922 SUPREME COURT REPORTS ANNOTATED

Liwanag vs. Court of Appeals

No. L-20735. August 14, 1965.

GLICERIA C. LIWANAG, Special Administratrix of the

Estate of Pio D. LIWANAG, petitioner, vs. HON. COURT
OF APPEALS, HON. JESUS DE VEYRA, as Judge of the
Court of First Instance of Manila, and MANUEL
AGREGADO, respondents.

Remedial law; Civil actions; When denial of motion to

dismiss, even if erroneous, is reviewable by appeal; Case at bar.—
The denial of a motion to dismiss, even if it were erroneous, is
reviewable, not by writ of certiorari, but by appeal, after the
rendition of judgment on the merits where the alleged ground for
dismissal, such as absence of a cause of action, does not affect the
lower court’s jurisdiction to hear the case.
Same; Special civil actions; Settlement of estate of deceased
persons; Mortgagee may bring action for foreclosure against
special administrator.—The theory that a mortgagee cannot bring
an action for foreclosure against the special admin-

_______________

6 See Aquino v. Securities, 89 Phil. 532.

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VOL. 14, AUGUST 14, 1965 923

Liwanag vs. Court of Appeals

istrator of the estate of a deceased person has already been

rejected by this Court in Liwanag v. Hon. Reyes, L-19159, Sept.
29, 1964 where the Supreme Court held that the “the Rules of
Court do not expressly prohibit making the special administratrix
a defendant in a suit against the estate. Otherwise, creditors
would find the adverse effects of the statute of limitations running
against them in cases where the appointment of a regular
administrator is delayed. So that if We are not to deny the present
action on this technical ground alone, and the appointment of a
regular administrator will be delayed, the very purpose for which
the mortgage was constituted will be defeated.”

APPEAL by certiorari from a decision of the Court of

Appeals.

The facts are stated in the opinion of the Court.

     C. M. Baltazar & A. P. Narvasa for petitioner.
     Manuel P. Calanog for respondents.

CONCEPCION, J.:

Appeal by certiorari from a decision of the Court of

Appeals.
Petitioner Gliceria C. Liwanag is the special
administratrix of the estate of Pio D. Liwanag, the
settlement of which is, the subject of Special Proceeding
No. 46599 of the Court of First Instance of Manila. On
January 9, 1962 respondent Manuel Agregado commenced
against her as such special administratrix, Civil Case No.
50897 of the same court, for the foreclosure of a real estate
mortgage constituted in his favor by said Pio D. Liwanag
during his lifetime. On July 18, 1962, here petitioner
moved to dismiss Agregado’s complaint, upon the ground
that as special administratrix she cannot be sued by a
creditor of the deceased. In an order dated August 1, 1962,
respondent, Hon. Jesus de Veyra, as Judge of said court,
denied the motion, whereupon petitioner filed case CA-G.R.
No. 31168-R of the Court of Appeals against respondent
Judge and Agregado, to annul said order by writ of
certiorari and enjoin said Judge from entertaining said
Case No. 50897. Upon petitioner’s motion, the Court of
Appeals issued a writ of preliminary injunction directing
respondent Judge to refrain from proceeding with the trial
of that case, until further orders. However, sub-
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Liwanag vs. Court of Appeals

sequently, or on December 3, 1962, the Court of Appeals

rendered a decision denying the writ prayed for and
dissolving said writ of preliminary injunction, with costs
against the petitioner. Hence this appeal taken by
petitioner upon the theory that, pursuant to Section 2, Rule
81 of the (old) Rules of Court, “a special administrator shall
not be liable to pay any debts of the deceased,” and that,
accordingly, Agregado has no cause of action against her as
a special administratrix.
 Inasmuch, however, as the alleged absence of a cause of
action does not affect respondent’s jurisdiction to hear Case
No. 50897, it follows that the denial of petitioner’s motion
to dismiss the same, even if it were erroneous, is
reviewable, not by writ of certiorari, but by appeal, after
the rendition of judgment on the merits. Moreover, the
theory that a mortgagee cannot bring an action for
foreclosure against the special administrator of the estate
of a deceased person has already been rejected by this
Court. In Liwanag vs. Hon. Luis B. Reyes, G.R. No. L-
19159 (September 29, 1964), involving the same petitioner
herein, the same estate of the deceased Pio D. Liwanag, a
similar action for foreclosure, although of another mortgage
and an identical motion to dismiss and issue, we expressed
ourselves as follows:

