[ G.R. No. 12647. November 26, 1917 ] 37 Phil. 186
[ G.R. No. 12647. November 26, 1917 ]
JOSE LINO LUNA, PETITIONER AND APPELLEE, VS. EULOGIO RODRIGUEZ AND SERVANDO DE LOS ANGELES, RESPONDENTS. EULOGIO RODRIGUEZ, APPELLANT. D E C I S I O N
JOHNSON, J.:
The first question, presented by this appeal, is, Did the opinion of the judge, which he signed on the 14th day of January, 1917, become the decision of the court on the 17th day of January, 1917, the date on which it was filed with the clerk of the court? If It did, then the other questions presented by the appellant must be decided now. If it did not, then there is no decision in the case, and the record must be returned to the court whence it came with direction to proceed to a new trial and to render a judgment in accordance with the law.
These proceedings grew out of an election contest for the office of governor of the Province of Rizal. A protest was duly presented, an answer was filed, and a trial was had which closed on the 5th day of October, 1916, and the cause was submitted to the court for decision. The record shows that the opinion of the judge was signed by him on the 14th day of January, 1917, but was not filed with the clerk of the court until the 17th day of January, 1917. Notice of said opinion was given to the respective parties on the 17th day of January, 1917. On the 20th day of January, 1917, the attorneys for the protestee presented the following motion:
“Now comes the respondent and, through the undersigned attorneys, alleges:
“First. That he was notified by the clerk of this court that a document said to be the judgment in the above-entitled case, dated January 14, 1917 and signed by the Honorable Alberto Barretto as judge of the Court of First Instance of the Eleventh Judicial District, was made a part of the records.
“Second. That though the above-mentioned document was signed by the Honorable Alberto Barretto, yet this was done on or after the 16th day of January, 1917, when the said Honorable Alberto Barretto had already ceased to be judge of the Court of First Instance of the Eleventh Judicial District, inasmuch as he had qualified for, and taken possession of, the position of Secretary of Finance of the Government of the Philippine Islands.
“Third. That in order to conceal this fact, the said Honorable Alberto Barretto deliberately caused the said judgment to be dated as if it had been written and signed at Pasig, Rizal, on the 14th day of January, 1917, thus falsifying the essential fact concerning the date when the referred to document was written and signed.
“Fourth. That the said document had not been written nor signed at Pasig, Rizal, or within the territorial jurisdiction of this Court, where according to law, the judge of the Court of First Instance of the Eleventh Judicial District should have his permanent official residence.
“Fifth. That whether the judgment referred to has been written or signed on or after tjie 16th day of January, 1917, as we maintain and are ready to prove, or on the 14th day of January, 1917, the date which such judgment now bears, said judgment is null and void and of no value, for the latter date falls on Sunday, and for that reason, it has been unduly filed with the records of this case.
“Sixth. That if the said judgment should be allowed to remain with the records of this case, as it is at present, the clerk of this court will enforce it and comply with the orders contained therein as if it were a valid judgment effective and binding on the parties, thus injuring the interests of the respondent.
“Wherefore, he prays that, after taking the necessary legal proceedings, this court declare null and void said judgment, dated January 14, 1917 and signed by the Honorable Alberto Barretto, and order the clerk of this court to abstain absolutely from all proceedings tending to comply with the provisions contained in the said judgment, and provide for any other remedy which may be deemed just and equitable.”
A copy of said motion was delivered to the attorney for the appellee on the same day (January 20, 1917), and the same was denied by the Honorable Manuel Vivencio del Rosario, auxiliary judge, on the 22d day of January, 1917, and notice of said order was given to the respective parties on the 23d day of January. Some question is raised in the brief filed in this court by the appellee concerning the failure of the appellant to give due notice of the hearing of said motion. Even granting that said motion was not brought on with proper notice for hearing, we deem that fact unimportant in the discussion of the question whether or not a proper judgment was rendered in the court below.
The appellant alleges that at the time said opinion was filed and the decision promulgated, the judge who wrote the opinion was not then judge of the Court of First Instance of the Province of Rizal. We think the proposition will not be denied, if, at the time the said opinion was promulgated as the decision of the court, the judge was not then a judge either de jure or de facto, that said decision was null and void. The appellant asserts that the judge who wrote the opinion was not judge of the Court of First Instance of the Province of Rizal at the time said opinion was filed with the clerk; that he had theretofore vacated his office as judge of said court and had become “Secretary of Finance,” in the executive department of the Government. These are the facts which constituted the basis of the motion for a new trial presented by the appellant in the court below and the facts which he desired an opportunity to prove.
