1. JUDGMENT; NULLITY. — Head: Under the facts stated in the opinion that, inasmuch as the judge, who wrote and caused to be promulgated the decision and judgment, was neither a judge de jure nor de facto, said judgment was a nullity.
2. ID; REQUISITES FOR VALIDITY. — In order that a judgment may be valid and have legal effect it must be (a) rendered by a court legally constituted and in the actual exercise of judicial powers; and (b) by a judge or judges legally appointed or elected, duly qualified and actually acting either de jure or de facto. The absence of these essentials renders a judgment a nullity.
3. WORDS AND PHRASES; "JUDGE DE JURE" DEFINED. — A judge de jure is one who is exercising the office of a judge as a matter of right. He is an officer of the law fully vested with all 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.
4. ID.; "JUDGE DE FACTO" DEFINED. — 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 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.
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 attorney’s for the protestee presented the following motion:jgc:chanrobles.com.ph
"Now comes the respondent and, through the undersigned attorney’s, alleges:jgc:chanrobles.com.ph
"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 the 16th day of January, 1917, as we maintain and are ready to prove, or on the 14th day of January, 1917, the dated which such judgment now bears, said judgment is null and void and of no value, for the latter date falls on Sunday, and for the reason, it has been unduly filed with 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 pray 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."cralaw virtua1aw library
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 23rd 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 to 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 de 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 avoid. 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 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 v. 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 v. Stewart, 3 How. [U.S. ] 750; Rose v. Himely, 4 Cranch [U. S. ], 241; Pennoyer v. Neff, 95 U. S. 714; Scott v. 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. v. Ferreira, 13 How. [U. S. ], 40; Ex parte Zeller, 9 Wallace [U. S. ] 244; In re Sanborn, 148 U.S., 222.)
In order that 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 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 be 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 case, 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 v. 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 v. Carroll, 38 Conn., 449; 9 Am. Rep., 409; Brown v. O’Connell, 36 Conn., 432; Butler v. 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 the judge thereof has ceased to be judge. But as examination of such cases will generally show that the parties had consented thereto and were, therefore, estopped from denying their legal effect. (Babcock v. Wolf, 70 Iowa, 676; Shenandoah Nat. Bank v. 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 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 v. Bedford Level, 6 East [Eng. Com. Law Rep. ], 356; Petersilea v. Stone, 119 Mass., Com Law Rep., 335; State v. 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 conditions, for example, a failure to take the oath of 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 v. Carroll, 38 Conn., 449; Wilcox v. 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 as 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, 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 dully argued or an opportunity given for argument to the parties of 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 exists which would prevent him from being present is court on said 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 v. 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. v. Singuimuto, 3 Phil. Rep., 176.) Without any finding as to costs. So ordered.
, Torres, Carson and Araullo, JJ.
, dissenting:chanrob1es virtual 1aw library
The court holds the judgment rendered in this cause by Judge Alberto Barretto to be void because it was filed and promulgated by the clerk of the court upon January 17, 1917, at which time Judge Barretto had already qualified and entered upon the discharge of the duties of Secretary of Finance, thereby vacating the office of judge. To the mind of this writer, the vital question is not whether Judge Barretto was a judge when the decision was promulgated but whether he was clothed with judicial power at the time when he wrote and signed the decision. If he had authority under the law to adjudicate the cause and make a lawful decision at the time when he assumed to do those things, we are of the opinion that the judgment so rendered by him was valid, although it was not filed and promulgated until after he had ceased to be judge.
It seems to us that by the proper interpretation of section 13 of Act No. 867, as amended, the contingency which here happened is provided for. That section declares that where a judge of the Court of First Instance has left the province, but still remains in the Philippine Islands, he may write his decision and send it back through the mail, properly signed, to be entered by the clerk of the court. The mere circumstance that the clerk is required to file the decision as of the date when it is received by him, "as if the judge had been present in court to direct entry of the judgment," does not, in the opinion of this writer, amount to a requirement that the judge who writes the decision should still be somewhere exercising the functions of judge at the time when the decision is filed. As the question is merely one as to be the interpretation of this statutory provision, it would seem hardly necessary to enlarge upon the subject but we find ample authority in the decisions of American courts to support the view here advanced.
