SENTENCE. --- Hermosillo, Sonora, 2nd of April, · molina, raÚl fernando lemas pompa, pedro...
Transcript of SENTENCE. --- Hermosillo, Sonora, 2nd of April, · molina, raÚl fernando lemas pompa, pedro...
SENTENCE. --- Hermosillo, Sonora, 2nd of April, Two thousand two.
Taking into consideration the stage of appeal of
Civil Case number 1/2992, and,
W H E R E A S:
I. The sentence of the Twenty-fifth of October
of Two thousand one, dictated by the Third District Judge of
the State of Sonora, located in that city, in Plenary
Mercantile Lawsuit number 1/96, brought by DAVID LESLIE
HERMISTON CHESTER against MINERA SUMMIT DE MÉXICO, S.A. DE
C.V. and FARALLÓN MINERA MEXICANA, S.A. DE C.V. and
FRANCISCO JAVIER MORENO MOLINA, RAÚL FERNANDO LEMAS POMPA,
PEDRO VILLAGRÁN GARCÍA, JESÚS PEDRO VILLAGRÁN OCHOA, KILBY
DANIEL BRUCE, FIDEL J. GONZÁLEZ LEWIS, THE PUBLIC REGISTRY
OF MINING and the PUBLIC REGISTRY OF PROPERTY AND COMMERCE
OF THE JUDICIAL DISTRICT OF HERMOSILLO, SONORA, concluded,
among other things, with the following analytical points:
"FIRST.- This Court has been competent to hear and resolve
the present controversy and the Plenary Mercantile Lawsuit
selected by the plaintiff has been the correct recourse.---
SECOND.- The plaintiff, DAVID LESLIE HERMISTON, did not
accredit the factual allegations of the main, subsidiary or
supervening actions exercised.--- THIRD.- MINERA SUMMIT
DE MÉXICO, S.A. DE C.V., FARALLÓN MINERA MEXICANA, S.A. DE
C.V., FRANCISCO JAVIER MORENO MOLINA, RAÚL FERNANDO LEMAS
POMPA, PEDRO VILLAGRÁN GARCÍA, JESÚS PEDRO VILLAGRÁN OCHOA,
KILBY DANIEL BRUCE, FIDEL J. GONZÁLEZ LEWIS, THE PUBLIC
REGISTRY OF MINING and the PUBLIC REGISTRY OF PROPERTY AND
COMMERCE OF THE JUDICIAL DISTRICT OF HERMOSILLO, SONORA,
ARE HEREBY ABSOLVED, from payment of the benefits claimed
by DAVID LESLIE HERMISTON, for the reasons stated in the
legal bases set forth under numbers NINTH, TENTH, ELEVENTH
and TWELFTH of this sentence.--- FOURTH.- DAVID LESLIE
HERMISTON is hereby sentenced to pay, in favor of the
respondents, MINERA SUMMIT DE MÉXICO, S.A. DE C.V., FARALLÓN
MINERA MEXICANA, S.A. DE C.V., FRANCISCO JAVIER MORENO
MOLINA, RAÚL FERNANDO LEMAS POMPA, PEDRO VILLAGRÁN GARCÍA,
JESÚS PEDRO VILLAGRÁN OCHOA, KILBY DANIEL BRUCE, FIDEL J.
GONZÁLEZ LEWIS and THE PUBLIC REGISTRY OF MINING, who
answered the lawsuit against them, the expenses and costs
incurred in the procedures of the present lawsuit, after
having been established by means of the corresponding
incidental procedure, in the terms of the TWELFTH
Considering clause.---"
II.- The legal Attorney in Fact of the plaintiff, DAVID
LESLIE HERMISTON CHESTER, filed an appeal against the
preceding decision, which was admitted for both effects.
Once the case was opened, the recourse was substantiated
through the appropriate legal steps and it is now proceeded
to dictate sentence.
C O N S I D E R I N G:
1st. This First Unitary Court of the Fifth Circuit
is competent to hear the present matter, pursuant to Article
29, Section III of the Organic Law of the Judicial Power of
the Federation, in relation to precept 1339, section I of
the Commercial Code, inasmuch as this is a recourse of
appeal brought against the sentence dictated in the first
instance by the District Judge of the territorial
jurisdiction of this same Court.
2nd. That to pronounce on the decision being
appealed, the resolving judge based his judgment on the
following reasoning: "...SECOND.- The plenary mercantile
proceeding selected by the plaintiff party is correct, in
accordance with the provision contained in Article 1377 of
the Commercial Code, since the actions exercised do not
require a special proceeding.--- THIRD.- The contending
parties are justified both in the procedure as well as in
the cause. In the proceeding, the plaintiff party is an
individual person, of adult age, in full use of his civil
rights; as are the respondents, FRANCISCO JAVIER MORENO
MOLINA, RAÚL FERNANDO LEMAS POMPA, PEDRO VILLAGRÁN GARCÍA,
JESÚS PEDRO VILLAGRÁN OCHOA, KILBY DANIEL BRUCE, and FIDEL
J. GONZÁLEZ LEWIS.--- As refers to THE PUBLIC REGISTRY OF
MINING and the PUBLIC REGISTRY OF PROPERTY AND COMMERCE OF
THE JUDICIAL DISTRICT OF HERMOSILLO, SONORA, it has been
evidenced that such entities are juristic persons, the first
two of a private nature, duly constituted, and the latter
two of a public nature, who appeared at the proceeding
through the conduct of a person with the authority to do so
and, therefore, it is concluded that the contending parties
may be constituted as parties in the proceeding, pursuant to
Article 55, Sections I and II of the Code of Civil
Procedures for the State of Sonora, of suppletory
application to the Commercial Code.--- The contending
parties have legal standing in the lawsuit because the
lawsuit was brought by DAVID LESLIE HERMISTON, natural
person to whom the Law grants authority to do so, against
individual and corporate persons against whom the action may
be exercised, this not to imply that the basis of the matter
shall be prejudged.--- FOURTH.- By reason of technical
procedures, the exception of prescription indicated by
FRANCISCO JAVIER MORENO MOLINA must be analyzed, who
asserted that the right of the plaintiff to oppose the
resolutions taken in the meetings of MINERA SUMMIT,
is precluded, inasmuch as Article 201 of the General
Commercial Companies Law, establishes that the term for
interested parties to oppose a resolution is fifteen days.--
In this respect, this judge considers that the exception
of prescription is not applicable inasmuch as Article
201 of the General Commercial Companies Law upon which the
respondent bases his case, establishes the term for the
stockholders to legally oppose the resolutions of the
meetings, but not to exercise actions such as that being
brought by the plaintiff which is based on the consideration
that the principal actions in the lawsuit are because of the
nullity of several mandates.--- FIFTH.- Upon summoning
each of the respondents, the legal procedural relationship
was duly integrated, complying with the formalities
referred to in Article 171 of the Code of Civil Procedures
for the State of Sonora, of suppletory application to the
Commercial Code.--- SIXTH.- The parties enjoyed the
equality and the probatory term conferred in Articles 1194,
1195, 1196, 1197, 1198 and 1199 of the Commercial Code, and
were able to offer the means of conviction they considered
ideal and pertinent. SEVENTH.- Satisfied that the
necessary procedural requirements have been met for the
present lawsuit to have legal existence and formal validity,
it is proceeded to enter into the question of law of the
present lawsuit, in accordance with the provisions of
Article 48 of the Code of Civil Procedures for the State of
Sonora, of suppletory application to the Commercial Code.---
The case for the present lawsuit was established in the
complaint, in the clarification and broadening of the answer
thereto, as well as in the incidental lawsuit of supervening
action, the contents of which were established in the
chapter on the whereas clauses of this sentence, the
aforesaid being cited as if reproduced to the letter, to
avoid unnecessary repetitions and for the purpose of economy
in the proceedings, the foregoing based on Articles 1396 and
1405 of the Commercial Code.--- NINTH.- As one of its
principal actions, the plaintiff party exercised the action
of nullity or nonexistence of the mandate executed on the
Sixteenth day of November of Nineteen hundred and ninety-
two, in favor of FRANCISCO JAVIER MORENO MOLINA, and in
consequence, in a supplementary manner, the statement that
the plaintiff was not legally present at the Stockholders'
General Regular(1) Meeting of MINERA SUMMIT DE MÉXICO, S.A.
DE C.V., held on the Twenty-third of December, Nineteen
hundred and ninety-four; the nullity of the agreements or
resolutions taken in the above mentioned General Regular(1)
Meeting; the nullity of the appointment of JESÚS PEDRO
VILLAGRÁN GARCÍA as Sole Administrator of MINERA SUMMIT DE
MÉXICO, S.A. DE C.V. agreed at that Meeting; the
nonexistence of the option agreement entered into between
MINERA SUMMIT DE MÉXICO, S.A. DE C.V. and FARALLÓN MINERA
MEXICANA, S.A. DE C.V.; and the cancellation of the
registrations filed at the Public Registry of Mining and the
Public Registry of Property and Commerce of this Judicial
District of Hermosillo, under number 152, Page 124, Volume
3, of the Book of Mining Acts, Contracts and Agreements, and
11,652, Book One, Volume 49, Commercial Section,
respectively (actions identified as A, B, C, D, E, F, G and
H), supplementary with respect to the actions exercised in
clauses c) and d) in which the resolution adopted in the
Stockholders' General Regular(1) Meeting of MINERA SUMMIT DE
......................................................
........... (1) In Mexico, Stockholders' Regular(1) General Meeting ("Asamblea General Ordinaria de Accionistas", i.e. Stockholders' 'Ordinary' General Meeting).
MÉXICO, S.A. DE C.V., held on the Twenty-third of December,
Nineteen hundred and ninety-four be declared legally null
and void, and as a consequence of the previous statement,
the cancellation of the subject agreement at the Public
Registry of Property and Commerce under number 11,652, Book
1, Volume 49, Commercial Section. In addition, a certified
copy is found in the records of public deed number 4992,
volume one hundred and eighty-four, dated the Thirteenth of
October of Nineteen hundred and ninety-two, executed and
attested to by Notary Public number 32, exercising in this
city of Hermosillo, which certifies the organization of the
corporation with the name of "MINERA SUMMIT DE MÉXICO, S.A.
DE C.V."; certified copy of public deed number 6,010,
Volume 242, dated the Fifteenth of June, Nineteen hundred
and ninety-five, executed and attested to before Notary
Public number 32, exercising in this notarial district,
relative to the Meeting of Stockholders held on the Twenty-
third of December, Nineteen hundred and ninety-four in which
the appointment is certified of JESÚS PEDRO VILLAGRÁN GARCÍA
as Sole Administrator of MINERA SUMMIT DE MÉXICO, S.A. DE
C.V., as well as the certified copy of deed number seventy
thousand eight hundred and fifty-eight dated the Twenty-
sixth of January, Nineteen hundred and ninety-six, executed
and attested to before Notary Public number 74 of the
Federal District, certifying a document dated the Eleventh
of January, Nineteen hundred and ninety-six, containing an
option agreement with respect to the exclusive right
(illegible) of "FARALLÓN MINERA MEXICANA, SOCIEDAD ANÓNIMA
DE CAPITAL VARIABLE" (A VARIABLE CAPITAL STOCK COMPANY) to
acquire one hundred percent of the mining concession for the
exploitation of the CAMPO MORADO mine and the "LA ALINA"
mining concession, documents which must be taken into
account inasmuch as they were exhibited with the complaint,
the aforesaid in accordance with Section II, Article 266 of
the Code of Civil Procedures for the State of Sonora, of
suppletory application to the Commercial Code, and which
have the probative value conferred by Article 1192 of the
Commercial Code, from which the existence of the facts upon
which the plaintiff founds his claim are evident. However,
this judge concludes that such claims are unfounded.- The
foregoing, based on the fact that although it is true that
Article 192 of the General Commercial Companies Law
establishes that, "Neither the administrators nor the
statutory auditors may be legal representatives of the
corporation", it is also true that entering into a contract
contravening said provision does not have the legal
consequence of declaring the invalidity of the meeting of
the minds therein contained, in view of the fact that there
is no express provision in this regard in the same General
Commercial Companies Law or in the Commercial Code,
indispensable requisite to judicially declare the nullity of
an act.--- Indeed, if it is true that Article 2225 of the
Civil Code for the Federal District, of suppletory
application in commercial matters, as provided in Article
2nd of the Commercial Code, provides that illegality in the
object, in the purpose, or in the condition of the act,
produces its nullity, either absolute, or relative, it is
also true that the same device indicates "as provided by
Law", from which it is concluded that since it is not
invalid as a matter of law, set forth in the Law as such, to
be declared by the judge, it must be expressly contemplated
in a legal precept which provides that sanction and its
causes in a clear form.--- Accordingly, if there is no
article whatsoever establishing the nullity of a power of
attorney granted to the administrator or statutory auditor
of a corporation, it follows that the action exercised to
declare the nullity of the power granted on the Sixteenth of
November of Nineteen hundred and ninety-two by the plaintiff
party to FRANCISCO JAVIER MORENO MOLINA is unjustified; and
therefore, the nullity or nonexistence of the acts referred
to by the plaintiff in the accessory benefits derived from
the nullity of the subject mandate is also unwarranted.-
TENTH.- In the benefits identified in clauses H, I, J, K, L
and M, the plaintiff requests that it be declared that he
was not present in the Stockholders' Meeting of MINERA
SUMMIT DE MÉXICO, S.A., held immediately after its
incorporation and, as a consequence thereof, the nullity of
the resolution taken by the Stockholders' General Regular(1)
Meeting of MINERA SUMMIT DE MÉXICO, S.A. DE C.V. in which
JESÚS PEDRO VILLAGRAN OCHOA was appointed general attorney
in fact for lawsuits and collections, acts of administration
and ownership, in the broadest possible terms; the
declaration of nonexistence due to a lack of consent by
MINERA SUMMIT DE MÉXICO, S.A. DE C.V. of the contract
entered into between MINERA SUMMIT DE MÉXICO, S.A. DE C.V.
