FIRST DIVISION
[G.R. No. L-4469. February 29, 1908. ]
FELIPE G. CALDERON, Plaintiff, v. JOSE MCMICKING, clerk of the Court of First Instance of Manila, Defendant.
Allen A. Garner, for Plaintiff.
W. L. Wright, for Defendant.
SYLLABUS
1. APPEALS IN SPECIAL PROCEEDINGS; CERTIFICATION OF RECORD TO SUPREME COURT. — An appeal in special proceedings is not perfected so as to require the clerk to send the record of the case to this court until the bond has been given and approved by the court below.
2. ID.; ORDER OF COURT ALLOWING BILL. — When notice of appeal in special proceedings has been given and bond approved and filed, no order to court’s allowing the bill is necessary.
3. ID.; CONTEMPT CASES. — Section 240 of the Code of Civil Procedure, which provides that appeals in cases of contempt shall not be brought to this court until final judgment has been entered in particular action, has no application to cases of contempt that grow out of special proceedings.
2. ID.; ORDER OF COURT ALLOWING BILL. — When notice of appeal in special proceedings has been given and bond approved and filed, no order to court’s allowing the bill is necessary.
3. ID.; CONTEMPT CASES. — Section 240 of the Code of Civil Procedure, which provides that appeals in cases of contempt shall not be brought to this court until final judgment has been entered in particular action, has no application to cases of contempt that grow out of special proceedings.
D E C I S I O N
WILLARD, J.:
The plaintiff brought this original action of mandamus in this court to compel the defendant, the clerk of the Court of First Instance of Manila, to send to this court that part of the record of the special proceeding for the settlement of the estate of Francisca Hilario, deceased, which related to two orders entered therein, one on the 26th day of September, 1904, and the other on the 3d day of October, 1904, the plaintiff claiming that he had duly appealed from both of said orders. The defendant has demurred to the complaint and the case is now before us for the resolution of the demurrer.
It appears from the complaint that by the order of the 26th of September, 1904, the plaintiff, Calderon, was directed to pay into court on or before the 3d day of October, 1904, P10,514.14. The plaintiff alleged that on the 30th day of September, 1904, he appealed from such order. There is no allegation in the complaint that he gave any bond, such as is required by the Code of Civil Procedure upon every appeal from an order made in a special proceeding relating to the estate of a deceased person. Without such bond, the appeal was not perfected, and until such bond was presented, and approved by the court below, the clerk was under no obligation to send the record here. This part of the complaint constitutes no cause of action.
The order made on the 3d day of October, 1904, recited that the plaintiff had not complied with the order of the 26th of September and that in lieu thereof, he had appealed therefrom. The court considered that this failure to comply with that order was a contempt and adjudged that the plaintiff be imprisoned in Bilibid until he complied with the same.
The plaintiff in this action alleges that against this order of the 3d of October he appealed and gave a bond in the sum of P10,000, which was approved by the judge.
We think that the complaint shows that the plaintiff did all that the law required him to do in order to perfect his appeal from this order and that it is the duty of the clerk to send up that part of the record which relates thereto.
It is suggested by the defendant that this appeal was never allowed by the court below. It is true that section 780 of the Code of Civil Procedure says that before an appeal is allowed the persons appealing shall give a bond. We do not think that this section can be so construed as to require an order of the court approving the appeal before it can be considered as perfected, since section 779 provides as follows:jgc:chanrobles.com.ph
"Method of perfecting such appeal. — The person thus appealing shall perfect his appeal within twenty-one days after the entry of the order, decree, or judgment by the Court of First Instance, by filing with the clerk of that court a statement in writing that he appeals to the Supreme Court from such order, decree, or judgment. The clerk shall thereupon transmit to the Supreme Court a certified transcript of the account embraced in the order, decree, or judgment, and of the order, decree, or judgment appealed from, and of the appeal."cralaw virtua1aw library
It is also suggested by the defendant that, the order of the 3d of October, 1904, being an order punishing the plaintiff for contempt, the practice upon appeal is governed by section 240 of the Code of Civil Procedure. That section is as follows:jgc:chanrobles.com.ph
"Final judgment. — The judgment and orders of a Court of First Instance, made in cases of contempt, except in cases arising under section two hundred and thirty-one, may be reviewed by the Supreme Court; but execution of the judgment and orders shall not be suspended until there is filed by the person in contempt, in the court rendering the judgment or making the order, an obligation with sureties to the acceptance of the judge, in an amount to be by him fixed, and conditioned that if the judgment be against him he will abide and perform the order or judgment. But such review shall be had only after final judgment in the action in the Court of First Instance, and when the cause has regularly passed to the Supreme Court by bill of exceptions, as in this act provided."cralaw virtua1aw library
The defendant relies upon the last sentence of the section.
