +nown treaties, has said5

Thou$h no#inally a$ainst person, such suits are to vindicate liens4 they proceed uponsei>ure4 they treat property as pri#arily indebted4 and, with the %ualification above-#entioned, they are substantially property actions. /n the civil law, they are styledhypothecary actions, and their sole ob6ect is the enforce#ent of the lien a$ainst the res 4 inthe co##on law, they would be different in chancery did not treat the conditionalconveyance as a #ere hypothecation, and the creditor s ri$ht ass an e%uitable lien4 so, inboth, the suit is real action so far as it is a$ainst property, and see+s the 6udicial reco$nitionof a property debt, and an order for the sale of the res.


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court. !ut, if there is no appearance of the defendant, and no service of process on hi#, thecase beco#es, in its essential nature, a proceedin$ in rem , the only effect of which is tosub6ect the property attached to the pay#ent of the defendant which the court #ay find to bedue to the plaintiff. < ooper vs. @eynolds, 10 7all., 308.=

/n an ordinary attach#ent proceedin$, if the defendant is not personally served, the preli#inary

sei>ure is to, be considered necessary in order to confer 6urisdiction upon the court. /n this case thelien on the property is ac%uired by the sei>ure4 and the purpose of the proceedin$s is to sub6ect theproperty to that lien. /f a lien already e(ists, whether created by #ort$a$e, contract, or statute, thepreli#inary sei>ure is not necessary4 and the court proceeds to enforce such lien in the #annerprovided by law precisely as thou$h the property had been sei>ed upon attach#ent.


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over the person cannot be thus ac%uired by publication and notice is no lon$er open to %uestion4 andit is now fully established that a personal 6ud$#ent upon constructive or substituted service a$ainst anonresident who does not appear is wholly invalid. This doctrine applies to all +inds of constructiveor substituted process, includin$ service by publication and personal service outside of the

6urisdiction in which the 6ud$#ent is rendered4 and the only e(ception see#s to be found in the casewhere the nonresident defendant has e(pressly or i#pliedly consented to the #ode of service.


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or notice in a case of this +ind is a %uestion affectin$ the 6urisdiction of the court, and the court isso#eti#es said to ac%uire 6urisdiction by virtue of the publication. This phraseolo$y was undoubtedlyori$inally adopted by the court because of the analo$y between service by the publication andpersonal service of process upon the defendant4 and, as has already been su$$ested, prior to thedecision of )ennoyer vs. ;eff


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The idea upon which the law proceeds in reco$ni>in$ the efficacy of a #eans of notification which#ay fall short of actual notice is apparently this5 )roperty is always assu#ed to be in the possessionof its owner, in person or by a$ent4 and he #ay be safely held, under certain conditions, to beaffected with +nowled$e that proceedin$s have been instituted for its conde#nation and sale.

/t is the duty of the owner of real estate, who is a nonresident, to ta+e #easures that in so#e

way he shall be represented when his property is called into re%uisition, and if he fails to dothis, and fails to $et notice by the ordinary publications which have usually been re%uired insuch cases, it is his #isfortune, and he #ust abide the conse%uences.


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#atter of 6urisdiction there can be no distinction between the #uch and the little. The court either has 6urisdiction or it has not4 and if the re%uire#ent as to the #ailin$ of notice should be considered as astep antecedent to the ac%uirin$ of 6urisdiction, there could be no escape fro# the conclusion thatthe failure to ta+e that step was fatal to the validity of the 6ud$#ent. /n the application of the idea ofdue process of law, on the other hand, it is clearly unnecessary to be so ri$orous. The 6urisdictionbein$ once established, all that due process of law thereafter re%uires is an opportunity for the

defendant to be heard4 and as publication was duly #ade in the newspaper, it would see# hi$hlyunreasonable to hold that failure to #ail the notice was fatal. 7e thin+ that in applyin$ there%uire#ent of due process of law, it is per#issible to reflect upon the purposes of the provisionwhich is supposed to have been violated and the principle underlyin$ the e(ercise of 6udicial powerin these proceedin$s. &ud$e in the li$ht of these conceptions, we thin+ that the provision of 2ct of

on$ress declarin$ that no person shall be deprived of his property without due process of law hasnot been infrin$ed.

/n the pro$ress of this discussion we have stated the two conclusions4


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2u$ust , 1908. /t passes the rational bounds of hu#an credulity to suppose that a #an who hadplaced a #ort$a$e upon property worth nearly )300,000 and had then $one away fro# the scene ofhis life activities to end his days in the city of 2#oy, hina, should have lon$ re#ained in i$noranceof the fact that the #ort$a$e had been foreclosed and the property sold, even supposin$ that he hadno +nowled$e of those proceedin$s while they were bein$ conducted. /t is #ore in +eepin$ with theordinary course of thin$s that he should have ac%uired infor#ation as to what was transpirin$ in his

affairs at Manila4 and upon the basis of this rational assu#ption we are authori>ed, in the absence ofproof to the contrary, to presu#e that he did have, or soon ac%uired, infor#ation as to the sale of hisproperty.

The ode of ivil )rocedure, indeed, e(pressly declares that there is a presu#ption that thin$s havehappened accordin$ to the ordinary habits of life


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/t has been held by this court that a clause in a #ort$a$e providin$ for a tipo, or upset price, doesnot prevent a foreclosure, nor affect the validity of a sale #ade in the foreclosure proceedin$s. ?errera and 7y )iaco, 11 )hil. @ep., 0 4 !anco- spaHol ilipino vs. Donaldson,Ai# and o., )hil. @ep., 18.= /n both the cases here cited the property was purchased at theforeclosure sale, not by the creditor or #ort$a$ee, but by a third party. 7hether the sa#e ruleshould be applied in a case where the #ort$a$ee hi#self beco#es the purchaser has apparently not

been decided by this court in any reported decision, and this %uestion need not here be considered,since it is evident that if any liability was incurred by the ban+ by purchasin$ for a price below thatfi(ed in the stipulation, its liability was a personal liability derived fro# the contract of #ort$a$e4 andas we have already de#onstrated such a liability could not be the sub6ect of ad6udication in an actionwhere the court had no 6urisdiction over the person of the defendant. /f the plaintiff ban+ beca#eliable to account for the difference between the upset price and the price at which in bou$ht in theproperty, that liability re#ains unaffected by the disposition which the court #ade of this case4 andthe fact that the ban+ #ay have violated such an obli$ation can in no wise affect the validity of the

6ud$#ent entered in the ourt of irst /nstance.

/n connection with the entire failure of the #otion to show either a #eritorious defense to the actionor that the defendant had suffered any pre6udice of which the law can ta+e notice, we #ay beper#itted to add that in our opinion a #otion of this +ind, which proposes to unsettle 6udicialproceedin$s lon$ a$o closed, can not be considered with favor, unless based upon $rounds whichappeal to the conscience of the court. )ublic policy re%uires that 6udicial proceedin$s be upheld. The#a(i#u# here applicable is non %uieta #overe. 2s was once said by &ud$e !rewer, afterwards a#e#ber of the Aupre#e ourt of the nited Atates5

)ublic policy re%uires that 6udicial proceedin$s be upheld, and that titles obtained in thoseproceedin$s be safe fro# the ruthless hand of collateral attac+. /f technical defects aread6ud$ed potent to destroy such titles, a 6udicial sale will never reali>e that value of theproperty, for no prudent #an will ris+ his #oney in biddin$ for and buyin$ that title which hehas reason to fear #ay years thereafter be swept away throu$h so#e occult and not readilydiscoverable defect. ed. E#nia presu#untur rite et sole#niter esse acta donec probetur in contrariu#. There istherefore clearly a le$al presu#ption that the cler+ perfor#ed his duty about #ailin$ this notice4 andwe thin+ that stron$ considerations of policy re%uire that this presu#ption should be allowed tooperate with full force under the circu#stances of this case. 2 party to an action has no control overthe cler+ of the court4 and has no ri$ht to #eddle unduly with the business of the cler+ in the


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perfor#ance of his duties. ?avin$ no control over this officer, the liti$ant #ust depend upon the courtto see that the duties i#posed on the cler+ are perfor#ed.

Ether considerations no less potent contribute to stren$then the conclusion 6ust stated. There is noprinciple of law better settled than that after 6urisdiction has once been re%uired, every act of a courtof $eneral 6urisdiction shall be presu#ed to have been ri$htly done. This rule is applied to every

6ud$#ent or decree rendered in the various sta$es of the proceedin$s fro# their initiation to theirco#pletion


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00 of the ode of ivil )rocedure, showin$ that the order was in fact so sent by the cler+4 and nosuch affidavit appears. The record is therefore silent where it ou$ht to spea+. !ut the very purpose ofthe law in reco$ni>in$ these presu#ptions is to enable the court to sustain a prior 6ud$#ent in theface of such an o#ission. /f we were to hold that the 6ud$#ent in this case is void because theproper affidavit is not present in the file of papers which we call the record, the result would be that inthe future every title in the /slands restin$ upon a 6ud$#ent li+e that now before us would depend, for

its continued security, upon the presence of such affidavit a#on$ the papers and would be liable atany #o#ent to be destroyed by the disappearance of that piece of paper. 7e thin+ that no court,with a proper re$ard for the security of 6udicial proceedin$s and for the interests which have by lawbeen confided to the courts, would incline to favor such a conclusion. /n our opinion the propercourse in a case of this +ind is to hold that the le$al presu#ption that the cler+ perfor#ed his dutystill #aintains notwithstandin$ the absence fro# the record of the proper proof of that fact.