and FARALLÓN MINERA MEXICANA, S.A. DE C.V., set forth in the
document dated the Fifteenth of October, Nineteen hundred
and Ninety-five; the nonexistence, due to the lack of
consent of MINERA SUMMIT DE MÉXICO, S.A. DE C.V., of the
powers of attorney granted by MINERA SUMMIT, through the
conduct of JESÚS PEDRO VILLAGRÁN OCHOA in the names of
FERNANDO LEMAS POMPA and KILBY DANIEL BRUCE, as well as the
cancellation of the registrations filed with the Public
Registry of Property and Commerce under number 11,750, Book
One, Volume 5, Commercial Section order (sic.), and in
number 12,126, Book One, Volume 71, Commercial Section, and
in a supplementary form, the actions identified in
subclauses i) and ii), which in content are identical to
those exercised in clauses K) and L).--- A copy is found in
the records of the Letter of Proxy granted on the Twenty-
fourth of September, Nineteen hundred and Ninety-two, by
DAVID LESLIE HERMISTON to FRANCISCO JAVIER MORENO MOLINA,
ratified in signature and contents before Notary Public
number 58, in exercise in the city of Hermosillo, which in
ruling of the Thirteenth of June, Nineteen hundred and
Ninety-seven, was admitted as an exact copy of said
document; certified copy of Public Deed 4992, Volume 184,
dated the Thirteenth of October, Nineteen hundred and
Ninety-two, executed and attested to before Notary Public
number 32, in exercise in this city, in which the
appointment of JESÚS PEDRO VILLAGRAN OCHOA is certified as
general attorney in fact for lawsuits and collections, acts
of administration and ownership, in the broadest possible
terms; document subscribed on the Fifteenth of October,
Nineteen hundred and Ninety-five; a copy of which was
exhibited and accepted as authentic in the ruling dated the
Thirteenth of June, Nineteen hundred and Ninety-seven; in
addition, there are certified copies of public deeds 6,4000
(sic.) and 6,326, volumes 262 and 268, respectively,
confirming that JESÚS PEDRO VILLAGRÁN OCHOA granted to KILBY
DANIEL BRUCE and RAÚL FERNANDO LEMAS POMPA a general power
of attorney for lawsuits and collections and a general power
of attorney for lawsuits and collections and acts of
administration, respectively, documents which pursuant to
the provisions of Article 266 of the Code of Civil
Procedures for the State of Sonora, of suppletory
application to the Commercial Code, 1192 of the Commercial
Code, have full probative value to accredit the facts
indicated by the plaintiff in his lawsuit. Nevertheless,
the principal claim contained in Clause H) is unfounded. To
that effect, the plaintiff indicates as facts of the subject
action that on the Twenty-fourth of September, Nineteen
hundred and Ninety-two, he granted power of attorney to
FRANCISCO JAVIER MORENO MOLINA solely to represent him as a
stockholder at the incorporation of the corporation, MINERA
SUMMIT DE MÉXICO, S.A. DE C.V., but not to represent him at
the Stockholders' Meeting of SUMMIT.--- The Letter of Proxy
of the Twenty-fourth of September, Nineteen hundred and
Ninety-two in which the power of attorney was granted in the
name of FRANCISCO JAVIER MORENO MOLINA, in its relevant
part, states: "BROAD, FULL AND SUFFICIENT POWERS TO APPEAR
IN MY (OUR) NAME AND REPRESENTATION AT THE ACT OF
INCORPORATION OF THE CORPORATION DENOMINATED MINERA SUMMIT
DE MÉXICO, S.A. DE C.V. TO ASSERT MY CAPACITY AS
STOCKHOLDER".--- Consequently, taking into consideration
the contents of the subject power of attorney, as well as
the contents of Article 6th of the General Commercial
Companies Law, which establishes a series of requisites
which must be included in the Articles of Incorporation of
the corporation, among others, the appointment of the
administrators and the designation of those persons who
shall carry the corporate signature, it is considered that
FRANCISCO JAVIER MORENO MOLINA did not exceed his functions
as a mandatary of DAVID LESLIE HERMISTON, since the
Regular Meeting in which JESÚS PEDRO VILLAGRÁN OCHOA was
appointed general attorney in fact for lawsuits and
collections, acts of administration and ownership, in the
broadest possible terms of MINERA SUMMIT DE MÉXICO, S.A. DE
C.V., formed part precisely of the incorporation of that
corporation, particularly if it is considered that the power
of attorney granted by the plaintiff in the name of
FRANCISCO JAVIER MORENO MOLINA was not limited in that
aspect.--- ELEVENTH.- With regard to Clauses O, P, Q, R, S,
T and U, and subclauses i) ii) and iii), the plaintiff
requests that it be declared that the power granted to FIDEL
J. GONZÁLEZ LEWIS, on the Eighth of December, Nineteen
hundred and ninety-four, did not include the express
authority to the mandatary of making donations in the name
and for the account of the plaintiff; and as a consequence
thereof, that a declaration of nonexistence be made, due to
a lack of consent, of the gratuitous assignment or stock
donation of the plaintiff in favor of RAÚL FERNANDO LEMAS
POMPA, set forth in the document dated the Twentieth of
June, Nineteen hundred and ninety-five, and any property
endorsement made in the name of the plaintiff by FIDEL J.
GONZÁLEZ LEWIS, in favor of RAÚL FERNANDO LEMAS POMPA with
respect to the shares, indirect object of the gratuitous
assignment or donation; that RAÚL FERNANDO LEMAS POMPA be
sentenced to deliver the stock certificates representing the
shares which were the object of the gratuitous assignment or
donation to the plaintiff; that MINERA SUMMIT DE MÉXICO,
S.A. DE C.V., be sentenced to cancelling and leaving without
effect any registration which might have been made of the
shares, as well as of the subject gratuitous assignment or
donation, this judge finding himself unable to proceed with
the study of the aforementioned shares.-- The foregoing is
due to the fact that although it is true that a copy of the
power of attorney granted by DAVID LESLIE HERMISTON on the
Eighth of December, Nineteen hundred and ninety-four to
FIDEL J. GONZÁLEZ LEWIS is in the court files, the shares
contained in clauses P, Q, R, S, T and U and subclauses i),
ii) and iii) depend on the nullity of the power of attorney
in question, document which in ruling dated the Thirtieth of
June, Nineteen hundred and ninety-eight was admitted as an
exact copy of the subject document, accompanied by a
translation into Spanish (Exhibit 10), that is not
translated in its entirety, and in some spaces the phrase
"illegible word" appears, document which is a necessary
requirement for this judge to be able to analyze what
powers were granted to FIDEL J. GONZÁLEZ LEWIS and thus
determine whether he was given the authority to make
donations in the name and for the account of the plaintiff;
making it necessary therefore, for the plaintiff party to
offer the expert proof in the translation of the language
because in this case special knowledge is required to
clarify the sense of the power of attorney granted, pursuant
to Article 1252 of the Commercial Code in force.- Under
these conditions and taking into consideration that Article
1194 of the Commercial Code establishes that, "he who
affirms is obliged to prove.- Consequently, the plaintiff
must prove his action and the accused his exceptions", it is
unquestionable that the plaintiff had the obligation of
proving that among the powers granted to FIDEL J. GONZÁLEZ
LEWIS, making donations in his name and for his account was
not included, which did not occur in this case. This Judge
is not unaware that in communication received by this Court
on the Twenty-second of September, Nineteen hundred and
Ninety-nine, said party offered several means of proof.
Nevertheless, such proof was not admitted because his offer
was made extemporaneously, this determination being firm, by
reason of the fact that the Court of Appeals rejected the
appeal brought by the plaintiff against said determination.-
-- On the other hand, it should be stated that it is
unnecessary to begin the study of the proofs submitted by
the respondent parties, FARALLÓN MINERA MEXICANA, S.A. DE
C.V., MINERA SUMMIT DE MÉXICO, S.A. DE C.V. and JESÚS PEDRO
VILLAGRÁN OCHOA, based on the fact that the plaintiff did
not prove their actions, for which reason the actions
exercised by the plaintiff referred to in this
"CONSIDERING", are declared unfounded and inadmissible, and
the respondents are absolved from payment of the benefits
claimed in the lawsuit. TWELFTH.- Concerning the
supervening action brought by the plaintiff in communication
dated the Third of April, Nineteen hundred and ninety-eight,
considering that the Second Unitary Court of the Fifth
Circuit, in Sentence of the Seventeenth of February,
Nineteen hundred and ninety-nine, dictated in Civil Case
677/98, confirmed the admission of said action, the study of
its legal basis was omitted, and it is therefore proceeded
to analyze the elements of proof offered to accredit the
facts supporting the case.--- In his incidental complaint,
the incidental plaintiff indicated that by means of the
document entitled, "CONTRACT OF ASSIGNMENT OF MINING
RIGHTS", dated the Tenth of January, Nineteen hundred and
ninety-seven, VILLAGRÁN GARCÍA (in presumed representation
of SUMMIT) and JUAN MANUEL GONZÁLEZ OLGUÍN, supposedly
representing FARALLÓN, made the following statements: That
the representative of Summit has the necessary powers to
bind (its principal) in the terms of the present contract,
such being confirmed in public deed number 6,329 dated the
Tenth of January, 1996; that the total price of the
assignment was the result of adding the amount of the
payments that Farallón has made to Summit in cash and in
common stock; that the assignment contract refers to the
two mining concessions referred to in the "option
agreement"; that the "assignment contract" was not the
document by means of which Farallón supposedly acquired the
concessions from Summit, since that contract was only a form
of confirming that Farallón had complied with the
nonexistent obligations which, in exchange for the pretended
transfer of the concessions, had been agreed upon for the
account of Farallón in the so-called "option agreement",
presumably entered into between Summit and Farallón. Also
commented was the fact that it was established in the
"option agreement", that with the object of exercising the
option, and consequently being able to receive and acquire
100% of the indivisible rights, Farallón should pay to
Minera Summit a total amount of One million two hundred
thirty-five thousand three hundred and eighty-eight pesos
($1,235,388) and issue, in the name of Minera Summit, Seven
hundred and fifty thousand (750,000) shares of fully paid-in
stock, with no encumbrances of Farallón capital. Upon
having paid the amount indicated and giving instructions
with respect to the issuance of the Seven hundred and fifty
thousand (750,000) shares in the name of Minera Summit, it
would be considered that Farallón Mexicana had acquired one
hundred percent (100%) of the indivisible rights of the
property, free and under no encumbrances whatsoever.--- It
was also stated that the previously indicated benefits
agreed upon, are the same ones which were considered to have
been paid to SUMMIT in the terms of Clause Third of the
"assignment contract", the nullity of which is pretended by
means of the supervening action. For this reason, the
"assignment contract" is not considered a legal act
independent of the subject "option agreement", but rather a
form of filing the change in ownership of the mining
concessions, from Summit to Farallón, at the Public Registry
of Property, considering that as a logical and legal
consequence, upon declaring the nonexistence of the "option
agreement" as requested in the initial communication of the
lawsuit, the legal nonexistence of the "assignment contract"
should also be declared. Along this same line of thoughts,
if in "CONSIDERING" Ninth of this sentence, the nullity
action of the "option agreement" was declared unfounded, the
same consideration must be made with respect to the
"assignment contract", taking into account that the
complainant derives the nonexistence of the latter contract
from the nonexistence of the "option agreement".-Finally,
pursuant to the provision of Article 1327 of the Commercial
Code, which establishes, "the sentence shall exclusively
cover the actions deduced and the exceptions opposed,
respectively, in the lawsuit and the answer thereto", from
which it is inferred that the case in the plenary mercantile
lawsuit was established based on the facts on which the
plaintiff bases its action, expressed in its initial
complaint, and those on which the respondent bases its
exceptions; consequently, if the plaintiff bringing the
incidental action does not indicate the cause of the
pretended nullity in its incidental complaint, it is
unquestionable in this respect that it did not form part of
the case, so that aside from the fact that proof was offered
and contributed tending to demonstrate such facts, this
Judge is not obligated to study the matter nor the proof
submitted for that purpose. For this reason, the analysis
of the different means of conviction offered by the
incidental plaintiff is omitted, of which the "CONFESSIONAL"
depositions were admitted, on the part of JESÚS PEDRO
VILLAGRAN GARCÍA, JESÚS PEDRO VILLAGRÁN OCHOA, RAÚL LEMAS
POMPA, FRANCISCO JAVIER MORENO and FIDEL GONZÁLEZ LEWIS, and
the DOCUMENTARY EVIDENCE consisting of the ASSIGNMENT
CONTRACT and Public Deed 6,329, Volume 261, executed before
Attorney Rubén Díaz Vega; in view of the fact that to do so
would be contrary to the principle of congruity which must
prevail in all judicial resolutions.- THIRTEENTH.- Aware
of the sense of the sentence and pursuant to Section I of
Article 1084 of the Commercial Code, the plaintiff is
sentenced to the payment in favor of the respondents, MINERA
SUMMIT DE MÉXICO, S.A. DE C.V., FARALLÓN MINERA MEXICANA,
S.A. DE C.V., FRANCISCO JAVIER MORENO MOLINA, PEDRO
VILLAGRÁN GARCÍA, JESÚS PEDRO VILLAGRÁN OCHOA, KILBY DANIEL
BRUCE, and THE PUBLIC REGISTRY OF MINING, who answered the
lawsuit against them, the EXPENSES and COSTS incurred in the
procedures of the present lawsuit, after having been
established by means of the corresponding incidental
procedure.---
3rd. Attorney Antonio Collado Mocelo, Legal
Attorney in Fact of DAVID LESLIE HERMISTON, set forth the
following injuries: "The final sentence being appealed has
caused the following injuries to his principal: FIRST
ERROR.- The A quo Judge caused an error detrimental to my
principal, in indicating on page 17 of the sentence being
appealed.--- "CONSIDERING" THIRD.- The contending parties
are legitimized both in the procedure and the cause. In the
process the plaintiff party, being an individual person, of
adult age, in full use of his civil rights, in the same
manner as the respondents, FRANCISCO JAVIER MORENO MOLINA,
RAÚL FERNANDO LEMAS POMPA, PEDRO VILLAGRÁN GARCÍA, JESÚS
PEDRO VILLAGRÁN OCHOA, KILBY DANIEL BRUCE, and FIDEL J.
