G.R. No. 112573 February 9, 1995 NORTHWEST ORIENT AIRLINES, INC. petitioner, vs. COURT OF APPEALS and C.F.

SHARP & COMPANY INC., respondents.

PADILLA, JR., J.: This petition for review on certiorari seeks to set aside the decision of the Court of Appeals affirming the dismissal of the petitioner's complaint to enforce the judgment of a Japanese court. The principal issue here is whether a Japanese court can acquire jurisdiction over a Philippine corporation doing business in Japan by serving summons through diplomatic channels on the Philippine corporation at its principal office in Manila after prior attempts to serve summons in Japan had failed. Petitioner Northwest Orient Airlines, Inc. (hereinafter NORTHWEST), a corporation organized under the laws of the State of Minnesota, U.S.A., sought to enforce in Civil Case No. 83-17637 of the Regional Trial Court (RTC), Branch 54, Manila, a judgment rendered in its favor by a Japanese court against private respondent C.F. Sharp & Company,

Inc., (hereinafter SHARP), a corporation incorporated under Philippine laws. As found by the Court of Appeals in the challenged decision of 10 November 1993, 1 the following are the factual and procedural antecedents of this controversy: On May 9, 1974, plaintiff Northwest Airlines and defendant C.F. Sharp & Company, through its Japan branch, entered into an International Passenger Sales Agency Agreement, whereby the former authorized the latter to sell its air transportation tickets. Unable to remit the proceeds of the ticket sales made by defendant on behalf of the plaintiff under the said agreement, plaintiff on March 25, 1980 sued defendant in Tokyo, Japan, for collection of the unremitted proceeds of the ticket sales, with claim for damages. On April 11, 1980, a writ of summons was issued by the 36th Civil Department, Tokyo District Court of Japan against defendant at its office at the Taiheiyo Building, 3rd floor, 132, Yamashita-cho, Naka-ku, Yokohoma, Kanagawa Prefecture. The attempt to serve the summons was unsuccessful because the bailiff was

advised by a person in the office that Mr. Dinozo, the person believed to be authorized to receive court processes was in Manila and would be back on April 24, 1980. On April 24, 1980, bailiff returned to the defendant's office to serve the summons. Mr. Dinozo refused to accept the same claiming that he was no longer an employee of the defendant. After the two attempts of service were unsuccessful, the judge of the Tokyo District Court decided to have the complaint and the writs of summons served at the head office of the defendant in Manila. On July 11, 1980, the Director of the Tokyo District Court requested the Supreme Court of Japan to serve the summons through diplomatic channels upon the defendant's head office in Manila. On August 28, 1980, defendant received from Deputy Sheriff Rolando Balingit the writ of summons (p. 276, Records). Despite receipt of the same, defendant failed to appear at the scheduled hearing. Thus, the Tokyo Court proceeded to hear the plaintiff's complaint and on [January

29, 1981], rendered judgment ordering the defendant to pay the plaintiff the sum of 83,158,195 Yen and damages for delay at the rate of 6% per annum from August 28, 1980 up to and until payment is completed (pp. 12-14, Records). On March 24, 1981, defendant received from Deputy Sheriff Balingit copy of the judgment. Defendant not having appealed the judgment, the same became final and executory. Plaintiff was unable to execute the decision in Japan, hence, on May 20, 1983, a suit for enforcement of the judgment was filed by plaintiff before the Regional Trial Court of Manila Branch 54. 2 On July 16, 1983, defendant filed its answer averring that the judgment of the Japanese Court sought to be enforced is null and void and unenforceable in this jurisdiction having been rendered without due and proper notice to the defendant and/or with collusion or fraud and/or upon a clear mistake of law and fact (pp. 41-45, Rec.). Unable to settle the case amicably, the case was tried on the merits. After the

plaintiff rested its case, defendant on April 21, 1989, filed a Motion for Judgment on a Demurrer to Evidence based on two grounds: (1) the foreign judgment sought to be enforced is null and void for want of jurisdiction and (2) the said judgment is contrary to Philippine law and public policy and rendered without due process of law. Plaintiff filed its opposition after which the court a quo rendered the now assailed decision dated June 21, 1989 granting the demurrer motion and dismissing the complaint (Decision, pp. 376-378, Records). In granting the demurrer motion, the trial court held that: The foreign judgment in the Japanese Court sought in this action is null and void for want of jurisdiction over the person of the defendant considering that this is an action in personam; the Japanese Court did not acquire jurisdiction over the person of the defendant because jurisprudence requires that the defendant be served with summons in Japan in order for the Japanese Court to

acquire jurisdiction over it, the process of the Court in Japan sent to the Philippines which is outside Japanese jurisdiction cannot confer jurisdiction over the defendant in the case before the Japanese Court of the case at bar. Boudard versus Tait 67 Phil. 170. The plaintiff contends that the Japanese Court acquired jurisdiction because the defendant is a resident of Japan, having four (4) branches doing business therein and in fact had a permit from the Japanese government to conduct business in Japan (citing the exhibits presented by the plaintiff); if this is so then service of summons should have been made upon the defendant in Japan in any of these alleged four branches; as admitted by the plaintiff the service of the summons issued by the Japanese Court was made in the Philippines thru a Philippine Sheriff. This Court agrees that if the defendant in a foreign court is a resident in the court of that foreign court such court could acquire jurisdiction

over the person of the defendant but it must be served upon the defendant in the territorial jurisdiction of the foreign court. Such is not the case here because the defendant was served with summons in the Philippines and not in Japan. Unable to accept the said decision, plaintiff on July 11, 1989 moved for reconsideration of the decision, filing at the same time a conditional Notice of Appeal, asking the court to treat the said notice of appeal "as in effect after and upon issuance of the court's denial of the motion for reconsideration." Defendant opposed the motion for reconsideration to which a Reply dated August 28, 1989 was filed by the plaintiff. On October 16, 1989, the lower court disregarded the Motion for Reconsideration and gave due course to the plaintiff's Notice of Appeal. 3 In its decision, the Court of Appeals sustained the trial court. It agreed with the latter in its reliance upon Boudard vs. Tait 4 wherein it was held that "the process of the court has no extraterritorial

effect and no jurisdiction is acquired over the person of the defendant by serving him beyond the boundaries of the state." To support its position, the Court of Appeals further stated: In an action strictly in personam, such as the instant case, personal service of summons within the forum is required for the court to acquire jurisdiction over the defendant (Magdalena Estate Inc. vs. Nieto, 125 SCRA 230). To confer jurisdiction on the court, personal or substituted service of summons on the defendant not extraterritorial service is necessary (Dial Corp vs. Soriano, 161 SCRA 739). But while plaintiff-appellant concedes that the collection suit filed is an action in personam, it is its theory that a distinction must be made between an action in personam against a resident defendant and an action in personam against a nonresident defendant. Jurisdiction is acquired over a non-resident defendant only if he is served personally within the jurisdiction of the court and over a resident defendant if by personal, substituted or constructive service conformably to statutory authorization. Plaintiff-appellant argues

that since the defendant-appellee maintains branches in Japan it is considered a resident defendant. Corollarily, personal, substituted or constructive service of summons when made in compliance with the procedural rules is sufficient to give the court jurisdiction to render judgment in personam. Such an argument does not persuade. It is a general rule that processes of the court cannot lawfully be served outside the territorial limits of the jurisdiction of the court from which it issues (Carter vs. Carter; 41 S.E. 2d 532, 201) and this is regardless of the residence or citizenship of the party thus served (Iowa-Rahr vs. Rahr, 129 NW 494, 150 Iowa 511, 35 LRC, NS, 292, Am. Case 1912 D680). There must be actual service within the proper territorial limits on defendant or someone authorized to accept service for him. Thus, a defendant, whether a resident or not in the forum where the action is filed, must be served with summons within that forum. But even assuming a distinction between a resident defendant and non-resident

defendant were to be adopted, such distinction applies only to natural persons and not in the corporations. This finds support in the concept that "a corporation has no home or residence in the sense in which those terms are applied to natural persons" (Claude Neon Lights vs. Phil. Advertising Corp., 57 Phil. 607). Thus, as cited by the defendant-appellee in its brief: Residence is said to be an attribute of a natural person, and can be predicated on an artificial being only by more or less imperfect analogy. Strictly speaking, therefore, a corporation can have no local residence or habitation. It has been said that a corporation is a mere ideal existence, subsisting only in contemplation of law an invisible being which can have, in fact, no locality and can occupy no space, and therefore cannot have a dwelling place. (18 Am. Jur. 2d, p. 693 citing Kimmerle v. Topeka, 88 370, 128 p. 367; Wood v. Hartfold F. Ins. Co., 13 Conn 202) Jurisprudence so holds that the foreign or domestic character of a corporation is to be determined by the place of its origin where its charter was granted and not by the

location of its business activities (Jennings v. Idaho Rail Light & P. Co., 26 Idaho 703, 146 p. 101), A corporation is a "resident" and an inhabitant of the state in which it is incorporated and no other (36 Am. Jur. 2d, p. 49). Defendant-appellee is a Philippine Corporation duly organized under the Philippine laws. Clearly, its residence is the Philippines, the place of its incorporation, and not Japan. While defendant-appellee maintains branches in Japan, this will not make it a resident of Japan. A corporation does not become a resident of another by engaging in business there even though licensed by that state and in terms given all the rights and privileges of a domestic corporation (Galveston H. & S.A.R. Co. vs. Gonzales, 151 US 496, 38 L ed. 248, 4 S Ct. 401). On this premise, defendant appellee is a non-resident corporation. As such, court processes must be served upon it at a place within the state in which the action is brought and not elsewhere (St. Clair vs. Cox, 106 US 350, 27 L ed. 222, 1 S. Ct. 354). 5

