Kring v. Missouri, 107 U.S.

221 (1883)

Kring v. Missouri

Decided April 2, 1883

107 U.S. 221

Syllabus

1. A. was convicted of murder in the first degree, and the judgment of condemnation
was affirmed by the Supreme Court of Missouri. A previous sentence pronounced on his
plea of guilty of murder in the second degree, and subjecting him to an imprisonment for
twenty-five years, had, on his appeal, been reversed and set aside. By the law of
Missouri in force when the homicide was committed, this sentence was an acquittal of
the crime of murder in the first degree, but before his plea of guilty was entered the law
was changed, so that by force of its provisions, if a judgment on that plea be lawfully act
aside, it shall not be held to be an acquittal of the higher crime. Held that as to this case,
the new law was an ex post facto law within the meaning of Section 10, Article I, of the
Constitution of the United States, and that he could not be again tried for murder in the
first degree.

2. The history of the ex post facto clause of the Constitution reviewed in connection with
its adoption as a part of the Constitution and with its subsequent construction by the
federal and the state courts.

3. The distinction between retrospective laws, which relate to the remedy or the mode of
procedure, and those which operate directly on the offense, is unsound where, in the
latter case, they injuriously affect any substantial right to which the accused was entitled
under the law as it existed when the alleged offense was committed.

4. Within the meaning of the Constitution, any law is ex post facto which is enacted after
the offense was committed and which, in relation to it or its consequences, alters the
situation of the accused to his disadvantage.

The case is stated in the opinion of the Court.

107 U.S. 221 (2 S.Ct. 443, 27 L.Ed. 506)

KRING v. STATE OF MISSOURI.

Decided: April 2, 1883

L. D. Seward and Jeff. Chandler, for plaintiff in error.

S. F. Phillips, for defendant in error.

MILLER, J.

This is a writ of error to the supreme court of Missouri. The plaintiff in error was indicted
in the criminal court of St. Louis for murder in the first degree, charged to have been
committed January 4, 1875, to which he pleaded not guilty. He has been tried four times
before a jury, and sentenced once on plea of guilty of murder in the second degree. His
case has been three times before the court of appeals of that state, and three times
before the supreme court of the state. In the last instance, the supreme court affirmed
the judgment of the criminal court, by which he was found guilty of murder in the first
degree and sentenced to be hung, and it is to this judgment that the present writ of error
is directed. It is to be premised that the court of appeals is an intermediate appellate
tribunal between the criminal court of St. Louis and the supreme court of the state, to
which all appeals of this character are first taken. At the trial, immediately preceding the
last one in the court of original jurisdiction, the prisoner was permitted to plead guilty to
murder in the second degree, which plea was accepted by the prosecuting attorney and
the court, and on this plea he was sentenced to imprisonment in the penitentiary for 25
years. He took an appeal from this judgment, on the ground that he had an
understanding with the prosecuting attorney that if he would plead as he did his
sentence should not exceed 10 years' imprisonment, and the supreme court reversed
that judgment, and remanded the case to the St. Louis criminal court for further
proceedings. In that court, when the case was again called, the defendant refused to
withdraw his plea of guilty of murder in the second degree, and refused to renew his
plea of not guilty, which had been withdrawn when he pleaded guilty to murder in the
second degree, and the court, against his remonstrance, made an order setting aside
his plea of guilty of murder in the second degree, and ordered a general plea of not
guilty to be entered. On this plea he was tried by a jury and found guilty and sentenced
to death, as we have already said, which judgment was affirmed by the supreme court
of the state. By refusing to plead not guilty to murder in the first degree and to withdraw
his plea of guilty in the second degree, defendant raised the point that the proceedings
under that plea, namely, its acceptance by the prosecuting attorney and the court, and
his conviction and sentence under it, was an acquittal of the charge of murder in the first
degree, and that he could not be tried again for that offense. This point he insisted on in
the circuit court, and relied on it for reversing the judgment in the court of appeals and in
the supreme court. Both these latter tribunals, in the opinions delivered by them, and
which are part of the record, conceded that such was the law of the state of Missouri at
the time the homicide was committed. But they overruled the defense on the ground
that by section 23 of article 2 of the constitution of Missouri, which took effect November
30, 1875, that law was abrogated, and for this reason defendant could be tried for
murder in the first degree, notwithstanding his conviction and sentence for murder in the
second degree. As this new constitution was adopted after the crime was committed for
which Kring is indicted, and, as construed by the court of appeals and the supreme
court, changes the law as it then stood to the disadvantage of the defendant, the
jurisdiction of this court is invoked on the ground that, as to this case, and as so
construed, it is an ex post facto law, within the meaning of section 10, art. 1, of the
constitution of the United States.

That it may be clearly seen what the supreme court of Missouri decided on this subject
and what consideration they gave it, we extract here all that is said in their opinion about
it. 'There is nothing in the point,' they say, 'that after an accepted plea of guilty of murder
of the second degree the defendant could not be put upon trial for murder of the first
degree. We shall, on that proposition, accept what is said by the court of appeals in its
opinion in this cause.' What that court said on this subject is as follows:

'The theory of counsel for defendant that a plea of guilty of murder in the second
degree, regularly entered and received, precludes the state from afterwards prosecuting
the defendant for murder in the first degree, is inconsistent with the ruling of the
supreme court in State v. Kring, 71 Mo. 551, and in State v. Stephens, Id. 535. The
declarations of defendant that he would stand upon his plea already entered were all
accompanied with a condition that the court should sentence him for a term not to
exceed 10 years, in accordance with an alleged agreement with the prosecuting
attorney, which the court would not recognize. The prisoner did not stand upon his plea
of guilty of murder in the second degree; he must, therefore, be taken to have
withdrawn that plea, and, as he refused to plead, the court properly directed the plea of
not guilty of murder in the first degree to be entered.

'Formerly it was held in Missouri (State v. Ross, 20 Mo. 32 that when a conviction is had
of murder in the second degree on an indictment charging murder in the first degree, if
this be set aside the defendant cannot again be tried for murder in the first degree. A
change introduced by section 23 of article 2 of the constitution of 1875 has abrogated
this rule. On the oral argument something was said by counsel for the defendant to the
effect that under the old rule defendant could not be put on his trial for murder in the first
degree, and that he could not be affected by the change of the constitutional provision,
the crime having been committed while the old constitution was in force. There is,
however, nothing in this; this change is a change, not in crimes, but in criminal
procedure, and such changes are not ex post facto. Gut v. State, 9 Wall. 35; cummings
v. Missouri, 4 Wall. 326.'

We have here a distinct admission that by the law of Missouri, as it stood at the time of
the homicide, in consequence of this conviction of the defendant of the crime of murder
in the second degree, though that conviction be set aside, he could not be again tried
for murder of the first degree; and that, but for the change in the constitution of the
state, such would be the law applicable to his case. When the attention of the court is
called to the proposition that if such effect is given to the change of the constitution it
would, in this case, be liable to objection as an ex post facto law, the only answer is that
there is nothing in it, as the change is simply in a matter of procedure. Whatever may be
the essential nature of the change, it is one which, to the defendant, involves the
difference between life and death, and the retroactive character of the change cannot
be denied.
It is to be observed that the force of the argument for acquittal does not stand upon
defendant's plea, nor upon its acceptance by the state's attorney, nor the consent of the
court; but it stands upon the judgment and sentence of the court by which he is
convicted of murder in the second degree, and sentence pronounced according to the
law of that guilt, which was by operation of the same law an acquittal of the other and
higher crime of murder charged in the same indictment. It is sufficient for this case that
the supreme court of Missouri, in the opinion we are examining, says it was so, and
cites as authority for it the case of State v. Ross, 29 Mo. 32, in the same court; but
counsel for plaintiff in error cites to the same effect the cases of State v. Ball, 27 Mo.
327; State v. Smith, 53 Mo. 139.

Blackstone says, (Comm. book 4, side page 336:)

'The plea of autrefois convict, or a former conviction for the same identical crime,
through no judgment was ever given, or, perhaps, will be, (being suspended by benefit
of clergy or other causes), is a good plea in bar to an indictment. And this depends upon
the same principle as the former, (that is, autrefois acquit,) that no man ought to be
twice brought in danger of his life for one and the same crime. Hereupon it has been
held that a conviction of manslaughter, on an appeal or indictment, is a bar even in
another appeal, and much more in an indictment for murder; for the fact prosecuted is
the same in both, though the offenses differ in coloring and degree.' See State v. Norvill,
2 Yerg. 24; 9 Yerg. 337.

This law, in force at the date of the homicide for which Kring is now under sentence of
death, was changed by the state of Missouri between that time and his trial so as to
deprive him of its benefit, to which he would otherwise have been entitled, and we are
called on to decide whether in this respect, and as applied by the court to this case, it is
an ex post facto law within the meaning of the constitution of the United States. There is
no question of the right of the state of Missouri, either by the her fundamental law or by
an ordinary act of legislation, to abolish this rule, and that it is a valid law as to all
offenses committed after its enactment. The question here is, does it deprive the
defendant of any right of defense which the law gave him when the act was committed,
so that as to that offense it is ex post facto. This term necessarily implies a fact or act
done, after which the law in question is passed. Whether it is ex post facto or not
relates, in criminal cases, to which alone the phrase applies, to the time at which the
offense charged was committed. If the law complained of was passed before the
commission of the act with which the prisoner is charged, it cannot. As to that offense,
be an ex post facto law. If passed after the commission of the offense, it is as to that ex
post facto, though whether of the class forbidden by the constitution may depend on
other matters. But, so far as this depends on the time of its enactment, it has reference
solely to the date at which the offense was committed to which the new law is sought to
be applied. No other time or transaction but this has been in any adjudged case held to
govern its ex post facto character.

In the case before us an argument is made founded on a change in this rule. It is said
the new law in Missouri is not ex post facto, because it was in force when the plea and
judgment were entered of guilty of murder in the second degree; thus making its
character as an ex post facto law to depend, not upon the date of its passage as
regards the commission of the offense, but as regards the time of pleading guilty. That,
as the new law was in force when the conviction on that plea was had, its effect as to
future trials in that case must be governed by that law. But this is begging the whole
question, for if it was, as to the offense charged, an ex post facto law, within the true
meaning of that phrase, it was not in force and could not be applied to the case, and the
effect of that plea and conviction must be decided as though no such change in the law
had been made. Such, however, is not the ground on which the supreme court and the
court of appeals placed their judgment. 'There is nothing,' say they, 'in this; the change
is a change, not in crimes, but in criminal procedure, and such changes are not ex post
facto.'

Before proceeding to examine this proposition, it will be well to get some clear
perception of the purpose of the convention which framed the constitution in declaring
that no state shall pass any ex post facto law. It was one of the objections most
seriously urged against the new constitution by those who opposed its ratification by the
states, that it contained no formal bill of rights. Federalist, No. 84. And the state of
Virginia accompanied her ratification by the recommendation of an amendment
embodying such a bill. 3 Elliott, Deb. 661.

The feeling on this subject led to the adoption of the first 10 amendments to that
instrument at one time, shortly after the government was organized. These are all
designed to operate as restraints on the general government, and most of them for the
protection of private rights of persons and property. Notwithstanding this reproach,
however, there are many provisions in the original instrument of this latter character,
among which is the one now under consideration. So much importance did the
convention attach to it, that it is found twice in the constitution,—first as a restraint upon
the power of the general government, and afterwards as a limitation upon the legislative
power of the states. This latter is the first clause of section 10 of article 1, and its
connection with other language in the same section may serve to illustrate its meaning:
'No state shall enter into any treaty, alliance, or confederation; grant letters of marque
and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a
tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing
the obligation of contracts; or grant any title of nobility.' It will be observed that here are
grouped contiguously a prohibition against three distinct classes of retrospective laws,
namely bills of attainder, ex post facto laws, and laws impairing the obligations of
contracts. As the clause was first adopted, the words concerning contracts were not in
it, because it was supposed that the phrase 'ex post facto law' included laws concerning
contracts as well as others. But it was ascertained before the completion of the
instrument that this was a phrase which, in English jurisprudence, had acquired a
signification limited to the criminal law, and the words 'or any law impairing the
obligation of contracts' were added to give security to rights resting in contracts. 2 Banc.
His. Const. 213.
Sir Thomas Tomlin, in that magazine of mearing, the English edition of 1835 of his Law
Dictionary, says: 'Ex post facto is a term used in the law, signifying something done
after, or arising from or to affect, another thing that was committed before.' 'An ex post
facto law is one which operates upon a subject not liable to it at the time the law was
made.'

The first case in which this court was called upon to construe this provision of the
constitution was that of Calder v. Bull, 3 Dall. 386, decided in 1798. The opinion of the
court was delivered by CHASE, J., and its main purpose was to decide that it had no
application to acts concerning civil rights. The opinion, however, is important, as it
discusses very fully the meaning of the provision in its application to criminal cases. It
defines four distinct classes of laws embraced by the clause:

'(1) Every law that makes an action done before the passing of the law, and which was
innocent when done, criminal, and punishes such action; (2) every law that aggravates
the crime of makes it greater than it was when committed; (3) every law that changes
the punishment and inflicts a greater punishment than was annexed to the crime when
committed; (4) every law that alters the legal rules of evidence, and receives less or
different testimony than the law required at the time of the commission of the offense in
order to convict the offender.'

Again he says:

'But I do not consider any law ex post facto, within the prohibition, that modifies the rigor
of the law, but only these that create or aggravate the crime or increase the punishment
or change the rules of evidence for the purpose of conviction.'

In the case before us the constitution of Missouri so changes the rule of evidence that
what was conclusive evidence of innocence of the higher grade of murder when the
crime was committed, namely, a judicial conviction for a lower grade of homicide, is not
received as evidence at all, or, if received, is given no weight in behalf of the offender. It
also changes the punishment, for, whereas the law, as it stood when the homicide was
committed, was that, when convicted of murder in the second degree, he could never
be tried or punished by death for murder in the first degree, the new law enacts that he
may be so punished, notwithstanding the former conviction. But it is not to be supposed
that the opinion in that case undertook to define, by way of exclusion, all the cases to
which the constitutional provision would be applicable. Accordingly, in a subsequent
case tried before Mr. Justice WASHINGTON, he said, in his charge to the jury, that 'an
ex post facto law is one which, in its operation, makes that criminal which was not so at
the time the action was performed, or which increases the punishment, or, in short,
which, in relation to the offense or its consequences, alters the situation of a party to his
disadvantage.' U.S. v. Hall, 2 Wash. C. C. 366. He adds, by way of application to that
case, which was for a violation of the embargolaws: 'It the enforcing law applies to this
case, there can be no doubt that, so far as it takes away or impairs the defense which
the law had provided the defendant at the time when the condition of this bond became
forfeited, it is ex post facto and inoperative.' This case was carried to the supreme court
and the judgment affirmed. 6 Cranch, 171.

The new constitution of Missouri does not take away what, by the law of the state when
the crime was committed, was a good defense to the charge of murder in the first
degree.

In the subsequent cases of Cummings v. State and Ex parte Garland, 4 Wall. 277-333,
this court held that a law which excluded a minister of the gospel from the exercise of
his clerical function, and a lawyer from practice in the courts, unless each would take an
oath that they had not engaged in or encouraged armed hostilities against the
government of the United States, was an ex post facto law, because it punished, in a
manner not before punished by law, offenses committed before its passage, and
because it instituted a new rule of evidence in aid of conviction. Though this court was
divided in that case, it was because the minority were of the opinion that the act in
question was not a crimes act, and that it inflicted no punishment, in the judicial sense,
for any past crime, and they did not controvert the proposition that it was an ex post
facto law if it had that effect.

In these cases we have illustrations of the liberal construction which this court, and Mr.
Justice WASHINGTON in the circuit court, have given to the words 'ex post facto law'—
a construction in manifest accord with the purpose of the constitutional convention to
protect the individual rights of life and liberty against hostile retrospective legislation.
Nearly all the states of the Union have similar provisions in their constitutions, and
whether they have or not, they all recognize the obligatory force of this clause of the
federal constitution on their legislation. A reference to some decisions of those courts
will show the same liberality of construction of the provision, many of them going much
further than is necessary to go in this case to show the error of the Missouri courts.

In the supreme court of Massachusetts, in the case of Com. v. McDonough, 13 Allen,

581, it was held that a law passed after the commission of the offense of which
defendant stood charged, which mitigated the punishment, as regarded the fine and the
maximum of imprisonment that might be inflicted, was an ex post facto law as to that
case, because the minimum of imprisonment was made three months, whereas before
there was no minimum limit to the court's discretion. This slight variance in the law was
held to make it ex post facto and void as to that case, though the effect of the decision
was to leave no law by which the defendant could be punished, and he was discharged,
though found guilty of the offense.

In the case of Hartuny v. People, 22 N. Y. 95, after she had been convicted of murder
and sentenced to death, and while her case was pending on appeal, the legislature of
that state changed the law for the punishment of murder in general, so as to authorize
the governor to postpone indefinitely the execution of the sentence of death, and to
keep the party confined in the penitentiary at hard labor until he should order the full
execution of the sentence or should pardon or commute it. The court of appeals held
that, while this later law repealed all existing punishments for murder, it was ex post
facto as to Mrs. Hartung's Case, and could not be applied to it, and this was decided in
face of the fact that it resulted in the discharge of a convicted murderess without any
punishment at all. Judge DENIO, in delivering the opinion of the court, makes these
excellent observations:

'It is highly probable that it was the intention of the legislature to extend favor, rather
than increased severity, towards this convict and others in her situation; and it is quite
likely that, had they been consulted, they would have preferred the application of this
law to their cases, rather than that which existed when they committed the offences of
which they were convicted. But the case cannot be determined upon such
considerations. No one can be criminally punished in this country, except according to a
law prescribed for his government by the sovereign authority, before the imputed
offence was committed, and which existed as a law at that time. . . . No State shall pass
any ex post facto law, is the mandate of the Constitution of the United States.'
(Emphasis added.)

This is reaffirmed by the same court in the cases of Shepherd v. People, 25 N. Y. 406;
Green v. Shumway, 39 N. Y. 418; and In re Petty, 22 Rand. (Kan.) 477, the same thing
is decided.

In the case of State v. Keith, 63 N. C. 140, the supreme court of that state held that a
law repealing a statute of general amnesty for offenses arising out of the rebellion was
ex post facto and void, though both statutes were passed after the acts were committed
with which defendant was charged.

In the case of the State v. Sneed, 25 Tex. (Supp.) 66, the court held that, in a criminal
case barred by the statute of limitations, a subsequent statute which enlarged the time
necessary to create a bar was, as to that case, an ex post facto law, and it could not be
supposed to be intended to apply to it.

When, in answer to all this evidence of the tender regard for the rights of a person
charged with crime under subsequent legislation affecting those rights, we are told that
this very radical change in the law of Missouri to his disadvantage is not subject to the
rule because it is a change, not in crimes, but in criminal procedure, we are led to
inquire what that court meant by criminal procedure.

The word 'procedure,' as a law term, is not well understood, and is not found at all in
Bouvier's Law Dictionary, the best work of the kind in this country. Fortunately a
distinguished writer on criminal law in America has adopted it as the title to a work of
two volumes. Bishop, Crim. Proc. In his first chapter he undertakes to define what is
meant by procedure. He says: 'Sec. 2. The term procedure is so broad in its signification
that it is seldom employed in our books as a term of art. It includes in its meaning
whatever is embraced by the three technical terms, 'pleading,' 'evidence,' and 'practice."
And in defining 'practice,' in this sense, he says: 'The word means those legal rules
which direct the course of proceeding to bring parties into the court and the course of
the court after they are brought in;' and 'evidence,' he says, as part of procedure,
'signifies those rules of law whereby we determine what testimony is to be admitted and
what rejected in each case, and what is the weight to be given to the testimony
admitted.'

It this be a just idea of what is intended by the word 'procedure,' as applied to a criminal
case, it is obvious that a law which is one of procedure may be obnoxious as an ex post
facto law, both by the decision in Calder v. Bull, 3 Dall. 386, and in Cummings v.
Missouri, 4 Wall. 277, for in the former case this court held that 'any law which alters the
legal rules of evidence, and receives less or different testimony than the law requires at
the time of the commission of the offense in order to convict the offender,' is an ex post
facto law; and in the latter, one of the reasons why the law was held to be ex post facto
was that it changed the rule of evidence under which the party was punished. But it
cannot be sustained without destroying the value of the constitutional provision that no
law, however it may invade or modify the rights of a party charged with crime, is an ex
post facto law within the constitutional provision, if it comes within either of these
comprehensive branches of the law designated as 'pleading,' 'practice,' and 'evidence.'
Can the law with regard to bail, to indictments, to grand juries, to the trial jury, all be
changed by state legislation, after the offense committed, to the disadvantage of the
prisoner, and not held to be ex post facto, because it relates to procedure, as it does
according to Mr. Bishop? And can any substantial right which the law gave the
defendant at the time to which his guilt relates be taken away from him by ex post facto
legislation, because, in the use of a modern phrase, it is called a law of procedure? We
think it cannot.

Some light may be thrown upon this branch of the argument by recurrence to a few of
the numerous decisions of the highest courts construing the associated phrase in the
same sentence of the constitution which forbids the states to pass any law impairing the
obligation of contracts. It has been held that this prohibition also relates exclusively to
laws passed after the contract is made, and its force has been often sought to be
evaded by the argument that laws are not forbidden which affect only the remedy, if
they do not change the nature of the contract or act directly upon it. The analogy
between this argument and the one concerning laws of procedure, in relation to the
contiguous words of the constitution, is obvious. But while it has been held that a
change of remedy made after the contract may be valid, it is only so when there is
substituted an adequate and sufficient remedy by which the contract may be enforced,
or where such remedy existed and remained unaffected by the new law. Tennessee v.
Sneed, 96 U. S. 69; Antoni v. Greenhow, ante, 91.

On this point it has been held that laws are void enacted after the date of the contract:
(1) Which give the debtor a longer stay of execution after judgment. Blair v. Williams, 4
Litt. (Ky.) 35; McKinney v. Carroll, 5 Mon. 98. (2) Which require on a sale of his property
under execution an appraisement, and a bid of two-thirds the value so ascertained.
Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608; 4 Litt. 35; Sprott v.
Reid, 3 G. Greene, 489. (3) Which allow a period of redemption after such sale. Lapsley
v. Brashear, 4 Litt. 58; 7 Mon. (Ky.) 54; Cargill v. Power, 1 Mich. 369; Robinson v.
Howe, 13 Wis. 341. (4) Which exempt from sale under judgment for the debt a larger
amount of the debtor's property than was exempt when the debt was contracted.
Edwards v. Kearney, 96 U. S. 59, and the cases there cited; Story, Comm. Const. §
1385.

There are numerous similar decisions showing that a change of the law which hindered
or delayed the creditor in the collection of his debt, though it related to the remedy or
mode of procedure by which that debt was to be collected, impaired the obligation of the
contract within the meaning of the constitution. Why are not the rights of life and liberty
as sacred as the right of contract? Why should not the contiguous and associated words
in the constitution, relating to retroactive laws, on these two subjects, be governed by
the same rule of construction? And why should a law, equally injurious to the rights of
the party concerned, be void in one case and not in the other, under the same
circumstances? But it is said that at the time the prisoner pleaded guilty of the second
degree of murder, and at the time he procured the reversal of the judgment of the
criminal court on that plea, the new constitution was in force, and he was bound to know
the effect of the change of the law on his case. We do not controvert the principle that
he was bound to know and take notice of the law. But, as regards the effect of the plea
and the judgment on it, the constitution of Missouri made no change. It still remained the
law of Missouri, as it is the law of every state in the Union, that so long as the judgment
rendered or that plea remained in force, or after it had been executed, the defendant
was liable to no further prosecution for any charge found in that indictment. Such was
the law when the crime was committed, such was the law when he pleaded guilty, such
is the law now in Missouri, and everywhere else. So that, in pleading guilty under an
agreement for 10 years' imprisonment, both he and the prosecuting attorney and the
court all knew that the result would be an acquittal of all other charges but that of
murder in the second degree.

Did he waive or annul this acquittal by prosecuting his writ of error? Certainly not by that
act, for if the judgment of the lower court sentencing him to 25 years' imprisonment had
been affirmed, no one will assert that he could still have been tried for murder in the first
degree. Nor was there anything else done by him to waive this acquittal. He refused to
withdraw his plea of guilty. It was stricken out by order of the court against his protest.
He refused then to plead not guilty, and the court in like manner, against his protest,
ordered a general plea of not guilty to be filed. He refused to go to trial on that plea, and
the court forced him to trial.