It is to be observed that this is not an action, but is a special proceeding. Ordinary actions are brought to this court by bills of exceptions, but no special proceeding can be brought here in such a way except in the one case provided for by section 777 of the code. It is further to be noted that no ordinary action can be brought to this court until a final judgment is entered in the lower court, which puts an end to the litigation in that court. (Sec. 123 of the Code of Civil Procedure.) In special proceedings, however, any final order, and orders relating to the settlement of accounts, the allowance or disallowance of a will, and the decree of distribution may be brought here before a final determination of the entire special proceeding pending in that court. The case of Enriquez v. Enriquez (5 Phil. Rep., 668) was an appeal from an order punishing Francisco Enriquez for contempt. That order was made in a special proceeding relating to the settlement of the estate of Antonio Enriquez, deceased, and it was reviewed by this court before any final judgment or decree had been entered in the court below termination the proceeding relating to that estate. In our opinion the last part section 240, above quoted, does not apply to orders for contempt made in special proceedings, and appeals from such orders may be brought here at any time. We therefore hold that as to the order of the 3d of October, 1904, the complaint constitutes a cause of action. The demurrer is accordingly overruled and the defendant is given ten days from the date of this decision within which to file an answer to the complaint. So ordered.
Arellano, C.J., Torres, Mapa, Johnson, Carson and Tracey, JJ., concur.
It appears from the complaint that by the order of the 26th of September, 1904, the plaintiff, Calderon, was directed to pay into court on or before the 3d day of October, 1904, P10,514.14. The plaintiff alleged that on the 30th day of September, 1904, he appealed from such order. There is no allegation in the complaint that he gave any bond, such as is required by the Code of Civil Procedure upon every appeal from an order made in a special proceeding relating to the estate of a deceased person. Without such bond, the appeal was not perfected, and until such bond was presented, and approved by the court below, the clerk was under no obligation to send the record here. This part of the complaint constitutes no cause of action.
The order made on the 3d day of October, 1904, recited that the plaintiff had not complied with the order of the 26th of September and that in lieu thereof, he had appealed therefrom. The court considered that this failure to comply with that order was a contempt and adjudged that the plaintiff be imprisoned in Bilibid until he complied with the same.
The plaintiff in this action alleges that against this order of the 3d of October he appealed and gave a bond in the sum of P10,000, which was approved by the judge.
We think that the complaint shows that the plaintiff did all that the law required him to do in order to perfect his appeal from this order and that it is the duty of the clerk to send up that part of the record which relates thereto.
It is suggested by the defendant that this appeal was never allowed by the court below. It is true that section 780 of the Code of Civil Procedure says that before an appeal is allowed the persons appealing shall give a bond. We do not think that this section can be so construed as to require an order of the court approving the appeal before it can be considered as perfected, since section 779 provides as follows:jgc:chanrobles.com.ph
"Method of perfecting such appeal. — The person thus appealing shall perfect his appeal within twenty-one days after the entry of the order, decree, or judgment by the Court of First Instance, by filing with the clerk of that court a statement in writing that he appeals to the Supreme Court from such order, decree, or judgment. The clerk shall thereupon transmit to the Supreme Court a certified transcript of the account embraced in the order, decree, or judgment, and of the order, decree, or judgment appealed from, and of the appeal."cralaw virtua1aw library
It is also suggested by the defendant that, the order of the 3d of October, 1904, being an order punishing the plaintiff for contempt, the practice upon appeal is governed by section 240 of the Code of Civil Procedure. That section is as follows:jgc:chanrobles.com.ph
"Final judgment. — The judgment and orders of a Court of First Instance, made in cases of contempt, except in cases arising under section two hundred and thirty-one, may be reviewed by the Supreme Court; but execution of the judgment and orders shall not be suspended until there is filed by the person in contempt, in the court rendering the judgment or making the order, an obligation with sureties to the acceptance of the judge, in an amount to be by him fixed, and conditioned that if the judgment be against him he will abide and perform the order or judgment. But such review shall be had only after final judgment in the action in the Court of First Instance, and when the cause has regularly passed to the Supreme Court by bill of exceptions, as in this act provided."cralaw virtua1aw library
The defendant relies upon the last sentence of the section.
It is to be observed that this is not an action, but is a special proceeding. Ordinary actions are brought to this court by bills of exceptions, but no special proceeding can be brought here in such a way except in the one case provided for by section 777 of the code. It is further to be noted that no ordinary action can be brought to this court until a final judgment is entered in the lower court, which puts an end to the litigation in that court. (Sec. 123 of the Code of Civil Procedure.) In special proceedings, however, any final order, and orders relating to the settlement of accounts, the allowance or disallowance of a will, and the decree of distribution may be brought here before a final determination of the entire special proceeding pending in that court. The case of Enriquez v. Enriquez (5 Phil. Rep., 668) was an appeal from an order punishing Francisco Enriquez for contempt. That order was made in a special proceeding relating to the settlement of the estate of Antonio Enriquez, deceased, and it was reviewed by this court before any final judgment or decree had been entered in the court below termination the proceeding relating to that estate. In our opinion the last part section 240, above quoted, does not apply to orders for contempt made in special proceedings, and appeals from such orders may be brought here at any time. We therefore hold that as to the order of the 3d of October, 1904, the complaint constitutes a cause of action. The demurrer is accordingly overruled and the defendant is given ten days from the date of this decision within which to file an answer to the complaint. So ordered.
Arellano, C.J., Torres, Mapa, Johnson, Carson and Tracey, JJ., concur.