GONZÁLEZ LEWIS".--- As refers to Minera Summit de México,
S.A. de C.V., Farallón Minera Mexicana, S.A. de C.V., and
the Public Registry of Property and Commerce of the Judicial
District of Hermosillo, Sonora, it has been evidenced that
such entities are juristic persons, the first two of a
private nature, duly constituted, and the latter two of a
public nature, who appeared at the proceeding through the
conduct of a person with the authority to do so, and
therefore, it is concluded that the contending parties may
be constituted as parties in the proceeding, pursuant to
Article 55, Sections I and II of the Code of Civil
Procedures for the State of Sonora, of suppletory
application to the Commercial Code".--- The contending
parties are legitimated in the lawsuits, the lawsuit having
been brought by DAVID LESLIE HERMISTON, individual person
to whom the Law grants authority to do so, against
individual and corporate persons, against whom the action
may be exercised, this not implying that the basis of the
matter be prejudged.--- This indeed causes injury, in
virtue of the fact that it fails to correctly apply the
provisions of Article 192 of the General Commercial
Companies Law which, to the letter states: Article 192:
"The stockholders may be represented at the meetings by
agents, whether forming part of the corporation or not. The
representation shall be conferred in the manner prescribed
in the By-Laws and, in the absence of a stipulation, in
writing.--- Neither the administrators nor the statutory
auditors may be legal representatives of the corporation".--
- As can be seen in the preceding transcription of the
article invoked, it provides that the Third District Judge
should have officially proceeded to pursue the matter since
it was an act of public order and because it was a
prohibitive law, whereas in the court files, the judge, in
dictating that MINERA SUMMIT DE MÉXICO, S.A. DE C.V.,
appeared at the proceedings through the conduct of a person
with the powers to do so, reasons in an erroneous manner;
accordingly,
in conclusion, this is inadmissible since it is contrary to
the provisions dictated in Article 192 of the General
Commercial Companies Law. For this reason, the personality
with which Mr. MORENO MOLINA is accredited is null and
void, since he cannot be accredited as the attorney in fact
of DAVID LESLIE HERMISTON, because the power of attorney
given to him authorized only one legal act which was solely
to represent Mr. DAVID LESLIE HERMISTON at the
incorporation of the corporation denominated, MINERA SUMMIT
DE MÉXICO, S.A. DE C.V., at the Meeting held on the 13th of
October of 1992. It is therefore necessary to mention that
all of the legal acts realized by Mr. MORENO MOLINA
subsequent to the aforementioned date are null and void
because he did not have the personality with which he
presented himself.--- Due to the fact that Mr. MORENO
MOLINA was appointed Secretary of the Board of Directors of
the corporation on the 13th of October, 1992, and inasmuch
as Article 192 provides that "administrators and statutory
auditors may not be legal representatives of the
corporation", and the corporation was formed as follows:
Mr. DAVID LESLIE HERMISTON was named as Chairman, Atty.
FRANCISCO JAVIER MORENO MOLINA, as Secretary, and Atty.
JESÚS PEDRO VILLAGRÁN, as Treasurer, the legal acts carried
out by Mr. MORENO MOLINA subsequent to that date are null
and void because they fragrantly violate specific articles
contained in our commercial legislation that from every
point of view are fraudulent, since these acts are intended
to cause a false appreciation of the reality. It is
because of this that the Board of Directors of the subject
company must be declared null and void, inasmuch as a
representative cannot be a director and if it is a director,
it cannot be a representative, since one precludes the
other. The powers granted were only to incorporate the
corporation and this is not a reason to violate Article 6th
of the General Commercial Companies Law. What should have
been done was to issue a call with the necessary quorum
present, in accordance with the By-Laws, and hold a
stockholders' Meeting to appoint a board of directors.---
Based on the foregoing, it is respectfully requested that
said Court of Appeals revoke the sentence which in an
evidently illegal form has been dictated, causing
irreparable damage to my principal by considering that said
legal acts which violate federal law, such as the Commercial
Code and the Civil Code for the Federal District, of
suppletory application to the matter under discussion, are
valid.--- SECOND ERROR.- The often cited sentence, dated
the Twenty-fifth of October of the present year, dictated by
the Third District Judge in Civil Matters of the State of
Sonora, causes an error in my principal's case with respect
to "CONSIDERING" Sixth of said sentence which, to the
letter, states: SIXTH: The parties enjoyed the equality and
the probatory term conferred in Articles 1194, 1195, 1196,
1197, 1198 and 1199 of the Commercial Code, and were able to
offer the means of convention considered ideal and
pertinent.--- "--- In the first place, the "A quo" judge,
in dictating said sentence, is violating Article 81 of the
Code of Civil Procedures for the Federal District, with
suppletory application to the Commercial Code, since it is
not being done in a coherent, clear and precise manner.---
In the same manner, and as Your Honor may observe, my
principal at no time enjoyed the equality and probative
opportunity as the judge would make us believe, since the
provision set forth in Article 1054 of the Commercial Code
is being violated, which indicates, as well as serving to
support, the following jurisprudence:--- Art. 1054: In the
event that no agreement exists between the parties on the
procedure before the courts in the terms of the preceding
articles, unless commercial laws establish an express
special or supplemental procedure, commercial lawsuits will
be governed by the provisions of this book and with respect
to their rights, the respective law of local procedures
shall apply".--- "Novena Época". Instance. Twentieth
Circuit Court of Associate Justices.- Source: Judicial
Weekly of the Federation and its Gazette. Tome: 11,
November, 1995.- Thesis: XX.54 C - Page 564.-
NOTIFICATIONS. IN THIS ASPECT THE CODE OF LOCAL CIVIL
PROCEDURES MUST BE APPLIED IN A SUPPLETORY MANNER TO THE
COMMERCIAl CODE. (LEGISLATION OF THE STATE OF CHIAPAS).-
.... (Transcription of thesis).--- Based on the above, we
can see that when the Commercial Code lacks a certain legal
provision, the Local Code is applicable, which in this case
is the Code of Civil Procedures for the State of Sonora, so
that to be able to offer the probative means and have them
taken into account, the criterion that should have been
applied by the "A quo" with respect to the usual term and
the period of time counted so that the parties may offer the
necessary evidence to be able to prove their statements,
must be that of the provisions stipulated in Article 180 of
said code, which in its pertinent part indicates, "when
there are various parties and the term is the usual one, it
will be counted from the day following the date on which all
parties have been notified...", which statement provides,
and it is necessary to indicate, that in not admitting the
proofs offered in time and form, the Third District Judge
left my principal in a total and absolute indefensible
state.--- In this same order of ideas, the plaintiff did
not have the obligation or the duty to offer such proofs by
counting the term from the date of his notification, but
rather, to the contrary, the term to present them began as
of the date of notification of the last co-respondent, as
realized today by the appellant, since it was within the
time given to the parties to render the proof accrediting
their respective rights.--- Since the term was counted in
an inexact manner, as has been shown, my principal cannot
prove his statement in the same manner and in accordance
with the articles indicated by the Third District Judge, it
being evident that the plaintiff must prove his action,
offering the pertinent evidence to do so, clearly expressing
the facts which it is intended be demonstrated, which was
realized in the term given in accordance with local
legislation. For this reason, the decision dictated by the
A quo in the often cited sentence dated the 25th of October,
2001, must be revoked. To support the foregoing, the
comments made by Jurist Eduardo Pallares, in his book
entitled, "Dictionary of Civil Procedural Law",
emphasize "... that the usual term is that which concerns
the two parties. When it is the usual term it will begin to
elapse only from the day following the date on which all of
the parties (illegible)..."
Based on the preceding arguments wielded, it is evident that
the A quo violated our legislation, applying the law
erroneously, as has been demonstrated in the respective
rulings. In the same manner, as set forth in the records,
Your Honor will observe that the responsible authority did
not apply the law correctly. Therefore, the proofs offered
by my principal must be admitted in the lawsuit under
discussion, so that a level of procedural equality is
achieved between the parties, as well as to be able to
dictate a just, clear and coherent sentence.-- THIRD
ERROR.- The A quo judge caused an error in my principal's
lawsuit in dictating the "CONSIDERING" Seventh of the
sentence handed down on the 25th of October of the present
year, which was published on the 26th of the same month and
year, which to the letter states: "... SEVENTH.- Satisfied
that the necessary procedural requirements have been met for
the present lawsuit to have legal existence and formal
validity, it is proceeded to enter into the question of law
of the present lawsuit, in accordance with the provisions of
Article 48 of the Code of Civil Procedures for the State of
Sonora, of suppletory application to the Commercial Code.---
From the above, it is apparent that the A quo judge
violated and transgressed the stipulations of Article 48 of
the Code of Civil Procedures for the State of Sonora, which
provides: "Art. 48: The respondent may announce to the
judge and assert as exceptions, the necessary procedural
requisites for the lawsuit to have legal existence and
formal validity, and in addition, all of these can be
enforced or be officially amended by the Judge, without a
request from the party, when it has knowledge thereof.---
In the first place, the A quo judge at no time studied or
put together the procedural requisites of the respondent
party which are necessary for the lawsuit to have legal
existence and formal validity, as provided in the article
preceding; further, as confirmed in the court files and as
Your Honor shall see, the personality that Mr. J. PEDRO
VILLAGRÁN OCHOA manifests, is not legally supported, since
the power of attorney granted at the time it was conferred
was outside of all legal order and is, therefore, null and
void, which has been demonstrated within the present
communication, but is not transcribed for the purpose of
procedural economy.--- In the same manner, the
representation and personality that PEDRO VILLAGRÁN states
he has with the corporation denominated, MINERA SUMMIT
(sic.), S.A. DE C.V. is also null and void, because said
personality is accredited in the same minutes of the
Stockholders' General Meeting in which Mr. MORENO MOLINA,
who did not have the powers to realize the act, gave his
vote to appoint him as Administrator of said company. In
the second place, as is well known, the personality of the
parties must be officially studied and authenticated, the
following jurisprudence serving as support of the above:
"Novena Época". Instance. Second Court of Associate
Justices of the Fifth Circuit.- Source: Judicial Weekly of
the Federation and its Gazette. Tome: III, April, 1996.-
Thesis: V.2o.24 C- Page 435.- PERSONALITY. UNOFFICIAL
STUDY OF, IN APPEALS... - (Transcription of thesis).--- It
is evident that the A quo judge failed to study the
personality of the co-respondents, omitting and violating
the local legislation, causing serious damage to my
principal.--- Following this same order of ideas, with
respect to the fact that the judge, in "CONSIDERING"
Seventh, indicates that "it proceeds to enter into the
question of law of the present lawsuit...", this is
erroneous, since in not evaluating the proofs presented by
the parties, it is legally impossible to study the question
of law of the case under discussion, inasmuch as he did not
take into account the means of conviction of the parties.
Because of the aforesaid, I request that you, Citizen
Magistrates, kindly revoke the sentence being appealed
pursuant to the previously expressed statements. FOURTH
ERROR.--- The A quo judge who committed the error in
the lawsuit of my principal as set forth from Pages 19 to 22
of the sentence being opposed): ... (Refer to the reasoning
of the judge in "CONSIDERING" Ninth).--- In effect, the
Judge caused the error because he failed to correctly apply
the provisions of Article 192 of the General Commercial
Companies Law, in relation to Articles 6, 8, 10, 11, 12,
19, 1801 and 2224 of the Civil Code for the Federal
District, which to the letter, states: Article 192 (GCCL).-
"The stockholders may be represented at the meetings by
agents, whether forming part of the corporation or not. The
representation shall be conferred in the manner prescribed
in the By-Laws and, in the absence of a stipulation, in
writing.--- "Neither the administrators nor the statutory
auditors may be legal representatives of the corporation".--
- It is evident that upon being appointed Secretary of the
Board of Directors in the Meeting held in October, 1992, Mr.
