1. COURTS OF FIRST INSTANCE; VOLUNTARY DISQUALIFICATION OF JUDGE; MANDAMUS TO COMPEL JUDGE TO PROCEED WITH THE CAUSE. — Under section 8 of the Code of Civil Procedure extreme delicacy is not a ground for disqualification; and a judge who bases his disqualification expressly and solely upon that ground, and thereupon retires from the cause, may be compelled by mandamus to resume the consideration of the cause and to continue therewith.

2. ID.; ID.; ID. — The law governing the disqualification of a judge is found in section 8 of the Code of Civil Procedure, which not only contains the law relative to disqualification, but also provides the procedures to be taken when disqualification is alleged and what shall be the effect of the decision of the question one way or the other.

3. ID.; ID.; ID. — The procedure prescribed in section 8 must be substantially followed.

4. ID.; ID.; ID. — In an action of mandamus to compel a judge, who has retired from a case upon the ground that he is disqualified, to resume the cause and continue therewith to final determination, no ground of disqualification can be alleged or considered except that presented to the judge and passed upon by him.

5. ID.; ID.; ID. ALLEGATION OF ADDITIONAL GROUNDS FOR DISQUALIFICATION. — Therefore, where a judge has retired from a cause upon the ground that he is disqualified by reason of extreme delicacy, and the order of disqualification shows that to be the only ground of disqualification urged or considered, the additional ground of disqualification that the judge had been an attorney in the cause cannot be presented or considered in an action of mandamus to compel the judge to go forward with the cause.

6. ID.; ID.; ID.; JUDGE FOUND TO BE QUALIFIED MUST PROCEED WITH THE CAUSE; APPEAL. — When in a proceeding to disqualify a judge it is found and determined that the judge is not disqualified, he must enter an order to that effect and proceed with the determination of the cause; and no appeal or stay of action shall be allowed with respect to such determination until after a final judgment has been entered in the cause in which the proceedings for disqualification were had.

7. ID.; ID.; ID.; SOLE ISSUE IN SUCH PROCEEDINGS. — In an action of mandamus to compel a judge who has disqualified himself to proceed with the cause, the sole issue is whether, upon the facts presented to the judge below, he acted legally in refusing to sit in the case and render judgment therein. New issues cannot be created by the allegation of facts or the presentation of objections which were not presented to and passed upon by the judge. Section 8 referred to requires this limitation.

This is a petition for a writ of mandamus.

On the 1st day of March, 1913, action No. 1015 was begun by the plaintiff herein in the Court of First Instance of the Province of Rizal against Godofredo B. Herrera as municipal president of Caloocan to compel the issuance to the plaintiff of a license to operate a cockpit in La Loma and Maypajo in said municipality. Later the summons and complaint were amended bringing in as additional defendants Lope K. Santos as provincial governor of Rizal, the provincial board of that province, and Jose Javier.

Certain motions were made in the cause, the hearings in which were set for the 24th day of May, 1913, at 8 o’clock in the morning, at the courthouse in Malolos, Bulacan. All of the parties appeared at that time and place, except Jose Javier. Before the hearing had begun the judge presiding, the Honorable Alberto Barretto, received a telegram from Mr. Cohn, attorney for Jose Javier, as follows: "In cockpit cases Caloocan intervener and lawyer in Pasig by mistake. Notification says Manila to Pasig. They protest against the trial or the resolution of the motion by reason of lack of competency and disqualification of the judge and for insufficiency of notice." In view of this telegram the court adjourned the hearing to the 6th day of June, 1913, at 8,30 a. m., at the same place. On the adjourned day all the parties appeared with their attorneys. Thereupon such proceedings were had that the judge entered the following order:jgc:chanrobles.com.ph

"In this case, during the trial on this day, there had been presented for the first time the question of the disqualification of the present judge. The defendants who raised that question first based their objections upon supposed legal grounds, but, in the course of the argument, recognized in open court and publicly that, under the facts in this case and the discussion in connection therewith, there exists no legal reason or foundation whatever upon which such disqualification can be based, and they therefore appeal to the extreme delicacy (extremada delicadeza) of the judge making this order, who on his part recognizes that he has all of the independence of judgment necessary to a just decision of the case.