The case rests then upon the proposition that, having an erroneous sentence rendered
against him on the plea accepted by the court, he could only take the steps which the
law allowed him to reverse that sentence at the hazard of subjecting himself to the
punishment of death for another and a different offense of which he stood acquitted by
the judgment of that court; that he prosecuted his legal right to a review of that sentence
with a halter around his neck, when, if he succeed in reversing it, the same court could
tighten it to strangulation, and if he failed, it did him no good. And this is precisely what
has occurred. His reward for proving the sentence of the court of 25 years'
imprisonment (not its judgment on his guilt) to be erroneous, is that he is now to be
hanged, instead of imprisoned in the penitentiary. No such result could follow a writ of
error before, and as to this effect the new constitution is clearly ex post facto. The whole
error, which results in such a remarkable conclusion, arises from holding the provision
of the new constitution applicable to this case, when the law is ex post facto and
inapplicable to it.

If Kring or his counsel were bound to know the law when they prosecuted the writ of
error, they were bound to know it as we have expounded it. If they knew that by the
words of the new constitution such a judgment of acquittal as he had when he
undertook to reverse it would be no longer an acquittal after it was reversed, they also
knew that, being as to his case an ex post facto law, it could have no such effect on that
judgment.

We are of opinion that any law passed after the commission of an offense which, in the
language of WASHINGTON, in U. S. v. Hall, 'in relation to that offense, or its
consequences, alters the situation of a party to his disadvantage,' is an ex post facto
law; and in the language of DENIO, in Hartung v. People: 'No one can be criminally
punished in this country, except according to a law prescribed for his government by the
sovereign authority before the imputed offense was committed, and which existed as a
law at the time.'

Tested by these criteria, the provision of the constitution of Missouri which denies to
plaintiff in error the benefit which the previous law gave him of acquittal of the charge of
murder in the first degree, on conviction of murder in the second degree, is, as to his
case, an ex post facto law within the meaning of the constitution of the United States,
and for the error of the supreme court of Missouri, in holding otherwise, its judgment is
reversed, and the case is remanded to it, with direction to reverse the judgment of the
criminal court of St. Louis, and for such further proceedings as are not inconsistent with
this opinion.

MATTHEWS, J., dissenting.

The chief justice, Mr. Justice BRADLEY, Mr. Justice GRAY, and myself are unable to
concur in the judgment and opinion of the court in this case, and the importance of the
question determined constrains us to state the grounds of our dissent. The material
facts are these:

The plaintiff in error, at March term, 1875, of the St. Louis criminal court, was indicted
for murder in the first degree. On his arraignment he pleaded 'not guilty.' At the
November term of the same year a trial was had, which resulted in a verdict of guilty of
murder in the first degree, and a sentence of death. That judgment was reversed on
appeal, and twice subsequently there were mistrials. On November 12, 1879, the
defendant, by consent of the circuit attorney and leave of the court, withdrew his plea of
not guilty and entered a plea of guilty of murder in the second degree. He was
thereupon sentenced to imprisonment in the penitentiary for a term of 25 years. The
prisoner then filed a motion to set aside this judgment and sentence, and to allow him to
withdraw the plea of guilty of murder in the second degree, and to permit him 'to have
his original plea of not guilty entered to record, to the end that he may have a trial upon
the merits of his case before a jury.' In support of this motion reasons were assigned, in
substance, that he had withdrawn his original plea of not guilty and entered the plea of
guilty of murder in the second degree, upon the faith of an understanding previously had
with the circuit attorney, representing the prosecution, that if he would do so the
sentence should not exceed 10 years in the penitentiary, which* understanding was
violated by the sentence complained of. The court overruled the motion, but upon
appeal the judgment was reversed, on the ground alleged by the prisoner that he had
been misled, and the cause was remanded for further proceedings. On receipt of this
mandate, the trial court, the prisoner refusing to withdraw his plea of guilty of murder in
the second degree and to enter a plea of not guilty, entertained the motion previously
made by him, for refusing to grant which the judgment had thus been reversed, and
granted it, setting aside the plea of guilty, and, the prisoner standing mute, ordered a
plea of not guilty to be entered. On this plea a trial was had at October term, 1881,
when the prisoner was found guilty of murder in the first degree and again sentenced to
death. An appeal was prosecuted from this judgment, which, however, was affirmed by
the supreme court of Missouri, and is brought here for examination by the present writ
of error, on the ground that it has been rendered in violation of a right secured to the
plaintiff in error by the constitution of the United States.

The right which it is alleged has been violated is supposed to arise in this way. At the
time of the commission of the offense, in 1875, it was well established as the law of
Missouri, by the decisions of the supreme court of the state, that 'when a person is
indicted for murder in the first degree, and is put upon his trial and convicted of murder
in the second degree, and a new trial is ordered at his instance, he cannot legally be put
upon his trial again for the charge of murder in the first degree; he can be put upon his
trial only upon the charge of murder in the second degree.' State v. Ross, 29 Mo. 32;
State v. Smith, 53 Mo. 139. And it is not denied that a plea of guilty of murder in the
second degree, accepted by the state, would have been at that time equally an acquittal
of the charge of murder in the first degree, having the same force as to future trials as a
conviction of murder in the second degree, although the judgment should be reversed
on the application of the prisoner.

On November 30, 1875, the state of Missouri adopted a new constitution, which
contained (section 23, art. 2) the provision that 'if judgment on a verdict of guilty be
reversed for error in law, nothing herein contained shall prevent a new trial of the
prisoner on a proper indictment, or according to correct principles of law.'

In the case of State v. Sims, 71 Mo. 538, it was decided that this provision overthrows
the rule laid down in the case of State v. Ross, ubi supra, and was 'equivalent to
declaring that when such judgment is reversed for error at law, the trial had is to be
regarded as a mistrial, and that the cause, when remanded, is put on the same footing
as a new trial, as if the cause had been submitted to a jury, resulting in a mistrial by the
discharge of the jury in consequence of their inability to agree on a verdict.'
The rule thus introduced by the constitution of 1875 was the one applied in the trial of
the prisoner, instead of that previously in force; and the contention is that to apply it in a
case such as the present, where the alleged offense was committed prior to the
adoption of the new constitution, is to give it operation as an ex post facto law, in
violation of the prohibition of the constitution of the United States.

In examining this proposition it must constantly be borne in mind that the plea of guilty
of murder in the second degree, the legal effect of which, when admitted, is the precise
subject of the question, was entered long after the new rule established by the
constitution of Missouri took effect; that the prisoner himself moved to set it aside, and
for leave to renew his plea of not guilty, on the ground that he had been misled into
making his plea of guilty under circumstances that would make it operate as a fraud
upon his rights, if it were permitted to stand; and that, because the court denied this
motion, he made and prosecuted his appeal for a reversal of its judgment, in full view of
the rule, then in force, of the application of which he now complains, which expressly
declared what should be the effect of such a reversal.

The classification of ex post facto laws first made by Mr. Justice CHASE, in Calder v.
Bull, 3 Dall. 386-390, seems to have been generally accepted. It is as follows:

'(1) Every law that makes an action done before the passing of the law, and which was
innocent when done, criminal, and punishes such action; (2) every law that aggravates
a crime or makes it greater than it was when committed; (3) every law that changes the
punishment, and inflicts a greater punishment than the law annexed to the crime when
committed; (4) every law that alters the legal rules of evidence, and receives less or
different testimony than the law required at the time of the commission of the offense, in
order to convict the offender.'

This definition was the basis of the opinion of the court in the cases of Cummings v.
State, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333, and was expressly relied on in
the opinion of the dissenting judges, which says: 'This exposition of the nature of ex
post facto laws has never been benied, nor has any court or any commentator on the
constitution added to the classes of laws here set forth, as coming within that clause of
the organic law.' 4 Wall. 391.

Now, under which of these heads does the controverted rule of the Missouri constitution
fall? It cannot be contended that it is embraced in either of the first three. If in any, it
must be covered by the fourth. But what rule of evidence, existing at the time of the
commission of the offense, is altered to the disadvantage of the prisoner? The answer
made is this: that, at that time, an accepted plea of guilty of murder in the second
degree was conclusive proof that the prisoner was not guilty of murder in the first
degree, and that it was abrogated so as to deprive the prisoner of the benefit of it. But
while that rule was in force the prisoner had no such evidence of which he could avail
himself. How, then, has he been deprived of any benefit from it? He had not, during the
period while the rule was in force, entered any plea of guilty of murder in the second
degree, and no such plea had been admitted by the state. All that can be said is that if,
while the rule was in force, he had entered such a plea with the consent of the state, its
legal effect would have been as claimed, and by its change he has lost what advantage
he would have had in such a contingency. But it does not follow that such a contingency
would have happened. It was not within the power of the prisoner to bring it about, for it
required the concurrence and consent of the state; and it cannot be assumed that,
under such a rule and enough to say that, under a ruling of the court, a party might have
enough to say that, under a ruling of the court, a party might have lost the benefit of
certain evidence, if such evidence had existed. To predicate error in such a case, it
must be shown that the party had evidence of which, in fact, he has been illegally
deprived. Such a case would have been presented here, if the plea of guilty of murder in
the second degree had been entered and accepted before the constitution of 1875 took
effect, and while the old rule was in force. Then the law would have taken effect upon
the transaction between the prisoner and the prosecution in the acceptance of his plea;
the status of the prisoner would have been fixed and declared; he would have stood
acquitted of record of the charge of murder in the first degree; and the new rule would
have been an ex post facto law if it had made him liable to conviction and punishment
for an offense of which by law he had been declared to be innocent.

But, in the circumstances of the present case, the evidence, of which it is said the
prisoner has been deprived, came into being after the law had been changed. It was
evidence created by the law itself, for it consists simply in a technical inference; and the
law in force when it was created necessarily determines its quality and effect. That law
did not operate upon the offense to change its character; nor upon its punishment to
aggravate it; nor upon the evidence which, according to the law in force at the time of its
commission, was competent to prove or disprove it. It operated upon a transaction
between the prisoner and the prosecution, which might or might not have taken place;
which could not take place without mutual consent; and when it did take place that
consent must be supposed to have been given by both with reference to the law as it
then existed, and not with reference to a law which had then been repealed.

It is the essential characteristic of an ex post facto law that it should operate

retrospectively, so as to change the law in respect to an act or transaction already
complete and past. Such is not the effect of the rule of the constitution of Missouri now
in question. As has been shown, it does not, in any particular, affect the crime charged,
either in its definition, punishment, or proof. It simply declares what shall be the legal
effect, in the future, of acts and transactions thereafter taking place. It enacts that any
future erroneous and unlawful conviction for a less offense, thereafter reversed on the
application of the accused, shall be held for naught, to all intents and purposes, and
shall not, after such reversal, operate as a technical acquittal of any higher grade of
crime, for which there might have been a conviction under the same indictment. It
imposes upon the prisoner no penalty or disability. It cannot affect the case of any
individual, except upon his own request, for he must take the first step in its application.
When he pleads guilty of murder in the second degree, he knows that its acceptance
cannot operate as an acquittal of the higher offense. When he asks to have the
conviction reversed, he understands that if his application is granted, the judgment must
be set aside with the same effect as if it had never been rendered. It does not touch the
substance or merits of his defense, and is in itself a sensible and just rule in criminal
procedure.

And, 'so far as mere modes of precedure are concerned,' says Judge COOLEY, (Const.
Lim. 272,) 'a party has no more right in a criminal than in a civil action to insist that his
case shall be disposed of under the law in force when the act to be investigated is
charged to have taken place. Remedies must always be under the control of the
legislature, and it would create endless confusion in legal proceedings if every case was
to be conducted only in accordance with the rules of practice, and heard only by the
courts in existence when its facts arose. The legislature may abolish courts and create
new ones, and it may prescribe altogether different modes of procedure in its discretion,
though it cannot lawfully, we think, in so doing, dispense with any of those substantial
protections with which the existing law surrounds the person accused of crime. Statutes
giving the government additional challenges, and others which authorized the
amendment of indictments, have been sustained and applied to past transactions, as
doubtless would be any similar statute calculated merely to improve the remedy, and in
its operation working no injustice to the defendant and depriving him of no substantial
right.'

Accordingly it was held by this court, in Gut v. State, 9 Wall. 35, in the language of Mr.
Justice FIELD, delivering its opinion, that 'a law changing the place of trial from one
county to another county in the same district, or even to a different district from that in
which the offense was committed or the indictment found, is not an ex post facto law,
though passed subsequent to the commission of the offense or the finding of the
indictment.' And in the case of Ex parte McCardle, 7 Wall. 506, it was the unanimous
decision of the court that it was competent for congress, in a case affecting personal
liberty, to deprive the complaining party of the benefit of an appeal from the judgment of
an inferior court, after his appeal had taken effect and while it was pending. It would
have been equally competent for the constitution of Missouri to have declared that no
appeal or writ of error should thereafter be allowed to reverse the judgment of the court
of original jurisdiction in any pending criminal cause, which certainly would be giving a
different, because irreversible, effect to that judgment from what such judgments would
have had under the law in force when the offense was committed. If it be true, in the
logic of the law, as it is in all its other applications, that the greater includes the less,
then it was competent for that constitution to provide that, as to all judgments in criminal
cases thereafter rendered, which should be reversed for error, on the appeal of the
defendant, the effect of the reversal should be such as not to be a bar to a subsequent
conviction for any crime described in the indictment; for that would have been to say,
not that there shall be no appeal at all, but that if an appeal is taken its effect shall only
be such as is prescribed in the law allowing it.

In Com. v. Holley, 3 Gray, 458, SHAW, C. J., said:

'The object of the declaration of rights was to secure substantial privileges and benefits
to parties criminally charged; not to require particular forms, except where they are
necessary to the purposes of justice and fair dealing towards persons accused, so as to
insure a full and fair trial.'

And in Com. v. Hall, 97 Mass. 570, the court, speaking of a statutory provision
authorizing the amendment of indictments, so as to allege a former conviction, the effect
of which was to increase the penalty, said:

'We entertain no doubt of the constitutionality of this section, which promotes the ends
of justice by taking away a purely technical objection, while it leaves the defendant fully
and fairly informed of the nature of the charge against him, and affords him ample
opportunity for interposing every meritorious defense. Technical and formal objections
of this nature are not constitutional rights.'

These observations, it is not necessary to point out, are entirely applicable to the
present argument.

Still stronger, and more to the point, is what was said by SHAW, C. J., in Jacquins v.
Com. 9 Cush. 279, where it was held that a statute authorizing the supreme judicial
court, on a writ of error, on account of error in the sentence, to render such judgment
therein as should have been rendered, applied to past judgments, and was not, on that
account, an ex post facto law. That eminent judge said:

'It was competent for the legislature to take away writs of error altogether in cases
where the irregularities are formal and technical only, and to provide that no judgment
should be reversed for such cause. It is more favorable to the party to provide that he
may come into court upon the terms allowed by this statute than to exclude him
altogether. This act operates like the act of limitations. Suppose an act was passed that
no writ of error should be taken out after the lapse of a certain period. It is contended
that such an act would be unconstitutional, on the ground that the right of the convict to
have his sentence reversed upon certain conditions had once vested. But this argument
overlooks entirely the well-settled distinction between rights and remedies.'

Precisely the same distinction between laws ex post facto and those which merely affect
the remedy, and are, therefore, applicable to the case of an offense previously
committed, is well illustrated by the case of Ratzky v. People, 29 N. Y. 124. There the
prisoner had been convicted of murder in the first degree; the offense was committed
when the act of 1860 was is force, which prescribed the mode of punishment; he was
sentenced, however, in accordance with the terms of an act passed in 1862,
subsequently to the commission of the offense, and which prescribed a different mode
of punishment. On this account the judgment was held to be erroneous and was
reversed, on the ground that the act of 1862, applied to offenses previously committed,
was ex post facto. But at the time of the commission of the offense, in 1861, it was the
well-settled law of New York, as decided in Shepherd v. People, 25 N. Y. 406, that
when a wrong judgment had been pronounced, although the trial and conviction were
regular, the prisoner could not, on the reversal of judgment, be subject to another trial,
but would be entitled to his discharge. But on April 24, 1863, after the prisoner had been
tried and convicted, but before judgment and sentence were pronounced, an act of the
legislature took effect, which provided that the appellate court should have power, upon
any writ of error, when it should appear that the conviction had been legal and regular,
to remit the record to the court in which such conviction had been had, to pass such
sentence thereon as the appellate court should direct. But for the authority conferred by
this act, the court of appeals stated that it would have had no power, upon reversal of
the judgment of the supreme court, either to pronounce the appropriate judgment, or
remit the record to the oyer and terminer to give such judgment; but, on the contrary,
would have been obliged to have discharged him, the law not authorizing another trial.
Nevertheless, the court of appeals gave effect to the act of 1863, reversed the
judgment, and sent the record down with directions to sentence the prisoner to death, in
accordance with the provisions of the act of 1860, holding that the act of 1863 was not
an ex post facto law. And yet it deprived the prisoner of the benefit of a rule of law, in
force at the time the offense was committed, viz., that if he should be erroneously
sentenced, and the judgment should be reversed, he would be entitled to be discharged
and forever after protected against further prosecution for the same offense, as well as
against any second judgment upon the same verdict. This decision deserves particular
consideration, for it involves the very question under discussion. At the time of the
commission of his offense, and at the time of his trial and conviction, a rule of law in
New York had been well established that upon a reversal of judgment in a capital case,
for error in the sentence, the prisoner was entitled to be discharged, and his former
conviction, notwithstanding the reversal, was a conclusive defense upon any
subsequent trial for the same offense. After trial and conviction a statute was passed
which abrogated that rule and declared that a subsequent reversal of judgment for error
merely in the sentence should not have that effect, but that, even without a new trial, a
new judgment might be entered upon the verdict. This gave to the verdict and to the
subsequent proceeding an effect entirely different from what they would have had under
the law as it stood at the time of the commission of the offense, and deprived the
prisoner of the advantage of the rule then in force. After that statute took effect he
prosecuted a writ of error and reversed the judgment for error in the sentence, and it
was held that the effect of that reversal was determined by the law in force when it was
rendered, and not by thelaw in U 'It would follow from these considerations, and the
authority of the case of People v. Shepherd, 25 N. Y. 406, that a wrong judgment having
been pronounced, although the trial and conviction were regular, this prisoner could not
be subjected to another trial and would be entitled to his discharge. That would
unquestionably be so but for the act of April 24, 1863. * * * In the present case that act
became operative before the judgment and sentence were pronounced and given, and
before the writ of error was prosecuted to this court. It was, therefore, in force when the
writ of error in this case was prosecuted, and its provisions are applicable to the duty
imposed upon this tribunal by virtue of that proceeding. * * * But for the authority
conferred upon this court by that statute it would have had no power, upon reversal of
the judgment of the supreme court, either to pronounce the appropriate judgment or
remit the record to the oyer and terminer to give such judgment.'

And Chief Justice DENIO said:

'The remaining question is, whether the judgment should be reversed and the prisoner
discharged, according to the former rule, or the record be remitted to the oyer and
terminer to pass a legal sentence upon the conviction. This latter course is now
authorized by statute. Laws 1863, c. 226, p. 406. The conviction was legal and the
sentence only was erroneous. The only question is, whether the act, having been
passed after the conviction, though before judgment was given in the supreme court,
could be applied to the case. I am of opinion that it can be applied. The forms of judicial
proceedings are under control of the legislature.'

And the court accordingly, instead of ordering the prisoner to be discharged, according
to the rule in force at the time the offense was committed, and even at the time of his
trial and conviction, directed the record to be remitted to the court of oyer and terminer
with instructions to sentence him to suffer death for the crime of which he had been
convicted.

The counterpart and complement of the decision in Ratzky's Case are found in Hartung
v. People. There the prisoner had been convicted of murder and sentenced to death;
but at the time the judgment was rendered the law in force at the time of the
commission of the offense providing for its punishment had been repealed, and the
repealing act substituted a different punishment. It was on this account adjudged to be
an ex post facto law, and void, and the judgment was reversed. 22 N. Y. 95.
Subsequently the repealing act was itself repealed, and the former act in force when the
offense was committed was restored. Then the prisoner was again tried, having pleaded
a former conviction, but was found guilty, and adjudged to suffer death in accordance
with the law existing at the time the offense was committed. This judgment was
thereupon reversed, and the prisoner ordered to be discharged, on the ground that the
act restoring the law as it stood when the offense was committed was an ex post facto
law, because at the time it was passed the prisoner had been adjudged to be legally
free from punishment of any kind on account of her offense. 26 N. Y. 167. The very
point of the decision was that while it was competent for the legislature to repeal the
repealing act so that it could not thereafter be availed of, it could not destroy the effect
of a judgment actually pronounced while that act was in force. It is manifest that if in that
case the prisoner had not been tried at all until after the law had been thus twice
changed, she could not have claimed to have had the vested interest in the first
repealing act which was allowed to her in the judgment actually rendered when it was in
force. It was because the subsequent law, if applied, would have changed the legal
effect of that judgment, that it was adjudged to be an ex post facto law.

It was precisely upon this principle that the supreme court of North Carolina proceeded
in the case of State v. Keith, 63 N. C. 140. There the prisoner, in custody on a charge of
murder, moved for a discharge, on the ground that his offense was within the provisions
of the amnesty act of 1866-67. This was admitted to be the case, but the motion was
opposed on the ground that the amnesty act had been repealed. It was held that the
effect of the pardon was, so far as the state was concerned, to destroy and entirely
efface the previous offense, as if it had never been committed; and that to give to the
repeal of the amnesty act the effect, as claimed, of reviving the offense, would make it
an ex post facto law, making criminal that which, when it took effect, was not so, and
taking from the prisoner his vested right to immunity. But suppose in that case the
provisions of the amnesty act had been conditional and not absolute, so that no one
could plead its pardon unless he had taken certain formal preliminary steps to obtain the
benefit of its terms, and that before the prisoner had done so the act had been repealed,
could it be claimed that in that event he had obtained a vested right to immunity, and
that its repeal operated as an ex post facto law? Clearly not. And, in reference to this
case, it is also to be observed that the fact, the legal character of which was changed by
the subsequent law, was the fact of pardon, and not a fact which existed at the time of
the commission of the offense. The repealing act was ex post facto, because it had the
effect to change the legal character of the facts as they existed at the time of its
passage.

In State v. Arlin, 39 N. H. 179, a prisoner was indicted for a robbery, which, at the time
of its commission, was punishable by imprisonment for life, but by the same law he was
entitled to have counsel assigned him by the government, process to compel the
attendance of witnesses, and other similar privileges. A subsequent law mitigated the
severity of the punishment and repealed the act giving these privileges. It was held that
the act was not ex post facto, because it changed the punishment to the advantage of
the prisoner, and that he was not entitled to the incidental benefits secured by the law in
force when the offense was committed. The court remarked that by committing the
offense the prisoner had not acquired a vested right to enjoy the privileges to which he
would have been entitled if tried under the law subjecting him to imprisonment for life.

The rule of law in Missouri, the benefit of which is claimed for the prisoner in this
proceeding, notwithstanding its repeal by the constitution of the state before it could
have been applied in his case, was established, not by statute, but by a series of judicial
decisions of the supreme court of the state. Those decisions might at any time have
been reversed by the same tribunal, and a new rule introduced, such as that actually
declared by the constitution. In that event, could it be said, with any plausibility, that the
latter decisions, reversing the law as previously understood, could not be applied to all
subsequent proceedings in cases where, upon a plea of guilty of murder in the second
degree thereafter entered and accepted, an erroneous judgment thereon had been
reversed, notwithstanding, when the offense was committed, the prior decisions had
been in force? Would the new rule, as introduced and applied by the later judicial
decisions, be in violation of the prohibition of the constitution of the United States
against ex post facto laws? But the constitution of Missouri has done no more than this.
The nature and operation of the rule are not affected by any peculiarity in the authority
which establishes it. If it is not objectionable as an ex post facto law, when introduced
by judicial decision, it is because it is not so in its nature; and, if not, it does not become
so when introduced by a legislative declaration.

