[No. 11390. March 26, 1918.

] proceedings, due process of law implies that

EL BANCO ESPAÑOL-FILIPINO, plaintiff and there must be a court or tribunal clothed with
appellee, vs. VICENTE PALANCA, power to hear and determine the matter
administrator of the estate of Engracio Palanca before it, that jurisdiction shall have been
lawfully acquired, that the defendant shall
Tanquinyeng, defendant and appellant.
have an opportunity to be heard, and that
judgment shall be rendered upon lawful
1. 1.MORTGAGES; FORECLOSURE; JURISD hearing.
ICTION OF COURT OVER
NONRESIDENT MORTGAGOR.—Where
1. 6.ID.; ID.; MORTGAGE; FORECLOSURE.
the defendant in a mortgage foreclosure lives
—In an action to foreclose a mortgage
out of the Islands and refuses to appear or
against a nonresident, some notification of
otherwise submit himself to the authority of
the proceedings must be given to the
the court, the jurisdiction of the latter is
defendant. Under statutes generally
limited to the mortgaged property, with
prevailing, this notification commonly takes
respect to which the jurisdiction of the court
the form of publication in a newspaper of
is based upon the fact that the property is
general circulation and the sending of notice,
located within the district and that the court,
by mail, by which means the owner is
under the provisions of law applicable in
admonished that his property is the subject
such cases, is vested with the power to
of judicial proceedings. The provisions of
subject the property to the obligation created
law providing for notice of this character
by the mortgage. In such case personal
must be complied with.
jurisdiction over the nonresident defendant is
nonessential and in fact cannot be acquired.
1. 7.ID.; ID.; ID.; ORDER FOR MAILING OF
NOTICE BY CLERK.—In a foreclosure
1. 2.ID.; ID.; ID.; FAILURE OF CLERK TO
proceeding against a nonresident defendant,
SEND NOTICE BY MAIL.—The failure of
the court is required to make an order for the
the clerk to send notice by mail to the
clerk to mail a copy of the summons and
nonresident defendant in a foreclosure
complaint to the defendant at his last place
proceeding, as required by an order of the
of residence if known. In the present case an
court, does not defeat the jurisdiction of the
order was made directing the clerk to mail
court over the mortgaged property.
the required copy to the defendant at Amoy
China. No evidence appeared of record
1. 3.ID.; ID.; ID.; PERSONAL LIABILITY.— showing that such notice had in fact been
In an action to foreclose a mortgage against mailed by the clerk; but publication was
a nonresident defendant who fails to submit regularly made in a periodical as the law
himself to the jurisdiction of the court, no requires. Held: That the making of the order
adjudication can be made which involves a by the court constituted a compliance with
determination of a personal liability of either the law, in so far as necessary to constitute
party arising out of the contract of mortgage. due process of law, and that if the clerk
failed to send the notice, his dereliction in
1. 4.ID.; ID.; ID.; ASCERTAINMENT OF the performance of his duty was an
AMOUNT DUE.—In a foreclosure irregularity which did not constitute an
proceeding against a nonresident owner it is infringment of the provision of the
necessary for the court, as in all cases of Philippine Bill declaring that no person shall
foreclosure, to ascertain the amount due, be deprived of property without due process
of law.
922

92 PHILIPPINE REPORTS 1. 8.JUDGMENT; MOTION TO

VACATE; IRREGULARITY IN GlVING
2 ANNOTATED OF NOTICE.—A defendant who seeks to
Banco Español-Filipino vs. vacate a judgment in a foreclosure
Palanca. proceeding on the ground of irregularity in
the sending of notice by post, or failure to
1. as prescribed in section 256 of the Code of send such notice pursuant to an order of the
Civil Procedure, and to make an order court, must show that as a result of such
requiring the defendant to pay the money irregularity he suffered some prejudice of
into court. This step is a necessary precursor which the law can take account.
of the order of sale. The mere fact that
the court thus ascertains the amount of 1. 9.ID.; ID.; PREJUDICE TO DEFENDANT.
the debt and orders the defendant to pay it —In a mortgage foreclosure proceeding the
into court does not constitute the entering of property was bought in at the public sale by
a judgment against him as upon a personal the
liability.
923
1. 5.CONSTITUTIONAL LAW; DUE
PROCESS.—As applied to judicial VOL. 37, MARCH 26, 923
 1918 rightly done. This rule is applied to every
Banco Español-Filipino vs. judgment rendered in the various stages of
the proceedings; and if the record is silent
Palanca. with respect to any fact which should have
been established before the court could have
1. plaintiff, the mortgagee, at a price much rightly acted, it will be presumed that such
below the upset value agreed upon in the fact was properly brought to its knowledge.
mortgage. Held: That if any liability was
incurred by the plaintiff by purchasing at a 1. 15.ID.; JURISDICTIONAL FACT.—Where
price below that which had been agreed upon the officer makes a return concerning the
as the upset price, such liability was of a manner in which service was effected, and
personal nature and could not be the subject this
of adjudication in a foreclosure against a
nonresident defendant who did not come in 924
and submit to the jurisdiction of the court.
Such act of the plaintiff was, therefore, not 92 PHILIPPINE REPORTS
such a prejudice to the defendant as would 4 ANNOTATED
justify the opening of the judgment of
foreclosure.
Banco Español-Filipino vs.
Palanca.
1. 10.ID.; ID.; DELAY AS AFFECTING
RIGHT TO RELIEF.—A party who seeks to 1. service appears to have been insufficient, it
open a final judgment with a view to a cannot be presumed that other legal service
renewal of the litigation should show that he was effected by the same officer or other
has acted with diligence; and unexplained authorized person. This rule, however, is not
delay in seeking relief is a circumstance to applicable to the case where an affidavit
be considered as affecting the application relative to mailing notice to a nonresident,
adversely. instead of being made by the proper officer,
is made by one acting without legal
1. 11.ID.; ID.; ID.; PRESUMPTION OF authority.
KNOWLEDGE.—Upon an application
made by the representative of a deceased 1. 16.JUDGMENTS; MOTION TO
nonresident to vacate a judgment in a VACATE; TlME WlTHIN WHICH
foreclosure proceeding, it is held that, under MOTION MAY BE MAINTAINED.—
the circumstances of the particular case, Where a judgment is not void on its face, a
knowledge of the proceedings, or of their motion to vacate the judgment with a view to
result, should be imputed to him, upon the a continuation of the litigation, can be
legal presumption that things have happened maintained in a Court of First Instance only
according to the ordinary habits of life, and in accordance with section 113 of the Code
that as a consequence his failure to apply for of Civil Procedure, which sets a time limit of
relief within the year and a half during which six months from the date when the judgment
he survived the foreclosure proceedings was is entered. After the expiration of this period
a circumstance adversely affecting the the party who seeks relief against a judgment
application for relief. alleged to be void for some defect not
apparent on its f face must have recourse to
1. 12.ID.; UNSETTLEMENT OF JUDICIAL an appropriate original proceeding.