“The defendant Gliceria Liwanag filed a motion to dismiss the

complaint for foreclosure, on the theory that she may not be sued
as special administratrix.
“Section 7 of Rule 86 of the New Rules of Court provides that a
creditor holding a claim against the deceased, secured by a
mortgage or other collateral security, may pursue any of these
remedies: (1) abandon his security and prosecute his claim and
share in the general distribution of the assets of the estate; (2)
foreclose his mortgage or realize upon his security by an action in
court, making the executor or administrator a party defendant,
and if there is a deficiency after the sale of the mortgaged
property, he may prove the same in the testate or intestate
proceedings; and (3) rely exclusively upon his mortgage and
foreclose it any time within the ordinary period of limitations, and
if he relies exclusively upon the mortgage, he shall not xxx share
in the distribution of the assets.
“Obviously, the herein respondent has chosen the second

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Liwanag vs. Court of Appeals

remedy, having filed his action for foreclosure against the

administratrix of the property.
“Now the question arises as to whether the petitioner herein
can be sued as special administratrix. The Rules of Court do not
expressly prohibit making the special administratrix a defendant
in a suit against the estate. Otherwise, creditors would find the
adverse effects of the statute of limitations running against them
in cases where the appointment of a regular administrator is
delayed. So that if We are not to deny the present action on this
technical ground alone, and the appointment of a regular
administrator will be delayed, the very purpose for which the
mortgage was constituted will be defeated.”
WHEREFORE, the decision appealed from is hereby
affirmed, with costs against the petitioner. It is so ordered.

          Bengzon, C.J., Bautista Angelo, Reyes, J.B,L.,

Paredes, Dizon, Regala, Makalintal, Bengzon, J.P., and
Zaldivar, JJ., concur.
     Barrera, J., is on leave.

Decision affirmed.

ANNOTATION
ABSENCE

I. Absence defined.

It refers to the disappearance of a person from his domicile,

his whereabouts being unknown, and he did not leave an
administrator of his property. (Art. 381, Civil Code.)

II. Absence, how declared.

A. According to Civil Code.—Two years having elapsed

without any news about the absentee or since the receipt of
the last news, and five years in case the absentee has left a
person in charge of the administration of his property, his
absence may be declared (Art. 384, CC). The judicial
declaration of absence shall not take effect until six months
after its publication in a newspaper of general circulation
(Art. 386, ibid.). After an absence of seven years, it being
unknown whether or not the absentee still lives,
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Liwanag vs. Court of Appeals

