Borthwick Vs

Borthwick vs.
Castro-Bartolome
No. L-57338. July 23, 1987.*
WILLIAM B. BORTHWICK, petitioner, vs. HON. FLORELIANA CASTRO-BARTOLOME,
Presiding Judge, Br. XV, Makati, of the Court of First Instance of Rizal; JOSEPH E.
SCALLON, and JEWELL C. SCALLON, respondents.
Civil Procedure; Appeal; Party appealing from Court of First Instance (Now the
Regional Trial Court) to the Supreme Court may raise only questions of law.lt is not
for this Court to disturb the express finding of the Court of First Instance that Daniel
was Borthwick's resident domestic houseboy, and of sufficient age and discretion to
accept substituted service of summons for Borthwick. Under Rule 42 of the Rules of
Court, a party appealing from the Courts of First Instance (now the Regional Trial
Courts) to the Supreme Court may "raise only questions of law, (and) no other
question **," and is thus precluded from impugning the factual findings of the trial
court, being deemed to have admitted the correctness of such findings and waived
his right to open them to question.
PETITION for review from the decision of the Court of First Instance of Makati, Br. XV.
Castro-Bartolome, J.
The facts are stated in the opinion of the Court.

NARVASA, J.:
By action commenced in the Circuit Court of the First Circuit, State of Hawaii,
U.S.A.,1 Joseph E. Scallon sought to compel payment by William B. Borthwick on
four (4) promissory notes2 in the amounts of $32,408.95, $29,584.94, $2,832.59
and $40,000.00, plus stipulated interest. Scallon's complaint alleged, inter alia, that
Borthwick, an American citizen living in the Philippines, owned real property
interests in Hawaii where he last resided and transacted business therein; that
business dealings which transpired in Honolulu, Hawaii had given rise to the
promissory notes sued upon, and Borthwick had failed to pay the sums thereunder
owing upon maturity and despite demand.3 Attached to the complaint were the
promissory notes, which although uniformly specifying the city of Palos Verdes, Los
Angeles, California as the place of payment, also provided that
"in the event that payment *** shall not have been made in full on or before the
maturity date *** at *** (such) place ***, payee may select, at his option, Manila,
Philippines, or Honolulu, Hawaii as additional places for payment *** and *** any
court in any of said places having jurisdiction over the subject matter shall be a
proper Court for the trial of any action brought to enforce payment of this note and
the law of the place in which said action is brought shall apply."4
Borthwick being then in Monterey, California, summons5 was served upon him
personally in that place, pursuant to Hawaiian law allowing service of process on a
person outside the territorial confines of the State, if he had otherwise submitted
himself to the jurisdiction of its courts as to causes of action arising from, among
others, the act of transacting any business within Hawaii6alleged to consist as to
Borthwick in the negotiation and dealings regarding the promissory notes.
Borthwick ignored the summons. Default was entered against him, and in due
course a default judgment was rendered as follows:
"DEFAULT JUDGMENT
"That Defendant WILLIAM B. BORTHWICK having failed to plead or otherwise defend

in the above-entitled action and his default having been duly entered herein;
"Now, upon the application of the Plaintiff JOSEPH E. SCALLON and upon the
affidavit that the Defendant WILLIAM B. BORTHWICK is indebted to said Plaintiff in
the sum of $104,817.48.
"IT IS HEREBY ORDERED, ADJUDGED, and decreed that Plaintiff JOSEPH E. SCALLON
recover from Defendant WILLIAM B. BORTHWICK the sum of $104,817.48 together
with
"(1) The transaction of any business within the State;
xxx
xxx
xxx
"(3) The ownership, use or possession of any real estate situated in this State;
xxx
xxx
xxx
(b) Service of process upon any person who is subject to the jurisprudence of the
courts of this State, as provided in this section, may be made as provided by
sections 634-36, if he cannot be found in the State, with the same force and effect
as though summons had been personally served within this State.
"[634-36] Manner of service under sections 634-33 to 35.
When service of summons is provided for by sections 634-33, 634-34, or 634-35,
service shall be made by leaving a certified copy thereof with the director of
regulatory agencies or his deputy, *** provided that notice of the service and a
certified copy of the summons are served upon the defendant personally by any
person authorized to serve process in the place which he may be found or
appointed by the court for that purpose, or sent by certified or registered mail ***.
The service shall be deemed complete upon delivery of the required papers to the
defendant outside the State, personally or by mail as provided;" Rollo, pp. 143-144.
232
232
SUPREME COURT REPORTS ANNOTATED
Borthwick vs. Castro-Bartolome
interest in the sum of $41,807.93, costs of Court in the sum of $37.00 and
attorney's fees in the sum of $4,290.64 for a total sum of $150,953.05.
DATED: Honolulu, Hawaii, APR. 30, 1987.
"(Sgd.)
V. CHING
Clerk of the above-entitled Court"7
However, Scallon's attempts to have the judgment executed in Hawaii and
California failed, because no assets of Borthwick could be found in those states.8
Scallon and his wife, Jewell, then came to the Philippines and on March 15, 1980
brought suit against Borthwick in the Court of First Instance of Makati,9 seeking
enforcement of the default judgment of the Hawaii Court and asserting two other
alternative causes of action.10
The sheriff's initial efforts to serve summons on Borthwick personally at his address
at 861 Richmond St., Greenhills, Mandaluyong, Metro Manila having been
unsuccessfulBorthwick was "always out on official business"the sheriff effected

substituted service by leaving a copy of the summons and the complaint with
Borthwick's "house caretaker," a man named Fred Daniel. 11
_______________
7 Rollo, p. 68; also p. 63.

8 Rollo, p. 30.
9 Docketed therein as Civil Case No. 36503.
10 Joseph Scallon alternatively sued upon the same promissory notes subject of the
foreign judgment "in the remote possibility that the Hawaiian Decision *** will not
be *** enforced." Under the second alternative cause of action, the Spouses Scallon
prayed for the return of 800 shares of stock in the Manila Memorial Park and 180
shares in the Trans-Pacific Development Management Corporationcapital stock the
Scallons assigned to Borthwick on December 3, 1973 in consideration for his
assumption of their liability for the purchase price thereof to Nathan Ira Tinkham,
but which indebtedness the spouses were eventually compelled to settle anyway,
hence the issuance by Borthwick of two of the four unpaid promissory notes.
11 Rollo, p. 81.
233
VOL. 152, JULY 23, 1987

233
Borthwick filed no answer to the Scallons' complaint. He was declared in default.
After due proceedings judgment by default was rendered against him, the
dispositive portion of which reads:
"WHEREFORE, judgment is hereby rendered as follows:
1. The decision of the Court of Hawaii in Civil Case No. 56660 reading:
'IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff JOSEPH E. SCALLON
recover from Defendant WILLIAM B. BORTHWICK the sum of $104,817.48 together
with interest in the sum of $41,807.93, costs of Court in the sum of $37.00 and
attorney's fees in the sum of $4,290.64 for a total sum of $150,53.05.'
may be, as it is hereby ordered, enforced in the Philippines.
2. The second alternative cause of action in the event that the satisfaction of the
said judgment becomes impossible, the rescission of the agreement (Exh. L) of the
parties is hereby granted. Defendant Borthwick is hereby ordered:
"(a) To return and deliver to plaintiffs Joseph and Jewell Scallon their 800 shares of
stock of Manila Memorial Park Cemetery, Inc. and 180 shares of stock of TransPacific Development Management Corporation, together with any and/or all stock
dividends, cash dividends and similar corporate distributions accruing to said shares
of stock from and after December 3, 1973 (the date of the Agreement, Exh. L);
"(b) In the event that such shares cannot be returned and delivered, to pay to
plaintiff Scallon the value of the same from the execution of the agreement, Exh. L,
together with any increase in value from the said date to the finality of this
judgment.
"SO ORDERED.12
Again, it was with Fred Daniel, identifying himself as Borthwick's "houseboy," that a
copy of the decision was left.13
_______________
12 Rollo, pp. 104-105.

13 Rollo, p. 245.
234
234
No response from Borthwick was forthcoming until after the Court subsequently
amended its judgment so as to make the sums due under the Hawaii Court decision
payable in their equivalent in Philippine currency.14 Notice of this amendatory order
was somehow personally accepted by Borthwick at this time. Borthwick then moved
for a new trial, claiming that it was by accident, mistake and excusable negligence
that his "off and on itinerant gardener," Daniel, failed to transmit the summons to
him, which omission consequently prevented Borthwick from knowing of the judicial
proceedings against him., Alleging too that "the promissory notes did not arise from
business dealings in Hawaii," nor "did (he) own real estate" therein,15 Borthwick
contended that the judgment sought to be enforced was invalid for want of
jurisdiction of the Hawaii Court over the cause of action and over his person.
The motion for new trial was denied by the Trial Court upon the factual finding that
"Fred Daniel is a responsible person" "of suitable age and discretion" "resident of
the address *** (of the) defendant" on whom substituted service of summons had
been duly made.16 As to Borthwick's attack on the validity of the foreign judgment,
the Trial Court ruled that "under the ** (Hawaii Revised Statute) cited by the
defendant the Hawaii Court has jurisdiction" because the factual premises upon
which the exercise of such jurisdiction was based "had not been refuted by the
defendant" although he "appears to be a lawyer, and the summons in the Hawaii
case was served personally on him."17 Finally, the Trial Court disposed of
Borthwick's other defenses18 saying that the present action "is (for)
_______________
14 Rollo, p. 107.
15 Rollo, pp. 9-10.
16 Rollo, pp. 173-174.
17 Rollo, pp. 175.
18 That "the promissory note for $32,408.95 *** was not genuine ***; that he has
*** valid counterclaims against plaintiff;" that the clause "whereby (Borthwick)
agreed to save Scallon harmless from all claims by Tinkham was cancelled;" that
"the stocks were really transferred to (Borthwick's) wife and the *** notes,
consideration of said transfer, have prescribed; that the stocks have already been
conveyed *** to third persons; that the action for rescission has already prescribed;"
Rollo, p. 120.
235
VOL. 152, JULY 23, 1987