"The judge making this order, although he is fully convinced that there exists no legal reason on account of which he ought to retire from this case, as the provincial fiscal of Rizal, representing the municipal president of Caloocan, the provincial governor, and the provincial board of Rizal, Defendants, have publicly recognized, but desiring nevertheless, solely and exclusively for reasons of extreme delicacy to retire voluntarily from the case, does hereby retire therefrom and makes report thereof to the Supreme Court and to the Secretary of Finance and Justice for such actions as may be necessary."cralaw virtua1aw library

This action was thereupon commenced by the plaintiff to obtain a writ of mandamus running to the Honorable Alberto Barretto, as judge of the Court of First Instance of Rizal, requiring him to proceed with the trial of the case from which he had, by said order, voluntarily retired.

The contention of the plaintiff, as shown by his complaint, is that the said judge was not disqualified in law or in fact and that he had, therefor, no legal right to retire from the cause; that the only ground upon which the defendants relied and which they alleged or presented to procure the retirement of the judge was that of extreme delicacy (extremada delicadeza), they expressly admitting in open court that there existed no legal ground of disqualification and that there were no facts in their possession upon which a legal disqualification could be based; that the question whether or not the judge had been attorney in the case prior to its presentation to him was not raised by the defendants nor presented to the judge nor was there a resolution thereon; that extreme delicacy not being a legal ground upon which a judge can retire from the trial of a cause, the defendant judge erred when he refused to perform a duty which the law imposed upon him.

The defendants (in speaking of "the defendants" we do not include the defendant judge of whose answer we shall speak later) demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled by this court upon the ground that "under the allegations of the complaint there did not exist any sufficient reason why the Honorable Alberto Barretto should not take cognizance of the case to which the petition for mandamus refers."cralaw virtua1aw library

The defendants answered, admitting certain allegations of the complaint and denying others. The important parts of the answers, however, for the purposes in hand, are those which set out facts in the nature of a special defense, the substance of which is that the judge is in fact disqualified by reason of having previously acted as attorney in the pending cause. The answers set up facts tending to establish that defense.

The answer of the defendant judge clearly contains no defense to the action — so clearly, in fact, that it is unnecessary to discuss its sufficiency.

Demurrers were filed to the answers upon the ground that they did not state facts sufficient to constitute a defense to the complaint.

We have in this case this situation: The plaintiff claims in his complaint and argues on the hearing that the only ground set forth by the defendant in the Court of First Instance as a reason why the judge should refuse to sit in the case was that of extreme delicacy; that the defendants did not present to the judge, nor did the judge decide, the question whether he had been attorney in the action then before him or in any other action in which the issues were identical. The defendants, on the other hand, claim in their answers and argue on the hearing that they presented to the judge as a reason for his retirement not only extreme delicacy but also the fact that he had been attorney for Tranquilina T., Vda., de Angeles, Antonio Bertol, and others, and that Constancio Joaquin was nothing more or less than the representative of those individuals, the judge’s former clients, and that, while the names of the parties were different, they were in effect the same; that, while the actions did not bear the same registry number in the court, nevertheless, the subject matter of the action in which the judge had been attorney was the same as in that then before him; that such facts and considerations were presented to the judge, and he, after due consideration thereof, found them to be well founded and withdrew from the case.

Defendants also claim that, even if the question of the judge’s acting as attorney in the case was not presented to him, it can nevertheless be presented here for the first time, as any defense is a proper defense which will defeat the action and that if the judge is in fact really disqualified, no matter for what reason and no matter whether presented to the judge or not, this court will not compel him to go forward with the case.

Laying aside for the moment the contention of defendants last referred to and confirming ourselves to the other contentions of the parties, we may say that, for a decision in this case, it is not material which contention is correct. The same result follows in either case.

It must be remembered that the proceeding to disqualify a judge is a proceeding special in its nature taken under a special statute. Section 8 of the Code of Civil Procedure reads as follows:jgc:chanrobles.com.ph

"SEC. 8. Disqualification of judges. — No judge, magistrate, justice of the peace, assessor, referee, or presiding officer of any tribunal shall sit in any cause or proceeding in which he is pecuniarily interested, or related to either party within the sixth degree of consanguinity or affinity, computed according to the rules of the civil law, nor in which he has been counsel, nor in which he has presided in any inferior judicature when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.

