EN BANC
G.R. No. L-33007 June 18, 1976
VICENTE MIRANDA, Administrator of the Intestate Estate of Hilarion Dydongco, petitioner,
vs.
HON. COURT OF APPEALS, HON. FRANCISCO TANTUICO, JR., Judge of the Court of First Instance of Cebu, Branch VI, DY CHUN, DY SUAT HONG, DY LEE, DY SEKO, TAN HO NOLASCO DYCOTHAY (deceased), substituted by JOSE KOO ENG LIN DY, as Administrator of the Intestate Estate of NOLASCO DYCOTHAY, "AGUSAN COMMERCIAL", "EAST MINDANAO LUMBER CO" "HIAP BEE", and "EAST MINDANAO LUMBER CO., INC.", respondents.
Pelaez, Pelaez & Pelaez for petitioner.
Tolentino, Garcia, Cruz & Reyes, Koh Law Offices and Cipriano C. Alviso, Sr. for private respondents.
Separate Opinions
BARREDO, J., concurring:
I concur in the result, just so this case may be terminated without further delay. The unanimous vote in favor of the judgment herein should discourage any motion for reconsideration. It should be obvious from the result of our voting as reflected in the main opinion and in this separate concurrence that any attempt to have the procedure outlined in the main opinion altered is from the practical standpoint doomed not to be sanctioned. Besides, as to the points of law in dispute, it may be stated that with Justices Fernando1 and Aquino and myself having actually qualified our votes, the seven unqualified votes supporting the main opinion are, to my mind, not enough to impart full doctrinal status to the pronouncements of the majority.
It is my firm conviction that the holding in Dy Chun vs. Mendoza, 25 SCRA 431, which resolved the prelude incident to the case at bar, in the sense that the decision of Judge Mendoza of July 26, 1965 is interlocutory is the law of the case for the purpose of the present controversy. The action of the Court in that case of merely dismissing the petition for mandamus to compel Judge Mendoza to give due course to the appeal of respondents does not constitute, contrary to what is inaccurately stated in the main opinion, a remand of the case to the trial court, if only because neither the case itself nor the records thereof were with this Court then, hence there was nothing to remand in any sense. Much less did this Court's decision qualify in any manner the meaning and import of what it considered to be the interlocutory character of the Mendoza decision, as may be plainly seen in the complete text of Chief Justice Concepcion's decision which I am reproducing in the annex of this opinion. I hold that as in any other case of an interlocutory order or judgment, the Mendoza decision was subject to modification and even reversed at any time before an appeal therefrom is taken, any adverse resolution of a prior motion for reconsideration thereof notwithstanding. Accustomed as I am to instances wherein the decisions or orders of judges who have either died, resigned or been removed from office, before the finality of said judgments have been either modified or reversed by their successors, upon motions in due course of the parties concerned, I cannot share the view that in rendering his amended decision, Judge Tantuico improperly arrogated unto himself the attributes of a reviewing appellate authority, just because he based his own findings on no more than the same evidence which was before his predecessors. Withal, since not a scintilla of the evidence presented in the court below is before the Court in this proceeding, I consider it unfair for the Court to make reference to Judge Tantuico's amended decision in any manner that might leave the impression that the same is in anyway either capricious or ill considered. Truth to tell, I cannot condemn Judge Tantuico for having acted as he did, because with my own understanding of the law, in the light of the Fuentebella ruling before me, I would have probably acted the way he did. Speaking for myself, and judging from the contents and ratiocination of said amended decision, which I have read very carefully, I would say that, contrary to the thrust of the main opinion, the decision of Judge Mendoza ought not to be projected as if it were the last word in the disposition of the questions of fact and law in this case, thereby to enable the appellate court in due time to consider the evidence in this case without feeling hindered by any thought that the Supreme Court intentionally or not, has already formed its opinion as to the correctness of said decision.
Originally, I was resolved to dissent. To be sure, when this case was first deliberated on about five years ago, the consensus among the incumbent justices then, even if not definitely conclusive, was more inclined towards the dismissal of the instant petition, so much so that I was assigned to prepare the main opinion, which I did, as may be seen in the draft thereof, copy of which is hereto attached as Annex A of this separate opinion. It was only because of the desire of Justice Teehankee, the writer of the present main opinion, to have the case further studied that no final vote was taken. Since then, there have been several changes in the membership of the Court, and as usually happens in human courts, the consensus remained inconclusive, until Justice Teehankee was able to secure the conformity of six other justices to his draft, at which point, We finally decided to at long last terminate this case before the retirement of Justice Esguerra, hence the marathon session of June 18th last which started at 10:30 o'clock in the morning and continued without any break until past 4:00 o'clock in the afternoon, with the justices partaking of only sandwiches and juices at the discussions, at some points emotional and truly heated, went on. At the final voting, Justice Fernando voted pro hac vice in favor of the judgment, which I understand means, "only for this occasion" or for the purposes of the case at bar only. (See, Philippine Law Dictionary by Moreno, p. 374, citing Bachrach Motor Co. vs. Summers, 42 Phil. 7.) Justice Aquino also qualified his vote as a concurrence only in the result, and when I voiced the possibility of changing my vote from dissent to concurrence in the result, on the condition that respondents would be allowed to appeal immediately from the Mendoza decision and with the reservation to file this separate opinion, Justice Aquino said he would join me. And since it became obvious then that with only seven votes unqualifiedly supporting the main opinion, I felt that the purported reversal of the Fuentebella doctrine in the main opinion could only have academic worth, I deemed it to be a more practical position for me to definitely give my vote in favor of the result, to the end that, as I have said at the outset, the controversy among the brothers and sisters involved in this case may come to an earlier definite conclusion on the merits, after almost a quarter of century of procedural delays. Anyway, notwithstanding that the procedure actually ordered to be followed in this case hereafter is not in accordance with the Fuentebella ruling, and inasmuch as the Court has agreed to my suggestion that respondents be allowed to appeal immediately, I am satisfied that substantial justice will just the same be ultimately achieved fully, when this case is resolved on the merits by the proper appellate court.