235
the enforcement of a foreign judgment" where the validity of his defenses to the
original action is immaterial.19
Borthwick proceeded directly to this Court and filed a petition for review,20 raising
issues of law, framed as follows:
"1. Is a foreign judgment against a person rendered without jurisdiction over the
cause of action and without proper summons to the defendant enforceable in the
Philippines?
"2. Has the respondent Judge acquired jurisdiction over the person of defendant
when summons was served on an itinerant gardener who did not reside in
defendant's house?
"3. Where a motion for new trial was filed on time, duly supported with affidavits to
prove the grounds relied upon, should not the Court grant the same?21
It is true that a foreign judgment against a person is merely "presumptive evidence
of a right as between the parties," and rejection thereof may be justified, among
others, by "evidence of a want of jurisdiction" of the issuing authority, under Rule 39
of the Rules of Court.22 In the case at bar, the jurisdiction of the Circuit Court of
Hawaii hinged entirely on the existence of either of two facts in accordance with its
State laws, i.e., either Borthwick owned real property in Hawaii, or the promissory
notes sued upon resulted from his business transactions therein. Scallon's complaint
clearly alleged both facts. Borthwick was accorded opportunity to answer the
complaint and impugn those facts, but he failed to appear and was in consequence
declared in default. There thus exists no evidence in the record of the Hawaii case
upon which to lay a conclusion of lack of jurisdiction, as Borthwick now urges.
The opportunity to negate the foreign court's competence by proving the nonexistence of said jurisdictional facts established in the original action, was again
afforded to Borthwick in the Court of First Instance of Makati, where enforcement of
the Hawaii judgment was sought. This time it was the sum_______________
19 Rollo, p. 176.
20 Rollo, p. 13.
21 Section 50(b) of Rule 39, Rules of Court.
22 Sec. 2, Rule 42, Rules of Court.
236
236

mons of the domestic court which Borthwick chose to ignore, but with the same
result: he was declared in default. And in the default judgment subsequently
promulgated, the Court a quo decreed enforcement of the judgment affirming
among others the jurisdictional facts, that Borthwick owned real property in Hawaii
and transacted business therein.
In the light of these antecedents, it is plain that what Borthwick seeks in essence is
one more opportunity, a third, to challenge the jurisdiction of the Hawaii Court and
the merits of the cause of action which that Court had adjudged to have been
established against him. This he may obtain only if he succeed in showing that the
declaration of his default was incorrect. He has unfortunately not been able to do
that; hence, the verdict must go against him.
It is not for this Court to disturb the express finding of the Court of First Instance
that Daniel was Borthwick's resident domestic houseboy, and of sufficient age and
discretion to accept substituted service of summons for Borthwick. Under Rule 42 of
the Rules of Court, a party appealing from the Courts of First Instance (now the
Regional Trial Courts) to the Supreme Court may "raise only questions of law (and)
no other question **,"23 and is thus precluded from impugning the factual findings
of the trial court, being deemed to have admitted the correctness of such findings24
and waived his right to open them to question.25
In any case, a review of the records shows that the Trial Court was correct in
refusing to believe Borthwick's representation that "Daniel gardens at the residence
of Borthwick, then goes home to La Union after gardening itinerantly." As
_______________
23 Fernandez v. Fernandez, et al. 88 Phil. 162; Comilang v. Delenela, et al., 10 SCRA

598 citing Jacinto v. Jacinto, L-12313, July 31, 1959; Abuyo v. De Suazo, 18 SCRA
600, citing Aballo v. Santino, L-16307, April 30, 1963, Cabrera et al. v. Tiano, L17299, July 31, 1963; DBP v. Ozarraga, L-16631, July 20, 1965; Cason v. San Pedro,
9 SCRA 925.
24 Descutido v. Baltazar, 1 SCRA 1171; Flores v. Plasina, 94 Phil. 327.
25 Wilson v. Berkenkotter, 92 Phil. 918; Flores v. Plasina, supra; J.M. Tuason & Co.,
Inc. v. Macalindong, 6 SCRA 938.
237
VOL. 152, JULY 23, 1987

237
Adamson & Adamson, Inc. us. Amores
said Court observed, that situation is "ridiculous," it being "queer and hardly
coincidental why on all papers served on the defendant, it was Fred Daniel who
signed and acknowledged receipt."26
There was therefore no error committed by the Trial Court when it denied
Borthwick's motion to lift the order of default (which is what the motion for new trial
actually is) because Borthwick had failed to establish any proper ground therefor.
WHEREFORE, the petition for review is denied, with costs against petitioner.
SO ORDERED.
Teehankee (C.J.), Cruz, Paras and Gancayco, JJ., concur.
Petition denied. Borthwick vs. Castro-Bartolome, 152 SCRA 229, No. L-57338 July 23,
1987
EMILIE ELMIRA RENE BOUDARD, RAYMOND ANTONIN BouDARD, GINETTE ROSE

ADELAIDE BOUDARD and MONIQUE VICTOIRE BOUDARD, plaintiffs and appellants,
vs. STEWART EDDIE TAIT, defendant and appellee.
1.EVIDENCE; FOREIGN JUDICIAL RECORDS; REQUISITES FOR ADMISSION.It was
unnecessary for the lower court to admit Exhibits D, E, F and H to M-1, nor can
these exhibits be admitted as evidence, for the appellants failed to show that the
proceedings against the appellee in the Court of Hanoi were in accordance with the
laws of France then in force; and because it appears that said documents are not of
the nature mentioned in sections 304 and 305 of Act No. 190. They are not copies of
the judicial record of the proceedings against the appellee in the Court of Hanoi,
duly certified by the proper authorities there, whose signatures should be
authenticated by the Cansul or some consular agent of the United States in said
country.
2.ID. ; ID. ; ID. ; CERTIFIED COPY OF FOREIGN JUDICIAL RECORDS.The best
evidence of foreign judicial proceedings is a certified copy of the same with all the
formalities required in said sections 304 and 305 of Act No. 190, for only thus can
one be absolutely sure of the authenticity of the record. On the other hand,
171
VOL. 67, APRIL 5, 1939

171
Orient Protective Assurance Association vs. Ramos.
said exhibits or documents, if admitted, would only corroborate and strengthen the
evidence of the appellee which in itself is convincing, and the conclusion of the
lower court that the appellee is not liable for the amount to which he was sentenced
by the Hanoi Court, for he was not duly tried or even summoned in conformity with
law.
3.ID. ; ID. ; ID. ; SUMMONS UNDER THE LAW OF FRANCE.If the French law
regarding summons is according to its English translation presented by the
appellants: "SEC. 69 (par. 8). Those who have no known residence in France, in the
place of their present residence: if the place is unknown, the writ shall be posted at
the main door of the hall of the court where the complaint has been filed; a second
copy shall be given to the AttorneyGeneral of the Republic who shall visae the
original", then the law was not complied with in the summons allegedly made upon
the appellee, because Exhibits E, E-1, F and F-1 show that the alleged summons
delivered to the appellee in Manila on September 18, 1933, was delivered to one, J.
M. S., representative and agent of Churchill & Tait, Inc., which is a company entirely
foreign to the said appellee.
4.ID. ; ID. ; ID. ; ID.The evidence of record, on the other hand, shows that the
appellee was not in Hanoi during the time referred to; in the complaint, nor were his
employees or representatives or his people in general there. The rule in matters of
this nature is that judicial proceedings in a foreign country, regarding payment of
money, are only effective against a party if summons is duly served on him within
such foreign country before the proceedings.
5.ID. ; ID. ; ID. ; "PRIMA FACIE" EVIDENCE.The decision and judgment rendered by
the Court of Hanoi are not and should not be conclusive in this jurisdiction; under
our laws they are only prima facie evidence that the appellants' claim is just. They
admit proof to the contrary under section 311 of Act No. 190, as construed in
Ingenohl vs. Walter E. Olsen & Co. (47 Phil., 189).
APPEAL from a judgment of the Court of First Instance of Manila. Tuason, J.
The facts are stated in the opinion of the court.