It then concluded that the service of summons effected in Manila or beyond the territorial boundaries of Japan was null and did not confer jurisdiction upon the Tokyo District Court over the person of SHARP; hence, its decision was void. Unable to obtain a reconsideration of the decision, NORTHWEST elevated the case to this Court contending that the respondent court erred in holding that SHARP was not a resident of Japan and that summons on SHARP could only be validly served within that country. A foreign judgment is presumed to be valid and binding in the country from which it comes, until the contrary is shown. It is also proper to presume the regularity of the proceedings and the giving of due notice therein. 6 Under Section 50, Rule 39 of the Rules of Court, a judgment in an action in personam of a tribunal of a foreign country having jurisdiction to pronounce the same is presumptive evidence of a right as between the parties and their successors-ininterest by a subsequent title. The judgment may, however, be assailed by evidence of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. Also, under Section 3 of Rule 131, a court, whether of the Philippines or elsewhere, enjoys the presumption

that it was acting in the lawful exercise of jurisdiction and has regularly performed its official duty. Consequently, the party attacking a foreign judgment has the burden of overcoming the presumption of its validity. 7 Being the party challenging the judgment rendered by the Japanese court, SHARP had the duty to demonstrate the invalidity of such judgment. In an attempt to discharge that burden, it contends that the extraterritorial service of summons effected at its home office in the Philippines was not only ineffectual but also void, and the Japanese Court did not, therefore acquire jurisdiction over it. It is settled that matters of remedy and procedure such as those relating to the service of process upon a defendant are governed by the lex fori or the internal law of the forum. 8 In this case, it is the procedural law of Japan where the judgment was rendered that determines the validity of the extraterritorial service of process on SHARP. As to what this law is is a question of fact, not of law. It may not be taken judicial notice of and must be pleaded and proved like any other fact. 9 Sections 24 and 25, Rule 132 of the Rules of Court provide that it may be evidenced by an official publication or by a duly attested or authenticated copy thereof. It was then incumbent upon SHARP to

present evidence as to what that Japanese procedural law is and to show that under it, the assailed extraterritorial service is invalid. It did not. Accordingly, the presumption of validity and regularity of the service of summons and the decision thereafter rendered by the Japanese court must stand. Alternatively in the light of the absence of proof regarding Japanese law, the presumption of identity or similarity or the so-called processual presumption 10 may be invoked. Applying it, the Japanese law on the matter is presumed to be similar with the Philippine law on service of summons on a private foreign corporation doing business in the Philippines. Section 14, Rule 14 of the Rules of Court provides that if the defendant is a foreign corporation doing business in the Philippines, service may be made: (1) on its resident agent designated in accordance with law for that purpose, or, (2) if there is no such resident agent, on the government official designated by law to that effect; or (3) on any of its officers or agents within the Philippines. If the foreign corporation has designated an agent to receive summons, the designation is exclusive, and service of summons is without force and gives the court no jurisdiction unless made upon him. 11

Where the corporation has no such agent, service shall be made on the government official designated by law, to wit: (a) the Insurance Commissioner in the case of a foreign insurance company; (b) the Superintendent of Banks, in the case of a foreign banking corporation; and (c) the Securities and Exchange Commission, in the case of other foreign corporations duly licensed to do business in the Philippines. Whenever service of process is so made, the government office or official served shall transmit by mail a copy of the summons or other legal proccess to the corporation at its home or principal office. The sending of such copy is a necessary part of the service. 12 SHARP contends that the laws authorizing service of process upon the Securities and Exchange Commission, the Superintendent of Banks, and the Insurance Commissioner, as the case may be, presuppose a situation wherein the foreign corporation doing business in the country no longer has any branches or offices within the Philippines. Such contention is belied by the pertinent provisions of the said laws. Thus, Section 128 of the Corporation Code 13 and Section 190 of the Insurance Code 14 clearly contemplate two situations: (1) if the corporation had left the Philippines or had ceased to transact business

therein, and (2) if the corporation has no designated agent. Section 17 of the General Banking Act 15 does not even speak a corporation which had ceased to transact business in the Philippines. Nowhere in its pleadings did SHARP profess to having had a resident agent authorized to receive court processes in Japan. This silence could only mean, or least create an impression, that it had none. Hence, service on the designated government official or on any of SHARP's officers or agents in Japan could be availed of. The respondent, however, insists that only service of any of its officers or employees in its branches in Japan could be resorted to. We do not agree. As found by the respondent court, two attempts at service were made at SHARP's Yokohama branch. Both were unsuccessful. On the first attempt, Mr. Dinozo, who was believed to be the person authorized to accept court process, was in Manila. On the second, Mr. Dinozo was present, but to accept the summons because, according to him, he was no longer an employee of SHARP. While it may be true that service could have been made upon any of the officers or agents of SHARP at its three other branches in Japan, the availability of such a recourse would not preclude service upon the proper government official, as stated above.

As found by the Court of Appeals, it was the Tokyo District Court which ordered that summons for SHARP be served at its head office in the Philippine's after the two attempts of service had failed. 16 The Tokyo District Court requested the Supreme Court of Japan to cause the delivery of the summons and other legal documents to the Philippines. Acting on that request, the Supreme Court of Japan sent the summons together with the other legal documents to the Ministry of Foreign Affairs of Japan which, in turn, forwarded the same to the Japanese Embassy in Manila . Thereafter, the court processes were delivered to the Ministry (now Department) of Foreign Affairs of the Philippines, then to the Executive Judge of the Court of First Instance (now Regional Trial Court) of Manila, who forthwith ordered Deputy Sheriff Rolando Balingit to serve the same on SHARP at its principal office in Manila. This service is equivalent to service on the proper government official under Section 14, Rule 14 of the Rules of Court, in relation to Section 128 of the Corporation Code. Hence, SHARP's contention that such manner of service is not valid under Philippine laws holds no water. 17 In deciding against the petitioner, the respondent court sustained the trial court's reliance on Boudard vs. Tait 18 where this Court held:

The fundamental rule is that jurisdiction in personam over nonresidents, so as to sustain a money judgment, must be based upon personal service within the state which renders the judgment. xxx xxx xxx The process of a court, has no extraterritorial effect, and no jurisdiction is acquired over the person of the defendant by serving him beyond the boundaries of the state. Nor has a judgment of a court of a foreign country against a resident of this country having no property in such foreign country based on process served here, any effect here against either the defendant personally or his property situated here. Process issuing from the courts of one state or country cannot run into another, and although a nonresident defendant may have been personally served with such process in the state or country of his domicile, it will not give such jurisdiction as to authorize a personal judgment against him. It further availed of the ruling in Magdalena Estate, Inc. vs. Nieto 19 and Dial Corp. vs. Soriano, 20 as well as the principle laid down by the Iowa

Supreme Court in the 1911 case of Raher vs. Raher. 21 The first three cases are, however, inapplicable. Boudard involved the enforcement of a judgment of the civil division of the Court of First Instance of Hanoi, French Indo-China. The trial court dismissed the case because the Hanoi court never acquired jurisdiction over the person of the defendant considering that "[t]he, evidence adduced at the trial conclusively proves that neither the appellee [the defendant] nor his agent or employees were ever in Hanoi, French Indo-China; and that the deceased Marie Theodore Jerome Boudard had never, at any time, been his employee." In Magdalena Estate, what was declared invalid resulting in the failure of the court to acquire jurisdiction over the person of the defendants in an action in personam was the service of summons through publication against non-appearing resident defendants. It was claimed that the latter concealed themselves to avoid personal service of summons upon them. In Dial, the defendants were foreign corporations which were not, domiciled and licensed to engage in business in the Philippines and which did not have officers or agents, places of business, or properties here. On the other hand, in the instant case, SHARP was doing business in Japan and was maintaining four branches therein.

Insofar as to the Philippines is concerned, Raher is a thing of the past. In that case, a divided Supreme Court of Iowa declared that the principle that there can be no jurisdiction in a court of a territory to render a personal judgment against anyone upon service made outside its limits was applicable alike to cases of residents and nonresidents. The principle was put at rest by the United States Supreme Court when it ruled in the 1940 case of Milliken vs. Meyer 22 that domicile in the state is alone sufficient to bring an absent defendant within the reach of the state's jurisdiction for purposes of a personal judgment by means of appropriate substituted service or personal service without the state. This principle is embodied in section 18, Rule 14 of the Rules of Court which allows service of summons on residents temporarily out of the Philippines to be made out of the country. The rationale for this rule was explained in Milliken as follows: [T]he authority of a state over one of its citizens is not terminated by the mere fact of his absence from the state. The state which accords him privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties. "Enjoyment of the privileges of residence within the state,

and the attendant right to invoke the protection of its laws, are inseparable" from the various incidences of state citizenship. The responsibilities of that citizenship arise out of the relationship to the state which domicile creates. That relationship is not dissolved by mere absence from the state. The attendant duties, like the rights and privileges incident to domicile, are not dependent on continuous presence in the state. One such incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against him. 23 The domicile of a corporation belongs to the state where it was incorporated. 24 In a strict technical sense, such domicile as a corporation may have is single in its essence and a corporation can have only one domicile which is the state of its creation.
25

Nonetheless, a corporation formed in one-state may, for certain purposes, be regarded a resident in another state in which it has offices and transacts business. This is the rule in our jurisdiction and apropos thereto, it may be

necessery to quote what we stated in State Investment House, Inc, vs. Citibank, N.A., 26 to wit: The issue is whether these Philippine branches or units may be considered "residents of the Philippine Islands" as that term is used in Section 20 of the Insolvency Law . . . or residents of the state under the laws of which they were respectively incorporated. The answer cannot be found in the Insolvency Law itself, which contains no definition of the term, resident, or any clear indication of its meaning. There are however other statutes, albeit of subsequent enactment and effectivity, from which enlightening notions of the term may be derived. The National Internal Revenue Code declares that the term "'resident foreign corporation' applies to a foreign corporation engaged in trade or business within the Philippines," as distinguished from a "'non-resident foreign corporation' . . . (which is one) not engaged in trade or bussiness within the Philippines." [Sec. 20, pars. (h) and (i)].

The Offshore Banking Law, Presidential Decree No. 1034, states "that branches, subsidiaries, affiliation, extension offices or any other units of corporation or juridical person organized under the laws of any foreign country operating in the Philippines shall be considered residents of the Philippines. [Sec. 1(e)]. The General Banking Act, Republic Act No. 337, places "branches and agencies in the Philippines of foreign banks . . . (which are) called Philippine branches," in the same category as "commercial banks, savings associations, mortgage banks, development banks, rural banks, stock savings and loan associations" (which have been formed and organized under Philippine laws), making no distinction between the former and the latter in so far as the terms "banking institutions" and "bank" are used in the Act [Sec. 2], declaring on the contrary that in "all matters not specifically covered by special provisions applicable only to foreign banks, or their branches and agencies in the Philippines, said foreign banks or their branches and agencies lawfully doing business in the Philippines "shall be bound

by all laws, rules, and regulations applicable to domestic banking corporations of the same class, except such laws, rules and regulations as provided for the creation, formation, organization, or dissolution of corporations or as fix the relation, liabilities, responsibilities, or duties of members, stockholders or officers of corporation. [Sec. 18]. This court itself has already had occasion to hold [Claude Neon Lights, Fed. Inc. vs. Philippine Advertising Corp., 57 Phil. 607] that a foreign corporation licitly doing business in the Philippines, which is a defendant in a civil suit, may not be considered a non-resident within the scope of the legal provision authorizing attachment against a defendant not residing in the Philippine Islands; [Sec. 424, in relation to Sec. 412 of Act No. 190, the Code of Civil Procedure; Sec. 1(f), Rule 59 of the Rules of 1940, Sec. 1(f), Rule 57, Rules of 1964] in other words, a preliminary attachment may not be applied for and granted solely on the asserted fact that the defendant is a foreign corporation authorized to do business in the Philippines

 and is consequently and necessarily, "a party who resides out of the Philippines." Parenthetically, if it may not be considered as a party not residing in the Philippines, or as a party who resides out of the country, then, logically, it must be considered a party who does reside in the Philippines, who is a resident of the country. Be this as it may, this Court pointed out that: . . . Our laws and jurisprudence indicate a purpose to assimilate foreign corporations, duly licensed to do business here, to the status of domestic corporations. (Cf. Section 73, Act No. 1459, and Marshall Wells Co. vs. Henry W. Elser & Co., 46 Phil. 70, 76; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 411) We think it would be entirely out of line with this policy should we make a discrimination against a foreign corporation, like the petitioner, and subject its property to the harsh writ of seizure by attachment when it has complied not only with every requirement of law made specially

of foreign corporations, but in addition with every requirement of law made of domestic corporations. ... Obviously, the assimilation of foreign corporations authorized to do business in the Philippines "to the status of domestic corporations, subsumes their being found and operating as corporations, hence, residing, in the country. The same principle is recognized in American law: that the residence of a corporation, if it can be said to have a residence, is necessarily where it exercises corporate functions . . .;" that it is considered as dwelling "in the place where its business is done . . .," as being "located where its franchises are exercised . . .," and as being "present where it is engaged in the prosecution of the corporate enterprise;" that a "foreign corporation licensed to do business in a state is a resident of any country where it maintains an office or agent for transaction of its usual and customary business for venue purposes;" and that the "necessary element in its signification is locality of existence." [Words and Phrases,