he shall be presumed dead for all purposes, except for those

of succession. The absentee shall not be presumed dead for
the purpose of opening his succession till after an absence
of ten years. If he disappeared after the age of seventy-five
years, an absence of five years shall be sufficient in order
that his succession may be opened. (Art. 390, ibid.)
The purpose of the presumption stated in Article 390
(ordinary absence), and its natural consequent effects are:
First, if the person absent has been unheard from for seven
years or more, and it is not known whether he is still alive
or not, then he is presumed dead for all purposes except
that of succession. This means that his property will not be
distributed among his heirs till after a lapse of three more
year; hence a total of ten years. Second, the rule is different
in case the person who disappeared was, on his
disappearance, more than seventy-five years old, in which
case five years is sufficient for all purposes, including that
of succession. The reason is his age, which really does not
make his remaining years of life seem long.
Proof of actual death of the person presumed dead
because he had been unheard from in seven years, would
have to be made in another proceeding to have such
particular fact finally determined. If a judicial decree
declaring a person presumptively dead, because he had not
been heard from in seven years, cannot become final and
executory even after the lapse of the reglementary period
within which an appeal be taken, for such presumption is
still disputable and remains subject to contrary proof, then
a petition for such a declaration is useless, unnecessary,
superfluous and of no benefit to petitioner. (Petition for the
Presumption of Death of Nicolai Szatraw, 81 Phil. 461)
B. According to Revised Administrative Code.—Section
2195 of the Revised Administrative Code considers
“absence” on the same level as “suspension” and other
forms of temporary disability.
If a municipal mayor is suspended—as in the case of
Laxamana vs. Baltazar (L-5955)—obviously he is disabled
temporarily; he cannot act as mayor or exercise the powers
927

VOL. 14, AUGUST 14, 1965 927

Liwanag vs. Court of Appeals

and prerogatives of his office while under suspension. The

“absence” that would authorize the vice-mayor to act as
acting mayor should, therefore, be construed in the same
manner; it should be such absence as would disable the
mayor from exercising the powers and prerogatives of his
office. (Grapilon vs. Municipal Council of Carigara, Leyte, 2
SCRA 103.)
While the ordinary meaning of “absence” is the state of
being away or not present, an officer’s absence is not such
as to warrant the placing temporarily of another in his
place unless said officer is absent on occasion demanding
the immediate exercise of the powers of his office.
(Grapilon vs. Municipal Council of Carigara, Leyte, supra.)
In the case of Zeta vs. Macato, April 28, 1959, the
meanings of “absence” as to entitle the vice-mayor to act as
mayor are: First, mere physical absence of the mayor from
the municipality is not such absence as to authorize the
vicemayor to assume the powers and duties of the mayor;
and second, to entitle the vice-mayor to act as mayor in the
latter’s absence, the regular incumbent must be away from
the municipality in such manner as he was unable to
discharge the duties of the office.
 Under the legal provisions authorizing a municipal or
city vice-mayor to discharge the duties of the mayor in the
“absence” of the latter, said term must be reasonably
construed, and so construed means “effective” absence. By
“effective” absence is meant one that renders the officer
concerned powerless, for the time being, to discharge the
powers and prerogatives of his office. (Paredes vs. Antillon,
3 SCRA 662, 665) Considering that the mayor left the
territorial jurisdiction of the Philippines for Japan to
remain there at least for a number of days, one cannot but
conclude that, he was “effectively” absent, for it would be
preposterous to claim that any municipal or city official of
the Philippines may lawfully continue to exercise or
discharge the powers, duties and prerogatives of his office
even while in a foreign country. That he was there on
official business or with the approval of a superior officer is
quite immaterial. (Paredes vs. Antillon, supra, at 665-666)

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Liwanag vs. Court of Appeals

Section 2221 of the Revised Administrative Code which

provides that the council “shall be presided by the mayor
and no one else” applies only if the mayor were present at
the session and was prevented from presiding therein, but
not where he absented himself therefrom, (Javellana vs.
Tayo, 6 SCRA 1042, 1049.)
Ordinarily, the enumeration of section 7 of Republic Act
2264 as to the proper official who should perform the duties
of mayor in case of his temporary incapacity would be
interpreted as exclusive, following the general principle of
inclusio unius, est exclusio alterius, but there are cogent
reasons to disregard this rule since to adopt it would cause
inconvenience, hardship, and injury to the public interest,
as it would place in the hands of the mayor, vice-mayor,
and the councilor receiving the highest number of votes an
instrument to defeat the law investing the legislative
power in the municipal council by simply boycotting the
regular sessions of the council. (Javellana vs. Tayo, supra,
at 1050.)