Ramirez & Ortigas for appellants.
Gibbs, McDonough & Ozaeta for appellee.
DIAZ, J.:
172
172
PHILIPPINE REPORTS ANNOTATED
Plaintiffs appeal from a judgment of the Court of First Instance of Manila dismissing
the case instituted by them, thereby overruling their complaint, and sentencing
them to pay the costs. They now contend in their brief that:
"I. The lower court erred in not admitting Exhibits D, E, F and H to M-1 of plaintiffs.
"II. The lower court erred in declaring that it was indispensable for the defendant to
be served with summons in Hanoi.
"III. The lower court erred in declaring that service by publication, with personal
notice by the French Consul in Manila, was not sufficient.
"IV. The lower court erred in declaring that the Court "of Hanoi had no jurisdiction
over the person of the defendant.
"V. The lower court erred in dismissing this case, instead of sentencing the
defendant to pay to the plaintiffs the amounts claimed in the complaint as adjudged
by the Court of Hanoi; and
"VI. The lower court erred in denying the motion for new trial on the ground that the
decision is contrary to the law and the evidence."
Briefly stated, the pertinent facts of the case, that we glean from the records, are as
follows: The appellant Emilie Elmira Rene Boudard, in her capacity as widow of
Marie Theodore Jerome Boudard and as guardian of her coappellants, her children
born during her marriage with the deceased, obtained a judgment in their favor
from the civil division of the Court of First Instance of Hanoi, French Indo-China, on
June 27, 1934, for the sum of 40,000 piastras, equivalent, according to the rate of
exchange at the time of the rendition of the judgment, to P56,905.77, Philippine
currency, plus interest the amount or rate of which is not given. The judgment was
rendered against Stewart Eddie Tait who had been declared in default for his failure
to appear at the trial before said court.
Appellants' action, by virtue of which they obtained the
173
VOL. 67, APRIL 5, 1939

173
foregoing judgment, was based on the fact that Marie Theodore Jerome Boudard,
who was an employee of Stewart Eddie Tait, was killed in Hanoi by other employees
of said Tait, although "outside of the fulfillment of a duty", according to the English
translation of a certified copy of the decision in French, presented by the appellants.
The dismissal of appellants' complaint by the lower court was based principally on
the lack of jurisdiction of the Court of Hanoi to render the judgment in question, for
the execution of which this action was instituted in this jurisdiction. The lack of
jurisdiction was discovered in the decision itself of the Court of Hanoi which states
that the appellee was not a resident of, nor had a known domicile in, that country.
The evidence adduced at the trial conclusively proves that neither the appellee nor
his agent or employees were ever in Hanoi, French Indo-China; and that the
deceased Marie Theodore Jerome Boudard had never, at any time, been his
employee. The appellee's first intimation of his having been sued and sentenced to
pay a huge sum by the civil division of the Court of First Instance of Hanoi was when
he was served with summons in the present case.
Passing now to the consideration of the errors assigned by the appellants, we must
say that it was really unnecessary for the lower court to admit Exhibits D, E, F and H
to M-1, nor can these exhibits be admitted as evidence, for, as to the first point, the
appellants failed to show that the proceedings against the appellee in the Court of
Hanoi were in accordance with the laws of France then in force; -and as to the
second point, it appears that said documents are not of the nature mentioned in
sections 304 and 305 of Act No. 190. They are not copies of the judicial record of
the proceedings against the appellee in the Court of Hanoi, duly certified by the
proper authorities there, whose signatures should be authenticated by the Consul or
some consular agent of the United States in said country. The appellants argue that
the papers are the original documents and that the Honorable French Consul in the
Philippines has confirmed this fact. Such argument is not sufficient to authorize a
deviation from a rule established and sanctioned by law. To comply with the rule,
the best evidence of foreign judicial proceedings is a certified copy of the same with
all the formalities required in said sections 304 and 305 for only thus can one be
absolutely sure of the authenticity of the record. On the other hand, said exhibits or
documents, if admitted, would only corroborate and strengthen the evidence of the
appellee which in itself is convincing, and the conclusion of the lower court that the
appellee is not liable for the amount to which he was sentenced, as alleged, for he
was not duly tried or even summoned in conformity with the law. It is said that the
French law regarding summons, according to its English translation presented by
the appellants, is of the following tenor:
"SEC. 69 (par. 8). Those who have no known residence in France, in the place of
their present residence: if the place is unknown, the writ shall be posted at the main
door of the hall of the court where the complaint has been filed; a second copy shall
be given to the Attorney-General of the Republic who shall visae the original," But
then, Exhibits E, E-1, F and F-1 show that the summons alleged to have been
addressed to the appellee, was delivered in Manila on September 18, 1933, to J. M.
Shotwell, a representative or agent of Churchill & Tait Inc., which is an entity entirely
different from the appellee.
Moreover, the evidence of record shows that the 'appellee was not in Hanoi during
the time mentioned in the complaint of the appellants, nor were his employees or
representatives. The rule in matters of this nature is that judicial proceedings in a
foreign country, regarding payment of money, are only effective against a party if
summons is duly served on him within such foreign country before the proceedings.
"The fundamental rule is that jurisdiction in personam over nonresidents, so as to
sustain a money judgment, must be based upon personal service within the state
which renders the judgment. (Pennoyer vs. Neff, 95 U. S., 714; 24 Law. ed., 565;
Twining vs. New Jersey, 211 U. S., 78; 29 S. Ct, 14; 53 Law. ed., 97; Continental
National Bank of Boston vs. Thurber, 143 N. Y., 648; 37 N. E., 828.)
"The process of a court of one state cannot run into another and summon a party
there domiciled to respond to proceedings against him. (Hess vs. Pawloski, 274 U.
S., 352, 355; 47 S. Ct, 632, 633 [71 Law. ed., 109].) Notice sent outside the state to
a nonresident is unavailing to give jurisdiction in an action against him personally
for money recovery. (Pennoyer vs. Neff, 95 U. S., 714 [24 Law. ed., 565].) There
must be actual service within the State of notice upon him or upon some one
authorized to accept service for him. (Goldey vs. Morning News, 156 U. S., 518 [15
S. Ct., 559; 39 Law. ed., 517].) A personal judgment rendered against a nonresident,
who has neither been served with process nor appeared in the suit, is without
validity. (McDonald vs. Mabee, 243 U. S., 90 [37 S. Ct., 343; 61 Law. ed., 608; L. R. A.
1917F, 458].) The mere transaction of business in a state by nonresident natural
persons does not imply consent to be bound by the process of its courts. (Flexner
vs. Farson, 248 U. S., 289 [39 S. Ct, 97; 63 Law. ed., 250].)" (Cited in Skandinaviska
Granit Aktiebolaget vs. Weiss, 234 N. Y. S., 202, 206, 207.)
"The process of a court has no extraterritorial effect, and no jurisdiction is acquired
over the person of the defendant by serving him beyond the boundaries of the
state. Nor has a judgment of a. court of a foreign country against a resident of this
country having no property in such foreign country based on process served here,
any effect here against either the defendant personally or his property situated
here." (5 R. C. L., 912.)
"Process issuing from the courts of one state or country cannot run into another,
and although a nonresident defendant may have been personally served with such
process in the state or country of his domicile, it will not give such jurisdiction as to
authorize a personal judgment against him." (23 Cyc., 688.)
176
176
It can not be said that the decision rendered by the Court of Hanoi should be
conclusive to such an extent that it cannot be contested, for it merely constitutes,
from the viewpoint of our laws, prima facie evidence of the justness of appellants'
claim, and, as such, naturally admits proof to the contrary. This is precisely the
provision of section 311 of Act No. 190, as interpreted in the case of Ingenohl vs.
Walter E. Olsen & Co. (47 Phil., 189) :
"The effect of a judgment of any other tribunal of a foreign country, having
jurisdiction to pronounce the judgment, is as follows:
"1. In case of a judgment against a specific thing, the judgment is conclusive upon
the title to the thing;
"2. In case of a judgment against a person, the judgment is presumptive evidence of
a right as between the parties and their successors in interest by a subsequent title;
but the judgment may be repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact" (Sec. 311 of Act
No. 190.)
In view of the foregoing considerations, our conclusion is that we find no merit in
the errors assigned to the lower court and the appealed judgment is in accordance
with the law.
Wherefore, the judgment is affirmed, with costs against the appellants. So ordered.
Avancea, C. J., Villa-Real, Imperial, Laurel, and Moran, JJ., concur.
Judgment affirmed. Orient Protective Assurance Association vs. Ramos., 67 Phil.

170, No. 45193 April 5, 1939
Northwest Orient Airlines, Inc. vs. Court of Appeals

G.R. No. 112573. February 9, 1995.*
NORTHWEST ORIENT AIRLINES, INC., petitioner, vs. COURT OF APPEALS and C.F.
SHARP & COMPANY, INC., respondents.
Courts; Judgments; Jurisdiction; A foreign judgment is presumed to be valid and
binding in the country from which it comes, until the contrary is shown.A foreign
judgment is presumed to be valid and binding in the country from which it comes,
until the contrary is shown. It is also proper to presume the regularity of the
proceedings and the giving of due notice therein.
Same; Same; Same; A court, whether of the Philippines or elsewhere, enjoys the
presumption that it was acting in the lawful exercise of jurisdiction and has regularly
performed its official duty.Under Section 50, Rule 39 of the Rules of Court, a
judgment in an action in personam of a tribunal of a foreign country having
jurisdiction to pronounce the same is presumptive evidence of a right as between
the parties and their successors-in-interest by a subsequent title. The judgment
may, however, be assailed by evidence of want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact. Also, under Section 3 of Rule
131, a court, whether of the Philippines or elsewhere, enjoys the presumption that it
was acting in the lawful exercise of jurisdiction and has regularly performed its
official duty.
Same; Same; Same; The party attacking a foreign judgment has the burden of
overcoming the presumption of its validity.Consequently, the party attacking a
foreign judgment has the burden of overcoming the presumption of its validity.
Being the party challenging the judgment rendered by the Japanese court, SHARP
had the duty to demonstrate the invalidity of such judgment. In an attempt to
discharge that burden, it contends that the extraterritorial service of summons
effected at its home office in the Philippines was not only ineffectual but also void,
and the Japanese Court did not, therefore, acquire jurisdiction over it.
Same; Same; Same; It is settled that matters of remedy and procedure such as
those relating to the service of process upon a defendant are governed by the lex
fori or the internal law of the
______________
* FIRST DIVISION.
193
VOL. 241, FEBRUARY 9, 1995