"No challenge as to the competency of any of the officials named in this section shall be received or allowed; but if it be claimed that the official is disqualified by the provisions of this section, the party objecting to his competency may, in writing, file with the official shall thereupon proceed with the trial, or withdraw therefrom, in accordance with his determination of the question of his disqualification. His decision shall be forthwith made in writing and filed with the other papers in the case, but no appeal or stay of action shall be allowed from, or by reason of, his decision in favor of his own competency, until after final judgment in his court."cralaw virtua1aw library

We held, in disposing of the demurrer to the complaint in this action, that extreme delicacy (extremada delicadeza) is not a legal ground of retirement. Therefore, if it be held that the judge disqualified himself upon that ground alone he did so illegally, and the writ of mandamus lies to compel him to go on with the case.

On the other hand, if the question whether or not the judge had been attorney in a prior action in which the issues were identical with those in the action pending before him was actually presented to him as provided by law, then we are met with the order of the 6th day of June, 1913, in which the judge finds that he was not disqualified for that reason — that is to say, that he had not been attorney in that action or in one involving the same issues. The judge, in the order disqualifying himself, in effect not only asserts that he had not been such attorney, but declares that all of the parties admitted in open court that he had not been such attorney and that he was not, therefore, on that ground, subject to disqualification. The answer of the judge in this case sets forth no fact upon which his disqualification could have been based or predicated, under the law, in the case below.

Under the provisions of section 8, having found that he was not disqualified, it was his duty to go forward with the trial of the case; and the parties against whom the finding was made are not permitted to appeal or stay the action by reason of such finding until final judgment is entered after trial on the merits.

Summarizing, this, then, is the condition: If the question of his having been an attorney in the case was presented to the judge, then the question was resolved against defendants, the judge refusing to disqualify himself upon that ground. His retirement was based exclusively upon extreme delicacy, which is no sufficient ground. Having held himself not legally disqualified, the judge should, under section 8 above quoted, have gone on with the trial. On the other hand, if that question was not presented to him, then it cannot be raised in this action, as section 8 requires, as we construe it, that every question involving the disqualification of a judge must, in the first instance, be presented for determination to the judge alleged to be disqualified. It cannot be presented in this court in any way until it has first been passed upon by the judge.

Turning now to the contention of the defendants heretofore momentarily laid aside, counsel says, in his argument before this court, that "Much stress has been laid by opposing counsel on the reasons assigned by the Honorable Alberto Barretto for his disqualification in these proceedings. It will be admitted, I think, that it is entirely immaterial what reasons he assigned for his action, provided this court, from the entire record as now presented, finds that such disqualification is reasonable and proper and in the interests of justice. It may well be that the reasons assigned by the judge did not take into account all the circumstances of the case, or that for obvious reasons he did not care to express them. It may also result that reasons requiring his disqualification have come to light subsequently, of which he was then ignorant. It would certainly be anomalous if this court after inviting answers from the defendants herein should hold itself precluded from taking their allegations into account and be governed entirely by the statement of the judge claimed to be disqualified."cralaw virtua1aw library

In considering this argument it should be noted, as we have already intimated, that this court has no authority to take into consideration in the decision of the case before it any fact, circumstance, or objection going to the competency of the judge which was not presented to him below. The judge has exclusive jurisdiction and authority to determine, in the first instance, his own competency, whatever may be the objection of theory upon which that incompetency is urged; and the issues in an action of mandamus to compel a judge to act are confined to the questions presented to and determined by him. Permitting the defendants to answer did not mean that they were to have the opportunity to present to this court facts or make objections which were not presented to and passed upon by the judge. In other words, the defendants are not permitted to create in this court new issues. The sole issue here is whether, upon the facts presented to the judge below, he acted legally in refusing to sit in the case and render judgment therein. Whether he committed an error is determined by an examination of the record made in the court below, together, possibly, with such facts and circumstances as will throw light upon or complete that record, if incomplete or defective. The error of a judge alleged to have been committed in a decision as to his competency can be predicated only upon the facts which he has before him in making his decision. It cannot be based upon new facts, new objections, or new conditions presented here for the first time. The judge himself may not come to this court in this action and urge his disqualification and the validity of his order of retirement upon facts or objections which were not presented to and passed upon by him while sitting in the case below.

