[ G.R. No. 4338. December 02, 1907 ] 9 Phil. 279
[ G.R. No. 4338. December 02, 1907 ]
ALFRED B. JONES, PETITIONER, VS. J. E. HARDING, CHIEF OF THE MANILA POLICE, ET AL., RESPONDENTS. D E C I S I O N
TORRES, J.:
On a certain day in the month of December, 1906, the exact date whereof is not stated, Mariano Cauilan, Francisco Cauilan, Maria Asuncion Maggay, and Maria Maggay, through their attorney in fact, Robert S. MacDougall, sold and conveyed to Fred. W. Prising eight-fifteenths of their interest in the hacienda named “Calabbacao,” situated between the towns of Cordoba and Amulung, Province of Cagayan, without entering in the registry of property the deed of sale executed between the contracting parties. Until the 22d day of March of the present year Domingo Maggay, who owned two-fifteenths of the undivided land which forms the said hacienda, had no knowledge of the sale made by his coowners therein to said Prising, and for this reason on the 25th of April following he filed a petition with the Court of First Instance of Cagayan asking that the aforesaid vendors and vendee be summoned and required to state the conditions under which the sale was made, the total price paid by the vendee, the amount of the expenses of the contract, or any lawful expenditure incurred on account of the sale and useful improvements on the thing sold; and that after such statement the plaintiff be authorized to redeem, as coowner, the said eight-fifteenths interest in the aforesaid property the plaintiff to be subrogated to the same conditions stipulated between the purchaser and the defendant vendors, and that judgment be entered against the latter with costs and for any other proper remedy under the law, and to such purpose he cited article 1522 of the Civil Code. The plaintiff alleged that on the 27th of March, 1907, as he was not aware of the terms and conditions of the said purchase and sale, he availed himself of the services of a notary public in order to request the purchaser, Prising, to state the conditions of the contract and the consideration for the sale and amount of expenses in connection therewith or any other expenditure for lawful and useful purpose made on the thing sold, but the defendant, Prising, absolutely refused to answer the questions put to him, and for said reason the plaintiff’s attorney in fact made a written offer to Prising, the purchaser, of the total amount paid by him as consideration for the purchase and the lawful and useful expenses incurred by him, demanding that the defendant be subrogated by Domingo Maggay in the said contract, but the said defendant, Prising, declined the offer and refused to produce a copy of the contract, which MacDougall also refused to do, and upon the latter?s principals being requested likewise, they replied that they were entirely ignorant of the conditions of the contract and that they had never seen a copy of the same.
At this juncture and while the action was pending in the Court of First Instance of the said province, the attorneys for the plaintiff applied to the Hon. Judge Newton W. Gilbert, who presides in Part I of the Court of First Instance of Manila in order that he, as the commissioner named by the judge of the Court of First Instance of Cagayan, should take depositions of Attorneys J. Courtney Hixson and Alfred B. Jones, residents of Manila, as necessary and important witnesses whose testimony was to be made use of in the said litigation, but when the said Jones and Ilixson were questioned separately, after letting them know that Prising had stated that the three promissory notes signed by N. T. Hashim & Co., each for the sum of P30,000, had been delivered to them for safe-keeping and collection, Attorney Ilixson having actually received the same, Attorney Alfred B. Jones objected thereto, stating that the question could not be answered because it referred to a privileged communication, and were he to answer same, the secret which existed between the deposing attorney and his client, Prising, would be divulged. The judge over-ruled the objection and ordered that the question be answered, to which Attorney Jones said that everything he knew in the matter of the said promissory notes was inviolable by virtue of the provisions of section 31 of the Code of Civil Procedure.
The judge said in his decision that Prising, the client, by making the statement waived the secret, if any, and that therefore the attorney could not refuse to answer.
Attorney Jones alleged that his client wras compelled to testify in the manner in which he did, and that if the respondent were to do so the secret of his client would be divulged, and therefore, with all due respect, he declined to answer.
Thereupon the judge, by his order dated October 9 last, hold that the witness was guilty of contempt and ordered his arrest until such time as he answered the question put to him.
In view thereof, Attorney Alfred B. Jones applied for a writ of habeas corpus in order that the order for his arrest might be set aside and his liberty directed, alleging that he was unlawfully deprived of liberty because the said judge of the Court of First Instance had no jurisdiction to order his arrest, and that in so doing he (the judge) violated the “Philippine bill” and the general laws in force in these Islands, he (Jones) having been arrested without due process of law, and that the said judge had exceeded the limit of his powers, as the supposed crime of contempt had not been made the subject of an information or of a complaint filed with the Court of First Instance.
