GR L 16332; (December, 1920)

EN BANC

G.R. No. L-16332 December 18, 1920

JULIAN OCAMPO, petitioner,

vs.
MAXIMINO MINA, judge, and TOMAS AREJOLA, respondents.

James Ross and Mario Guariña for petitioner.
Rafael de la Sierra and Vicenta de Vera for respondent Arejola.

VILLAMOR, J.:

The present proceeding was decided by this court on September 23, 1920. ¹ The facts are stated in said decision. The question raised by the petition, to the effect that the Court of First Instance of Ambos Camarines did not acquire jurisdiction over the person of one of the protestees, now the petitioner, Julian Ocampo, by the fact of his having been notified by publication of notice in several newspapers of general circulation in the province, was then decided in favor of the petitioner, for which reason a writ of prohibition was issued, with costs against the respondents, in accordance with the prayer in this petition.

Thereafter, that is, on September 28 last, one of the respondents, Tomas Arejola, filed a motion for reconsideration, alleging that by this decision he was deprived of his right to make a defense and of an opportunity to state to the court the facts upon which his defense was based. At the same time he filed his answer, in which he denies each and every one of the facts alleged in the complaint which are not clearly admitted in the following

FIRST SPECIAL DEFENSE.

(a) That the motion of protest of the respondent Tomas Arejola was filed in the Court of First Instance of Ambos Camarines on June 27, 1919.

(b) That after the counting of the ballots by the provincial board the petitioner herein, Julian Ocampo, was declared elected to the office of provincial governor of the Province of Ambos Camarines.

(c) That the protestee, Julian Ocampo, was duly notified of the motion of protest within the prescribed period, a copy of the motion of protest and the corresponding notice thereof having been sent to him by registered mail. Said motion and notice were delivered by the post-office of the municipality of Naga, Ambos Camarines, on July 2, 1919, to Ramon Enrile, jr., brother-in-law of Julian Ocampo and duly authorized by the latter to receive his correspondence, registered mail included; and that, besides the notification to said protestee, Julian Ocampo, the following interested parties were also notified within the prescribed period, namely; Severo Cea and Agaton Ortiz on the same day, June 27, 1919, and Francisco Botor on or about July 5, 1919.

SECOND SPECIAL DEFENSE.

(1) That in election case, “Tomas Arejola vs. Julian Ocampo and others,” Julian Ocampo, petitioner herein, through his lawyers Messrs. Manly, Alvarez, and De la Rosa, filed on August 11, 1919, in the Court of First Instance of Ambos Camarines, a special and limited appearance for the sole purpose of objecting to the jurisdiction of the court, but later on and in the same election case, that is, on February 12, 1920, the petitioner herein, Julian Ocampo, and his attorneys Messrs. Manly, Goddard, and Lockwood, Fernando Alvarez and Mariano de la Rosa, filed a written general appearance which is attached to the corresponding record, although he stated that he did not renounce any right relative to the jurisdiction over the person of the respondent.

(2) That in addition to this general appearance the protestee, through his lawyers, appeared at the trial, and they not only failed to limit themselves to the purposes of the special appearance, but acted as lawyers for the protestee with general powers, cross-examining the witnesses for the protestant, filing motions and other pleadings, thereby in effect admitting the jurisdiction of the court and waiving the effect of their special appearance.

Inasmuch as the respondent, Tomas Arejola, had not yet filed his answer to the petition, his demurrer being then pending when the decision of September 23 was rendered, the motion for reconsideration was, by order of this court of November 19, granted and the answer filed by him was considered.

The petitioner presented a demurrer to said answer on the ground that it did not state facts sufficient to constitute a defense. After hearing the parties, this demurrer was overruled by the court by order of December 3, and the parties were given a period within which they could submit a memorandum on the merits of the case in support of their respective claims.lawphi1.net

The questions presented by the pleadings of the petitioner and respondent are two, namely:

(a) Whether the notification to the protestee of the motion of protest by registered mail is valid or not;

(b) Whether a general appearance entered by the protestee after twenty days from the filing of the protest confers upon the court jurisdiction over said protestee.

The first of these questions has already been decided by this court in several election cases. In the case of Deogracias vs. Abreu and De la Santa (36 Phil., 492, 495), this court said: “The other evidence of the service of the notice on the respondent Gumersindo de la Santa offered by the contestant was the receipt acknowledging delivery of register package to which the court refers in its opinion. We are satisfied that this receipt is not sufficient evidence of service to comply with the provisions of the Code of Civil Procedure with respect to the service of a summons in an action, which provisions we have held applicable to the service of notice of contest in cases of this character.”