Permanent Ed., vol. 37, pp. 394, 412, 493]. In as much as SHARP was admittedly doing business in Japan through its four duly registered branches at the time the collection suit against it was filed, then in the light of the processual presumption, SHARP may be deemed a resident of Japan, and, as such, was amenable to the jurisdiction of the courts therein and may be deemed to have assented to the said courts' lawful methods of serving process. 27 Accordingly, the extraterritorial service of summons on it by the Japanese Court was valid not only under the processual presumption but also because of the presumption of regularity of performance of official duty. We find NORTHWEST's claim for attorney's fees, litigation expenses, and exemplary damages to be without merit. We find no evidence that would justify an award for attorney's fees and litigation expenses under Article 2208 of the Civil Code of the Philippines. Nor is an award for exemplary damages warranted. Under Article 2234 of the Civil Code, before the court may consider the question of whether or not exemplary damages should be awarded, the plaintiff must show that he is entitled to moral, temperate, or compensatory damaged.

There being no such proof presented by NORTHWEST, no exemplary damages may be adjudged in its favor. WHEREFORE, the instant petition is partly GRANTED, and the challenged decision is AFFIRMED insofar as it denied NORTHWEST's claims for attorneys fees, litigation expenses, and exemplary damages but REVERSED insofar as in sustained the trial court's dismissal of NORTHWEST's complaint in Civil Case No. 8317637 of Branch 54 of the Regional Trial Court of Manila, and another in its stead is hereby rendered ORDERING private respondent C.F. SHARP L COMPANY, INC. to pay to NORTHWEST the amounts adjudged in the foreign judgment subject of said case, with interest thereon at the legal rate from the filing of the complaint therein until the said foreign judgment is fully satisfied. Costs against the private respondent. SO ORDERED. Padilla, Bellosillo, Quaison and Kapunan, JJ., concur.

G.R. No. L-45193

April 5, 1939

EMILIE ELMIRA RENEE BOUDARD, RAYMOND ANTONIN BOUDARD, GINETTE ROSE ADELAIDE BOUDARD and MONIQUE VICTOIRE BOUDARD, plaintiffsappellants, vs. STEWART EDDIE TAIT, defendant-appellee. Ramirez and Ortigas for appellants. Gibbs, McDonough and Ozaeta for appellee. DIAZ, J.: Plaintiffs appeal from a judgment of the Court of First Instance of Manila dismissing the case instituted by them, thereby overruling their complaint, and sentencing them to pay the costs. They now contend in their brief that: I. The lower court erred in not admitting Exhibits D, E, F and H to M-1 of plaintiffs. II. The lower court erred in declaring that it was indispensable for the defendant to be served with summons in Hanoi. III. The lower court erred in declaring that service by publication, with personal notice by the French Consul in Manila, was not sufficient.

IV. The lower court erred in declaring that the Court of Hanoi had no jurisdiction over the person of the defendant. V. The lower court erred in dismissing this case, instead of sentencing the defendant to pay to the plaintiffs the amounts claimed in the complaint as adjudged by the Court of Hanoi; and VI. The lower court erred in denying the motion for new trial on the ground that the decision is contrary to the law and the evidence. Briefly stated, the pertinent facts of the case, that we glean from the records, are as follows: The appellant Emilie Elmira Renee Boudard, in her capacity as widow of Marie Theodore Jerome Boudard and as guardian of her coappellants, her children born during her marriage with the deceased, obtained a judgment in their favor from the civil division of the Court of First Instance of Hanoi, French Indo-China, on June 27, 1934, for the sum of 40,000 piastras, equivalent, according to the rate of exchange at the time of the rendition of the judgment, to P56,905.77, Philippine currency, plus interest the amount or rate of which is not given. The judgment was rendered against Stewart Eddie Tait who had been declared in

default for his failure to appear at the trial before said court. Appellants' action, by virtue of which they obtained the foregoing judgment, was based on the fact that Marie Theodore Jerome Boudard, who was an employee of Stewart Eddie Tait, was killed in Hanoi by other employees of said Tait, although "outside of the fulfillment of a duty", according to the English translation of a certified copy of the decision in French, presented by the appellants. The dismissal of appellants' complaint by the lower court was based principally on the lack of jurisdiction of the Court of Hanoi to render the judgment in question, for the execution of which this action was instituted in this jurisdiction. The lack of jurisdiction was discovered in the decision itself of the Court of Hanoi which states that the appellee was not a resident of, nor had a known domicile in, that country. The evidence adduced at the trial conclusively proves that neither the appellee nor his agent or employees were ever in Hanoi, French Indo-China; and that the deceased Marie Theodore Jerome Boudard had never, at any time, been his employee. The appellee's first intimation of his having been sued and sentenced to pay a huge sum by the civil division of the Court of First

Instance of Hanoi was when he was served with summons in the present case. Passing now to the consideration of the errors assigned by the appellants, we must say that it was really unnecessary for the lower court to admit Exhibit D, E, F and H to M-1, nor can these exhibits be admitted as evidence, for, as to the first point, the appellants failed to show that the proceedings against the appellee in the Court of Hanoi were in accordance with the laws of France then in force; and as to the second point, it appears that said documents are not of the nature mentioned in sections 304 and 305 of Act No. 190. They are not copies of the judicial record of the proceedings against the appellee in the Court of Hanoi, duly certified by the proper authorities there, whose signatures should be authenticated by the Consul or some consular agent of the United States in said country. The appellants argue that the papers are the original documents and that the Honorable French Consul in the Philippines had confirmed this fact. Such argument is not sufficient to authorize a deviation from a rule established and sanctioned by law. To comply with the rule, the best evidence of foreign judicial proceedings is a certified copy of the same with all the formalities required in said sections 304 and 305 for only thus can one be absolutely sure of the authenticity of the record.

On the other hand said exhibits or documents, if admitted, would only corroborate and strengthen the evidence of the appellee which in itself is convincing, and the conclusion of the lower court that the appellee is not liable for the amount to which he was sentenced, as alleged, for he was not duly tried or even summoned in conformity with the law. It is said that the French law regarding summons, according to its English translation presented by the appellants, is of the following tenor: "SEC. 69 (par. 8). Those who have no known residence in France, in the place of their present residence: if the place is unknown, the writ shall be posted at the main door of the hall of the court where the complaint has been filed; a second copy shall be given to the Attorney-General of the Republic who shall visae the original." But then, Exhibits E, E-1, F and F-1 show that the summons alleged to have been addressed to the appellee, was delivered in Manila on September 18, 1933, to J. M. Shotwell, a representative or agent of Churchill & Tait Inc., which is an entity entirely different from the appellee. Moreover, the evidence of record shows that the appellee was not in Hanoi during the time mentioned in the complaint of the appellants, nor were his employees or representatives. The rule in

matters of this nature is that judicial proceedings in a foreign country, regarding payment of money, are only effective against a party if summons is duly served on him within such foreign country before the proceedings. The fundamental rule is that jurisdiction in personam over nonresidents, so as to sustain a money judgment, must be based upon personal service within the state which renders the judgment. (Pennoyer vs. Neff, 95 U. S., 714; 24 Law. ed., 565; Twining vs. New Jersy, 211 U. S., 78; 29 S. Ct., 14; 53 Law. ed., 97; Continental National Bank of Boston vs. Thurber, 143 N. Y., 648; 37 N. E., 828.) The process of a court of one state cannot run into another and summon a party there domiciled to respond to proceedings against him. (Hess vs. Pawloski, 274 U. S., 352, 355; 47 S. Ct., 632, 633 [71 Law. ed., 109].) Notice sent outside the state to a nonresident is unavailing to give jurisdiction in an action against him personally for money recovery. (Pennoyer vs. Neff, 95 U. S., 741 [24 Law. ed., 565].) There must be actual service within the State of notice upon him or upon some one authorized to accept service for him. (Goldey vs. Morning News, 156 U. S., 518 [15 S. Ct., 559; 39 Law. ed., 517].) A personal judgment

rendered against a nonresident, who has neither been served with process nor appeared in the suit, is without validity. (McDonald vs. Mabee, 243 U. S., 90 [37 S. Ct., 343; 61 Law, ed., 608; L. R. A. 1917F, 485].) The mere transaction of business in a state by nonresident natural persons does not imply consent to be bound by the process of its courts. (Flexner vs. Farson, 248 U. S., 289 [39 S. Ct., 97; 63 Law. ed., 250].)" (Cited in Skandinaviska Granit Aktiebolaget vs. Weiss, 234 N. Y. S., 202, 206, 207.) The process of a court has no extraterritorial effect, and no jurisdiction is acquired over the person of the defendant by serving him beyond the boundaries of the state. Nor has a judgment of a court of a foreign country against a resident of his country having no property in such foreign country based on process served here, any effect here against either the defendant personally or his property situated here. (5 R. C. L., 912.) Process issuing from the courts of one state or country cannot run into another, and although a nonresident defendant may have been personally served with such process in the state or country of his domicile, it will not give

such jurisdiction as to authorize a personal judgment against him. (23 Cyc., 688.) It can not be said that the decision rendered by the Court of Hanoi should be conclusive to such an extent that it cannot be contested, for it merely constitutes, from the viewpoint of our laws, prima facie evidence of the justness of appellants' claim, and, as such, naturally admits proof to the contrary. This is precisely the provision of section 311 of Act No. 190, as interpreted in the case of Ingenohl vs. Walter E. Olsen & Co. (47 Phil., 189):0 The effect of a judgment of any other tribunal of a foreign country, having jurisdiction to pronounce the judgment, is as follows: 1. In case of a judgment against a specific thing, the judgment is conclusive upon the title to the thing; 2. In case of a judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title; but the judgment may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. (Sec. 311 of Act No. 190.)