FRANCISCO JAVIER MORENO MOLINA was legally impeded from
representing Mr. DAVID LESLIE HERMISTON CHESTER at the
Meeting held on the 23rd of December, 1994, in virtue of the
provision of the previously invoked article, containing the
rule prohibiting administrators and statutory auditors from
being attorneys in fact of stockholders at stockholders'
meetings. Therefore, the A quo judge has incorrectly
interpreted this article, causing an error against my
principal, as established in the Civil Code for the Federal
District, of suppletory application to commercial matters.--
- Article 6, Civil Code of the Federal District.- The will
of individual parties shall not exempt them from observing,
nor shall they alter or modify, the law. Only those private
rights not directly affecting the public interest may be
waived, provided such waiver does not damage the rights of
third parties.--- From what is evident, supposing without
conceding that my principal had signed the power of attorney
in question, with knowledge of the provision of Article 192
of the General Commercial Companies Law, this legal
phenomenon is null and void because the will of private
parties cannot be placed above what is set forth by the
legislator in the rules of public order. To the contrary,
and in accordance with the article that in the same manner
has been violated by the A quo judge, transcribed
hereinbelow, the contents of the aforesaid Article 192 is a
prohibitive rule of public order, which society requires be
rigorously observed.--- Article 8, Civil Code of the
Federal District.- The acts performed against the nature of
prohibitive laws or those of public interest shall be
invalid, except in the cases in which the law orders the
contrary.- This Article 8 was also ignored by the natural
judge who has general jurisdiction over the issue. If he
had complied therewith, because the law must be observed
without argument, he would have evidently concluded, as the
judge did, in the legal bases for the actions studied in
"CONSIDERING" Ninth, in which an error is committed against
my principal, that, "...entering into a contract in
contravention of said provision does not have the legal
consequence of declaring the nullity ....". Because from
the article previously studied, it is apparent that the law
does provide a logical and legal consequence for those acts
which are in contravention of the stipulations of Article
192 of the General Commercial Companies Law, there being no
argument whatsoever to the contrary, therefore indicating
that the A quo judge did not apply the provisions of Article
10 of the Civil Code for the Federal District.-. The
disuse, custom or practice to the contrary cannot be argued
against the observance of the law .--- It is thus clear
that Article 192 of the General Commercial Companies Law,
establishes an express prohibition, which evidently results
in the absolute nullity of the act. It is pertinent to
emphasize that in no part whatsoever of the commercial
legislation cited is there an established cause for
exception which justifies its lack of application, so that
the Third District Judge of Sonora, omits the application of
the provisions established in Article 11 of the Civil Code
of the Federal District.- The laws which establish
exceptions to the general rules are not applicable to any
case whatsoever which is not expressly specified in the same
laws.--- This is another error against my principal because
if a hypothesis of exception does not exist, it is evident
that Article 192 of the General Commercial Companies Law
will be brought up to date by any act performed by a member
of the Board of Directors who is the attorney in fact of a
stockholder in a stockholders' meeting; it is clear, in
accordance with the legislation invoked and not applied by
the A quo judge, that it will end in the nullity of the act;
since in this concrete case, these provisions must be
applied because the acts we are requesting be annulled, were
realized within the national territory, and finally, the
Third District Judge failed to consider the spirit of
Article 12 of the Civil Code for the Federal District.-
Mexican law governs all of the persons located within the
Mexican Republic, as well as the acts and events occurring
in its territory or under its jurisdiction, and those
persons subject to such laws, except when such persons take
steps for the application of a foreign right, and also with
the exception of the provisions of the treaties and
conventions in which Mexico participates.--- From which it
is obvious that although Mexican law governs the matter
under discussion, the A quo judge failed to apply Mexican
law, and because the natural judge should have resolved the
matter by strictly adhering to and applying same, and in not
doing so, also failed to apply the law, again causing an
error against my principal. Article 19, Civil Code for the
Federal District, indicates: Article 19, Civil Code for
the Federal District.- The judicial controversies of civil
order must be resolved pursuant to the letter of the law or
its legal interpretation, and in the absence of the law,
these shall be resolved in accordance with the general
principles of law.--- Finally, the A quo judge does not
take into consideration that the contents of Article 192 of
the General Commercial Companies Law, is closely linked to
Article 1801 of the Civil Code for the Federal District
which, in a much more conclusive manner than the first,
indicates that: Article 1801, Civil Code for the Federal
District.- No person shall enter into a contract in the
name of another person without authorization thereby or by
the law.--- That is, the subject Article 192, in
prohibiting that administrators may not be attorneys in fact
of the stockholders at stockholders' meetings, it is evident
that the law does not authorize contracting in their name,
which is evidence of the lack of legality of its acts, and
its consequent nullity, provisions which the A quo judge
fails to apply, continuing to cause an error against the
appellant.--- In conclusion, therefore, since the
administrator is not able to represent the stockholder at
the meeting of the corporation, it is clear that no
representation exists and for this reason there being an
absence of will that, according to Article 2224 of the Civil
Code for the Federal District, as well as Articles 1792 to
1811 of the same ordinance, provides a nuance of
nonexistence or nullity of the act carried out, circumstance
which is neglected by the natural judge, therefore causing
an error against my principal.--- Article 2224, Civil Code
for the Federal District.- A nonexistent juridical act
which due to a lack of consent or of objective which could
be the subject thereof, shall not produce any legal effect
whatsoever. It is not susceptible to confirmation, nor by
prescription; its nonexistence can be invoked by all
interested parties.--- Once it has been clearly understood
that Mr. DAVID LESLIE HERMISTON was not legally represented
at the meeting held on the 23rd of December, 1994, the A quo
judge, in not declaring that the intended actions were
admissible (which he declares to be contrary to law in the
"CONSIDERING" Ninth being commented), an error was caused
against my principal, since he failed to apply the
provisions of Articles 186 and 187 of the General Commercial
Companies Law, which are hereby provided: Article 186 of
the GCCL. The call to general meetings shall be made by
means of the publication of a notice in the official gazette
of the entity of the domicile of the corporation or in one
of the newspapers of major circulation in said domicile
within a period in advance of the meeting as established in
the By-laws or, as the case may be, fifteen days prior to
the date indicated for the meeting. During all of this
period of time, the report referred to in the general
statement of Article 172 shall be at the disposal of the
stockholders, at the offices of the corporation.--- Article
187, GCCL.- The call to Meetings shall contain the agenda
and carry the signatures of the person(s) issuing same.---
In fact, these two articles shall not apply, since in
reading the minutes of the Meeting of December 23rd,
1994, it has been observed that the corresponding call was
not issued and, therefore, it is evident that the
resolutions adopted in same appear to be null and void,
situation which was not declared by the A quo judge, causing
an error to the appellant in not applying said articles in
relation to Art. 188 of the same ordinance, which in a
meridian manner indicates: Article 188, GCCL.- All
resolutions at a Meeting taken in violation of the
provisions of the two articles preceding, shall be null and
void, except in the event that at the time of voting, the
total number of shares were represented.--- It is evident
that the error being discussed is admissible, in view of the
fact that the total number of shares were not represented,
principally because Mr. MORENO MOLINA, as already stated,
was subject to the express prohibition of the law of being
the attorney in fact of Mr. Hermiston or of any other
stockholder, his participation in the Meeting and
consequently the resolutions taken thereat, being null and
void; secondly, Mr. Pedro Villagrán Ochoa sold his shares
on the 22nd of December, 1994, that is, one day prior to the
alleged Meeting of December 23, 1994, for which reason the
capital stock was not represented in any part whatsoever.
The previous fact was not evaluated by the A quo judge, as
can be seen from the testimony given by Mr. J. Pedro
Villagrán Ochoa in his own right and as the presumed
representative of Minera Summit de México, S.A. de C.V.. In
answering the lawsuit on Page 8 of said communication, he
stated: "This fact is partially true, since it is false
that FIDEL GONZÁLEZ gratuitously assigned to Mr. LEMAS the
stock rights of Mr. HERMISTON. What FIDEL GONZÁLEZ did,
in exercise of his powers, was to rescind the contract of
the assignment of stock rights entered into on the 22nd of
December, 1994 with Mr. Hermiston ...".- From this simple
transcription, it is apparent that Mr. J. PEDRO VILLAGRÁN
OCHO, in his own right and in his presumed representation of
Minera Summit de México, S.A. de C.V., confessed that on the
22nd of December, 1994, he sold his shares to the appellant
plaintiff, it being legally impossible to represent 51% of
the capital stock at the Meeting held on the 23rd of
December, 1994, situation which the A quo judge failed to
evaluate, causing an error against my principal. If he had
evaluated this proof in accordance with the provisions of
Article 1212 of the Commercial Code, he would have concluded
that said Meeting was invalid because it was not attended by
those persons who at that moment represented the total or
60% of the capital stock required for incorporation, which
Article 1212 of the Commercial Code in effect establishes.
Article 1212, Commercial Code.- The confession made before
a competent judge is judicial in answering a lawsuit,
or in answering interrogatories.--- The A quo judge
committed an error against my principal in not taking into
account the judicial testimony given by Pedro Villagrán
Ochoa in his own right, and in his presumed representation
of Minera Summit de México, S.A. de C.V., in answer to the
lawsuit, in view of the fact that if he had evaluated same,
it is evident that he would have declared the nullity of the
Meeting held on the 23rd of December, 1994, which was
justified because the capital stock was not thereat
represented by any person whatsoever.--- FIFTH ERROR. The
A quo judge commits an error prejudicial to my principal in
indicating on pages 24 and 25 of the sentence being
appealed: ".... nevertheless, the principal claim,
contained in clause h) is unfounded ... (Transcribe
reasoning in "CONSIDERING" Tenth).--- It is evident that
the A quo judge commits an error causing injury to my
principal by declaring the action of clause h) and all
subsequent actions arising therefrom inadmissible, in view
of the fact that Mr. MORENO MOLINA was only authorized to
appear at the incorporation of Minera Summit, and not to
participate in the appointment of the persons indicated in
the transitory articles, since this constitutes a different
act, e.g., a stockholders' meeting, reason for which the
judge in the court files failed to apply Article 2553 of the
Civil Code for the Federal District and Paragraph Fourth of
Article 2554 of the same ordinance, of suppletory
application to commercial matters, which provides: Article
2553, Civil Code.- The power of attorney shall be general
or special, those contained in the first three paragraphs of
Article 2554 being general. Any other powers shall have the
character of special.--- Article 2554, Civil Code.- In the
event of wishing to limit the powers of the attorneys in
fact in the three cases mentioned above, such limitations
will be determined specifically or a special power of
attorney will be extended.--- It is therefore concluded
that the A quo judge committed an error in not applying
these articles, thereby resolving that the attorney in fact
did not overstep his authority, inasmuch as already stated,
he was authorized to participate in the incorporation of the
company, but not to attend the meeting held immediately
afterwards in which Pedro Villagrán Ochoa was named attorney
in fact, added to the fact that Mr. MORENO MOLINA was
appointed Secretary of the Board of Directors, as commented
in the Error preceding (arguments which to avoid unnecessary
repetition, I request be considered as if here reproduced),
which would not allow him to represent the plaintiff at the
meeting held immediately after the incorporation.--- SIXTH
ERROR.--- SOURCE OF ERROR.--- The Judge erroneously
considers in his "CONSIDERING" Eleventh, with respect to the
power of attorney granted by DAVID LESLIE HERMISTON on the
Eighth of December, Nineteen hundred and ninety-four, in the
name of Fidel J. González Lewis, that it was not translated
in its entirety, whereas precisely by means of the ruling of
the 30th of June, 1998, this document, accompanied by its
respective translation was admitted, added to the fact that
the contents of the power granted did not include the
express authority to make donations, situation demonstrating
that this power did not exist in such document and, in any
case, it corresponded to the respondents to accredit the
power in question.--- The part of the sentence that causes
the error in injury to myself, is the statement contained on
pages 26 and 27: "The foregoing is due to the fact that
although it is true that a copy of the power of attorney
granted by DAVID LESLIE HERMISTON on the Eighth of December,
Nineteen hundred and ninety-four to Fidel J. González Lewis
is in the court files, the shares contained in clauses P, Q,
R, S, T and U and subclauses i), ii) and iii) depend on the
nullity of the power of attorney in question, document which
in ruling dated the Thirtieth of June, 1998, was admitted as
an exact copy of the subject document, accompanied by a
translation into Spanish, i.e., Exhibit 10; it is also true
that it is not translated in its entirety, and in some
spaces the phrase "illegible word" appears, document which
is a necessary requirement for this judge to be able to
analyze what powers were granted to Fidel J. González Lewis
and thus determine whether he was given the authority to
make donations in the name and for the account of the
plaintiff; making it necessary, therefore, for the
plaintiff party to have offered expert proof of the
translation of the language because in this case special
knowledge is required to clarify the sense of the power of
attorney granted, pursuant to Article 1252 of the Commercial
Code in force.--- LEGAL PROVISIONS VIOLATED.--- The A quo
judge commits an error prejudicial to the appellant in
failing to interpret and apply the suppletory clauses
contained in Article 2nd of the Commercial Code, since in a
more than baseless manner the assumptions within the
following articles of the Civil Code for the Federal
District were violated.--- Art. 8.- The acts performed
against the nature of prohibitive laws or those of public
interest shall be null and void, except in the cases in
which the law orders the contrary.- Art. 15.- Foreign
rights shall not be applicable: I. When fundamental
principles of Mexican law have been ingeniously evaded, the
judge having to determine the fraudulent intention of such
evasion; II. When the provisions of foreign law or the
result of its application are contrary to the principles of
Mexican public order.- Art. 19.- The judicial
controversies of civil order must be resolved pursuant to
the letter of the law or its legal interpretation, and in
the absence of the law, these conflicts shall be resolved in
accordance with the general principles of law.--- From the
foregoing, it is obvious that the judge has failed to apply
the Federal Notaries Public Law in force for the Federal
District, forgetting that Article 92 thereof specifies the
form in which powers of attorney outside of the Mexican
Republic must be granted, this precept being transcribed
below:--- Art.92.- The powers of attorney conferred
outside of the Republic, with the exception of those granted
before Mexican consuls abroad, once legalized, must be
officially registered with a notary in order to come into
effect according to law.--- The presumed power of attorney
of the 8th of December, 1994, lacks the requirement of
notarization, as well as its execution before a Mexican
consul abroad, containing only the respective legislation
before the Consul, which is insufficient and ineffective to
represent Mr. David Leslie Hermiston in any act within the
Mexican Republic and even less so to pretend in a more than
malicious manner to use it to cause a damage of such
magnitude to his patrimony, manifestly violating the
principle figure of the power of attorney, which is to
preserve the capital of its principal, by exceeding the
limits of such power of attorney.- Mr. Fidel González Lewis
violates the spirit of Article 2563 of the Civil Code for
the Federal District, which indicates the following: Art.