As earlier indicated, I am submitting herewith as Annex A hereof the draft of a decision I prepared more than four years ago when there were less votes in the Court to overturn the Fuentebella ruling.ℒαwρhi৷ Therein my differences of views with my brethren in the majority now can best be appreciated, particularly as to my position on the law of this particular case and the true and correct concept of an interlocutory order or judgment.
My exercise in matters of adjective law as an active practitioner, actually dealing with court procedure all the time, and as an avid student of remedial law before I came to this Court, cautions me against precipitately joining my learned colleagues in making reference, in resolving the main issue of procedure before Us to the rules on judgments at various stages (See. 5 of Rule 36; and immediate execution of judgments directing an accounting (See. 4 of Rule 39) and to the ruling in Arnedo vs. Llorente, 18 Phil. 257, none of which, to my mind, contemplates the situation in the present case. Surely, the Fuentebella ruling cannot, in my opinion, be in anyway considered as violative of any injuction that cases be speedily and justly disposed of, whether that injunction be deemed as emanating from the Constitution, established jurisprudence or any statutory or moral code.
Likewise, I am not persuaded that the order of immediate execution contained in the judgment herein is in accordance with law, if only because the motion of petitioners in the court below was not premised on Section 2 of Rule 39 but on the insistence of petitioner, despite the Dy Chun decision, that the Mendoza decision has already become final and executory, but I cannot disregard the pragmatic consideration that any dissent on my part on this point would be purely academic, considering there are enough votes to carry out the judgment as it is.
I am fully aware of the power of this Court to exempt certain cases from the application of the rules when demanded by the necessity of doing what clearly appears to be a matter of substantial justice to the parties, I honestly believe, however, that there is nothing in the factual situation before Us now that warrants such invocation of Our extraordinary prerogatives. Indeed, I always want to be careful and sparing in departing from unequivocal rules and precedents or established doctrines which leave no room for misunderstanding or misconstruction. It is certainly disconcerting to visualize litigants as being players in a game the governing rules of which are susceptible to being changed in the middle of play, with the referee immediately enforcing the modified rules. Unless it is manifest that denial of substantial justice would result otherwise, the consequent inequity of unnecessarily resorting to such practice is to my mind, beyond debate.
Footnotes
1 Justice Fernando made it clear that at the beginning he was thinking of abstaining, but since there was an evident sentiment for rendering without effect the amended decision of Judge Tantuico, he would concur in the main opinion pro had vice, just so the eight votes necessary for a judgment may be had.
Separate Opinions
MAKASIAR, J., concurring:
I fully concur with the main opinion of Mr. Justice Teehankee. Without intending to detract in any way from Mr. Justice Barredo's recollection of certain incidents in his concurring opinion, I write this brief concurrence to set forth my own recollection thereof after I joined the Court in August, 1970 as follows:
1. During the many past deliberations of the Court on the case, no consensus was reached for dismissal of the instant petition. A tentative consensus in favor of ruling that the original judgment of Judge Mendoza could no longer be amended or modified beyond the thirty-day reglementary period and that the only residual authority of the trial judge under this Court's 1968 judgment in Dy Chun v. Mendoza was to enforce the accounting for completion of the relief before the proposed appeal could be given due course was eventually reached.
2. In December, 1974, Justice Teehankee, as agreed, prepared and circulated among the members of the Court his own draft opinion to be considered together with Justice Barredo's draft opinion for dismissal of the petition.
3. In the course of further deliberations, the seven other members of the Court expressed concurrence with Justice Teehankee's draft opinion for the required majority of eight for the rendition of a decision en banc (excluding Justices Fernando, who reserved his vote, and Barredo, and Justice Concepcion who is on leave). The majority further agreed that the Court expressly declare as abandoned the doctrine of Fuentebella vs. Carrascoso for the guidance of the bench and bar, and this was incorporated as Part II (pages 27-30) of the main opinion.
4. At the long session of June 18, 1976 when the case was deliberated once more at Justice Barredo's request, and at the end he announced that he would also concur and make the decision unanimous, Justice Fernando gave his concurrence pro hac vice which to my mind implies that there is now an authoritative statement of doctrine, expressly abandoning as it does, the contrary ruling in the Fuentebella case. The governing rules have not been changed "in the middle of play". The Court's decision adhered to the Fuentebella case as applied in Dy Chun vs. Mendoza, but respondents have been given the option, at Justice Barredo's instance, to file their appeal now instead of waiting for the completion of the accounting, in order to expedite final determination of this long-pending case.
DRAFT OF DECISION
Petition for review of the decision of the Court of Appeals dismissing the petition for certiorari and mandamus filed by the petitioner with the appellate court against respondent judge to annul the amended decision rendered by him and to compel him to order the issuance of a writ of execution of the original decision rendered by his predecessor sentencing private respondents to deliver certain properties to petitioner in order that they may be included as part of the estate of the deceased Hilarion Dydongco and to render an accounting of the fruits and proceeds of said properties, upon the ground that said original decision has already become final and executory.
The antecedent facts may best be stated by quoting the decision of this Court of October 4, 1968 G. R. No. L-25461, penned by former Chief Justice Roberto Concepcion, between practically the same parties and regarding basically the same issues:
It appears that as administrator of the Intestate Estate of Hilarion Dydongco, deceased, the settlement of which is the subject matter of Special Proceedings No. 2205-R of the Court of First Instance of Cebu, its Clerk of Court, Vicente Miranda — hereinafter referred to as the Administrator-commenced Civil Case No. R-7793 of the same Court against most of the petitioners herein, namely, Dy Chun, Dy Suat Hong, Dy Bee, Dy Seko, Tan Ho, Nolasco Dycothay (who died later and was substituted by the Administrator of his estate, Jose Kee Dy), Agusan Commercial Company, New Agusan Commercial, East Mindanao Lumber Company, Hiap Bee and East Mindanao Lumber Company, Inc.