PROCEEDINGS; PUBLIC POLICY.—An
application which proposes to disturb APPEAL from an order of the Court of First
judicial proceedings long closed cannot be Instance of Manila. Ostrand, J.
considered with favor, unless based upon The facts are stated in the opinion of the court.
grounds Which appeal to the conscience of Aitken & DeSelms for appellant.
the court. Public policy requires that judicial Hartigan & Welch for appellee.
proceedings be upheld. The maxim here
applicable is Non quieta movere. STREET, J.:
1. 13.PRESUMPTIONS; PERFORMANCE OF This action was instituted upon March 31, 1908,
OFFICIAL DUTY.—Where the court makes by "El Banco EspañoI-Filipino" to foreclose a
an order for the clerk to mail notice of a mortgage upon various parcels of real property
foreclosure proceeding to a nonresident
situated in the city of Manila. The mortgage in
defendant it will be presumed in the absence
of affirmative proof to the contrary that the
question is dated June 16, 1906, and was executed
duty was performed. by the original defendant herein, Engracio
Palanca Tanquinyeng y Limquingco, as security
1. 14.ID.; ACTS OF COURT OF GENERAL for a debt owing by him to the bank. Upon March
JURISDICTION.—After jurisdiction has 31, 1906, the debt amounted to P218,294.10 and
once been acquired, every act of a court of was drawing interest at the rate of 8 per centum
general jurisdiction is presumed to have been per annum, payable at the end of each quarter. It
appears that the parties to this mortgage at that Banco Español-Filipino vs. Palanca.
time estimated the value of the property in publication had been properly made in a
question at P292,558, which was about P75,000 periodical, but nothing was said about notice
in excess of the indebtedness. After the execution having been given by mail. The court, upon this
of this instrument by the mortgagor, he returned occasion, found that the indebtedness of the
to China, which appears to have been his native defendant amounted to P249,355.32, with interest
country; and he there died, upon January 29, from March 31, 1908. Accordingly it was ordered
1910, without again returning to the Philippine that the defendant should, on or before July 6,
Islands. 1908, deliver said amount to the clerk of the court
As the defendant was a nonresident at the time to be applied to the satisfaction of the judgment,
of the and it was declared that in case of the failure of
925 the defendant to satisfy the judgment within such
VOL. 37, MARCH 26, 1918 925 period, the mortgage property located in the city
Banco Español-Filipino vs. Palanca. of Manila should be exposed to public sale. The
institution of the present action, it was necessary payment contemplated in said order was never
for the plaintiff in the foreclosure proceeding to made; and upon July 8, 1908, the court ordered
give notice to the def fendant by publication the sale of the property. The sale took place upon
pursuant to section 399 of the Code of Civil July 30, 1908, and the property was bought in by
Procedure. An order for publication was the bank for the sum of P110,200. Upon August
accordingly obtained from the court, and 7, 1908, this sale was confirmed by the court.
publication was made in due form in a newspaper About seven years after the confirmation of
of the city of Manila. At the same time that the this sale, or to be precise, upon June 25, 1915, a
order of the court was entered directing that motion was made in this cause by Vicente
publication should be made in a newspaper, the Palanca, as administrator of the estate of the
court f further directed that the clerk of the court original defendant, Engracio Palanca
should deposit in the post office in a stamped Tanquinyeng y Limquingco, wherein the
envelope a copy of the summons and complaint applicant requested the court to set aside the order
directed to the defendant at his last place of of default of July 2, 1908, and the judgment
residence, to wit, the city of Amoy, in the Empire rendered upon July 3, 1908, and to vacate all the
of China. This order was made pursuant to the proceedings subsequent thereto. The basis of this
following provision contained in section 399 of application, as set forth in the motion itself, was
the Code of Civil Procedure: that the order of default and the judgment
"In case of publication, where the residence of a rendered thereon were void because the court had
nonresident or absent defendant is known, the judge never acquired jurisdiction over the defendant or
must direct a copy of the summons and complaint to over the subject of the action.
be f forthwith deposited by the clerk in the post-office, At the hearing in the court below the
postage prepaid, directed to the person to be served, at
application to vacate the judgment was denied,
his place of residence."
and from this action of the court Vicente Palanca,
Whether the clerk complied with this order does as administrator of the estate of the original
not affirmatively appear. There is, however, defendant, has appealed. No other feature of the
among the papers pertaining to this case, an case is here under consideration than such as is
affidavit, dated April 4, 1908, signed by Bernardo related to the action of the court upon said
Chan y Garcia, an employee of the attorneys for motion.
the bank, showing that upon that date he had The case presents several questions of
deposited in the Manila post-office a registered importance, which will be discussed in what
letter, addressed to Engracio Palanca appears to be the sequence of most convenient
Tanquinyeng, at Manila, containing copies of the development. In the first part of this opinion we
complaint, the plaintiff s affidavit, the summons, shall, for the purpose of argument, assume that
and the order of the court directing publication as 927
aforesaid. It appears from the postmaster's receipt VOL. 37, MARCH 26, 1918 927
that Bernardo probably used an envelope obtained Banco Español-Filipino vs. Palanca.
from the clerk's office, as the receipt purports to the clerk of the Court of First Instance did not
show that the letter emanated from said office. obey the order of the court in the matter of
The cause proceeded in usual course in the mailing the papers which he was directed to send
Court of First Instance; and the defendant not to the defendant in Amoy; and in this connection
having appeared, judgment was, upon July 2, we shall consider, first, whether the court
1908, taken against him by default. Upon July 3, acquired the necessary jurisdiction to enable it to
1908, a decision was rendered in favor of the proceed with the foreclosure of the mortgage and,
plaintiff. In this decision it was recited that secondly, whether those proceedings were
926 conducted in such manner as to constitute due
926 PHILIPPINE REPORTS process of law.
ANNOTATED
 The word "jurisdiction," as applied to the individual is named as def fendant, and the
faculty of exercising judicial power, is used in purpose of the proceeding is to, subject his
several different, though related, senses since it interest therein to the obligation or lien burdening
may have reference (1) to the authority of the the property. All proceedings having for their sole
court to entertain a particular kind of action or to object the sale or other disposition of the property
administer a particular kind of relief, or it may of the defendant, whether by attachment,
refer to the power of the court over the parties, or foreclosure, or other form of remedy, are in a
(2) over the property which is the subject to the general way thus designated. The judgment
litigation. entered in these proceedings is conclusive only
The sovereign authority which organizes a between the parties.