In view of the foregoing considerations, our conclusion is that we find no merit in the errors assigned to the lower court and the appealed judgment is in accordance with the law. Wherefore, the judgment is affirmed, with costs against the appellants. So ordered. Avancea, C. J., Villa-Real, Imperial, Laurel, and Moran, JJ., concur. Republic of the PhilippinesSUPREME COURTManila EN BANC G.R. No. L-11796 August 5, 1918 In the matter of estate of Samuel Bischoff Werthmuller. ANA M. RAMIREZ, executrixappellant, vs. OTTO GMUR, as guardian of the minors Esther Renate Mory, Carmen Maria Mory, and Leontina Elizabeth, claimant-appellant. C. Lozano for executrix-appellant.

Thos. D. Aitken for claimant-appellant. STREET, J.: Samuel Bischoff Werthmuller, native of the Republic of Switzerland, but for many years a resident of the Philippine Islands, died in the city of Iloilo on June 29, 1913, leaving a valuable estate of which he disposed by will. A few days after his demise the will was offered for probate in the Court of First Instance of Iloilo and, upon publication of notice, was duly allowed and established by the court. His widow, Doa Ana M. Ramirez, was named as executrix in the will, and to her accordingly letters testamentary were issued. By the will everything was given to the widow, with the exception of a piece of real property located in the City of Thun, Switzerland, which was devised to the testator's brothers and sisters n4ikONAb. The first cause of the will contains a statement to the effect that inasmuch as the testator had no children from his marriage with Ana M. Ramirez he

was therefore devoid of forced heirs. In making this statement the testator ignored the possible claims of two sets of children, born to his natural daughter, Leona Castro. The pertinent biographical facts concerning Leona Castro are these: As appears from the original baptismal entry made in the church record of Bacolod, she was born in that pueblo on April 11, 1875, her mother being Felisa Castro, and father "unknown." Upon the margin of this record there is written in Spanish an additional annotation of the following tenor: "According to a public document (escritura) which was exhibited, she was recognized by Samuel Bischoff on June 22, 1877." This annotation as well as the original entry is authenticated by the signature of Father Ferrero, whose deposition was taken in this case. He testifies that the work "escritura" in this entry means a public document; and he says that such document was exhibited to him when the marginal note which has been quoted was added to the baptismal record and supplied the basis for the annotation in question.

As the years passed Leona Castro was taken into the family of Samuel Bischoff and brought up by him and his wife a a member of the family; and it is sufficiently shown by the evidence adduced in this case that Samuel Bischoff tacitly recognized Leona a his daughter and treated her as such. In the year 1895 Leona Castro was married to Frederick von Kauffman, a British subject, born in Hong Kong, who had come to live in the city of Iloilo. Three children were born of this marriage, namely, Elena, Federico, and Ernesto, the youngest having been born on November 10, 1898. In the month of April 1899, Leona Castro was taken by her husband from Iloilo to the City of Thun, Switzerland, for the purpose of recuperating her health. She was there placed in a sanitarium, and on August 20th the husband departed for the Philippine Islands, where he arrived on October 10, 1899. Leona Castro continued to remain in Switzerland, and a few years later informed her husband, whom she had not seen again, that she desired to remain free and would not resume life in common with him. As a consequence, in the year 1904, Mr.

Kauffman went to the City of Paris, France, for the purpose of obtaining a divorce from his wife under the French laws; and there is submitted in evidence in this case a certified copy of an extract from the minutes of the Court of First Instance of the Department of the Seine, from which it appears that a divorce was there decreed on January 5, 1905, in favor of Mr. Kauffman and against his wife, Leona, in default. Though the record recites that Leona was then in fact residing at No. 6, Rue Donizetti, Paris, there is no evidence that she had acquired a permanent domicile in that city. The estrangement between the von Kauffman spouses is explained by the fact that Leona Castro had become attracted to Dr. Ernest Emil Mory, the physician in charge of the sanatorium in Switzerland where she was originally placed; and soon after the decree of divorce was entered, as aforesaid, Doctor Mory and Leona Castro repaired to the City of London, England, and on May 5, 1905, in the registrar's office in the district of Westminster, went through the forms of a marriage ceremony before an officer duly qualified

to celebrate marriage under the English law. It appears that Doctor Mory himself had been previously married to one Helena Wolpman, and had been divorced from her; but how or under what circumstances this divorce had been obtained does not appear. Prior to the celebration of this ceremony of marriage a daughter, named Leontina Elizabeth, had been born (July 21, 1900) to Doctor Mory and Leona Castro, in Thun, Switzerland. On July 2, 1906, a second daughter, named Carmen Maria, was born to them in Berne, Switzerland, now the place of their abode; and on June 10, 1909, a third daughter was born, name Esther. On October 6, 1910, the mother died. In the present proceedings Otto Gmur has appeared as the guardian of the three Mory claimants, while Frederick von Kauffman has appeared as the guardian of his own three children, Elena, Federico, and Ernesto. As will be surmised from the foregoing statement, the claims of both sets of children are founded

upon the contention that Leona Castro was the recognized natural daughter of Samuel Bischoff and that as such she would, if living, at the time of her father's death, have been a forced heir of his estate and would have been entitled to participate therein to the extend of a one-third interest. Ana M. Ramirez, as the widow of Samuel Bischoff and residuary legatee under his will, insists at least as against the Mory claimants, that Leona Castro had never been recognized at all by Samuel Bischoff. In behalf of Leontina, the oldest of the Mory claimants, it was originally insisted in the court below, that, having been born while her mother still passed as the wife of Frederick von Kauffman, she was to be considered as a legitimate daughter of the wedded pair. This contention has been abandoned on this appeal a untenable; and it is now contended here merely that, being originally the illegitimate daughter of Doctor Mory and Leona Castro, she was legitimated by their subsequent marriage. In behalf of Carmen Maria and Esther Renate, the

two younger of the Mory claimants, it is argued that the bonds of matrimony which united Frederick von Kauffman and Leona Castro were dissolved by the decree of divorce granted by the Paris court on January 5, 1905; that the marriage ceremony which was soon thereafter celebrated between Doctor Mory and Leona in London was in all respects valid; and that therefore these claimants are to be considered the legitimate offspring of their mother. In behalf of the children of Frederick von Kauffman it is insisted that the decree of divorce was wholly invalid, that all three of the Mory children are the offspring of adulterous relations, and that the von Kauffman children, as the legitimate offspring of Leona Castro, are alone entitled to participate in the division of such part of the estate of Samuel Bischoff as would have been inherited by their mother, if living. We are of the opinion that the status of Leona Castro as recognized natural daughter of Samuel Bischoff is fully and satisfactorily shown. It is proved that prior to her marriage with Frederick

von Kauffman she was in an uninterrupted enjoyment of the de facto status of a natural child and was treated as such by Samuel Bischoff and his kindred. The proof of tacit recognition is full and complete. From the memorandum made by Padre Ferrero in the record of the birth, as well as from the testimony of this priest, taken upon the deposition, it also appears that Samuel Bischoff had executed a document, authenticated by a notarial act, recognizing Leona as his daughter, that said document was presented to the priest, as custodian of the church records, and upon the faith of that document the marginal note was added to the baptismal record, showing the fact of such recognition. The original document itself was not produced in evidence but it is shown that diligent search was made to discover its whereabouts, without avail. This was sufficient to justify the introduction of secondary evidence concerning its contents; and the testimony of the priest show that the fact of recognition was therein stated. Furthermore, the memorandum in the baptismal record itself constitutes original and substantive

proof of the facts therein recited. It will be observed that the recognition of Leona Castro as the daughter of Samuel Bischoff occurred prior to the date when the Civil Code was put in force in these Islands; and consequently her rights as derived from the recognition must be determined under the law as it then existed, that is, under Law 11 of Toro, which afterwards became Law 1, title 5, book 10, of the Novisima Recopilacion. (See Capistrano vs. Estate of Gabino, 8 Phil., 135, 139, where this statute is quoted in the opinion written by Mr. Justice Torres.) Under that law recognition could be established by proof of acts on the part of the parent unequivocally recognizing the status of his offspring. (Cosio vs. Pili, 10 Phil., 72, 77.) In other words at tacit recognition was sufficient. Under article 131 of the present Civil Code, the acknowledgment of a natural child must be made in the record of birth, by will, or in other public instrument. We are of the opinion that the recognition of Leona Castro is sufficiently shown whether the case be judged by the one provision or the other bgXy0m.

But it is contended by counsel for Doa Ana Ramirez that only children born of persons free to marry may possess the status of recognized natural children, and there is no evidence to show that Felisa Catro was either a single woman or widow at the time of the conception or birth of Leona. In the absence of proof to the contrary, however, it must be presumed that she was a single woman or a widow. Relative to this presumption of the capacity of the parents to marry, the author Sanchez Roman makes the following comment: Furthermore, viewing the conception of natural child in connection with two mutually interrelated circumstances, to wit, the freedom of the parents to intermarry, with or without dispensation, at the time of the conception of the offspring stigmatized as natural, the first of these, or freedom to marry, is a point upon which there is, according to the jurisprudence of our former law, whose spirit is maintained in the Code, an affirmative presumption which places the burden of proving the contrary upon those who are interested in

impugning the natural filiation. (Vol. 5, Derecho Civil, pp. 1018-1019.) The contrary presumption would be that Felisa Castro was guilty of adultery, which cannot be entertained. If such had in fact been the case, the burden of proving it would have been upon the persons impugning the recognition of the child by her father. (Sec. 334, par. 1, Code of Civil Procedure.) From the fact that Leona Castro was an acknowledged natural daughter of her father, it follows that had she survived him she would have been his forced heir, he having died after the Civil Code took effect. (Civil Code, article 807 [3], art. 939; Civil Code, first transitory disposition); and as such forced heir she would have been entitled to one-third of the inheritance (art. 842, Civil Code). With reference to the right of the von Kauffman children, it is enough to say that they are legitimate children, born to their parents in lawful wedlock; and they are therefore entitled to participate in the inheritance which would have

devolved upon their mother, if he had survived the testator. As regards the Mory claimants, it is evident that their rights principally depend upon the effect to be given by this court to the decree of divorce granted to von Kauffman by the Court of First Instance of the City of Paris. If this decree is valid, the subsequent marriage of Doctor Mory and Leona Castro must also be conceded to be valid; and as a consequence the two younger children, born after said marriage, would be the legitimate offspring of their mother, and would be entitle to participate in their mother's portion of Mr. Bischoff's estate. With respect to Leontina Elizabeth, the older one of the Mory claimants, there would in the case still be the insuperable obstacle which results from the fact that she was the offspring of adulterous intercourse and a such was incapable of legitimation (art. 119, Civil Code). We are of the opinion that the decree of divorce upon which reliance is placed by the representation of the Mory children cannot be recognized as valid in the courts of the Philippine Islands. The French