In his amended complaint, Miranda alleged that prior to and at the time of his death in China sometime in 1941, Hilarion Dydongco, who resided in the Philippines since the beginning of the century, had, in Butuan, Agusan and Cebu City, well- developed and established business and commercial enterprise with substantial bank deposits and about 127 parcels of land or property; that Hilarion Dydongco went to China, in 1934, and, thereafter, became seriously ill; that, at that time, his children, Dy Chun and Dy Suat Hong (both defendants in said case R-7793) as well as Dy Sick Lee (who died subsequently and is not a defendant in case No. R-7793) and his protegees Dy Bee and Dy Seko were working as his Manager and/or employees in the aforementioned business establishments, that taking advantage of the absence and bad condition of the health of Hilarion Dydongco, particularly of his subsequent death, the defendants therein (petitioners herein') took over said business, including its assets, goods, merchandise, chattels, machinery, stock-in-trade, cash on hand and in banks, amounts receivable and other properties of the deceased, as well as his store known as 'Dydongco Store', and its branches, and organized first, a fake partnership with the business name of 'Agusan Commercial Company', and then the East Mindanao Lumber Co., which operated and did business with the capital, assets, stock-in-trade, merchandise, funds and other property of said deceased; that with funds belonging to the latter, the defendants therein (petitioners herein) moreover purchased several parcels of land, on one of which a 20-door apartment building was constructed, with funds of the same nature, and let to Chinese tenants and other lessees that the defendants therein (petitioners herein) had received and are receiving the rentals, earnings and profits derived from said business and property of the deceased; and that said defendants (petitioners herein) hold, manage and operate the aforementioned business, properties and income in trust for the Intestate Estate of Hilarion Dydongco, but have not rendered any accounting thereof.
The Administrator prayed, therefore, that judgment be rendered declaring that said business, assets, income and other property, are in the possession and under the management and control of said defendants (petitioners herein) as mere trustees thereof, and sentencing them to turn over and deliver the same to him, as Administrator of the Intestate Estate of Hilarion Dydongco, as well as to render accounts and to execute the corresponding deeds of conveyance, in addition to paying damages and the costs. After appropriate proceedings, said Court, presided over by respondent Judge, rendered a decision finding that most of the allegations of the Administrator had been duly proven and, accordingly, sentenced the defendants therein (petitioners herein):
1. (To) Deliver all properties found by the Court (in body of its decision) to belong to the estate of Hilarion Dydongco, to plaintiff as administrator of the Estate of Hilarion Dydongco;
2. To render full, accurate and correct accounting of all the fruits and proceeds of the properties which each of the defendants had possessed and which has been found by this Court as properties belonging to the estate of Hilarion Dydongco, from 1935 until the present date;
3. To render full, accurate and correct accounting of all the fruits, interest, profits and assets as well as properties acquired by the Agusan Commercial Company, New Agusan Commercial Company, East Mindanao Lumber Company, East Mindanao Lumber Company, Inc., from 1935 up to the present date;
4. To pay by way of exemplary damages, jointly and severally, the sum of P60,000.00 to Dy Sio Pong and Dy Suat Ngo;
5. To pay to counsel for plaintiff, jointly and severally the sum of P30,000.00 as attorney's fees, including the cost of this suit.
SO ORDERED.
Copy of this decision was, on July 30, 1965, served upon the defendants. On August 9, 1965, they filed their notice of appeal and appeal bond and the next day, they submitted their record on appeal. On August 16, 1965, they filed, however, a motion for reconsideration and new trial, which was denied on October 18, 1965. Copy of the order to this effect was served upon them on October 19. On October 26, they filed a notice to the effect that, on October 30, 1965, they would submit for consideration the record on appeal filed on August 10. On November 13, defendants filed additional pages to be attached to said record on appeal, whereas the administrator objected to the approval thereof, upon the ground that the decision was already final and executory. On November 29, respondent Judge issued an order declaring that 'the defendants (petitioners herein) have not perfected their appeal on time' and that the aforementioned decision had, consequently, become final and executory.
A reconsideration of this order was denied on December 15, 1965, whereupon said defendants — petitioners herein — instituted the present original action for certiorari, prohibition and mandamus, with a writ of preliminary mandatory injunction, against the administrator and respondent Judge, alleging that the latter had acted with grave abuse of discretion amounting to lack of jurisdiction in issuing said orders of November 29 and December 15, 1965, and praying, accordingly, that said orders be declared null and void, and that respondent Judge be directed to give due course to the aforementioned appeal of petitioners herein as defendants in said case No. R-7793. Soon after the commencement of these proceedings, or on December 24, 1965, we issued a writ restraining respondents therein, until January 4, 1966, from implementing, enforcing and executing the orders of respondent Judge dated November 29 and December 15, 1965. On January 13, 1966, said writ was incorporated into a writ of preliminary injunction, upon the posting and approval of a bond, filed by the petitioners, in the sum of P5,000.00.
The petition herein and the answer thereto filed by respondents discuss rather extensively the question whether or not petitioners had perfected their appeal in the lower court within the reglementary period. We find it, however, unnecessary to pass upon said question, for the reason presently to be stated.
Although declaring that most of the properties involved in the litigation belong to the estate of Hilarion Dydongco, the decision of - respondent Judge, dated July 30, 1965, moreover, required petitioners herein to render a "full, accurate and complete accounting of all the I fuits and proceeds" of said properties. After analyzing previous rulings thereon, this Court declared, in Fuentebella v. Carrascoso (G.R. No. 48102, May 27, 1942. See, also, Salazar v. Torres, L- 13711, May 25, 1960; Zaldarriaga v. Enriquez, L-13252, April 29, 1961; Zaldarriaga v. Zaldarriaga, L-13424, May 31, 1961) that a decision of such nature is interlocutory in character, because it does not dispose of the action in its entirety and leaves something to be done to complete the relief sought, and that, accordingly, it is not appealable, until after the adjudications necessary for the completion of said relief shall have been made. Indeed, the very counsel for petitioners herein now accept this view and concede that petitioners' appeal had been taken prematurely.