III. Kinds of absence.

1. Ordinary absence.—In ordinary absence, the time of

death is, according to European rule, presumed on
the last day of the period; whereas, the American
rule does not state any such date.
2. Qualified or extraordinary.—In the case of qualified
or extraordinary absence, the death is presumed to
 have occurred at the beginning of the period
(because of the danger of death). (Judge Advocate
General vs. Gonzales, 48 O.G. 5329.)

IV. Periods or stages of absence.

1. Provisional absence.—When a person disappears

from his domicile, his whereabouts being unknown,
and without leaving an agent to administer his
property, the judge, at the instance of an interested
party, a relative, or a friend, may appoint a person
to represent him in all that may be necessary. This
same rule shall be observed when under similar
circumstances the power conferred by the absence
expired. (Art. 381, CC.)

929

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Liwanag vs. Court of Appeals

2. Declaration of absence.—Two years having elapsed

without any news about the absentee or since the
receipt of the last news, and five years in case the
absentee has left a person in charge of the
administration of his property, his absence may be
declared. (Art. 384, ibid.)
3. Presumption of death.—After an absence of seven
years, it being unknown whether or not the
absentee still lives, he shall be presumed dead for
all purposes, except for those of succession. (See
Arts. 390 and 391, ibid.)

V. Who may ask for the declaration of absence.

1. The spouse present;

2. The heirs instituted in a will, who may present an
authentic copy of the same;
3. The relatives who may succeed by the law of
intestacy; and
4. Those who may have over the property of the
absentee some right subordinated to the condition
of his death. (Art. 385, Civil Code.)

All these people are presumptive heirs or have interests in

the property of the absentee conditioned upon his death.
Hence, they are given the right to ask for a declaration of
the latter’s absence.

VI. Word “absence” applied to following cases.

A. Absence of accused from scene of crime.—Even conceding
that the accused had been seen with the deceased at 8:00
p.m. of the day of the crime, the incriminating value of that
circumstance is destroyed by the interval that elapsed
between the encounter and the death of the deceased. The
examining physician, taking into account the medical date,
placed the hour of death at some twelve to fourteen hours
prior to the autopsy made in the afternoon of August 15,
i.e., around night of August 14. No one saw the accused
after 8:00 p.m. of that night, and the evidence therefore
leaves a gap of four hours during which the whereabouts of
the appellant or of the deceased are not known. This
interval is wide enough to admit the possibility of the
accused having separated from the deceased and of the
latter having died at the hands of per-
930

930 SUPREME COURT REPORTS ANNOTATED

Liwanag vs. Court of Appeals

sons unknown. (People vs. Fraga, L-12005, Aug. 31, 1960.)

B. Absence of accused on the day of trial.—Where the
failure of the accused to appear at the trial was not
motivated by a desire to disobey wilfully the court’s order
or to disregard or despise its authority, but was due to
unavoidable circumstances arising from his desire to
pursue certain legal remedies with a view to getting what
he considered a more impartial judge to hear his case, his
absence on the day of the trial of the criminal case is not
punishable for contempt. (People vs. Rivera, 91 Phil. 354,
357.)
C. Absence of conspiracy.—Where the attack on the
deceased is not the result of conspiracy or of a preconceived
plan hatched by the accused, their liability can only be
considered in the light of their individual participation and
not of a common criminal design. (People vs. Cutura, 4
SCRA 663, 668.)
The fact that the deceased and defendant struggled for
the possession of the latter’s knife before the former leaped
from the house to escape followed by the latter negates the
attendance of the aggravating circumstance of treachery.
(People vs. Canitan and Causi, 8 SCRA 358, 364.)
The absence of evidence as to improper motive actuating
the principal witnesses for the prosecution strongly tends
ta sustain the conclusion that no such improper motive
existed, and that their testimony is worthy of full faith and
credit. (U.S. vs. Pajarillo, 19 Phil. 288, cited in People vs.
De Otero, 51 Phil. 201, and People vs. Imam Sawah, 5
SCRA 385.)
 Absence of malice is of the essence of the crime of
homicide through reckless negligence. Hence, it cannot
mitigate the liability arising therefrom. (Catuiza vs. People,
13, SCRA 538, 543.)
D. Absence of medical examination.—Medical
examination is not an indispensable element in the
prosecution for the crime of rape, because it all depends
upon the evidence offered and as long as such evidence
convinces the
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Liwanag vs. Court of Appeals