2563.- In matters not expressly provided and prescribed by
the principal, the attorney in fact shall always consult
same, provided the nature of the business so allows.- If
this consultation were not possible or the attorney in fact
were authorized to act at its discretion, it will act with
the prudence required, taking care of the business as if it
were its own.--- The preceding provision was manifestly
violated by the presumed attorney in fact who at no time
took care of the patrimony as if it were his own, inasmuch
as by means of an letter without authority or a special
power of attorney, he tried to donate the shares which
formed an important part of the assets of Mr. DAVID LESLIE
HERMISTON.--- In the same manner, the theses of
jurisprudence transcribed below were violated, such
specifying in the clearest manner the obligation of the
attorney in fact to preserve the patrimony of the principal
and to avoid at any cost its disintegration, except in the
event of special permission granted in a specific clause.
"Novena Época". Instance. First Court.- Source: Judicial
Weekly of the Federation and its Gazette. Tome: VI,
September 1997.- Thesis: la./J.34/97 - Page 213.- DONATION.
ATTORNEY IN FACT. LACKS POWERS TO ENTER INTO A CONTRACT
OF, WHEN IN THE GENERAL POWER OF ATTORNEY FOR ACTS OF
OWNERSHIP THE INSERTION OF A SPECIFIC CLAUSE IS OMITTED
WHICH AUTHORIZES THE REALIZATION OF THE LEGAL ACT OF
DISPOSAL (ARTICLES 2554 OF THE CIVIL CODE FOR THE FEDERAL
DISTRICT AND 2528 OF THE CIVIL CODE FOR THE STATE OF
CHIAPAS).- .... (Transcription of thesis).--- In his
intention to reduce the probatory value of the proof, the
Judge, contrary to the thesis of the Eighteenth Circuit
Court of Associate Justices, indicates the obligation of
obtaining expert proof of the translation of the language,
when in the initial complaint, in Exhibit number 10, the
translation into the Spanish language of said document was
indicated, and at no time, either onerously or gratuitously,
does the word donation appear. The following thesis is
transcribed below: "Novena Época". Instance. Eighteenth
Circuit Court of Associate Justices.- Source: Judicial
Weekly of the Federation.- Tome: X, October, 1992.- Page
324.- DOCUMENT EXHIBITED IN FOREIGN LANGUAGE, MUST BE
ACCOMPANIED BY TRANSLATION.- ...(Transcription of thesis).--
- In addition to everything else, the Judge fails to apply
Article 2554 of the Civil Code for the Federal District,
indicating: "... In general powers of attorney to exercise
acts of ownership, it will be sufficient to state that the
powers are granted in that capacity so that the attorney in
fact will have all of the powers of ownership, both with
respect to assets as well as to carry out all manner of
procedures to defend them. In the event of wishing to limit
the powers of the attorneys in fact in the three cases
mentioned above, such limitations will be determined
specifically or a special power of attorney will be
extended. Notaries shall insert this article in the
official transcript of the powers of attorney thereby
executed". In a harmonious interpretation of the Civil Code
for the Federal District and Articles 90 and 92 of the
Notaries Public Law for the Federal District, it can be
deduced that only the powers of attorney granted outside of
the Republic can be officially registered with a notary,
pursuant to the laws of public order, so that their effects
are according to law, that is, the power of attorney
referred to by the Judge violates the reasoned application
of the laws of public order; it is therefore inoperative
and should be sanctioned by declaring its nullity and that
of its legal effects. In not doing so, this would be
contrary to the nature of the laws of civil order, as well
as the rules of individual guarantees and the
hierarchy of the application of the laws comprising our
magna charta.--- Based on the foregoing statements and
information, I request that the sentence dictated by the A
quo judge be revoked, in order to compensate for the above
mentioned errors, thereby achieving the nullity of the power
of attorney granted to Fidel J. González Lewis.--- The part
of the sentence of the A quo judge shown on Page 26 also
represents an error, as follows: "Under these conditions
and taking into consideration that Article 1194 of the
Commercial Code establishes that, "he who affirms is obliged
to prove.- Consequently, the plaintiff must prove his
action and the accused his exceptions", it is unquestionable
that the plaintiff had the obligation of proving that among
the powers granted to Fidel J. González Lewis the authority
to make donations in his name and for his account was not
included, which did not occur in this case.--- For the
purpose of economy in the proceedings and to avoid
unnecessary repetitions, it can be concluded that the power
of attorney granted by DAVID LESLIE HERMISTON on the 8th of
December, 1994, to Fidel J. González Lewis is in accordance
with the respective Mexican legal ordinance and the
analogous interpretation thereof and is inadequate to make
donations, since in the body of that document the authority
to do so, or a special power of attorney to make said
donations, does not appear; there is no doubt that the
judge, in trying to interpret what is not legible, and
because of the word donation, causes an error of irreparable
damage dictating a sentence which is more than incongruent,
in this manner violating the principle of procedural
equality, by evaluating the evidence without taking into
account the attached translation into Spanish, as well as
the formalities that the Notaries Public Law for the Federal
District imperatively demands, which is the suppletory
federal legislation to formalize the acts realized abroad
with legal effects within the Mexican Republic. In the same
order of ideas, the sentence omits the suppletory
application, as has already been demonstrated, of the Civil
Code for the Federal District, in accordance with Article 2
of the Commercial Code which, to the letter states: LEGAL
PROVISION VIOLATED. - Art. 2.- In the absence of provisions
in this ordinance and in other commercial laws, those of the
general or civil law contained in the Civil Code applicable
in federal matters, shall be applied to acts of commerce.---
For this reason, the sentence dictated by the A quo judge
should be revoked since it is not according to Law,
violating provisions applied to this concrete case, said
judge not declaring the nullity of the illegal acts carried
out with the alleged mandate of donation, which as already
indicated, is nonexistent.--- SEVENTH ERROR.- SOURCE OF
ERROR.--The often cited sentence constitutes a source of
error dictated by the A quo judge in Plenary Mercantile
Lawsuit number 1/96, dated the 25th of October of the year
2001. which on Page 27, "in fine" indicates the following:
..."In his incidental complaint the incidental plaintiff ...
(Transcribe reasoning, "CONSIDERING" Twelfth).--- In
effect, the Judge caused the error because he failed to
correctly apply the provisions of Article 192 of the General
Commercial Companies Law, in relation to Articles 6, 8, 10,
11, 12, 19, 1801 and 2224 of the Civil Code for the Federal
District, which to the letter, states: Article 192 (GCCL).-
"The stockholders may be represented at the meetings by
agents, whether forming part of the corporation or
not. The representation shall be conferred in the manner
prescribed in the By-Laws and, in the absence of a
stipulation, in writing.--- Neither the administrators nor
the statutory auditors may be legal representatives of the
corporation.--- It is evident that upon being appointed
Secretary of the Board of Directors in the Meeting held on
October 13, 1992, Mr. FRANCISCO JAVIER MORENO MOLINA was
legally impeded from representing Mr. DAVID LESLIE HERMISTON
CHESTER at the Meeting held on the 23rd of December, 1994,
in virtue of the provision of the previously invoked
article, containing the rule prohibiting administrators and
statutory auditors from being attorneys in fact of
stockholders at stockholders' meetings. Therefore, the A
quo judge who incorrectly interprets this article, commits
an error against my principal, as established in the Civil
Code for the Federal District, of suppletory application to
commercial matters.--- Article 6, Civil Code of the Federal
District.- The will of individual parties shall not exempt
them from observing, nor shall they alter or modify, the
law. Only the private rights not directly affecting the
public interest may be waived, provided such waiver does not
damage the rights of third parties.--- From what is
evident, supposing without conceding that my principal had
signed the power of attorney in question, with knowledge of
the provision of Article 192 of the General Commercial
Companies Law, this legal phenomenon is null and void
because the will of private parties cannot be placed above
what is set forth by the legislator in the rules of public
order. To the contrary, and in accordance with the article
that in the same manner has been violated by the A quo
judge, transcribed hereinbelow, the contents of the
aforesaid Article 192 is a prohibitive rule of public order,
which society requires be rigorously observed.--- Article
8, Civil Code of the Federal District.- The acts performed
against the nature of prohibitive laws or those of public
interest shall be null and void, except in the cases in
which the law orders the contrary.- This Article 8 was also
ignored by the natural judge who has general jurisdiction
over the issue. If he had complied therewith, because the
law must be observed without argument, he would have
evidently concluded, as the judge did, in the legal bases
for the actions studied in "CONSIDERING" Ninth, in which an
error is committed against my principal, that, "...entering
into a contract in contravention of said provision does not
have the legal consequence of declaring the nullity ..."
Because from the article previously studied, it is apparent
that the law does provide a logical and legal consequence
for those acts which contravene the stipulations of
Article 192 of the General Commercial Companies Law, there
being no argument whatsoever to the contrary, therefore
indicating that the A quo judge did not apply the provisions
of Article 10 of the Civil Code for the Federal District.-
The disuse, custom or practice to the contrary cannot be
argued against the observance of the law.--- It is thus
clear that Article 192 of the General Commercial Companies
Law, establishes an express prohibition, which evidently
results in the absolute nullity of the act. It is pertinent
to emphasize that in no part whatsoever of the commercial
legislation cited is a cause for exception established which
justifies its lack of application; the Third District Judge
of Sonora, therefore, omits the application of the
provisions established in Article 11 of the Civil Code of
the Federal District.- The laws which establish exceptions
to the general rules are not applicable to any case
whatsoever which has not been expressly specified in the
same laws.--- This is another error against my principal
because if a hypothesis of exception does not exist, it is
evident that Article 192 of the General Commercial Companies
Law will be brought up to date by any act performed by a
member of the Board of Directors who is the attorney in fact
of a stockholder in a stockholders' meeting; it is clear,
in accordance with the legislation invoked and not applied
by the A quo judge, that it will end in the nullity of the
act; since in this concrete case, these provisions must be
applied because the acts that we are requesting be
invalidated, were realized within the national territory,
and finally, the Third District Judge failed to consider the
spirit of Article 12 of the Civil Code for the Federal
District.- Mexican law governs all of the persons located
within the Mexican Republic, as well as the acts and events
occurring in its territory or under its jurisdiction, and
those persons subject to such laws, except when such persons
take steps for the application of a foreign right, and also
with the exception of the provisions of the treaties and
conventions in which Mexico participates.--- From which it
is obvious that although Mexican law governs the matter
under discussion, the A quo judge failed to apply Mexican
law, because the natural judge should have resolved the
matter by strictly adhering to and applying the law, and in
not doing so, also failing to apply the law, again caused an
error against my principal, as Article 19 of the Civil Code
for the Federal District, indicates: Article 19, Civil
Code for the Federal District.- The judicial controversies
of civil order must be resolved pursuant to the letter of
the law or its legal interpretation, and in the absence of
the law, these shall be resolved in accordance with the
general principles of law.--- Finally, the A quo judge does
not take into consideration that the contents of Article 192
of the General Commercial Companies Law, is closely linked
with Article 1801 of the Civil Code for the Federal District
which, in a much more conclusive manner than the first,
indicates: Article 1801, Civil Code for the Federal
District.- No person shall enter into a contract in the
name of another person without authorization thereby or by
the law.--- That is, the subject Article 192, in
prohibiting that administrators may not be attorneys in fact
of the stockholders at stockholders' meetings, it is evident
that the law does not authorize contracting in their name,
which is evidence of the lack of legality of their acts, and
the consequent nullity thereof, provisions which the A quo
judge fails to apply, causing another error against the
appellant.--- In conclusion, therefore, since the
administrator is not able to represent the stockholder at
the meeting of the corporation, it is clear that no
representation exists and for this reason there is an
absence of will that, according to Article 2224 of the Civil
Code for the Federal District, as well as Articles 1792 to
1811 of the same ordinance, provides a nuance of
nonexistence or nullity of the act carried out, circumstance
which is neglected by the natural judge, thus causing
an error against my principal.--- Article 2224, Civil
Code for the Federal District.- The nonexistent juridical
act which due to a lack of consent or of objective, which
could be the subject thereof, shall not produce any legal
effect whatsoever. It is not susceptible to confirmation,
nor by prescription; its nonexistence can be invoked by all
interested parties.--- Once it has been clearly understood
that Mr. DAVID LESLIE HERMISTON was not legally represented
at the meeting held on the 23rd of December, 1994, the A quo
judge, in not declaring that the intended actions were
admissible (which he declares to be contrary to law in the
"CONSIDERING" Ninth being commented), an error was caused
against my principal, since he failed to apply the
provisions of Articles 186 and 187 of the General Commercial
Companies Law, which are hereby provided: Article 186 of
the GCCL. The call to general meetings shall be made by
means of the publication of a notice in the official gazette
of the entity of the domicile of the corporation or in one
of the newspapers of major circulation in said domicile
within a period in advance of the meeting as established in
the By-laws or, as the case may be, fifteen days prior to
the date indicated for the meeting. During all of this
period of time, the report referred to in the general
statement of Article 172 shall be at the disposal of the
stockholders, at the offices of the corporation.--- Article
187, GCCL.- The call to Meetings shall contain the agenda
and carry the signatures of the person(s) issuing same.---
In fact, these two articles shall not apply, since in
reading the minutes of the Meeting of December 23rd,
1994, it has been observed that the corresponding call was
not issued and, therefore, it is evident that the
resolutions adopted in same appear to be null and void,
situation which was not declared by the A quo judge, causing
an error to the appellant in not applying said articles in
relation to Art. 188 of the same ordinance, which in a
meridian manner indicates: Article 188, GCCL.- All
resolutions at a Meeting taken in violation of the
provisions of the two articles preceding, shall be null and
void, except in the event that at the time of voting, the
total number of shares are represented.- It is evident that
the error being discussed is admissible, in view of the fact
that the total number of shares were not represented,
principally because Mr. MORENO MOLINA, as already stated,
was subject to the express prohibition of the law of being
the attorney in fact of Mr. Hermiston or of any other
stockholder, his participation in the Meeting and
consequently the resolutions taken thereat, being null and
void; secondly, Mr. Pedro Villagrán Ochoa sold his shares
on the 22nd of December, 1994, that is, one day prior to the
alleged Meeting of December 23, 1994, for which reason the
capital stock was not represented in any part whatsoever.