WHEREFORE, this case should be as it is hereby dismissed and the writ prayed for denied, with costs against petitioners herein. The writ of preliminary injunction issued in this case on January 18, 1966, is, accordingly, dissolved. It is so ordered.
After this decision became final, three incidents arose in the court below: (1.) motion of petitioner for the execution of the portion of the decision of Judge Mendoza ordering the delivery by defendants of certain properties to plaintiff and to render an accounting with 30 days of the fruits and proceeds of the same during the period of defendants' possession thereof; (2) motion for reconsideration and new trial of the defendants Dy Chun, Vicente Dy Seko, Silvestre Dy Bee and the Administrator of the Estate of Nolasco Dycothay; and (3) motion for reconsideration of co-defendants East Mindanao Lumber Company, East Mindanao Lumber Co. Inc., Tan Ho and Ty Suat Hong. The trial court denied the first motion and granted partially the motions for reconsideration and new trial as follows:
1. Dismissing the complaint embodied in the first cause of action in the amended complaint against the East Mindanao Lumber Company and the Mindanao Lumber Co., Inc.;
2. Dismissing the second cause of action of the amended complaint regarding the Plaridel lot, not having been proved and the right to recover the Plaridel property having prescribed;
3. Declaring that Dy Suat Hong is a builder in good faith on lots Nos. 841-B4 and 841-B-3;
4. Ordering the defendants to deliver to the plaintiff as administrator of the Estate of Hilarion Dydongco, within forty-five (45) days from receipt of this judgment all the other properties not affected by the herein amendments and found by the Court in the July 26,1965 judgment to belong to the Estate of Hilarion Dydongco.
5. Ordering the defendants who are in possession of the properties found by the Court to belong to the Estate of Hilarion Dydongco to render a full and accurate accounting of all the fruits, assets, proceeds and expenses of said properties including the Agusan Commercial Company and the New Agusan Commercial Company from 1935 until the present date, the written inventory and accounting to be submitted to this Court within sixty (60) days from receipt of this judgment for approval;
6. Denying the motions for execution, and for new trial and the claim of lack of jurisdiction;
7. Consistent with the amendments here made, the exemplary damages to be paid to Dy Siu Pong, and Dy Suat Ngo is reduced to P30,000.00, and the attorney's fees maintained at P30,000.00 both to be paid jointly in equal proportion by the remaining defendants Dy Chu, Dy Suat Hong, Dy Bee, Dy Seko, Tan Ho and Nolasco Dycothay, including the costs of this suit.
In other words, respondent judge reconsidered and set aside or modified the previous decision of Judge Mendoza, and so, against the above judgment, a petition for certiorari was filed with this Court, and We referred the same to the Court of Appeals. In due time and after proper proceedings, the appellate court rendered judgment dismissing the said petition thus:
In view of this ruling of the Supreme Court, expressly declaring that the decision in question of former Judge Jose M. Mendoza is merely interlocutory in character and that the same is not appealable yet, and issuance therefore of the controversial amended decision of the now respondent Judge Francisco Tantuico, Jr. could hardly be said to have been issued with grave abuse of discretion, much less, without or in excess of jurisdiction. The disputed decision (first) of the former Presiding Judge Jose M. Mendoza, being interlocutory in essence, the succeeding Presiding Judge, therefore, now respondent Judge, has jurisdiction and is clothed with authority to conduct further proceedings, consider additional motions, rule on issues presented by the parties, and finally to issue any orders, processes and promulgate another decision. We, therefore rule out the petitioner's other argument that the original decision in the case has already become final and executory, in view of the Supreme Court ruling that said decision is interlocutory, hence unappealable. As the office of certiorari only lies to correct acts of the lower court committed without or in excess of jurisdiction, and with grave abuse of discretion. We find the present petition devoid of merit.
with Justice Andres Reyes dissenting.
A motion for reconsideration thereof was denied, with the same vote in a resolution reiterating practically the same considerations of the original decision. Petitioner has come to this Court with the following assignment of errors:
FIRST ASSIGNED ERROR
THE HONORABLE RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT RESPONDENT JUDGE, HON. FRANCISCO TANTUICO, JR.,: "CAN, AS HE DID, AMEND THE DECISION OF THE PRIOR PRESIDING JUDGE OF THE SAME CFI AND THAT IN SO DOING HE ACTED WITHIN HIS JURISDICTION AND ACCORDING TO HIS DUTY AS COURT ..."
SECOND ASSIGNED ERROR
THE HONORABLE RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT THE DECISION (ANNEX "E") OF NOW RETIRED JUSTICE JOSE M. MENDOZA WHO PRESIDED BRANCH VI, COURT OF FIRST INSTANCE OF CEBU, IS INTERLOCUTORY IN ESSENCE HENCE THE SUCCEEDING PRESIDING JUDGE OF THE SAME COURT HAS JURISDICTION AND IS CLOTHED WITH AUTHORITY TO CONDUCT FURTHER PROCEEDINGS, CONSIDER ADDITIONAL MOTIONS, RULE ON ISSUES PRESENTED BY THE PARTIES, AND FINALLY TO ISSUE ANY ORDERS, PROCESSES AND PROMULGATE ANOTHER DECISION.
THIRD ASSIGNED ERROR
THE HONORABLE RESPONDENT COURT OF APPEALS ERRED IN NOT CONSIDERING THE PROPRIETY, ETHICAL CONSIDERATION AND QUESTIONS THAT ARE INVOLVED WHEN RESPONDENT JUDGE, HON. FRANCISCO TANTUICO, JR. PROCEEDED TO CLOTHE HIMSELF AND ASSUMED APPELLATE AUTHORITY BY REVIEWING, REVERSING AND SETTING ASIDE THE ORIGINAL DECISION (ANNEX 'E') AND PROMULGATING AN "AMENDED DECISION" (ANNEX 'D') ALL IN GROSS, EVIDENT ABUSE OF JUDICIAL DISCRETION AND WITHOUT BASIS IN LAW, IN FACT AND IN JURISPRUDENCE.