/n this connection it is i#portant to bear in #ind that under the practice prevailin$ in the )hilippine/slands the word "record" is used in a loose and broad sense, as indicatin$ the collective #ass ofpapers which contain the history of all the successive steps ta+en in a case and which are finallydeposited in the archives of the cler+ s office as a #e#orial of the liti$ation. /t is a #atter of $eneralinfor#ation that no 6ud$#ent roll, or boo+ of final record, is co##only +ept in our courts for thepurpose of recordin$ the pleadin$s and principal proceedin$s in actions which have beenter#inated4 and in particular, no such record is +ept in the ourt of irst /nstance of the city ofManila. There is, indeed, a section of the ode of ivil )rocedure which directs that such a boo+ offinal record shall be +ept4 but this provision has, as a #atter of co##on +nowled$e, been $enerallyi$nored. The result is that in the present case we do not have the assistance of the recitals of such arecord to enable us to pass upon the validity of this 6ud$#ent and as already stated the %uestion#ust be deter#ined by e(a#inin$ the papers contained in the entire file.

!ut it is insisted by counsel for this #otion that the affidavit of !ernardo han y arcia showin$ thatupon 2pril , 1908, he sent a notification throu$h the #ail addressed to the defendant at Manila,)hilippine /slands, should be accepted as affir#ative proof that the cler+ of the court failed in his dutyand that, instead of hi#self sendin$ the re%uisite notice throu$h the #ail, he relied upon !ernardo tosend it for hi#. 7e do not thin+ that this is by any #eans a necessary inference. Ef course if it had

affir#atively appeared that the cler+ hi#self had atte#pted to co#ply with this order and haddirected the notification to Manila when he should have directed it to 2#oy, this would be conclusivethat he had failed to co#ply with the e(act ter#s of the order4 but such is not this case. That thecler+ of the attorneys for the plaintiff erroneously sent a notification to the defendant at a #ista+enaddress affords in our opinion very sli$ht basis for supposin$ that the cler+ #ay not have sent noticeto the ri$ht address.

There is undoubtedly $ood authority to support the position that when the record states the evidenceor #a+es an aver#ent with reference to a 6urisdictional fact, it will not be presu#ed that there wasother or different evidence respectin$ the fact, or that the fact was otherwise than stated. /f, to $ivean illustration, it appears fro# the return of the officer that the su##ons was served at a particularplace or in a particular #anner, it will not be presu#ed that service was also #ade at another placeor in a different #anner4 or if it appears that service was #ade upon a person other than thedefendant, it will not be presu#ed, in the silence of the record, that it was #ade upon the defendantalso < alpin vs. )a$e, 18 7all., 3 0, 3''4 Aettle#ier vs. Aullivan, 9 . A., , 9=. 7hile webelieve that these propositions are entirely correct as applied to the case where the person #a+in$the return is the officer who is by law re%uired to #a+e the return, we do not thin+ that it is properlyapplicable where, as in the present case, the affidavit was #ade by a person who, so far as theprovisions of law are concerned, was a #ere inter#eddler.


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The last %uestion of i#portance which we propose to consider is whether a #otion in the cause isad#issible as a proceedin$ to obtain relief in such a case as this. /f the #otion prevails the 6ud$#entof &uly , 1908, and all subse%uent proceedin$s will be set aside, and the liti$ation will be renewed,proceedin$ a$ain fro# the date #entioned as if the pro$ress of the action had not been interrupted.The proponent of the #otion does not as+ the favor of bein$ per#itted to interpose a defense. ?ispurpose is #erely to annul the effective 6ud$#ent of the court, to the end that the liti$ation #ay a$ain

resu#e its re$ular course.

There is only one section of the ode of ivil )rocedure which e(pressly reco$ni>es the authority ofa ourt of irst /nstance to set aside a final 6ud$#ent and per#it a renewal of the liti$ation in thesa#e cause. This is as follows5

A . 113. pon such ter#s as #ay be 6ust the court #ay relieve a party or le$alrepresentative fro# the 6ud$#ent, order, or other proceedin$ ta+en a$ainst hi# throu$h his#ista+e, inadvertence, surprise, or e(cusable ne$lect4 )rovided, That application thereof be#ade within a reasonable ti#e, but in no case e(ceedin$ si( #onths after such 6ud$#ent,order, or proceedin$ was ta+en.

2n additional re#edy by petition to the Aupre#e ourt is supplied by section 13 of the sa#e ode.The first para$raph of this section, in so far as pertinent to this discussion, provides as follows5

7hen a 6ud$#ent is rendered by a ourt of irst /nstance upon default, and a party theretois un6ustly deprived of a hearin$ by fraud, accident, #ista+e or e(cusable ne$li$ence, andthe ourt of irst /nstance which rendered the 6ud$#ent has finally ad6ourned so that noade%uate re#edy e(ists in that court, the party so deprived of a hearin$ #ay present hispetition to the Aupre#e ourt within si(ty days after he first learns of the rendition of such

6ud$#ent, and not thereafter, settin$ forth the facts and prayin$ to have 6ud$#ent set aside. .. .

/t is evident that the proceedin$ conte#plated in this section is intended to supple#ent the re#edyprovided by section 1134 and we believe the conclusion irresistible that there is no other #eansreco$ni>ed by law whereby a defeated party can, by a proceedin$ in the sa#e cause, procure a

6ud$#ent to be set aside, with a view to the renewal of the liti$ation.

The ode of ivil )rocedure purports to be a co#plete syste# of practice in civil causes, and itcontains provisions describin$ with #uch fullness the various steps to be ta+en in the conduct ofsuch proceedin$s. To this end it defines with precision the #ethod of be$innin$, conductin$, andconcludin$ the civil action of whatever species4 and by section 9 of the sa#e ode it is declaredthat the procedure in all civil action shall be in accordance with the provisions of this ode. 7e aretherefore of the opinion that the re#edies prescribed in sections 113 and 13 are e(clusive of allothers, so far as relates to the openin$ and continuation of a liti$ation which has been onceconcluded.

The #otion in the present case does not confor# to the re%uire#ents of either of these provisions4and the conse%uence is that in our opinion the action of the ourt of irst /nstance in dis#issin$ the#otion was proper.

/f the %uestion were ad#ittedly one relatin$ #erely to an irre$ularity of procedure, we cannotsuppose that this proceedin$ would have ta+en the for# of a #otion in the cause, since it is clearthat, if based on such an error, the ca#e to late for relief in the ourt of irst /nstance. !ut as wehave already seen, the #otion attac+s the 6ud$#ent of the court as void for want of 6urisdiction overthe defendant. The idea underlyin$ the #otion therefore is that inas#uch as the 6ud$#ent is a nullity


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it can be attac+ed in any way and at any ti#e. /f the 6ud$#ent were in fact void upon its face, that is,if it were shown to be a nullity by virtue of its own recitals, there #i$ht possibly be so#ethin$ in this.7here a 6ud$#ent or 6udicial order is void in this sense it #ay be said to be a lawless thin$, whichcan be treated as an outlaw and slain at si$ht, or i$nored wherever and whenever it e(hibits itshead.

!ut the 6ud$#ent in %uestion is not void in any such sense. /t is entirely re$ular in for#, and thealle$ed defect is one which is not apparent upon its face. /t follows that even if the 6ud$#ent couldbe shown to be void for want of 6urisdiction, or for lac+ of due process of law, the party a$$rievedthereby is bound to resort to so#e appropriate proceedin$ to obtain relief. nder accepted principlesof law and practice, lon$ reco$ni>ed in 2#erican courts, a proper re#edy in such case, after theti#e for appeal or review has passed, is for the a$$rieved party to brin$ an action to en6oin the

6ud$#ent, if not already carried into effect4 or if the property has already been disposed of he #ayinstitute suit to recover it. /n every situation of this character an appropriate re#edy is at hand4 and ifproperty has been ta+en without due process, the law concedes due process to recover it. 7eaccordin$ly old that, assu#in$ the 6ud$#ent to have been void as alle$ed by the proponent of this#otion, the proper re#edy was by an ori$inal proceedin$ and not by #otion in the cause. 2s wehave already seen our ode of ivil )rocedure defines the conditions under which relief a$ainst a

6ud$#ent #ay be productive of conclusion for this court to reco$ni>e such a proceedin$ as properunder conditions different fro# those defined by law. pon the point of procedure here involved, werefer to the case of )eople vs. ?arrison


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Au##ary of Shaffer v. Heitner , 33 .A. 18', 9 A. t. '9, 3 *. d. d '83


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6urisdiction, not on appellantsK status as corporate fiduciaries, but on the presence of their property in theAtate.