The previous fact was not evaluated by the A quo judge, as
can be seen from the confession made by Mr. J. Pedro
Villagrán Ochoa in his own right and as the presumed
representative of Minera Summit de México, S.A. de C.V.. In
answering the lawsuit on Page 8 of said communication, he
stated: "This fact is partially true, since it is false
that FIDEL GONZÁLEZ gratuitously assigned to Mr. LEMAS the
stock rights of Mr. HERMISTON. What FIDEL GONZÁLEZ did,
in exercise of his powers, was to rescind the contract of
the assignment of stock rights entered into on the 22nd of
December, 1994 with Mr. Hermiston ...".- From this simple
transcription, it is apparent that Mr. J. PEDRO VILLAGRÁN
OCHO, in his own right and in his presumed representation of
Minera Summit de México, S.A. de C.V., confessed that on the
22nd of December, 1994, he sold his shares to the appellant
plaintiff, it being legally impossible to represent 51% of
the capital stock at the Meeting held on the 23rd of
December, 1994, situation which the A quo judge failed to
evaluate, causing an error against my principal. If he
had evaluated this proof in accordance with the
provisions of Article 1212 of the Commercial Code, he would
have concluded that said Meeting is null and void because it
was not attended by those persons who at that moment
represented the total or 60% of the capital stock required
in the incorporation, which Article 1212 of the Commercial
Code in effect establishes. Article 1212, Commercial Code.-
The confession made before a competent judge is judicial
in answering a lawsuit, or in answering
interrogatories.--- The A quo judge committed an error
against my principal in not taking into account the judicial
testimony given by Pedro Villagrán Ochoa in his own right,
and in his presumed representation of Minera Summit de
México, S.A. de C.V., in answer to the lawsuit, in view of
the fact that if he had evaluated same, it is evident that
he would have declared the nullity of the Meeting held on
the 23rd of December, 1994, which was justified because the
capital stock was not thereat represented by any person
whatsoever.--- SOURCE OF ERROR.--- The often cited sentence
constitutes a source of error dictated by the A quo judge in
Plenary Mercantile Lawsuit number 1/96, dated the 25th of
October of the year 2001 which on Page 29, "in fine",
indicates the following: Finally, taking into account that
Article 1327 of the Commercial Code establishes two points,
"the sentence shall exclusively cover the actions deduced
and the exceptions opposed, respectively, in the lawsuit and
the answer thereto", from which it is inferred that the case
in the plenary mercantile lawsuit is based on the facts on
which the plaintiff bases its action, expressed in its
initial complaint, and those on which the respondent bases
its exceptions; consequently, if the plaintiff bringing the
incidental action does not indicate the cause of the
pretended nullity in its incidental complaint, in this
respect it is unquestionable that it did not form part of
the case, so that aside from the fact that proof was offered
and contributed tending to demonstrate such facts, this
Judge is not obligated to study the matter nor the proof
submitted for that purpose, for which reason the analysis of
the different means of conviction offered by the incidental
plaintiff are omitted, of which the "CONFESSIONAL"
depositions were admitted, on the part of JESÚS PEDRO
VILLAGRAN GARCÍA, JESÚS PEDRO VILLAGRÁN OCHOA, RAÚL LEMAS
POMPA, FRANCISCO JAVIER MORENO and FIDEL GONZÁLEZ LEWIS, and
the DOCUMENTARY EVIDENCE consisting of the ASSIGNMENT
CONTRACT and public deed 6,329, volume 261, executed before
Attorney Rubén Díaz Vega; in view of the fact that to do so
would be contrary to the principle of congruity which must
prevail in all judicial resolutions.- LEGAL PROVISION
VIOLATED.- Article 1327 of the Commercial Code, as well as
Article 77 of the Code of Civil Procedures for the State of
Sonora have been violated because the supervening action
must be admitted inasmuch as the concept of the lawsuit is
also contained in its amendment, which is exercised once it
is known that a new supervening action exists; in the same
way that in the answer to the lawsuit, it is understood that
it is amended by means of a supervening exception. This,
because if we were to consider the contrary, it could be
concluded that the application of the supervening exception
provided in Article 1329 of the Commercial Code is not
correct, for which reason it was set forth in a
communication which is not the answer to the lawsuit, and
could not be studied in the sentence either.- In this same
order of ideas, it is possible to establish that the
suppletory application of Article 256 of the Code of Civil
Procedures for the State of Sonora is not contrary to the
rule of Article 1327 (?) of the Commercial Code, which does
not specifically contain a prohibition of suppletory
application of the subject numeral of the adjective law, but
only the features which any commercial lawsuit should have
at the time of dictating the sentence. Therefore, we must
conclude that the application of numeral 154 of the
Commercial Code is and must be applicable in a suppletory
manner, recurring to the provisions established by the civil
adjective law of the entity which, in its Article 156
provides the possibility that the parties, up to the time
prior to the corresponding sentence, can present themselves
within the same lawsuit to effect actions directly related
to the same business which have arisen from supervening
causes subsequent to the date of the lawsuit, so that the
contending parties can have the same opportunities of action
and defense. It must thus be concluded in a preponderant
manner that the legal figure denominated "supervening
action" is the legal power that the plaintiff party has to
provoke the action of judgment of the jurisdictional body
which is hearing the controversy, to decide with respect to
new litigation of interest, related to the prior litigation
of which it had no knowledge, because it had arisen
subsequent to the legal jurisdiction of the plaintiff.---
The A quo judge openly disobeys the sentence dictated by the
Second Unitary Court of this Fifth Circuit, which declares
the legal basis and admittance of said action. Therefore,
the sentence being appealed must be revoked, admitting the
proofs and taking into account the testimonies of the
respondents, Messrs. Jesús Pedro Villagrán García, Jesús
Pedro Villagrán Ochoa, Raúl Lemas Pompa, Francisco Javier
Moreno and Fidel J. González Lewis, and the documentary
evidence existing in the assignment contract and public deed
6,329, volume 261, executed before Attorney Rubén Díaz Vega.
in failing to do so, the A quo judge incurs in a reckless
manner in conduct aimed at causing irreparable damage
against me, the revocation of the appealed sentence being
therefore invalid.--- EIGHTH ERROR.--- The A quo judge who
caused my principal damage in indicating on Page 26 of the
sentence being opposed, "Under these conditions and taking
into consideration that Article 1194 of the Commercial Code
establishes that, "he who affirms is obliged to prove.-
Consequently, the plaintiff must prove his action and the
accused his exceptions", it is unquestionable that the
plaintiff had the obligation of proving that among the
powers granted to FIDEL J. GONZÁLEZ LEWIS, making donations
in his name and for his account was not included, which did
not occur in this case. This Judge is not unaware that in
communication received by this Court on the Twenty-second of
September, Nineteen hundred and Ninety-nine, said party
offered several means of proof. Nevertheless, such proof
was not admitted because his offer was made
extemporaneously, this determination being firm, by reason
of the fact that the Court of Appeals rejected the appeal
brought by the plaintiff against said determination.--- On
the other hand, it should be stated that it is unnecessary
to begin the study of the proofs submitted by the respondent
parties, FARALLÓN MINERA MEXICANA, S.A. DE C.V. and JESÚS
PEDRO VILLAGRÁN GARCÍA, based on the fact that the plaintiff
did not prove their actions, reason for which the actions
exercised by the plaintiff referred to in this "CONSIDERING"
are declared unfounded and inadmissible, resolving that the
respondents are absolved from payment of the benefits
claimed in the lawsuit. Of course, this causes injury in
view of the fact that he failed to correctly apply the
provisions of Article 266 of the Code of Civil Procedures
for the State of Sonora, as well as Articles 1324 and 1327
of the Commercial Code, which to the letter, state: Article
266.- The proof must be offered in relation to the points
of the lawsuit or answer which serve to demonstrate the
facts. The offer will be made complying with the requisites
that this Code indicates, especially with respect to each of
the different means of proof.--- I.- (...). II. The
documents and proofs that accompany the lawsuit and
answer and any additional communications, shall be
accepted as evidence, although the parties do not offer
same.--- As can be seen in the previous transcription, the
article invoked provides that the official judge must
consider each and every one of the proofs offered by the
respondent party, inasmuch as these are fundamental to
adequately resolve the business under discussion.
Therefore, it is obviously an infringement of the provisions
of the adjective law of this free and sovereign state, that
the Third District Judge in the court files reasons
incorrectly in not considering it necessary to study the
evidence offered by the respondent, which is fundamental on
this matter for an adequate and correct application strictly
adhering to law; accordingly, in conclusion, we must state
that it is imperative that for an adequate and accurate
resolution it is necessary that the evaluation of the proofs
be made by the judge in its entirety.--- "Novena Época".
Instance. Second Circuit Court in Labor Matters of
Associate Justices in Labor Matters.- Source: Judicial
Weekly of the Federation and its Gazette. Tome: VIII,
October, 1998.- Thesis: II.T.19 K - Page 1195.- PROOFS,
JUDGMENT OF.-... (Transcription of thesis).--- As can be
seen from the previous thesis, the judge is obligated to
provide a logical argument by means of which it proves or
rejects each of the proofs in accordance with what the
parties pretend to prove in offering same. It is evident,
therefore, that the Third District Judge did not make said
evaluation and the evidence offered by the parties to
accredit both actions as well as exceptions was left
unestimated.--- Article 1324.- All sentences must be based
on the law and if neither by its natural sense or by the
spirit of the law can the controversy be decided, these
shall be resolved in accordance with the general principles
of law, taking all of the circumstances of the case into
consideration.--- As set forth in the previous legal
precept, in the first place the judge must base its decision
by strictly adhering to Law or, as the case may be, based on
the nature and spirit of the case being judged or founded on
the general principles of law, in addition to taking each
and every one of the circumstances of the case into
consideration. In this case in particular, the judge
directly violates these legal precepts in not applying in a
correct manner the provisions invoked in the Commercial
Code, in not considering it necessary to evaluate the proof,
and by not reasoning coherently based on the proof offered
by the parties. Therefore, it is apparent that his decision
lacks cohesion in not providing the proof offered both by
the plaintiff as well as the respondents with its exact
value. --- Article 1327.- The sentence will be directed
exclusively to the actions deduced and the exceptions
opposed, respectively, both in the lawsuit and in the
answer.--- As can be seen in the often cited article, the
judge is obligated to specify the facts on which it founds
its decision, based on the evidence contained in the files.
Thus, the judge at all times and by reason of his knowledge
of Law, must evaluate the proof offered by both parties in a
precise manner, with strict adherence to Law, and not argue
in a manner, as I already stated, totally detached from Law,
i.e., not considering that it is necessary to study the
evidence offered, failing to apply the aforementioned
precepts in a logical and legal manner, and violating the
rules serving to adequately impart justice.--- "Novena
Época". Instance. Second Court of Associate Justices of
the Fifteenth Circuit.- Source: Judicial Weekly of the
Federation and its Gazette. Tome: 83, November, 1994.-
Thesis: XV-2nd.J/10.- Page 78.- PROOF, LACK OF EVALUATION
OF, IN VIOLATION OF GUARANTIES.---- (Transcription of
thesis).--- As may be observed from the thesis previously
transcribed, in abstaining from correctly evaluating the
proof, the judge violates constitutional precepts containing
individual guaranties, for which reason his performance is
in violation of the principle of evaluating the proof and
the individual guaranty to a hearing. This is because he
omitted a study of the proofs submitted by the parties
which, in our understanding, are fundamental in the case
under discussion.--- NINTH ERROR.- With respect to the
sense of the sentence, pursuant to Section 1, Article 1084
of the Commercial Code, the plaintiff is condemned to pay
the respondents, MINERA SUMMIT DE MÉXICO, S.A. DE C.V.,
FARALLÓN MINERA MEXICANA, S.A. DE C.V., FRANCISCO JAVIER
MORENO MOLINA, PEDRO VILLAGRÁN GARCÍA, JESÚS PEDRO VILLAGRÁN
OCHOA, KILBY DANIEL BRUCE, and THE PUBLIC REGISTRY OF
MINING, who answered the lawsuit against them, the expenses
and costs incurred in the procedures of the present lawsuit,
after having been established by means of the corresponding
incidental procedure.--- Such expenses and costs are
unwarranted because the actions of my principal are totally
feasible because their purpose is to seek the protection of
our legislation and such actions do not incur in any of the
assumptions of the sections of Article 1084 of the
Commercial Code, since my principal submitted the necessary
proofs to the judge to justify his action, in addition to
presenting the facts which are fully linked to the proof
provided, recorded in the court files.--- For this reason,
the judge caused injury to my principal by incorrectly
applying Article 1084 of the Commercial Code, which as
demonstrated in the legal bases of the preceding injuries,
Mr. David Hermiston accredited the basis for the compliant.-
--"
4th.- The items of injury stated by Attorney
Antonio Collado Mocelo, legal attorney in fact for lawsuits
and collections of DAVID LESLIE HERMISTON CHESTER are not
subject to study, for the following reasons:
According to the Mexican Legal Dictionary, edited
by the "Institute of Legal Research" of the National
Autonomous University of Mexico, Tome P-Z, Page 2524,
procedural circumstances are the requirements or conditions
which must be fulfilled for the valid initiation or
development of a proceeding or, as pertinent, to make a
pronouncement on the question of law.