The same question was discussed and settled in the case of Flores vs. Zurbito (37 Phil., 746, 752.) In this case it was alleged by the protestant, among others, that notice of the protest was served upon Jose Zurbito, Antonio Rocha, and Rosendo Gabionsa by sending to each of them a copy thereof by registered mail, which was duly received; that besides said notice by registered mail a copy of the protest was delivered to Jose Zurbito and received by him in person. The court said: “Considering, therefore, (a) that all of the candidates received actual notice of the protest as well as a copy of the protest, and (b) that Jose Zurbito not only received actual notice of the protest together with a copy of the same, but actually appeared in court and thereby gave the court jurisdiction over his person, it is hereby ordered and decreed that the judgment dismissing the protest be revoked” . . . .

The attorneys for both parties dwelt at length on the apparent contradiction between the two decisions of this court just cited, for while in the case of Deogracias vs. Abreu and De la Santa (supra) it was held that the return receipt of a registered package does not constitute sufficient evidence of notification, in the case of Flores vs. Zurbito (supra), it was admitted that all candidates have been duly notified of the protest. Upon carefully examining said decisions, it appears that the contradiction noted by the attorneys is more apparent than real. In the first case the decision concerned the proof of service and was to the effect that the return receipt of a registered package was not sufficient proof that the protestee has been duly notified. It should have been proved that registered package in fact contained the protest and notice thereof and that the protestee actually received them. Such was the substance of the doctrine laid down in the Zurbito case. That the court was of the opinion that the notification of the protest to the protestee made within the twenty days fixed by law by means of registered mail was valid, is clearly inferred from the holding of this court in the case of Biagtan vs. Llorente and Garcia (R.G. No. 15736, decided August 23, 1919. ¹ Biagtan filed a petition for certiorari in this court against Judge Llorente and Andres Garcia, praying that a writ of prohibition should issue against the judge to prevent him from taking cognizance of the election protest instituted by Andres Garcia against the petitioner Cosme Biagtan. The ground of the petition was that the judge was without jurisdiction over the person of the protestee, inasmuch as the notification was made by means of registered mail. The court held that, according to the evidence, Cosme Biagtan and Pedro Languit were duly notified, having received the registered envelopes which contained the copies of the protest and the notice, the former personally and the other through Jose Biagtan, son of Cosme Biagtan, who lived in the latter’s house and was duly authorized by him to get the registered mail. This court, in deciding the petition of Cosme Biagtan, held that the petition could not be granted.

From these decisions it is thus seen that on this question the marked tendency in this jurisdiction is to consider the notification of protest made within the period fixed by law by means of registered mail as valid, whenever it is proved that the registered package contained a copy of the protest and the notice, and that the package was received by the addressee personally or through a duly authorized representative.

The attorney for the petitioner contends that, according to the evidence adduced by the respondent Tomas Arejola in the lower court, the petitioner could not have authorized Roman Enrile to receive the registered package which is said to contain the motion of protest and the notification; and for this purpose our attention is invited to two telegrams and to a copy of a telegram, which appear in the record of the Court of First Instance, folios 23, 24, and 25. We have examined the telegrams referred to and it appears that the telegram signed by one Antonio Herrera and dated at Manila, on June 29, 1919, is addressed to Tomas Arejola to whom the sender says: “They stay at Guariñas, No. 1, Caloocan but he is now in Sibul Hotel will return probably tomorrow.” (“Hospedan casa Guariña No. 1, Caloocan pero ahora esta en Sibul Hotel probable vuelva mañana.”) The copy of a telegram is signed by Tomas Arejola and is addressed to Julian Ocampo, elected governor of Camarines, at the house of Senator Guariña, and the address of the other telegram dated, Caloocan, July 2, 1919, at p.m., is Naga, apparently in relation to the telegram of Tomas Arejola. By this telegram the telegraph operator at Caloocan informs Tomas Arejola that his telegram addressed to Julian Ocampo was filed in that office, because the addressee could not be found in the place stated in the telegram. We agree with the trial court that said telegram shows only one thing, to wit: that the information obtained by the respondent, in his efforts to find the whereabouts of Julian Ocampo, was contradictory, so that it could not be correctly ascertained where said Julian Ocampo was, although he could then be either at the municipality of Caloocan or at Naga, Ambos Camarines.

That the petitioner Julian Ocampo authorized Ramon Enrile to get the registered package referred to from the post-office at the municipality of Naga is a fact sufficiently proved by Exhibit AX, which is an authorization signed by Julian Ocampo, and by the testimony of Pedro Ragante, telegraph operator at Naga and charged with the care and delivery of registered mail and packages in said office, and of Attorney Fulgencio Contreras, both of who identified the signature of Julian Ocampo which appears in said exhibit. That Ramon Enrile took said registered package from the post-office appears from the return receipt signed by him and appearing at folio 26 of the record and from the declaration of Pedro Ragante himself. And that said registered package contained the motion of protest and the notice to the protestee, Julian Ocampo, appears equally proved by the testimony of Tomas Arejola and the affidavit of Manuel Caldera, who deposited said package in the post-office of Naga.