Counsel says that "it is entirely immaterial what reasons he assigned for his action, provided this court, from the entire record as now presented, finds that such disqualification is reasonable and proper in the interests of justice." It matters not what reasons a judge gives for his decisions if he has in the record facts sufficient to sustain that decision. The trouble here is that the judge below gave in support of his decision not only reasons but facts. While, as we have said, it is immaterial what reason the judge assigns for sustaining his decision, the facts upon which he bases that decision are quite material.

Counsel also contends that "where a judge fells that it would be unlawful or improper for him to act in a case, it is his duty and obligation to so state, irrespective of any challenge." Without deciding the question involved in this contention, the obvious answer in this case is, that the judge in his decision in the court below found, and asserted that it was also the admission of the parties, that it was not unlawful or improper for him to act in the case and that there existed no reason whatever why he should not act.

It is obvious from the provisions of section 8 that, no matter what may be the reasons which move the judge to disqualify himself in a particular case, it is his duty to place them in the record. It is the clear intention of that section to give the parties an opportunity to challenge and contest the sufficiency of those reasons in an appellate court. This opportunity would be rendered valueless if the judge could remain silent as to those reasons. An appellate court can resolve an appeal only upon the record as presented. If the facts or reasons upon which the judge based his retirement do not appear in the record, the party taking the appeal is deprived of the right to have a determination of the sufficiency of those facts or reasons in the appellate court. It is not sufficient that they be presented to this court in an action of mandamus. His right is to have them passed upon by the judge; and if this court should take cognizance of those facts and objections he might justly claim that it would be usurping the functions of the judge; and that such usurpation would deprive him of the right guaranteed to him by section 8. Moreover, we have held in a recent case (Herrera v. Barretto and Joaquin, ante, pp. 245, 272):jgc:chanrobles.com.ph

"It must be remembered that the people of the Philippine Islands may go to the Courts of First Instance to require a public officer to perform his duties; and they have the right to have that court pass upon the whole case and upon every phase thereof and upon every question arising therein. This right is conferred by statute. It must be respected by the courts as well as by others. It would be manifestly illegal, as it would be flagrantly unjust, so long as the court acts within its jurisdiction, to withdraw from the Court of First Instance the consideration of that case under color of any proceeding whatever. As long as the court is considering that case, its rights and the rights of the litigants to continue to final determination are inviolate.



"Questions which Courts of First Instance are required by law to decide should not be summarily taken from them and presented to this court without first giving them an opportunity of deliberately passing on such questions themselves. The most natural and proper thing to do, when such court, in the judgment of one of the parties has issued an injunction erroneously, is immediately to call the attention of that court to its supposed error and ask for its correction. the strongest reasons of policy and courtesy, if not actual legal right itself, require such procedure; and we discourage all attempts to come to this court upon questions which a court below is entitled to decide without first invoking its judgment thereon. There are special reasons for following this course in cases where the court has acted ex parte."cralaw virtua1aw library

The summary withdrawal from the Court of First Instance of a question which the law gives him a right to decide is thus seen to be more or less of an impropriety; but when that question relates to his own competency the judge has a right to consider it a reflection.

From these observations it is clear that the answers either present a question which was presented to the court below and there decided adversely, in which even the judge should have gone forward with the action, or else one that was never presented to the court below and which cannot therefore be heard here. The answers, therefore, disclose no reason why the writ prayed for should not issue.

No confusion should result from the fact that the judge refused to sit. That finding was based solely and expressly upon the untenable ground of extreme delicacy (extremada delicadeza) — not upon the ground of having been an attorney in the case. That ground, if presented, was rejected. The order or decision of the judge withdrawing from the case does not state facts sufficient to justify the conclusion to withdraw. We treat that decision precisely the same, although perhaps for different reasons, as we would any other decision of a court where the facts stated therein do not justify the conclusion reached. As a consequence, we set aside the order and require the judge to proceed with the trial without prejudice to his right to hear and determine such objections, if any, to his competency as he may consider the law requires.

Demurrer sustained and writ issued.

Arellano, C.J., Torres, Mapa and Trent, JJ., concur.