If such requirements are not met or are put
together in a defective manner within the proceeding, the
proceeding, as well as the procedural legal relationship,
shall be considered invalid, which prevents the Court from
giving its opinion on the question of law of the
controversy.
Both in civil and commercial procedures, matters
on which the aforesaid procedural requirements have been
established relative to the validity of the proceeding, such
are related to the procedural exceptions, in virtue of the
fact that these are the means through which the absence of
the conditions, antecedents or (illegible .......) cited can
be objected.
Nevertheless, inasmuch as the procedural legal
relationship is of a public nature, not only through the
exceptions can the absence or the defects of procedural
requirements be established.
In effect, Article 48 of the Code of Civil
Procedures for the State of Sonora, of suppletory
application to commercial matters, provides that the
respondent may renounce the judge and assert the procedural
requirements necessary for the lawsuit to have legal
existence and formal validity as exceptions, but also, the
judge itself has the authority to enforce or officially
amend, without a request from the party, any deficiency
found in such requisites.
In this manner, an incorrect interpretation of the
provisions of said article, in relation to the varied
article 388, Sections II and III, of the ordinance cited,
allows us to conclude with respect to the procedural
requirements, that this Court must not be limited
exclusively to the errors stated by the appellant, but
rather because of the failure to remand, it is authorized to
examine that aspect in its entirety and with full
jurisdiction, adopting considerations other than the
opposing exceptions and defenses.
In support of the above, and to illustrate the
thesis of jurisprudence 96/2001, formed as a result of the
contradiction of thesis 29/2001 PS, which states: "ACTION,
THE PROCEDURAL REQUIREMENTS AND ELEMENTS THEREOF, MUST
BE ANALYZED OFFICIALLY BY THE COURT OF APPEALS, IN THE
TERMS OF ARTICLE 87, LAST PARAGRAPH, OF THE CODE OF
CIVIL PROCEDURES OF THE STATE OF JALISCO (IN FORCE AS
OF THE FIRST OF MARCH, NINETEEN HUNDRED AND NINETY-
FIVE).- Although it is true that in accordance with the
criteria sustained by the former Third Chamber of the
Supreme Court of Justice of the Nation, as a general rule,
the Court of Appeals must be limited exclusively to the
examination of the injuries, actions, exceptions or defenses
which were opportunely asserted in the first instance, and
as refers to studying the lack of basis for the action, such
examination can only begin, provided that in the list
of charges submitted for its consideration, the
corresponding disagreement is made known. It is also true
that said rule is not currently applicable in the State of
Jalisco in the case of lawsuits initiated after the First of
March, Nineteen Hundred and Ninety-five, date on which the
current text of Article 87, last paragraph of the Code of
Civil Procedures for that federal entity, came into effect,
based upon which the Court of Appeals acts in strict
adherence to the Law when studying the procedural
requirements and the elements of the action intended in an
official form, even in the absence of injuries and
exceptions. The above is so because a straight
interpretation of the provisions in the article cited, in
relation to various numerals of articles, 430 and 443, of
the subject ordinance, must be in the sense that the "ad
quem" is not constrained exclusively to carry out its
study based on the injuries which to that effect could be
expressed by the appellant, but rather as the reviewing body
and because of the lack of remanding, it is authorized to
entirely examine those aspects, with full jurisdiction,
resolving what is pertinent, even based on its own
considerations which may be other than the opposing
exceptions and defenses."
It is also justified to cite the thesis shown on
Page 109, Tome III, Second Part 1, January to June, 1989, of
the
Judicial Weekly of the Federation: "APPEALS IN CIVIL
MATTERS. THE PROCEDURAL REQUIREMENTS MUST BE
OFFICIALLY STUDIED." Although no error has been committed
in this respect, if the responsible party states that the
civil lawsuit contained various defects, which prevented
carrying out the study of the question of law of the matter,
it results that regardless of the name given to those
deficiencies, we are in the presence of procedural
requirements, such to be understood as the requisites
necessary so that the necessary legal steps can be taken to
efficiently initiate a civil proceeding and, in the case of
a matter of public order, the judicial authorities were
authorized to officially study the matter."
Thus, the analysis of the evidence of the
procedure, permits us to know that DAVID LESLIE HERMISTON,
by means of a communication presented at the Civil Reports
Clerk's Office of the District Courts situated in
Hermosillo, Sonora, filed a Plenary Mercantile Lawsuit
against MINERA SUMMIT DE MÉXICO, S.A. DE C.V., FARALLÓN
MINERA MEXICANA, S.A. DE C.V., FRANCISCO JAVIER MORENO
MOLINA, RAÚL FERNANDO LEMAS POMPA, PEDRO VILLAGRÁN GARCÍA,
JESÚS PEDRO VILLAGRÁN OCHOA, KILBY DANIEL BRUCE, FIDEL J.
GONZÁLEZ LEWIS, THE PUBLIC REGISTRY OF MINING and the PUBLIC
REGISTRY OF PROPERTY AND COMMERCE OF THE JUDICIAL DISTRICT
OF HERMOSILLO, SONORA, for the following benefits, among
others:
A) Court Order of Annulment of the power of
attorney granted on the Sixteenth of November, Nineteen
Hundred and Ninety-two by DAVID LESLIE HERMISTON, in the
name of FRANCISCO JAVIER MORENO MOLINA, to represent him in
each and every one of his actions at the Meetings held of
the firm denominated, MINERA SUMMIT DE MÉXICO, S.A. DE C.V.,
and as a consequence thereof:
1).- Court Order of Annulment of all of the
agreements or resolutions taken at the Stockholders' General
Regular(1) Meeting of MINERA SUMMIT DE MÉXICO, S.A. DE C.V.,
held on the Twenty-third of December, Nineteen hundred and
ninety-four, in particular the annulment of the appointment
of the Sole Administrator, in the name of PEDRO VILLAGRÁN
GARCÍA, as well as the annulment of the powers and authority
conferred on said person as a consequence of that
appointment, and further, the annulment of the penalty of
Two million dollars to be covered by the subject firm or its
stockholders in the event of an extemporaneous allegation
with respect to the appointment of the Sole Administrator;
the minutes relative to the Meeting in question were
notarized on the Fifteenth of June, Nineteen hundred and
ninety-five, in public deed number 6,010, Volume 242,
executed and attested to before Attorney Rubén Díaz Vega,
Notary Public number Thirty-two, exercising and residing in
Hermosillo, Sonora.
2).- Court Order of Legal Nonexistence, due to a
lack of consent on the part of MINERA SUMMIT DE MÉXICO, S.A.
DE C.V. of the contract dated the Eleventh of January,
Nineteen hundred and Ninety-six, relative to the option with
respect to the exclusive right of the firm, FARALLÓN MINERA
MEXICANA, S.A. DE C.V. to acquire one hundred percent of the
rights of the mining concessions for the exploitation of
"CAMPO MORADO" and "LA ALIÑA", under title numbers 201017
and 100644, respectively, property of MINERA SUMMIT DE
MÉXICO, S.A. DE C.V., contract which was signed and ratified
by the parties in Mexico City, Federal District, on the
Twenty-sixth of January, Nineteen hundred and Ninety-six,
in public deed number 70,858, Book 1030 of the notarial
records of Francisco Javier Arce Gargollo, Notary Public
number Seventy-fourth of the Federal District.
3).- Cancellation of the registrations made of
said acts at the PUBLIC REGISTRY OF PROPERTY AND COMMERCE OF
THE JUDICIAL DISTRICT OF HERMOSILLO, SONORA, under 11,652,
Book One, Volume 49, Commercial Section, and THE PUBLIC
REGISTRY OF MINING, number 152, Page 124, front and back,
Volume Three of the Book of Mining Acts, Contracts and
Agreements.
B).- Annulment of the resolution taken at the
Stockholders' General Regular(1) Meeting of MINERA SUMMIT DE
MÉXICO, S.A. DE C.V. consisting in the appointment of JESÚS
PEDRO VILLAGRÁN OCHOA, as General Attorney in Fact for
Lawsuits and Collections, Acts of Administration and
Ownership of the subject mining company, contained in
Transitory Clause Fifth of the Articles of Association of
MINERA SUMMIT DE MÉXICO, S.A. DE C.V., in Public Deed number
four thousand nine hundred and ninety-two, Volume one
hundred eighty-four, of the Thirteenth of October, Nineteen
hundred and Ninety-two, of the notarial records of Attorney
Rubén Díaz Vega, Notary Public number Thirty-two exercising
in the City of Hermosillo, Sonora.
C).- Court Order of Legal Nonexistence, due to a
lack of consent on the part of MINERA SUMMIT DE MÉXICO, S.A.
DE C.V.
of the general powers of attorney for Lawsuits and
Collections, and Acts of Administration of that firm,
granted by JESÚS PEDRO VILLAGRÁN OCHOA to KILBY DANIEL BRUCE
and RAÚL FERNANDO LEMAS POMPA, contained in public deeds
number Six thousand four hundred, Volume Two hundred and
sixty-two, dated the Twenty-seventh of March, Nineteen
hundred and ninety-six, and number Six thousand three
hundred twenty-six, Volume two hundred and fifty-eight,
dated the Third of January, Nineteen hundred and ninety-six,
respectively, both of the notarial records of Attorney Rubén
Díaz Vega, Notary Public number Thirty-two exercising and
residing in Hermosillo, Sonora.
D).- As a consequence of the above, the
cancellation of the registration of said powers before the
PUBLIC REGISTRY OF PROPERTY AND COMMERCE OF THE JUDICIAL
DISTRICT OF HERMOSILLO, SONORA, under number (illegible),
Book One, Volume 51, Commercial Section, and number 12,126,
Book one, Volume 71, Commercial Section, respectively.
The same analysis of evidence reveals that the
Third District Judge of the State of Sonora resolving the
case, exercised the previously specified actions of nullity
and nonexistence and accredited the legitimacy both of the
procedure as well as the causes on the part of the
contending parties, and once noted, the action was exercised
by DAVID LESLIE HERMISTON, natural person to whom the Law
grants legal capacity for such an act against individual and
corporate persons, the latter against whom the actions could
be exercised having appeared at the proceeding through the
conduct of the persons authorized to do so, for which
reason, at that moment the judge dictated the corresponding
final sentence.
In accordance with the provision of Article 3rd.
of the Code of Civil Procedures for the State of Sonora, of
suppletory application to the Commercial Code, in the terms
of Article 1054 of the latter body of rules, the observance
of procedural rules is of the public order, and
consequently, for the processing and resolution of the
matters before the courts, said courts are inevitably
obligated to observe the precepts of the often cited legal
order, without any agreement on the part of the interested
parties to waive the right of recusation or to alter or
modify the other essential rules of procedure.
Based on the foregoing, it follows that if
pursuant to the rules making up Book First, Title First,
Chapter First of the aforesaid Code of Civil Procedures in
order to enforce an action being tried, it is indispensable
to bring suit before a competent judge, but not only that,
for this purpose there must also be legal interest, as well
as from whom the claim is being made, so that it be
condemned to comply with certain benefits; that the
existence or nonexistence be declared of a legitimate
interest protected by law, or a fact, act, or legal
relationship, or the authenticity or falseness of a
document, the establishment, modification or extinction of a
legal state or situation, to retain or make restitution of a
possession to any person to whom a certain thing or things
belong. This, without prejudice to the fact that Articles
61 and 69 of the same code establish the authority of the
judge, so that in those cases in which any of the parties,
who may have some legal prejudice as a consequence of the
sentence which is dictated in a certain proceeding, have not
been previously called to trial, the judge may do so, even
in an unofficial manner, for the purpose of duly integrating
the litigation, so that the sentence pronounced may have the
effect of a matter decided (res judicata) against all
interested parties who form part of the procedure.
Accordingly, if the juridical acts whose nullity
or nonexistence as actions intended by the plaintiff party,
specified at the beginning of the present "CONSIDERING",
are contained in the indicated public deeds, numbers 6010,
4992, 6400 and 6326, entered into the notarial records of
Attorney Rubén Díaz Vega, owner of record of Notary Public
number 32, exercising in this city, and under notarial
record number 70858 of Attorney Francisco Javier Arce
Gargollo, Notary Public number 74, exercising and residing
in the Federal District, the sentence which in the capacity
of "matter decided" (res judicata) is dictated with respect
to the intended actions, also affects the public deeds of
probative value, whereas those legal acts of which the
nullity and nonexistence is pretended were therein
certified; since from the moment that the action was
exercised, it was intended to change a legal situation which
was sanctioned with the notary public's certification, it is
unquestionable that in the registration of such acts, the
acting notaries public must be given a reasonable
opportunity to be heard in their defense, this being a
constitutional requirement, as concretely referred to in the
provisions of Article 24 of the Fundamental Charter of the
Union, due to the fact that, in this case, the sentence
which was dictated in the lawsuit, obligates them to
make the respective annotations in the act relative to its
registration, even if the nullity of the relative public
deeds had not been specifically requested, because if in the
last instance, the nonexistence or nullity of those acts
contained in the aforesaid public deeds were to be declared,
as a logical legal consequence, such deeds must be left
without effect, the above mentioned notaries public also
canceling their effects.