Thou$h it #ay be appropriate for Delaware law to $overn the obli$ations of appellants to the corporationand stoc+holders, this does not #ean that appellants have purposefully availed the#selves of theprivile$e of conductin$ activities within the foru# Atate. Aee Hanson v. Denckla . 2ppellants, who werenot re%uired to ac%uire interests in the corporation in order to hold their positions, did not by ac%uirin$those interests surrender their ri$ht to be brou$ht to 6ud$#ent in the Atates in which they had #ini#u#contacts.

5$&c &&$o%/n Mullane v. Central Hanover Bank and Trust we held certain ourteenth 2#end#ent ri$hts attachonce an adverse 6ud$#ent in re# directly affects the property owner by divestin$ hi# of his ri$hts in theproperty. /f 6urisdiction over property involves 6urisdiction over a personKs interests, the proper standard isthe #ini#u# contacts standard of /nternational Ahoe. This #a+es the assertion of 6urisdiction over theproperty an assertion of 6urisdiction over the person. Thus, all assertions of 6urisdiction #ust bedeter#ined accordin$ to the standards of /nternational Ahoe and its pro$eny.

Delaware has a stron$ interest in supervisin$ the #ana$e#ent of corporations created within its borders.The le$islature #ust assert that interest, however. Delaware is not a fair foru# for this liti$ation becausethe officers and directors have never set foot in the state and have not purposefully availed the#selves ofthe benefits and protections of the state.

5$& o&$'$o%@eversed.

Co%c rr$%* Po )++/ reserve 6ud$#ent as to whether ownership of real property in a 6urisdiction #ay provide the contactsnecessary for 6urisdiction. Fuasi in re# 6urisdiction should re#ain valid when real property is involved.

Co%c rr$%* S')7)%&This holdin$ should not be read to invalidate in re# 6urisdiction.

Co%c rr$%* $% Par' a%" 5$&&)%'$%* $% Par' Br)%%a%The use of #ini#u# contacts is #ore than 6ustified and it represents a sensible approach to the e(erciseof state court 6urisdiction, however the #a6orityKs approach to #ini#u# contacts is wron$. To be proper,Atate court 6urisdiction #ust have both notice and a lon$ ar# statute. nder this case there is no suchstatute.

2s a $eneral rule, a state foru# has 6urisdiction to ad6udicate a shareholder derivative action centerin$ on

the conduct and policies of the directors and officers of a corporation incorporated in that Atate. /therefore would not foreclose Delaware fro# assertin$ 6urisdiction over appellants were it persuaded to doso on the basis of #ini#u# contacts. ?eitner however never pleaded or de#onstrated that thedefendants had #ini#u# contacts with the state.

reyhoundKs choice of incorporation in Delaware is a pri#a facie showin$ of sub#ission to its 6urisdiction.There was a voluntary association with the Atate of Delaware invo+in$ the benefits and protections of itslaws. The #a6ority opinion is purely advisory once it finds that the state statute is invalid.
http://www.lawnix.com/cases/hanson-denckla.htmlhttp://www.lawnix.com/cases/mullane-central-hanover-bank.htmlhttp://www.lawnix.com/cases/hanson-denckla.htmlhttp://www.lawnix.com/cases/mullane-central-hanover-bank.html


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IDONAH PERKINS vs. ROXAS ET AL.GRN 47517, June 27, 1941FA TS :July 5, 1938, respondent Eugene Perkins filed a complaint in the C !" #anila against the $enguetConsolidated #ining Company for the reco%ery of a sum consisting of di%idends &hich ha%e 'eendeclared and made paya'le on shares of stock registered in his name, payment of &hich &as 'eing&ithheld 'y the company, and for the recognition of his right to the control and disposal of said sharesto the e(clusion of all others) *he company alleged, 'y &ay of defense that the &ithholding ofplaintiff+s right to the disposal and control of the shares &as due to certain demands made &ithrespect to said shares 'y the petitioner !donah Perkins, and 'y one Engelhard)Eugene Perkins included in his modified complaint as parties defendants petitioner, !donah Perkins,and Engelhard) Eugene Perkins prayed that petitioner !donah Perkins and ) Engelhard 'e ad-udged&ithout interest in the shares of stock in .uestion and e(cluded from any claim they assert thereon)/ummons 'y pu'lication &ere ser%ed upon the nonresident defendants !donah Perkins and Engelhard)Engelhard filed his ans&er) Petitioner f iled her ans&er &ith a crosscomplaint in &hich she sets up a

-udgment allegedly o'tained 'y her against respondent Eugene Perkins, from the /C of the /tate of0e& ork, &herein it is declared that she is the sole legal o&ner and entitled to the possession andcontrol of the shares of stock in .uestion &ith all the cash di%idends declared thereon 'y the $enguetConsolidated #ining Company)

!donah Perkins filed a demurrer thereto on the ground that 2the court has no -urisdiction of thesu'-ect of the action, 'ecause the alleged -udgment of the /C of the /tate of 0e& ork is res

-udicata) Petitioner+s demurrer &as o%erruled, thus this petition)

ISS!E :4 0 in %ie& of the alleged -udgment entered in fa%or of the petitioner 'y the /C of 0e& ork and&hich is claimed 'y her to 'e res -udicata on all .uestions raised 'y the respondent, Eugene Perkins,the local court has -urisdiction o%er the su'-ect matter of the action)R!LING :$y -urisdiction o%er the su'-ect matter is meant the nature of the cause of action and of the reliefsought, and this is conferred 'y the so%ereign authority &hich organi6es the court, and is to 'e soughtfor in general nature of its po&ers, or in authority specially conferred) !n the present case, theamended complaint filed 'y the respondent, Eugene Perkins alleged calls for the ad-udication of title tocertain shares of stock of the $enguet Consolidated #ining Company and the granting of affirmati%ereliefs, &hich fall &ithin the general -urisdiction of the C !" #anila) /imilarly C !" #anila is empo&eredto ad-udicate the se%eral demands contained in petitioner+s crosscomplaint)!donah Perkins in her crosscomplaint 'rought suit against Eugene Perkins and the $enguetConsolidated #ining Company upon the alleged -udgment of the /C of the /tate of 0e& ork andasked the court 'elo& to render -udgment enforcing that 0e& ork -udgment, and to issue e(ecutionthereon) *his is a form of action recogni6ed 'y section 379 of the Code of Ci%il Procedure no& section

, ;ule 39, ;ules of Court< and &hich falls &ithin the general -urisdiction of the C !" #anila, toad-udicate, settle and determine)


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*he petitioner e(presses the fear that the respondent -udge may render -udgment 2annulling the final,su'sisting, %alid -udgment rendered and entered in this petitioner+s fa%or 'y the courts of the /tate of0e& ork, &hich decision is res -udicata on all the .uestions constituting the su'-ect matter of ci%ilcase and argues on the assumption that the respondent -udge is &ithout -urisdiction to takecogni6ance of the cause) 4hether or not the respondent -udge in the course of the proceedings &ill

gi%e %alidity and efficacy to the 0e& ork -udgment set up 'y the petitioner in her cross"complaint is a.uestion that goes to the merits of the contro%ersy and relates to the rights of the parties as 'et&eeneach other, and not to the -urisdiction or po&er of the court) *he test of -urisdiction is &hether or notthe tri'unal has po&er to enter upon the in.uiry, not &hether its conclusion in the course of it is rightor &rong) !f its decision is erroneous, its -udgment can 'e re%ersed on appeal= 'ut its determination ofthe .uestion, &hich the petitioner here anticipates and seeks to pre%ent, is the e(ercise 'y that courtand the rightful e(ercise of its -urisdiction)

Petition denied)

Alabama Great Southern R.R. v. CarrollSupreme Court of Alabama

97 Ala. 126 , 11 So. 803 (1892

!CC"#""A$, %.