court, a conviction thereof is proper. (People vs. Belandres,

85 Phil. 874; People vs. Suarez, 40 O.G. 28; People vs.
Selfaison, 1 SCRA 235, 242; People vs. Orteza, 6 SCRA 109,
113.)
E. Absence of cause of action which does not affect
jurisdiction.—Inasmuch as the alleged absence of a cause
of action does not affect the court’s jurisdiction to hear the
case, it follows that the denial of petitioner’s motion to
dismiss the same, even if it were erroneous, is reviewable,
not by writ of certiorari, but by appeal, after the rendition
of judgment on the merits. (Liwanag vs. Court of Appeals,
supra at 918)
Moreover, the absence of preliminary investigation does
not go to the jurisdiction of the court but merely to the
regularity of the proceedings. It could even be waived.
Indeed, it is frequently waived. These are matters to be
inquired into by the trial court, not an appellate court.
(Medina vs. Orozco, 18 SCRA 1168.)
F. Absence of disqualification.—The absence of the
disqualifications provided by law is part and parcel of the
case for naturalization, and petitioner has the burden of
proving such absence affirmatively, in addition to his
possession of the positive qualifications required by the
statute. (Yap vs. Republic, 4 SCRA 670, 675.)
Needless to state, it is incumbent upon a petitioner for
naturalization to prove affirmatively by his own testimony
and that of at least two credible witnesses, not only that he
possesses all the qualifications required under Section 2 of
Commonwealth Act 473, but also that he does not possess
any of the disqualifications provided under section 4 of the
same Act. (Kho Eng Pee vs. Republic, 5 SCRA 609, 612.)
The answer of the witness to the effect that petitioner is
not in any way disqualified “because he possesses all the
qualifications to become a Filipino” does not prove
affirmatively that petitioner does not possess any of the
disqualifications. To possess the qualifications is one thing
and it is another not to possess any of the disqualifications.
(Kho Eng Pee vs. Republic, supra at 612)
932