193
forum.It is settled that matters of remedy and procedure such as those relating to
the service of process upon a defendant are governed by the lex fori or the internal
law of the forum. In this case, it is the procedural law of Japan where the judgment
was rendered that determines the validity of the extraterritorial service of process
on SHARP.
Same; Same; Same; It was then incumbent upon SHARP to present evidence as to
what that Japanese procedural law is and to show that under it, the assailed
extraterritorial service is invalid.As to what this law is is a question of fact, not of
law. It may not be taken judicial notice of and must be pleaded and proved like any
other fact. Sections 24 and 25, Rule 132 of the Rules of Court provide that it may be
evidenced by an official publication or by a duly attested or authenticated copy
thereof. It was then incumbent upon SHARP to present evidence as to what that
Japanese procedural law is and to show that under it, the assailed extraterritorial
service is invalid. It did not. Accordingly, the presumption of validity and regularity
of the service of summons and the decision thereafter rendered by the Japanese
court must stand.
Same; Same; Same; In the light of the absence of proof regarding Japanese law, the
presumption of identity or similarity or the so-called processual presumption may be
invoked.Alternatively, in the light of the absence of proof regarding Japanese law,
the presumption of identity or similarity or the so-called processual presumption
may be invoked. Applying it, the Japanese law on the matter is presumed to be
similar with the Philippine law on service of summons on a private foreign
corporation doing business in the Philippines.
Same; Same; Same; The extraterritorial service of summons on it by the Japanese
Court was valid not only under the processual presumption but also because of the
presumption of regularity of performance of official duty.Inasmuch as SHARP was
admittedly doing business in Japan through its four duly registered branches at the
time the collection suit against it was filed, then in the light of the processual
presumption, SHARP may be deemed a resident of Japan, and, as such, was
amenable to the jurisdiction of the courts therein and may be deemed to have
assented to the said courts' lawful methods of serving process. Accordingly, the
extraterritorial service of summons on it by the Japanese Court was valid not only
under the processual presumption but also because of the presumption of regularity
of performance of official duty.
194
194
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Sycip, Salazar, Hernandez & Gatmaitan for petitioner.
Singson, Valdez & Associates for private respondent.
DAVIDE, JR., J.:
This petition for review on certiorari seeks to set aside the decision of the Court of
Appeals affirming the dismissal of the petitioner's complaint to enforce the
judgment of a Japanese court. The principal issue here is whether a Japanese court
can acquire jurisdiction over a Philippine corporation doing business in Japan by
serving summons through diplomatic channels on the Philippine corporation at its
principal office in Manila after prior attempts to serve summons in Japan had failed.
Petitioner Northwest Orient Airlines, Inc. (hereinafter NORTHWEST), a corporation
organized under the laws of the State of Minnesota, U.S.A., sought to enforce in Civil
Case No. 83-17637 of the Regional Trial Court (RTC), Branch 54, Manila, a judgment
rendered in its favor by a Japanese court against private respondent C.F. Sharp &
Company, Inc., (hereinafter SHARP), a corporation incorporated under Philippine
laws.
As found by the Court of Appeals in the challenged decision of 10 November 1993,1

the following are the factual and procedural antecedents of this controversy:
On May 9, 1974, plaintiff Northwest Airlines and defendant C.F. Sharp & Company,
through its Japan branch, entered into an International Passenger Sales Agency
Agreement, whereby the former authorized the latter to sell its air transportation
tickets. Unable to remit the proceeds of the ticket sales made by defendant on
behalf of the plaintiff under the said agreement, plaintiff on March 25, 1980 sued
defendant in Tokyo, Japan, for collection of the unremitted proceeds of the ticket
sales, with claim for damages.
_______________
1 Annex "A" of Petition. Per Associate Justice Antonio M. Martinez; concurred in by

Associate Justices Cancio C. Garcia and Ramon Mabutas, Jr.
195

195
On April 11,1980, a writ of summons was issued by the 36th Civil Department,
Tokyo District Court of Japan against defendant at its office at the Taiheiyo Building,
3rd floor, 132, Yamashita-cho, Nakaku, Yokohama, Kanagawa Prefecture. The
attempt to serve the summons was unsuccessful because the bailiff was advised by
a person in the office that Mr. Dinozo, the person believed to be authorized to
receive court processes was in Manila and would be back on April 24, 1980.
On April 24, 1980, bailiff returned to the defendant's office to serve the summons.
Mr. Dinozo refused to accept the same claiming that he was no longer an employee
of the defendant.
After the two attempts of service were unsuccessful, the judge of the Tokyo District
Court decided to have the complaint and the writs of summons served at the head
office of the defendant in Manila. On July 11, 1980, the Director of the Tokyo District
Court requested the Supreme Court of Japan to serve the summons through
diplomatic channels upon the defendant's head office in Manila.
On August 28, 1980, defendant received from Deputy Sheriff Rolando Balingit the
writ of summons (p. 276, Records). Despite receipt of the same, defendant failed to
appear at the scheduled hearing. Thus, the Tokyo Court proceeded to hear the
plaintiffs complaint and on [January 29, 1981], rendered judgment ordering the
defendant to pay the plaintiff the sum of 83,158,195 Yen and damages for delay at
the rate of 6% per annum from August 28, 1980 up to and until payment is
completed (pp. 12-14, Records).
On March 24, 1981, defendant received from Deputy Sheriff Balingit copy of the
judgment. Defendant not having appealed the judgment, the same became final
and executory.
Plaintiff was unable to execute the decision in Japan, hence, on May 20, 1983, a suit
for enforcement of the judgment was filed by plaintiff before the Regional Trial Court
of Manila, Branch 54.2
On July 16, 1983, defendant filed its answer averring that the judgment of the
Japanese Court sought to be enforced is null and void and unenforceable in this
jurisdiction having been rendered without due and proper notice to the defendant
and/or with collusion or fraud and/or upon a clear mistake of law and fact (pp. 4145, Rec.).
Unable to settle the case amicably, the case was tried on the merits. After the
plaintiff rested its case, defendant on April 21, 1989, filed a Motion for Judgment on
a Demurrer to Evidence based on two grounds: (1) the foreign judgment sought to
be enforced is null and void for want of jurisdiction and (2) the said judgment is
contrary to Philippine law and public policy and rendered without due process of
law. Plaintiff filed its opposition after which the court a quo rendered the now
assailed decision dated June 21, 1989 granting the demurrer motion and dismissing
the complaint (Decision, pp. 376-378, Records). In granting the demurrer motion,
the trial court held that:
"The foreign judgment in the Japanese Court sought in this action is null and void for
want of jurisdiction over the person of the defendant considering that this is an
action in personam; the Japanese Court did not acquire jurisdiction over the person
of the defendant because jurisprudence requires that the defendant be served with
summons in Japan in order for the Japanese Court to acquire jurisdiction over it, the
process of the Court in Japan sent to the Philippines which is outside Japanese
jurisdiction cannot confer jurisdiction over the defendant in the case before the
Japanese Court of the case at bar. Boudard versus Tait, 67 Phil. 170. The plaintiff
contends that the Japanese Court acquired jurisdiction because the defendant is a
resident of Japan, having four (4) branches doing business therein and in fact had a
permit from the Japanese government to conduct business in Japan (citing the
exhibits presented by the plaintiff); if this is so then service of summons should
have been made upon the defendant in Japan in any of these alleged four branches;
as admitted by the plaintiff the service of the summons issued by the Japanese
Court was made in the Philippines thru a Philippine Sheriff. This Court agrees that if
the defendant in a foreign court is a resident in the court of that foreign court such
court could acquire jurisdiction over the person of the defendant but it must be
served upon the defendant in the territorial jurisdiction of the foreign court. Such is
not the case here because the defendant was served with summons in the
Philippines and not in Japan."
Unable to accept the said decision, plaintiff on July 11, 1989 moved for
reconsideration of the decision, filing at the same time a conditional Notice of
Appeal, asking the court to treat the said notice of appeal "as in effect after and
upon issuance of the court's denial of the motion for reconsideration."
Defendant opposed the motion for reconsideration to which a Reply dated August
28, 1989 was filed by the plaintiff.
On October 16, 1989, the lower court disregarded the Motion for Reconsideration
and gave due course to the plaintiffs Notice of Appeal.3
_______________
3 Rollo, 28-31.
197