There are doubtless many matters of mere procedure which are of vital consequence;
but in respect to them the power of congress, as to crimes against the United States, is
restrained by positive and specific limitations, carefully inserted in the organic law,
prohibiting unreasonable searches and seizures, and general warrants, providing that
no one shall be held to answer for a capital or otherwise infamous crime, unless on a
presentment or indictment of a grand jury, except in cases arising in the military service;
that no person shall, for the same offense, be twice put in jeopardy of life or limb, nor be
compelled to testify against himself; that every accused person shall be secured in the
right to a public trial by an impartial jury in a previously ascertained district, in which the
alleged offense is charged to have been committed; to be informed of the nature and
cause of the accusation, to be confronted with the witnesses against him, to have
compulsory process for obtaining witnesses in his favor, and to have the assistance of
counsel for his defense. But these are limitations upon the legislative power of the
United States, whether prospective or retrospective, and not upon that of the states; and
although the constitutions of all the states, probably, have equivalent guaranties of
individual rights, the violation of none of them by a state tribunal, under state legislation,
could present a case for the exercise of supervisory jurisdiction by this court. The
prohibition against bills of attainder is the only one of this class which applies to both the
government of the United States and those of the states; and while a bill of attainder
may be an ex post facto law, it is not necessarily so, as it may be merely a matter of
procedure,—a trial by a legislative instead of a judicial body.

But, in addition to these matters of procedure, which are specially protected against
legislative change, either for the past or the future, there may be others, in which
changes with a retrospective effect are forbidden by the prohibition against ex post facto
laws. Such, we have already seen, would be laws which authorize conviction upon less
evidence than was required at the time of the commission of the offense, or which
altered, to the disadvantage of the accused, the nature and quantity of proof at that time
required to substantiate a legal defense; or which, in other words, gave to the
circumstances which constituted and attended the act, a legal signification more
injurious to the accused than was attached to them by the law existing at the time of the
transaction.

It is doubtless quite true that it is difficult to draw the line in particular cases beyond
which legislative power over remedies and procedure cannot pass without touching
upon the substantial rights of the parties affected, as it is impossible to fix that boundary
by any general words. The same difficulty is encountered, as the same principle applies,
in determining, in civil cases, how far the legislature may modify the remedy without
impairing or enlarging the obligation of contracts. Every case must be decided upon its
own circumstances, as the question continually arises and requires an answer. But it is
a familiar principle that, before rights derived under public laws have become vested in
particular individuals, the state, for its own convenience and the public good, may
amend or repeal the law without just cause of complaint. 'The power that authorizes or
proposes to give,' said Mr. Justice WOODBURY in Merrill v. Sherburne, 1 N. H. 213,
'may always revoke before an interest is perfected in the donee.' Accordingly, the heir
apparent loses no legal right, if, before descent cast, the law of descents is changed so
as to shift the inheritance to another, however his expectations may be disappointed.
And while it would be a violation of the constitutional maxim which forbids retrospective
legislation inconsistent with vested rights, to deprive, by a repeal of statutes of limitation,
a defendant of a defense which had become perfect while they were in force; yet if,
before the bar had become complete, he should be deprived of an expected defense by
an extension of time in which suit might be brought, he would have no just cause to
object that he was compelled to meet the case of his adversary upon its merits.

In respect to criminal offenses it is undoubtedly a maxim of natural justice, embodied in

constitutional provisions, that the quality and consequences of an act shall be
determined by the law in force when it is committed, and of which, therefore, the
accused may be presumed to have knowledge, so that the definition of the offense, the
character and degree of its punishment, and the amount and kind of evidence
necessary to prove it, cannot be changed to the disadvantage of the party charged ex
post facto. And this equally applies to, because it includes, the matters which, existing
at the time and constituting part of the transaction, affect its character, and thus form
grounds of mitigation or defense; for the accused is entitled to the benefit of all the
circumstances that attended his conduct, according to their legal significance, as
determined at the time. All these are incidents that belong to the substance of the thing
charged as a crime, and therefore come within the saving which preserves the legal
character of the principal fact. But matters of possible defense, which accrue under
provisions of positive law, which are arbitrary and technical, introduced for public
convenience or from motives of policy, which do not affect the substance of the
accusation or defense, and form no part of the res gestae, are continually subject to the
legislative will, unless, in the mean time, by an actual application to the particular case,
the legal condition of the accused has been actually changed. His right to maintain that
status, when it has become once vested, is beyond the reach of subsequent law. The
present, as we have seen, is not such a case. The substance of the prisoner's defense,
upon the merits, has not been touched; no vested right under the law had wrought a
result upon his legal condition before its repeal. He is, therefore, in no position to invoke
the constitutional prohibition which is, by the judgment of this court, now interposed
between him and the crime of which he has been convicted.

In our opinion the judgment of the supreme court of Missouri should be affirmed.

CC∅ | Transformed by Public.Resource.Org

CASE 2

G.R. No. L-6287 December 1, 1911

THE MANILA RAILROAD COMPANY, plaintiff-appellee,

vs.
THE ATTORNEY-GENERAL, representing the Insular Government, et al.,
defendants-appellants.

W. A. Kincaid and Thomas L. Hartigan, for appellant.

Antonio Constantino, for appellee.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of the Province of
Tarlac dismissing the action before it on motion of the plaintiff upon the ground that the
court had no jurisdiction of the subject matter of the controversy.

The question for our consideration and decision is the power and authority of a Court of
First Instance of one province to take cognizance of an action by a railroad company for
the condemnation of real estate located in another province.

In the month of December, 1907, the plaintiff began an action in the Court of First
Instance of the Province of Tarlac for the condemnation of certain real estate, stated by
the plaintiff in his complaint to be located in the Province of Tarlac. It is alleged in the
complaint that the plaintiff is authorized by law to construct a railroad line "from Paniqui
to Tayug in the Province of Tarlac," and it is for the purpose of condemning lands for the
construction of such line that this action is brought. The land sought to be condemned is
69,910 square meters in area. The complaint states that before beginning the action the
plaintiff had caused to be made a thorough search in the office of the registry of
property and of the tax where the lands sought to be condemned were located and to
whom they belonged. As a result of such investigations the plaintiff alleged that the
lands in question were located in the Province of Tarlac. The defendants in one action
all of the different owners of or persons otherwise interested in the 69,910 square
meters of land to be condemned. After filing and duly serving the complaint the plaintiff,
pursuant to law and pending final determination of the action, took possession of and
occupied the lands described in the complaint, building its line and putting the same in
operation. During the progress of the action a commission to appraise the value of the
lands was duly appointed, which, after taking oral testimony, amounting to 140
typewritten pages when transcribed, and after much labor and prolonged consideration,
made a report consisting of about 55 typewritten pages, resolving the question
submitted to it. On the coming in of this report the court, by order entered the 27th of
September, 1909, set the 11th day of October following for the hearing thereon.
On the 4th day of October the plaintiff gave notice to the defendants that on the 9th day
of October a motion would be made to the court to dismiss the action upon the ground
that the court had no jurisdiction of the subject matter, it having just been ascertained by
the plaintiff that the land sought to be condemned was situated in the Province of Nueva
Ecija, instead of the Province of Tarlac, as alleged in the complaint. This motion was
heard and, after due consideration, the trial court dismissed the action upon the ground
presented by the plaintiff. This appeal is taken from said judgment of dismissal.

The decision of the learned trial court was based entirely upon the proposition, already
referred to, that in condemnation proceedings, and in all other proceedings affecting title
to land, the Court of First Instance of a given province has no jurisdiction, power or
authority where the land is located in another province, and that no such power,
authority, or jurisdiction can be conferred by the parties.

Sections 55 and 56 of Act No. 136 of the Philippine Commission confer jurisdiction upon
the Courts of First Instance of these Islands with respect to real estate in the following
words:1awphi1.net

SEC. 55. Jurisdiction of Courts of First Instance. — The jurisdiction of Courts of

First Instance shall be of two kinds:

1. Original; and

2. Appellate.

SEC. 56. Its original jurisdiction. — Courts of First Instance shall have original
jurisdiction: .

xxx xxx xxx

2. In all civil actions which involve the title to or possession of real property, or
any interest therein, or the legality of any tax, impost, or assessment, except
actions of forcible entry into, and detainer of lands or buildings, original
jurisdiction of which is by this Act conferred upon courts of justice of the peace.

It is apparent from the wording of these sections that it was the intention of the
Philippine Commission to give to the Courts of First Instance the most perfect and
complete jurisdiction possible over the subject matters mentioned in connection
therewith. Such jurisdiction is not made to depend upon locality. There is no suggestion
of limitation. The jurisdiction is universal. Nor do the provisions of sections 48, 49, 50,
51, and 52 at all militate against the universality of that jurisdiction. Those provisions
simply arrange for the convenient and effective transaction of business in the courts and
do not relate to their power, authority, or jurisdiction over the subject matter of the
action. While it is provided in these sections that a particular court shall hold its sessions
in any other province (except under certain specified conditions), the assertions is
nevertheless true that the jurisdiction of a particular court is in no wise and in no sense
limited; and it is nowhere suggested, much less provided, that a Court of First Instance
of one province, regularly sitting in said province, may not under certain conditions take
cognizance of an action arising in another province or of an action relating to real estate
located outside of the boundaries of the province to which it may at the time be
assigned.

Certain statutes confer jurisdiction, power, or authority. Other provide for the procedure
by which that power or authority is projected into judgment. The one class deals with the
powers of the Court in the real and substantive sense; the other with the procedure by
which such powers are put into action. The one is the thing itself; the other is the vehicle
by which the thing is transferred from the court to the parties. The whole purpose and
object of procedure is to make the powers of the court fully and completely available for
justice. The most perfect procedure that can be devised is that which gives opportunity
for the most complete and perfect exercise of the powers of the court within the
limitations set by natural justice. It is that one which, in other words, gives the most
perfect opportunity for the powers of the courts to transmute themselves into concrete
acts of justice between the parties before it. The purpose of such a procedure is not to
restrict the jurisdiction of the court over the subject matter, but to give it effective facility
in righteous action. It may be said in passing that the most salient objection which can
be urged against procedure to-day is that it so restricts the exercise of the court's
powers by technicalities that the part of its authority effective for justice between the
parties is many times an inconsiderable portion of the whole. The purpose of procedure
is not to thwart justice. Its proper aim is to facilitate the application of justice to the rival
claims of contending parties. It was created not to hinder and delay but to facilitate and
promote the administration of justice. It does not constitute the thing itself which courts
are always striving to secure to litigants. It is designed as the means best adopted to
obtain that thing. In other words, it is a means to an end. It is the means by which the
powers of the court are made effective in just judgments. When it loses the character of
the one and takes on that of the other the administration of justice becomes incomplete
and unsatisfactory and lays itself open to grave criticism.

The proper result of a system of procedure is to insure a fair and convenient hearing to
the parties with complete justice between them as a result. While a fair hearing is as
essential as the substantive power of the court to administer justice in the premises, and
while the one is the natural result o the other, it is different in its nature and relates to a
different thing. The power or authority of the court over the subject matter existed and
was fixed before procedure in a given cause began. Procedure does not alter or change
that power or authority; it simply directs the manner in which it shall be fully and justly
exercised. To be sure, in certain cases, if that power is not exercised in conformity with
the provisions of the procedural law, purely, the court attempting to exercise it loses the
power to exercise it legally. This does not mean that it loses jurisdiction of the subject
matter. It means simply that he may thereby lose jurisdiction of the person or that the
judgment may thereby be rendered defective for lack of something essential to sustain
it. There is, of course, an important distinction between person and subject matter are
both conferred by law. As to the subject matter, nothing can change the jurisdiction of
the court over diminish it or dictate when it shall attach or when it shall be removed.
That is a matter of legislative enactment which none but the legislature may change. On
the other hand, the jurisdiction of the court over the person is, in some instances, made
to defend on the consent or objection, on the acts or omissions of the parties or any of
them. Jurisdiction over the person, however, may be conferred by consent, expressly or
impliedly given, or it may, by an objection, be prevented from attaching or removed after
it has attached.

In the light of these observations, we proceed to a consideration of those provisions of

the law which the plaintiff claims are decisive of his contention that a Court of First
Instance of one province has no jurisdiction of the subject matter of an action by a
railroad company to condemn lands located in another province. The plaintiff relies for
the success of its cause upon section 377 of the Code of Civil Procedure and upon the
special laws relating to the condemnation of lands railroad corporations. We take up first
the section of the Code of Civil Procedure referred to.

The fact that such a provision appears in the procedural law at once raises a strong
presumption that it has nothing to do with the jurisdiction of the court over the subject
matter. It becomes merely a matter of method, of convenience to the parties litigant. If
their interests are best subserved by bringing in the Court Instance of the city of Manila
an action affecting lands in the Province of Ilocos Norte, there is no controlling reason
why such a course should not be followed. The matter is, under the law, entirely within
the control of either party. The plaintiff's interests select the venue. If such selection is
not in accordance with section 377, the defendant may make timely objection and, as a
result, the venue is changed to meet the requirements of the law. It is true that this court
has more than once held than an agreement to submit a controversy to a court which,
under the procedural law, has not been selected as the appropriate court, generally
speaking, to hear such controversy, can not be enforced. This means simply that either
party to such a contract may ignore it at pleasure. The law will not compel the fulfillment
of an agreement which deprives one of the parties to it of the right to present his cause
to that court which the law designates as the most appropriate. But the principle
asserted in the cases which hold thus is no authority for the proposition that two
persons having a controversy which they desire to have decided by a competent
tribunal may not, by appropriate procedure, submit it t any court having jurisdiction in
the premises. In the one case the relation is contractual to be enforced over the
objection of one of the contracting parties. In the other relation is not contractual
because not between the parties; but, rather, between the parties and the court. In the
one case it is a contract to be enforced; in the other, a condition to be met.

This being so, we say again, even though it be repetition, that after jurisdiction over real
property in the Islands has been conferred so generally and fully by Act No. 136, it is not
to be presumed or construed that the legislature intended to modify or restrict that
jurisdiction when it came to frame a Code of Civil Procedure the object of which is to
make that jurisdiction effective. Such modification or restriction should be held only by
virtue of the clearest and most express provisions.

The wording of that section should be carefully examined. It reads as follows:

 SEC. 377. Venue of actions. — Actions to confirm title to real estate, or to secure
a partition of real estate, or to cancel clouds, or remove doubts from the title to
real estate, or to obtain possession of real estate, or to recover damages for
injuries to real estate, or to establish any interest, right, or title in or to real estate,
or actions for the condemnation of real estate for public use, shall be brought in
the province were the lands, or some part thereof, is situated; actions against
executors, administrators, and guardians touching the performance of their
official duties, and actions for account and settlement by them, and actions for
the distribution of the estates of deceased persons among the heirs and
distributes, and actions for the payment of legacies, shall be brought in the
province in which the will was admitted to probate, or letters of administration
were granted, or the guardian was appointed. And all actions not herein
otherwise provided for may be brought in any province where the defendant or
any necessary party defendant may reside or be found, or in any province where
the plaintiff, except in cases were other special provision is made in this Code. In
case neither the plaintiff nor the defendant resides within the Philippine Islands
and the action is brought to seize or obtain title to property of the defendant
within the Philippine Islands and the action is brought to seize or obtain title to
property of the defendant within the Philippine Islands, the action shall be
brought in the province where the property which the plaintiff seeks to seize or to
obtain title to is situated or is found: Provided, that in an action for the foreclosure
of a mortgage upon real estate, when the service upon the defendant is not
personal, but is by publication, in accordance with law, the action must be
brought in the province where the land lies. And in all cases process may issue
from the court in which an action or special proceeding is pending, to be enforced
in any province to bring in defendants and to enforce all orders and decrees of
the court. The failure of a defendant to object t the venue of the action at the time
of entering his appearance in the action shall be deemed a waiver on his part of
all objection to the place or tribunal in which the action is brought, except in the
actions referred to in the first sixteen lines of this section relating to real estate,
and actions against executors, administrators, and guardians, and for the
distribution of estates and payment of legacies.

Leaving out of discussion for the moment actions and proceedings affecting estates of
deceased persons, they resting upon a different footing being governed by special laws,
it is to be observed that the section contains no express inhibition against the court. It
provides simply that certain actions affecting real estate "shall be brought in the
province where the land, or some part thereof, is situated." The prohibition here is
clearly directed against the one who begins the action and lays the venue. The court,
before the action is commenced, has nothing to do with either. The plaintiff does both.
Only when that is done does the section begin to operate effectively so far as the court
is concerned. The prohibition is nor a limitation on the power of the court but on the
rights of the plaintiff. It is not to take something from the court but to grant something to
the defendant. Its wording clearly deprives the court of nothing which it had, but gives
the defendant, as against the plaintiff, certain rights which he did not have. It establishes
a relation not between the court and the subject ,after, but between the plaintiff and the
defendant. It relates not to jurisdiction but to trial. It touches convenience, not
substance. It simply gives to defendant the unqualified right, if he desires it, to have the
trial take place where his land lies and where, probably, all of his witnesses live. Its
object is to secure to him a convenient trial. If it had been the intention of the law-
makers by section 377 to put a limitation to the jurisdiction of the court, how easy it
would have been to say so squarely. "No Court of First Instance shall have or take
jurisdiction of an action touching title to or interest in real property lying wholly in a
province other than that in which such court is authorized to hold sessions," or a similar
provision, would have been sufficient. This would have been clearly a limitation on the
court rather than the party. There would have been no room for doubt. The legislature,
however, did not do so. It, rather, chose to use language which imposes a limitation on
the rights of the plaintiff.

In saying this we do not desire to force construction.1awphil.net Courts should give to

language its plain meaning, leaving the legislature to take care of the consequences.
The Philippine Commission having, in fullest phrase, given the Courts of First Instance
unrestricted jurisdiction over real estate in the Islands by Act No. 136, we are of the
opinion that the jurisdiction ought not to be held to be withdrawn except by virtue of an
Act equally express, or so clearly inconsistent as to amount to the same thing. The fact
that section 377 is not such Act, that it is found in code of Procedure rather than in the
substantive law, that it deals with the relative procedural rights of parties rather than the
power of the court, that it relates to the place rather than to the thing, that it composes
the whole of a chapter headed simply "Venue," lead us to hold that the Court of First
Instance of Tarlac had full jurisdiction of the subject matter of this action at the time
when it was dismissed.

That it had jurisdiction of the persons of all the parties is indisputable. That jurisdiction
was obtained not only by the usual course of practice — that is, by the process of the
court — but also by consent expressly given, is apparent. The plaintiff submitted itself to
the jurisdiction by beginning the action. (Ayers vs. Watson, 113 U.S., 594; Fisher vs.
Shropshire, 147 U.S., 133.) The defendants are now in this court asking that the action
be not dismissed but continued. They are not only nor objecting to the jurisdiction of the
court but, rather, are here on this appeal for the purpose of maintaining that very
jurisdiction over them.

Nor is the plaintiff in any position to asked for favors. It is clearly guilty of gross
negligence in the allegations of its complaint, if the land does not lie in Tarlac as it now
asserts. It alleged in its complaint:

4. That, according to the information secured after a minute investigation in the

offices of the land registry and of the land-tax record of the municipalities within
whose jurisdiction lie all the parcels composing the tract of land in question, the
owners and occupants of the same, with their names as they appear on the plan,
are as follows.
At the time it commenced the action it was possessed of every fact which a complete
knowledge of the location of the lands sought to be condemned required. It had the map
of its entire line from Paniqui to Tayug, showing the provinces and the various
municipalities through which it runs. Not only that: Before beginning its action it had to
know the name of every necessary defendant, the land he owned, and the extent of that
portion to be condemned. The investigation required to ascertain these facts would of
necessity force into plaintiff's mind the knowledge required to bring the action in the
proper court. That the plaintiff at the time it commenced this action did not know in what
province its proposed stations and terminals were is difficult to believe. That it did not
know in what province the land lay which it was about to make the subject of so
important a proceeding is still more difficult to believe. In spite of all this, however, it
deliberately laid the venue in a province where no part of the land lay, took possession
of the land in controversy, constructed its line, switches, and stations, and after nearly
two years of litigation, accompanied with great trouble to the court and trouble and
expense to the parties, calmly asks the dismissal of the case for the reason that it did
not know where its own railroad was located. Under such circumstances a dismissal of
the action over the objection of the defendants ought not to be permitted expect upon
absolute necessity and then only on payment of the costs and expenses of the
defendants and of the actin. (Ayers vs. Watson and Fisher vs. Shropshire, supra.)

There is no equitable ground, then, upon which the plaintiff may claim that it has not
yielded itself to the jurisdiction of the court. Nor, as we have seen, is there a legal
ground. As we have already said, the plaintiff, having brought the action, of necessity
submitted itself to the jurisdiction of the court. It took advantage of the situation it itself
created to take possession of the lands described in the complaint, construct its lines,
switches, stations, yards and terminals, and to carry the cause through two years of
expensive litigation. It now attempts to make all this go for naught alleging its own
negligence as a reason for such attempt. (Ayers vs. Watson and Fisher vs. Shropshire,
supra.)

While the latter part of section 377 provides that "the failure of a defendant to object to
the venue of the action at the time of entering his appearance in the action shall be
deemed a waiver on his part of all objection to the place or tribunal in which the action is
brought," except, a month other things, in actions affecting real estate, we apprehend
that it was not intended that a defendant can not waive such objection in such excepted
cases. Nor we do believe that such provision is controlling in this case. In the first place,
the application is restricted to "the time of entering his appearance in the action." It
might well have been in the mind of the lawmakers that, at the time of entering his
appearance in the action, the defendant would not ordinarily be fully informed of all the
facts of the case, at least not sufficiently to warrant his being held to a waiver of
important rights; whereas, later in the cause, as when he files his answer or goes to
trial, being fully informed, he might justly be held to have waived his right to make such
objection. for this reason it might well be that the Legislature purposely refrained from
extending the time for his protection beyond the "time of entering his appearance in the
action." Moreover, there is, in said clause, no prohibition against an express waiver of
his rights by the defendant. The general rule of law is that a person may renounce any
right which the law gives unless such renunciation is expressly prohibited or the right
conferred is of such a nature that its renunciation would be against public policy. This
right of renunciation is so thoroughly established, and was at the time of the enactment
of the Code of Civil Procedure, that its exercise by a defendant in relation to the venue
of the action will not be held to have been abridged by section 377 without very clear
provision therein to that effect. There is no part of that section clear enough to warrant
such a holding. Even though the terms of said section were much clearer than they are
in this respect, we should still hold, if they were much short of express, that the right of
renunciation is not abridged, founding ourselves not only upon the principles already
laid down but also upon the proposition of general law embodied in section 294 of the
code of Civil Procedure which provides that:

When a statute or instrument is equally susceptible of two interpretations, one in

favor of natural right and the other against it, the former is to be adopted.itc-alf

Moreover, it should be noted that this prohibition, if it be such, against waiver refers
exclusively to the defendant. The plaintiff is given no rights respecting it. Yet it is the
plaintiff who is here calling for the application of the provision even against the declared
will of the person who is expressly named as the sole beneficiary. We will not by
interpretation extend this provision so as to contravene the principles of natural rights.
We will not construed it so as to included in its terms nor named as its beneficiary. But
even if the plaintiff were entitled to invoke the aid of the provision he is estopped from
so doing. (Wanzer vs. Howland, 10 Wis., 7; Babcock vs. Farewell, 146 Ill. App., 307;
White vs. Conn. Mutual Life Ins. Co., 4 Dill (U.S.), 183; Shuttle vs. Thompson, 15 Wall.,
159; Beecher vs. Mill Co., 45 Mich., 103; Tomb vs. Rochester R. R. Co., 18 Barb., 585;
Ferguson vs. Landram, 5 Bush (Ky.), 230; State vs. Mitchell, 31 Ohio State, 592;
Counterman vs. Dublin, 38 Ohio State, 515; McCarthy vs. Lavasche, 89 Ill., 270;
Ricketts vs. Spraker, 77 Ind., 371; Strosser vs. City of Fort Wayne, 100 Ind., 443).
Section 333 of the Code of Civil Procedure reads:

Conclusive presumptions. — The following presumptions or deductions, which

the law expressly directs to be made from particular facts, are deemed
conclusive:

1. Whenever a party has, by his own declaration, act, or omission, intentionally

and deliberately led another to believe a particular thing true, and to act upon
such belief, he can not, in any litigation arising out of such declaration, act, or
omission, be permitted to falsity it.

(Rodriguez vs. Martinez, 5 Phil. Rep., 67; 69; Municipality of Oas vs. Roa, 7 Phil. Rep.,
20, 22; Trinidad vs. Ricafort et al., 7 Phil. Rep., 449, 453; Macke et al vs. Camps, 7 Phil.
Rep., 553, 555.)