court determines the nature and extent of its In speaking of the proceeding to foreclose a
powers in general and thus fixes its competency mortgage the author of a well-known treatise, has
or jurisdiction with reference to the actions which said:
it may entertain and the relief it may grant. "Though nominally against persons, such suits are to
Jurisdiction over the person is acquired by the vindicate liens; they proceed upon seizure; they treat
voluntary appearance of a party in court and his property as primarily indebted; and, with the
submission to its authority, or it is acquired by the qualification above-mentioned, they are substantially
property actions. In the civil law, they are styled
coercive power of legal process exerted over the
hypothecary actions, and their sole object is the
person. enforcement of the lien against the res; in the common
Jurisdiction over the property which is the law, they would be different if chancery did not treat
subject of litigation may result either from a the conditional conveyance as a mere hypothecation,
seizure of the property under legal process, and the creditor's right as an equitable lien; so, in both,
whereby it is brought into the actual custody of the suit is a real action so far as it is against
the law, or it may result from the institution of
929
legal proceedings wherein, under special
provisions of law, the power of the court over the VOL. 37, MARCH 26, 1918 929
property is recognized and made effective. In the Banco Español-Filipino vs. Palanca.
latter case the property, though at all times within property, and seeks the judicial recognition of a
the potential power of the court, may never be property debt, and an order for the sale of
the res." (Waples, Proceedings In Rem. sec. 607.)
taken into actual custody at all. An illustration of
the jurisdiction acquired by actual seizure is It is true that in proceedings of this character, if
found in attachment proceedings, where the the defendant for whom publication is made
property is seized at the beginning of the action, appears, the action becomes as to him a personal
or some subsequent stage of its progress, and held action and is conducted as such. This, however,
to abide the final event of the litigation. An does not affect the proposition that where the
illustration of what we term potential jurisdiction defendant fails to appear the action is quasi in
over the res, rem; and it should therefore be considered with
928 reference to the principles governing actions in
928 PHILIPPINE REPORTS rem.
ANNOTATED There is an instructive analogy between the
Banco Español-Filipino vs. Palanca. foreclosure proceeding and an action of
is found in the proceeding to register the title of attachment, concerning which the Supreme Court
land under our system for the registration of land. of the United States has used the following
Here the court, without taking actual physical language:
control over the property assumes, at the instance "If the defendant appears, the cause becomes mainly a
of some person claiming to be owner, to exercise suit in personam, with the added incident, that the
a jurisdiction in rem over the property and to property attached remains liable, under the control of
the court, to answer to any demand which may be
adjudicate the title in favor of the petitioner
established against the defendant by the final
against all the world. judgment of the court. But, if there is no appearance of
In the terminology of American law the action the defendant, and no service of process on him, the
to foreclose a mortgage is said to be a case becomes, in its essential nature, a proceeding in
proceeding quasi in rem, by which is expressed rem, the only effect of which is to subject the property
the idea that while it is not strictly speaking an attached to the payment of the demand which the
action in rem yet it partakes of that nature and is court may find to be due to the plaintiff."
substantially such. The expression "action in (Cooper vs. Reynolds, 10 Wall., 308.)
rem" is, in its narrow application, used only with
In an ordinary attachment proceeding, if the
reference to certain proceedings in courts of
defendant is not personally served, the
admiralty wherein the property alone is treated as
preliminary seizure is to be considered necessary
responsible for the claim or obligation upon
in order to confer jurisdiction upon the court. In
which the proceedings are based. The
this case the lien on the property is acquired by
action quasi in rem differs from. the true action in
the seizure; and the purpose of the proceedings is
rem in the circumstance that in the f former an
to subject the property to that lien. If a lien Banco Español-Filipino vs. Palanca.
already exists, whether created by mortgage, We may then, from what has been stated,
contract, or statute, the preliminary seizure is not formulate the following propositions relative to
necessary; and the court proceeds to enforce such the foreclosure proceeding against the property of
lien in the manner provided by law precisely as a nonresident mortgagor who f fails to come in
though the property had been seized upon and submit himself personally to the jurisdiction
attachment. (Roller vs. Holly, 176 U. S., 398, of the court: (I) That the jurisdiction of the court
405; 44 L. ed., 520.) It results that the mere is derived f from the power which it possesses
circumstance that in an attachment the property over the property; (II) that jurisdiction over the
may be seized at the inception of the proceedings, person is not acquired and is nonessential; (III)
while in that the relief granted by the court must be limited
930 to such as can be enforced against the property
930 PHILIPPINE REPORTS itself.
ANNOTATED It is important that the bearing of these
Banco Español-Filipino vs. Palanca. propositions be clearly apprehended, for there are
the foreclosure suit it is not taken into legal many expressions in the American reports from
custody until the time comes for the sale, does not which it might be inferred that the court acquires
materially affect the fundamental principle personal jurisdiction over the person of the
involved in both cases, which is that the court is defendant by publication and notice; but such is
here exercising a jurisdiction over the property in not the case. In truth the proposition that
a proceeding directed essentially in rem. jurisdiction over the person of a nonresident
Passing now to a consideration of the cannot be acquired by publication and notice was
jurisdiction of the Court of First Instance in a never clearly understood even in the American
mortgage foreclosure, it is evident that the court courts until after the decision had been rendered
derives its authority to entertain the action by the Supreme Court of the United States in the
primarily from the statutes organizing the court. leading case of Pennoyer vs. Neff (95 U. S., 714;
The jurisdiction of the court, in this most general 24 L. ed., 565). In the light of that decision, and
sense, over the cause of action is obvious and of other decisions which have subsequently been
requires no comment. Jurisdiction over the person rendered in that and other courts, the proposition
of the defendant, if acquired at all in such an that jurisdiction over the person cannot be thus
action, is obtained by the voluntary submission of acquired by publication and notice is no longer
the def fendant or by the personal service of open to question; and it is now fully established
process upon him within the territory where the that a personal judgment upon constructive or
process is valid. If, however, the defendant is a substituted service against a nonresident who
nonresident and, remaining beyond the range of does not appear is wholly invalid. This doctrine
the personal process of the court, refuses to come applies to all kinds of constructive or substituted
in voluntarily, the court never acquires process, including service by publication and
jurisdiction over the person at all. Here the personal service outside of the jurisdiction in
property itself is in fact the sole thing which is which the judgment is rendered; and the only
impleaded and is the responsible object which exception seems to be found in the case where the
is .the subject of the exercise of judicial power. It nonresident defendant has expressly or impliedly
follows that the jurisdiction of the court in such consented to the mode of service. (Note to
case is based exclusively on the power which, Raher vs. Raher, 35 L. R. A. [N. S.], 292; see also
under the law, it possesses over the property; and 50 L. R. A., 585; 35 L. R. A., [N. S.] 312.)
any discussion relative to the jurisdiction of the The idea upon which the decision
court over the person of the defendant is entirely in Pennoyer vs. Neff (supra) proceeds is that the
apart from the case. The jurisdiction of the court process from the tribunals of
over the property, considered as the exclusive 932
object of such an action, is evidently based upon 932 PHILIPPINE REPORTS
the following conditions and considerations, ANNOTATED
namely: (1) that the property is located within the Banco Español-Filipino vs. Palanca.