The rendition of a judgment or decree is the judicial act of a court in pronouncing its decision, as distinguished from the ministerial act of the clerk in recording the same. (Ex parte Morgan, 114 U. S., 174.) The judgment is the act of the court. The clerk records the judgment of the court, but does not thereby render the judgment. (Ex parte Morgan, supra.) The rendition of a judgment is necessarily a judicial act of a court. It is essential to the validity and conclusiveness of a judgment or decree that there should be some judicial action, by the court, constituting a rendition. (Ensminger vs. Powers, 108 U. S., 292.) It is also essential to the validity and conclusiveness of a judgment or decree that there shall be a legally constituted judge or judges, either de jure or de facto, at the time said judgment is rendered. (Hickey vs. Stewart, 3 How. [U. S.], 750; Rose vs. Himely, 4 Cranch [U. S.], 241; Pennoyer vs. Neff, 95 U. S., 714; Scott vs. McNeal, 154 U. S., 34.) It is also an essential element of the validity and conclusiveness of a judgment or decree that it be rendered by a court in the exercise of judicial power. (U. S. vs. Ferreira, 13 How. [U. S.], 40; Ex parte Zellner, 9 Wallace [U. S.], 244; In re Sanborn, 148 U. S., 222.)
In order that a court may promulgate a legal decision or judgment two things are essential and necessary: (a) There must be a court legally organized or constituted; and (b) there must be a judge, or judges, legally appointed or elected and actually acting, either de jure or de facto. If either of these essentials is absent then the judgment promulgated is a nullity. If there is no legal court there can be no legal judgment. The same is true if there is no judge. It is not sufficient that there has been a judge of the court. There must be no one actually acting either de jure or de facto.
It is an essential element to the validity of the acts of a de facto judge, that he is actually acting under some color of right. If he has ceased to be judge by actually accepting and entering into some other office and has actually entered upon the performance of the duties of the other office, it is difficult to understand how he can still be considered as actually occupying and performing the duties of the office which he had abandoned and vacated. An abandonment and a vacation of an office is inconsistent and repugnant to the idea of actually continuing to perform the duties of such office. There may be cases, however, where the judge de jure has been appointed or elected to some other office and has accepted said other office without actually entering upon the performance of the duties of the other office and continues to act as judge. In such a case he will be considered as a judge de facto. (Woolside vs. Wagg, 71 Me., 207.) If he actually enters into the other office and commences the performance of the duties of the other office and ceases to act as judge, then certainly he cannot be considered either a judge de jure or a judge de facto. (State vs. Carroll, 38 Conn., 449; 9 Am. Rep., 409; Brown vs. O’Connell, 36 Conn., 432; Butler vs. Phillips, 38 Colo., 378; 9 L. R. A., 59; 14 L. R. A., N. S., 638.)
There may be cases where an opinion is promulgated as the decision of the court after’ they judge thereof has ceased to be judge. But an examination of such cases will generally show that the parties had consented thereto and were, therefore, estopped from denying their legal effect. (Babcock vs. Wolf, 70 Iowa, 676; Shenandoah Nat. Bank vs. Read, 86 Iowa, 136.) In that jurisdiction, however, no provision like the provisions of section 13 of Act No. 867 exists.
If the opinion is properly filed with the clerk, all the essentials existing, then, of course, the mere failure of the clerk to perform his purely ministerial duty cannot defeat said opinion from becoming the decision of the court. (1 Black on Judgments, section 113.)
With these propositions in mind, we proceed to ascertain whether or not the judge who wrote the opinion was either a judge de jure or de facto at the time the same was promulgated as a decision of the court, accepting for the present the facts alleged in said motion which have not as yet been denied.
A judge de jure is one who is exercising the office of a judge as a matter of right. He is an officer of a court which has been duly and legally elected or appointed. He is an officer of the law fully vested with all of the powers and functions conceded under the law to a judge which relate to the administration of justice within the jurisdiction over which he presides.
A judge de facto is an officer who is not fully invested with all of the powers and duties conceded to judges, but is exercising the office of judge under some color of right. A judge de facto may be said to be one who has the reputation of being the officer he assumes to be and yet is not a good officer in point of law—that is, there exists some defect in his appointment or election and in his right to exercise judicial functions at the particular time. (King vs. Bedford Level, 6 East [Eng. Com. Law Rep.], 356; Petersilea vs. Stone, 119 Mass., 465; 20 Am. Rep., 335; State vs. Carroll, 38 Conn., 449; 9 Am. Rep., 409.)