The fact is, there are very few rights which may not be renounced, expressly or
impliedly. (Christenson vs. Charleton, 34 Atl., 226, 227, 69 Vt., 91; Donahue vs.
Windsor County Ins. Co., 56 Vt., 91; Donahaue vs. Windsor Ins. co., 33 Atl., 902, 904,
66 Conn., 21, 40; Fitzpatrick vs. Hartford Life & Annuity Ins. Co., 56 Conn., 116, 134, 17
Atl., 411, 7 Am. St. Rep., 288; Lewis vs. Phoenix Mut. Life Ins. Co., 44 Conn., 72, 91;
State vs. Hartley, 52 Atl., 615, 617, 75 Conn., 104; First Nat. Bank vs. Hartford L. & A.
Ins. Co., 45 Conn., 22, 44; Johnson vs. Schar, 70 N.W., 838, 839, 9 S. D., 536; Corey
vs. Bolton, 63 N.Y., Supp., 915, 917, 31 Misc. Rep., 138; Mason's Supply Co. vs. Jones,
68 N. Y. Supp., 806, 809, 58 App. Div., 231; Monroe Waterworks Co. vs. City of
Monroe, 85 N.W., 685, 688, 100 Wis., 11; Fraser vs. Aetna Life Ins. Co., 90 N.W., 476,
481, 114 Wis., 510; Cedar Rapids Water Co. vs. Cedat Rapids, 90 N.W., 746, 749, 117
Iowa, 250; Kennedy vs. Roberts, 75 N.W., 363, 366, 105 Iowa, 521; Shaw vs. Spencer,
100 Mass., 382, 395, 97 Am. Dec., 107, 1 Am. Rep., 115; West vs. Platt, 127 Mass.,
367, 367, 372; Fulkerson vs. Lynn, 64 Mo. App., 649, 653; Michigan Savings & Loan
Ass'n. vs. Missouri, K & T. Trust Co., 73 Mo. App., 161, 165; Perin vs. Parker, 18 N. E.,
747, 748, 126 Ill., 201, 2 L.R.A., 336, 9 Am. St. Rep., 571; Keller vs. Robinson & Co., 38
N. E., 1072, 1075, 152 Ull. 458; Star Brewery Co. vs. Primas, 45 N.E., 145, 148, 163 Ill.,
652; United Firemen's Ins. Co. vs. Thomas (U.S.), 82 Fed., 406, 408, 27 C.C. A., 42, 47
L.R.A., 450; Rice vs. Fidelity & Deposit Co. (U.S.), 103 Fed., 427, 43 C.C.A., 270;
Sidway vs. Missouri Land & Live Stock Co. (U.S.), 116 Fed., 381, 395; able vs. United
States Life Ins. Co. (U.S.), 111 Fed., 19, 31, 49 C.C.A., 216L Peninsular Land Transp.,
etc., Co. vs. Franklin Ins. Co., 35 W. Va., 666, 676, 14 S.E., 237; Dey vs. Martin, 78 Va.,
1, 7; Liverpool & L.& G. Ins. Co. vs. T.M. Richardson Lumber Co., 69 Pac., 938, 951, 11
Okl., 585; Livesey vs. Omaha Hotel, 5 Neb., 50, 69; Cutler vs. Roberts, 7 Nebr., 4, 14,
29 Am. Rep., 371; Warren vs. Crane, 50 Mich., 300, 301, 15 N.W., 465; Portland & R.R.
Co. vs. Spillman, 23 Oreg., 587, 592, 32 Pac., 688, 689; First Nat. Bank vs. Maxwell, 55
Pac., 980, 982, 123 Cal., 360, 69 Am. St. Rep., 64; Robinson vs. Pennsylvania Fire Ins.
Co., 38 Atl., 320, 322, 90 Me., 385; Reed vs. Union Cent. Life Ins. Co., 61 Pac., 21, 21
Utah, 295; Dale vs. Continental Ins. Co., 31 S.W., 266, 269, 95 Tenn., 38; Supreme
Lodge K.P. vs. Quinn, 29 South., 826, 829, 95 Tenn., 38; Supreme Lodge K.P. vs.
Quinn, 29 South., 826, 827, 78 Miss., 525; Bucklen vs. Johnson, 49 N.E., 612, 617, 19
Ind. App., 406.)

We have delayed until this moment the citation of authorities relative to the proposition
that venue is not jurisdictional as to subject matter and that defendant's rights in respect
thereto are such that they may be waived, expressly or by implication, for the reason
that we desired that the principles which rule the case should first be discussed and
presented in the abstract form. In the case of First National Bank of Charlotte vs.
Morgan (132 U.S., 141), it was held that the exemption of national banks from suits in
State courts in counties other than the county or city in which the association was
located was a personal privilege which could be waived was located was a personal
privilege which could be waived by appearing in such brought in another county, but in a
court of the same dignity, and making a defense without claiming the immunity granted
by Congress. the court said:

This exemption of national banking associations from suits in State courts,

established elsewhere than in the county or city in which such associations were
located, was, we do not doubt, prescribed for the convenience of those
institutions, and prevent interruption in their business that might result from their
 books being sent to distant counties in obedience to process from State courts.
(First Nat. Bank of Bethel vs. National Pahquioque Bank, 14 Wall., 383, 394;
Croker vs. Marine Nat. Bank, 101 Mass., 240.) But, without indulging in
conjecture as to the object of the exemption in question, it is sufficient that it was
granted by Congress, and, if it had been claimed by the defendant when
appearing in the superior court of Cleveland County, must have been recognized.
The defendant did not, however, choose to claim immunity from suit in that court.
It made defense upon the merits, and, having been unsuccessful, prosecuted a
writ of error to the supreme court of the State, and in the latter tribunal, for the
first time, claimed the immunity granted to it by Congress. This was too late.
Considering the object as well as the words of the statute authorizing suit against
a national banking association to be brought in the proper State court of the
county where it is located, we are of opinion that its exemption from suits in other
courts of the same State was a personal privilege that it would waive, and, which,
in this case, the defendant did waive, and, which, in this case, the defendant did
waive, by appearing and making defense without claiming the immunity granted
by Congress. No reason can be suggested why one court of a State, rather than
another, both being of the same dignity, should take cognizance of a suit against
a national bank, except the convenience of the bank. And this consideration
supports the view that the exemption of a national bank from suit in any State
court except one of the county or city in which it is located is a personal privilege,
which it could claim or not, as it deemed necessary.

In the case of Ex parte Schollenberger (96 U.S., 369), the court said:

The Act of Congress prescribing the place where a person may be sued is not
one affecting the general jurisdiction of the courts. It is rather in the nature of a
personal exemption in favor of a defendant, and it is one which he may waive. If
the citizenship of the parties is sufficient, a defendant may consent to be sued
anywhere he pleases, and certainly jurisdiction will not be ousted because he
has consented. Here, the defendant companies have provided that they can be
found in a district other than that in which they reside, if a particular mode of
proceeding is adopted, and they have been so found. In our opinion, therefore,
the circuit court has jurisdiction of the causes, and should proceed to hear and
decide them.

In the case of St. Louis and San Francisco Railway Co. vs. McBride (141 U.S., 127), the
court used the following language:

The first part of section 1 of the Act of 1887, as amended in 1888, gives,
generally, to the circuit courts of the United States jurisdiction of controversies
between citizens of different States where the matter in dispute exceeds the sum
of two thousand dollars exclusive of interest and costs. Such a controversy was
presented in this complaint. It was therefore a controversy of which the circuit
courts of the United States have jurisdiction. Assume that it is true as defendant
alleges, that this is not a case in which jurisdiction is founded only on the fact that
 the controversy is between citizens of different States, but that it comes within
the scope of that other clause, which provides that "no civil sit shall be brought
before either of said courts, against any person, by any original process or
proceeding, in any other district than that whereof he is inhabitant," still the right
to insist upon suit only in the one district is a personal privilege which he may
waive, and he does waive it by pleading to the merits. In Ex parte Schollenberger
(96 U.S., 369, 378), Chief Justice Waite said: "The Act of Congress prescribing
the place where a person may be sued is not one affecting the general
jurisdiction of the courts. It is rather in the nature of a personal exemption in favor
of a defendant, and it is one which he may waive." The Judiciary Act of 1789
(sec. 11, Stat., 79), besides giving general jurisdiction to circuit courts over suits
between citizens of different States, further provided, generally, that no civil suit
should be brought before either of said courts, against an inhabitant of the United
States, by any original process, in any other district than that of which he was an
inhabitant, or in which he should be found. In the case of Toland vs. Sprague (12
Pet., 300, 330), it appeared that the defendant was not an inhabitant of the State
in which the suit was brought, nor found therein. In that case the court observed:
"It appears that the party appeared and pleaded to issue. Now, if the case were
one of the want of jurisdiction in the court, it would not, according to well-
established principles, be competent for the parties by any acts of theirs to give
it. But that is not the case. The court had jurisdiction over the parties and the
matter in dispute; the objection was that the party defendant, not being an
inhabitant of Pennsylvania, nor found therein, personal privilege or exemption,
which it was competent for the party to waive. The cases of Pollard vs. Dwight (4
Cranch., 421) and Barry vs. Foyles (1 Pt., 311) are decisive to show that, after
appearance and plea, the case stands as if the suit were brought that exemption
from liability to process and that in case of foreign attachment, too, is a personal
privilege, which may be waived, and that appearing and pleading will produce
that waiver." In (14 Wal., 282), the jurisdiction of the circuit court over a
controversy between citizens of different States was sustained in a case
removed from the State court, although it was conceded that the suit could not
have been commenced in the first instance in the circuit court. See also Claflin
vs. Commonwealth Ins. Co. (110 U.S., 81 [28:76].) Without multiplying authorities
on this question, it is obvious that the party who in the first instance appears and
pleads to the merits waives any right to challenge thereafter the jurisdiction of the
court on the ground that the suit has been brought in the wrong district.
(Charlotte Nat. Bank vs. Morgan, 132 U.S., 141; Fitzgerald E. M. Const. Co. vs.
Fitzergerald, 137 U.S., 98.)

In the case of the Interior Construction and Improvement Co. vs. Gibney (160 U.S.,
217), the court held as follows:

The circuit courts of the United States are thus vested with general jurisdiction of
civil actions, involving the requisite pecuniary value, between citizens of different
States. Diversity of citizenship is a condition of jurisdiction, and, when that does
not appear upon the record, the court, of its own motion, will order the action to
 be dismissed. But The provision as to the particular district in which the action
shall be brought does not touch the general jurisdiction of the court over such a
cause between such parties; but affects only the proceedings taken to bring the
defendant within such jurisdiction, and is matter of personal privilege, which the
defendant may insist upon, or may waive, at his election; and the defendant's
right to object that an action within the general jurisdiction of the court is brought
in the wrong district, is waived by entering a general appearance, without taking
the objection. (Gracie vs. Palmer, 8 Wheat, 699; Toland vs. Sprague, 12 Pet.,
300, 330; Ex parte Schollenberger, 96 U.S., 369, 378; St. Louis & S. F. R. Co. vs.
McBride, 141 U.S., 127; Southern Pacific Co. vs. Dento, 146 U.S., 202, 206;
Texas & Pacific Railway Co. vs. Saunders, 151 U.S., 105; Central Trust Co. vs.
McGeorge, 151 U.S., 129; Southern Express Co. vs. Todd, 12 U.S. app., 351.)

In the case of Central Trust Co. vs. McGeorge (151 U.S., 129), the court disposed of the
case as follows:

The court below, in holding that it did not have jurisdiction of the cause, and in
dismissing the bill of complaint for the reason, acted in view of that clause of the
Act of March 3, 1887, as amended in August, 1888, which provides that "no suit
shall be brought in the circuit courts of the United States against any person, by
any original process or proceeding, in any other district than that whereof he is
an inhabitant;" and, undoubtedly, if the defendant company, which was sued in
another district than that in which it had its domicile, had, by a proper plea or
motion, sought to avail itself of the statutory exemption, the action of the court
would have been right.

But the defendant company did not choose to plead that provision of the statute,
but entered a general appearance, and joined with the complainant in its prayer
for the appointment of a receiver, and thus was brought within the ruling of this
court, so frequently made, that the exemption from being such out of the district
of its domicile is a personal privilege which may be waive and which is waived by
pleading to the merits.

(Improvement Co. vs. Gibney, 16 Sup. Ct., 272, 160 U.S., 217; 40 L. ed., 401; Walker
vs. Windsor Nat. Bank, 5 C. C. A., 421, 56 Fed., 76, 5 U.S. App., 423; Von Auw. vs.
Chicago Toy & Fancy Goods Co., 69 Fed., 448 McBride vs. Grand de Tour Plow Co.,
40 Fed., 162; Black vs. Thorne, Fed. Cas. No. 1, 495 (10 Blatchf., 66, 5 Fish. Pat. Cas.,
550); Norris vs. Atlas Steamship Co., 37 Fed., 279; Hoover & Allen Co. vs. Columbia
Straw Paper Co., 68 Fed., 945; Blackburn vs. Railroad Co., Fed., Fed., Cas. No. 1, 467
(2 Flip., 525); Vermont Farm Mach. Co. vs. Gibson, 50 Fed., 423.)

In the case of Security Loan and Trust Co. vs. Kauffman (108 Cal., 214), the court said:

The constitution, Article VI, section 5, declares that, "All actions for the
enforcement of liens" shall be commenced in the county in which the real estate
or some portion thereof is situated; and at the time this action was "commenced"
 the property was situate within the boundaries of San Diego. The constitution
does not, however, require property is situated, and the statutory provision in
section 392 of the Code of Civil Procedure, that actions 'for the foreclosure of
liens and mortgages on real property' must be tried in the county in which the
subject of the action, or some part thereof, is situated, "subject to the power of
the court to change the place of trial," shows that "the place of trial" is not an
element going to the jurisdiction of the court, but is a matter of legislative
regulation. The provision for the transfer of certain actions to the superior court of
the county of Riverside, which is contained in section 12 of the act providing for
the organization of that county, shows the extent of this regulation which the
legislature deemed necessary, and implies that only the actions there designated
were to be transferred for trial.

In the case of Chouteau vs. Allen (70 Mo., 290), the court held as follows:

The statutory provision in respect to personal actions is more emphatic, requiring

that "suits instituted by summons, shall, except as otherwise provided by law, be
brought: First, when the defendant is a resident of the State, either in the county
within which the defendant resides, or in the county within which the plaintiff
resides, and the defendant may be found," and yet it was held in reference to this
statute in the case of Hembree vs. Campbell (8 Mo., 572), that though the suit
was brought in the county in which the plaintiff resided, and service had upon the
defendant in the county of his residence, unless a plea in abatement to the
jurisdiction of the court over the person of the defendant, was interposed in the
first instance, the objection on the score of lack of jurisdiction could not
subsequently be successfully raised. And this, upon the generally recognized
ground that the court had jurisdiction over the subject matter of the suit, and that
the defendant's plea to the merits acknowledged jurisdiction over his person, and
precluded objection on account of absence of regularity in the instituting of the
action. So also, in Ulrici vs. Papin (11 Mo.., 42), where the then existing statute
required "suits in equity concerning real estate, or whereby the same may be
affected, shall be brought in the county within which such real estate or greater
part thereof is situate," and by demurrer to the bill it was objected that the suit
was not brought in the proper county in conformity with the statutory provision,
Judge Scott remarked: "That it does not clearly appear where the greater part of
the lands lie. This objection, if tenable, should have been raised by a plea to the
jurisdiction." And the same learned judge remarks, in Hembree vs. Campbell,
supra, "No principle is better established than that a plea in bar is a waiver of all
dilatory matter of defense. That the matter of abatement was apparent upon the
writ can make no difference. Such matters are and should be pleaded." And
pleas to the jurisdiction are as necessary in local as in transitory actions. (1 Tidd.
Prac., 630.)

It is not meant to convey the idea that the mere failure to plead to the jurisdiction
of the court would have the effect to confer jurisdiction where none existed
before; for it is well settled that even consent of parties can not confer
 jurisdiction. (Stone vs. Corbett, 20 Mo., 350.) But all circuit courts have a general
jurisdiction over the foreclosure of mortgages.

In the case of Armendiaz vs. Stillman (54 Texas, 623), the court disposed of the
question involved in the following words:

In our opinion, however, these common law rules respecting local and transitory
actions have no more to do in determining with us where a suit can be brought
and maintained, than the like rules in respect to the form and names of actions;
but this is solely regulated by and dependent upon the proper construction of the
constitution and statutes of the State. In the first, it is emphatically declared in the
bill of rights as a fundamental principle of government, "All courts shall be open,
and every person for an injury done him in his lands, goods, person or reputation,
shall have remedy by due course of law." Now a party may not have an action in
rem for or concerning land in foreign jurisdiction, because redress can not be
given or had by such proceeding in due course of law; but personal damages
may be given for such injury and enforced by due process of law within the State.
"And it would seem if the State failed to give to one of its citizens a remedy
against others for injuries of this kind, it would fail in the pledge made in the
constitution as plainly as if the injury had been in a foreign jurisdiction to one's
goods or person."

There is, as Judge Marshall himself says, no difference in principle in giving

redress for injuries to land in the jurisdiction where the defendant is found, which
may not be equally applicable in other cases. He says, speaking of the fiction
upon which transitory actions are sustained, where the cause of action occurred
out of the jurisdiction where they are brought: "They have" (i. e., the courts),
"without legislative aid, applied this fiction to all personal torts, wherever the
wrong may have been committed, and to all contracts wherever executed. To this
general rule contracts respecting lands from no exception. It is admitted that on a
contract respecting lands, an action is sustainable wherever the defendant may
be found. Yet in such case every difficulty may occur that present itself in an
action of trespass. An investigation of title may become necessary, a question of
boundary may arise, and a survey may be essential to the full merits of the case.
Yet these difficulties have not prevailed against the jurisdiction of the court. They
are countervailed by the opposing consideration, that if the action be disallowed,
the injured party may have a clear right without a remedy in a case where a
person who has done the wrong, and who ought to make the compensation, is
within the power of the court. That this consideration loses its influence where the
action pursues anything not in the reach of the court is inevitably necessary, but
for the loss of its influence, where the remedy is against the person, and is within
the power of the court, I have not yet discovered a reason, other than a technical
one, which can satisfy my judgment.'

In the case of De La Vega vs. Keague (64 Texas, 205), the court said:
Our statutes in force at the time the reconvention was filed provided that suits for
the recovery of land should be brought in the county where the land or a part
thereof is situated. This is one of the exceptions to the general rule requiring suits
to be brought in the county of the defendant's residence. This requirement is not
a matter that affects the jurisdiction of the district courts over the subject matter
of controversies about the title or possession of lands. Every district court in the
State has cognizance of such suits; the requirement as to the county in which the
suit may be brought is a mere personal privilege granted to the parties, which
may be waived like any other privilege of this character. (Ryan vs. Jackson, 11
Tex., 391; Morris vs. Runnells, 12 Tex., 176.) A judgment rendered by the district
court of Galveston County, when the parties had submitted to the jurisdiction,
would settle the title to land in McLennan County as effectually as if rendered in
its own district curt. Jurisdiction of causes may be obtained by defendants in
counties other than those in which the statute requires them to be brought, in
other ways than by express consent or by failure to claim the personal privilege
accorded by law. A suit upon a monied demand, brought in the county of a
defendant's residence by a resident of another county, may be met with a
counter demand against the plaintiff, and a recovery may be had upon the
counter demand, though if suit had been originally commenced upon it, the
county of the plaintiff's residence would have had exclusive jurisdiction. And so
with other cases that might be supposed. A plaintiff calling a defendant into court
for the purpose of obtaining relief against him invites him to set up all defenses
which may defeat the cause of action sued on, or any other appropriate and
germane to the subject matter of the suit, which should be settled between the
parties before a proper adjudication of the merits of the cause can be obtained.
He grants him the privilege of setting up all such counterclaims and cross actions
as he holds against the plaintiff which may legally be pleaded in such a suit.

This is particularly the case in our State, where a multiplicity of suit is abhorred,
and a leading object is to settle all disputes between the parties pertinent to the
cause of action in the same suit. The question of the original right to bring the
cross action in the county where the suit is pending can not be raised; otherwise
this design would, in a large number of cases, be defeated, and the various
matters which could well be settled in the cause might have to seek a number of
different counties, and be asserted in a number of different suits, before the
controversy between the parties could be settled. The plaintiff must be
considered as waiving any privilege to plead to the jurisdiction in such cross
actions, and as consenting that the defendant may assert in the suit any
demands which he could plead were it commenced in the county where such
demands were properly usable. The question then is, La Vega have set up the
matters pleaded in his answer in reconvention had the land sought to be
partitioned been situated in Galveston County? This question must be
determined by the solution of another, viz, can a defendant to a partition suit who
claims through the title under which the partition is sought set up a superior title
to the whole land? "It is doubtless true that, in a partition suit, a court of equity will
not entertain any controversy as to the legal title, whether it arises between the
 part owners as to their respective interests, or by reason of a claim set up by one
or more of them to the entire land by title superior to the one under which the
partition is asked to be decreed. In our State, where there is no distinction
between law and equity in the determination of causes, an action to settle
disputed titles, whether legal or equitable, may be combined with one to partition
the land between the plaintiff and defendant. Hence there can be no objection to
determining any questions as to title between the coowners in a partition suit in
our State, and the strict rules of chancery do not prevail.

In the case of Kipp vs. Cook (46 Minn., 535), the court made use of the following
language:

1. The appellant contends that the district court for the county of Sibley, and of
the eighth judicial district, was without jurisdiction, and could not properly
determine the rights or interests of either litigant to lands located in Sherburne
County, which is in the seventh judicial district; but this question was passed
upon many years since, in the case of Gill vs. Bradley (21 Minn., 15), wherein it
was held that, although the proper place for the trial of an action to recover real
property, or for the determination, in any form, of a right or interest therein, was,
by virtue of an existing statute — now found as Gen. St. 1878, c. 66, par. 47 — in
the county wherein the lands were situated, the district court of the county
designated in the complaint had jurisdiction over the subject matter, and had
power to before the time for answering expired, in accordance with the express
provisions of another section — now section 51 — of the same chapter, and the
place of trial had actually been changed by order of the court or by consent of
parties.

In the case of the west Point Iron Co. vs. Reymert (45 N.Y., 703), the court said:

The action was tried in the county of Dutches, and by the court without a jury,
without objection on the part of the defendants. If the trial should have been in
Putnam, and by a jury, it was for the defendants to assert their rights at the trial;
and by not them claiming them, they waived them, and must be regarded as
having assented to the place and mode of trial.

We transcribe the following from decisions of the supreme court of Spain:

Considering, further, that Pedrosa, instead of immediately objecting to the

jurisdiction of the court and asking for a change of venue, sued for recovery of
title, thereby submitting himself to the jurisdiction of the court of first instance,
which reserved its decision thereon until plaintiff had presented the petition in
due form. (Judgment of May 30, 1860, 5 Civ. Jur., 465.)

Considering that although other proceedings were had in the first court (Salvador
de Granada) and in the courts of first instance of Sagrario and Guerra of said city
subsequent to the death of the count, the truth of the matter is that his daughter,
 the countess, the only party now claiming relief, not only had the proceedings
taken in the first of said courts dismissed but asked the court of first instance of
Castilla de la Nueva to accept, and the court accepted, her express submission
to its jurisdiction:

Considering that far from objecting, as she might have objected, to the
jurisdiction of the court, the countess acknowledged such jurisdiction as did the
other coheirs when thru asked the court to proceed with the testamentary
proceedings, thus creating a jurisdictional situation perfectly in harmony with the
respective claims of the parties and so binding upon them that they are now
absolutely estopped from denying its importance or legal force. (Judgment of
May 30, 1860, 5 Civ. Jur., 465.)

He who by his own acts submits himself to the jurisdiction of a court shall not
thereafter be permitted to question such jurisdiction. (Judgment of December 30,
1893, 29 Civ. Jur., 64.)

According to article 305 (of the Ley de Enjuiciamiento Civil) the plaintiff shall be
presumed to have tacitly submitted himself to the jurisdiction of the court by the
mere act of filing his complaint therein, and in the case of the defendant where
the latter after appearing in the action takes any step therein other than to object
to such jurisdiction. (Judgment of September 21, 1878, 40 Civ. Jur., 232.)

Plaintiff and defendant are presumed to have submitted themselves to the

jurisdiction of the court, the former by the mere act of filing his complaint therein
and the latter by his answering the same and taking any step other than
demurring to such jurisdiction as provided in articles 56 to 58 of the Ley de
Enjuiciamiento Civil. (Judgment of July 27, 1883, 52 Civ. Jur., 511.)

In order that a tacit submission based upon the mere act filing the complaint may
be valid the court must be one of ordinary jurisdiction as provided in article 4 of
the Ley de Ebjuiciamiento Civil. (Judgment of August 27, 1864, 10 Civ. Jur., 14.)