district; (2) that the purpose of the litigation is to one State cannot run into other States or countries
subject the property by sale to an obligation fixed and that due process of law requires that the
upon it by the mortgage; and (3) that the court at defendant shall be brought under the power of the
a proper stage of the proceedings takes the court by service of process within the State, or by
property into its custody, if necessary, and his voluntary appearance, in order to authorize the
exposes it to sale for the purpose of satisfying the court to pass upon the question of his personal
mortgage debt. An obvious corollary is that no liability. The doctrine established by the Supreme
other relief can be granted in this proceeding than Court of the United States on this point, being
such as can be enforced against the property. based upon the constitutional conception of due
931 process of law, is binding upon the courts of the
VOL. 37, MARCH 26, 1918 931 Philippine Islands. Involved in this decision is the
principle that in proceedings in rem or quasi in Before leaving this branch of the case, we
rem against a nonresident who is not served wish to observe that we are fully aware that many
personally within the state, and who does not reported cases can be cited in which it is assumed
appear, the relief must be confined to the res, and that the question of the sufficiency of publication
the court cannot lawfully render a personal or notice in a case of this kind is a question
judgment against him. (Dewey vs. Des affecting the jurisdiction of the court, and the
Moines, 173 U. S., 193; 43 L. ed., court is sometimes said to acquire jurisdiction by
665; Heidritter vs. Elizabeth Oil Cloth Co., 112 virtue of the publication. This phraseology was
U. S., 294; 28 L. ed., 729.) Therefore in an action undoubtedly originally adopted by the court
to foreclose a mortgage against a nonresident, because of the analogy between service by
upon whom service has been effected exclusively publication and personal service of process upon
by publication, no personal judgment for the the defendant; and, as has already been suggested,
deficiency can be entered. (Latta vs. Tutton, 122 prior to the decision
Cal., 279; Blumberg vs. Birch, 99 Cal., 416.) of Pennoyer vs. Neff (supra) the difference
It is suggested in the brief of the appellant that between the legal effects of the two forms of
the judgment entered in the court below offends service was obscure. It is accordingly not
against the principle just stated and that this surprising that the modes of expression which had
judgment is void because the court in fact entered already been moulded into legal tradition before
a personal judgment against the absent debtor for that case was decided have been brought down to
the full amount of the indebtedness secured by the the present day. But it is clear that the legal
mortgage. We do not so interpret the judgment. principle here involved is not effected by the
In a foreclosure proceeding against a peculiar language in, which the courts have
nonresident owner it is necessary for the court, as expounded their ideas.
in all cases of foreclosure, to ascertain the amount 934
due, as prescribed in section 256 of the Code of 934 PHILIPPINE REPORTS
Civil Procedure, and to make an order requiring ANNOTATED
the defendant to pay the money into court. This Banco Español-Filipino vs. Palanca.
step is a necessary precursor of the order of sale. We now proceed to a discussion of the question
In the present case the judgment which was whether the supposed irregularity in the
entered contains the following words: proceedings was of such gravity as to amount to a
"Because it is declared that the said defendant denial of that "due process of law" which was
Engracio Palanca Tanquinyeng y Limquingco, is secured by the Act of Congress in force in these
indebted in the
Islands at the time this mortgage was foreclosed.
933 (Act of July 1, 1902, sec. 5.) In dealing with
VOL. 37, MARCH 26, 1918 933 questions involving the application of the
Banco Español-Filipino vs. Palanca. constitutional provisions relating to due process
amount of P249,355.32, plus the interest, to the of law the Supreme Court of the United States has
'Banco Español-Filipino * * * therefore said defendant refrained from attempting to define with precision
is ordered to deliver the above amount etc., etc." the meaning of that expression, the reason being
that the idea expressed therein is applicable under
This is not the language of a personal judgment. so many diverse conditions as to make any
Instead it is clearly intended merely as a attempt at precise definition hazardous and
compliance with the requirement that the amount unprofitable. As applied to a judicial proceeding,
due shall be ascertained and that the defendant however, it may be laid down with certainty that
shall be required to pay it. As a further evidence the requirement of due process is satisfied if the
of this it may be observed that according to the following conditions are present, namely; (1)
Code of Civil Procedure a personal judgment There must be a court or tribunal clothed with
against the debtor for the deficiency is not to be judicial power to hear and determine the matter
rendered until after the property has been sold and before it; (2) jurisdiction must be lawfully
the proceeds applied to the mortgage debt (sec. acquired over the person of the defendant or over
260). the property which is the subject of the
The conclusion upon this phase of the case is proceeding; (3) the defendant must be given an
that whatever may be the effect in other respects opportunity to be heard; and (4) judgment must
of the failure of the clerk of the Court of First be rendered upon lawful hearing.
Instance to mail the proper papers to the Passing at once to the requisite that the
defendant in Amoy, China, such irregularity defendant shall have an opportunity to be heard,
could in no wise impair or defeat the jurisdiction we observe that in a foreclosure case some
of the court, for in our opinion that jurisdiction notification of the proceedings to the nonresident
rests upon a basis much more secure than would owner, prescribing the time within which
be supplied by any f form of notice that could be appearance must be made, is everywhere
given to a resident of a f foreign country. recognized as essential. To answer this necessity
the statutes generally provide for publication, and
usually in addition thereto, for the mailing of Banco Español-Filipino vs. Palanca.
notice to the defendant, if his residence is known. It has been well said by an American court:
Though commonly called constructive, or "If property of a nonresident cannot be reached by
substituted service, such notification does not legal process upon constructive notice, then our
constitute a service of process in any true sense. It statutes were passed in vain, and are mere empty
is merely a means provided by law whereby the legislative declarations, without either force, or
owner may be admonished that his property is the meaning; for if the person is not within the jurisdiction
subject of judicial proceedings and that it is of the court, no personal judgment can be rendered,
incumbent upon him to take such steps as he sees and if the judgment cannot operate upon the property,
then no effective judgment at all can be rendered, so
fit to protect it. In speaking of notice of this
that the result would be that the courts would be
character a distinguished master of constitutional powerless to assist a citizen against a nonresident.
law has used the following language: Such a result would be a deplorable one."
935 (Quarl vs. Abbett, 102 Ind., 233; 52 Am. Rep., 662,
VOL. 37, MARCH 26, 1918 935 667.)
Banco Español-Filipino vs. Palanca.
