1. PARTITION; ORDER OF COURT. — In a suit for the partition of property, brought in accordance with the provisions of the Code of Civil Procedure, the judicial order or resolution by virtue of which the judge declares who are the parties who have a right to certain property belonging to several owners is not final, nor does it definitely close the case, and is subject to exception.
2. ID.; ID. — The final order issued by the judge in accordance with and upon the approval of the report of the commissioners who have made the partition and adjudication of the respective portion for each party, or with reference to the sale and distribution of the proceeds among the interested parties, in the form and terms established in section 194 of the Code of Civil Procedure, is the final judgment, which must be entered in the office of the register of deeds, and to which section 123 of the same code refers. And as the order terminates the suit, it will suspend the course of the proceedings absolutely in case the same should be appealed.
3. ID.; APPEAL; BILL OF EXCEPTIONS. — The appeal (recurso de alzada) in cases of partition (jucios divisorios) must be made and sustained by means of a bill of exceptions in the same form and to the same extent as in ordinary actions.
4. ID.; COMPROMISE. — The partition of common property in consequence of a suit may be effected through a settlement between the parties, by means of an agreement in writing, with the approval of a competent court, or, in the absence of an agreement between the interested parties, through commissioners and in judicial form, as provided by law. (Sec. 184, Code of Civil Procedure.)
A suit having been brought between the parties in the Court of First Instance of Cavite, the judge in his final judgment of October 31, 1906, decided that the plaintiffs had a right to ask for the partition of the property described in the complaint, and ordered the partition of the property and of the income therefrom since 1900 up to the execution of the judgment, in two parts, designating the persons who had a right to participate therein. From this order the defendant excepted and presented to the clerk of this court a bill of exceptions.
The bill having been printed, and a copy thereof, as well as of the answer of the defendant, having been delivered to the plaintiff, the latter filed a written motion asking for the dismissal of the bill of exceptions on the ground that the judgment appealed from is only of an interlocutory and not of a final character, alleging that the case would not be ended by it, and that it would be necessary to institute partition proceedings with commissioners appointed for the purpose, according to whose opinion the judgment would be rendered, as prescribed by sections 184, 188, and 189 of the Code of Civil Procedure. In support of this contention he also cited sections 123 and 143 of the same code, which sections refer to orders and incidental and interlocutory judgment, and to the perfection of the bill of exceptions.
If the right of any co-owner, joint holder, or co-heir to require the partition of the property or inheritance, in the form authorized by the law, is undeniable, it is none the less true that the declaration defining the rights of each of the interested parties appertains to the judge of First Instance of the province in which the property to be partition, or some portion thereof, is located. (Secs. 181, 182, 184, 196, Code of Civil Procedure.)
If the parties having a right in the property pro indiviso do not come to an amicable partition between themselves, by means of transfer deeds, with the approval of the judge, which shall be registered in the office of the register of deeds, then three commissioners will be appointed, who, by virtue of an order or judicial decree, and after being duly sworn, will proceed to the partition of the property in the form prescribed by law. (Secs. 184-187, 189-191, Code of Civil Procedure.)
In accordance with the report of the commissioners relating to the partition, adjudication, or sale of the property and division of the proceeds, judge will render a final judgment on the matter in conformity with the provisions of sections 189 and 194 of the code, which final judgment must be registered in the office of the register of deeds and is appealable to the Supreme Court by a bill of exceptions and in the form prescribed for the ordinary trials. (Secs. 194, Code of Civil Procedure.)
Therefore, in actions of this class, an exception can be taken against any resolution, decree, or order of the court; and although the exception must be noted and must appear in the record, it can neither delay nor suspend the course of the trial until a final judgment is rendered in view of and in accordance with the report of the commissioners.
Section 123 of the Code of Civil Procedure provides:jgc:chanrobles.com.ph
"No interlocutory or incidental ruling, order or judgment of the Court of First Instance shall stay the progress of an action or proceedings therein pending, but only such ruling, order, or judgment as finally determines the action or proceeding; nor shall any ruling, order, or judgment be the subject of appeal to the Supreme Court until final judgment is rendered for one party or the other."cralaw virtua1aw library
The party excepting from this final judgment and expressing a desire that the court should admit a bill of exceptions shall present the bill within the period of ten days, including therein a short statement of the facts of the case with the rulings, orders, or judgments excepted to and a specification of each of the exceptions presented during the course of the trial. (Secs. 141-143, Code of Civil Procedure.)
These are the provisions of the law of procedure now in force which are substantially the same as those observed in the Federal courts of the United States and confirmed by the decided cases. For example, the Supreme Court of the United States in the case of Green v. Fisk (103 U.S., 518), in an opinion written by Chief Justice Waite, says:jgc:chanrobles.com.ph
"In partition causes, courts of equity first ascertain the rights of the several persons interested, and then make a division of the property. After the division has been made, and confirmed by the court, the partition, if a kind, is completed by mutual conveyances of the allotments to the several parties . . .
"A decree can not be said to be final until the court has completed its jurisdiction of the cause. Here the several interests of the parties in the land have been ascertained and determined, but this is merely preparatory to the final relief which is sought; that is to say, a setting off to the complainant in severalty her share of the property in money or in kind. This can only done by a further decree of the court. Ordinarily, in chancery, commissioners are appointed to make the necessary examination and inquiries and report a partition. Upon the coming in of the report the court acts again. If the commissioners make a division the court must decide whether it shall be confirmed before the partition, which is the primary object of the suit, is complete. If they report that a division can not be made and recommend a sale, the court must pass on this view of the case before the adjudication between the parties can be said to be ended.
"In this case a partition by sale was asked for, because the property was not susceptible of division in kind. That the court has not ordered, and the reference to the master was undoubtedly to ascertain, among other things, whether such a proceeding was in fact necessary in order to divide the property. The master was in everything to proceed under the direction of the court. He had no fixed duty to perform. He was the mere assistant of the court, not in executing its process, but in completing its adjudication of the partition which was asked. There are still questions, in which the parties have each a direct interest, and they must be determined judicially before the relief has been granted which the suit calls for . . . Appeal dismissed."cralaw virtua1aw library
In accordance with the above cited practice, this court has decided a similar motion in the case of Margarita Toribio Et. Al. v. Modesta Toribio Et. Al. 1 (5 Off. Gaz., 211) regarding the inventory, liquidation of accounts, and partition of estates, which decision has been cited by the appellee in this suit in his motion.
For the reasons already enumerated, it is evident that the judicial order appealed has not the character of a final judgment terminating the action, inasmuch as, according to existing law, some formalities and proceedings are still necessary before the partition of the property can actually be made and the suit ended. Therefore the provisions of section 123 of the Code of Civil Procedure must be applied to this suit, since the judge should not have admitted the appeal with the bill of exceptions.
This conclusion, however, does not affect the right of the appellant to include, if the desires, the exception duly taken from the judgment appealed, in a bill to be presented in due course, for such consideration and decision as justice may require.
The bill of exceptions presented by the defendant, Felix Mojica, is dismissed, with the costs.
, Johnson, Willard, and Tracey, JJ.
1. 7 Phil. Rep., 526.