A plain distinction is established between the rendering of judgment and its entry in the records of the court. The act of making the decision or rendering the judgment of the court is a judicial act; the act of entering the judgment of the court is a judicial act; the act of entering the judgment is a clerical or ministerial act. (Hamill v. Gibson, 61 Ala., 261; Shenandoah Nat. Bank v. Read, 86 Iowa, 136; Tracy v. Beeson, 47 Iowa, 155; State v. Henderson, 164 Mo., 347; Comstock v. Boyle, 134 Wis., 613.) The decisions here cites fully sustain, in our opinion, the conclusion that if a judgment is pronounced, according to a law, by a person who is clothed with judicial authority, the circumstance that it may not be filed until after he ceases to be judge, does not affect the validity of the judgment.
If this court had accepted the view just expressed, it would have been necessary to decide of Judge Barretto was invalid by reason of the fact that it bears date upon Sunday. We do not care to enter into this matter, but will merely make a suggestion concerning the application of the American decisions on this subject. It is well settled in many States, though not in all, that a session of open court for hearing and determining causes in ordinary course cannot be lawful held on Sunday. If follows that in these States any judicial act which can only be lawfully done in open court is void if it appears to have been done on Sunday. But we are not aware that any judicial act which is not required to be done in open court has ever been held to be void because done on Sunday.
In the practice of our own courts it is clear that the writing of an opinion and the rendering of judgment in a civil case are not acts which must be done in open court. The trial, or final hearing on the merits, must of course take place in open court, unless the parties otherwise agree; but when the judge takes the case under advisement, he goes to his private judicial office or to his habitation and there prepares his decisions. The parties thereafter do not appear before him to hear the judgment formally delivered; and in fact the next thing they learn about the matter is when the clerk notifies them of the decision. Even if it be admitted that a lawful session of court can not be held on Sunday, it by no means follows that the act of writing and signing a decision of that day is void; and the writer is inclined to the view that a decision signed on Sunday is in all respects as valid as any other.
, dissenting:chanrob1es virtual 1aw library
Four dates are to be remembered. The trial of the election contest terminated on October 5, 1916. The decision was signed by Alberto Barretto on Sunday, January 14, 1917. Barretto took the oath of office as Secretary of Finance on Monday, January 15, 1917. The decision was received by the clerk of the Court of First Instance of Rizal and filed by him on January 17, 1917.
A judgment is what is considered and rendered by the court. The entry is merely a memorial of what the judgment consists. A judgment is the judicial act of the court. The entry is the ministerial act of the clerk. The judgment rendered is the judgment entered. The record of a judgment should not be confused with the judgment itself. The terms "rendition" and "entry" are used in different senses. The distinction is that a judgment is rendered when handed down by the court, and entered when actually entered in the Judgment Book. A judgment derives its force from its rendition by the judge. When so pronounced the judicial act is complete. A judgment is operative from the date of its rendition. The record is merely proof of the judgment. The validity of the judgment properly rendered is not affected by the delay of the clerk in entering it in the court record. Recording is not essential as between the parties. So it has been held that it is not fatal to a judgment that it is not entered by the clerk until after the expiration of the term of office of the judge who rendered it. (Ex parte Morgan , 144 U. s. 174; Crim v. Kessing , 89 Cal., 478; In re Cool , 42 Colo., 130; State v. Henderson , 164 Mo., 347; 15 R.C L., pages 571 et seq.)
Judgments can be rendered in different ways. One method is by the judge signing. This is the Philippine practice. Signing is then rendition. The judge is permitted to render his judgment by signing even after he has left the province in which the session of court was held. This is authorized by Act. No. 575, as superseded by Act No. 867, section 13, reading as follows:jgc:chanrobles.com.ph
"Whenever a judge of a Court of First Instance or a justice of the Supreme Court shall hold a session, special or regular, of the Court of First Instance of any province, and shall thereafter leave entered judgment in all the cases which were heard at such session, it shall be lawful for him, 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: Provided, however, That no judgment shall be valid unless the same was signed by the judge while within the jurisdiction of the Philippine Islands. Whenever a judge shall prepare and sign his judgment beyond the jurisdiction of the court of which it is to be a judgment, he shall inclose the same in an envelope and direct it to the clerk of the proper court and send the same by registered mail."cralaw virtua1aw library
JUDICIAL ACTS ON SUNDAYS.