"* * * if the owners are named in the proceedings, and It is, of course, universally recognized that the
personal notice is provided for, it is rather from statutory provisions relative to publication or
tenderness to their interests, and in order to make sure other form of notice against a nonresident owner
that the opportunity for a hearing shall not be lost to should be complied with; and in respect to the
them, than from any necessity that the case shall publication of notice in the newspaper it may be
assume that form." (Cooley on Taxation [2d. ed.], 527, stated that strict compliance with the
quoted in Leigh vs. Green, 193 U. S., 79, 80.) requirements of the law has been held to be
It will be observed that this mode of notification essential. In Guaranty Trust etc. Co. vs. Green
does not involve any absolute assurance that the Cove etc., Railroad Co. (139 U. S., 137, 138), it
absent owner shall thereby receive actual notice. was held that where newspaper publication was
The periodical containing the publication may made for 19 weeks, when the statute required 20,
never in fact come to his hands, and the chances the publication was insufficient.
that he should discover the notice may often be With respect to the provisions of our own
very slight. Even where notice is sent by mail the statute, relative to the sending of notice by mail,
probability of his receiving it, though much. the requirement is that the judge shall direct that
increased, is dependent upon the correctness of the notice be deposited in the mail by the clerk of
the address to which it is forwarded as well as the court, and it is not in terms declared that the
upon the regularity and security of the mail notice must be deposited in the mail. We consider
service. It will be noted, furthermore, that the this to be of some significance; and it seems to us
provision of our law relative to the mailing of that, having due regard to the principles upon
notice does not absolutely require the mailing of which the giving of such notice is required, the
notice unconditionally and in every event, but absent owner of the mortgaged property must, so
only in the case where the defendant's residence is far as the due process of law is concerned, take
known. In the light of all these facts, it is evident the risk incident to the possible failure of the
that actual notice to the defendant in cases of this clerk to perform his duty, somewhat as he takes
kind is not, under the law, to be considered the risk that the mail clerk or the mail carrier
absolutely necessary. might possibly lose or destroy the parcel or
The idea upon which the law proceeds in envelope containing the notice before it should
recognizing the efficacy of a means of reach its destination and be delivered to him. This
notification which may fall short of actual notice idea seems to be strengthened by the
is apparently this: Property is always assumed to consideration that in placing upon the clerk the
be in the possession of its owner, in person or by duty of sending notice by mail, the performance
agent; and he may be safely held, under certain of that act is put effectually be-
937
conditions, to be affected with knowledge that
VOL. 37, MARCH 26, 1918 937
proceedings have been instituted for its
condemnation and sale. Banco Español-Filipino vs. Palanca.
"It is the duty of the owner of real estate, who is a yond the control of the plaintiff in the litigation.
nonresident, to take measures that in some way he At any rate it is obvious that so much of section
shall be represented when his property is called into 399 of the Code of Civil Procedure as relates to
requisition, and if he fails to do this. and fails to get the sending of notice by mail was complied with
notice by the ordinary publications which have usually when the court made the order. The question as to
been required in such cases, it is his misfortune, and what may be the consequences of the failure of
he must abide the consequences." (6 R. C. L., sec. 445 the record to show the proof of compliance with
[p. 450]). that requirement will be discussed by us further
936 on.
936 PHILIPPINE REPORTS The observations which have just been made
ANNOTATED lead to the conclusion that the failure of the clerk
to mail the notice, if in fact he did so fail in his such a motion is to show that he had a good
duty, is not such an irregularity as amounts to a defense against the action to foreclose the
denial of due process of law; and hence in our mortgage. Nothing of the kind is, however, shown
opinion that irregularity, if proved, would not either in the motion or in the affidavit which
avoid the judgment in this case. Notice was given accompanies the motion.
by publication in a newspaper and this is. the only An application to open or vacate a judgment
form of notice which the law unconditionally because of an irregularity or defect in the
requires. This in our opinion is all that was proceedings is usually required to be supported
absolutely necessary to sustain the proceedings. by an affidavit showing the grounds on which the
It will be observed that in considering the relief is sought, and in addition to this showing
effect of this irregularity, it makes a difference also a meritorious defense to the action. It is held
whether it be viewed as a question involving that a general statement that a party has a good
jurisdiction or as a question involving due process defense to the action is insufficient. The
of law. In the matter of jurisdiction there can be necessary facts must be averred. Of course if a
no distinction between the much and the little. judgment is void upon its face a showing of the
The court either has jurisdiction or it has not; and existence of a meritorious defense is not
if the requirement as to the mailing of notice necessary. (10 R. C. L., 718.)
should be considered as a step antecedent to the The lapse of time is also a circumstance
acquiring of jurisdiction, there could be no escape deeply affecting this aspect of the case. In this
from the conclusion that the failure to take that connection we quote the following passage from
step was fatal to the validity of the judgment. In an encyclopædic treatise now in course of
the application of the idea of due process of law, publication:
on the other hand, it is clearly unnecessary to be "Where, however, the judgment is not void on its face,
so rigorous. The jurisdiction being once and may therefore be enforced if permitted to stand on
established, all that due process of law thereafter the record, courts in many instances refuse to exercise
requires is an opportunity for the def fendant to 939
be heard; and as publication was duly made in the VOL. 37, MARCH 26, 1918 939
newspaper, it would seem highly unreasonable to Banco Español-Filipino vs. Palanca.
hold that the failure to mail the notice was fatal. their quasi equitable powers to vacate a judgment after
We think that in applying the requirement of due the lapse of the term at which it was entered, except in
process of law, it is permissible to reflect upon clear cases, to promote the ends of justice, and where
the purposes of the provision which is supposed it appears that the party making the application is
to have been violated and the principle underlying himself without fault and has acted in good faith and
the exercise of judicial power in these with ordinary diligence. Laches on the part of the
proceedings. Judged in the light of these applicant, if unexplained, is deemed sufficient ground
conceptions, we for refusing the relief to which he might otherwise be
938 entitled. Something is due to the finality of judgments,
938 PHILIPPINE REPORTS and acquiescence or unnecessary delay is fatal to
motions of this character, since courts are always
ANNOTATED reluctant to interfere with judgments, and especially
Banco Español-Filipino vs. Palanca. where they have been executed or satisfied. The
think that the provision of the Act of Congress moving party has the burden of showing diligence,
declaring that no person shall be deprived of his and unless it is shown affirmatively the court will not
property without due process of law has not been ordinarily exercise its discretion in his favor." (15 R.
infringed. C. L., 694, 695.)