In this context, if in this case the plaintiff
party corrected its lawsuit, directing it solely against
those parties who participated in the acts related at the
beginning of this "CONSIDERING" and the parties in charge of
THE PUBLIC REGISTRY OF MINING and the PUBLIC REGISTRY OF
PROPERTY AND COMMERCE OF THE JUDICIAL DISTRICT OF
HERMOSILLO, or in the same manner, the respondents were
named, without bringing suit against the notaries public who
certified those acts, it is evident that the judge of the
first instance should have noted that in the matter at hand
an assumption of a necessary passive joinder was
applicable and that one of the parties, of which the
notaries public form part, who could resent the effects of
the sentence to be issued, had not been specified as
respondents nor were they called to the proceeding.
Accordingly, the judge was not only authorized but indeed
obligated, even in an unofficial capacity, to take the
measures necessary for the purpose of having them included
or called to trial, with the object of duly integrating the
juridical-procedural relationship. Nevertheless, this did
not occur, and therefore, considering the possibility of
putting into effect a necessary passive joinder and the
obligation on the part of the judge to call to trial all
those parties who might resent the sentence, it should not
have been issued until such requisite had been duly
fulfilled, since this was one of the procedural requirements
instituted by Law as necessary for the legal existence and
formal validity of the procedure. It is strange, therefore,
that when the nonexistence and nullity of the aforesaid
legal acts was claimed in the lawsuit, that this should
appear in the public deeds indicated. The failure to call
the Notaries public who certified said acts to trial,
represented
an insurmountable obstacle for the judge, who was prevented
from admitting the action of nonexistence of the legal acts
exercised and, as a result, consequently resolve, as is
insisted, whether he called the notaries public in question
to trial, and in spite of this issuing the corresponding
sentence. With his behavior, irregular without a doubt, and
of course, illegal, he violated the essential rules
applicable to the procedure, in prejudice of the parties,
precisely because this constitutes not only the power but
also the inevitable obligation of the judge, to analyze the
proper integration of the juridical-procedural relationship
and verify that all of the participants of the necessary
passive joinder are called to trial. If he did not do so,
as in effect occurred, under no circumstances should he have
pronounced the final sentence of the case, primarily because
not only the persons participating in the acts claimed, but
also the notaries public who notarized same, are linked to
the legal relationship generated by the intended action.
Thus, it is not possible to declare the legal basis or lack
of basis of the nullity or nonexistence of those acts
without giving said notaries the opportunity of asserting
their rights, but principally so that they will be legally
bound by the sentence, its pronouncement having no value
with respect to the plaintiff and the respondents without
considering the notary public who certified such acts, the
obligation of the A quo judge to exercise the authority held
to call them to trial being unpostponable, even officially,
for the proper integration of the legal relationship. If he
did not do this, the legal rules which have been mentioned
have been violated.
On this point, more than enlightening is the
thesis of jurisprudence number I.3rd.C J/6, published by the
Third Court of Associate Justices of the First Circuit in
Civil Matters, on Page 519, Tome III, of "Novena Época",
May, 1996, in the Judicial Weekly of the Federation and its
Gazette, containing: "NECESSARY PASSIVE JOINDER, WHEN
OCCURRING, IS THE OBLIGATION OF THE COURT TO
DILIGENTLY ANALYZE WHETHER ALL OF THE PARTICIPANTS
THEREOF HAVE BEEN CALLED TO TRIAL. When a third party
claims the nullity of a purchase and sale as well as of the
deed in which it was registered, without bringing suit
against the person who appears as the seller, nor against
the notary public who realized the notarization, regardless
of the legal figure of the necessary passive joinder, a
sentence declaring the nullity thereof cannot be dictated
because all of the parties who have an interest therein have
not been called to trial, since the seller and buyer, as
well as the notary, are linked in the legal relationship
which generated the contract and its notarization, for which
reason it will not be possible to decree the nullity only
with respect to the buyer, the only person to be called to
trial; consequently, the opportunity must be given to all
parties to participate in the trial, so that they may thus
present the pertinent defenses and be legally bound by the
sentence to be dictated on the matter; should the sentence
be pronounced in relation to one person only, the sentence
shall have no value in itself, nor would it legally resolve
the lawsuit. These circumstances lead us to the
consideration that the Court of Appeals may officially
analyze whether the participants of the necessary passive
joinder were called to trial, in order to resolve whatever
is pertinent, even when nothing is argued on the matter in
the Errors."
Furthermore, the thesis of jurisprudence number
III.3rd.C J/10, issued by the Third Court of Associate
Justices of the Third Circuit in Civil Matters, published on
Page 49, Tome 79, of "Octava Época", corresponding to the
month of July, 1994, in the Judicial Weekly of the
Federation, on this point resolved: "NECESSARY PASSIVE
JOINDER, MUST BE OFFICIALLY STUDIED". Whether as
referred to in the doctrine, "the necessary passive joinder
although not expressly established by Law, is applicable in
the following cases: When constitutive actions are
exercised with the object of establishing a new status of
laws which may only legally exist in relation to various
persons: when a suit is brought for ... the nullity of
agreements made by several persons ..." ("Diccionario de
Derecho Procesal" [Dictionary of Procedural Law]), Eduardo
Pallares, Fourth Edition, 1963, Page 504), it is
unquestionable that the case in which the request for
annulment of an agreement (of purchase and sale) arranged
between various parties, without hearing one of them, fits
that figure exactly. Afterwards, if the principal effect of
the necessary passive joinder is that there may only be one
sentence for all of the joint litigants, it is clear that it
is possible for the Court of Appeals to officially realize
the corresponding examination.
In view of this situation, since the A quo judge
was not aware of the application of the necessary passive
joinder of the case, and in not considering this factor, the
judge pronounced the final sentence of the Court of Appeals,
without taking into account the fact that the various
Notaries Public who notarized the acts in which the recourse
of nullity and nonexistence had been intended, were not
specified as respondents nor were they called to trial; in
spite of there being legal interest in the result of the
action of the subject nonexistence and nullity exercised, it
is clear that the judge violated the measures instituted in
Articles 3rd, 61 and 69, as well as the various provisions
contained in Book First, Title First, Chapter First of the
Code of Civil Procedures for the State of Sonora, suppletory
in commercial matters, as well as Articles 337, 338 and 340
of the same procedural ordinance, causing damage to the
contending parties, and particularly to the notaries public
who were not called to trial. Therefore, in accordance with
the rules of the jurisprudential theses transcribed, this
court of appeals has the authority to carry out the
corresponding analysis and call to trial the notaries public
mentioned, precisely because they have a legal interest and
passive legitimation in the proceeding for annulment of a
legal act which they have notarized, taking into account
that should the action be in order, they must make the
corresponding notations in their notarial records, without
prejudice to the fact that in some cases their performance
implies responsibility, as determined by the highest Court
of the Union when structuring jurisprudential thesis 3a./J.
65 15/90, published on page 233, Tome V, First Part,
"Octava Época", Third Chamber, corresponding to the issue
of January to June, 1990, in the Judicial Weekly of the
Federation, which states: "NOTARY PUBLIC, HAS PASSIVE
LEGITIMATION IN THE PROCEEDING FOR ANNULMENT OF A DEED
EXECUTED BEFORE SAME." When the annulment of a public
deed is requested, the notary public before whom it was
executed must necessarily intervene, since in the event that
the action is according to law, the Notary must make the
respective notation in his notarial records and because, in
addition, in some cases his performance is coupled with the
responsibility, due to either fraudulent or guilty conduct".
As a consequence of the foregoing, to repair the
legal damage caused, it is imperative to revoke the final
sentence sent to the Court of Appeals, and for the same
reason, to leave his decisions without justification for the
purpose of reserving or holding the rights of the parties
harmless so that they can be asserted as corresponds,
according to Law and their legal interests. This
necessarily implies that the plaintiff shall prepare a new
lawsuit in which he names as respondents all of the persons
who may be affected by the decision pronounced, or in the
same manner, again exercises his actions and includes
as respondents both the persons who participated in the
performance of the legal acts of which he pretends
the nullity and nonexistence, as well as the notaries
public who certified the acts and executed the deeds
containing same.
In this regard, in support of the previous
conclusion, the thesis of jurisprudence applicable, which
resolved the Contradiction of Thesis 76/2000, issued by the
First Chamber of the highest court of the Federation,
published on Page 61, Tome XIV, corresponding to the month
of December, 2001, "Novena Época" of the Judicial Weekly
of the Federation and its Gazette, in this matter resolved:
"NECESSARY PASSIVE JOINDER, THE CONSTITUTIONAL
PROTECTION GRANTED TO A JOINT LITIGANT WHO WAS CALLED
TO TRIAL AND WHO IMPUGNED THE FACT THAT ANOTHER PARTY
WAS NOT SUMMONED, SHOULD BE FOR THE EFFECT THAT THE
SENTENCE CLAIMED BE LEFT NULL AND VOID AND THE
AUTHORITY RESPONSIBLE DICTATE A NEW RESOLUTION IN
WHICH THAT OF THE FIRST INSTANCE BE REVOKED, RESERVING
OR HOLDING THE RIGHTS OF THE PARTIES HARMLESS.-
Pursuant to the provisions of Article 80 of the Law to
Guarantee Constitutional Rights, the sentence granting
constitutional protection shall have the effect of restoring
to the injured party full enjoyment of the rights of
individual guaranty violated, reestablishing things to the
status existing prior to the violation. In this regard, if
it is the joint litigant who was called to trial who invokes
such protection and impugns that another person - who enjoys
that capacity - was not called to trial, the effects of the
protective decision are that the sentence claimed be left
without effect and that the responsible authorities dictate
a new resolution in which that of the first instance is
revoked, reserving or holding the rights of the parties
harmless."
Pursuant to the foregoing statements and facts, it
is resolved that:
UNIQUE.- The final sentence of the Twenty-fifth of
October, Two thousand and one, pronounced by the Third
District Judge of the State of Sonora, contained in the
court files of Plenary Mercantile Lawsuit number 1/96,
(nullity and nonexistence of legal acts), brought by DAVID
LESLIE HERMISTON CHESTER against MINERA SUMMIT DE MÉXICO,
S.A. DE C.V. and FARALLÓN MINERA MEXICANA, S.A. DE C.V. and
FRANCISCO JAVIER MORENO MOLINA, RAÚL FERNANDO LEMAS POMPA,
PEDRO VILLAGRÁN GARCÍA, JESÚS PEDRO VILLAGRÁN OCHOA, KILBY
DANIEL BRUCE, FIDEL J. GONZÁLEZ LEWIS, THE PUBLIC REGISTRY
OF MINING and the PUBLIC REGISTRY OF PROPERTY AND COMMERCE
OF THE JUDICIAL DISTRICT OF HERMOSILLO, SONORA, each and
every one of his decisions be left null and void, holding
the rights of the parties harmless so that they can be
asserted as corresponds, according to Law and their legal
interests.
NOTIFY PERSONALLY TO THE PARTIES at the domiciles
indicated to that effect, and once the foregoing has been
done, remit evidence of this resolution and its
notifications to the Third District Judge in the State of
Sonora, located in this city, as well as of Plenary
Mercantile Lawsuit number 1/96, consisting of four tomes and
three notebooks of proofs; effect the corresponding
notations in the book of government and statistics,
opportunely filing the case as a matter concluded.
Resolved and signed by the Civil Court Judge of
the First Unitary Court of the Fifth Circuit, Attorney Elsa
del Carmen Navarrete Hinojosa, before the Court Records
Office which authorizes and attests thereto.-
(Illegible signatures).
(In the upper left, seal of the National Emblem of Mexico, surrounded by the words, "ESTADOS UNIDOS MEXICANOS" (UNITED MEXICAN STATES), and underneath, "PODER JUDICIAL DE LA FEDERACIÓN" (JUDICIAL POWER OF THE FEDERATION). THE UNDERSIGNED, COURT RECORDS CLERK OF THE
FIRST UNITARY COURT OF THE FIFTH CIRCUIT, ATTORNEY ROSA MARÍA SANDOVAL ROMO, DO HEREBY CERTIFY AND RECORD: THAT THE PRESENT COPY IS A FAITHFUL DUPLICATE OF ITS ORIGINAL WHICH I HAVE SEEN, AND WHICH I HEREBY ISSUE BY JUDICIAL MANDATE ON THIRTY-TWO PAGES, DULY SEALED, COMPARED AND INITIALED, TO BE DELIVERED TO ATTORNEY FRANCISCO JAVIER VALENCIA DÍAZ, HERMOSILLO, SONORA, TWELFTH OF APRIL OF TWO THOUSAND AND TWO.
COURT RECORDS CLERK (Illegible signature) ATTY. ROSA MARÍA SANDOVAL ROMO (To the left, seal of the National Emblem of Mexico, surrounded by the words, "ESTADOS UNIDOS MEXICANOS" (UNITED MEXICAN STATES), and underneath, "PRIMER TRIBUNAL UNITARIO DEL QUINTO CIRCUITO EN HERMOSILLO, SONORA" (FIRST UNITARY COURT OF THE FIFTH CIRCUIT OF HERMOSILLO, SONORA). ............................................................. I, Francisco J. Laguardia, Certified Public Translator, authorized by the Honorable Superior Court of Justice of the Federal District and duly acknowledged by the Embassy of Canada in Mexico, do hereby certify that the translation preceding, consisting of 69 pages, is a true and authentic version of the original in Spanish, which I have translated to the best of my knowledge and understanding. Mexico City, Federal District, 8th of May, 2002.