The decisions regarding judicial acts performed on Sundays and legal holidays are not uniform. In the absence of statute, it is the general rule that a judgment rendered on a legal holiday is valid. Other courts have said that a judgment rendered on Sunday is void. Trials conducted on holidays have been held lawful. Judgments entered on Sundays have been upheld; the United States Supreme Court found otherwise in Ball v. United States ( 140 U. S., 118). The American cases generally concern judicial acts which can only be lawfully done in open court. As under our facts the judgment of Judge Barretto was not entered on Sunday, but was signed on that day, and as rendition in open court is here not required, most of these cases are not in point. (See 19 L. R. A., Notes, pages 316 et seq.)
In the Philippines, Sundays are legal holidays. Sessions of courts are convened on "work days." On holidays, the law provides the courts shall be closed. However, overtime work is permitted for Government officers and employees on holidays. (Administrative Code of 1917, sections 29, 161, 563, and 566.) There is no law prohibiting a judge from laboring, or form performing the manual work of signing a judgment, on a Sunday.
DE FACTO JUDGES.
A de facto judge is one who exercise the duties of a judicial office, under color of title. The acts of a judge de facto are not open to attack. To illustrate with one case. The Constitution of Massachusetts provided that," No judge of any court . . . shall, at any time, have a seat in the Senate or House of Representatives." One Hawkes, while holding the office of special justice, was elected a representative to the General Court, duly qualified, and took his seat, and was such representative when the petitioner in this case was convicted. The petitioner contended that by accepting the seat in the Legislature, Hawkes ceased to be a justice, and that the conviction and commitment was therefore illegal. The Supreme Court of Massachusetts found Hawkes to be judge de facto, and upheld the regularity of the proceedings resulting in the conviction of the accused. (Sheehan’s Case , 122 Mass., 445. See also Woodside v. Wagg, 71 Me., 207; and Cocke v. Halsey , 16 Peters, 71.) We need not, therefore, determine if Barretto was a judge de jure. It is sufficient if he was a judge de facto.
APPLICATION OF PRINCIPLES TO FACTS.
Between October 5, 1916, when the trial terminated, and January 15, 1917, when Barretto took the oath as Secretary of Finance, was a period of there months. We cannot fairly presume that in this complicated election contest Barretto spontaneously and off-hand dictated his decision on January 14. It must have been "prepared by him during this three months periods while a judge de jure. The case was then judicially "considered" by him. This judgment in its fundamentals consequently emanated from the bosom of "Judge" Barretto and not from "Secretary" Barretto. To make the judgment valid, all that Judge Barretto had to do was to sign the judgment. Had he done so on Saturday, January 13, no question could be raised. Nevertheless, on Sunday, January 14, he was still not only in possession of the office of judge of first instance under some color of title, but was in actual possession. The law also permitted him to render the judgment outside of his district. When he signed on Sunday, January 14, he still being judge of first instance, the judicial act was complete and the judgment may have been valid from every viewpoint. However this may be, and admitting that he could not lawfully render a judgment on Sunday, at least from midnight of January 14 until the time he took the oath of office, on January 14, a secular day, he was looked upon as a judge of first instance. All that remained for him on Monday when he was abandoning his office of judge of first instance was the manual act of transmitting the judgment prepared and signed by him as judge of first instance. Even on Monday, January 15, after he had taken the oath as Secretary of Finance, he could be considered, for the purposes of this judgment, as a judge de facto of the Court of First Instance of Rizal. The fact that the judgment did not reach the clerk and was not filed by him until Wednesday, January 17, is absolutely of no importance.
We are convinced that the alleged judgment prepared and signed by Alberto Barretto is a valid judgment of a judge of first instance which it is the duty of this court to consider on appeal. As a practical matter it may further be suggested that the result of holding this judgment void is merely to make for delay, because all the evidence necessary for a decision is in, and because all that the present judge of first instance will have to do is again to render a judgment, after which no matter what the decision, without doubt, the case will once more come before us.