FOURTH ASSIGNED ERROR
THAT HON. RESPONDENT COURT OF APPEALS ERRED IN NOT CONSIDERING THE FACT THAT BY HOLDING THAT THE DECISION IS INTERLOCUTORY IN ITS ENTIRETY PETITIONER IS DENIED UNJUSTIFIABLY, UNREASONABLY AND WITHOUT DUE PROCESS OF THE RIGHTS OF OWNERSHIP.
The first two assigned errors present no difficulty. In effect, the contention of petitioner is that the decision of Judge Mendoza is not interlocutory. At this stage, We do not believe it is legally possible, much less proper, for the Court to sustain petitioner's pose. Assuming that the disposition of an action of such nature as that filed by petitioner, which is for the recovery of properties allegedly belonging to the estate of a deceased person, with accounting of fruits, profits and proceeds received by private respondents during the period of supposed illegal possession, may be divided into two separate stages, namely, (1) the determination of whether or not the said properties really belong to such estate and (2) the approval of the accounting prayed for, it is very clear from the decision of this Court aforequoted that what was declared therein as interlocutory was precisely the order of Judge Mendoza upholding the estate's right of ownership over the properties in question. This cannot be doubted because at the time the said order was appealed, the second aspect aforementioned regarding the accounting had not yet been started. There is absolutely nothing in the opinion of Chief Justice Concepcion to indicate that the interlocutory character attributed by it to the said order is of the nature now proposed by petitioner to the effect that the tenor and contents of the same may not be modified, altered or amended and that the only remaining authority of the court is to consider and approve the accounting ordered to be made. In other words, whatever merit there may be in petitioner's well presented arguments regarding the need to re-examine the ruling of this Court in Fuentebella vs. Carrascoso, G.R. No. L-48102, May 27, 1942, XIV Lawyers Journal 305, as reiterated and elucidated further in Zaldarriaga vs. Zaldarriaga, on April 29, 1961, G.R. No. L-13252, 1 SCRA 1188, this is not the appropriate occasion for such suggested endeavor. In the instant case, We are bound by Our above decision of October 4, 1968 as the law of the case. Definitely, We cannot anymore reverse Our holding that Judge Mendoza's order or decision is interlocutory.
In any event, We are not inclined to go along with petitioner's posture. Relying on the dissertation made by Justice Andres Reyes of the Court of Appeals in his dissenting opinion from the majority decision of the appellate court in this case, petitioner makes a vigorous plea for a re-examination of this Supreme Court's ruling in Fuentebella vs. Carrascoso, supra, as suggested by the distinguished appellate justice in his critical analysis of said precedent. Brushing aside, as inconsequential in the final disposition of this case, the matter of possible impropriety of a lower collegiate court judge insisting by casting a dissenting vote on the reversal of a ruling of the Supreme Court instead of abiding by it, albeit expressing his disagreement therewith, We are now faced with the task of deciding whether or not to accede to the reexamination suggested. In this connection, it is but proper to note what Mr. Justice Manuel Moran, later on Chief Justice, author of the most commonly cited work on remedial law, entitled Comments on the Rules of Court, held for a unanimous Court in Fuentebella:
We would deem, however, the impropriety of the action of no moment and would consider it as an appeal by certiorari had we found merits in petitioner's contention. But we find that defendant's appeal was rightly dismissed. The judgment rendered by the Court of First Instance of Manila declaring plaintiff entitled to share in the assets of the partnership and directing the defendant to render an accounting of the expenses incurred in the purchase and exploitation of the mining claims, is not final but merely interlocutory and, therefore, not appealable.
Rule 41, section 2, of the Rules of Court, provides that 'no interlocutory or incidental judgment or order shall stay the progress of an action, nor shall it be the subject of appeal until final judgment or order is rendered for one party or the other.' This provision has been taken substantially from section 123 of our Code of Civil Procedure which recites as follows:
No interlocutory or incidental ruling, order, or judgment of the Court of First Instance shall stay the progress of an action or proceedings nor shall any ruling, order, or judgment be the subject of appeal to the Supreme Court until final judgment is rendered for one party or the other.
In commenting on this article, we observed in Go Quico v. Municipal Board of Manila, 1 Phil. 502, that in considering the American authorities it must be borne in mind that probably not one of the statutes therein construed contained such strong prohibitions against appeals from interlocutory resolutions as are found in our article 123. The evils resulting from such appeals under the Ley de Enjuiciamiento Civil were well known. It was to cure such evils that this article was adopted. It expressly prohibits appeals not only from interlocutory orders but also from interlocutory-judgments. This prohibition is reiterated in article 143, which says: 'upon the rendition of final judgment disposing of the action, either party shall have the right to perfect a bill of exceptions
x x x x x x x x x
Under the Spanish procedure, appeals could be taken from any interlocutory order or judgment, with the result that in a single case there were so many appeals and the proceedings were so delayed that in many instances parties could not, or hardly, survive the litigation. Either they died before the rendition of the final judgment or, if they survived, the winning party not infrequently found himself sustaining more losses than the benefits he expected to derive from his judgment. This is the judicial irony which section 123 of our Code of Civil Procedure, now Rule 41, section 2, of the new Rules of Court, was intended to prevent. The purpose of the provision is to avoid multiplicity of appeals in a single case, and to that effect if prohibits appeal until the case has been definitely and completely disposed of by the court, that is, until a final judgment is rendered therein.