tribunal has no jurisdiction to entertain an action for the dissolution of a marriage contracted in these Islands by person domiciled here, such marriage being indissoluble under the laws then prevailing in this country. The evidence shows conclusively that Frederick von Kauffman at all times since earliest youth has been, and is now, domiciled in the city of Iloilo in the Philippine Islands; that he there married Leona Castro, who was a citizen of the Philippine Islands, and that Iloilo was their matrimonial domicile; that his departure from iloilo for the purpose of taking his wife to Switzerland was limited to that purpose alone, without any intent to establish a domicile elsewhere; and finally that he went to Paris in 1904, for the sole purpose of getting a divorce, without any intention of establishing a permanent residence in that city. The evidence shows that the decree was entered against the defendant in default, for failure to answer, and there is nothing to show that she had acquired, or had attempted to acquire, a permanent domicile in the City of Paris. It is evident of course that the presence of both the spouses in that city was due merely to the

mutual desire to procure a divorce from each other. It is established by the great weight of authority that the court of a country in which neither of the spouses is domiciled and to which one or both of them may resort merely for the purpose of obtaining a divorce has no jurisdiction to determine their matrimonial status; and a divorce granted by such a court is not entitled to recognition elsewhere. (See Note to Succession of Benton, 59 L. R. A., 143.) The voluntary appearance of the defendant before such a tribunal does not invest the court with jurisdiction. (Andrews vs. Andrews, 188 U. S., 14; 47 L. ed., 366.) It follows that, to give a court jurisdiction on the ground of the plaintiff's residence in the State or country of the judicial forum, his residence must be bona fide. If a spouse leaves the family domicile and goes to another State for the sole purpose of obtaining a divorce, and with no intention of remaining, his residence there is not sufficient to confer jurisdiction on the courts of that State. This is especially true where the cause of divorce is one

not recognized by the laws of the State of his own domicile. (14 Cyc., 817, 818.) As have been well said by the Supreme Court of the United States marriage is an institution in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there could be neither civilization nor progress. (Maynard vs. Hill, 125 U. S., 210; 31 L. ed., 659.) Until the adoption of Act No. 2710 by the Philippine Legislature (March 11, 1917), it had been the law of these Islands that marriage, validly contracted, could not be dissolved absolutely except by the death of one of the parties; and such was the law in this jurisdiction at the time when the divorce in question was procured. The Act to which we have referred permits an absolute divorce to be granted where the wife has been guilty of adultery or the husband of concubinage. The enactment of this statute undoubtedly reflect a change in the policy of our laws upon the subject of divorce, the exact effect and bearing of which need not be here discussed. But inasmuch as the tenets of the Catholic Church absolutely deny the validity of

marriages where one of the parties is divorced, it is evident that the recognition of a divorce obtained under the conditions revealed in this case would be as repugnant to the moral sensibilities of our people as it is contrary to the well-established rules of law. As the divorce granted by the French court must be ignored, it results that the marriage of Doctor Mory and Leona Castro, celebrated in London in 1905, could not legalize their relations; and the circumstance that they afterwards passed for husband and wife in Switzerland until her death is wholly without legal significance. The claims of the Mory children to participate in the estate of Samuel Bischoff must therefore be rejected. The right to inherit is limited to legitimate, legitimated, and acknowledged natural children. The children of adulterous relations are wholly excluded. The word "descendants," as used in article 941 of the Civil Code cannot be interpreted to include illegitimates born of adulterous relations. An important question arises in connection with the time within which the claims of the two sets of

children were presented to the court. In this connection it appears that the will of Samuel Bischoff was probated in August, 1913. A committee on claims was appointed and it report was field and accepted February 20, 1914. About the same time Otto Gmur entered an appearance for the Mory claimants and petitioned the court to enter a decree establishing their right to participate in the distribution of the estate. The executrix, Doa Ana Ramirez, answered the petition denying that said minors were the legitimate children of Leona Castro and further denying that the latter was the recognized natural daughter of Samuel Bischoff. Upon the issues thus presented a trial was had before the Honorable Fermin Mariano, and on December 29, 1915, he rendered a decision in which he held (1) that Leona Castro was the recognized natural daughter of Samuel Bischoff; (2) that the minor, Leontina Elizabeth, is a legitimate daughter of Leona Castro; and (3) that the minors Carmen Maria and Esther Renate are illegitimate children of Leona Castro. From these facts the court drew the conclusion that Leontina Elizabeth was entitled to one-third of

the estate of the late Samuel Bischoff, and that his widow, Doa Ana Ramirez, was entitled to the remaining two-thirds. From this decision both Doa Ana Ramirez and Otto Gmur, as guardian, appealed. Shortly after the appeals above-mentioned were taken, Mr. Frederick von Kauffman made application to the Court of First Instance of Iloilo by petition filed in the proceedings therein pending upon the estate of the late Samuel Bischoff for appointment as guardian ad litem of his minor children, the von Kauffman heirs, which petition was granted by order dated March 4, 1916. Thereafter, on April 1, 1916, von Kauffman, on behalf of the said minors, filed in the cause a petition setting forth their right to share in the estate. This petition was answered by Mr. Otto Gmur, guardian, on April 26, 1916, the sole contention of said answer being that the matter to which the petition relates had been disposed of by the decision of the Court of First Instance rendered in said proceedings by Judge Mariano on December 9, 1915. Doa Ana Ramirez answered denying all the allegations of von Kauffman's petition.

The trial of the petition of von Kauffman, as guardian, came on for hearing before the Court of First Instance of Iloilo on the 10th day of August, 1916. Upon the evidence taken at that hearing the Honorable J. S. Powell, as judge then presiding in the Court of First Instance of Iloilo, rendered a decision under date of November 14, 1916, in which he found as a fact Leona Castro was the acknowledged natural daughter of Samuel Bischoff and that the minors, Elena, Fritz, and Ernesto, are the legitimate children of Frederick von Kauffman and the said Leona Castro, born in lawful wedlock. Upon the facts so found, Judge Powell based his conclusion that all that portion of the estate of Samuel Bischoff pertaining to Leona Castro should be equally divided among the children Federico, Ernesto, and Elena, thereby excluding by inference the Mory claimants from all participation in the estate. From this judgments an appeal was taken by Mr. Otto Gmur as guardian, no appeal having taken by Doa Ama Ramirez.

Though the circumstance is now of no practical importance, it may be stated in passing that the appeals of Doa Ana Ramirez and of Otto Gmur, guardian, from the decision of Judge Mariano of December 9, 1915, and the appeal of Otto Gmur, guardian from the decision of Judge Powell, of November 14, 1916, were brought to this court separately; but the causes were subsequently consolidated and have been heard together. The parties to the litigation have also stipulated that all the "evidence, stipulations and admissions in each of the two proceedings above-mentioned may be considered for all purposes by this court in the other." The case is therefore considered here as though there had been but one trial below and all the issues of law and fact arising from the contentions of the oppossing claimants had been heard at the same time yGsdZo5. Upon the facts above stated it is insisted for Ana M. Ramirez that her rights to the estate under the will of Samuel Bischoff were at the latest determined by the final decree of December 29, 1915; and that it was thereafter incompetent for the court to take cognizance of the application of

the Mory claimants. If this contention is sustainable, the same considerations would operate to defeat the later application filed on behalf of the von Kauffman children and indeed with even greater force, since this application was not made until the appeals from the decree of December 9, 1915, had actually been perfected and the cause had been transferred to the Supreme Court. Two questions are here involved, one as to the effect of the probate of a will upon the rights of forced heirs who do not appear to contest the probate, and the other as to the conclusiveness and finality of an order for the distribution of an estate, as against persons who are not before the court. Upon the first of these questions it is enough to say that the rights of forced heirs to their legitime are not divested by the decree admitting a will to probate, and this regardless of the fact that no provision has been made for them in the will, for the decree of probate is conclusive only a regards the due execution of the will, the question of its

intrinsic validity not being determined by such decree. (Code of Civil Procedure, sec. 625; Castaeda vs. Alemany, 3 Phil., 426; Sahagun vs. De Gorostiza, 7 Phil., 347; JocSoy vs. Vao, 8 Phil., 119; Limjuco vs. Ganara, 11 Phil., 393, 395; Austria vs. Ventenilla, 21 Phil., 180.) Indeed it is evident, under the express terms of the proviso to section 753 of the Code of Civil Procedure, that the forced heirs cannot be prejudiced by the failure of the testator to provide for them in his will; and regardless of the intention of the testator to leave all his property, or practically all of it, to his wife, the will is intrinsically invalid so far a it would operate to cut off their rights. The question as to the conclusiveness of the order of distribution can best be considered with reference to the von Kauffman children, as the solution of the problem as to them necessarily involves the disposition of the question as to the Mory claimants. It is evident that the von Kauffman children cannot

be considered to have been in any sense parties to the proceeding at the time Judge Mariano rendered his decision. So far a the record shows the court was then unaware even of their existence. No notice of any kind was served upon them; nor was any person then before the court authorized to act in their behalf. Nevertheless, as we have already shown, upon the death of Samuel Bischoff, the right to participate in his estate vested immediately in this children, to the extent to which their mother would have been entitled to participate had she survived her father. If the right vested upon the death of Samuel Bischoff, how has it been since divested? The record shows that the decision of December 29, 1915, in which Judge Mariano holds that the estate should be divided between Leontina Elizabeth and the residuary legatee Doa Ana Ramirez, was made without publication of notice, or service of any kind upon other persons who might consider themselves entitled to participate in the estate. The law in force in the Philippine Islands regarding

the distribution of estates of deceased persons is to be found in section 753 et seq., of the Code of Civil Procedure. In general terms the law is that after the payment of the debts and expenses of administration the court shall distribute the residue of the estate among the persons who are entitled to receive it, whether by the terms of the will or by operation of law. It will be noted that while the law (sec. 754) provides that the order of distribution may be had upon the application of the executor or administrator, or of a person interested in the estate, no provision is made for notice, by publication or otherwise, of such application. The proceeding, therefore, is to all intents and purposes ex parte. A will be seen our law is very vague and incomplete; and certainly it cannot be held that a purely ex parte proceeding, had without notice by personal service or by publication, by which the court undertakes to distribute the property of deceased persons, can be conclusive upon minor heirs who are not represented therein. Section 41 of the Code of Civil Procedure provides that ten years actual adverse possession by

"occupancy, grant, descent, or otherwise' shall vest title in the possessor. This would indicate that a decree of distribution under which one may be placed in possession of land acquired by descent, is not in itself conclusive, and that, a held in Layre vs. Pasco (5 Rob. [La.], 9), the action of revindication may be brought by the heir against the persons put in possession by decree of the probate court at any time within the period allowed by the general statute of limitations. Our conclusion is that the application of the von Kauffman children was presented in ample time and that the judgment entered in their favor by Judge Powell was correct. The Mory claimants, as already stated, are debarred from participation in the estate on other grounds. So much of the judgment entered in the Court of First Instance, pursuant to the decision of Judge Mariano of December 29, 1915, as admits Leontina Elizabeth Mory to participate in the estate of Samuel Bischoff is reversed; and instead the von Kauffman children will be admitted to share equally in one-third of the estate as provided in the

decision of Judge Powell of November 14, 1916. In other respects the judgment of Judge Mariano is affirmed. The costs of this instance will be paid out of the estate. So ordered. Arellano, C.J., Torres, Johnson, Malcolm and Avancea, JJ., concur.