In the progress of this discussion we have It is stated in the affidavit that the defendant,
stated the two conclusions; (1) that the failure of Engracio Palanca Tanquinyeng y Limquingco,
the clerk to send the notice to the defendant by died January 29, 1910. The mortgage under
mail did not destroy the jurisdiction of the court which the property was sold was executed far
and (2) that such irregularity did not infringe the back in 1906; and the proceedings in the
requirement of due process of law. As a foreclosure were closed by the order of court
consequence of these conclusions the irregularity confirming the sale dated August 7, 1908. It
in question is in some measure shorn of its passes the rational bounds of human credulity to
potency. It is still necessary, however, to consider suppose that a man who had placed a mortgage
its effects considered as a simple irregularity of upon property worth nearly P300,000 and had
procedure; and it would be idle to pretend that then gone away from the scene of his life
even in this aspect the irregularity is not grave activities to end his days in the city of Amoy,
enough. From this point of view, however, it is China, should have long remained in ignorance of
obvious that any motion to vacate the judgment the fact that the mortgage had been foreclosed
on the ground of the irregularity in question must and the property sold, even supposing that he had
fail unless it shows that the defendant was no knowledge of those proceedings while they
prejudiced by that irregularity. The least, were being conducted. It is more in keeping with
therefore, that can be required of the proponent of the ordinary course of things that he should have
acquired information as to what was transpiring defendant himself existed from the time when the
in his affairs at Manila; and upon the basis of this foreclosure was effected until his death;
rational assumption we are authorized, in the 941
absence of proof to the contrary, to presume that VOL. 37, MARCH 26, 1918 941
he did have, or soon acquired, information as to Banco Español-Filipino vs. Palanca.
the sale of his property. and we believe that the delay in the appointment
The Code of Civil Procedure, indeed, of the administrator and institution of this action
expressly declares that there is a presumption that is a circumstance which is imputable to the
things have happened according to the ordinary parties in interest whoever they may have been.
habits of life (sec. 334 [26]); and we cannot Of course if the minor heirs had instituted an
conceive of a situation more appropriate action in their own right to recover the property, it
940 would have been different.
940 PHILIPPINE REPORTS It is, however, argued that the defendant has
ANNOTATED suffered prejudice by reason of the fact that the
Banco Español-Filipino vs. Palanca. bank became the purchaser of the property at the
than this for applying the presumption thus forclosure sale for a price greatly below that
defined by the lawgiver. In support of this which had been agreed upon in the mortgage as
presumption, as applied to the present case, it is the upset price of the property. In this connection,
permissible to consider the probability that the it appears that in article nine of the mortgage
defendant may have received actual notice of which was the subject of this foreclosure, as
these proceedings from the unofficial notice amended by the notarial document of July
addressed to him in Manila which was mailed by 19,1906, the parties to this mortgage made a
an employee of the bank's attorneys. Adopting stipulation to the effect that the value therein
almost the exact words used by the Supreme placed upon the mortgaged properties should
Court of the United States in serve as a basis of sale in case the debt should
Grannis vs. Ordean (234 U. S., 385; 58 L. ed., remain unpaid and the bank should proceed to a
1363), we may say that in view of the well-known foreclosure. The upset price stated in that
skill of postal officials and employees in making stipulation for all the parcels involved in this
proper delivery of letters defectively addressed, foreclosure was P286,000. It is said in behalf of
we think the presumption is clear and strong that the appellant that when the bank bought in the
this notice reached the defendant, there being no property for the sum of P110,200 it violated that
proof that it was ever returned by the postal stipulation.
officials as undelivered. And if it was delivered in It has been held by this court that a clause in a
Manila, instead of being forwarded to Amoy, mortgage providing for a tipo, or upset price, does
China, there is a probability that the recipient was not prevent a foreclosure, nor affect the validity
a person sufficiently interested in his affairs to of a sale made in the foreclosure proceedings.
send it or communicate its contents to him. (Yangco vs. Cruz Herrera and Wy Piaco, 11 Phil.
Of course if the jurisdiction of the court or the Rep., 402; Banco-Español Filipino vs. Donaldson,
sufficiency of the process of law depended upon Sim & Co., 5 Phil. Rep., 418.) In both the cases
the mailing of the notice by the clerk, the here cited the property was purchased at the
reflections in which we are now indulging would foreclosure sale, not by the creditor or mortgagee,
be idle and f frivolous; but the considerations but by a third party. Whether the same rule should
mentioned are introduced in order to show the be applied in a case where the mortgagee himself
propriety of applying to this situation the legal becomes the purchaser has apparently not been
presumption to which allusion has been made. decided by this court in any reported decision,
Upon that presumption, supported by the and this question need not here be considered,
circumstances of this case, we do not hesitate to since it is evident that if any liability was incurred
found the conclusion that the defendant by the bank by purchasing for a price below that
voluntarily abandoned all thought of saving his fixed in the stipulation, its liability was a personal
property from the obligation which he had placed liability derived from the contract of mortgage;
upon it;- that knowledge of the proceedings and as we have already demonstrated such a
should be imputed to him; and that he acquiesced liability could not be the subject of adjudication
in the consequences of those proceedings after in
they had been accomplished. Under these 942
circumstances it is clear that the merit of this 942 PHILIPPINE REPORTS
motion is, as we have already stated, adversely ANNOTATED
affected in a high degree by the delay in asking Banco Español-Filipino vs. Palanca.
for relief. Nor is it an adequate reply to say that an action where the court had no jurisdiction over
the proponent of this motion is an administrator the person of the defendant. If the plaintiff bank
who only qualified a few months before this became liable to account for the difference
motion was made. No disability on the part of the between the upset price and the price at which it
bought in the property, that liability remains
unaffected by the disposition which the court presumption that the clerk performed his duty
made of this case; and the fact that the bank may about mailing this notice; and we think that strong
have violated such an obligation can in no wise considerations of policy require that this
affect the validity of the judgment entered in the presumption should be allowed to operate with
Court of First Instance. full force under the circumstances of this case. A
In connection with the entire failure of the party to an action has no control over the clerk of
motion to show either a meritorious defense to the the court; and has no right to meddle unduly with
action or that the defendant had suffered any the business of the clerk in the performance of his
prejudice of which the law can take notice, we duties. Having no control over this officer, the
may be permitted to add that in our opinion a litigant must depend upon the court to see that the
motion of this kind, which proposes to unsettle duties imposed on the clerk are performed.
judicial proceedings long ago closed, can not be Other considerations no less potent contribute
considered with favor, unless based upon grounds to strengthen the conclusion just stated. There is
which appeal to the conscience of the court. no principle of law better settled than that, after
Public policy requires that judicial proceedings be jurisdiction has once been acquired, every act of a
upheld. The maxim here applicable is non quieta court of general jurisdiction shall be presumed to
movere. As was once said by Judge Brewer, have been rightly done. This rule is applied to
afterwards a member of the Supreme Court of the every judgment or decree rendered in the various
United States: stages of the proceedings from their initiation to
"Public policy requires that judicial: proceedings be their completion (Voorhees vs. United States
upheld, and that titles obtained in those proceedings Bank, 10 Pet., 314; 35 U. S., 449) ; and if the
be safe from the ruthless hand of collateral attack. If record is silent with respect to any fact which
technical defects are adjudged potent to destroy such must have been established before the court could
titles, a judicial sale will never realize the value of the have rightly acted, it will be presumed that such
property, for no prudent man will risk his money in
fact was properly brought to its knowledge. (The
bidding for and buying that title which he has reason
to fear may years thereafter be swept away through Lessee of Grignon vs. Astor, 2 How., 319; 11 L.
some occult and not readily discoverable defect." ed., 283.)
