BROADWELL HAGANS vs. HON.

ADOLPH WISLIZENUS
42 Phil 880
September 13, 1920
FACTS:
This is a petition for the writ of certiorari with the only question of whether or
not a judge of a Court of First Instance in a special proceeding appoint an assessor
to fix the amount due to an administrator or executor for his services and expenses.
The respondent judge argues that he is authorized by then Act 190, to appoint
assessors in special proceedings. However, the petitioner argues in that respondent
has no authority to appoint assessors in special proceedings.
ISSUE:
Whether or not a judge can appoint assessors in the present action?
HELD:
No. The court differentiated between an action and a special proceeding.
The cited Act 190 allows a judge to appoint assessors but only in actions, not in
special proceedings like the present action.
An action means an ordinary suit in a court of justice, while a special
proceeding is every other remedy furnished by law. An action is a formal demand
of ones legal rights in a court of justice in a manner prescribed by the court or by
the law. It is the method of applying legal remedies according to definite established
rules.
A special proceeding is an application or proceeding to establish the status
or right of a party, or a particular fact. Usually, no formal pleadings are required,
unless the statute expressly so provides. The remedy in special proceedings is
usually granted upon an application or motions. Examples of special proceedings
are appointment of administrator, guardians, tutors; contest of wills; change names
of persons; application for admission to the bar.