197
In its decision, the Court of Appeals sustained the trial court. It agreed with the
latter in its reliance upon Boudard us. Tait4 wherein it was held that "the process of
the court has no extraterritorial effect and no jurisdiction is acquired over the
person of the defendant by serving him beyond the boundaries of the state." To
support its position, the Court of Appeals further stated:
In an action strictly in personam, such as the instant case, personal service of
summons within the forum is required for the court to acquire jurisdiction over the
defendant (Magdalena Estate Inc. vs. Nieto, 125 SCRA 230). To confer jurisdiction on
the court, personal or substituted service of summons on the defendant not
extraterritorial service is necessary (Dial Corp. vs. Soriano, 161 SCRA 739).
But while plaintiff-appellant concedes that the collection suit filed is an action in
personam, it is its theory that a distinction must be made between an action in
personam against a resident defendant and an action in personam against a nonresident defendant. Jurisdiction is acquired over a non-resident defendant only if he
is served personally within the jurisdiction of the court, and over a resident
defendant if by personal, substituted or constructive service conformably to
statutory authorization. Plaintiff-appellant argues that since the defendantappellee
maintains branches in Japan, it is considered a resident defendant. Corollarily,
personal, substituted or constructive service of summons when made in compliance
with the procedural rules is sufficient to give the court jurisdiction to render
judgment in personam.
Such an argument does not persuade.
It is a general rule that processes of the court cannot lawfully be served outside the
territorial limits of the jurisdiction of the court from which it issues (Carter vs.
Carter, 41 S.E. 2d 532, 201) and this is regardless of the residence or citizenship of
the party thus served (lowaRahr vs. Rahr, 129 NW 494, 150 lowa 511, 35 LRC, NS,
292, Am. Case 1912 D680). There must be actual service within the proper
territorial limits on defendant or someone authorized to accept service for him.
Thus, a defendant, whether a resident or not in the forum where the action is filed,
must be served with summons within that forum.
But even assuming a distinction between a resident defendant and non-resident
defendant were to be adopted, such distinction applies only to natural persons and
not to corporations. This finds support in the concept that "a corporation has no
home or residence in the sense in which those terms are applied to natural persons"
(Claude Neon Lights vs. Phil. Advertising Corp., 57 Phil. 607). Thus, as cited by the
defendant-appellee in its brief:
"Residence is said to be an attribute of a natural person, and can be predicated on
an artificial being only by more or less imperfect analogy. Strictly speaking,
therefore, a corporation can have no local residence or habitation. It has been said
that a corporation is a mere ideal existence, subsisting only in contemplation of law
an invisible being which can have, in fact, no locality and can occupy no space,
and therefore cannot have a dwelling place. (18 Am. Jur. 2d, p. 693 citing Kimmerle
vs. Topeka, 88 370, 128 p. 367; Wood v. Hartfold F. Ins. Co., 13 Conn 202)"
Jurisprudence so holds that the foreign or domestic character of a corporation is to
be determined by the place of its origin, where its charter was granted and not by
the location of its business activities (Jennings v. Idaho Rail Light & P. Co., 26 Idaho
703, 146 p. 101). A corporation is a "resident" and an inhabitant of the state in
which it is incorporated and no other (36 Am. Jur. 2d, p. 49).
Defendant-appellee is a Philippine Corporation duly organized under the Philippine
laws. Clearly, its residence is the Philippines, the place of its incorporation, and not
Japan. While defendant-appellee maintains branches in Japan, this will not make it a
resident of Japan. A corporation does not become a resident of another by engaging
in business there even though licensed by that state and in terms given all the
rights and privileges of a domestic corporation (Galveston H. & S.A.R. Co. vs.
Gonzales, 151 US 496, 38 L ed. 248, 4 S Ct. 401).
On this premise, defendant appellee is a non-resident corporation. As such, court

processes must be served upon it at a place within the state in which the action is
brought and not elsewhere (St. Clair vs. Cox, 106 US 350, 27 L ed. 222, 1 S. Ct.
354).5
It then concluded that the service of summons effected in Manila or beyond the
territorial boundaries of Japan was null and did not confer jurisdiction upon the
Tokyo District Court over the person of SHARP; hence, its decision was void.
Unable to obtain a reconsideration of the decision, NORTHWEST elevated the case
to this Court contending that the respondent court erred in holding that SHARP was
not a resident
_______________
5 Rollo, 32-34.
199

199
of Japan and that summons on SHARP could only be validly served within that
country.
A foreign judgment is presumed to be valid and binding in the country from which it
comes, until the contrary is shown. It is also proper to presume the regularity of the
proceedings and the giving of due notice therein.6
Under Section 50, Rule 39 of the Rules of Court, a judgment in an action in
personam of a tribunal of a foreign country having jurisdiction to pronounce the
same is presumptive evidence of a right as between the parties and their
successors-in-interest by a subsequent title. The judgment may, however, be
assailed by evidence of want of jurisdiction, want of notice to the party, collusion,
fraud, or clear mistake of law or fact. Also, under Section 3 of Rule 131, a court,
whether of the Philippines or elsewhere, enjoys the presumption that it was acting
in the lawful exercise of jurisdiction and has regularly performed its official duty.
Consequently, the party attacking a foreign judgment has the burden of overcoming
the presumption of its validity.7 Being the party challenging the judgment rendered
by the Japanese court, SHARP had the duty to demonstrate the invalidity of such
judgment. In an attempt to discharge that burden, it contends that the
extraterritorial service of summons effected at its home office in the Philippines was
not only ineffectual but also void, and the Japanese Court did not, therefore, acquire
jurisdiction over it.
It is settled that matters of remedy and procedure such as those relating to the
service of process upon a defendant are governed by the lex fori or the internal law
of the forum.8 In this case, it is the procedural law of Japan where the judgment was
rendered that determines the validity of the extraterritorial service of process on
SHARP. As to what this law is is a question of fact, not of law. It may not be taken
judicial notice of and must be pleaded and proved like any other fact.9 Sections 24
and 25, Rule 132 of the Rules of Court provide that it may be evidenced by an
official publication or by a duly attested or authenticated copy thereof. It was then
incumbent upon SHARP to present evidence as to what that Japanese procedural
law is and to show that under it, the assailed extraterritorial service is invalid. It did
not. Accordingly, the presumption of validity and regularity of the service of

summons and the decision thereafter rendered by the Japanese court must stand.
Alternatively, in the light of the absence of proof regarding Japanese law, the
presumption of identity or similarity or the socalled processual presumption10 may
be invoked. Applying it, the Japanese law on the matter is presumed to be similar
with the Philippine law on service of summons on a private foreign corporation
doing business in the Philippines. Section 14, Rule 14 of the Rules of Court provides
that if the defendant is a foreign corporation doing business in the Philippines,
service may be made: (1) on its resident agent designated in accordance with law
for that purpose, or, (2) if there is no such resident agent, on the government
official designated by law to that effect, or (3) on any of its officers or agents within
the Philippines.
If the foreign corporation has designated an agent to receive summons, the
designation is exclusive, and service of summons is without force and gives the
court no jurisdiction unless made upon him.11
Where the corporation has no such agent, service shall be made on the government
official designated by law, to wit: (a) the Insurance Commissioner, in the case of a
foreign insurance company; (b) the Superintendent of Banks, in the case of a
foreign banking corporation; and (c) the Securities and Exchange Commission, in
the case of other foreign corporations duly licensed to do business in the
Philippines. Whenever service of process is so made, the government office or
official served shall transmit by mail a copy of the summons or other legal process
to the corporation at its home or principal office. The sending of such copy is a
necessary part of the service.12
SHARP contends that the laws authorizing service of process upon the Securities
and Exchange Commission, the Superintendent of Banks, and the Insurance
Commissioner, as the case may be, presuppose a situation wherein the foreign
corporation doing business in the country no longer has any branches or offices
within the Philippines. Such contention is belied by the pertinent provisions of the
said laws. Thus, Section 128 of the Corporation Code13 and Section 190 of the
Insurance Code14 clearly contem_______________
12 Section 190, Insurance Code; Section 17, General Banking Act; Section 128,
Corporation Code.
13 It reads:
SEC. 128. Resident Agent; service of process.x x x Any such foreign corporation
shall likewise execute and file with the Securities and Exchange Commission an
agreement or stipulation, executed by the proper authorities of said corporation, in
form and substance as follows:
x x x if at any time said corporation shall cease to transact business in the
Philippines, or shall be without any resident agent in the Philippines on whom any
summons or other legal processes may be served, then in any action or proceeding
arising out of any business or transaction which occurred in the Philippines, service
of any summons or other legal process may be made upon the Securities and
Exchange Commission and that such service shall have the same force and effect as
if made upon the duly-authorized officers of the corporation at its home office.
(Emphasis supplied).
14 It reads:
SEC. 190. x x x Any such foreign corporation shall, as further condition precedent to
the transaction of insurance business in the Philippines, make and file with the
Commissioner an
202
202
plate two situations: (1) if the corporation had left the Philippines or had ceased to
transact business therein, and (2) if the corporation has no designated agent.
Section 17 of the General Banking Act15 does not even speak of a corporation
which had ceased to transact business in the Philippines.
Nowhere in its pleadings did SHARP profess to having had a resident agent
authorized to receive court processes in Japan. This silence could only mean, or at
least create an impression, that it had none. Hence, service on the designated
government official or on any of SHARP's officers or agents in Japan could be availed
of. The respondent, however, insists that only service on any of its officers or
employees in its branches in Japan could be resorted to. We do not agree. As found
by the respondent court, two attempts at service were made at SHARP's Yokohama
branch. Both were unsuccessful. On the first attempt, Mr. Dinozo, who was believed
to be the person authorized to accept court process, was in Manila. On the second,
Mr. Dinozo was present, but he refused to accept the summons because, according
to him, he was
_______________
agreement or stipulation, executed by the proper authorities of said company in