(Martin vs. Pond, 30 Fed., 15.) "In making the order of sale [of the real state of a
944
In the case where that language was used an
attempt was made to annul certain foreclosure 944 PHILIPPINE REPORTS
proceedings on the ground that the affidavit upon ANNOTATED
which the order of publication was based Banco Español-Filipino vs. Palanca.
erroneously stated that the absent party was a decedent] the court are presumed to have adjudged
resident of a certain town in the State of Kansas, every question necessary to justify such order or
when he was in fact residing in another State. It decree, viz: The death of the owners; that the
was held that this mistake did not affect the petitioners were his administrators; that the personal
estate was insufficient to pay the debts of the
validity of the proceedings.
deceased; that the private acts of Assembly, as to the
In the preceding discussion we have assumed manner of sale, were within the constitutional power
that the clerk failed to send the notice by post as of the Legislature, and that all the provisions of the
required by the order of the court. We now law as to notices which are directory to the
proceed to consider whether administrators have been complied with. * * * The
943 court is not bound to enter upon the record the
VOL. 37, MARCH 26, 1918 943 evidence on which any fact was decided."
Banco Español-Filipino vs. Palanca. (Florentine vs. Barton, 2 Wall., 210; 17 L. ed., 785.)
this is a proper assumption; and the proposition Especially does all this apply after long lapse of ime.
which we propose to establish is that there is a Applegate vs. Lexington and Carter County
legal presumption that the clerk perf formed his Mining Co. (117 U. S., 255) contains an
duty as the ministerial officer of the court, which. instructive discussion in a case analogous to that
presumption is not overcome by any other facts which is now before us. It there appeared that in
appearing in the cause. order to foreclose a mortgage in the State of
In subsection 14 of section 334 of the Code of Kentucky against a nonresident debtor it was
Civil Procedure it is -declared that there is a necessary that publication should be made in a
presumption "that official duty has been regularly newspaper for a specified period of time, also that
performed;" and in subsection 18 it is declared the order requiring the defendant to appear should
that there is a presumption "that the ordinary be posted at the front door of the court house and
course of business has been followed." These be published on some Sunday, immediately after
presumptions are of course in no sense novelties, divine service, in such church as the court should
as they express ideas which have always been direct. In a certain action judgment had been
recognized. Omnia præsumuntur rite et entered against a nonresident, after publication in
solemniter esse acta donec probetur in pursuance of these provisions. Many years later
contrarium. There is therefore clearly a legal the validity of the proceedings was called in
question in another action. It was proved from the law been confided to the courts, would incline to
files of an ancient periodical that publication had favor such a conclusion. In our opinion
been made in its columns as required by law; but 946
no proof was offered to show the publication of 946 PHILIPPINE REPORTS
the order at the church, or the posting of it at the ANNOTATED
front door of the court-house. It was insisted by Banco Español-Filipino vs. Palanca.
one of the parties that the judgment of the court the proper course in a case of this kind is to hold
was void for lack of jurisdiction. But the Supreme that the legal presumption that the clerk
Court of the United States said: performed his duty still maintains
"The court which made the decree * * * was a court of notwithstanding the absence from the record of
general jurisdiction. Therefore every presumption not the proper proof of that fact.
inconsistent with the record is to be indulged in favor
In this connection it is important to bear in
of its jurisdiction. * * * It is to be presumed that the
mind that under the practice prevailing in the
945 Philippine Islands the word "record" is used in a
VOL. 37, MARCH 26, 1918 945 loose and broad sense, as indicating the collective
Banco Español-Filipino vs. Palanca. mass of papers which contain the history of all
court before making its decree took care to see that its the successive steps taken in a case and which are
order for constructive service, on which its right to finally deposited in the archives of the clerk's
make the decree depended, had been obeyed." office as a memorial of the litigation. It is a
matter of general information that no judgment
It is true that in this case the former judgment was
roll, or book of final record, is commonly kept in
the subject of collateral, or indirect attack, while
our courts for the purpose of recording the
in the case at bar the motion to vacate the
pleadings and principal proceedings in actions
judgment is a direct proceeding for relief against
which have been terminated; and in particular, no
it. The same general presumption, however, is
such record is kept in the Court of First Instance
indulged in favor of the judgment of a court of
of the city of Manila. There is, indeed, a section
general jurisdiction, whether it is the subject of
of the Code of Civil Procedure which directs that
direct or indirect attack, the only difference being
such a book of final record shall be kept; but this
that in case of indirect attack the judgment is
provision has, as a matter of common knowledge,
conclusively presumed to be valid unless the
been generally ignored. The result is that in the
record affirmatively shows it to be void, while in
present case we do not have the assistance of the
case of direct attack the presumption in favor of
recitals of such a record to enable us to pass upon
its validity may in certain cases be overcome by
the validity of this judgment and as already stated
proof extrinsic to the record.
the question must be determined by examining
The presumption that the clerk performed his
the papers contained in the entire file.
duty and that the court made its decree with
But it is insisted by counsel for this motion
knowledge that the requirements of law had been
that the affidavit of Bernardo Chan y Garcia
complied with appear to be amply sufficient to
showing that upon April 4, 1908, he sent a
support the conclusion that the notice was sent by
notification through the mail addressed to the
the clerk as required by the order. It is true that
defendant at Manila, Philippine Islands, should be
there ought to be found among the papers on file
accepted as affirmative proof that the clerk of the
in this cause an affidavit, as required by section
court failed in his duty and that, instead of
400 of the Code of Civil Procedure, showing that
himself sending the requisite notice through the
the order was in fact so sent by the clerk; and no
mail, he relied upon Bernardo to send it for him.
such affidavit appears. The record is therefore
We do not think that this is by any means a
silent where it ought to speak. But the very
necessary inference. Of course if it had
purpose of the law in recognizing these
affirmatively appeared that the clerk himself had
presumptions is to enable the court to sustain a
attempted to comply with this order and had
prior judgment in the face of such an omission. If
directed the notification to Manila when he
we were to hold that the judgment in this case is
should have directed it to Amoy, this would be
void because the proper affidavit is not present in
conclusive that he had failed to comply with the
the file of papers which we call the record, the
exact terms of the order; but such is not
result would be that in the future every title in the 947
Islands resting upon a judgment like that now VOL. 37, MARCH 26, 1918 947
before us would depend, for its continued
security, upon the presence of such affidavit
Banco Español-Filipino vs. Palanca.
among the papers and would be liable at any this case. That the clerk of the attorneys for the
moment to be destroyed by the disappearance of plaintiff erroneously sent a notification to the
that piece of paper. We think that no court, with a defendant at a mistaken address affords in our
proper regard for the security of judicial opinion very slight basis for supposing that the
proceedings and for the interests which have by clerk may not have sent notice to the right
address.