G.R. No. L-57338

July 23, 1987

WILLIAM B. BORTHWICK, petitioner, vs. HON. FLORELIANA CASTRO-BARTOLOME, Presiding Judge, Br. XV, Makati, of the Court of First Instance of Rizal; JOSEPH E. SCALLON, and JEWELL C. SCALLON, respondents. NARVASA, J.: By action commenced in the Circuit Court of the First Circuit, State of Hawaii, U.S.A.,1 Joseph E. Scallon sought to Compel payment by William B. Borthwick on four (4) promissory notes2 in the amounts of $32,408.95, $29,584.94, $2,832.59 and $40,000.00, plus stipulated interest. Scallon's

complaint alleged, inter alia, that Borthwick, an American citizen living in the Philippines, owned real property interests in Hawaii where he last resided and transacted business therein; that business dealings which transpired in Honolulu, Hawaii had given rise to the promissory notes sued upon, and Borthwick had failed to pay the sums thereunder owing upon maturity and despite demand.3 Attached to the complaint were the promissory notes, which although uniformly specifying the city of Palos Verdes, Los Angeles, California as the place of payment, also provided that in the event that payment *** shall not have been made in full on or before the maturity date *** at *** (such) place ***, payee may select, at his option, Manila, Philippines, or Honolulu, Hawaii as additional places for payment *** and *** any court in any of said places having jurisdiction over the subject matter shall be a proper Court for the trial of any action brought to enforce payment of this note and the law of the place in which said action is brought shall apply. 4 Borthwick being then in Monterey, California, summons5 was served upon him personally in that place, pursuant to Hawaiian law allowing service of process on a person outside the territorial confines

of the State, if he had otherwise submitted himself to the jurisdiction of its courts as to causes of action arising from, among others, the act of transacting any business within Hawaii6 alleged to consist as to Borthwick in the negotiation and dealings regarding the promissory notes. Borthwick ignored the summons.1avvphi1 Default was entered against him, and in due course a default judgment was rendered as follows: DEFAULT JUDGMENT That Defendant WILLIAM B. BORTHWICK having fatted to plead or otherwise defend in the aboveentitled action and his default having been duly entered herein; Now, upon the application of the Plaintiff JOSEPH E. SCALLON and upon the affidavit that the Defendant WILLIAM B. BORTHWICK is indebted to said Plaintiff in the sum of $104,817.48. IT IS HEREBY ORDERED, ADJUDGED, and decreed that Plaintiff JOSEPH E. SCALLON recover from Defendant WILLIAM B. BORTHWICK the sum of $104,817.48 together with (1) The transaction of any business within the State; xxx xxx xxx

(3) The ownership, use or possession of any real estate situated in this State; xxx xxx xxx

(b) Service of process upon any person who is subject to the jurisprudence of the courts of this State, as provided in this section, may be made as provided by sections 634-36, if he cannot be found in the State, with the same force and effect as though summons had been personally served within this State. [ 634-36] Manner of service under sections 634-33 to 35. When service of summons is provided for by sections 634-33, 634-34, or 634-35, service shall be made by leaving a certified copy thereof with the director of regulatory agencies or his deputy, *** provided that notice of the service and a certified copy of the summons are served upon the defendant personally by any person authorized to serve process in the place which he may be found or appointed by the court for that purpose, or sent by certified or registered mail ***. The service shall be deemed complete upon delivery of the required papers to the defendant outside the State, personally or by mail as provided; Rollo, pp. 143-144 interest in the sum of $41,807.93,

costs of Court in the sum of $37.00 and attorney's fees in the sum of $4,290.64 for a total sum of $150,953.05. DATED: Honolulu, Hawaii, APR. 30, 1987. (Sgd.) V. CHING Clerk of the above-entitled Court
7

However, Scallon's attempts to have the judgment executed in Hawaii and California failed, because no assets of Borthwick could be found in those states.8 Scallon and his wife, Jewell, then came to the Philippines and on March 15, 1980 brought suit against Borthwick in the Court of First Instance of Makati,9 seeking enforcement of the default judgment of the Hawaii Court and asserting two other alternative causes of action.10 The sheriff's initial efforts to serve summons on Borthwick personally at his address at 861 Richmond St., Greenhills, Mandaluyong, Metro Manila having been unsuccessful Borthwick was "always out on official business" the sheriff effected substituted service by leaving a copy of the summons and the complaint with Borthwick's "house caretaker," a man named Fred Daniel.11

Borthwick filed no answer to the Scallons' complaint. He was declared in default. After due proceedings judgment by default was rendered against him, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered as follows: 1. The decision of the Court of Hawaii in Civil Case No. 56660 reading: IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff JOSEPH E. SCALLON recover from Defendant WILLIAM B. BORTHWICK the sum of $104,817.48 together with interest in the sum of $41,807.93, costs of Court in the sum of $37.00 and attorney's fees in the sum of $4,290.64 for a total sum of $150,53.05. may be, as it is hereby ordered, enforced in the Philippines. 2. The second alternative cause of action in the event that the satisfaction of the said judgment becomes impossible, the rescission of the agreement (Exh. L) of the parties is hereby granted. Defendant Borthwick is hereby ordered:

(a) To return and deliver to plaintiffs Joseph and Jewell Scallon their 800 shares of stock of Manila Memorial Park Cemetery, Inc. and 180 shares of stock of TransPacific Development Management Corporation, together with any and/or all stock dividends, cash dividends and similar corporate distributions accruing to said shares of stock from and after December 3, 1973 (the date of the Agreement, Exh. L); (b) In the event that such shares cannot be returned and delivered, to pay to plaintiff Scallon the value of the same from the execution of the agreement, Exh. L, together with any increase in value from the said date to the finality of this judgment. SO ORDERED.
12

Again, it was with Fred Daniel, Identifying himself as Borthwick's "houseboy," that a copy of the decision was left.13 No response from Borthwick was forthcoming until after the Court subsequently amended its judgment so as to make the sums due under the Hawaii Court decision payable in their equivalent in Philippine currency.14 Notice of this amendatory

order was somehow personally accepted by Borthwick at this time. Borthwick then moved for a new trial, claiming that it was by accident, mistake and excusable negligence that his "off and on itinerant gardener," Daniel, failed to transmit the summons to him, which omission consequently prevented Borthwick from knowing of the judicial proceedings against him. Alleging too that "the promissory notes did not arise from business dealings in Hawaii," nor "did (he) own real estate" therein,15 Borthwick contended that the judgment sought to be enforced was invalid for want of jurisdiction of the Hawaii Court over the cause of action and over his person. The motion for new trial was denied by the Trial Court upon the factual finding that "Fred Daniel is a responsible person" "of suitable age and discretion" "resident of the address *** (of the) defendant" on whom substituted service of summons had been duly made.16 As to Borthwick's attack on the validity of the foreign judgment, the Trial Court ruled that "under the ** (Hawaii Revised Statute) cited by the defendant the Hawaii Court has jurisdiction" because the factual premises upon which the exercise of such jurisdiction was based "had not been refuted by the defendant" although he "appears to be a lawyer, and the summons in the Hawaii case was

served personally on him."17 Finally, the Trial Court disposed of Borthwick's other defenses18 saying that the present action "is (for) the enforcement of a foreign judgment" where the validity of his defenses to the original action is immaterial.19 Borthwick proceeded directly to this Court and filed a petition for review,20 raising issues of law, framed as follows: 1. Is a foreign judgment against a person rendered without jurisdiction over the cause of action and without proper summons to the defendant enforceable in the Philippines? 2. Has the respondent Judge acquired jurisdiction over the person of defendant when summons was served on an itinerant gardener who did not reside in defendant's house? 3. Where a motion for new trial was filed on time, duly supported with affidavits to prove the grounds relied upon, should not the Court grant the same? 21 It is true that a foreign judgment against a person is merely "presumptive evidence of a right as between the parties," and rejection thereof may be justified, among others, by "evidence of a want of jurisdiction" of the issuing authority, under Rule 39 of the Rules of Court.22 In the case at bar, the jurisdiction of the Circuit Court of Hawaii hinged

entirely on the existence of either of two facts in accordance with its State laws, i.e., either Borthwick owned real property in Hawaii, or the promissory notes sued upon resulted from his business transactions therein. Scallon's complaint clearly alleged both facts. Borthwick was accorded opportunity to answer the complaint and impugn those facts, but he failed to appear and was in consequence declared in default. There thus exists no evidence in the record of the Hawaii case upon which to lay a conclusion of lack of jurisdiction, as Borthwick now urges. The opportunity to negate the foreign court's competence by proving the non-existence of said jurisdictional facts established in the original action, was again afforded to Borthwick in the Court of First Instance of Makati, where enforcement of the Hawaii judgment was sought. This time it was the summons of the domestic court which Borthwick chose to ignore, but with the same result: he was declared in default. And in the default judgment subsequently promulgated, the Court a quo decreed enforcement of the judgment affirming among others the jurisdictional facts, that Borthwick owned real property in Hawaii and transacted business therein. In the light of these antecedents, it is plain that what Borthwick seeks in essence is one more

opportunity, a third, to challenge the jurisdiction of the Hawaii Court and the merits of the cause of action which that Court had adjudged to have been established against him. This he may obtain only if he succeed in showing that the declaration of his default was incorrect. He has unfortunately not been able to do that; hence, the verdict must go against him. It is not for this Court to disturb the express finding of the Court of First Instance that Daniel was Borthwick's resident domestic houseboy, and of sufficient age and discretion to accept substituted service of summons for Borthwick. Under Rule 42 of the Rules of Court, a party appealling from the Courts of First Instance (now the Regional Trial Courts) to the Supreme Court may "raise only questions of law (and) no other question **,"23 and is thus precluded from impugning the factual findings of the trial court, being deemed to have admitted the correctness of such findings24 and waived his right to open them to question.25 In any case, a review of the records shows that the Trial Court was correct in refusing to believe Borthwick's representation that "Daniel gardens at the residence of Borthwick, then goes home to La Union after gardening itinerantly." As said Court observed, that situation is "ridiculous," it being I