form and substance as follows:
x x x if at any time said company shall leave the Philippines, or cease to transact
business therein, or shall be without any agent in the Philippines on whom any
notice, proof of loss, summons, or legal process may be served, then in any action
or proceeding out of any business or transaction which occurred in the Philippines,
service of any notice provided by law, or insurance policy, proof of loss, summons or
other legal process may be made upon the Insurance Commissioner, and that such
service upon the Insurance Commissioner shall have the same force and effect as if
made upon the company. (Emphasis supplied).
15 It provides:
SEC. 17. x x x
xxx
Should there be no person authorized by the corporation upon whom service of
summons, processes, and all legal notices may be made, service of summons,
processes, and legal notices may be made upon the Superintendent of Banks and
such service shall be as effective as if made upon the corporation or upon its duly
authorized agent. (Emphasis supplied).
203
203
no longer an employee of SHARP. While it may be true that service could have been
made upon any of the officers or agents of SHARP at its three other branches in
Japan, the availability of such a recourse would not preclude service upon the
proper government official, as stated above.
As found by the Court of Appeals, it was the Tokyo District Court which ordered that
summons for SHARP be served at its head office in the Philippines after the two
attempts of service had failed.16 The Tokyo District Court requested the Supreme
Court of Japan to cause the delivery of the summons and other legal documents to
the Philippines. Acting on that request, the Supreme Court of Japan sent the
summons together with the other legal documents to the Ministry of Foreign Affairs
of Japan which, in turn, forwarded the same to the Japanese Embassy in Manila.
Thereafter, the court processes were delivered to the Ministry (now Department) of
Foreign Affairs of the Philippines, then to the Executive Judge of the Court of First
Instance (now Regional Trial Court) of Manila, who forthwith ordered Deputy Sheriff
Rolando Balingit to serve the same on SHARP at its principal office in Manila. This
service is equivalent to service on the proper government official under Section 14,
Rule 14 of the Rules of Court, in relation to Section 128 of the Corporation Code.
Hence, SHARP's contention that such manner of service is not valid under Philippine
laws holds no water.17
In deciding against the petitioner, the respondent court sustained the trial court's
reliance on Boudard vs. Tait18 where this Court held:
"The fundamental rule is that jurisdiction in personam over nonresidents, so as to
sustain a money judgment, must be based upon personal service within the state
which renders the judgment."
"The process of a court has no extraterritorial effect, and no jurisdiction is acquired
over the person of the defendant by serving him beyond the boundaries of the
state. Nor has a judgment of a court of a foreign country against a resident of this
country having no property in
_______________
16 Decision of the Court of Appeals, 2; Rollo, 29.

17 Appellee's Brief, 18.
18 Supra, note 4 at 174-175 (citations omitted).
204
204
such foreign country based on process served here, any effect here against either
the defendant personally or his property situated here."
"Process issuing from the courts of one state or country cannot run into another,
and although a nonresident defendant may have been personally served with such
process in the state or country of his domicile, it will not give such jurisdiction as to
authorize a personal judgment against him."
It further availed of the ruling in Magdalena Estate, Inc. vs. Nieto19 and Dial Corp.
vs. Soriano,20 as well as the principle laid down by the lowa Supreme Court in the
1911 case of Raher vs. Raher.21
The first three cases are, however, inapplicable. Boudard involved the enforcement
of a judgment of the civil division of the Court of First Instance of Hanoi, French
Indo-China. The trial court dismissed the case because the Hanoi court never
acquired jurisdiction over the person of the defendant considering that "[t]he
evidence adduced at the trial conclusively proves that neither the appellee [the
defendant] nor his agent or employees were ever in Hanoi, French Indo-China; and
that the deceased Marie Theodore Jerome Boudard had never, at any time, been his
employee." In Magdalena Estate, what was declared invalid resulting in the failure
of the court to acquire jurisdiction over the person of the defendants in an action in
personam was the service of summons through publication against non-appearing
resident defendants. It was claimed that the latter concealed themselves to avoid
personal service of summons upon them. In Dial, the defendants were foreign
corporations which were not domiciled and licensed to engage in business in the
Philippines and which did not have officers or agents, places of business, or
properties here. On the other hand, in the instant case, SHARP was doing business
in Japan and was maintaining four branches therein.
Insofar as the Philippines is concerned, Raher is a thing of the past. In that case, a
divided Supreme Court of lowa declared that the principle that there can be no
jurisdiction in a court of a
_______________
19 125 SCRA 758 [1983].

20 161 SCRA 737 [1988].
21 150 lowa 511, 129 NW 494.
205

205
territory to render a personal judgment against anyone upon service made outside
its limits was applicable alike to cases of residents and non-residents. The principle
was put at rest by the United States Supreme Court when it ruled in the 1940 case
of Milliken vs. Meyer22 that domicile in the state is alone sufficient to bring an
absent defendant within the reach of the state's jurisdiction for purposes of a
personal judgment by means of appropriate substituted service or personal service
without the state. This principle is embodied in Section 18, Rule 14 of the Rules of
Court which allows service of summons on residents temporarily out of the
Philippines to be made out of the country. The rationale for this rule was explained
in Milliken as follows:
[T]he authority of a state over one of its citizens is not terminated by the mere fact
of his absence from the state. The state which accords him privileges and affords
protection to him and his property by virtue of his domicile may also exact
reciprocal duties. "Enjoyment of the privileges of residence within the state, and the
attendant right to invoke the protection of its laws, are inseparable" from the
various incidences of state citizenship. The responsibilities of that citizenship arise
out of the relationship to the state which domicile creates. That relationship is not
dissolved by mere absence from the state. The attendant duties, like the rights and
privileges incident to domicile, are not dependent on continuous presence in the
state. One such incident of domicile is amenability to suit within the state even
during sojourns without the state, where the state has provided and employed a
reasonable method for apprising such an absent party of the proceedings against
him.23
The domicile of a corporation belongs to the state where it was incorporated.24 In a
strict technical sense, such domicile as a corporation may have is single in its
essence and a corporation can have only one domicile which is the state of its
creation.25
Nonetheless, a corporation formed in one state may, for certain purposes, be
regarded a resident in another state in which it has offices and transacts business.
This is the rule in our jurisdiction and apropos thereto, it may be necessary to quote
what we stated in State Investment House, Inc. vs. Citibank, N.A.,26 to wit:
The issue is whether these Philippine branches or units may be considered
"residents of the Philippine Islands" as that term is used in Section 20 of the
Insolvency Law . . . or residents of the state under the laws of which they were
respectively incorporated. The answer cannot be found in the Insolvency Law itself,
which contains no definition of the term, resident, or any clear indication of its
meaning. There are however other statutes, albeit of subsequent enactment and
effectivity, from which enlightening notions of the term may be derived.
The National Internal Revenue Code declares that the term " 'resident foreign
corporation' applies to a foreign corporation engaged in trade or business within the
Philippines," as distinguished from a " 'non-resident foreign corporation' x x x (which
is one) not engaged in trade or business within the Philippines." [Sec. 20, pars. (h)
and (i)].
The Offshore Banking Law, Presidential Decree No. 1034, states "that branches,
subsidiaries, affiliation, extension offices or any other units of corporation or
juridical person organized under the laws of any foreign country operating in the
Philippines shall be considered residents of the Philippines." [Sec. 1(e)].
The General Banking Act, Republic Act No. 337, places "branches and agencies in
the Philippines of foreign banks x x x (which are) called Philippine branches," in the
same category as "commercial banks, savings associations, mortgage banks,
development banks, rural banks, stock savings and loan associations" (which have
been formed and organized under Philippine laws), making no distinction between
the former and the latter in so far as the terms "banking institutions" and "bank" are
used in the Act [Sec. 2], declaring on the contrary that in "all matters not
specifically covered by special provisions applicable only to foreign banks, or their
branches and agencies in the Philippines, said foreign banks or their branches and
agencies lawfully doing business in the Philippines "shall be bound by all laws, rules,
and regulations applicable to domestic banking corporations of the same class,
except such laws, rules and regulations as provided for the creation, formation,
organization, or dissolution of corporations or as fix the relation, liabilities,
responsibilities, or duties of members, stockholders or officers of corporation." [Sec.
18].
This Court itself has already had occasion to hold [Claude Neon Lights, Fed. Inc. vs.
Philippine Advertising Corp., 57 Phil. 607] that a foreign corporation licitly doing
business in the Philippines, which is a defendant in a civil suit, may not be
considered a non-resident within
_______________
26 203 SCRA 9,18-20 [1991].
207