&he pla'nt'ff, . ). Carroll, '*, an+ a* at the t'me of enter'n- 'nto the *erv' e of the+efen+ant, the Alabama Great Southern Ra'lroa+ Compan/, an+ at the t'me of be'n-'n ure+ 'n that *erv' e, a 't' en of Alabama. &he +efen+ant '* an Alabama

orporat'on, operat'n- a ra'lroa+ e ten+'n- from Chattanoo-a, 'n the *tate of&enne**ee, throu-h Alabama to !er'+'an, 'n the *tate of !'**'**'pp'. At the t'me ofthe a*ualt/ ompla'ne+ of pla'nt'ff a* 'n the *erv' e of the +efen+ant 'n the apa 't/of bra eman on fre'-ht tra'n* runn'n- from 4'rm'n-ham, Ala., to !er'+'an, !'**.,un+er a ontra t h' h a* ma+e 'n the *tate of Alabama. &he 'n ur/ a* au*e+ b/the brea 'n- of a l'n bet een t o ar* 'n a fre'-ht tra'n h' h a* pro ee+'n- from4'rm'n-ham to !er'+'an. &he po'nt at h' h the l'n bro e an+ the 'n ur/ a**uffere+ a* 'n the *tate of !'**'**'pp'. &he ev'+en e ten+e+ to *ho that the l'n

h' h bro e a* a +efe t've l'n , an+ that 't a* 'n a +efe t've on+'t'on hen thetra'n left 4'rm'n-ham. 555

&he ev'+en e ent al*o to *ho that the +efe t 'n th'* l'n on*'*te+ 'n or re*ulte+from 't* hav'n- been bent h'le ol+ that th'* ten+e+ to ea en the 'ron, an+ 'n th'*'n*tan e ha+ ra e+ the l'n *ome hat on the outer urve of the ben+, an+ that thel'n bro e at the po'nt of th'* ra . t a* *ho n to be the +ut/ of erta'n emplo/ee*of +efen+ant *tat'one+ alon- 't* l'ne to 'n*pe t the l'n * atta he+ to ar* to be put 'ntra'n*, or form'n- the oupl'n-* bet een ar* 'n tra'n* at Chattanoo-a, 4'rm'n-ham,an+ *ome po'nt* bet een 4'rm'n-ham an+ the pla e here th'* l'n bro e, an+ al*othat 't a* the +ut/ of the on+u tor of fre'-ht tra'n*, an+ the other tra'n men, toma'nta'n *u h 'n*pe t'on a* o a*'on affor+e+ throu-hout the run* or tr'p* of *u h


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tra'n* an+ the ev'+en e affor+* -roun+ for 'nferen e that there a* a ne-l'-entom'**'on on the part of *u h emplo/ee* to perform th'* +ut/, or, 'f performe+, thefa'lure to +'* over the +efe t 'n, an+ to remove, th'* l'n a* the re*ult of ne-l'-en e.

&he fore-o'n- *tatement of fa t*, e'ther prove+ or f'n+'n- lo+-ment 'n the ten+en 'e*of the ev'+en e, to-ether 'th the ev'+en e of the la of !'**'**'pp' a* to the ma*ter *l'ab'l't/ for 'n ur'e* *u*ta'ne+ b/ an emplo/ee 'n h'* *erv' e, 'll *uff' e for the

on*'+erat'on an+ +eterm'nat'on of the ue*t'on h' h '* of h'ef 'mportan e 'n th'*a*e, namel/, hether the +efen+ant '* l'able at all, on the fa t* pre*ente+ b/ th'*

re or+, for an 'n ur/ *u*ta'ne+ b/ the pla'nt'ff 'n the *tate of !'**'**'pp'.

555&he onl/ ne-l'-en e 555 h' h f'n+* *upport 555 'n an/ ten+en / of the ev'+en e,'* that of per*on* ho*e +ut/ 't a* to 'n*pe t the l'n * of the tra'n, an+ remove *u ha* ere +efe t've, an+ repla e them 'th other* h' h ere not +efe t've. &h'* a*the ne-l'-en e, not of the ma*ter, the +efen+ant, but of fello *ervant* of the pla'nt'ff,for h' h at ommon la the +efen+ant '* not l'able. 555

t '*, ho ever, further onten+e+ that the pla'nt'ff, 'f h'* ev'+en e be bel'eve+, ha*ma+e out a a*e for the re over/ *ou-ht un+er the emplo/er* l'ab'l't/ a t of Alabama,'t be'n- learl/ *ho n that there '* no *u h or *'m'lar la of for e 'n the *tate of!'**'**'pp'. Con*'+er'n- th'* po*'t'on 'n the ab*tra t,:that '*, +'**o 'ate+ from thefa t* of th'* part' ular a*e, h' h are *uppo*e+ to e ert an 'mportant 'nfluen e upon't,:there annot be t o op'n'on* a* to 't* be'n- un*oun+ an+ untenable. So loo e+ at,

e +o not un+er*tan+ appellee * oun*el even to +en/ e'ther the propo*'t'on or 't*appl' at'on to th'* a*e,:that there an be no re over/ 'n one *tate for 'n ur'e* to the

per*on *u*ta'ne+ 'n another, unle** the 'nfl' t'on of the 'n ur'e* '* a t'onable un+er thela of the *tate 'n h' h the/ ere re e've+. Certa'nl/ th'* '* the ell:e*tabl'*he+ ruleof la , *ub e t, 'n *ome ur'*+' t'on*, to the ual'f' at'on that the 'nfl' t'on of the'n ur'e* oul+ al*o *upport an a t'on 'n the *tate here the *u't '* brou-ht ha+ the/

been re e've+ 'th'n that *tate.555

4ut 't '* la'me+ that the fa t* of th'* a*e ta e 't out of the -eneral rule h' h theauthor't'e* 'te+ above abun+antl/ *upport, an+ author' e the ourt* of Alabama to*ub e t the +efen+ant to the pa/ment of +ama-e* un+er *e t'on 2;90 of the Co+e,althou-h the 'n ur'e* ounte+ on ere *u*ta'ne+ 'n !'**'**'pp' un+er 'r um*tan e*

h' h 'nvolve+ no l'ab'l't/ on the +efen+ant b/ the la * of that *tate. &h'* 'n*'*ten e'*, 'n the f'r*t 'n*tan e, ba*e+ on that a*pe t of the ev'+en e h' h -oe* to *ho thatthe ne-l'-en e h' h pro+u e+ the a*ualt/ tran*p're+ 'n Alabama, an+ the theor/that, herever the on*e uen e* of that ne-l'-en e man'fe*te+ 't*elf, a re over/ an


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be ha+ 'n Alabama. e are referre+ to no author't/ 'n *upport of th'* propo*'t'on, an+e hau*t've 'nve*t'-at'on on our part ha* fa'le+ to +'* lo*e an/.

555 t '* a+m'tte+, or at lea*t annot be +en'e+, that ne-l'-en e of +ut/ unpro+u t've of+amn'f/'n- re*ult* 'll not author' e or *upport a re over/.


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a* ma+e here, h' h '* not ontroverte+ an+, 'f the pla'nt'ff ha* a au*e of a t'on atall, he, b/ rea*on of them, ma/ pro*e ute 't 'n our ourt*. &he/ have no bear'n- on the

pr'mar/ ue*t'on of the e '*ten e of a au*e of a t'on, an+, a* that '* the ue*t'on before u*, e nee+ not further a+vert to the fa t of pla'nt'ff * 't' en*h'p or +efen+ant *+om' 'le.5555

&he ontra t a* that pla'nt'ff *houl+ *erve the +efen+ant 'n the apa 't/ of a bra eman on 't* fre'-ht tra'n* bet een 4'rm'n-ham, Ala., an+ !er'+'an, !'**., an+*houl+ re e've a* ompen*at'on a *t'pulate+ *um for ea h tr'p from 4'rm'n-ham to!er'+'an an+ return. &he theor/ '* that the emplo/er* l'ab'l't/ a t be ame a part ofth'* ontra t 555 f th'* ar-ument '* *oun+, an+ 't '* *oun+ 'f the +ut'e* an+ l'ab'l't'e*

pre* r'be+ b/ the a t an be *a'+ to be ontra tual +ut'e* an+ obl'-at'on* at all, 'toul+ lea+ to on lu*'on*, the po**'b'l't/ of h' h ha* not h'therto been *u--e*te+ b/

an/ ourt or la r'ter, an+ h' h, to *a/ the lea*t, oul+ be a*toun+'n- to the profe**'on.555

t '* the purpo*e of the *tatute, an+ mu*t be the l'm't of 't* operat'on, to -overn per*on* *tan+'n- 'n the relat'on of ma*ter an+ *ervant* to ea h other, 'n re*pe t of the'r

on+u t 'n erta'n part' ular* 'th'n the *tate of Alabama. !'**'**'pp' ha* the *amer'-ht to e*tabl'*h -overnmental rule* for *u h per*on* 'th'n her bor+er* a* Alabama,an+ *he ha* e*tabl'*he+ rule* h' h are +'fferent from tho*e of our la an+ the

on+u t of *u h per*on* to ar+* ea h other '*, hen 't* le-al't/ '* brou-ht 'n ue*t'on,to be a+ u+-e+ b/ the rule* of the one or the other *tate, a* 't fall* terr'tor'all/ 'th'nthe one or the other. 555

=or the error 'n refu*'n- to 'n*tru t the ur/ to f'n+ for the +efen+ant, 'f the/ bel'eve+the ev'+en e, the u+-ment '* rever*e+, an+ the au*e 'll be reman+e+.