"queer and hardly coincidental why on all papers served on the defendant, it was Fred Daniel who signed and acknowledged receipt. "26 There was therefore no error committed by the Trial Court when it denied Borthwick's motion to lift the order of default (which is what the motion for new trial actually is) because Borthwick had failed to establish any proper ground therefor. WHEREFORE, the petition for review is denied, with costs against petitioner. SO ORDERED. Teehankee, C.J., Cruz, Paras and Gancayco, JJ., concur. G.R. No. L-3693 G.R. No

. L-3693

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Republic of the Philippines

SUPREME COURT Manila EN BANC G.R. No. L-3693 July 29, 1950

MARGARET QUERUBIN, recurrente-apelante, vs. SILVESTRE QUERUBIN, recurrido-apelado. Manuel A. Argel en representacion del recurrente y apelante. Maximino V. Bello en representacion del recurrido y apelado. PABLO, J.: Silvestre Querubin es de Caoayan, Ilocos Sur, de padres filipinos. En 1926 se marcho a los Estados Unidos con el objeto de estudiar pero con el proposito de volver despues a su pais natal. Obtuvo el titulo de "Master of Arts and Sciences" en la "University of Southern California," institucion domiciliada en los Angeles, California, en donde el recurrido empezo a vivir desde 1934. En 20 de octubre de 1943, Silvestre Querubin contrajo matrimonio con la recurrente, Margaret Querubin, en Albuquerque, New Mexico. Como fruto de este matrimonio nacio Querubina Querubin, quien, al tiempo de la vista de la causa en el Juzgado de primera instancia de Ilocos Sur, tenia cuatro aos de edad poco mas o menos. La recurrente entablo en 1948 una demanda de divorcio contra el recurrido, fundada en "crueldad mental." En 7 de febrero de 1948

el divorcio fue concedido al marido en virtud de una contrademanda presentada por el y fundada en la infidelidad de su esposa. En 5 de abril de 1949, y a peticion del demandado y contrademandante, (recurrido enesta actuacion de habeas corpus) el Juzgado superior de Los Angeles dicto una orden interlocutoria disponiendo lo siguiente: It is therefore ordered, adjudged and decreed that the interlocutory judgment of divorce hereinbefore entered on February 27, 1948, in Book 1891, page 319, be and the same is hereby modified in the following particulars in connection with the custody of the minor child of the parties only: (1) The care, custody and control of the minor child of the parties, Querubina Querubin, is hereby awarded to defendant and cross-complainants; (2) Said child is to be maintained in a neutral home, subject to the right of reasonable visitation on the part of both parties to this action; (3) Each party shall have the right to take said child away from said neutral home but plaintiff and cross-defendant is restrained from taking said child to her place of residence; (4) Each party is restrained from molesting the other, or in any way interfering with the other's right of reasonable visitation of said child;

(5) Each party is restrained from removing the child from the State of California without first securing the permission of the court; said parties are further restrained from keeping the child out of the County of Los Angeles for more than one day without first securing the consent of the court. El recurrido salio de San Francisco en 7 de noviembre de 1949, arribando a Manila en 25 del mismo mes. En 27 de susodicho mes llego a Caoayan, Ilocos Sur, donde vive actualmente, llevandose consigo a la nia Querubina, a quien trajo a Filipinas porque, en su calidad de padre, queria evitar que llegase a conocimiento de ella la conducta indecorosa de su propia madre. El recurrido queria que su hija fuera educada en un ambiente de elevada moralidad. A peticion de la recurrente Margaret, el Juzgado superior de los Angeles, California, en 30 de noviembre de 1949 modifico su orden de 5 de abril de 1949, disponiendo lo siguiente: Under interlocutory decree of March 7, 1949, the child, a girl now 3 1/2 years old, was granted to deft husband, but the child was to be kept in a neutral home; both parties were given reasonable visitation and both were restrained from removing the child out of the state. Deft has taken the child with him to the Philippine Islands. At time of trial custody was apparently denied pft because she was then living with another man. She is now married to this man and they have a well equipped home. Ptf appears to be a devoted mother. She has one child,

the issue of her present marriage, and is also caring for a child that was abandoned by certain friends of hers. Ptf's husband is regularly and permanently employed. Witnesses testified in behalf of the ptf in reference to her motherly qualities and the condition of her home. She visited the child in question sufficiently when the child was in the neutral home and brought her toys and other articles. Service of the order to show cause was made on deft's attorneys of record. The interlocutory decree is modified so as to provide that custody of the child shall be awarded to ptf and deft shall have the right of reasonable visitation. Deft shall pay ptf for the support of the child $30 each month on the 1st day thereof, commencing Jan. 1950. En el dia de la vista de esta causa de habeas corpus en Ilocos Sur, el recurrido declaro que nunca intento cambiar su ciudadania; que cuando vino al pais tenia unos P2,000 de ahorro; que tres semanas despues de su arribo recibio oferta para ensear con sueldo P250 mensual en el colegio establecido por el Dr. Sobrepea en Villasis, Pangasinan; que nunca se le ha privado de patria potestad por sentencia judicial, ni declarado ausente de Filipinas, ni sujeto a interdiccion civil. Segun el juzgado a quo, el recurrido es de irreprochable conducta. En 10 de febrero de 1950 la recurrente Margaret Querubin, por medio de su abogado, presento en el Juzgado de primera instancia de Ilocos Sur una solicitud de habeas corpus reclamando la custodia de su hija Querubina, alegando como

fundamento el decreto interlocutorio del juzgado de California que concedio a ella dicha custodia. Despues de la vista correspondiente, el Juzgado a quo, en 28 de febrero de 1950 denego la solicitud. La recurrente acude en apelacion ante este Tribunal. La recurrente sostiene que bajo el articulo 48 de la Regla 39, el decreto Exhibit A-1 del Juzgado de los Angeles, California, debe cumplirse en Filipinas. Su parte dispositiva dice textualmente: The interlocutory decree is modified so as to the provide that custody of the child shall be awarded to ptf and deft shall have the right to reasonable visitation. Deft shall pay ptf for the support of the child $30 each month on the 1st day thereof, commencing Jan. 1950. Un decreto interlocutorio sobre la custodia de un menor no es una decision final. Por su naturaleza no es firme. Esta sujeto a cambios como cambian las circunstancias. En el primer decreto se dio al padre la custodia de la menor. A peticion del padre, se dicto el decreto de 5 de abril prohibiendo a la madre que llavase a la menos a su casa porque estaba otra vez en relaciones adulterinas con otro hombre. Cuando ya no estaba el recurrido en Los Angeles, porque ya habian venido a Filipinas, se enmendo la ultima orden y se dispuso que la custodia estuviese encomendada a la recurrente, pagando a ella el recurrido $30 al mes para la manutencion de la menor. La pension no es fija y se aumenta o disminuye como aumentan o disminuyen las necesidades del pensionista o como exijan las condiciones economicasdel que la da.

Porque el decreto interlocutorio, Exhibit A-1, no constituye decision final, no cabe pedir su cumplimiento en Filipinas. En los mismos Estados Unidos no puede pedirse el cumplimiento de una orden interlocutoria en el juzgado de otro estado. The rule is of common knowledge that the definitive judgment of a court of another state between the same parties on the same cause of action, on the merits of the case is conclusive, but it must be a definitive judgment on the merits only. Where the judgment is merely interlocutory, the determination of the question by the court which rendered it did not settle and adjudge finally the rights of the parties." (National Park Bank vs. Old Colony Trust Co., 186 N.Y.S., 717.) As already stated the Minnesota decree, to the extent that it is final and not subject to modification, is entitled to the protection of the full faith and credit clause of the federal Constitution and must be enforced in this state. If, however, a part of the Minnesota decree in not final, but is subject to modification by the court which rendered it, then neither the United States Constitution nor the principle of comity compels the courts of this state to enforce that part of the decree; for no court other than the one granting the original decree could undertake to administer relief without bringing about a conflict of authority. (Levine vs. Levine, 187 Pac., 609.) A judgment rendered by a competent court, having jurisdiction in one state, is conclusive on the merits in the

courts of every other state, when made the basis of an action and the merits cannot be reinvestigated. Our own Supreme Court so holds. Cook vs. Thornhill, 13 Tex. 293, 65 Am. Dec. 63. But before such a judgment rendered in one state is entitled to acceptance, in the courts of another state, as conclusive on the merits, it must be a final judgment and not merely an interlocutory decree. Freeman on Judgment, Sec. 575; Baugh vs. Baugh, 4 Bibb (7 Ky.) 556; Brinkley vs. Brinkley, 50 N.Y. 184, 10 Am. Rep. 460; Griggs, vs. Becker, 87 Wis. 313, 58 N.W. 396. (Walker vs. Garland et al., 235 S.W., 1078.) En general, un decreto de divorcio encomendando la custodia de un hijo del matrimonio a uno de los conyuges se respeta por los juzgados de otros estados "at the time and under the circumstances of its rendition but that such a decree has no controlling effects in another state as to facts or conditions arising subsequently to the date of the decree; and the courts of the latter state may, in proper proceedings, award the custody otherwise upon proof of matters subsequent to the decree which justify the change in the interest of the child." (20 A.L.R., 815.) En el caso presente las circunstancias han cambiado. Querubina ya no esta en los Angeles sino en Caoayan, Ilocos Sur. Esta bajo el cuidado de su padre. Hay una distancia enorme desde Los Angeles y el presente domicilio de la menor y el costo del pasaje hasta aquella ciudad seria muy elevado, y aun es posible que este fuera del alcance de la recurrente. No hay pruebas de que ella esta en condiciones de pagar los gastos de viaje de la menor y del que la acompae. Ella no es un paquete de cigarrillos que

se puede enviar por correo a Los Angeles. No consta que las circunstancias que se daban en noviembre de 1949 en Los Angeles, prevalecian en el mismo estado hasta el momento en que se vio la causa en el Juzgado de primera instancia de Ilocos Sur. Tampoco hay pruebas de que la recurrente dispone de suficientes fondos para costear el viaje de la nia Querubina desde Caoayan, Ilocos Sur, hasta Los Angeles, California, y para responder de su alimentacion, cuidado y educacion, y constando en autos que el padre, mas que nadie, esta interesado en el cuidado y educacion de su hija, y que tiene ahorros de mas de P2,000 depositados en un banco, creemos que el Juzgado a quo no erro al denegar la solicitud. El Juzgado no podia, sin prueba satisfactoria, disponer sin remordimiento de conciencia la entrega de la nia al abogado de la recurrente: es su obligacion velar por la seguridad y bienestar de ella. No se trata solo de resolver el derecho preferente del padre y de la madre en la custodia. La vital y trascendental cuestion del porvenir de la nia es superior a toda consideracion. El Estado vela por sus ciudadanos. El articulo 171 del Codigo Civil dispone que "Los Tribunales podran privar a los padres de la patria potestad, o suspender el ejercicio de esta, si trataren a sus hijos con dureza excesiva, o si les dieren ordenes, consejos o ejemplos corrutores." En Cortes contra Castillo y otra (41 Jur. Fil., 495), este Tribunal declaro que no erro el Juzgado de primera instancia al nombrar a la abuela, como tutora de dos menores, en vez de su madre que fue condenada por adulterio. El articulo 154 del Codigo Civil dispone que "El padre, y en su