The following language is taken from The Earl of Halsbury's Laws of England (vol. 1, p.
50):

The old distinction between 'local' and 'transitory' actions, though of far less
importance than it was before the passing of the judicature acts, must still be
borne in mind in connection with actions relating to land situate outside the local
jurisdiction of our courts. 'Transitory' actions were those in which the facts in
issue between the parties had no necessary connection with a particular locality,
e.g., contract, etc.; whilst "local" actions were those in which there was such a
connection, e.g., disputes as to the title to, or trespasses to, land.

One importance of this distinction lay in the fact that in the case of local actions
the plaintiff was bound to lay the venue truly, i.e., in the county (originally in the
 actual hundred) in which the land in question lay. In the case, however of a
transitory action, he might lay it wherever he pleased, subject to the power of the
court to alter it in a proper case. Local venues have now been abolished, and,
therefore, so far as actions relating to land in England are concerned, the
distinction may be disregarded.

It is, however, important from another point of view, viz, that of jurisdiction as
distinct from procedure. In the case of real actions relating to land in the colonies
or foreign countries the English relating courts had, even before the judicature
acts, no jurisdiction; and, therefore, the removal by those acts of a difficulty of
procedure — viz, the rule as to local venue — which might have stood in the
way, if they had and wished to exercise jurisdiction, did not in any way confer
jurisdiction in such cases. The lack of jurisdiction still exists, and our courts
refuse to adjudicate upon claims of title to foreign land in proceedings founded on
an alleged invasion of the proprietary rights attached thereto, and to award
damages founded on that adjudication; in other words, an action for trespass to,
or for recovery of, foreign land can not be maintained in England, at any rate if
the defendant chooses to put in issue the ownership of such land.

There is no decision of the Supreme Court of the Philippine Islands in conflict with the
principles laid down in this opinion. In the case of Serrano vs. Chanco (5 Phil. Rep.,
431), the matter before the court was the jurisdiction of the Court of First Instance over
the actions and proceedings relating to the settlement of the estates of deceased
persons. The determination of that question required the consideration of section 602 of
the code of Civil Procedure rather than section 377 of that code. The argument of the
court touching the last-named section, is inapplicable to the case at bar and would not
affect it if it were. The reference to the jurisdiction of the court made in that argument
based on section 377 was unnecessary to a decision of the case.

The case of Molina vs. De la Riva (6 Phil. Rep., 12), presented simply the question
whether or not an agreement between parties to submit themselves to the jurisdiction of
a particular court to the exclusion of the court provided by law as the appropriate court
in the premises could be enforced. As we have before intimated, it touched no question
involved in the litigation at bar.

In the case of Molina vs. De la Riva (7 Phil. Rep., 302), the action was one to foreclose
a mortgage upon a real and personal property. In discussing the matter before it the
court said:

The demurrer was also based upon the ground that this was an action to
foreclose a mortgage and by the provisions of sections 254 and 377 of the Code
of Civil Procedure it should have been brought in the Province of Albay where the
property was situated. The action is clearly an action to foreclose a mortgage,
lien, or incumbrance upon property, but it will be noticed that section 254 relates
only to mortgages on real estate. This contract covered both real and personal
property, and while, perhaps, an action could not be maintained in the Court of
 First Instance of Manila for the foreclosure of the alleged mortgage upon the real
estate situated in Albay, yet so far as the personal property was concerned, we
know of no law which would deprive that court of jurisdiction.

As will readily be observed, the court in the remarks above quoted was not discussing
or deciding the question whether or not an action could be maintained in the Court of
First Instance of the city of Manila to foreclose a mortgage on real estate located in
Albay; but, rather, whether or not an action could be maintained in the Court of First
Instance of the city of Manila to foreclose a mortgate on personal property located in the
Province of Albay. The remark of the court that perhaps the former action could not be
maintained was not intended to be decisive and was not thought at the time to be an
indication of what the decision of the court might be if that precise case were presented
to it with full argument and citation of authorities.

The case of Castano vs. Lobingier (9 Phil. Rep., 310), involved the jurisdiction of the
Court of First Instance to issue a writ of prohibition against a justice of the peace holding
his court outside the province in which the Court of First Instance was sitting at the time
of issuing the writ. The determination of the question presented different considerations
and different provisions of law from those which rule the decision of the case at bar.

We, therefore, hold that the terms of section 377 providing that actions affecting real
property shall be brought in the province where the land involved in the suit, or some
part thereof, is located, do not affect the jurisdiction of Courts of First Instance over the
land itself but relate simply to the personal rights of parties as to the place of trial.

We come, now, to a consideration of the special laws relating to the condemnation of

land by railroad companies upon which also plaintiff relies. Of those laws only one is of
importance in the decision of this case. That is Act No. 1258. In it are found these
provisions:

SECTION 1. In addition to the method of procedure authorized for the exercise of

the power of eminent domain by sections two hundred and forty-one to two
hundred and fifty-three, inclusive, of Act Numbered One hundred and ninety,
entitled "An Act providing a Code of Procedure in civil actions and special
proceedings in the Philippine Islands," the procedure in this Act provided may be
adopted whenever a railroad corporation seeks to appropriate land for the
construction, extension, or operation of its railroad line.

xxx xxx xxx

SEC. 3. Whenever a railroad corporation is authorized by its charter, or by

general law, to exercise the power of eminent domain in the city of Manila or in
any province, and has not obtained by agreement with the owners thereof the
lands necessary for its purposes as authorized by law, it may in its complaint,
which in each case shall be instituted in the Court of First Instance of the city of
Manila if the land is situated in the city of Manila, or in the Court of First Instance
 of the province where the lands is situated, join as defendants all persons owing
or claiming to own, or occupying, any of the lands sought to be condemned, or
any interest therein, within the city or province, respectively, showing, so far as
practicable, the interest of each defendant and stating with certainty the right of
condemnation, and describing the property sought to be condemned. Process
requiring the defendants to appear in answer to the complaint shall be served
upon all occupants of the lands sought to be condemned, and upon the owners
and all persons claiming interest therein, so far as known. If the title to ant lands
sought to be condemned appears to be in the Insular Government, although the
lands are occupied by private individuals, or if it is uncertain whether the title is in
the Insular Government or in private individuals, or if the title is otherwise so
obscure or doubtful that the company can not with accuracy or certainty specify
who are the real owners, averment may be made by the company in its complaint
to that effect. Process shall be served upon resident and no residents in the
same manner as provided therefor in Act Numbered One hundred and ninety,
and the rights of minors and persons of unsound mind shall be safeguarded in
the manner in such cases provided in said Act. The court may order additional
and special notice in any case where such additional or special notice is, in its
opinion, required.

SEC. 4. Commissioners appointed in pursuance of such complaint, in

accordance with section two hundred and forty-three of Act Numbered One
hundred ad ninety, shall have jurisdiction over all the lands included in the
complaint, situated within the city of Manila or within the province, as the case
may be, and shall be governed in the performance of their duties by the
provisions of sections two hundred and forty-four and two hundred and forty-five,
and the action of the court upon the report of the commissioners shall be
governed by section two hundred and forty-six of Act Numbered One hundred
and ninety.

The provisions of the Code of Civil Procedure referred to in these sections are, so far as
material here, the following:

SEC. 241. How the right of eminent domain may be exercised. — The
Government of the Philippine Islands, or of any province or department thereof,
or of any municipality, and any person, or public or private corporation having by
law the right to condemn private property for public use, shall exercise that right
in the manner hereinafter prescribed.

SEC. 242. The complaint. — The complaint in condemnation proceedings shall

state with certainty the right of condemnation, and describe the property sought
to be condemned, showing the interest of each defendant separately.

SEC. 243. Appointment of Commissioners. — If the defendant concede that the

right of condemnation exists on the part of the plaintiff, or if, upon trial, the court
finds that such right exists, the court shall appoint three judicious and
 disinterested landowners of the province in which the land to be condemned, or
some portion of the same, is situated, to be commissioners to hear the parties
and view the premises, and assess damages to be paid for the condemnation,
and to report their proceedings in full to the court, and shall issue a commission
under the seal of the court to the commissioners authorizing the performance of
the duties herein prescribed.

We are of the opinion that what we have said in the discussion of the effect of section
377 relative to the jurisdiction of Courts of First Instance over lands is applicable
generally to the sections of law just quoted. The provisions regarding the place and
method of trial are procedural. They touched not the authority of the court over the land
but, rather, the powers which it may exercise over the parties. They relate not to the
jurisdictional power of the court over the subject matter but to the place where that
jurisdiction is to be exercised. In other words, the jurisdiction is assured, whatever the
place of its exercise. The jurisdiction is the thing; the place of exercise its incident.

These special laws contain nothing which in any way indicates an intention of the
legislature to alter the nature or extent of the jurisdiction of Courts of First Instance
granted by Act No. 136. As we said in discussing the provisions of section 277 of the
Code of Civil Procedure, we can not hold that jurisdiction to be limited unless by
express provision or clear intendment.

We have thus far drawn an analogy between section 377 of the code of Civil Procedure
and section 3 of Act No. 1258, asserting that neither the one nor the other was intended
to restrict, much less deprive, the Courts of First Instance of the jurisdiction over lands
in the Philippine Islands conferred upon them by Act No. 136. We have extended that
analogy to include the proposition that the question of venue as presented in the Acts
mentioned does not relate to jurisdiction of the court over the subject matter, it simply
granting to the defendant certain rights and privileges as against the plaintiff relative to
the place of trial, which rights and privileges he might waive expressly or by implication.
We do not, however, extend that analogy further. On reading and comparing section
377 of the Code of Civil Procedure with section 3 of Act No. 1258. both of which are
hearing set forth, a difference is at once apparent in the wording of the provisions
relating to the place of trial. Section 277 stipulates that all actions affecting real estate
"shall be brought in the province where the land, or some part thereof, is situated."
Section 3 of Act No. 1258 provides that in an action brought by a railroad corporation to
condemn land for its uses the plaintiff "may in its complaint, which in each case shall be
instituted . . . in the Court of First Instance of the province where the land is situated,
join as defendants all persons owning, etc . . . land within the city or province . . ."
Section 1 of that Act, as we have already seen, says that: "In addition to the method of
procedure authorized for the exercise of the power of eminent domain by sections two
hundred and forty-one to two hundred and fifty-three" of the Code of Civil Procedure,
"the procedure in this Act may be adopted whenever a railroad corporation seeks to
appropriate land . . . ."
From these provisions we note, first, that the procedure expressly made applicable to
actions for the condemnation of land by railroad corporations is not that contained in
section 377 but that found in sections 241 to 253 of the Code of Civil Procedure.
Section 377 is nowhere expressly mentioned in Act No. 1258 nor is it anywhere touched
or referred to by implication. The procedure embodied in that Act to consummate the
purposes of its creation is complete of itself, rendered so either by provisions contained
in the Act itself, rendered so either by provisions contained in the Act itself or by
reference to specific sections of the Code of Civil Procedure which by such reference
are made a part thereof.

In the second place, we observe that, so far as venue is concerned, Act No. 1258 and
section 377 are quite different in their wording. While the latter provides that the actions
of which it treats shall be commenced in the province where the land, or some part
thereof, lies, Act No. 1258, section 3, stipulates that the actions embraced in its terms
shall be brought only in the province where the land lies. This does not mean, of course,
that if a single parcel of land under the same ownership, lying party in one province and
partly in another, is the subject of condemnation proceedings begun by a railroad
corporation, a separate action must be commenced in each province. Nor does it mean
that the aid of section 377 is required to obviate such necessity. The situation would be
met and solved by the general principles of law and application of which to every
situation is an inherent or implied power of every court. Such, for example, are the
prohibition against multiplicity of actions, the rules against division of actions into parts,
and the general principle that jurisdiction over a subject matter singly owned will not be
divided among different courts, the one in which the action is first brought having
exclusive jurisdiction of the whole. The provisions of these two laws, section 377 and
Act No. 1258, differ in the manner indicated because they refer to subjects requiring
inherently different treatment, so different, in fact, as to be in some respects quite
opposite. While it is true that section 377 speaks of action for the condemnation of real
estate, nevertheless it was intended to cover simply the ordinary action affecting title to
or interest in real estate, where the land involved is comparatively speaking, compact
together. Its provisions were not intended to meet a situation presented by an action to
condemn lands extending contiguously from one end of the country to the other. Act No.
1258 is a special law, enacted for a particular purpose, and to meet a particular
exigency. The conditions found in an action for the condemnation of real estate by a
railroad company might and generally would be so different that the application of the
provisions of section 377 permitting the venue to be laid in any province where any part
of the land lies would work a very great hardship to many defendants in such an action.
To hold that a railroad company desiring to build a line from Ilocos Norte to Batangas,
through substantially the whole of the Island of Luzon, might lay the venue in Batangas,
it being a province in which a part of the land described in the complaint was located,
would be to require all the parties defendant in Ilocos Norte and intervening provinces,
with their witnesses, to go to Batangas, with all the inconvenience and expense which
the journey would entail, and submit the valuation of their lands into only to the Court of
First Instance of Batangas but to a commission appointed in that province. The hardship
to such defendants under such a holding is so manifest that we are of the opinion that it
was not intended that section 377 of the code of Civil Procedure should apply to actions
for condemnation. Under the provisions of that section, the defendant has no right to
ask for a change of venue if the land involved in the litigation, or any part thereof, is
located in the province where the court sits before which the action has been
commenced. When, therefore, an action such as is detailed above is begun by a
railroad company in Batangas against persons whose lands lie in Ilocos Norte, there
being also involved lands lying in Batangas, such defendants would have no right under
section 377, if it were applicable, to demand that the trial as to their lands take place in
the Province of Ilocos Norte. We do not believe that this was intended. We believe,
rather, that under the provisions of the special laws relating to the condemnation of real
estate by railroad companies, the defendants in the various provinces through which the
line runs may compel, if they wish, a separate action to be commenced in each province
in order that they may have a fair and convenient trial not only before the court but also
before commissioner of their province who are not only before commissioners of their
province who are not only conveniently at hand, but who are best able to judge of the
weight of testimony relative to the value of land in that province.

We, therefore, hold that section 377 of the Code of Civil Procedure is not applicable to
actions by railroad corporations to condemn lands; and that, while with the consent of
defendants express or implied the venue may be laid and the action tried in any
province selected by the plaintiff nevertheless the defendants whose lands lie in one
province, or any one of such defendants, may, by timely application to the court, require
the venue as to their, or, if one defendant, his, lands to be changed to the province
where their or his lands lie. In such case the action as to all of the defendants not
objecting would continue in the province where originally begun. It would be severed as
to the objecting defendants and ordered continued before the court of the appropriate
province or provinces. While we are of that opinion and so hold it can not affect the
decision in the case before us for the reason that the defendants are not objecting to the
venue and are not asking for a change thereof. They have not only expressly submitted
themselves to the jurisdiction of the court but are here asking that that jurisdiction be
maintained against the efforts of the plaintiff to remove it.

The principles which we have herein laid down we do not apply to criminal cases. They
seem to rest on a different footing. There the people of the state is a party. The interests
of the public require that, to secure the best results and effects in the punishment of
crime, it is necessary to prosecute and punish the criminal in the very place, as near as
may be, where he committed his crime. As a result it has been the uniform legislation,
both in statutes and in constitutions, that the venue of a criminal action must be laid in
the place where the crime was committed. While the laws here do not specifically and in
terms require it, we believe it is the established custom and the uniform holding that
criminal prosecutions must be brought and conducted, except in cases especially
provided by law, in the province where the crime is committed.

For these reasons the judgment below must be reversed and the cause remanded to
the trial court with direction to proceed with the action according to law. So ordered.

Torres, Johnson, Carson and Trent, JJ., concur.

NATURE
Appeal from a judgment of the CFI Tarlac dismissing the action before it on motion of
the plaintiff upon the ground that the court had no jurisdiction of the subject matter of the
controversy.
FACTS
On Dec 1907, Manila Railroad Co. began an action in CFI Tarlac for the condemnation
of 69,910 sq. m. real estate located in Tarlac. This is for construction of a railroad line
"from Paniqui to Tayug in Tarlac,"
Before beginning the action, Mla Railroad had caused to be made a thorough search in
the Office of the Registry of Property and of the Tax where the lands sought to be
condemned were located and to whom they belonged. As a result of such
investigations, it alleged that the lands in question were located in Tarlac.
After filing and duly serving the complaint, the plaintiff, pending final determination of the
action, took possession of and occupied the lands described in the complaint, building
its line and putting the same in operation.
On Oct 4, Mla Railroad gave notice to the defendants that on Oct. 9, a motion would be
made to the court to dismiss the action upon the ground that the court had no
jurisdiction of the subject matter, it having just been ascertained by the plaintiff that the
land sought to be condemned was situated in the Province of Nueva Ecija, instead of
the Province of Tarlac, as alleged in the complaint. This motion was heard and, after
due consideration, the trial court dismissed the action upon the ground presented by the
plaintiff.
ISSUES/RULING
WON CFI Tarlac has power and authority to take cognizance of condemnation of real
estate located in another province
YES, Sections 55 and 56[1] of Act No. 136 of the Philippine Commission confer perfect
and complete jurisdiction upon the CFI of these Islands with respect to real estate.
Such jurisdiction is not made to depend upon locality. There is no suggestion of
limitation. The jurisdiction is universal. It is nowhere provided, that a CFI of one
province, regularly sitting in said province, may not under certain conditions take
cognizance of an action arising in another province or of an action relating to real estate
located outside of the boundaries of the province to which it may at the time be
assigned.
Procedure does not alter or change that power or authority; it simply directs the manner
in which it shall be fully and justly exercised. To be sure, in certain cases, if that power
is not exercised in conformity with the provisions of the procedural law, purely, the court
attempting to exercise it loses the power to exercise it legally. This does not mean that it
loses jurisdiction of the subject matter. It means simply that he may thereby lose
jurisdiction of the person or that the judgment may thereby be rendered defective for
lack of something essential to sustain it.
As to the subject matter, nothing can change the jurisdiction of the court over diminish it
or dictate when it shall attach or when it shall be removed. That is a matter of legislative
enactment which none but the legislature may change. On the other hand, the
jurisdiction of the court over the person is, in some instances, made to defend on the
consent or objection, on the acts or omissions of the parties or any of them. Jurisdiction
over the person, however, may be conferred by consent, expressly or impliedly given, or
it may, by an objection, be prevented from attaching or removed after it has attached.
WON Sec. 377[2] of the Code of Civil Procedure and Act. No. 1258[3] are applicable
and so the CFI has no jurisdiction

NO, the terms of section 377 providing that actions affecting real property shall
be brought in the province where the land involved in the suit, or some part
thereof, is located, do not affect the jurisdiction of CFI over the land itself but
relate simply to the personal rights of parties as to the place of trial.
That it had jurisdiction of the persons of all the parties is indisputable. That jurisdiction
was obtained not only by the usual course of practice - that is, by the process of the
court - but also by consent expressly given, is apparent. The plaintiff submitted itself to
the jurisdiction by beginning the action. The defendants are now in this court asking that
the action be not dismissed but continued. They are not only nor objecting to the
jurisdiction of the court but, rather, are here on this appeal for the purpose of
maintaining that very jurisdiction over them. Nor is the plaintiff in any position to asked
for favors. It is clearly guilty of gross negligence in the allegations of its complaint, if the
land does not lie in Tarlac as it now asserts.
DISTINGUISHED FROM VENUE
The question of venue does not relate to jurisdiction of the court over the subject
matter, it simply granting to the defendant certain rights and privileges as against
the plaintiff relative to the place of trial, which rights and privileges he might
waive expressly or by implication.
Venue becomes merely a matter of method, of convenience to the parties litigant. If
their interests are best subserved by bringing in the Court Instance of the city of Manila
an action affecting lands in the Province of Ilocos Norte, there is no controlling reason
why such a course should not be followed. The matter is, under the law, entirely within
the control of either party. The plaintiff's interests select the venue. If such selection is
not in accordance with section 377, the defendant may make timely objection and, as a
result, the venue is changed to meet the requirements of the law.
Section 377 of the Code of Civil Procedure is not applicable to actions by railroad
corporations to condemn lands; and that, while with the consent of defendants express
or implied the venue may be laid and the action tried in any province selected by the
plaintiff nevertheless the defendants whose lands lie in one province, or any one of such
defendants, may, by timely application to the court, require the venue as to their, or, if
one defendant, his, lands to be changed to the province where their or his lands lie. In
such case the action as to all of the defendants not objecting would continue in the
province where originally begun. It would be severed as to the objecting defendants and
ordered continued before the court of the appropriate province or provinces. While we
are of that opinion and so hold it can not affect the decision in the case before us for the
reason that the defendants are not objecting to the venue and are not asking for a
change thereof. They have not only expressly submitted themselves to the jurisdiction
of the court but are here asking that that jurisdiction be maintained against the efforts of
the plaintiff to remove it.
CASE 3

FIRST DIVISION

[G.R. No. 136368. January 16, 2002]

JAIME TAN, JR., as Judicial Administrator of the Intestate Estate of Jaime C. Tan, petitioner,
vs. HON. COURT OF APPEALS (Ninth Special Div.) and JOSE A. MAGDANGAL and
ESTRELLA MAGDANGAL, respondents.

DECISION

PUNO, J.:

This is a petition for review of the Decision of the Court of Appeals dated July 15, 1998i[1]and its
Resolution dated November 9, 1998ii[2]denying petitioners motion for reconsideration in CA-
G.R. SP-41738.

The facts are as stated in the impugned Decision, viz:

Involved in this case is a parcel of land, designated as Lot No. 645-C, with an area of 34,829
square meters, more or less, situated in Bunawan, Davao City. The lot was once covered by TCT
No. T-72067 of the Registry of Deeds of Davao City in the name of the late Jaime C. Tan (Tan,
for short) married to Praxedes V. Tan.

From the petition, the motion to dismiss petition, their respective annexes and other pleadings,
we gather the following factual antecedents:

On January 22, 1981, Tan, for a consideration of P59,200.00, executed a deed of absolute sale
over the property in question in favor of spouses Jose Magdangal and Estrella Magdangal.
Simultaneous with the execution of this deed, the same contracting parties entered into another
agreement whereunder Tan was given one (1) year within which to redeem or repurchase the
property.

Albeit given several opportunities and/or extensions to exercise the option, Tan failed to redeem
the property until his death on January 4, 1988.

On May 2, 1988, Tans heirs filed before the Regional Trial Court at Davao City a suit against the
Magdangals for reformation of instrument. Docketed as CIVIL CASE NO. 19049-88, the
complaint alleged that, while Tan and the Magdangals denominated their agreement as deed of
absolute sale, their real intention was to conclude an equitable mortgage.

Barely hours after the complaint was stamped received, the Magdangals were able to have Tans
title over the lot in question canceled and to secure in their names TCT No. T-134470. This
development prompted the heirs of Tan, who were to be later substituted by Jaime V. Tan, Jr.
(Tan, Jr.) as plaintiff, to file a supplemental complaint.
The intervening legal tussles are not essential to this narration. What is material is that on June 4,
1991, Branch 11 of the Regional Trial Court of Davao City rendered judgment finding for Tan,
Jr., as plaintiff therein. The dispositive portion of the decision reads:.

WHEREFORE, judgment is rendered:

1. The Deed of Absolute Sale (Exhibits B, B-1) is, in accordance with the true intention of
the parties, hereby declared and reformed an equitable mortgage;

2. The plaintiff is ordered to pay the defendants within 120 days after the finality of this
decision P59,200 plus interest at the rate of 12% per annum from May 2, 1988, the date the
complaint was filed, until paid;

3. In order to avoid multiplicity of suits and to fully give effect to the true intention of the
parties, upon the payment of the aforesaid amount, TCT No. T-134470 in the name of defendants
Jose Magdangal and Estrella Magdangal (Exh. 13) and shall be deemed canceled and null and
void and TCT No. T-72067 in the name of Jaime C. Tan and Praxedes Valles Tan (Exh. A) be
reinstated.

No pronouncement as to costs.

SO ORDERED. (Annex B, Petition; Emphasis added).

From the above, the Magdangals appealed to this Court in CA-G.R. CV No. 33657.

In a decision promulgated on September 28, 1995, this Court, thru its then Special Third
Division, affirmed in toto the appealed decision of the lower court. Copy of this affirmatory
judgment was each received by the Magdangals and Tan, Jr. on October 5, 1995.

On March 13, 1996, the Clerk of this Court entered in the Book of Entries of Judgment the
Decision in CA-G.R. CV No. 33657 and issued the corresponding Entry of Judgment which, on
its face, stated that the said Decision has on October 21, 1995 become final and executory
(Annex L, Petition; Emphasis added).