2D2*/; T 2* :A. )E 2 T 2*

"IEN#ENIDO $. ADALIN, ROLANDO $. A$!L, DONATO ". E#ANGELISTA, %n& '(e )es' *+1,7 7 NA$ED- O$PLAINANTS, '()u %n& / '(e0) A''*)ne/-0n-+% ', A''/. GERARDO A. DEL$!NDOvs. PHILIPPINE O#ERSEAS E$PLO $ENT AD$INISTRATION3S AD$INISTRATOR,NLR , "RO N ROOT INTERNATIONAL, IN . AND6OR ASIA INTERNATIONAL "!ILDERS

ORPORATIONGRN 1 477 , De e8 e) 5,1994.FA TS :*his is a consolidation of 3 cases of /PEC!>? C!@!? >C*! 0/ in the /upreme Court for Certiorari)


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n June A, 198 , Cadalin, >mul and E%angelista, in their o&n 'ehalf and on 'ehalf of B8 other C4sinstituted a class suit 'y filing an 2>mended Complaint &ith the P E> for money claims arising fromtheir recruitment 'y >/!> !0*E;0>*! 0>? $ !?DE;/ C ;P ;>*! 0 >!$C< and employment 'y$; 40 ; * !0*E;0>*! 0>?, !0C $;!< &hich is a foreign corporation &ith head.uarters in

ouston, *e(as, and is engaged in construction= &hile >!$C is a domestic corporation licensed as a

ser%ice contractor to recruit, mo'ili6e and deploy ilipino &orkers for o%erseas employment on 'ehalfof its foreign principals)

*he amended complaint sought the payment of the une(pired portion of the employment contracts,&hich &as terminated prematurely, and secondarily, the payment of the interest of the earnings of the*ra%el and ;eser%ed und= interest on all the unpaid 'enefits= area &age and salary differential pay=fringe 'enefits= reim'ursement of /// and premium not remitted to the ///= refund of &ithholdingta( not remitted to the $!;= penalties for committing prohi'ited practices= as &ell as the suspension ofthe license of >!$C and the accreditation of $;!!

n cto'er B, 198 , the P E> >dministrator denied the 2#otion to /trike ut of the ;ecords filed 'y>!$C 'ut re.uired the claimants to correct the deficiencies in the complaint pointed out)

>!$ and $;!! kept on filing #otion for E(tension of *ime to file their ans&er) *he P E> kept ongranting such motions)

n 0o%em'er 1 , 198 , claimants filed an opposition to the motions for e(tension of time and askedthat >!$C and $;!! declared in default for failure to file their ans&ers)

n Decem'er B , 198 , the P E> >dministrator issued an order directing >!$C and $;!! to file theirans&ers &ithin ten days from receipt of the order)

at madami pang motions ang na"file, ne& complainants -oined the case, ang daming ina%ail naremedies ng 'oth parties!$C finally su'mitted its ans&er to the complaint) >t the same hearing, theparties &ere gi%en a period of 15 days from said date &ithin &hich to su'mit their respecti%e positionpapers) n e'ruary B , 1988, >!$C and $;!! su'mitted position paper) n cto'er B , 1988, >!$Cand $;!! filed a 2Consolidated ;eply, P E> >dminitartor rendered his decision &hich a&arded theamount of F8B , A5B) in fa%or of only 3B complainants) Claimants su'mitted their 2>ppeal#emorandum or Partial >ppeal from the decision of the P E>) >!$C also filed its #; andGor appealin addition to the 20otice of >ppeal filed earlier)0?;C promulgated its ;esolution, modifying the decision of the P E>) *he resolution remo%ed some ofthe 'enefits a&arded in fa%or of the claimants) 0?;C denied all the #;s) ence, these petitions filed'y the claimants and 'y >l$C and $;!!)

*he case rooted from the ?a'or ?a& enacted 'y $ahrain &here most of the complainants &eredeployed) is #a-esty !se $in /elman >l Haifa, >mir of $ahrain, issued his >miri Decree 0o) B3 onJune 1A, 11 A, other&ise kno&n re the ?a'our ?a& for the Pri%ate /ector) /ome of the pro%ision of>miri Decree 0o) B3 that are rele%ant to the claims of the complainants"appellants are as follo&s:

2>rt) 9: ( ( ( > &orker shall recei%e payment for each e(tra hour e.ui%alent to his &age entitlementincreased 'y a minimum of t&enty"ri%e per centurn thereof for hours &orked during the day= and 'y aminimum off fifty per centurn thereof for hours &orked during the night &hich shall 'e deemed to'eing from se%en o+clock in the e%ening until se%en o+clock in the morning )


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>rt) 87: riday shall 'e deemed to 'e a &eekly day of rest on full pay)!f employee &orked, 157I of his normal &age shall 'e paid to him ( ( () >rt) 81= ( ( ( 4hen conditions of &ork re.uire the &orker to &ork on any official holiday, he shall 'epaid an additional sum e.ui%alent to 157I of his normal &age)

>rt) 8 : E%ery &orker &ho has completed one year+s continuous ser%ice &ith his employer shall 'eentitled to ?aos on full pay for a period of not less than B1 days for each year increased to a periodnot less than B8 days after fi%e continuous years of ser%ice)

> &orker shall 'e entitled to such lea%e upon a .uantum meruit in respect of the proportion of hisser%ice in that year)

>rt) 17 : > contract of employment made for a period of indefinite duration may 'e terminated 'yeither party thereto after gi%ing the other party prior notice 'efore such termination, in &riting, inrespect of monthly paid &orkers and fifteen days+ notice in respect of other &orkers) *he partyterminating a contract &ithout the re.uired notice shall pay to the other party compensatione.ui%alent to the amount of &ages paya'le to the &orker for the period of such notice or the

une(pired portion thereof)

>rt) !ll: ( ( ( the employer concerned shall pay to such &orker, upon termination of employment, alea%ing indemnity for the period of his employment calculated on the 'asis of fifteen days+ &ages foreach year of the first three years of ser%ice and of one month+s &ages for each year of ser%icethereafter) /uch &orker shall 'e entitled to payment of lea%ing indemnity upon a .uantum meruit inproportion to the period of his ser%ice completed &ithin a year)

ISS!E :1) 4 0 the foreign la& should go%ern or the contract of the parties) 4 0 the complainants &ho ha%e&orked in $ahrain are entitled to the a'o%e"mentioned 'enefits pro%ided 'y >miri Decree 0o) B3 of$ahrainssuming it is applica'le 4 0 complainants+ claimfor the 'enefits pro%ided therein ha%e prescri'ed)miri Decree 0o) B3 of 19 A as regards theclaims in .uestion &ould contra%ene the pu'lic policy on the protection to la'or)

!n the Declaration of Principles and /tate Policies, the 198 Constitution emphasi6ed that:2*he stateshall promote social -ustice in all phases of national de%elopment /ec) 17rticle 11 of the Ci%il Code of the Philippines pro%ides: 2*he follo&ing actions must 'e 'rought &ithin ten years from the time the right of action accross:


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3. / declare ... that / have but E;


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Maria ?elen hristensen, throu$h counsel, filed various #otions for reconsideration, but these weredenied. ?ence, this appeal.

The #ost i#portant assi$n#ents of error are as follows5

/

T? *E7 @ E @T @@ D /; / ;E@/; T? D /A/E; E T? ?E;E@2!* A )@ ME @T T?2T ? * ; /A T? 2 I;E7* D D ;2T @2* ?/*D E D72@D .?@/AT ;A ; 2;D, E;A F ;T*G, /; D )@/:/; ? @ E ? @ & AT A?2@ /; T?

/;? @/T2; .

//

T? *E7 @ E @T @@ D /; ;T/@ *G / ;E@/; 2;DNE@ 2/*/; TE @ E ;/O T?/AT ; E A : @2* 2 TE@A, * M ;TA 2;D /@ MAT2; A 2**/; E@ T?

2))*/ 2T/E; E /;T @;2* *27.

///

T? *E7 @ E @T @@ D /; 2/*/; TE @ E ;/O T?2T ;D @ /;T @;2T/E;2**27, )2@T/ *2@*G ;D @ T? @ ;:E/ DE T@/; , T? /;T@/;A/ :2*/D/TG E T?T AT2M ;T2@G D/A)EA/T/E; E T? D/AT@/! T/E; E T? AT2T E T? D 2A D

D72@D . ?@/AT ;A ; A?E *D ! E: @; D !G T? *27A E T? )?/*/))/; A.

/:

T? *E7 @ E @T @@ D /; ;ET D *2@/; T?2T T? A ? D * E D/AT@/! T/E;A !M/TT D !G T? TE@ /A E;T@2@G TE T? )?/*/))/; *27A.

:

T? *E7 @ E @T @@ D /; ;ET D *2@/; T?2T ;D @ T? )?/*/))/; *27A? * ; ?@/AT ;A ; 2@ /2 /A ;T/T* D TE E; -?2* en of the nited Atates and of the Atateof alifornia at the ti#e of his death. !ut there is also no %uestion that at the ti#e of his death hewas do#iciled in the )hilippines, as witness the followin$ facts ad#itted by the e(ecutor hi#self inappellee s brief5

/n the proceedin$s for ad#ission of the will to probate, the facts of record show that the

deceased dward . hristensen was born on ;ove#ber 9, 18 in ;ew Gor+ ity, ;.G.,.A.2.4 his first arrival in the )hilippines, as an appointed school teacher, was on &uly 1,

1901, on board the .A. 2r#y Transport "Aheridan" with )ort of #bar+ation as the ity ofAan rancisco, in the Atate of alifornia, .A.2. ?e stayed in the )hilippines until 190 .

/n Dece#ber, 190 , Mr. hristensen returned to the nited Atates and stayed there for thefollowin$ nine years until 1913, durin$ which ti#e he resided in, and was teachin$ school inAacra#ento, alifornia.