defecto la madre, tienen potestad sobre sus hijos legitimos no emancipados." Con todo, si se hace indebido ejercicio de esta facultad, los tribunales, como ya hemos dicho, pueden privarie de ella y encomendar el cuidadano del menor a otras instituciones, como dispone el articulo 6 de la Regla 100, que es reproduccion del articulo 771 de la Ley No. 190. En el asunto de Lozano contra Martinez y De Vega (36 Jur. Fil., 1040), en que el primero, en un recurso de habeas corpus, reclamaba contra su esposa la custodia de su hijo menor de 10 aos, este Tribunal, en apelacion, declaro que el juzgado a quo no abuso de la discrecion conferida a el por el articulo 771 del Codigo de procedimiento civil al denegar la solicitud. Esta interpretacion del articulo en cuanto al debido ejercicio de la discrecion de un Juzgado de primera instancia ha sido reafirmada en el asunto de Pelayo contra Lavin (40 Jur. Fil., 529). En la solicitud presentada, no hay siquiera alegacion de que el juzgado a quo haya abusado de su discrecion. Este Tribunal no debe revocar su actuacion. En la vista de la causa en el Juzgado de Primera Instancia de Ilocos Sur, el recurrido declaro que habia traido su hija a Filipinas porque queria evitar que ella tuviera conocimiento de la conducta impropia y de la infidelidad cometida por la madre, impidiendo que la viese convivir con el hombre que habia ofendido a su padre. El recurrido dijo que queria que su hija se criase en un ambiente de elevada moral, y que no se sancionara indirectamente la infidelidad de la esposa. Bajo la Ley de Divorcio No. 2710, el conyuge culpable no tiene derecho a la custodia de los hijos menores. La legislacion vigente, las buenas costumbres

y los interesesdel orden publico aconsejan que la nia debe estar fuera del cuidado de una madre que ha violado el juramento de fidelidad a su marido. Creemos que este Tribunal no debe hacer cumplir un decreto dictado por un tribunal extranjero, que contraviene nuestras leyes y los sanos principios de moralidad que informan nuestra estructura social sobre relaciones familiares. En el asunto de Manuela Barretto Gonzales contra Augusto Gonzales (58 Jur. Fil., 72), se pidio por la demandante que el divorcio obtenido por el demandado en Reno, Nevada, en 28 de noviembre de 1927, fuera confirmado y ratificado por el Juzgado de primera instancia de Manila. Este juzgado dicto sentencia a tenor de la peticion. Teniendo en cuenta el articulo 9 del Codigo civil que dispone que "Las leyes relativas a los derechos y deberes de familia, o al estado, condicion y capacidad legal de las personas, obligan a los espanoles (filipinos) aunque residan en pais extranjero" y el articulo 11 del mismo codigo que dice en parte qye ". . . las leyes prohibitivas concernientes a las personas, sus actos o sus bienes, y las que tienen por objeto el orden publico y las buenas costumbres, no quedaran sin efecto por leyes o sentencias dictadas, ni por disposiciones o convenciones acordades en pais extranjero," este Tribunal, en apelacion, declaro: "Los litigantes, mediante convenio mutuo, no pueden obligar a los tribunales a que aprueben sus propios actos, ni que permitan que las relaciones personales de los ciudadanos de estas Islas queden afectadas por decretos de paises extranjeros en una forma que nuestro Gobierno cree que es contraria al orden publico y a la recta moral," y revoco la decision

del juzgado inferior. Las sentencias de tribunales extranjeros no pueden properse en vigor en Filipinas si son contrarias a la leyes, costumbres y orden publico. Si dichas decisiones, por la simple teoria de reciprocidad, cortesia judicial y urbanidad internacional son base suficiente para que nuestros tribunales decidan a tenor de las mismas, entonces nuestros juzgados estarian en la pobre tesitura de tener que dictar sentencias contrarias a nuestras leyes, costumbres y orden publico. Esto es absurdo. En Ingenohl contra Olsen & Co. (47 Jur. Fil., 199), se discutio el alcanse de la cortesia internacional. El articulo 311 del Codigo de Procedimiento Civil que es hoy el articulo 48, Regla 39, fue la base de la accion presentada por Ingenohl. Pidio en su demanda que el Juzgado de primera instancia de Manila dictase sentencia de acuerdo con la dictada por el Tribunal Supremo de Hongkong. Despues de la vista correspondiente, el juzgado dicto sentencia a favor del demandante con intereses legales y costas. En apelacion, se alego que el juzgado inferior erro al no declarar que la decision y sentencia del Tribunal Supremo de Hongkong se dicto y registro como resultado de un error manifiesto de hecho y de derecho. Este Tribunal declaro que "Es principio bien sentado que, a falta de un tratado o ley, y en virtud de la cortesia y del derecho internacional, una sentencia dictada por un tribunal de jurisdiccion competente de un pais extranjero, en el que las partes han comparecido y discutido un asunto en el fondo, sera reconocido y puesta en vigor en cualquier otro pais extranjero." Pero teniendo en cuenta el articulo 311 del Codigo de Procedimiento Civil que dispone que "la sentencia puede ser

rechazada mediante prueba de falta de competencia, o de haber sido dictada sin la previa notificacion a la parte, o que hubo connivencia, fraude o error manifiesto de derecho o de hecho," concluyo: "En virtud de esa Ley cuando una persona trata de hacer cumplir una sentencia extranjera, el demandado tiene derecho a ejercitar cualquier defensa de esas, y si se llegara a demostrar que existe propiamente alguna de ellas, destruira los efectos de la sentencia." Revoco la decision del juzgado inferior y declaro y fallo que "la sentencia dictada por el Tribunal de Hongkong, contra la demandada, constituyo un error manifesto de hecho y de derecho, y, por tal razon, no debe exigirse su cumplimiento en las Islas Filipinas." Si se concede la solicitud, la menor estaria bajo el cuidadode su madre que fued declarada judicialmente culpable de infidelidad conyugal; viviria bajo un techo juntamente con el hombre que deshonro a su madre y ofendio a su padre; jugaria y creceria con el fruto del amor adulterino de su madre; llegaria a la pubertad con la idea de que una mujer que fue infiel a su marido tiene derecho a custodiar a su hija. En semejante medio ambiente no puede criarse a una nia de una manera adecuada: si llegara a saber durante su adolescencia que su padre ha sido traicionado por su madre con el hombre con quien vive, esa nia viviria bajo una impresion de inferioridad moral de incalculables consecuencias, y por ello nunca seria feliz; y si, bajo la influencia de su madre, llegara a creer que la infidelidad de una esposa es solo un incidente tan pasajero como cambiar de tocado, la nia iria por el camino de la perdicion. Y la educacion moral que puede darle su padrasto dificilmente puede ser mejor.

Si se deniega la solicitud, la nia viviria con su padre con el beneficio de un cuidado paternal exclusivo, y no con la dividida atencion de una madre que tiene que atender a su esposo, a sus dos hijas y a una tercera nia, la protegida. Para el bienestar de la menor Querubina, que es lo que mas importa en el caso presente, su custodia por el padre debe considerarse preferente. En los mismos Estados Unidos, el punto cardinal que tienen en cuenta los juzgados, no es la reclamacion de las partes o la fuerza del decreto interlocutorio, sino el bienestar del menor. A consideration of all the facts and circumstances leads to the conclusion that comity does not require the courts of this state, regardless of the well-being of the child, to lend their aid to the enforcement of the Iowa decree by returning Winifred to the custody of her grandmother. A child is not a chattel to which title and the right of possession may be secured by the decree of any court. If the decree had been rendered by a domestic court of competent jurisdiction, it would not have conclusively established the right to the custody of the child. In a contest between rival claimants, this court would have been free, notwithstanding the decree, to award the custody solely with an eye to the child's welfare. (State ex rel. Aldridge vs. Aldridge, 204 N.W. 324.) On habeas corpus by the mother to obtain possession from the father of two children aged four and six years, whose custody she alleged had been awarded her in divorce proceedings in another state, it appeared that the

mother was without property, and had no means of support save her personal earnings of $15 per month, was in poor health, and lived with her mother, in immoral surroundings, and that the father was an industrious and sober man, earnings $100 per month. Held, that the welfare of the children was the only thing to be considered, and a judgment awarding their custody to the mother should be reversed. (Kentzler vs. Kentzler, 28 Pac., 370.) La recurrente, como ultimo recurso, invoca la comity of nations. La reciprocidad, la cortesia entre naciones no es absoluta. Rige cuando hay tratado y hay igualdad de legislacion. Se adopta la doctrina de reciprocidad cuando el tribunal extranjero tiene jurisdiccion para conocer de la causa, las partes han comparecido y discutido el asunto en el fondo. Algunas veces se concede como privilegio pero no como estricto derecho. La cortesia pedida no ha sido reconocida por este Tribunal cuando declaro que los derechos y deberes de familia, estado, condicion y capacidad legal de las personas se rigen por las leyes de Filipinas y no por las de America (Gonzales contra Gonzales, supra) y no dio validez a la decision del Tribunal Supremo de Hongkong porque era erronea en sus conclusiones de hecho y de derecho (Ingenohl contra Olsen y Co., supra). La reciprocidad entre los estados de la Union Americana no es absoluta. No es regla inquebrantable. Los varios casos citados mas arriba lo demuestran. He ahi otro caso: On the question of comity, this court said in the habeas

corpus case of In re Stockman, 71 Mich. 180, 38 N.W. 876: "Comity cannot be considered in a case like this, when the future welfare of the child is the vital question in the case. The good of the child is superior to all other considerations. It is the polar star to guide to the conclusion in all cases of infants, whether the question is raised upon a writ of habeas corpus or in a court of chancery." (Ex parte Leu, 215 N.W., 384.) Ya hemos visto que la orden interlocutoria cediendo la custodia de la menor a la recurrente esta en pugna con las disposiciones expresas de la legislacion vigente en Filipinas. En el primer decreto y en el enmendatorio se encomendo la custodia de la menor al padre y se prohibio, en la orden enmendada, a la madre llevar a la menor a su casa porque estaba otra vez en relaciones ilegales con otro hombre. Pero el ultimo decreto enmendatorio, contrario al sentido de justicia, a la ley, y a las buenas costumbres, encomendo la custodia de la menor a la que fue esposa infiel porque ya estaba casada con quien cometio adulterio. Y bajo la doctrina de la comity of nations, la recurrente contiende que debe cumplirse en Filipinas ese decreto. Opinamos que por las varias razones arriba expuestas, la pretension es insostenible. Se confirma la sentencia apelada. La recurrente pagara las costas. Ozaeta, Bengzon, Montemayor and Reyes, MM., estan conformes. Tuason, J., concurs in the result.

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