On March 21, 1996, the Magdangals filed in the lower court a MOTION FOR
CONSOLIDATION AND WRIT OF POSSESSION, therein alleging that they did not appeal
from the aforesaid decision of this Court, adding [T]hat the appealed judgment of the Court of
Appeals has become final and executory 15 days from October 5, 1995 or up to October 20,
1995, which the 120 days redemption period commences. And noting that the redemption period
has expired without Tan, Jr. exercising his option, the Magdangals thus prayed that the title in
the name of Jaime C. Tan and Praxedes Tan be consolidated and confirmed in the name of the
(Magdangals) x x x and pending such issuance, a writ of possession be ordered issued (Annex C,
Petition).

In opposition to this motion (Annex F, Petition), Tan, Jr. alleged, among other things, that until
an entry of judgment has been issued by the Court of Appeals and copy thereof furnished the
parties, the appealed decision of the court a quo in this case cannot be considered final and
executory. Pressing the point, Tan, Jr., citing Cueto vs. Collantes, infra., would then assert that
the period of redemption on his part commenced to run from receipt of entry of judgment in CA-
G.R. CV No. 33657.

Meanwhile, Tan, Jr. via a motion for execution dated March 27, 1996, which he filed directly
with this court, prayed this court to direct the court a quo to issue the corresponding writ of
execution in Civil Case No. 19049-88. In a related move, Tan, Jr. filed on April 16, 1996, a
MANIFESTATION AND MOTION therein advising the court a quo of his intention to redeem
the property in question and of the fact that, on such date, he has deposited with its clerk of court
the repurchase price, plus interest, as required by its original decision. By way of relief, Tan, Jr.
prayed that the Magdangals be ordered to claim the amount thus deposited and the Register of
Deeds of Davao City, to reinstate the title of Jaime Tan and Praxedes Tan.

Jointly acting on the aforementioned MOTION FOR CONSOLIDATION AND WRIT OF

POSSESSION of the Magdangals (Annex C, Petition), MANIFESTATION AND MOTION of
Tan, Jr. (Annex I, Petition), the court a quo presided by the respondent judge, came out with the
first challenged order of June 10, 1996 (Annex N, Petition), dispositively reading, as follows:

WHEREFORE, x x x the Motion for Consolidation and a Writ of Possession is hereby DENIED
for lack of merit.

The deposit of the amount of P116,032.00 made by plaintiff with the Office of the Clerk of Court
x x x on April 17, 1996 is hereby considered full payment of the redemption price and the Clerk
of Court is hereby ordered to deliver said amount to herein defendants.

The Register of Deeds of Davao City x x x is hereby directed to cancel TCT No. T-134470 in the
name of Jose Magdangal and Estrella Magdangal and, thereafter, to reinstate TCT No. 72067 in
the name of Jaime C. Tan and Praxedes Valles Tan and to submit her compliance thereto within
ten (10) days from receipt of this Order.

SO ORDERED.

Explaining her action, the respondent judge wrote in the same order:

Following the ruling of the Supreme Court in Cueto vs. Collantes, et al., 97 Phil. 325, the 120
days period for plaintiff to pay the amount of P59,200.00 plus interest x x x should be reckoned
from the date of Entry of Judgment x x x which was March 13, 1996. The plaintiff made a
deposit on April 17, 1996 well within the 120-day period mandated by the decision of this Court.

In due time, the Magdangals moved for a reconsideration. However, in her next assailed order of
July 24, 1996 (Annex R, Petition), the respondent judge denied the motion for being pro-forma
and fatally defective.iii[3]

Petitioner assails the aforequoted Decision as follows:

I. Petitioners right to due process was violated when the Court of Appeals rendered a
judgment on the merits of private respondents petition without granting to petitioner the
opportunity to controvert the same.

II. Appeal not certiorari was the appropriate remedy of private respondents as there was no
grave abuse of discretion as to amount to lack of or excess of jurisdiction on the part of the trial
judge. Neither is delay in resolving the main case a ground for giving due course to the petition.

III. Cueto vs. Collantes, 97 Phil. 325, was disregarded by the Court of Appeals in resolving
the petition of private respondents. It is still good case law and was in effect made a part of
section 2 of Rule 68 of the 1997 Rules of Civil Procedure on Foreclosure of Mortgage.

IV. The St. Dominic vs. Intermediate Appellate Court, 138 SCRA 242 case is not applicable
to the case at bar; on the other hand the ruling in Gutierrez Hermanos vs. de La Riva, 46 Phil.
827, applies.

V. Equity considerations justify giving due course to this petition.iv[4](emphasis ours)

We will immediately resolve the key issue of what rule should govern the finality of judgment
favorably obtained in the trial court by the petitioner.

The operative facts show that in its Decision of June 4, 1991, the trial court held that: (1) the
contract between the parties is not an absolute sale but an equitable mortgage; and (2) petitioner
Tan should pay to the respondents Magdangal within 120 days after the finality of this decision
P59,200.00 plus interest at the rate of 12% per annum from May 2, 1988, the date the complaint
was filed, until paid.v[5]

On September 28, 1995 in CA-G.R. CV No. 33657, the Special Third Division of the Court of
Appeals affirmed the decision of the trial court in toto. Both parties received the decision of the
appellate court on October 5, 1995. On March 13, 1996, the clerk of court of the appellate court
entered in the Book of Entries of Judgement the decision in CA-G.R. CV No. 33657 and issued
the corresponding Entry of Judgment which, on its face, stated that the said decision has on
October 21, 1995 become final and executory.vi[6]

The respondents Magdangal filed in the trial court a Motion for Consolidation and Writ of
Possession.vii[7]They alleged that the 120-day period of redemption of the petitioner has expired.
They reckoned that the said period began 15 days after October 5, 1995, the date when the
finality of the judgment of the trial court as affirmed by the appellate court commenced to run.

On the other hand, petitioner filed on March 27, 1996 a motion for execution in the appellate
court praying that it direct the court a quo to issue the corresponding writ of execution in Civil
Case No. 19049-88.viii[8]On April 17, 1996, petitioner deposited with the clerk of court the
repurchase price of the lot plus interest as ordered by the decision.

On June 10, 1996, the trial court allowed the petitioner to redeem the lot in question. It ruled that
the 120-day redemption period should be reckoned from the date of Entry of Judgment in the
appellate court or from March 13, 1996.ix[9]The redemption price was deposited on April 17,
1996. As aforestated, the Court of Appeals set aside the ruling of the trial court.

From 1991-1996, the years relevant to the case at bar, the rule that governs finality of judgment
is Rule 51 of the Revised Rules of Court. Its sections 10 and 11 provide:

SEC. 10. Entry of judgments and final resolutions. If no appeal or motion for new trial or
reconsideration is filed within the time provided in these Rules, the judgment or final resolution
shall forthwith be entered by the clerk in the book of entries of judgments. The date when the
judgment or final resolution becomes executory shall be deemed as the date of its entry. The
record shall contain the dispositive part of the judgment or final resolution and shall be signed by
the clerk, with a certificate that such judgment or final resolution has become final and
executory. (2a, R36)

SEC. 11. Execution of judgment. Except where the judgment or final order or resolution, or a
portion thereof, is ordered to be immediately executory, the motion for its execution may only be
filed in the proper court after its entry.

In original actions in the Court of Appeals, its writ of execution shall be accompanied by a
certified true copy of the entry of judgment or final resolution and addressed to any appropriate
officer for its enforcement.

In appealed cases, where the motion for execution pending appeal is filed in the Court of
Appeals at a time that it is in possession of the original record or the record on appeal, the
resolution granting such motion shall be transmitted to the lower court from which the case
originated, together with a certified true copy of the judgment or final order to be executed, with
a directive for such court of origin to issue the proper writ for its enforcement.

This rule has been interpreted by this Court in Cueto vs. Collantes as follows:x[10]

The only error assigned by appellants refer to the finding of the lower court that plaintiff can still
exercise his right of redemption notwithstanding the expiration of the 90-day period fixed in the
original decision and, therefore, defendants should execute the deed of reconveyance required in
said decision. Appellants contend that, the final judgment of the Court of Appeals having been
entered on July 8, 1953, the 90-day period for the exercise of the right of redemption has long
expired, it appearing that plaintiff deposited the redemption money with the clerk of court only
on October 17, 1953, or, after the expiration of 101 days. Appellee brands this computation as
erroneous, or one not in accordance with the procedure prescribed by the rules of court.

Appellees contention should be sustained. The original decision provides that appellee may
exercise his right of redemption within the period of 90 days from the date the judgment has
become final. It should be noted that appellee had appealed from this decision. This decision was
affirmed by the court of appeals and final judgment was entered on July 8, 1953. Does this mean
that the judgment became final on that date?
Let us make a little digression for purposes of clarification. Once a decision is rendered by the
Court of Appeals a party may appeal therefrom by certiorari by filing with the Supreme Court a
petition within 10 days from the date of entry of such decision (Section 1, Rule 46). The entry of
judgment is made after it has become final, i.e., upon the expiration of 15 days after notice
thereof to the parties (Section 8, Rule 53, as modified by a resolution of the Supreme Court dated
October 1, 1945). But, as Chief Justice Moran has said, such finality *** is subject to the
aggrieved partys right of filing a petition for certiorari under this section, which means that the
Court of Appeals shall remand the case to the lower court for the execution of its judgment, only
after the expiration of ten (10) days from the date of such judgment, if no petition for certiorari is
filed within that period. (1 Moran, Comments on the Rules of Court, 1952 ed., p. 950) It would
therefore appear that the date of entry of judgment of the Court of Appeals is suspended when
a petition for review is filed to await the final entry of the resolution or decision of the Supreme
Court.

Since in the present case appellee has filed a petition for review within the reglementary period,
which was dismissed by resolution of July 6, 1953, and for lack of a motion for reconsideration
the entry of final judgment was made on August 7, 1953, it follows that the 90-day period
within which appellee may exercise his right of redemption should be counted from said date,
August 7, 1953. And appellee having exercised such right on October 17, 1953 by depositing the
redemption money with the clerk of court, it is likewise clear that the motion be filed for the
exercise of such right is well taken and is within the purview of the decision of the lower
court.xi[11]

On April 18, 1994, this Court issued Circular No. 24-94, viz:

TO: COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX APPEALS,

REGIONAL TRIAL COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL
COURTS, MUNICIPAL CIRCUIT TRIAL COURTS, AND ALL MEMBERS OF THE
INTEGRATED BAR OF THE PHILIPPINES

SUBJECT: RESOLUTION OF THE COURT EN BANC APPROVING AND

PROMULGATING THE REVISED PROVISION ON EXECUTION OF JUDGMENTS,
SPECIFICALLY IN APPEALED CASES, AND AMENDING SECTION 1, RULE 39 OF THE
RULES OF COURT

It appears that in a number of instances, the execution of judgments in appealed cases cannot be
promptly enforced because of undue administrative delay in the remand of the records to the
court of origin, aggravated at times by misplacement or misdelivery of said records. The
Supreme Court Committee on the Revision of the Rules of Court has drafted proposals including
a provision which can remedy the procedural impasse created by said contingencies.

Accordingly, pending approval by the Court of the revised rules on Civil Procedure, and to
provide a solution to the aforestated problems, the Court Resolved to approve and promulgate
the following section thereof on execution of judgments, amending Section 1, Rule 39 of the
Rules of Court:
Section 1. Execution upon judgments or final orders. Execution shall issue as a matter of right,
on motion, upon a judgment or order that disposes of the action or proceeding upon expiration of
the period to appeal therefrom if no appeal has been duly perfected.

If the appeal has been duly perfected and finally resolved, such execution may forthwith be
applied for in the lower court from which the action originated, on motion of the judgment
obligee, submitting therewith certified true copies of the judgment or judgments or the final
order or orders sought to be enforced and of the entry thereof, with notice to the adverse party.

The appellate court may, on motion in the same case, when the interest of justice so requires,
direct the court of origin to issue the writ of execution.

This resolution shall be published in two (2) newspapers of general circulation and shall take
effect on June 1, 1994.

April 18, 1994.

(Sgd.) ANDRES R. NARVASA

Chief Justice

The Circular took effect on June 1, 1994.

The 1997 Revised Rules of Civil Procedure, however, amended the rule on finality of judgment
by providing in section 1, Rule 39 as follows:

Section 1. Execution upon judgments or final orders. Execution shall issue as a matter of right,
on motion, upon a judgment or order that disposes of the action or proceeding upon the
expiration of the period to appeal therefrom if no appeal has been duly perfected. (1a)

If the appeal has been duly perfected and finally resolved, the execution may forthwith be
applied for in the court of origin, on motion of the judgment obligee, submitting therewith
certified true copies of the judgment or judgments or final order or orders sought to be enforced
and of the entry thereof, with notice to the adverse party.

The appellate court may, on motion in the same case, when the interest of justice so requires,
direct the court of origin to issue the writ of execution.

The rationale of the new rule is explained by retired Justice F.D. Regalado as follows:xii[12]

1. The term final order is used in two senses depending on whether it is used on the issue of
appealability or on the issue of binding effect. For purposes of appeal, an order is final if it
disposes of the action, as distinguished from an interlocutory order which leaves something to be
done in the trial court with respect to the merits of the case (De la Cruz, et al. vs. Paras, et al., L-
41053, Feb. 27, 1976). For purposes of binding effect or whether it can be subject of execution,
an order is final or executory after the lapse of the reglementary period to appeal and no appeal
has been perfected (see Perez, et al. vs. Zulueta, L-10374, Sept. 30, 1959; cf. Denso [Phil.], Inc.
vs. IAC, et al., G.R. No. 75000, Feb. 27, 1987; Montilla vs. CA, et al., L-47968, May 9, 1988).

2. On the aspect of appealability, these revised Rules use the adjective final with respect to
orders and resolutions, since to terminate a case the trial courts issue orders while the appellate
courts and most of the quasi-judicial agencies issue resolutions. Judgments are not so qualified
since the use of the so-called interlocutory judgments is not favored in this jurisdiction, while the
categorization of an order or a resolution for purposes of denoting that it is appealable is to
distinguish them from interlocutory orders or resolutions. However, by force of extended usage
the phrase final and executory judgment is sometimes used and tolerated, although the use of
executory alone would suffice. These observations also apply to the several and separate
judgments contemplated in Rule 36, or partial judgments which totally dispose of a particular
claim or severable part of the case, subject to the power of the court to suspend or defer action on
an appeal from or further proceedings in such special judgment, or as provided by Rule 35 on the
matter of partial summary judgments which are not considered as appealable (see Sec. 4, Rule 35
and the explanation therein).

The second paragraph of this section is an innovation in response to complaints over the delay
caused by the former procedure in obtaining a writ of execution of a judgment, which has
already been affirmed on appeal, with notice to the parties. As things then stood, after the entry
of judgment in the appellate court, the prevailing party had to wait for the records of the case to
be remanded to the court of origin when and where he could then move for the issuance of a writ
of execution. The intervening time could sometimes be substantial, especially if the court a quo
is in a remote province, and could also be availed of by the losing party to delay or thwart actual
execution.

On these considerations, the Supreme Court issued Circular No. 24-94, dated April 18, 1994,
approving and promulgating in advance this amended Section 1 of Rule 39 and declaring the
same effective as of June 1, 1994.

Under the present procedure, the prevailing party can secure certified true copies of the judgment
or final order of the appellate court and the entry thereof, and submit the same to the court of
origin with and to justify his motion for a writ of execution, without waiting for its receipt of the
records from the appellate court. That motion must be with notice to the adverse party, with a
hearing when the circumstances so require, to enable him to file any objection thereto or bring to
the attention of said court matters which may have transpired during the pendency of the appeal
and which may have a bearing on the execution sought to enforce the judgment.

The third paragraph of this section, likewise a new provision, is due to the experience of the
appellate courts wherein the trial court, for reasons of its own or other unjustifiable
circumstances, unduly delays or unreasonably refuses to act on the motion for execution or issue
the writ therefor. On motion in the same case while the records are still with the appellate court,
or even after the same have been remanded to the lower court, the appellate court can direct the
issuance of the writ of execution since such act is merely in the enforcement of its judgment and
which it has the power to require.
It is evident that if we apply the old rule on finality of judgment, petitioner redeemed the subject
property within the 120-day period of redemption reckoned from the appellate courts entry of
judgment. The appellate court, however, did not apply the old rule but the 1997 Revised Rules of
Civil Procedure. In fine, it applied the new rule retroactively and we hold that given the facts of
the case at bar this is an error.

There is no dispute that rules of procedure can be given retroactive effect. This general rule,
however, has well-delineated exceptions. We quote author Agpalo:xiii[13]

9.17. Procedural laws.

Procedural laws are adjective laws which prescribe rules and forms of procedure of enforcing
rights or obtaining redress for their invasion; they refer to rules of procedure by which courts
applying laws of all kinds can properly administer justice. They include rules of pleadings,
practice and evidence. As applied to criminal law, they provide or regulate the steps by which
one who commits a crime is to be punished.

The general rule that statutes are prospective and not retroactive does not ordinarily apply to
procedural laws. It has been held that a retroactive law, in a legal sense, is one which takes away
or impairs vested rights acquired under laws, or creates a new obligation and imposes a new
duty, or attaches a new disability, in respect of transactions or considerations already past.
Hence, remedial statutes or statutes relating to remedies or modes of procedure, which do not
create new or take away vested rights, but only operate in furtherance of the remedy or
confirmation of rights already existing, do not come within the legal conception of a retroactive
law, or the general rule against the retroactive operation of statutes. The general rule against
giving statutes retroactive operation whose effect is to impair the obligations of contract or to
disturb vested rights does not prevent the application of statutes to proceedings pending at the
time of their enactment where they neither create new nor take away vested rights. A new statute
which deals with procedure only is presumptively applicable to all actions those which have
accrued or are pending.

Statutes regulating the procedure of the courts will be construed as applicable to actions pending
and undetermined at the time of their passage. Procedural laws are retroactive in that sense and
to that extent. The fact that procedural statutes may somehow affect the litigants rights may not
preclude their retroactive application to pending actions. The retroactive application of
procedural laws is not violative of any right of a person who may feel that he is adversely
affected. Nor is the retroactive application of procedural statutes constitutionally objectionable.
The reason is that as a general rule no vested right may attach to, nor arise from, procedural laws.
It has been held that a person has no vested right in any particular remedy, and a litigant cannot
insist on the application to the trial of his case, whether civil or criminal, of any other than the
existing rules of procedure.

Thus, the provision of Batas Bilang 129 in Section 39 thereof prescribing that no record on
appeal shall be required to take an appeal is procedural in nature and should therefore be applied
retroactively to pending actions. Hence, the question as to whether an appeal from an adverse
judgment should be dismissed for failure of appellant to file a record on appeal within thirty days
as required under the old rules, which question is pending resolution at the time Batas Bilang 129
took effect, became academic upon the effectivity of said law because the law no longer requires
the filing of a record on appeal and its retroactive application removed the legal obstacle to
giving due course to the appeal. A statute which transfers the jurisdiction to try certain cases
from a court to a quasi-judicial tribunal is a remedial statute that is applicable to claims that
accrued before its enactment but formulated and filed after it took effect, for it does not create
new nor take away vested rights. The court that has jurisdiction over a claim at the time it
accrued cannot validly try the claim where at the time the claim is formulated and filed the
jurisdiction to try it has been transferred by law to a quasi-judicial tribunal, for even actions
pending in one court may be validly taken away and transferred to another and no litigant can
acquire a vested right to be heard by one particular court.

9.18. Exceptions to the rule.

The rule that procedural laws are applicable to pending actions or proceedings admits certain
exceptions. The rule does not apply where the statute itself expressly or by necessary implication
provides that pending actions are excepted from its operation, or where to apply it to pending
proceedings would impair vested rights. Under appropriate circumstances, courts may deny the
retroactive application of procedural laws in the event that to do so would not be feasible or
would work injustice. Nor may procedural laws be applied retroactively to pending actions if to
do so would involve intricate problems of due process or impair the independence of the courts.

We hold that section 1, Rule 39 of the 1997 Revised Rules of Procedure should not be given
retroactive effect in this case as it would result in great injustice to the petitioner. Undoubtedly,
petitioner has the right to redeem the subject lot and this right is a substantive right. Petitioner
followed the procedural rule then existing as well as the decisions of this Court governing the
reckoning date of the period of redemption when he redeemed the subject lot. Unfortunately for
petitioner, the rule was changed by the 1997 Revised Rules of Procedure which if applied
retroactively would result in his losing the right to redeem the subject lot. It is difficult to
reconcile the retroactive application of this procedural rule with the rule of fairness. Petitioner
cannot be penalized with the loss of the subject lot when he faithfully followed the laws and the
rule on the period of redemption when he made the redemption. The subject lot may only be
34,829 square meters but as petitioner claims, it is the only property left behind by their father, a
private law practitioner who was felled by an assassins bullet.xiv[14]

Petitioner fought to recover this lot from 1988. To lose it because of a change of procedure on
the date of reckoning of the period of redemption is inequitous. The manner of exercising the
right cannot be changed and the change applied retroactively if to do so will defeat the right of
redemption of the petitioner which is already vested.

IN VIEW WHEREOF, the decision of the Court of Appeals dated July 15, 1998 and its
Resolution dated November 9, 1998 in CA-G.R. SP-41738 are annulled and set aside. The
Orders dated June 10, 1996 and July 24, 1996 of the RTC of Davao City, 11th Judicial Region,
Branch 11, in Civil Case No. 19049-88 are reinstated. No costs.

SO ORDERED.
G.R. No. 136368 January 16, 2002

JAIME TAN, JR., as Judicial Administrator of the Intestate Estate of Jaime C. Tan,
petitioner,
vs.
HON. COURT OF APPEALS (Ninth Special Div.) and JOSE A. MAGDANGAL and
ESTRELLA MAGDANGAL, respondents.

PUNO, J.:

This is a petition for review of the Decision of the Court of Appeals dated July 15, 19981 and its
Resolution dated November 9, 19982 denying petitioner's motion for reconsideration in CA-G.R.
SP-41738.

The facts are as stated in the impugned Decision, viz:

"Involved in this case is a parcel of land, designated as Lot No. 645-C, with an area of
34,829 square meters, more or less, situated in Bunawan, Davao City. The lot was once
covered by TCT No. T-72067 of the Registry of Deeds of Davao City in the name of the
late Jaime C. Tan (Tan, for short) married to Praxedes V. Tan.

From the petition, the motion to dismiss petition, their respective annexes and other
pleadings, we gather the following factual antecedents:

On January 22, 1981, Tan, for a consideration of P59,200.00, executed a deed of absolute
sale over the property in question in favor of spouses Jose Magdangal and Estrella
Magdangal. Simultaneous with the execution of this deed, the same contracting parties
entered into another agreement whereunder Tan given one (1) year within which to
redeem or repurchase the property.

Albeit given several opportunities and/or extensions to exercise the option, Tan failed to
redeem the property until his death on January 4, 1988.

On May 2, 1988, Tan's heirs filed before the Regional Trial Court at Davao City a suit
against the Magdangals for reformation of instrument. Docketed as CIVIL CASE NO.
19049-88, the complaint alleged that, while Tan and the Magdangals denominated their
agreement as deed of absolute sale, their real intention was to conclude an equitable
mortgage.

Barely hours after the complaint was stamped 'received,' the Magdangals were able to
have Tan's title over the lot in question canceled and to secure in their names TCT No. T-
134470. This development prompted the heirs of Tan, who were to be later substituted by
Jaime V. Tan, Jr. (Tan, Jr.) as plaintiff, to file a supplemental complaint.
The intervening legal tussles are not essential to this narration. What is material is that on
June 4, 1991, Branch 11 of the Regional Trial Court of Davao City rendered judgment
finding for Tan, Jr., as plaintiff therein. The dispositive portion of the decision reads:.

'WHEREFORE, judgment is rendered:

1. The Deed of Absolute Sale (Exhibits B, B-1) is, in accordance with the true
intention of the parties, hereby declared and reformed an equitable mortgage;

2. The plaintiff is ordered to pay the defendants within 120 days after the
finality of this decision P59,200 plus interest at the rate of 12% per annum from
May 2, 1988, the date the complaint was filed, until paid;

3. In order to avoid multiplicity of suits and to fully give effect to the true
intention of the parties, upon the payment of the aforesaid amount, TCT No. T-
134470 in the name of defendants Jose Magdangal and Estrella Magdangal (Exh.
13) and shall be deemed canceled and null and void and TCT No. T-72067 in the
name of Jaime C. Tan and Praxedes Valles Tan (Exh. A) be reinstated).

No pronouncement as to costs.

SO ORDERED. (Annex 'B', Petition; Emphasis added).'