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Mr. hristensen s ne(t arrival in the )hilippines was in &uly of the year 1913. ?owever, in19 8, he a$ain departed the )hilippines for the nited Atates and ca#e bac+ here thefollowin$ year, 19 9. Ao#e nine years later, in 1938, he a$ain returned to his own country,and ca#e bac+ to the )hilippines the followin$ year, 1939.

7herefore, the parties respectfully pray that the fore$oin$ stipulation of facts be ad#itted

and approved by this ?onorable ourt, without pre6udice to the parties adducin$ otherevidence to prove their case not covered by this stipulation of facts. '()ph*'. +t

!ein$ an 2#erican citi>en, Mr. hristensen was interned by the &apanese Military orces inthe )hilippines durin$ 7orld 7ar //. pon liberation, in 2pril 19 , he left for the nitedAtates but returned to the )hilippines in Dece#ber, 19 . 2ppellees ollective (hibits "'",

/ Davao, Ap. )roc. ' , as (hibits "22", "!!" and " -Daney"4 (hs. "MM", "MM-l","MM- -Daney" and p. 3, t.s.n., &uly 1, 19 3.=

/n 2pril, 19 1, dward . hristensen returned once #ore to alifornia shortly after the#a+in$ of his last will and testa#ent en of alifornia by the fact that when he e(ecuted his will in 19 1he declared that he was a citi>en of that Atate4 so that he appears never to have intended toabandon his alifornia citi>enship by ac%uirin$ another. This conclusion is in accordance with thefollowin$ principle e(pounded by oodrich in his onflict of *aws.

The ter#s " residence" and "do#icile" #i$ht well be ta+en to #ean the sa#e thin$, a place ofper#anent abode. !ut do#icile, as has been shown, has ac%uired a technical #eanin$.Thus one #ay be do#iciled in a place where he has never been. 2nd he #ay reside in aplace where he has no do#icile. The #an with two ho#es, between which he divides histi#e, certainly resides in each one, while livin$ in it. !ut if he went on business which wouldre%uire his presence for several wee+s or #onths, he #i$ht properly be said to havesufficient connection with the place to be called a resident. /t is clear, however, that, if hetreated his settle#ent as continuin$ only for the particular business in hand, not $ivin$ up hisfor#er "ho#e," he could not be a do#iciled ;ew Gor+er. 2c%uisition of a do#icile of choicere%uires the e(ercise of intention as well as physical presence. "@esidence si#ply re%uiresbodily presence of an inhabitant in a $iven place, while do#icile re%uires bodily presence inthat place and also an intention to #a+e it one s do#icile." @esidence, however, is a ter#used with #any shades of #eanin$, fro# the #erest te#porary presence to the #ost


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per#anent abode, and it is not safe to insist that any one use et the only proper one.< oodrich, p. 9=

The law that $overns the validity of his testa#entary dispositions is defined in 2rticle 1' of the ivilode of the )hilippines, which is as follows5

2@T. 1'. @eal property as well as personal property is sub6ect to the law of the countrywhere it is situated.

?owever, intestate and testa#entary successions, both with respect to the order ofsuccession and to the a#ount of successional ri$hts and to the intrinsic validity oftesta#entary provisions, shall be re$ulated by the national law of the person whosesuccession is under consideration, whatever #ay be the nature of the property andre$ardless of the country where said property #ay be found.

The application of this article in the case at bar re%uires the deter#ination of the #eanin$ of theter# national la) is used therein.

There is no sin$le 2#erican law $overnin$ the validity of testa#entary provisions in the nitedAtates, each state of the nion havin$ its own private law applicable to its citi>ens only and in forceonly within the state. The "national law" indicated in 2rticle 1' of the ivil ode above %uoted cannot, therefore, possibly #ean or apply to any $eneral 2#erican law. Ao it can refer to no other thanthe private law of the Atate of alifornia.

The ne(t %uestion is5 7hat is the law in alifornia $overnin$ the disposition of personal propertyLThe decision of the court below, sustains the contention of the e(ecutor-appellee that under the

alifornia )robate ode, a testator #ay dispose of his property by will in the for# and #anner hedesires, citin$ the case of state of McDaniel, al. 2ppl. d 8 , 1 ' ). d 9 . !ut appellantinvo+es the provisions of 2rticle 9 ' of the ivil ode of alifornia, which is as follows5

/f there is no law to the contrary, in the place where personal property is situated, it isdee#ed to follow the person of its owner, and is $overned by the law of his do#icile.

The e(istence of this provision is alle$ed in appellant s opposition and is not denied. 7e havechec+ed it in the alifornia ivil ode and it is there. 2ppellee, on the other hand, relies on the casecited in the decision and testified to by a witness. en of the Atate of

alifornia, the internal law thereof, which is that $iven in the abovecited case, should $overn thedeter#ination of the validity of the testa#entary provisions of hristensen s will, such law bein$ inforce in the Atate of alifornia of which hristensen was a citi>en. 2ppellant, on the other hand,insists that 2rticle 9 ' should be applicable, and in accordance therewith and followin$ the doctrineof the renvoi , the %uestion of the validity of the testa#entary provision in %uestion should be referredbac+ to the law of the decedent s do#icile, which is the )hilippines.

The theory of doctrine of renvoi has been defined by various authors, thus5

The proble# has been stated in this way5 "7hen the onflict of *aws rule of the foru# refersa 6ural #atter to a forei$n law for decision, is the reference to the purely internal rules of lawof the forei$n syste#4 i.e., to the totality of the forei$n law #inus its onflict of *aws rulesL"


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En lo$ic, the solution is not an easy one. The Michi$an court chose to accept the renvoi, thatis, applied the onflict of *aws rule of /llinois which referred the #atter bac+ to Michi$an law.!ut once havin$ deter#ined the the onflict of *aws principle is the rule loo+ed to, it isdifficult to see why the reference bac+ should not have been to Michi$an onflict of *aws.This would have resulted in the "endless chain of references" which has so often beencritici>ed be le$al writers. The opponents of the renvoi would have loo+ed #erely to the

internal law of /llinois, thus re6ectin$ the renvoi or the reference bac+. Get there see#s noco#pellin$ lo$ical reason why the ori$inal reference should be the internal law rather than tothe onflict of *aws rule. /t is true that such a solution avoids $oin$ on a #erry-$o-round, butthose who have accepted the renvoi theory avoid this ine#trica&ilis circulas by $ettin$ off atthe second reference and at that point applyin$ internal law. )erhaps the opponents ofthe renvoi are a bit #ore consistent for they loo+ always to internal law as the rule ofreference.

Atran$ely enou$h, both the advocates for and the ob6ectors to the renvoi plead that $reaterunifor#ity will result fro# adoption of their respective views. 2nd still #ore stran$e is the factthat the only way to achieve unifor#ity in this choice-of-law proble# is if in the dispute thetwo states whose laws for# the le$al basis of the liti$ation disa$ree as to whetherthe renvoi should be accepted. /f both re6ect, or both accept the doctrine, the result of theliti$ation will vary with the choice of the foru#. /n the case stated above, had the Michi$ancourt re6ected the renvoi , 6ud$#ent would have been a$ainst the wo#an4 if the suit had beenbrou$ht in the /llinois courts, and they too re6ected the renvoi , 6ud$#ent would be for thewo#an. The sa#e result would happen, thou$h the courts would switch with respect towhich would hold liability, if both courts accepted the renvoi .

The @estate#ent accepts the renvoi theory in two instances5 where the title to land is in%uestion, and where the validity of a decree of divorce is challen$ed. /n these cases the

onflict of *aws rule of the situs of the land, or the do#icile of the parties in the divorce case,is applied by the foru#, but any further reference $oes only to the internal law. Thus, aperson s title to land, reco$ni>ed by the situs, will be reco$ni>ed by every court4 and everydivorce, valid by the do#icile of the parties, will be valid everywhere. < oodrich, onflict of

*aws, Aec. , pp. 13-1 .=

, a citi>en of Massachusetts, dies intestate, do#iciled in rance, leavin$ #ovable propertyin Massachusetts, n$land, and rance. The %uestion arises as to how this property is to bedistributed a#on$ s ne(t of +in.

2ssu#e


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This is one type of renvoi . 2 6ural #atter is presented which the conflict-of-laws rule of theforu# refers to a forei$n law, the conflict-of-laws rule of which, in turn, refers the #atter bac+a$ain to the law of the foru#. This is renvoi in the narrower sense. The er#an ter# for this

6udicial process is @uc+verweisun$. "


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/f, for e(a#ple, the n$lish law directs its 6ud$e to distribute the personal estate of ann$lish#an who has died do#iciled in !el$iu# in accordance with the law of his do#icile,

he #ust first in%uire whether the law of !el$iu# would distribute personal property upondeath in accordance with the law of do#icile, and if he finds that the !el$ian law would #a+ethe distribution in accordance with the law of nationality J that is the n$lish law J he #ustaccept this reference bac+ to his own law.