We have on several occasions defined what a final order or judgment is as distinguished from what is merely interlocutory. In Mijia v. Alimorong, 4 Phil. 572, we said that 'a resolution, order of judgment is appealable when it finally disposes of the legal proceeding pending before it, so that nothing more can be done with it in that court.' This definition has been strictly and uniformly adhered to by this Court in subsequent cases. (CF. Government v. Bishop of Nueva Segovia, 17 Phil. 487, 489; People v. Macaraig, 54 Phil. 904, 905). In Roa v. Mojica, 8 Phil. 328, the action was for partition of real property and from the judgment rendered designating the persons entitled to participate in the partition, defendant therein appealed. This Court held that the judgment was not final but merely interlocutory. Something had yet to be done for the complete disposal of the action, to wit, the appointment of commissioners of partition if the parties did not come to an amicable partition among themselves, the making of partition by said commissioners, the filing of their report and the rendition of judgment of such report. In Natividad v. Villarica, 31 Phil. 172, plaintiff sought to recover his contribution to the partnership formed between him and the defendant. The latter averred that the partnership had been dissolved after due accounting to which plaintiff refused to assent. The trial court rendered judgment declaring the partnership dissolved as of the date therein stated and ordered the defendant to render an accounting. In dismissing defendant's appeal, we held that the judgment did not terminate the case in the Court of First Instance and was, therefore, not appealable until 'the accounts to which plaintiff was entitled to have rendered her were either approved or disapproved.' We reaffirmed this ruling in Vivencio V. Borja, 50 Phil. 148, and Sancho v. Lizarraga, 55 Phil. 601.
The foregoing cases supply a clear and unequivocal criterion for determining what a final order or judgment is, as distinguished from what is interlocutory. If the judgment completely disposes of the action, it is final and therefore appealable; if it does not and leaves something to be done for the completion of the relief sought, it is not final and no appeal therefrom will be allowed.
Unfortunately, however, other cases decided by this Court have thrown this rule into confusion and thwarted, undesignedly to be sure, the intent of the law they purport to interpret. Thus, in Africa vs. Africa, 42 Phil. 934, the action was for partition of real property, but the defendants alleged exclusive ownership. On the issue thus joined, judgment was rendered declaring plaintiffs and defendants co-owners of the property and ordering that the same be partitioned among them. On appeal, this Court held that the judgment was final and therefore appealable, as it disposed of the claims of the defendants. This ruling was reiterated in Villanueva v. Capistrano, 49 Phil. 484. Again, in Heacock v. American Trading Co., 53 Phil. 481 judgment was rendered declaring the trademark therein disputed to belong to the plaintiff, and ordering the defendant to render, within fifteen days, an accounting of the profits it had obtained from the illegal use of the trade-mark. Defendant, without rendering an accounting, interposed an appeal from the judgment. Upon the question as to whether the judgment was final or merely interlocutory, this Court held: 'In this kind of a case, in particular, and in accord with the weight of authority, we hold that, under the issues made by the pleadings, the primary purpose in both cases was to ascertain and determine who was the true owner and entitled to the exclusive use of the disputed trade-mark, and that the judgment which was rendered by the lower court was a judgment on the merits as to those question, and that the order of the court for an accounting was based upon, and is incidental to, the judgment on the merits. That is to say, that the judgment which the lower court rendered was a final judgment within the meaning of section 123 of the Code of Civil Procedure; that in this kind of a case an accounting is a mere incident to the judgment; that an appeal lies from the rendition of the judgment as rendered; and that for such reason it was the legal duty of the lower court to sign and certify the bills of exceptions as tendered.' This ruling was reiterated in Prophylactic Brush Co. et al. v. Court of Appeals et al., G.R. No. 46254, November 23, 1938 (Unpublished).
The Africa case was distinguished by this Court from the Mojica case in that, in the former the defendants alleged exclusive ownership which the defendant in the latter did not. Similarly, the Heacock case was distinguished from that of Villarica in that, while in the latter the accounting was the main action, in the former, it was merely incidental to the question of trade-mark. In both cases (the Africa and the Heacock), the cardinal consideration which apparently induced this Court to a different conclusion from that reached in the other cases is that the judgments rendered therein disposed of the contentions of the respective defendants. We are now convinced that, if we are to achieve the true purpose of section 123 of Act No. 190, now Rule 41, section 2, the distinctions thus established are of no consequence and the rationals which induced the conclusion arrived at in the Africa and Heacock cases mistakes the true test of what a final judgment is for purposes of appeal. Whether or not the defendant alleged exclusive ownership in an answer to a complaint for partition, if the judgment therein rendered is for partition, said judgment though disposing of defendant's contention, does not dispose completely of the case. Other proceedings have yet to be taken for the completion of the relief sought, such as, the appointment of commissioners; their report to the court; and the rendition of the court's judgment thereon. Likewise, whether or not the action for accounting is the principal one or is merely incidental to another, the judgment requiring such accounting cannot be final. The actual rendition of such account and the judgment-of the court thereon are other links in a chain of proceedings essential for the complete termination of the case. And the true test for determining whether an order or judgment is final for purposes of appeal is not whether the judgment disposes of the contentions of the parties, or whether it touches the merits of the case, but whether 'it finally disposes of the legal proceeding, so that nothing more can be done with it on the court where it is determined (Mejia v. Alimorong, supra), or in the language of section 143 of Act No. 190, whether "it disposes of the action." To supply any other criterion is to bring confusion to what otherwise is a plain and unequivocal rule of law.
It may be true that actual partition in the Africa case or actual accounting in the Heacock case may greatly prejudice the defendant if, on appeal, the judgment is reversed, for in such eventuality the proceeding for partitioner accounting, which may have been expensive, will have become unnecessary. But a like prejudice may be imagined for the plaintiff in the event of affirmance of the judgment, for then he will have to go back to the trial court for actual partition or accounting with the possibility of a second appeal from the judgment that may be rendered thereon. These possibilities on both sides of the question were, undoubtedly, present in the minds of the lawmakers when section 123 of Act No. 190 was passed, but they considered the latter as of a graver mischief when, without distinction, they prohibited an appeal from any kind of interlocutory orders or judgments. And we think the choice is not without reason because the affirmance of a judgment is more probable than its reversal by virtue of the presumption of its correctness. (People v. Wilson, 532 Phil., 907).