932 SUPREME COURT REPORTS ANNOTATED

Liwanag vs. Court of Appeals

The petition for naturalization must contain an averment

that the petitioner has complied with the requirements of
section 5 of Commonwealth Act 473, which refers to the
filing of a declaration of intention to become a Filipino
citizen one year prior to the filing of the petition. The
absence of such averment in the petition is fatal, and the
declaration of intention is so essential in cases of
naturalization that its incorporation in the petition itself
has become jurisdictional. (Sy Ang Hoc vs. Republic, 1
SCRA 886, 889-890.)
However, the absence of opposition does not preclude the
scanning of the whole record by the appellate court, with a
view to preventing the conferment of citizenship to persons
not fully qualified therefor. The applicant’s complaint of
unfairness could have some weight if the objections on
appeal had been on points not previously passed upon. (Lee
vs. Republic, 13 SCRA 700, 703.)
G. Absence of provincial governor.—Although Section 5
of Republic Act 2264 makes the provincial governor the
presiding officer of the provincial board, it does not make
his presence indispensable for the valid transaction of
business, for it not only considers the presence of three
members (out of the entire membership of five) sufficient to
constitute a quorum for that purpose, but also anticipates a
case when the governor is absent, in which case the vote of
a majority of the members present shall constitute a
binding act of the board. The designation of the governor as
presiding officer is obviously meant to apply to meetings
where he is present, as the logic of the situation dictates,
he being the executive and highest officer in attendance.
(Castillo vs. Villarama, L-24649, Sept. 18, 1965.) (Note: As
regards mayor, see par. II-B, annotation.)
H. Absence of due presentment of cross-checks, liability of
drawer.—The drawer in drawing the check engaged that on
due presentment, the check would be paid, and that if it be
dishonored, he will pay the amount thereof to the holder.
Wherefore, in the absence of due presentment the
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Liwanag vs. Court of Appeals
drawer did not become liable. (Chan Wan vs. Tan Kim, L-
15380, Sept. 30, 1960.)
In case of payment of surcharge and interest by a
taxpayer outside the Philippines, he being in the United
States, the Supreme Court said: This pretense is clearly
devoid of merit. The assessment notices were sent to the
address given by him in his income tax return, and receipt
thereof was acknowledged by his representative in the
Philippines. Moreover, defendant was in the Philippines
when the deficiency assessment notice was issued, and his
absence did not render the requisite payments impossible.”
(Republic vs. Lewin, 7 SCRA 965, 967.)
I. Absence of acknowledging parent.—Counsel for
petitioner believes that Article 133 of the Civil Code may be
substantially complied with by merely having the court
approve an acknowledgment previously made in a notarial
document. But the danger of such a procedure when
applied to this case may easily be conceived. According to
counsel, the acknowledging parent is “reputedly rich and
may have properties left in the Philippines.” But it is not
known where he is. At least, neither he nor any of his legal
successors, if he is already dead, has been cited to appear.
With no assurance that the instrument of acknowledgment
sought to be approved is genuine or has not been illegally
obtained and with no adverse party present to impugn its
validity, it would be possible, through the procedure
advocated by counsel, for an impostor to become heir to a
fortune in the absence of its owner. (In re Lorenza Vda. de
Balagtas, 83 Phil. 450, 452-453.)
J. Absence of contract with union for hiring of laborers.—
At the start of the redrying season of 1957, the petitioner
had no contract with the respondent union concerning the
hiring of laborers. The recruitment of new personnel had
nothing to do with the season of 1956, at the end of which
those who worked during that season were duly separated.
Petitioner was free to establish a system of priorities for
that purpose and adherence to that system would not
constitute unfair labor practice against those
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934 SUPREME COURT REPORTS ANNOTATED

Liwanag vs. Court of Appeals

who were not hired so as to entitle them to back wages not

only for 1957 but even up to 1959. (Central Cooperative
Exchange, Inc. vs. La Union United Workers Asso., 18
SCRA 521, 527.)
In case of absence without prior permission, the
Supreme Court held: “The requirement that an employee
must obtain previous permission before absence is made, is
 reasonable,” its purpose being undoubtedly to enable the
management to make the necessary adjustments in order
that the work may not be paralyzed. (Operators, Inc. vs.
National Labor Union, L-15073, May 26, 1960.)
K. Absence of attorney to appear for trial.—The
unexcused absence of an attorney from the court when a
case in which he was attorney of record for one of the
parties was called for trial is not a contempt occurring in
the presence or view of the court, so as to be summarily
punishable, but contempt therein, if any occurred, away
from, and out of, the presence of the court, and he is not
subject to discipline and punishment, other than by a
charge being first made against him substantially as
required by statute. (12 Am. Jur. sec. 11, p. 396.) (People
vs. Gagui, 2 SCRA 752, 754.)
However, where the absence of a counsel from the trial
was due to his own fault, he should not be heard to
complain that he was deprived of his day in court. In the
case at bar, the counsel’s excuse for his absence at the trial
was alleged lack of transportation facilities in his place of
residence when torrential rain poured down in his locality
during the date of the trial. The lower court did not deem
this as a sufficiently valid explanation because it observed
that despite such torrential rain, counsel for plaintiff who
was then a resident of a usually inundated area, somehow
made it to the court. Under these circumstances, the trial
court’s ruling can hardly be considered as an abuse of its
discretion. (Republic vs. Gonzales, 13 SCRA 633, 640.)—
ATTY. PLARIDEL C. JOSE.

———o0o———

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