7e note that 2rticle 9 ' of the alifornia ivil ode is its conflict of laws rule, while the rule appliedin /n re Iauf#an, Supra , its internal law. /f the law on succession and the conflict of laws rules of

alifornia are to be enforced 6ointly, each in its own intended and appropriate sphere, the principlecited /n re Iauf#an should apply to citi>ens livin$ in the Atate, but 2rticle 9 ' should apply to suchof its citi>ens as are not do#iciled in alifornia but in other 6urisdictions. The rule laid down ofresortin$ to the law of the do#icile in the deter#ination of #atters with forei$n ele#ent involved is inaccord with the $eneral principle of 2#erican law that the do#iciliary law should $overn in #ost#atters or ri$hts which follow the person of the owner.

7hen a #an dies leavin$ personal property in one or #ore states, and leaves a will directin$the #anner of distribution of the property, the law of the state where he was do#iciled at the

ti#e of his death will be loo+ed to in decidin$ le$al %uestions about the will, al#ost asco#pletely as the law of situs is consulted in %uestions about the devise of land. /t is lo$icalthat, since the do#iciliary rules control devolution of the personal estate in case of intestatesuccession, the sa#e rules should deter#ine the validity of an atte#pted testa#entarydispostion of the property. ?ere, also, it is not that the do#iciliary has effect beyond theborders of the do#iciliary state. The rules of the do#icile are reco$ni>ed as controllin$ bythe onflict of *aws rules at the situs property, and the reason for the reco$nition as in thecase of intestate succession, is the $eneral convenience of the doctrine. The ;ew Gor+ courthas said on the point5 The $eneral principle that a dispostiton of a personal property, valid atthe do#icile of the owner, is valid anywhere, is one of the universal application. /t had itsori$in in that international co#ity which was one of the first fruits of civili>ation, and it thisa$e, when business intercourse and the process of accu#ulatin$ property ta+e but littlenotice of boundary lines, the practical wisdo# and 6ustice of the rule is #ore apparent than

ever. < oodrich, onflict of *aws, Aec. 1' , pp. - 3.=

2ppellees ar$ue that what 2rticle 1' of the ivil ode of the )hilippines pointed out as the nationalla) is the internal law of alifornia. !ut as above e(plained the laws of alifornia have prescribedtwo sets of laws for its citi>ens, one for residents therein and another for those do#iciled in other

6urisdictions. @eason de#ands that 7e should enforce the alifornia internal law prescribed for itsciti>ens residin$ therein, and enforce the conflict of laws rules for the citi>ens do#iciled abroad. /f we#ust enforce the law of alifornia as in co#ity we are bound to $o, as so declared in 2rticle 1' ofour ivil ode, then we #ust enforce the law of alifornia in accordance with the e(press #andatethereof and as above e(plained, i.e., apply the internal law for residents therein, and its conflict-of-laws rule for those do#iciled abroad.

/t is ar$ued on appellees behalf that the clause "if there is no law to the contrary in the place wherethe property is situated" in Aec. 9 ' of the alifornia ivil ode refers to 2rticle 1' of the ivil odeof the )hilippines and that the law to the contrary in the )hilippines is the provision in said 2rticle 1'that the national la) of the deceased should $overn. This contention can not be sustained. 2se(plained in the various authorities cited above the national law #entioned in 2rticle 1' of our ivil

ode is the law on conflict of laws in the alifornia ivil ode, i.e., 2rticle 9 ', which authori>es thereference or return of the %uestion to the law of the testator s do#icile. The conflict of laws rule in

alifornia, 2rticle 9 ', ivil ode, precisely refers bac+ the case, when a decedent is not do#iciledin alifornia, to the law of his do#icile, the )hilippines in the case at bar. The court of the do#icile


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can not and should not refer the case bac+ to alifornia4 such action would leave the issue incapableof deter#ination because the case will then be li+e a football, tossed bac+ and forth between the twostates, between the country of which the decedent was a citi>en and the country of his do#icile. The)hilippine court #ust apply its own law as directed in the conflict of laws rule of the state of thedecedent, if the %uestion has to be decided, especially as the application of the internal law of

alifornia provides no le$iti#e for children while the )hilippine law, 2rts. 88 < = and 89 , ivil ode

of the )hilippines, #a+es natural children le$ally ac+nowled$ed forced heirs of the parentreco$ni>in$ the#.

The )hilippine cases enof a state in the nited Atates but with do#icile in the )hilippines, and it does not appear in eachcase that there e(ists in the state of which the sub6ect is a citi>en, a law si#ilar to or identical with

2rt. 9 ' of the alifornia ivil ode.

7e therefore find that as the do#icile of the deceased hristensen, a citi>en of alifornia, is the

)hilippines, the validity of the provisions of his will deprivin$ his ac+nowled$ed natural child, theappellant, should be $overned by the )hilippine *aw, the do#icile, pursuant to 2rt. 9 ' of the ivilode of alifornia, not by the internal law of alifornia..

7? @ E@ , the decision appealed fro# is hereby reversed and the case returned to the lowercourt with instructions that the partition be #ade as the )hilippine law on succession provides.&ud$#ent reversed, with costs a$ainst appellees.

G.R. No&. L-2 860 a%" L-2 896 March 29, 19P ILIPPINE COMMERCIAL AN5 IN5>S!RIAL BAN@, A"#$%$&'ra'or o( 'h) !)&'a') E&'a') o(Char+)& N) 'o% o"*)& S . Proc. No. 16 2 o( 'h) Co r' o( F$r&' I%&'a%c) o( I+o$+o ,petitioner,vs.! E ONORABLE ENICIO ESCOLIN, Pr)&$"$%* : "*) o( 'h) Co r' o( F$r&' I%&'a%c) o( I+o$+o,Bra%ch II, a%" A ELINA A. MAGNO,respondents.G.R. No&. L-2 936 L-2 93 March 29, 19!ES!A!E ES!A!E OF ! E LA!E LINNIE :ANE O5GES S . Proc. No. 130 . !ES!A!E ES!A!EOF ! E LA!E C ARLES NE;!ON O5GES S . Proc. No. 16 2 . P ILIPPINE COMMERCIAL AN5IN5>S!RIAL BAN@, ad#inistrator-appellant,vs.

LORENSING, FLORENIA BARRI5O, P>RIFICACION CORONA5O, GRACIANO L>CERO, ARI!EO! OMAS :AMIR, MEL >IA5ES BA!ISANAN, PEPI!O I?>LORES, ESPERI5ION PAR!ISALA,;INIFRE5O ESPA5A, ROSARIO ALINGASA, A5ELFA PREMA?LON, SAN!IAGO PACAONSIS, a%"A ELINA A. MAGNO, 'h) +a&' a& A"#$%$&'ra'r$= $% S . Proc. No. 130 , a )++))&, ;ES!ERNINS!I!>!E OF !EC NOLOG?, INC., #ovant-appellee.San Juan, Africa, -on ales and San Agustin for /hilippine Commercial and 0ndustrial 1ank.


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!anglapus %a) 2ffice, Antonio %a) 2ffice and "i al ". 3uimpo for private respondents and appellees

Avelina A. !agno, etc., et al.

BARRE5O, J.: pCertiorari and prohibition with preli#inary in6unction4 certiorari to Pdeclare all acts of the respondent courtin the Testate state of *innie &ane ?od$es


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to lease, #ana$e and en6oy the sa#e durin$ his lifeti#e, above provided. ?e shall have the ri$ht tosubdivide any far# land and sell lots therein. and #ay sell uni#proved town lots.

E @T?5 2t the death of #y said husband, harles ;ewton ?od$es, / $ive, devise and be%ueath all ofthe rest, residue and re#ainder of #y estate, both real and personal, wherever situated or located, to bee%ually divided a#on$ #y brothers and sisters, share and share ali+e, na#ely5

sta ?i$don, ##a ?owell, *eonard ?i$don, @oy ?i$don, Aaddie @ascoe, ra @o#an and ;i#roy?i$don.

/ T?5 /n case of the death of any of #y brothers andNor sisters na#ed in ite# ourth, above, prior to thedeath of #y husband, harles ;ewton ?od$es, then it is #y will and be%uest that the heirs of suchdeceased brother or sister shall ta+e 6ointly the share which would have $one to such brother or sister hadshe or he survived.

A/ T?5 / no#inate and appoint #y said husband, harles ;ewton ?od$es, to be e(ecutor of this, #y lastwill and testa#ent, and direct that no bond or other security be re%uired of hi# as such e(ecutor.

A : ;T?5 /t is #y will and be%uest that no action be had in the probate court, in the ad#inistration of #yestate, other than that necessary to prove and record this will and to return an inventory andappraise#ent of #y estate and list of clai#s.


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3. J That durin$ the lifeti#e of *innie &ane ?od$es, herein petitioner was en$a$ed in the business ofbuyin$ and sellin$ personal and real properties, and do such acts which petitioner #ay thin+ best.

. J That deceased *innie &ane ?od$es died leavin$ no descendants or ascendants, e(cept brothersand sisters and herein petitioner as e(ecutor survivin$ spouse, to inherit the properties of the decedent.