With respect to the petition of the respondent Tomas Arejola, made to the court at the commencement of the trial of the election protest, to the effect that the protestee, Julian Ocampo, should be notified by publication in the newspapers of general circulation in the province, it appears in the record that this was done with the object of better securing the result of notifying the protestee, Julian Ocampo, who could not then be found ? this by no means destroying the fact that he also had been notified by means of registered mail.

This court has held in several case that the question whether all the candidates voted for in an election had been notified or not should, as a question of fact, be raised and determined in the Court of First Instance. In accordance with this rule, this question was raised in the lower court, which, in view of the evidence presented by the protestant, respondent herein, found, as proved, that the petitioner, Julian Ocampo had been duly notified of the protest within the prescribed period.

In the case of Bautista vs. Gloria (R.G. No. 15805, resolution of September 16, 1919), ¹ in which the petitioner prayed that the decision of the respondent judge rendered in an election case in which it was alleged that the candidates had not been duly notified of the protest, should be annulled, this court said: “The respondent judge having heard the evidence and on the evidence so taken by him decided the question whether or not all the candidates voted for were notified, the petition is denied, without any special pronouncement as to costs.” In the decision rendered in this case of September 23d last, we held that the protestant (a) may follow the procedure which he desires, provided that he in reality notifies all the candidates voted for within twenty days from the date of the filing of the protest, and (b) that he may, if he desires, follow the procedure laid down in section 396 of Act No. 190.

It is therefore our opinion, and, we so hold, that, in view of the decision rendered by the trial judge upon the evidence adduced before him, the petitioner, Julian Ocampo, was duly notified of the protest within the prescribed period by registered mail; and, that, the court acquired jurisdiction over his person in the election protest presented against him by the respondent Tomas Arejola.

Having reached this conclusion, we need not dwell at length upon the second question with respect to the effects of a general appearance in election cases, in view of the doctrine laid down by this court in the case of Flores vs. Zurbito (37 Phil., 746, 747), which is as follows:

A voluntary appearance is a waiver of the necessity of a formal notice. An appearance in whatever form, without expressly objecting to the jurisdiction of the court over the person, is a submission to the jurisdiction of the court over the person. An appearance may be made by filing a formal motion, or plea, or answer. When the appearance is by motion for the purpose of objecting to the jurisdiction of the court over the person, it must be for the sole and separate purpose of objecting to the jurisdiction of the court. If his motion is for any other purpose than to object to the jurisdiction of the court over his person, he thereby submits himself to the jurisdiction of the court. A special appearance by motion made for the purpose of objecting to the jurisdiction of the court over the person will be held to be a general appearance, if the party in said motion should, for example, ask for a dismissal of the action upon the further ground that the court had no jurisdiction over the subject-matter.

In the present case, it appears, from the original record of the trial court, that the petitioner, through his lawyers, appeared in the court on August 11, 1918, for the special and sole purpose of objecting to the jurisdiction of the court. This special appearance did not confer upon the court jurisdiction over the person of the petitioner.

But, in addition to this, petitioner, through his lawyers, filed in the trial court on February 26, 1919, a general appearance with the reservation of a special appearance. More than this, the petitioner, through his lawyers, not only objected to the jurisdiction of the court, but also cross-examined the witness of the protestant, objected to the introduction of certain evidence, presented some of his own evidence, and on March 1, 1919, filed his answer to the protest, which may be seen in folios 234 and 235 of the original record and which denies generally the allegations of said protest, sets up a special defense and asks for the dismissal of the protest. The last appearance, together with the acts performed by the petitioner during the course of the trial of the protest, amounts to a submission to the jurisdiction of the court.

The fact that the special or general appearance of the protestee, Julian Ocampo, was made after twenty days from the filing of the protest is not, as the petitioner claims, a defect that annuls the proceeding or which divests the appearance of all legal effect, for the law does not fix any period for such appearance, the person appearing having the right either to appear before or during the trial of the protest. What confers jurisdiction upon the court is not the appearance of the protestee or of the other candidates voted for in an election, but the filing of the protest in the court of the district within two weeks after the declaration of the result of the election, the notification of said protest to all candidates voted for in said election within twenty days from the filing of the protest and the filing of the corresponding bond within the period fixed by the court.

From what has been said, the dispositive part of the decision rendered in this case on September 23, 1920, is vacated and set aside and the petition is denied, with costs against the petitioner.

Ten days after notification of decision let judgment be entered in conformity herewith and five days later let the record be returned for proper proceedings to the court of origin, in order that it may, without any delay, continue the trial of election protest filed by the respondent Tomas Arejola against the petitioner Julian Ocampo. So ordered.

Araullo, Street, and Avanceña, JJ., concur.

Footnotes

1 (p. 880, post.)

1 Not reported.

1 Not reported.

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