From the above, the Magdangals appealed to this Court in CA-G.R. CV No. 33657.

In a decision promulgated on September 28, 1995, this Court, thru its then Special Third
Division, affirmed in toto the appealed decision of the lower court. Copy of this
affirmatory judgment was each received by the Magdangals and Tan, Jr. on October 5,
1995.

On March 13, 1996, the Clerk of this Court entered in the Book of Entries of Judgment
the Decision in CA-G.R. CV No. 33657 and issued the corresponding Entry of Judgment
which, on its face, stated that the said Decision 'has on October 21, 1995 become final
and executory' (Annex 'L', Petition; Emphasis added).

On March 21, 1996, the Magdangals filed in the lower court a MOTION FOR
CONSOLIDATION AND WRIT OF POSSESSION, therein alleging that they did not
appeal from the aforesaid decision of this Court, adding '[T]hat the appealed judgment of
the Court of Appeals has become final and executory 15 days from October 5, 1995 or up
to October 20, 1995, which the 120 days redemption period commences. And noting that
the redemption period has expired without Tan, Jr. exercising his option, the Magdangals
thus prayed that the title 'in the name of Jaime C. Tan and Praxedes Tan be consolidated
and confirmed in the name of the (Magdangals) x x x and pending such issuance, a writ
of possession be ordered issued (Annex "C", Petition).1âwphi1.nêt
In opposition to this motion (Annex 'F', Petition), Tan, Jr. alleged, among other things,
that until an entry of judgment has been issued by the Court of Appeals and copy thereof
furnished the parties, the appealed decision of the court a quo in this case cannot be
considered final and executory. Pressing the point, Tan, Jr., citing Cueto vs. Collantes,
infra., would then assert that the period of redemption on his part commenced to run from
receipt of entry of judgment in CA-G.R. CV No. 33657.

Meanwhile, Tan, Jr. via a motion for execution dated March 27, 1996, which he filed
directly with this court, prayed this court to direct the court a quo to issue the
corresponding writ of execution in Civil Case No. 19049-88. In a related move, Tan, Jr.
filed on April 16, 1996, a MANIFESTATION AND MOTION therein advising the court
a quo of his intention to redeem the property in question and of the fact that, on such date,
he has deposited with its clerk of court the repurchase price, plus interest, as required by
its original decision. By way of relief, Tan, Jr. prayed that the Magdangals be ordered to
claim the amount thus deposited and the Register of Deeds of Davao City, to reinstate the
title of Jaime Tan and Praxedes Tan.

Jointly acting on the aforementioned MOTON FOR CONSOLIDATION AND WRIT OF

POSSESION of the Magdangals (Annex 'C', Petition), MANIFESTATION AND
MOTION of Tan, Jr. (Annex 'I', Petition), the court a quo presided by the respondent
judge, came out with the first challenged order of June 10, 1996 (Annex 'N', Petition)
dispositively reading, as follows:

'WHEREFORE, x x x the Motion for Consolidation and a Writ of Possession is

hereby DENIED for lack of merit.

The deposit of the amount of P116,032.00 made by plaintiff with the Office of
Court x x x on April 17, 1996 is hereby considered full payment of the
redemption price and the Clerk of Court is hereby ordered to deliver said amount
to herein defendants.

The Register of Deeds of Davao City x x x is hereby directed to cancel TCT No.
T-134470 in the name of Jose Magdangal and Estrella Magdangal and, thereafter,
to reinstate TCT No. 72067 in the name of Jaime C. Tan and Praxedes Valles Tan
and to submit her compliance thereto within ten (10) days from receipt of this
Order.

SO ORDERED.'

Explaining her action, the respondent judge wrote in the same order:

'Following the ruling of the Supreme Court in Cueto vs. Collantes, et al., 97 Phil.
325, the 120 days period for plaintiff to pay the amount of P59,200.00 plus
interest x x x should be reckoned from the date of Entry of Judgment x x x which
was March 13, 1996. The plaintiff made a deposit on April 17, 1996 well within
the 120-day period mandated by the decision of this Court.'
 In due time, the Magdangals moved for a reconsideration. However, in her next assailed
order of July 24, 1996 (Annex 'R', Petition), the respondent judge denied the motion for
being proforma and fatally defective."3

Petitioner assails the aforequoted Decision as follows:

"I. Petitioner's right to due process was violated when the Court of Appeals rendered a
judgment on the merits of private respondents' petition without granting to petitioner the
opportunity to controvert the same.

II. Appeal not certiorari was the appropriate remedy of private respondents as there was
no grave abuse of discretion as to amount to lack of or excess of jurisdiction on the part
of the trial judge. Neither is delay in resolving the main case a ground for giving due
course to the petition.

III. Cueto vs. Collantes, 97 Phil. 325, was disregarded by the Court of Appeals in
resolving the petition of private respondents. It is still good case law and was in effect
made a part of section 2 of Rule 68 of the 1997 Rules of Civil Procedure on Foreclosure
of Mortgage.

IV. The St. Dominic vs. Intermediate Appellate Court, 138 SCRA 242 case is not
applicable to the case at bar; on the other hand the ruling in Gutierrez Hermanos vs. de
La Riva, 46 Phil. 827, applies.

V. Equity considerations justify giving due course to this petition."4 (emphasis ours)

We will immediately resolve the key issue of what rule should govern the finality of judgment
favorably obtained in the trial court by the petitioner.

The operative facts show that in its Decision of June 4, 1991, the trial court held that: (1) the
contract between the parties is not an absolute sale but an equitable mortgage; and (2) petitioner
Tan should pay to the respondents Magdangal "within 120 days after the finality of this decision
P59,200.00 plus interest at the rate of 12% per annum from May 2, 1988, the date the complaint
was filed, until paid."5

On September 28, 1995 in CA-G.R. CV No. 33657, the Special Third Division of the Court of
Appeals affirmed the decision of the trial court in toto. Both parties received the decision of the
appellate court on October 5, 1995. On March 13, 1996, the clerk of court of the appellate court
entered in the Book of Entries of Judgement the decision in CA-G.R. CV No. 33657 and issued
the corresponding Entry of Judgment which, on its face, stated that the said decision "has on
October 21, 1995 become final and executory."6

The respondents Magdangal filed in the trial court a Motion for Consolidation and Writ of
Possession.7 They alleged that the 120-day period of redemption of the petitioner has expired.
They reckoned that the said period began 15 days after October 5, 1995, the date when the
finality of the judgment of the trial court as affirmed by the appellate court commenced to run.
On the other hand, petitioner filed on March 27, 1996 a motion for execution in the appellate
court praying that it "direct the court a quo to issue the corresponding writ of execution in Civil
Case No. 19049-88."8 On April 17, 1996, petitioner deposited with the clerk of court the
repurchase price of the lot plus interest as ordered by the decision.

On June 10, 1996, the trial court allowed the petitioner to redeem the lot in question. It ruled that
the 120-day redemption period should be reckoned from the date of Entry of Judgment in the
appellate court or from March 13, 1996.9 The redemption price was deposited on April 17, 1996.
As aforestated, the Court of Appeals set aside the ruling of the trial court.

From 1991-1996, the years relevant to the case at bar, the rule that governs finality of judgment
is Rule 51 of the Revised Rules of Court. Its sections 10 and 11 provide:

"SEC. 10. Entry of judgments and final resolutions. - If no appeal or motion for new trial
or reconsideration is filed within the time provided in these Rules, the judgment or final
resolution shall forthwith be entered by the clerk in the book of entries of judgments. The
date when the judgment or final resolution becomes executory shall be deemed as the
date of its entry. The record shall contain the dispositive part of the judgment or final
resolution and shall be signed by the clerk, with a certificate that such judgment or final
resolution has become final and executory. (2a, R36)

SEC. 11. Execution of judgment. - Except where the judgment or final order or resolution,
or a portion thereof, is ordered to be immediately executory, the motion for its execution
may only be filed in the proper court after its entry.

In original actions in the Court of Appeals, its writ of execution shall be accompanied by
a certified true copy of the entry of judgment or final resolution and addressed to any
appropriate officer for its enforcement.

In appealed cases, where the motion for execution pending appeal is filed in the Court of
Appeals at a time that it is in possession of the original record or the record on appeal, the
resolution granting such motion shall be transmitted to the lower court from which the
case originated, together with a certified true copy of the judgment or final order to be
executed, with a directive for such court of origin to issue the proper writ for its
enforcement."

This rule has been interpreted by this Court in Cueto vs. Collantes as follows:10

"The only error assigned by appellants refer to the finding of the lower court that plaintiff
can still exercise his right of redemption notwithstanding the expiration of the 90-day
period fixed in the original decision and, therefore, defendants should execute the deed of
reconveyance required in said decision. Appellants contend that, the final judgment of the
Court of Appeals having been entered on July 8, 1953, the 90-day period for the exercise
of the right of redemption has long expired, it appearing that plaintiff deposited the
redemption money with the clerk of court only on October 17, 1953, or, after the
 expiration of 101 days. Appellee brands this computation as erroneous, or one not in
accordance with the procedure prescribed by the rules of court.

Appellee's contention should be sustained. The original decision provides that appellee
may exercise his right of redemption within the period of 90 days from the date the
judgment has become final. It should be noted that appellee had appealed from this
decision. This decision was affirmed by the court of appeals and final judgment was
entered on July 8, 1953. Does this mean that the judgment became final on that date?

Let us make a little digression for purposes of clarification. Once a decision is rendered
by the Court of Appeals a party may appeal therefrom by certiorari by filing with the
Supreme Court a petition within 10 days from the date of entry of such decision (Section
1, Rule 46). The entry of judgment is made after it has become final, i.e., upon the
expiration of 15 days after notice thereof to the parties (Section 8, Rule 53, as modified
by a resolution of the Supreme Court dated October 1, 1945). But, as Chief Justice Moran
has said, 'such finality *** is subject to the aggrieved party's right of filing a petition for
certiorari under this section,' which means that 'the Court of Appeals shall remand the
case to the lower court for the execution of its judgment, only after the expiration of ten
(10) days from the date of such judgment, if no petition for certiorari is filed within that
period.' (1 Moran, Comments on the Rules of Court, 1952 ed., p. 950) It would therefore
appear that the date of entry of judgment of the Court of Appeals is suspended when a
petition for review is filed to await the final entry of the resolution or decision of the
Supreme Court.

Since in the present case appellee has filed a petition for review within the reglementary
period, which was dismissed by resolution of July 6, 1953, and for lack of a motion for
reconsideration the entry of final judgment was made on August 7, 1953, it follows that
the 90-day period within which appellee may exercise his right of redemption should be
counted from said date, August 7, 1953. And appellee having exercised such right on
October 17, 1953 by depositing the redemption money with the clerk of court, it is
likewise clear that the motion be filed for the exercise of such right is well taken and is
within the purview of the decision of the lower court."11

On April 18, 1994, this Court issued Circular No. 24-94, viz:

"TO: COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX

APPEALS, REGIONAL TRIAL COURTS, METROPOLITAN TRIAL
COURTS, MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT TRIAL
COURTS, AND ALL MEMBERS OF THE INTEGRATED BAR OF THE
PHILIPPINES

SUBJECT: RESOLUTION OF THE COURT EN BANC APPROVING AND

PROMULGATING THE REVISED PROVISION ON EXECUTION OF
JUDGMENTS. SPECIFICALLY IN APPEALED CASES, AND AMENDING
SECTION 1, RULE 39 OF THE RULES OF COURT
 It appears that in a number of instances, the execution of judgments in appealed cases
cannot be promptly enforced because of undue administrative delay in the remand of the
records to the court of origin, aggravated at times by misplacement or misdelivery of said
records. The Supreme Court Committee on the Revision of the Rules of Court has drafted
proposals including a provision which can remedy the procedural impasse created by said
contingencies.

Accordingly, pending approval by the Court of the revised rules on Civil Procedure, and
to provide a solution to the aforestated problems, the Court Resolved to approve and
promulgate the following section thereof on execution of judgments, amending Section 1,
Rule 39 of the Rules of Court:

Section 1. Execution upon judgments or final orders. - Execution shall issue as a matter
of right, on motion, upon a judgment or order that disposes of the action or proceeding
upon expiration of the period to appeal therefrom if no appeal has been duly perfected.

If the appeal has been duly perfected and finally resolved, such execution may forthwith
be applied for in the lower court from which the action originated, on motion of the
judgment obligee, submitting therewith certified true copies of the judgment or
judgments or the final order or orders sought to be enforced and of the entry thereof, with
notice to the adverse party.

The appellate court may, on motion in the same case, when the interest of justice so
requires, direct the court of origin to issue the writ of execution.

This resolution shall be published in two (2) newspapers of general circulation and shall
take effect on June 1, 1994.

April 18, 1994.

"(Sgd.) ANDRES R. NARVASA

Chief Justice"

The Circular took effect on June 1, 1994.

The 1997 Revised Rules of Civil Procedure, however, amended the rule on finality of judgment
by providing in section 1, Rule 39 as follows:

"Section 1. Execution upon judgments or final orders. - Execution shall issue as a matter
of right, on motion, upon a judgment or order that disposes of the action or proceeding
upon the expiration of the period to appeal therefrom if no appeal has been duly
perfected. (1a)

If the appeal has been duly perfected and finally resolved, the execution may forthwith be
applied for in the court of origin, on motion of the judgment obligee, submitting
 therewith certified true copies of the judgment or judgments or final order or orders
sought to be enforced and of the entry thereof, with notice to the adverse party.

The appellate court may, on motion in the same case, when the interest of justice so
requires, direct the court of origin to issue the writ of execution."

The rationale of the new rule is explained by retired Justice F.D. Regalado as follows:12

"1. The term 'final order' is used in two senses depending on whether it is used on the
issue of appealability or on the issue of binding effect. For purposes of appeal, an order is
"final" if it disposes of the action, as distinguished from an interlocutory order which
leaves something to be done in the trial court with respect to the merits of the case (De la
Cruz, et al. vs. Paras, et al., L-41053, Feb. 27, 1976). For purposes of binding effect or
whether it can be subject of execution, an order is 'final' or executory after the lapse of
the reglementary period to appeal and no appeal has been perfected (see Perez, et al. vs.
Zulueta, L-10374, Sept. 30, 1959; cf. Denso [Phil.], Inc. vs. IAC, et al., G.R. No. 75000,
Feb. 27, 1987; Montilla vs. CA, et al., L-47968, May 9, 1988).

2. On the aspect of appealability, these revised Rules use the adjective 'final' with respect
to orders and resolutions, since to terminate a case the trial courts issue orders while the
appellate courts and most of the quasi-judicial agencies issue resolutions. Judgment are
not so qualified since the use of the so-called interlocutory judgments is not favored in
this jurisdiction, while the categorization of an order or a resolution for purposes of
denoting that it is appealable is to distinguish them from interlocutory orders or
resolutions. However, by force of extended usage the phrase 'final and executory
judgment' is sometimes used and tolerated, although the use of 'executory' alone would
suffice. These observations also apply to the several and separate judgments
contemplated in Rule 36, or partial judgments which totally dispose of a particular claim
or severable part of the case, subject to the power of the court to suspend or defer action
on an appeal from or further proceedings in such special judgment, or as provided by
Rule 35 on the matter of partial summary judgments which are not considered as
appealable (see Sec. 4, Rule 35 and the explanation therein).

The second paragraph of this section is an innovation in response to complaints over the
delay caused by the former procedure in obtaining a writ of execution of a judgment,
which has already been affirmed on appeal, with notice to the parties. As things then
stood, after the entry of judgment in the appellate court, the prevailing party had to wait
for the records of the case to be remanded to the court of origin when and where he could
then move for the issuance of a writ of execution. The intervening time could sometimes
be substantial, especially if the court a quo is in a remote province, and could also be
availed of by the losing party to delay or thwart actual execution.

On these considerations, the Supreme Court issued Circular No. 24-94, dated April 18,
1994, approving and promulgating in advance this amended Section 1 of Rule 39 and
declaring the same effective as of June 1, 1994.
 Under the present procedure, the prevailing party can secure certified true copies of the
judgment or final order of the appellate court and the entry thereof, and submit the same
to the court of origin with and to justify his motion for a writ of execution, without
waiting for its receipt of the records from the appellate court. That motion must be with
notice to the adverse party, with a hearing when the circumstances so require, to enable
him to file any objection thereto or bring to the attention of said court matters which may
have transpired during the pendency of the appeal and which may have a bearing on the
execution sought to enforce the judgment.

The third paragraph of this section, likewise a new provision, is due to the experience of
the appellate courts wherein the trial court, for reasons of its own or other unjustifiable
circumstances, unduly delays or unreasonably refuses to act on the motion for execution
or issue the writ therefor. On motion in the same case while the records are still with the
appellate court, or even after the same have been remanded to the lower court, the
appellate court can direct the issuance of the writ of execution since such act is merely in
the enforcement of its judgment and which it has the power to require."

It is evident that if we apply the old rule on finality of judgment, petitioner redeemed the subject
property within the 120-day period of redemption reckoned from the appellate court's entry of
judgment. The appellate court, however, did not apply the old rule but the 1997 Revised Rules of
Civil Procedure. In fine, it applied the new rule retroactively and we hold that given the facts of
the case at bar this is an error.

There is no dispute that rules of procedure can be given retroactive effect. This general rule,
however, has well-delineated exceptions. We quote author Agpalo:13

"9.17. Procedural laws.

Procedural laws are adjective laws which prescribe rules and forms of procedure of
enforcing rights or obtaining redress for their invasion; they refer to rules of procedure by
which courts applying laws of all kinds can properly administer justice. They include
rules of pleadings, practice and evidence. As applied to criminal law, they provide or
regulate the steps by which one who commits a crime is to be punished.

The general rule that statutes are prospective and not retroactive does not ordinarily apply
to procedural laws. It has been held that "a retroactive law, in a legal sense, is one which
takes away or impairs vested rights acquired under laws, or creates a new obligation and
imposes a new duty, or attaches a new disability, in respect of transactions or
considerations already past. Hence, remedial statutes or statutes relating to remedies or
modes of procedure, which do not create new or take away vested rights, but only operate
in furtherance of the remedy or confirmation of rights already existing, do not come
within the legal conception of a retroactive law, or the general rule against the retroactive
operation of statutes." The general rule against giving statutes retroactive operation
whose effect is to impair the obligations of contract or to disturb vested rights does not
prevent the application of statutes to proceedings pending at the time of their enactment
where they neither create new nor take away vested rights. A new statute which deals
 with procedure only is presumptively applicable to all actions - those which have accrued
or are pending.

Statutes regulating the procedure of the courts will be construed as applicable to actions
pending and undetermined at the time of their passage. Procedural laws are retroactive in
that sense and to that extent. The fact that procedural statutes may somehow affect the
litigants' rights may not preclude their retroactive application to pending actions. The
retroactive application of procedural laws is not violative of any right of a person who
may feel that he is adversely affected. Nor is the retroactive application of procedural
statutes constitutionally objectionable. The reason is that as a general rule no vested right
may attach to, nor arise from, procedural laws. It has been held that "a person has no
vested right in any particular remedy, and a litigant cannot insist on the application to the
trial of his case, whether civil or criminal, of any other than the existing rules of
procedure."

Thus, the provision of Batas Bilang 129 in Section 39 thereof prescribing that "no record
on appeal shall be required to take an appeal" is procedural in nature and should therefore
be applied retroactively to pending actions. Hence, the question as to whether an appeal
from an adverse judgment should be dismissed for failure of appellant to file a record on
appeal within thirty days as required under the old rules, which question is pending
resolution at the time Batas Bilang 129 took effect, became academic upon the effectivity
of said law because the law no longer requires the filing of a record on appeal and its
retroactive application removed the legal obstacle to giving due course to the appeal. A
statute which transfers the jurisdiction to try certain cases from a court to a quasi-judicial
tribunal is a remedial statute that is applicable to claims that accrued before its enactment
but formulated and filed after it took effect, for it does not create new nor take away
vested rights. The court that has jurisdiction over a claim at the time it accrued cannot
validly try the claim where at the time the claim is formulated and filed the jurisdiction to
try it has been transferred by law to a quasi-judicial tribunal, for even actions pending in
one court may be validly taken away and transferred to another and no litigant can
acquire a vested right to be heard by one particular court.

9.18. Exceptions to the rule.

The rule that procedural laws are applicable to pending actions or proceedings admits
certain exceptions. The rule does not apply where the statute itself expressly or by
necessary implication provides that pending actions are excepted from its operation, or
where to apply it to pending proceedings would impair vested rights. Under appropriate
circumstances, courts may deny the retroactive application of procedural laws in the
event that to do so would not be feasible or would work injustice. Nor may procedural
laws be applied retroactively to pending actions if to do so would involve intricate
problems of due process or impair the independence of the courts."

We hold that section 1, Rule 39 of the 1997 Revised Rules of Procedure should not be given
retroactive effect in this case as it would result in great injustice to the petitioner. Undoubtedly,
petitioner has the right to redeem the subject lot and this right is a substantive right. Petitioner
followed the procedural rule then existing as well as the decisions of this Court governing the
reckoning date of the period of redemption when he redeemed the subject lot. Unfortunately for
petitioner, the rule was changed by the 1997 Revised Rules of Procedure which if applied
retroactively would result in his losing the right to redeem the subject lot. It is difficult to
reconcile the retroactive application of this procedural rule with the rule of fairness. Petitioner
cannot be penalized with the loss of the subject lot when he faithfully followed the laws and the
rule on the period of redemption when he made the redemption. The subject lot may only be
34,829 square meters but as petitioner claims, "it is the only property left behind by their father,
a private law practitioner who was felled by an assassin's bullet."14

Petitioner fought to recover this lot from 1988. To lose it because of a change of procedure on
the date of reckoning of the period of redemption is inequitous. The manner of exercising the
right cannot be changed and the change applied retroactively if to do so will defeat the right of
redemption of the petitioner which is already vested.

IN VIEW WHEREOF, the decision of the Court of Appeals dated July 15, 1998 and its
Resolution dated November 9, 1998 in CA-G.R. SP-41738 are annulled and set aside. The
Orders dated June 10, 1996 and July 24, 1996 of the RTC of Davao City, 11th Judicial Region,
Branch 11, in Civil Case No. 19049-88 are reinstated. No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 201601 March 12, 2014

MARYLOU CABRERA, Petitioner,

vs.
FELIX NG, Respondent.

DECISION

REYES, J.:

Before this Court is a petition for review on certiorari1 under Rule 45 of the Rules of Court
seeking to annul and set aside the Decision2 dated October 21, 2009 and the Resolution3 dated
March 26, 2012 of the Court of Appeals (CA) in CA-G.R. SP No. 03392. The CA denied the
petition for certiorari filed by Marylou Cabrera (petitioner), which assailed the Order4 dated
December 19, 2007 of the Regional Trial Court (RTC) of Mandaue City, Branch 56, in Civil
Case No. MAN-4773.

The Facts

On February 14, 2004, Felix Ng (respondent) filed a complaint for sum of money with the RTC
against the petitioner and her husband Marionilo Cabrera (spouses Cabrera), alleging that the
latter issued to him the following: (1) Metrobank Check No. 0244694 dated June 30, 2002 for the
amount of Thirty-One Thousand Pesos (₱31,000.00); (2) Metrobank Check No. 0244674 dated
August 9, 2002 for the amount of Thirty-Eight Thousand Seventy-Four Pesos and Seventy-Six
Centavos (₱38,074.76); and (3) Metrobank Check No. 0244745 dated August 15, 2005 for Two
Million Five Hundred Thousand Pesos (₱2,500,000.00). That when presented for payment, the
said checks were all dishonored as the accounts from which they had been drawn were already
closed.

The spouses Cabrera admitted that they issued Metrobank Check No. 0244694 and Metrobank
Check No. 0244674 to the respondent and that the same were dishonored when presented for
payment. However, they claimed that they paid the respondent the amount represented by the
said checks through the latter’s son Richard Ng. Further, they deny having issued Metrobank
Check No. 0244745 to the respondent, alleging that the said check was forcibly taken from them
by Richard Ng.

On August 7, 2007, the RTC rendered a Decision,5 which ordered the spouses Cabrera to pay the
respondent the following: (1) Two Million Five Hundred Sixty-Nine Thousand Seventy-Four
Pesos (₱2,569,074.00) plus legal interest from inception of the obligation until fully paid; (2)
moral damages in the amount of Fifty Thousand Pesos (₱50,000.00); (3) attorney’s fees of
Twenty Thousand Pesos (₱20,000.00); and (4) litigation expenses in the amount of Ten
Thousand Pesos (₱10,000.00).