. J That the present #otion is sub#itted in order not to paraly>e the business of petitioner and thedeceased, especially in the purchase and sale of properties. That proper accountin$ will be had also in allthese transactions.

7? @ E@ , it is #ost respectfully prayed that, petitioner . ;. ?od$es < harles ;ewton ?od$es= beallowed or authori>ed to continue the business in which he was en$a$ed and to perfor# acts which hehad been doin$ while deceased *innie &ane ?od$es was livin$.

ity of /loilo, May , 19 . ed, unless and until the (ecutor is na#ed andappointed by the ourt, the said petitioner is allowed or authori>ed to continue the business in which hewas en$a$ed and to perfor# acts which he had been doin$ while the deceased was livin$.AE E@D @ D.

ity of /loilo May , 19 .


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Third5 / desire, direct and provide that #y husband, harles ;ewton ?od$es, shall have the ri$ht to#ana$e, control, use and en6oy said estate durin$ his lifeti#e, and he is hereby $iven the ri$ht to #a+eany chan$es in the physical properties of said estate, &; sale or any part thereof which he #ay thin+ best,and the purchase of any other or additional property as he #ay thin+ best4 to e#ecute conve;ances withor without $eneral or special warranty, conveyin$ in fee si#ple or for any other ter# or ti#e, any propertywhich he #ay dee# proper to dispose of4 to lease any of the real property for oil, $as andNor other#inerals, and all such deeds or leases shall pass the absolute fee si#ple title to the interest so conveyedin such property as he #ay elect to sell. 2ll rents, e#olu#ents and inco#e fro# said estate shall &elongto him , and he is further authori>ed to use any part of the principal of said estate as he #ay need ordesire. R

. J That herein (ecutor, is not only part owner of the properties left as con6u$al, but also, thesuccessor to all the properties left by the deceased *innie &ane ?od$es. That durin$ the lifeti#e of herein

(ecutor, as *e$atee has the ri$ht to sell, convey, lease or dispose of the properties in the )hilippines.That inas#uch as .;. ?od$es was and is en$a$ed in the buy and sell of real and personal properties,

even before the death of *innie &ane ?od$es, a #otion to authori>e said .;. ?od$es was filed in ourt,to allow hi# to continue in the business of buy and sell, which #otion was favorably $ranted by the?onorable ourt.

3. J That since the death of *innie &ane ?od$es, Mr. .;. ?od$es had been buyin$ and sellin$ real andpersonal properties, in accordance with the wishes of the late *innie &ane ?od$es.

. J That the @e$ister of Deeds for /loilo, had re%uired of late the herein (ecutor to have all the sales,leases, conveyances or #ort$a$es #ade by hi#, approved by the ?on. ourt.

. J That it is respectfully re%uested, all the sales, conveyances leases and #ort$a$es e(ecuted by the(ecutor, be approved by the ?on. ourt. and subse%uent sales conveyances, leases and #ort$a$es in

co#pliances with the wishes of the late *innie &ane ?od$es, and within the scope of the ter#s of the lastwill and testa#ent, also be approved4

'. J That the (ecutor is under obli$ation to sub#it his yearly accounts, and the properties conveyedcan also be accounted for, especially the a#ounts received.

7? @ E@ , it is #ost respectfully prayed that, all the sales, conveyances, leases, and #ort$a$ese(ecuted by the (ecutor, be approved by the ?on. ourt, and also the subse%uent sales, conveyances,leases, and #ort$a$es in consonance with the wishes of the deceased contained in her last will andtesta#ent, be with authori>ation and approval of the ?on. ourt.

ity of /loilo, Dece#ber 11, 19' .


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2 " D 4 "

2s prayed for by 2ttorney ellada, counsel for the (ecutor for the reasons stated in his #otion datedDece#ber 11, 19 , which the ourt considers well ta+en all the sales, conveyances, leases and#ort$a$es of all properties left by the deceased *innie &ane ?od$es e(ecuted by the (ecutor harles ;.?od$es are hereby 2))@E: D. The said (ecutor is further authori>ed to e(ecute subse%uent sales,conveyances, leases and #ort$a$es of the properties left by the said deceased *innie &ane ?od$es inconsonance with the wishes conveyed in the last will and testa#ent of the latter.

Ao ordered.

/loilo ity. Dece#ber 1 , 19 .


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AE E@D @ D.

ity of /loilo 2pril 1, 19 9.


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*i+ewise the followin$5

/n the petition for probate that he


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1. That in accordance with the *ast 7ill and Testa#ent of *innie &ane ?od$es


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)hilippines, the #ost fit, co#petent, trustworthy and well-%ualified person to serve the duties of 2d#inistratri( and Apecial 2d#inistratri( and is willin$ to act as such.

9. That Miss 2velina Ma$no is also willin$ to file bond in such su# which the ?on. ourt believesreasonable.

7? @ E@ , in view of all the fore$oin$, it is #ost respectfully prayed that, Miss 2: */;2 2. M2 ;Ebe i##ediately appointed 2d#inistratri( of the estate of *innie &ane ?od$es and as Apecial

2d#inistratri( of the estate of harles ;ewton ?od$es, with powers and duties provided for by law. Thatthe ?onorable ourt fi( the reasonable bond of )1,000.00 to be filed by 2velina 2. Ma$no.


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situated or located, to be e%ually divided a#on$ #y brothers and sisters, share and share ali+e JQ. 2ccordin$ly, it beca#e incu#bent upon ?od$es, as e(ecutor of his wifeKs will, to duly li%uidate thecon6u$al partnership, half of which constituted her estate, in order that upon the eventuality of his death,Pthe rest, residue and re#ainderQ thereof could be deter#ined and correspondin$ly distributed or divideda#on$ her brothers and sisters. 2nd it was precisely because no such li%uidation was done, further#ore,there is the issue of whether the distribution of her estate should be $overned by the laws of the)hilippines or those of Te(as, of which Atate she was a national, and, what is #ore, as already stated,?od$es #ade official and sworn state#ents or #anifestations indicatin$ that as far as he was concernedno Pproperty interests passed to hi# as survivin$ spouse J Pe(cept for purposes of ad#inisterin$ theestate, payin$ debts, ta(es and other le$al char$esQ and it was the intention of the survivin$ husband ofthe deceased to distribute the re#ainin$ property and interests of the deceased in their o##unity

state to the devisees and le$atees na#ed in the will when the debts, liabilities, ta(es and e(penses ofad#inistration are finally deter#ined and paidQ, that the incidents and controversies now before s forresolution arose. 2s #ay be observed, the situation that ensued upon the death of ?od$es beca#e rather

unusual and so, %uite understandably, the lower courtKs actuations presently under review are apparentlywantin$ in consistency and see#in$ly lac+ proper orientation.

Thus, 7e cannot discern clearly fro# the record before s the precise perspective fro# which the trialcourt proceeded in issuin$ its %uestioned orders. 2nd, re$retably, none of the len$thy briefs sub#itted bythe parties is of valuable assistance in clearin$ up the #atter.

To be$in with, 7e $ather fro# the two records on appeal filed by petitioner, as appellant in the appealedcases, one with $reen cover and the other with a yellow cover, that at the outset, a sort of #odusoperandi had been a$reed upon by the parties under which the respective ad#inistrators of the two

estates were supposed to act con6ointly, but since no copy of the said a$ree#ent can be found in therecord before s, 7e have no way of +nowin$ when e(actly such a$ree#ent was entered into and underwhat specific ter#s. 2nd while reference is #ade to said modus operandi in the order of Aepte#ber 11,19' , on pa$es 0 - 0' of the reen @ecord on 2ppeal, readin$ thus5The present incident is to hear the side of ad#inistratri(, Miss 2velina 2. Ma$no, in answer to the char$escontained in the #otion filed by 2tty. esar Tirol on Aepte#ber 3, 19' . /n answer to the said char$es,Miss 2velina 2. Ma$no, throu$h her counsel, 2tty. @i>al Fui#po, filed a written #anifestation.

2fter readin$ the #anifestation here of 2tty. Fui#po, for and in behalf of the ad#inistratri(, Miss 2velina 2. Ma$no, the ourt finds that everythin$ that happened before Aepte#ber 3, 19' , which was resolved

on Aepte#ber 8, 19' , to the satisfaction of parties, was si#ply due to a #isunderstandin$ between therepresentative of the )hilippine o##ercial and /ndustrial !an+ and Miss Ma$no and in order to restorethe har#onious relations between the parties, the ourt ordered the parties to re#ain in status quo as totheir #odus operandi before Aepte#ber 1, 19' , until after the ourt can have a #eetin$ with all theparties and their counsels on Ectober 3, as for#erly a$reed upon between counsels, 2ttys. E>aeta,

ibbs and E>aeta, 2ttys. Tirol and Tirol and 2tty. @i>al Fui#po.


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/n the #eanti#e, the prayers of 2tty. Fui#po as stated in his #anifestation shall not be resolved by thisourt until Ectober 3, 19' .

AE E@D @ D.

there is nothin$ in the record indicatin$ whatever happened to it afterwards, e(cept that a$ain, referencethereto was #ade in the appealed order of Ectober , 19' , on pa$es

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