207
the scope of the legal provision authorizing attachment against a defendant not
residing in the Philippine Islands; [Sec. 424, in relation to Sec. 412 of Act No. 190,
the Code of Civil Procedure; Sec. 1(f), Rule 59 of the Rules of 1940; Sec. 1(0, Rule
57, Rules of 1964] in other words, a preliminary attachment may not be applied for
and granted solely on the asserted fact that the defendant is a foreign corporation
authorized to do business in the Philippinesand is consequently and necessarily,
"a party who resides out of the Philippines." Parenthetically, if it may not be
considered as a party not residing in the Philippines, or as a party who resides out of
the country, then, logically, it must be considered a party who does reside in the
Philippines, who is a resident of the country. Be this as it may, this Court pointed out
that:
"x x Our laws and jurisprudence indicate a purpose to assimilate foreign
corporations, duly licensed to do business here, to the status of domestic
corporations. (Cf. Section 73, Act No. 1459, and Marshall Wells Co. vs. Henry W.
Elser & Co., 46 Phil. 70, 76; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 411) We think it
would be entirely out of line with this policy should we make a discrimination
against a foreign corporation, like the petitioner, and subject its property to the
harsh writ of seizure by attachment when it has complied not only with every
requirement of law made specially of foreign corporations, but in addition with every
requirement of law made of domestic corporations. x x."
Obviously, the assimilation of foreign corporations authorized to do business in the
Philippines "to the status of domestic corporations," subsumes their being found
and operating as corporations, hence, residing, in the country.
The same principle is recognized in American law: that the "residence of a
corporation, if it can be said to have a residence, is necessarily where it exercises
corporate functions x x;" that it is considered as dwelling "in the place where its
business is done x x," as being "located where its franchises are exercised x x," and
as being "present where it is engaged in the prosecution of the corporate
enterprise;" that a "foreign corporation licensed to do business in a state is a
resident of any country where it maintains an office or agent for transaction of its
usual and customary business for venue purposes;" and that the "necessary
element in its signification is locality of existence." [Words and Phrases, Permanent
Ed., vol. 37, pp. 394, 412, 403].
Inasmuch as SHARP was admittedly doing business in Japan through its four duly
registered branches at the time the collection suit against it was filed, then in the
light of the processual
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208
presumption, SHARP may be deemed a resident of Japan, and, as such, was

amenable to the jurisdiction of the courts therein and may be deemed to have
assented to the said courts' lawful methods of serving process.27
Accordingly, the extraterritorial service of summons on it by the Japanese Court was
valid not only under the processual presumption but also because of the
presumption of regularity of performance of official duty.
We find NORTHWEST's claim for attorney's fees, litigation expenses, and exemplary
damages to be without merit. We find no evidence that would justify an award for
attorney's fees and litigation expenses under Article 2208 of the Civil Code of the
Philippines. Nor is an award for exemplary damages warranted. Under Article 2234
of the Civil Code, before the court may consider the question of whether or not
exemplary damages should be awarded, the plaintiff must show that he is entitled
to moral, temperate, or compensatory damages. There being no such proof
presented by NORTHWEST, no exemplary damages may be adjudged in its favor.
WHEREFORE, the instant petition is partly GRANTED, and the challenged decision is
AFFIRMED insofar as it denied NORTHWEST's claims for attorney's fees, litigation
expenses, and exemplary damages but REVERSED insofar as it sustained the trial
court's dismissal of NORTHWEST's complaint in Civil Case No. 83-17637 of Branch
54 of the Regional Trial Court of Manila, and another in its stead is hereby rendered
ORDERING private respondent C.F. SHARP & COMPANY, INC. to pay to NORTHWEST
the amounts adjudged in the foreign judgment subject of said case, with interest
thereon at the legal rate from the filing of the complaint therein until the said
foreign judgment is fully satisfied.
Costs against the private respondent.
SO ORDERED.
Padilla (Chairman), Bellosillo, Quiason and Kapunan, JJ., concur.
Petition partly granted.
_______________
27 36 Am Jur 2d Foreign Corporations 516 (1968).

209

209
Note.Service of summons on a non-resident defendant who is not found in the
country is required not for purpose of physically acquiring jurisdiction over his
person but simply in pursuance of the requirements of fair play. (Sahagun vs. Court
of Appeals, 198 SCRA 44 [1991]) Northwest Orient Airlines, Inc. vs. Court of Appeals,
241 SCRA 192, G.R. No. 112573 February 9, 1995
MARGARET QUERUBIN, recurrente y apelante, contra SILVESTRE QUERUBIN,

recurrido y apelado.
1.DERECHO INTERNACIONAL PRIVADO; SENTENCIAS EXTRANJERAS; DECRETO
INTERLOCUTORIO.Un decreto interlocutorio sobre la cus
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125
Querubin vs. Querubin
todia de un menor no es una decision final. Por su naturaleza no es firme. Esta
sujeto a cambios como cambian las circunstancias.
2.ID.; ID.; ID.; MANUTENCIN.La pension no es fija y se aumenta o disminuye
como aumentan o disminuyen .las necesidades del pensionista o como exijan las
condiciones econmicas del que la da.
3.ID.; ID.; SU CUMPLIMIENTO EN FILIPINAS.El decreto interlocutorio no constituye
decision final, no cabe pedir su cumplimiento en Filipinas.
4.ID.; ID.; DECRETO DE DIVORCIO; EFECTO EN FILIPINAS.En general, un decreto de
divorcio encomendando la custodia de un hijo del matrimonio a uno de los
cnyuges se respeta por los juzgados de otros estados "at the time and under the
circumstances of its rendition but that such a decree has no controlling effect in
another state as to facts or conditions arising subsequently to the date of the
decree; and the courts of the latter state may, in proper proceedings, award the
custody otherwise upon proof of matters subsequent to the decree which justify the
change in the interest of the child."
5.PATERNIDAD Y FILIACIN; ; PORVENIR DE LA NIA SUPERIOR A TODA
CONSIDERACIN.No se trata slo de resolver el derecho preferente del padre y de
la madre en la custodia. La vital y trascendental cuestin del porvenir de la nia es
superior a toda consideracin.
6.DERECHO INTERNACIONAL PRIVADO; SENTENCIA EXTRANJERA QUE CONTRAVIENE
NUESTRAS LEYES.El Tribunal Supremo no debe hacer cumplir un decreto dictado
por un tribunal extranjero, que contraviene nuestras leyes y los sanos principios de
moralidad que informan nuestra estructura social sobre relaciones familiares.
7.ID.; ID.Las sentencias de tribunales extranjeros no pueden ponerse en vigor en
Filipinas si son contrarias a las leyes, costumbres y orden pblico. Si dichas
decisiones, por la simple teora de reciprocidad, cortesa judicial y urbanidad
internacional son base suficiente para que nuestros tribunales decidan a tenor de
las mismas, entonces nuestros juzgados estaran en la pobre tesitura de tener que
dictar sentencias contrarias a nuestras leyes, costumbres y orden pblico. Esto es
absurdo.
8.ID.; LA RECIPROCIDAD ENTRE NACIONES.La reciprocidad, la cortesa entre
naciones no es absoluta. Rige cuando hay tratado y hay igualdad de legislacin. Se
adopta la doctrina de reciprocidad cuando el tribunal extranjero tiene jurisdiccin
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126

para conocer de la causa, las partes han comparecido y discutido el asunto en el
fondo. Algunas veces se concede como privilegio pero no como estricto derecho. La
cortesa pedida no ha sido reconocida por este Tribunal cuando declar que los
derechos y deberes de familia, estado, condicin y capacidad legal de las personas
se rigen por las leyes de Filipinas y no por las de America.
APELACIN contra una sentencia del Juzgado de Primera Instancia de Ilocos Sur.
Hilario, J.
Los hechos aparecen relacionados en la decisin del Tribunal.
Manuel A. Argel en representacin del recurrente y apelante.
Maximino V. Bello en representacin del recurrido y apelado.
PABLO, M.:
Silvestre Querubin es de Caoayan, Ilocos Sur, de padres filipinos. En 1926 se

march a los Estados Unidos con el objeto de estudiar pero con el propsito de
volver despus a su pas natal. Obtuvo el ttulo de "Master of Arts and Sciences" en
la "University of Southern California," institucin domiciliada en los Angeles,
California, en donde el recurrido empez a vivir desde 1934.
En 20 de octubre de 1943, Silvestre Querubin contrajo matrimonio con la
recurrente, Margaret Querubin, en Albuquerque, New Mexico. Como fruto de este
matrimonio naci Querubina Querubin, quien, al tiempo de la vista de la causa en el
Juzgado de primera instancia de Ilocos Sur, tena cuatro aos de edad poco ms o
menos.
La recurrente entabl en 1948 una demanda de divorcio contra el recurrido,
fundada en "crueldad mental." En 7 de febrero de 1948 el divorcio fu concedido al
marido en virtud de una contrademanda presentada por l y fundada en la
infidelidad de su esposa. En 5 de abril de 1949, y a peticin del demandado y
contrademandante, (recurrido en esta actuacin de habeas corpus) el Juzgado
superior de
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127
Los Angeles dict una orden interlocutoria disponiendo lo siguiente:
"It is therefore ordered, adjudged and decreed that the interlocutory judgment of
divorce hereinbefore entered on February 27, 1948, in Book 1891, page 319, be and
the same is hereby modified in the following particulars in connection with the
custody of the minor child of the parties only:
" (1) The care, custody and control of the minor child of the parties, Querubina
Querubin, is hereby awarded to defendant and crosscomplainants;
"(2) Said child is to be maintained in a neutral home, subject to the right of
reasonable visitation on the part of both parties to this action;
"(3) Each party shall have the right to take said child away from said neutral home
but plaintiff and cross-defendant is restrained from taking said child to her place of
residence;
"(4) Each party is restrained from molesting the other, or in any way interfering with
the other's right of reasonable visitation of said child;
"(5) Each party is restrained from removing the child from the State of California
without first securing the permission of the court; said parties are further restrained
from keeping the child out of the County of Los Angeles for more than one day
without first securing the consent of the court."
El recurrido sali de San Francisco en 7 de noviembre de 1949, arribando a Manila
en 25 del mismo mes. En 27 de susodicho mes lleg a Caoayan, Ilocos Sur, donde
vive actualmente, llevndose consigo a la nia Querubina, a quien trajo a Filipinas
porque, en su calidad de padre, quera evitar que llegase a conocimiento de ella la
conducta indecorosa de su propia madre. El recurrido quera que su hija fuera
educada en un ambiente de elevada moralidad.
A peticin de la recurrente Margaret, el Juzgado superior de los Angeles, California,
en 30 de noviembre de 1949 modific su orden de 5 de abril de 1949, disponiendo
lo siguiente:
"Under interlocutory decree of March 7, 1949, the child, a girl now 3 years old,
was granted to deft husband, but the child was to be kept in a neutral home; both
parties were given reasonable visita
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128
tion and both were restrained from removing the child out of the state. Deft has
taken the child with him to the Philippine Islands. At time of trial custody was
apparently denied ptf because she was then living with another man. She is now
married to this man and they have a well equipped home. Ptf appears to be a
devoted mother. She has one child, the issue of her present marriage, and is also
caring for a child that was abandoned by certain friends of hers. Ptf's husband is
regularly and permanently employed. Witnesses testified in behalf of the ptf in
reference to her motherly qualities and the condition of her home. She visited the
child in question sufficiently when the child was in the neutral home and brought
her toys and other articles. Service of the order to show cause was made on deft's
attorneys of record.
"The interlocutory decree is modified so as to provide that custody of the child shall
be awarded to ptf and deft shall have the right of reasonable visitation. Deft shall
pay ptf for the support of the child $30 each month on the 1st day thereof,
commencing Jan. 1950."
En el da de la vista de esta causa de habeas corpus en Ilocos Sur, el recurrido
declar que nunca intent cambiar su ciudadana; que cuando vino al pas tena
unos P2,000 de ahorro; que tres semanas despus de su arribo recibi oferta para
ensear con sueldo P250 mensual en el colegio establecido por el Dr. Sobrepea en
Villasis, Pangasinn; que nunca se le ha privado de patria potestad por sentencia
judicial, ni declarado ausente de Filipinas, ni sujeto a interdiccin civil. Segn el
juzgado a quo, el recurrido es de irreprochable conducta.
En 10 de febrero de 1950 la recurrente Margaret Querubin, por medio de su