If properly appointed, it can not be denied that the Hon. Judge Gilbert had the powers of a commissioner, and being deputed by another judge, had jurisdiction to take depositions of witnesses in accordance with the provisions of sections 355, 356, and 361 of the Code of Civil Procedure.
As such commissioner the said judge could order the issue of a subpoena as provided by section 366, and at the trial, or when the witness is on the stand, the judge-commissioner has authority to act in accordance with the provisions of section 408 of the Code of Civil Procedure, which reads:
“Disobedience to a subpoena or refusal to testify.—Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt by the court or officer issuing the subpoena, or requiring the witness to be sworn, and, if the witness be a party, his complaint or answer may be stricken out.”
Attorney Alfred B. Jones having refused to answer the questions put to him as to whether or not he and his partner, Hixson, had received the three aforesaid promissory notes which Prising affirmed had been delivered to them, in which refusal he persisted, and considering that whatever might have been his answer to such questions, whether affirmative or negative, the same could never be considered as falling under the rule of privileged communications which an attorney is bound to maintain on behalf of his client, there can be no question but that by his refusal the witness has committed contempt, because the judge could not deny the right of the plaintiff, Maggay, to ask him such questions, granting his (Maggay’s) right to redeem the portion of said hacienda sold to Prising, inasmuch as the latter had declared that the promissory notes were delivered by him to Hixson and Jones.
If, taking into consideration that which was affirmed by Prising, the purchaser, any of the above-named attorneys had the right to utterly refuse to answer as to the where-abouts of the promissory notes signed by the other new purchasers, N. T. Hashim & Co., it would be necessary to deny and disregard the right of the plaintiff, Maggay, to redeem that portion of the hacienda sold by his coowners, which would be an absurdity in law.
Had either of the above-named attorneys answered the question in the affirmative, saying that as a matter of fact the said three notes had been received by them, nothing new would have been disclosed nor would such affirmation have revealed any secret of his client, since the latter had already stated to the judge and other persons present at the proceedings that he had delivered said notes to his lawyers; and should his answer have been in the negative, he would not thereby have revealed any privileged communication of his client, to whom, by his denial, he would only have’given the lie, a fact which does not constitute the revealing of a secret which the law forbids.
On this assumption the decision of the judge punishing the contempt committed by the witness, who, persistently and without any reason whatever, refused to testify, is in keeping with the provisions of section 237 of the Code of Civil Procedure, which is of the following tenor:
“Imprisonment until order obeyed.—When the contempt consists of the omission to do an act, which is yet in the power of the accused to perform, he may be imprisoned until he performs it.”
The nature and character of an act which is the subject of judicial investigation does not depend on the more or less interested qualification or consideration given it by a witness or litigant whom the discovery of the truth sought for in the litigation might affect. The nature of the suit, the circumstances and conditions of the question or of the affirmative or negative answer thereto are what in each case determine if the information or communication made by a’client to his attorney is of the character of a privilege or a secret. It has already been shown that whatever might have been the answer given by either of the two lawyers of Prising, whether affirming or denying his statement, no secret or privileged information, given by the client to his lawyer, would have been thereby revealed.
The Hon. Judge Gilbert, even when acting as a commissioner, or deputy of the judge of the Court of First Instance of Cagayan, has not exceeded his rights in the exercise of his jurisdiction, because if, as such, he had authority to cite witnesses by means of a subpoena, it follows that during the proceedings, and when taking testimony under oath, he could punish or employ the necessary means to avoid or prevent disobedience or any subterfuge to elude or defeat the provisions of law which regulate the proceedings, as otherwise it would be useless to institute1 actions if the right of a party be allowed to be defeated by the cunning or trickery of the adverse party or his protectors, to the detriment of society and loss of prestige to the law which equally shelters and protects the rights of all citizens.
If Attorney Jones, through persistently refusing to answer a lawful question, committed contempt or disobeyed the presiding judge, his arrest and detention, ordered by the said officer in the exercise of his full jurisdiction, is legal and can not be removed by means of a writ of habeas corpus.
Section 528 of the Code of Civil Procedure reads:
“When the writ shall not be allowed.—If it appears that the person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue of a judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed * * *.”
Therefore, in view of the legal considerations set forth, the inexpediency of granting the writ of habeas corpus in order to set aside and vacate the order of arrest issued by the judge on the 9th of October last is evident, and in view thereof the person of the petitioner will be remanded to the custody of the respondents with the costs against the said petitioner. So ordered.
Arellano, C. J., Mapa and Willard, JJ., concur.