On August 8, 2007, the spouses Cabrera received a copy of the RTC Decision dated August 7,
2007. On August 14, 2007, the spouses Cabrera filed with the RTC a motion for
reconsideration,6 which they set for hearing on August 17, 2007. On even date, the spouses
Cabrera sent a copy of their motion for reconsideration to the respondent thru registered mail; it
was actually received by the respondent on August 21, 2007.

The said motion for reconsideration, however, was not heard on August 17, 2007 as the new
acting presiding judge of the said court had just assumed office. On August 28, 2007, the RTC
issued a notice,7 which set the said motion for reconsideration for hearing on September 25,
2007.

On September 20, 2007, the respondent filed an opposition8 to the motion for reconsideration
filed by the spouses Cabrera. The respondent alleged that the said motion for reconsideration is a
mere scrap of paper since it violated the three-day notice requirement. The respondent pointed
out that the spouses Cabrera sent to him a copy of their motion for reconsideration, which was
set for hearing on August 17, 2007, via registered mail on August 14, 2007; that he actually
received a copy thereof only on August 21, 2007 – four days after the scheduled hearing thereon.

It appears that the scheduled hearing of the spouses Cabrera’s motion for reconsideration on
September 25, 2007 did not push through. Consequently, on September 26, 2007, the RTC
issued another notice,9 which set the said motion for reconsideration for hearing on October 26,
2007.

On October 26, 2007, the RTC issued an Order,10 which directed the parties to file their
additional pleadings, after which the motion for reconsideration filed by the spouses Cabrera
would be deemed submitted for resolution.

On December 19, 2007, the RTC issued an Order11 which denied the motion for reconsideration
filed by the spouses Cabrera. The RTC pointed out that the spouses Cabrera violated Section 4,
Rule 15 of the Rules of Court, which mandates that every motion required to be heard should be
served by the movant in such a manner as to ensure its receipt by the other party at least three
days before the date of hearing. Thus:

After a meticulous scrutiny of the records of this case, the court opines that the motion was filed
beyond the reglementary three (3)[-]day period.

As the records bear out, the instant motion was mailed to the plaintiff’s counsel on August 14[,
2007] and was set for hearing on August 17, 2007. However, the copy of said motion had
reached plaintiff’s side and a copy of which was received by plaintiff’s counsel only on August
17, 2007[,] four (4) days late after it was supposed to be heard. Hence, a clear blatant violations
[sic] of the rule on notice and hearing.12
 The RTC further opined that a motion, which fails to comply with the three-day notice
requirement is a mere scrap of paper; it is not entitled to judicial cognizance and would not toll
the running of the reglementary period for filing the requisite pleadings. Accordingly, the RTC
held, its Decision dated August 7, 2007 had already become final for failure of the spouses
Cabrera to comply with the three-day notice requirement.

The petitioner then filed a petition for certiorari13 with the CA, alleging that the RTC gravely
abused its discretion in denying her motion for reconsideration. The petitioner pointed out that
the RTC did not actually conduct a hearing on her motion for reconsideration on August 17,
2007;

that her motion for reconsideration was actually heard on October 26, 2007, after the respondent
had already filed his opposition thereto. Thus, the petitioner claimed, the issue of her failure to
comply with the three-day notice requirement had already been rendered moot. In any case, the
petitioner asserted, the RTC should have resolved her motion for reconsideration on its merits
rather than simply denying it on mere technicality.

On October 21, 2009, the CA, by way of the assailed Decision,14 denied the petition for
certiorari filed by the petitioner. The CA opined that the RTC did not abuse its discretion in
denying the motion for reconsideration filed by the spouses Cabrera since it merely applied the
three-day notice requirement under Section 4, Rule 15 of the Rules of Court. Thus:

It appears that petitioner’s Motion for Reconsideration was set for hearing on 17 August 2007. A
copy thereof was mailed to private respondent on 14 August 2007, and private respondent
actually received his copy only on 21 August 2007 or four (4) days after the set date of hearing;
and thus, depriving him of the opportunity to oppose the motion. Respondent court, therefore,
correctly held that such motion violated the three (3)-day notice rule; the essence of due process.
Respondent court had applied said rule to the given situation, and of no doubt, mere adherence to
the rules cannot be considered grave abuse of discretion on the part of the respondent court. x x
x.15 (Citation omitted)

The petitioner sought a reconsideration of the Decision dated October 21, 2009 but it was denied
by the CA in its Resolution16 dated March 26, 2012.

Hence, the instant petition.

The Issue

The sole issue to be resolved by the Court is whether the CA erred in affirming the RTC Order
dated December 19, 2007, which denied the motion for reconsideration filed by the spouses
Cabrera.

The Court’s Ruling

The petition is meritorious.

Sections 4 and 5, Rule 15 of the Rules of Court provide that:

Sec. 4. Hearing of motion. – Except for motions which the court may act upon without
prejudicing the rights of the adverse party, every written motion shall be set for hearing by the
applicant.

Every written motion required to be heard and the notice of the hearing thereof shall be served in
such a manner as to ensure its receipt by the other party at least three (3) days before the date of
hearing, unless the court for good cause sets the hearing on shorter notice.

Sec. 5. Notice of hearing. – The notice of hearing shall be addressed to all parties concerned, and
shall specify the time and date of the hearing which must not be later than ten (10) days after the
filing of the motion. (Emphasis ours)

The general rule is that the three-day notice requirement in motions under Sections 4 and 5 of the
Rules of Court is mandatory. It is an integral component of procedural due process.17 "The
purpose of the three-day notice requirement, which was established not for the benefit of the
movant but rather for the adverse party, is to avoid surprises upon the latter and to grant it
sufficient time to study the motion and to enable it to meet the arguments interposed therein."18

"A motion that does not comply with the requirements of Sections 4 and 5 of Rule 15 of the
Rules of Court is a worthless piece of paper which the clerk of court has no right to receive and
which the court has no authority to act upon."19 "Being a fatal defect, in cases of motions to
reconsider a decision, the running of the period to appeal is not tolled by their filing or
pendency."20

Nevertheless, the three-day notice requirement is not a hard and fast rule. When the adverse
party had been afforded the opportunity to be heard, and has been indeed heard through the
pleadings filed in opposition to the motion, the purpose behind the three-day notice requirement
is deemed realized. In such case, the requirements of procedural due process are substantially
complied with. Thus, in Preysler, Jr. v. Manila Southcoast Development Corporation,21 the
Court ruled that:

The three-day notice rule is not absolute. A liberal construction of the procedural rules is proper
where the lapse in the literal observance of a rule of procedure has not prejudiced the adverse
party and has not deprived the court of its authority. Indeed, Section 6, Rule 1 of the Rules of
Court provides that the Rules should be liberally construed in order to promote their objective of
securing a just, speedy and inexpensive disposition of every action and proceeding. Rules of
procedure are tools designed to facilitate the attainment of justice, and courts must avoid their
strict and rigid application which would result in technicalities that tend to frustrate rather than
promote substantial justice.

In Somera Vda. De Navarro v. Navarro, the Court held that there was substantial compliance of
the rule on notice of motions even if the first notice was irregular because no prejudice was
caused the adverse party since the motion was not considered and resolved until after several
postponements of which the parties were duly notified.
Likewise, in Jehan Shipping Corporation v. National Food Authority, the Court held that despite
the lack of notice of hearing in a Motion for Reconsideration, there was substantial compliance
with the requirements of due process where the adverse party actually had the opportunity to be
heard and had filed pleadings in opposition to the motion. The Court held:

This Court has indeed held time and again, that under Sections 4 and 5 of Rule 15 of the Rules of
Court, mandatory is the requirement in a motion, which is rendered defective by failure to
comply with the requirement. As a rule, a motion without a notice of hearing is considered pro
forma and does not affect the reglementary period for the appeal or the filing of the requisite
pleading.

As an integral component of the procedural due process, the three-day notice required by the
Rules is not intended for the benefit of the movant. Rather, the requirement is for the purpose of
avoiding surprises that may be sprung upon the adverse party, who must be given time to study
and meet the arguments in the motion before a resolution of the court.1âwphi1 Principles of
natural justice demand that the right of a party should not be affected without giving it an
opportunity to be heard.

The test is the presence of opportunity to be heard, as well as to have time to study the motion
and meaningfully oppose or controvert the grounds upon which it is based. x x x22

(Emphasis supplied and citations omitted)

It is undisputed that the hearing on the motion for reconsideration filed by the spouses Cabrera
was reset by the RTC twice with due notice to the parties; it was only on October 26, 2007 that
the motion was actually heard by the RTC. At that time, more than two months had passed since
the respondent r

ASO SEBASTIAN and TOMASA CARDENAS, petitioners, vs. HON. HORACIO R. MORALES,
Secretary of the Department of Agrarian Reform, LEONILA SARENAS1[1], JOSEPHINE
SARENAS-DAYRIT, EVANGELINE SARENAS, ESTRELITA SARENAS TAN, CECILIO
MARCOS SARENAS, MANUEL DEL SARENAS, DAISY RITA SARENAS, and JOY
SARENAS, respondents.

DECISION

QUISUMBING, J.:

On appeal by certiorari is the decision2[2] of the Court of Appeals dated March 9, 1999 in CA-
G.R. SP No. 51288, which dismissed petitioners special civil action for certiorari and prohibition
on the ground that petitioners pursued the wrong mode of appeal. Equally assailed is the
resolution3[3] of the appellate court dated December 10, 1999, which denied petitioners motion
for reconsideration.

The facts, as gleaned from the record, are as follows:

Private respondents Leonila Sarenas, Josephine Sarenas-Dayrit, Evangeline Sarenas, Estrellita

Sarenas Tan, Cecilio Marcos Sarenas, Manuel Gil Sarenas, Daisy Rita Sarenas, and Joy Sarenas
are the heirs of the late Guillermo Sarenas, who died intestate on June 27, 1986. During his
lifetime, Guillermo owned the following agricultural landholdings, all located in Samon and
Mayapyap Sur, Cabanatuan City:

1. Agricultural lot with an area of 1.6947 hectares covered by TCT No. NT-8607 and
tenanted by Juanito Gonzales;

2. Agricultural lot with an area of 3.1663 hectares covered by TCT No. NT-8608, with
petitioner Damaso Sebastian as the tenant; and

3. Agricultural lot with an area of 2.2723 hectares registered under TCT No. NT-8609,
with Perfecto Mana as the tenant.

In addition to the foregoing properties, Guillermo was also the registered owner of a parcel of
agricultural land located at San Ricardo, Talavera, Nueva Ecija, with a total area of 4.9993
hectares, under TCT No. NT-143564. This property was, in turn, tenanted by Manuel Valentin
and Wenceslao Peneyra.

The tenants tilling the farm lots covered by TCT Nos. NT-8607, 8608, and 8609 had already
been issued emancipation patents pursuant to P.D. No. 27.4[4]

On July 14, 1993, private respondents filed an application with the Department of Agrarian
Reform (DAR) Regional Office in San Fernando, Pampanga, docketed as No. A-0303-1219-96,
for retention of over five hectares of the late Guillermos landholdings. Among the lots which
private respondents sought to retain under Section 6 of the Comprehensive Agrarian Reform
Law (R.A. No. 6657)5[5] were those covered by TCT Nos. NT-8608 and 8609.
On June 6, 1997, the DAR Regional Office in San Fernando, Pampanga granted private
respondents application, thus:

WHEREFORE, premises considered, an ORDER is hereby issued:

1. GRANTING the Application for Retention of not more than five (5) hectares of the
Heirs of the late Guillermo Sarenas on their agricultural landholdings covered by
TCT Nos. NT-TCT-8608 and TCT-8609 situated at Samon and Mayapyap Sur,
Cabanatuan City, and which area must be compact and contiguous and least
prejudicial to the entire landholdings and majority of the farmers therein;

2. DIRECTING the Heirs of the late Guillermo Sarenas o[r] their duly authorized
representative to coordinate with the MARO concerned for the segregation of their
retained area at their own expense and to submit a copy of the segregation plan
within thirty (30) days from approval thereof;

3. MAINTAINING the tenants in the retained areas as lessees thereof pursuant to RA

3844 as amended; and

4. ACQUIRING the other agricultural landholdings in excess of the retained area, and
to distribute the same to identified qualified farmer-beneficiaries pursuant to RA
6657.

SO ORDERED.6[6]

On June 16, 1997, petitioner Sebastian moved for reconsideration of the foregoing order before
the DAR Regional Director, Region III, which docketed the case as A.R. Case No. LSD 1083-
97. The DAR Regional Director found that the order dated June 6, 1997 in Docket No. A-0303-
1219-96 was contrary to law for violating Section 6 of RA No. 66577[7] and its Implementing
Rules and Regulations. He then issued a new order dated October 23, 1997, which instead
allowed private respondents to retain a parcel of land with an area of 4.9993 hectares, covered by
TCT No. 143564, located at San Ricardo, Talavera, Nueva Ecija.

Private respondents then appealed the order of October 23, 1997 to the DAR Secretary.
On June 18, 1998, the Secretary of Agrarian Reform set aside the order dated October 23, 1997,
and in lieu thereof issued a new one the decretal portion of which reads:

WHEREFORE, premises considered, the 23 October 1997 Order of RD Herrera is hereby SET
ASIDE and a new one issued:

1. GRANTING the heirs of Guillermo Sarenas the right to retain 2.8032 has. of the
landholding covered by TCT No. 8608 located at Cabanatuan City;

2. AFFIRMING the validity of the coverage of the landholdings covered by TCT

Nos. 8607, 8609 and 143564 located at Cabanatuan City and Talavera, Nueva
Ecija respectively;

3. MAINTAINING the tenants affected in the retained area as leaseholders thereof

pursuant to RA 3844;

4. DIRECTING the MARO/PARO to determine the qualification status of the FB

whose respective tillage is embraced under TCT No. 8608, subject of the pending
controversy with the DARAB; and

5. DIRECTING the Heirs of the late Guillermo Sarenas or their duly authorized
representative to coordinate with the MARO concerned for the segregation of
their retained area at their own expense and to submit a copy of the segregation
plan within 30 days from approval thereof.

SO ORDERED.8[8]

Petitioner Sebastian then filed a motion for reconsideration, but this motion was denied by the
DAR Secretary in an order dated January 26, 1999, the dispositive portion of which states:

WHEREFORE, premises considered, Order is hereby issued DENYING the instant Motion for
Reconsideration for utter lack of merit. Accordingly, as far as this Office is concerned, this case
is considered closed. Further, all persons, other than the recognized tenant-farmers, are hereby
ordered to cease and desist from further entering and undertaking any activity on the subject
landholdings.

SO ORDERED.9[9]
The Secretary also found that petitioners appeared to have waived their rights over the tenanted
land in favor of Clemente Bobares and Luzviminda Domingo-Villaroman, and had allowed
cultivation of the landholding by a certain Ricardo Dela Paz. He ruled that it was unlawful/illegal
to allow other persons than the tenant-farmers themselves to work on the land except if they are
only working as an aide of the latter otherwise, landowners shall have the recourse against the
tenant-farmers.10[10]

Consequently, on February 22, 1999, petitioners filed a special civil action for certiorari and
prohibition, with prayer for writ of preliminary mandatory injunction with the Court of Appeals,
docketed as CA-G.R. SP No. 51288.

On March 9, 1999, the Court of Appeals, without going into the merits of the case, dismissed
CA-G.R. SP No. 51288 after finding that petitioners pursued the wrong mode of appeal.11[11] It
found that the orders of the DAR Secretary sought to be reviewed were final orders for they
finally disposed of the agrarian case and left nothing more to be decided on the merits. Hence,
the proper remedy available to petitioners was a petition for review pursuant to Rule 43, Section
1 of the 1997 Rules of Civil Procedure,12[12] and not a special civil action for certiorari under
Rule 65. The Court of Appeals also ruled that petitioners failed to attach a certified true copy or
duplicate original of the assailed order of June 18, 1998 as required by Rule 46, Section 3,13[13]
and hence, it had no alternative but to dismiss the action pursuant to said Section 3.

Petitioners then timely moved for reconsideration, but the appellate court in its resolution of
December 10, 1999 denied their motion.

Hence, the instant case anchored on the following sole assigned error:

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR (A) IN NOT TREATING

THE PETITION FILED BY PETITIONERS AS A PETITION FOR REVIEW; AND (B) IN
NOT RESOLVING THE CASE ON THE MERITS.14[14]
Petitioners submit that the sole issue before us is whether or not the dismissal by the Court of
Appeals of the petition in CA-G.R. SP No. 51288 is valid and proper.

Petitioners admit that there was error in the remedy resorted to before the Court of Appeals.
They insist, however, that a perusal of their initiatory pleading in CA-G.R. SP No. 51288 would
show that said pleading contained all the features and contents for a petition for review under
Rule 43, Section 6 of the 1997 Rules of Civil Procedure.15[15] Hence, the court a quo should have
treated their special civil action for certiorari and prohibition under Rule 65 as a petition for
review under Rule 43, since dismissals based on technicalities are frowned upon. Petitioners
contend that procedural rules are but a means to an end and should be liberally construed to
effect substantial justice.

Private respondents, on the other hand, claim that the Court of Appeals did not commit any
reversible error in dismissing the petition in CA-G.R. SP No. 51288, for it simply applied the
express and categorical mandate of this Court that a petition shall be dismissed if the wrong
remedy is availed of. Private respondents argue that while it is true that the Rules of Court should
be liberally construed, it is also equally true that the Rules cannot be ignored, since strict
observance thereof is indispensable to the orderly and speedy discharge of judicial business.

Under Rule 1, Section 6 of the 1997 Rules of Civil Procedure,16[16] liberal construction of the
rules is the controlling principle to effect substantial justice. Thus, litigations should, as much as
possible, be decided on their merits and not on technicalities. This does not mean, however, that
procedural rules are to be ignored or disdained at will to suit the convenience of a party.
Procedural law has its own rationale in the orderly administration of justice, namely, to ensure
the effective enforcement of substantive rights by providing for a system that obviates
arbitrariness, caprice, despotism, or whimsicality in the settlement of disputes. Hence, it is a
mistake to suppose that substantive law and procedural law are contradictory to each other, or as
often suggested, that enforcement of procedural rules should never be permitted if it would result
in prejudice to the substantive rights of the litigants.

Litigation is not a game of technicalities, but every case must be prosecuted in accordance with
the prescribed procedure so that issues may be properly presented and justly resolved. Hence,
rules of procedure must be faithfully followed except only when for persuasive reasons, they
may be relaxed to relieve a litigant of an injustice not commensurate with his failure to comply
with the prescribed procedure. Concomitant to a liberal application of the rules of procedure
should be an effort on the part of the party invoking liberality to explain his failure to abide by
the rules.17[17]

In the instant case, petitioners failed to show any compelling reason for not resorting to the
proper remedy. Instead, we find from our perusal of their pleadings before the appellate court
that they stoutly and persistently insisted that the extraordinary remedy of certiorari was their
correct remedy. First, in instituting CA-G.R. SP No. 51288, petitioners categorically invoked the
jurisdiction of the Court of Appeals to have the questioned orders of the DAR Secretary declared
null and void for having been issued and promulgated with grave abuse of discretion . . . a
mounting to lack of jurisdiction.18[18] Note that it is precisely the office of an action for certiorari
under Rule 65 to correct errors of jurisdiction. Second, after the appellate court dismissed their
petition on the ground that the proper remedy was a petition for review, petitioners continued to
insist in their motion for reconsideration that under Section 54 of R.A. No. 6657,19[19] a petition
for certiorari is both adequate and proper in CA-G.R. SP No. 51288. It was only as an
afterthought that they asked the appellate court to treat their special civil action for certiorari as a
petition for review, after a belated and grudging admission that their reliance on Section 54 of
R.A. No. 6657 was an honest mistake or excusable error.

We agree with the appellate court that petitioners reliance on Section 54 of R.A. No. 6657 is not
merely a mistake in the designation of the mode of appeal, but clearly an erroneous appeal from
the assailed Orders.20[20] For in relying solely on Section 54, petitioners patently ignored or
conveniently overlooked Section 60 of R.A. No. 6657, the pertinent portion of which provides
that:

An appeal from the decision of the Court of Appeals, or from any order, ruling or decision of the
DAR, as the case may be, shall be by a petition for review with the Supreme Court, within a non-
extendible period of fifteen (15) days from receipt of a copy of said decision. (Emphasis
supplied.)

Section 60 of R.A. No. 6657 should be read in relation to R.A. No. 7902 expanding the appellate
jurisdiction of the Court of Appeals to include:
Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards
of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or
commissionsexcept those falling within the appellate jurisdiction of the Supreme Court in
accordance with the Constitution, the Labor Code of the Philippines under Presidential Decree
No. 442, as amended, the provisions of this Act, and of subparagraph (1) of the third paragraph
and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948.21[21]

With the enactment of R.A. No. 7902, this Court issued Circular 1-95 dated May 16, 1995
governing appeals from all quasi-judicial bodies to the Court of Appeals by petition for review,
regardless of the nature of the question raised. Said circular was incorporated in Rule 43 of the
1997 Rules of Civil Procedure.

Section 61 of R.A. No. 665722[22] clearly mandates that judicial review of DAR orders or
decisions are governed by the Rules of Court. The Rules direct that it is Rule 43 that governs the
procedure for judicial review of decisions, orders, or resolutions of the DAR Secretary. By
pursuing a special civil action for certiorari under Rule 65 rather than the mandatory petition for
review under Rule 43, petitioners opted for the wrong mode of appeal. Pursuant to the fourth
paragraph of Supreme Court Circular No. 2-90,23[23] an appeal taken to the Supreme Court or the
Court of Appeals by the wrong or inappropriate mode shall be dismissed. Therefore, we hold that
the Court of Appeals committed no reversible error in dismissing CA-G.R. SP No. 51288 for
failure of petitioners to pursue the proper mode of appeal.

But should the appellate court have treated the petition for the extraordinary writs of certiorari
and prohibition in CA-G.R. SP No. 51288 as a petition for review as petitioners insist?

That a petition for certiorari under Rule 65 should pro forma satisfy the requirements for the
contents of a petition for review under Rule 43 does not necessarily mean that one is the same as
the other. Or that one may be treated as the other, for that matter. A petition for review is a mode
of appeal, while a special civil action for certiorari is an extraordinary process for the correction
of errors of jurisdiction. It is basic remedial law that the two remedies are distinct, mutually
exclusive,24[24] and antithetical. The extraordinary remedy of certiorari is proper if the tribunal,
board, or officer exercising judicial or quasi-judicial functions acted without or in grave abuse of
discretion amounting to lack or excess of jurisdiction and there is no appeal or any plain, speedy,
and adequate remedy in law.25[25] A petition for review, on the other hand, seeks to correct errors
of judgment committed by the court, tribunal, or officer. In the instant case, petitioners failed to
show any grave abuse of discretion amounting to want of jurisdiction on the part of the DAR
Secretary. When a court, tribunal, or officer has jurisdiction over the person and the subject
matter of the dispute, the decision on all other questions arising in the case is an exercise of that
jurisdiction. Consequently, all errors committed in the exercise of said jurisdiction are merely
errors of judgment. Under prevailing procedural rules and jurisprudence, errors of judgment are
not proper subjects of a special civil action for certiorari.26[26] For if every error committed by the
trial court or quasi-judicial agency were to be the proper subject of review by certiorari, then trial
would never end and the dockets of appellate courts would be clogged beyond measure. Hence,
no error may be attributed to the appellate court in refusing to grant petitioners request that their
petition for certiorari under Rule 65 be treated as a petition for review under Rule 43.

As a final salvo, petitioners urge us to review the factual findings of the DAR Secretary. Settled
is the rule that factual questions are not the proper subject of an appeal by certiorari, as a petition
for review under Rule 45 is limited only to questions of law.27[27] Moreover, it is doctrine that the
errors which may be reviewed by this Court in a petition for certiorari are those of the Court of
Appeals,28[28] and not directly those of the trial court or the quasi-judicial agency, tribunal, or
officer which rendered the decision in the first instance. Finally, it is settled that factual findings
of administrative agencies are generally accorded respect and even finality by this Court, if such
findings are supported by substantial evidence,29[29] a situation that obtains in this case. The
factual findings of the Secretary of Agrarian Reform who, by reason of his official position, has
acquired expertise in specific matters within his jurisdiction, deserve full respect and, without
justifiable reason, ought not to be altered, modified or reversed.
WHEREFORE, the instant petition is DENIED. The assailed decision of the Court of Appeals
in CA-G.R. SP No. 51288 dated March 4, 1999, as well as the resolution of the appellate court
dated December 10, 1999, is AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Austria-Martinez, and Callejo, Sr., JJ., concur.