That the true rule is to prohibit generally and without distinction appeals from any kind of interlocutory orders or judgments, is attested by a consideration of analogous instances where the law entirely ignores the inconveniences to a party wishing to appeal. For example, the defendant, filing a motion to dismiss on the ground that the plaintiff has no capacity to sue, is compelled, if his motion is overruled, to file his answer and proceed to trial so that the court may render a final judgment. If on appeal, the order overruling one motion is reversed, then, certainly, all the proceedings had after the overruling of such motion by the trial court would have been useless and vexatious to the defendant. But may those inconveniences he validly pleaded to support the contention that an appeal lies against the order overruling a motion to dismiss? The reason for the law seems clear, therefore, that even if, in compelling the defendant in the Heacock case for instance, to render an accounting, so much of his commercial secrets would have been unnecessarily revealed should the judgment be thereafter reversed, this private and exceptional loss cannot compare with the general harm that would follow from throwing the door open to a multiplicity of appeals in a single case.
In the light of these considerations, we reverse the ruling laid down in Africa v. Africa, 42 Phil. 934, as reiterated in Villanueva v. Capistrano, 49 Phil. 460, as well as the ruling laid down in Heacock v. American Trading Co., 53 Phil., 481, as reiterated in Prophylactic Brush Co. et al. v. Court of Appeals et al., G.R. No. 46254, November 23, 1938 (unpublished), and reaffirm the doctrine laid down in Ron v. Mojica, 8 Phil. 172, and Natividad v. Villarica, 31 Phil. 172 as reiterated in Vivencio v. Borja, 50 Phil. 148, and Sancho v. Lazarraga, Phil. 601.
The order of dismissal of petitioner's appeal rendered by the Court of Appeals is hereby affirmed, with costs against petitioner.
In the light of the consideration thus luminously and logically put forth by a member of the Court recognized to be more than ordinarily knowledgeable in matters of procedure, and considering that the arguments adduced by Justice Reyes and petitioner's counsel, which are more or less mere repetitions of those already taken into account in the above opinion, We are loathe to further confuse the bench and the bar with another ruling inconsistent therewith, which would make it patent that the Supreme Court cannot make up its mind on a point of procedure, as to which it should not be uncertain precisely because it promulgated the rules on the matter1 subsequent already to the conflicting decisions in Roa vs. Mojica and the ones that followed it on the one hand, and in Africa vs. Africa and the ones that reiterated it, on the other. It is to be presumed that the Court had these two lines of decisions in mind and that in formulating Section 2 of Rule 41 and the other provisions related thereto it meant to remove any doubt as to which line to follow. It was precisely to this end that Mr. Justice Moran elucidated on the true import of the pertinent provisions of the Rules of Court. Indeed, We cannot perceive any cogent reason for returning to the overruled doctrine in Africa vs. Africa. If any modification of the Fuentebella ruling is believed desirable, it should be done only by amending the corresponding rules, in order that the change may have prospective effect only and proceedings in which the parties and the Court had to adhere to said ruling, it being the prevailing one, may not be placed at a disadvantage merely because they have followed the existing rule and its interpretation by the Supreme Court. For the present, the Court does not contemplate any such modification or amendment of the existing rules.
Withal, in Zaldarriaga vs. Enriquez, G.R. No. L-13252, April 29, 1961, 1 SCRA 1188, Mr. Justice Arsenio Dizon, who was a well known and respected professor and reviewer of remedial law in many law schools for a long time, explained further that the order recognizing the right of the plaintiff to a partition is not the judgment, for under Section 7 of Rule 71,2 it is only after hearing (the report of the commissioners) that the court is supposed to render a final judgment, Here is how Mr. Justice Dizon spoke for a unanimous court in that case:
While upon the facts above stated, the respondent court, in our opinion, erred firstly, in not allowing petitioner to adopt the appeal bond and the record on appeal filed by the other defendants and which court had already approved, and secondly, in sustaining the motion to dismiss filed by respondent Basilia F. Vda. de Zaldarriaga, because (a) the appeal bond and record on appeal filed by the other defendants were sufficient for the purposes of the appeal interposed by the herein petitioner, and (b) because the latter filed her separate record on appeal within the extension granted by the lower court itself, still we are constrained to deny the present petition for mandamus to compel the respondent court to give due course to petitioner's appeal, for the reason that the decision from which she and her co-defendants are appealing is not final but interlocutory (Fuentebella vs. Carrascoso, G.R. No. L-48102, May 27,1942). It is true that in Africa vs. Africa, 42 Phil. 934 and other cases it was held — contrary to the rule laid down in Roa vs. Mojica, 8 Phil. 328; Rodriguez vs. Ravilan, 17 Phil. 63- that in a partition case where defendant relies on the defense of exclusive ownership, the action becomes one for title and the decision or order directing partition is final, but the ruling to this effect has been expressly reversed in the Fuentabella cue which, in our opinion, express the correct view, con that a decision or order directing partition is not final because it leaves something more to be done in the trial court for the complete disposition of the case, namely, the appointment of commissioners, the proceedings to be had before them, the submission of their report which, according to law, must be set for hearing. In fact, it is only after said hearing that the court may render a final judgment finally disposing of the action (Rule 71, section 7, Rules of Court). Precisely in accordance with this procedure the decision from which petitioner and her co-parties intend to appeal provides for the appointment of the Clerk of Court and Segundo Hipolito as Commissioners "We make an equitable separation, delineation and partition of the respective share of the land pertaining to each co-owner, etc".