A judge de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice will hold valid so far as they involve the interest of the public and third persons, where the duties of the office were exercised: (a) Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumes to be; (b) under color of a known or valid appointment or election, where the officer has failed to conform to some precedent requirement or condition, for example, a failure to take the oath or give a bond, or similar defect; (c) under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public; and (d) under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such. (State vs. Carroll, 38 Conn., 449; Wilcox vs. Smith, 5 Wendell [N. Y.], 231; 21 Am. Dec, 213; Sheehan’s Case, 122 Mass., 445; 23 Am. Rep., 323.)
From the foregoing definitions it will be seen that both de jure and de facto officers must be in the actual exercise of the functions of the office of judge, either by an absolute right or under a color of right. If at the time the opinion is promulgated as a decision he is not acting either under an absolute right so to do or under a color of right, then he is acting neither as a judge de jure nor de facto. In the present case it is charged and not denied that the judge had ceased to be judge and was, at the time his opinion was promulgated, actually in the exercise of another office, outside of the judicial department; which he had accepted and upon the performance of the duties of which he had duly; entered. While it is true that a judge may prepare his opinion outside of the judicial district to which he had been assigned and send it to the clerk of the particular district for promulgation as a decision, yet, under the express provision of the law, such opinion does not become a decision of the court until it is actually and in fact filed with the clerk. (Act No. 867, section 13.)
Section 13 of Act No. 867 makes provision in certain cases by which the judge may sign a final judgment when he is outside the territorial jurisdiction of the particular court. Said section provides that “it shall be lawful for him (a judge), if the case was heard and duly argued or an opportunity given for argument to the parties or their counsel in the proper province, to prepare his judgment after he has left the province and to send the same back properly signed, to the clerk of the court, to be entered in the court as of the day when the same was received by the clerk, in the same manner as if the judge had been present in court to direct the entry of the judgment.” It will be noted that said section permits a judge to prepare his judgment “after he has left the province;” but there is no provision permitting him to prepare his judgment after he has quit the office of judge. It further provides that the opinion so prepared does not become a judgment of the court until “the day when the same was received by the clerk,” with the further provision that it is then received as a judgment in the same manner as if the judge had been present personally. Now, if the conditions exist which would prevent him from being present in court on said day when the opinion is received by the clerk, by reason of his having left the office of judge, by resignation, or death, or otherwise, then it must follow that no such judgment can be valid. The presumption of his presence stated by the law, in the face of the fact of the impossibility of his presence as judge, destroys absolutely the possibility of such an opinion becoming a decision of the court.
Whether or not an opinion signed on Sunday may be promulgated as the decision, or judgment, or decree of a court is a question which we do not now discuss or decide. (Ball vs. United States, 140 U. S., 118.)
Under said section 13 (Act No. 867), it is clear the Legislature intended that the judge, when he was given permission to prepare his opinion in the manner therein indicated, should still be judge at the time of the promulgation thereof, or otherwise it would not have provided that the opinion should be promulgated in the same manner as if he were present at the time” of the promulgation. If he had ceased to be judge and had ceased to be acting as judge, then, of course, he could not be present as judge at the time of the promulgation of the opinion as a decision. In order to be a de facto judge he must still be actually acting under some color of right. He cannot be actually acting under any color of right when he has ceased to be judge and has actually vacated the office by the acceptance of another office and by actually entering upon the duties of the other office. His acceptance of another office is not inconsistent with the idea of his actually continuing to act in his former office; but when he actually accepts another incompatible office and actually enters upon the performance of the other office, his vacation of the former office is established thereby, unless there is some proof to the contrary. No attempt is made, even now, to show that the judge who prepared the opinion in the present case had not actually ceased to be judge and had not ceased to act as judge before the promulgation of the opinion in question.
For the foregoing reasons the motion presented by the protestee praying for a new trial should have been granted. The protestee should have been given an opportunity to prove his allegation that the judge who prepared the opinion was not a judge at the time said opinion was promulgated as the decision of the court. The error complained of is too vital to be permitted to stand under a government of a free people without investigation and correction, if the facts alleged are true. The protestee, at least, should have been given an opportunity to present proof.
For all of the foregoing reasons the judgment of the lower court is hereby revoked; and it is hereby ordered and decreed that the record be returned to the lower court with direction that it proceed with a new trial. It is further ordered and decreed that the evidence theretofore adduced may be used in connection with the new trial, with the condition that the parties are hereby permitted to adduce such additional evidence as they may deem advisable and necessary. (U. S. vs. Singuimuto, 3 Phil. Rep., 176.) Without any finding as to costs. So ordered.
Arellano, C. J., Torres, Carson, and Araullo, JJ., concur.