 There is undoubtedly good authority to "When a judgment is rendered by a Court of First
support the position that when the record states Instance upon default, and a party thereto is unjustly
the evidence or makes an averment with reference deprived of a hearing by fraud, accident, mistake or
to a jurisdictional fact, it will not be presumed excusable negligence, and the Court of First Instance
which rendered the judgment has finally adjourned so
that there was other or different evidence
that no adequate remedy exists in that court, the party
respecting the fact, or that the fact was otherwise so deprived of a hearing may present his petition to
than as stated. If, to give an illustration, it appears the Supreme Court within sixty days after he first
from the return of the officer that the summons learns of the rendition of such judgment, and not
was served at a particular place or in a particular thereafter, setting forth the facts and praying to have
manner, it will not be presumed that service was judgment set aside. * * * "
also made at another place or in a different
manner; or if it appears that service was made It is evident that the proceeding contemplated in
upon a person other than the defendant, it will not this section is intended to supplement the remedy
be presumed, in the silence of the record, that it provided by section 113; and we believe the
was made upon the defendant also conclusion irresistible that there is no other means
(Galpin vs. Page, 18 Wall., 350, recognized by law whereby a defeated party can,
366; Settlemier vs. Sullivan, 97 U. S., 444, 449). by a proceeding in the same cause, procure a
While we believe that these propositions are judgment to be set aside, with a view to the
entirely correct as applied to the case where the renewal of the litigation.
person making the return is the officer who is by The Code of Civil Procedure purports to be a
law required to make the return, we do not think complete system of practice in civil causes, and it
that it is properly applicable where, as in the contains provisions describing with much fulness
present case, the affidavit was made by a person the various steps to be taken in the conduct of
who, so far as the provisions of law are such proceedings. To this end it defines with
concerned, was a mere intermeddler. precision the method of beginning, conducting,
The last question of importance which we and concluding the civil action of whatever
propose to consider is whether a motion in the species; and
949
cause is admissible as a proceeding to obtain
relief in such a case as this. If the motion prevails VOL. 37, MARCH 26, 1918 949
the judgment of July 2, 1908, and all subsequent Banco Español-Filipino vs. Palanca.
proceedings will be set aside, and the litigation by section 795 of the same Code it is declared
will be renewed, proceeding again from the date that the procedure in all civil action shall be in
mentioned as if the progress of the action had not accordance with the provisions of this Code. We
been interrupted. The proponent of the motion are therefore of the opinion that the remedies
does not ask the favor of being permitted to prescribed in sections 113 and 513 are exclusive
interpose a defense. His purpose is merely to of all others, so f far as relates to the opening and.
annul the effective judgment of the court, to the continuation of a litigation which has been once
end that the litigation may again resume its concluded.
regular course. The motion in the present case does not
948 conform to the requirements of either of these
948 PHILIPPINE REPORTS provisions; and the consequence is that in our
ANNOTATED opinion the action of the Court of First Instance in
Banco Español-Filipino vs. Palanca. dismissing the motion was proper.
There is only one section of the Code of Civil If the question were admittedly one relating
Procedure which expressly recognizes the merely to an irregularity of procedure, we cannot
authority of a Court of First Instance to set aside a suppose that this proceeding would have taken
final judgment and permit a renewal of the the form of a motion in the cause, since it is clear
litigation in the same cause. This is as f follows: that, if based on such an error, the motion came
"SEC. 113. Upon such term as may be just the court too late for relief in the Court of First Instance.
may relieve a party or his legal representative from a But as we have already seen, the motion attacks
judgment, order, or other proceeding taken against the judgment of the court as void for want of
him through his mistake, inadvertence, surprise, or jurisdiction over the defendant. The idea
excusable neglect; Provided, That application therefor underlying the motion therefore is that inasmuch
be made within a reasonable time, but in no case as the judgment is a nullity it can be attacked in
exceeding six months after such judgment, order, or any way and at any time. If the judgment were in
proceeding was taken." fact void upon its face, that is, if it were shown to
An additional remedy by petition to the Supreme be a nullity by virtue of its own recitals, there
Court is supplied by section 513 of the same might possibly be something in this. Where a
Code. The first paragraph of this section, in so far judgment or judicial order is void in this sense it
as pertinent to this discussion, provides as may be said to be a lawless thing, which can be
follows: treated as an outlaw and slain at sight, or ignored
wherever and whenever it exhibits its head.
 But the judgment in question is not void in any with this constitutional provision in our organic
such sense. It is entirely regular in form, and the law and of the statutory provisions in
alleged defect is one which is not apparent upon amplification. Literally hundreds of precedents
its face. It follows that even if the judgment could could be cited in support of these axiomatic
be shown to be void for want of jurisdiction, or principles. Where as in the instant case the
for lack of due process of law, the party aggrieved defendant received no notice and
thereby is bound to resort to some appropriate 951
proceeding to obtain relief. Under accepted VOL, 37, MARCH 26, 1918 951
principles of law and practice, long recognized in United States vs. Tiongco.
American courts, a proper remedy in such case, had no opportunity to be heard, certainly we
after the time for appeal or review has passed, is cannot say that there is due "process of law.
for the aggrieved party to bring an action to Resultantly, "A judgment which is void upon its
enjoin the judgment, if not already carried into face, and which requires only an inspection of the
effect; or if the property has already judgment roll to demonstrate its want of vitality is
950 a dead limb upon the judicial tree, which should
950 PHILIPPINE REPORTS be lopped off, if the power so to do exists. It can
ANNOTATED bear no fruit to the plaintiff, but is a constant
Banco Español-Filipino vs. Palanca. menace to the defendant." (Mills vs. Dickson, 6
been disposed of he may institute suit to recover Rich. [S. C.], 487.)
it. In every situation of this character an Judgment affirmed.
appropriate remedy is at hand; and if property has
been taken without due process, the law concedes
due process to recover it. We accordingly hold
that, assuming the judgment to have been void as
alleged by the proponent of this motion, the
proper remedy was by an original proceeding and
not by motion in the cause. As we have already
seen our Code of Civil Procedure defines the
conditions under which relief against a judgment
may be obtained by motion; and we think it
would only be productive of confusion for this
court to recognize such a proceeding as proper
under conditions different from those defined by
law. Upon the point of procedure here involved,
we refer to the case of People vs. Harrison (84
Cal., 607) wherein it was held that a motion will
not lie to vacate a judgment after the lapse of the
time limited by statute if the judgment is not void
on its face; and in all cases, after the lapse of such
time, when an attempt is made to vacate the
judgment by a proceeding in court for that
purpose an action regularly brought is preferable,
and should be required. It will be noted that
section 113 of the Code of Civil Procedure was
taken verbatim from the California Code (sec.
473).
The conclusions stated in this opinion indicate
that the judgment appealed from is without error,
and the same is accordingly affirmed, with costs.
So ordered.
Arellano, C.
J., Torres,  Carson, and Avanceña, JJ., concur.

MALCOLM, J., dissenting:

I dissent. It will not take me long to state my

reasons. An immutable attribute—the
fundamental idea—of due process of law is that
no man shall be condemned in his person or
property without notice and an opportunity of
being heard in his defense. Protection of the
parties demands a strict and an exact compliance