Thus, the only point which We have to determine is whether or not, because of the interlocutory character of said decision or order, the respondent judge acted illegally or in excess of his jurisdiction or with grave abuse of discretion in practically setting aside and modifying the same substantially, upon a review of the record made by him and for the reasons stated in the amended decision. In other words, the broad fundamental issue here revolves around the power of a court relative to an interlocutory order or judgment. In this respect, We need only to recall that in Manila Electric Co. vs. Arciaga, et al, 50 Phil. 144, this Court explained the nature of an interlocutory order or judgment thus:
As to the legal question whether or not the decision of this court revoking the order of the lower court sustaining the demurrer to the complaint constitutes res judicata, since the facts involved are the same, it is sufficient to cite the doctrine laid down by the Supreme Court of Arizona in the case of Reilly vs. Perkins (56 Pac., 734), which reads as follows:
The doctrine of res judicata amounts simply to this: That a cause of action once finally determined without appeal, between the parties on its merits, cannot afterwards be litigated by new proceedings, either before the same or any other tribunal. It is only, however, a final judgment upon the merits to which this doctrine applies. Until final judgment is reached, the proceedings are subject to change and modification, are imperfect and inchoate, and can avail nothing as a bar until the judgment, with its verity as a record, settles finally and conclusively the questions and issues. An interlocutory order or decree made in the progress of a case is always under the control of the court until the final decision of the suit, and may be modified or rescinded upon sufficient grounds shown at any time before final judgment, though it be after the term in which the interlocutory order or decree was given, and is not, therefore, a final judgment, to which the doctrine of res adjudicata can apply. (Foster vs. Richard Busteed, 100 Mass., 412; Webb vs. Buckelew, 82 N.Y., 555; Black, Judge., 308.)
An interlocutory order, overruling a general demurrer to a complaint, is not res judicata of its sufficiency to support a judgment for plaintiff, and hence is no bar to the subsequent vacation of such order at a subsequent term, and the entry of judgment on the pleadings in favor of defendant, since the doctrine of res judicata applies only to a final judgment on the merits.'
Moreover, it must be borned that in the juridical sense, the prayer for accounting or partition in relation to a controversy wherein ownership of property is in issue or where the right to an accounting or to a partition is disputed, is not a mere incident or consequence of the main issue but is one of the reliefs arising from a single cause of action together with the ownership or right to accounting or partition alleged in the complaint. Viewed in this light, it is easy to understand that only a single judgment can be rendered by the court in a case of such nature, for the simple reason that in the same manner that a single cause of action cannot be split in order to be made the subject of more than one complaint or action, the judgment in regard to a single cause of action may not also be split into several parts, each having a final character of its own. It is in the very nature of these kinds of action that some sort of a preliminary finding has to be made before the longer and more complicated matter of accounting or partition is taken up, tried and determined by the court. And because such finding is intended to be merely preliminary, since it is conceivable that the same may be affected by incidents or questions related to the actual accounting or partition, it is but proper and wise to leave room for the court to make such modification, amendments and alteration of its preliminary findings and holdings as it may deem demanded by the circumstances and interests of justice. It is not, therefore, correct to say, as Justice Reyes asserts in his dissenting opinion, that multiplicity of appeals is more tolerable than the impairment of the stability of a judgment, since there is no judgment to speak of but merely a preliminary finding which is not supposed to acquire any stability until the final judgment is rendered. Furthermore, the point of policy underlying is the Fuentebella ruling as stated in the opinion penned by Chief Justice Moran, is the avoidance of multiple appeals, hence the test of the finality of a judgment is not whether or not it dispose of the contention of the parties or touches on the merits of the case but whether it finally disposes of that legal proceeding, so that nothing more can be done with it in the court where it is determined or whether it disposes of the action. Accordingly, We cannot accept the theory that the preliminary finding must be considered as beyond reconsideration by the court, even if he should find the same erroneous after a review of the record. And the fact that herein respondent judge was not the one who made the preliminary finding is immaterial, for what the original judge can do, his successor can also do. (Mercado vs. Ocampo, 72 Phil. 318).
Thus, We find no error in the following holding in the resolution of the Court of Appeals under review:
The decision of then Judge Mendoza being still interlocutory, the main issue is whether a presiding Judge of a Court of First Instance acted with grave abuse of discretion amounting to a total lack of jurisdiction in changing or amending a decision which was still interlocutory, made by the prior presiding Judge of the same Court of First Instance.
We reiterate our finding that respondent Judge can, as he did, amend the decision of the prior presiding Judge of the same CFI and that in so doing he acted within his jurisdiction and according to his duty as a court, with the inherent power to amend and control his processes and orders so as to make them conform to the law and justice (Sec. 5, Rule 124, Rules of Court). This principle has been decided time and again, with the holding that a presiding judge, may amend, modify and correct a decision of a previous presiding judge of the same court where said decision is not yet filial and executory (Daleon vs. CFI of Quezon, CA-G.R. No. 22416-R, March 31, 1958; Mercado vs. Ocampo, 72 Phil, 318; Dunning & Co. vs. See Pua, CA-G.R. .No. 8325-R, Oct. 26, 1942; Tan Le Po vs. Amparo, CA-G.R. No. 5615-R, June 23,1950; San Miguel Brewery, Inc, vs. CIR, 91 Phil. 178).
On the same point is the case of Chuakay vs. Herrerias, CA-G.R. No. 3893-R, June 30, 1952.
It can be done upon evidence received by the former presiding Judge (People vs. Samsono, CA-G.R. No. 1099-CR, Oct. 29,1947).
The respondent Judge having acted within his jurisdiction, any errors in the amended decision promulgated by him would be errors of judgment and not of jurisdiction, hence, correctible by regular appeal and not by the special civil action of certiorari.
IN VIEW OF ALL THE FOREGOING, the decision and resolution of the Court of Appeals under review are affirmed, with costs against petitioner.
Footnotes
1 The Rules of Court of 1940.
2 Section 7 of Rule 61,4 of the Revised Rules of 1964.
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