abogado, present en el Juzgado de primera instancia de Ilocos Sur una solicitud de
habeas corpus reclamando la custodia de su hija Querubina, alegando como
fundamento el decreto interlocutorio del juzgado de California que concedi a ella
dicha custodia. Despus de la vista correspondiente, el Juzgado a quo, en 28 de
febrero de 1950 deneg la solicitud. La recurrente acude en apelacin ante este
Tribunal.
La recurrente sostiene que bajo el artculo 48 de la Regla 39, el decreto Exhibit A-1
del Juzgado de los ngeles,
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129
California, debe cumplirse en Filipinas. Su parte dispositiva dice textualmente:
"The interlocutory decree is modified so as to provide that custody of the child shall
be awarded to ptf and deft shall have the right of reasonable visitation. Deft shall
pay ptf for the support of the child $30 each month on the 1st day thereof,
commencing Jan. 1950."
Un decreto interlocutorio sobre la custodia de un menor no es una decision final. Por
su naturaleza no es firme. Esta sujeto a cambios como cambian las circunstancias.
En el primer decreto se di al padre la custodia de la menor. A peticin del padre, se
dict el decreto de 5 de abril prohibiendo a la madre que llevase a la menor a su
casa porque estaba otra vez en relaciones adulterinas con otro hombre. Cuando ya
no estaba el recurrido en Los Angeles, porque ya haba venido a Filipinas, se
enmend la ltima orden y se dispuso que la custodia estuviese encomendada a la
recurrente, pagando a ella el recurrido $30 al mes para la manutencin de la menor.
La pension no es fija y se aumenta o disminuye como aumentan o disminuyen las
necesidades del pensionista o como exijan las condiciones econmicas del que la
da.
Porque el decreto interlocutorio, Exhibit A-1, no constituye decision final, no cabe
pedir su cumplimiento en Filipinas. En los mismos Estados Unidos no puede pedirse
el cumplimiento de una orden interlocutoria en el juzgado de otro estado.
"The rule is of common knowledge that the definitive judgment of a court of another
state between the same parties on the same cause of action, on the merits of the
case is conclusive, but it must be a definitive judgment on the merits only. Where
the judgment is merely interlocutory, the determination of the question by the court
which rendered it did not settle and adjudge finally the rights of the parties."
(National Park Bank vs. Old Colony Trust Co., 186 N. Y. S., 717.)
"As already stated the Minnesota decree, to the extent that it is final and not
subject to modification, is entitled to the protection of the full faith and credit clause
of the federal Constitution and must be enforced in this state. If, however, a part of
the Minnesota decree in not final, but is subject to modification by the court which
rendered it, then neither the United States Constitution nor the principle of comity
compels the courts of this state to enforce that part of the decree; for no court other
than the one granting the original decree could undertake to administer relief
without bringing about a conflict of authority." (Levine vs. Levine, 187 Pac., 609.)
"A judgment rendered by a competent court, having jurisdiction in one state, is
conclusive on the merits in the courts of every other state, when made the basis of
an action and the merits cannot be reinvestigated. Our own Supreme Court so
holds. Cook vs. Thornhill, 13 Tex. 293, 65 Am. Dec. 63. But before such a judgment
rendered in one state is entitled to acceptance, in the courts of another state, as
conclusive on the merits, it must be a final judgment and not merely an
interlocutory decree. Freeman on Judgment, Sec. 575; Baugh vs. Baugh, 4 Bibb (7
Ky.) 556; Brinkley vs. Brinkley, 50 N.Y. 184, 10 Am. Rep. 460; Griggs, vs. Becker, 87
Wis. 313', 58 N. W. 396." (.Walker vs. Garland et al., 235 S. W., 1078.)
En general, un decreto de divorcio encomendando la custodia de un hijo del
matrimonio a uno de los cnyuges se respeta por los juzgados de otros estados "at
the time and under the circumstances of its rendition but that such a decree has no
controlling effects in another state as to facts or conditions arising subsequently to
the date of the decree; and the courts of the latter state may, in proper
proceedings, award the custody otherwise upon proof of matters subsequent to the
decree which justify the change in the interest of the child." (20 A. L. R., 815.)
En el caso presente las circunstancias han cambiado. Querubina ya no est en los
ngeles sino en Caoayan, Ilocos Sur. Esta bajo el cuidado de su padre. Hay una
distancia enorme desde Los Angeles y el presente domicilio de la menor y el costo
del pasaje hasta aquella ciudad sera muy elevado, y aun es posible que est f uera
del alcance de la recurrente. No hay pruebas de que ella est en condiciones de
pagar los gastos de viaje de la menor y del que la acompae. Ella no es un paquete
de cigarrillos que se puede enviar por correo a Los ngeles.
No consta que las circunstancias que se daban en noviembre de 1949 en Los
Angeles, prevalecan en el mismo estado hasta el momento en que se vi la causa
en el Juzgado de
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131
primera instancia de Ilocos Sur. Tampoco hay pruebas de que la recurrente dispone
de suficientes f ondos para costear el viaje de la nia Querubina desde Caoayan,
Ilocos Sur, hasta Los ngeles, California, y para responder de su alimentacin,
cuidado y educacin, y constando en autos que el padre, ms que nadie, est
interesado en el cuidado y educacin 'de su hija, y que tiene ahorros de ms de
P2,000 depositados en un banco, creemos que el Juzgado a, quo no err al denegar
la solicitud.
El Juzgado no poda sin prueba satisfactoria, disponer sin remordimiento de
conciencia la entrega de la nia al abogado de la recurrente: es su obligacin velar
por la seguridad y bienestar de ella. No se trata slo de resolver el derecho
preferente del padre y de la madre en la custodia. La vital y trascendental cuestin
del porvenir de la nia es superior a toda consideracin. El Estado vela por sus
ciudadanos. El artculo 171 del Cdigo Civil dispone que "Los Tribunales podrn
privar a los padres de la patria potestad, o suspender el ejercicio de sta, si trataren
a sus hijos con dureza excesiva, o si les dieren rdenes, consejos o ejemplos
corruptores." En Corts contra Castillo y otra (41 Jur. Fil., 495), este Tribunal declar
que no err el Juzgado de primera instancia al nombrar a la abuela, como tutora de
dos menores, en vez de su madre que fu condenada por adulterio.
El artculo 154 del Cdigo Civil dispone que "El padre, y en su defecto la madre,
tienen potestad sobre sus hijos legtimos no emancipados." Con todo, si se hace
indebido ejercicio de esta facultad, los tribunales, como ya hemos dicho, pueden
privarle de ella y encomendar el cuidado del menor a otras instituciones, como
dispone el artculo 6 de la Regla 100, que es reproduccin del artculo 771 de la Ley
No. 190. En el asunto de Lozano contra Martinez y De Vega (36 Jur. Fil., 1040), en
que el primero, en un recurso de habeas corpus, reclamaba contra su esposa la
custodia de su hijo menor de 10 aos, este Tribunal, en apelacin, declar que el
juzgado a quo no abus de la discrecin conferida a l por el artculo 771 del Cdigo
de
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132
procedimiento civil al denegar la solicitud. Esta interpretacin del artculo en cuanto
al debido ejercicio de la discrecin de un Juzgado de primera instancia ha sido
reafirmada en el asunto de Pelayo contra Lavin (40 Jur. Fil., 529).
En la solicitud presentada, no hay siquiera alegacin de que el juzgado a quo haya
abusado de su discrecin. ]Este Tribunal no debe revocar su actuacin.
En la vista de la causa en el Juzgado de Primera Instancia de Ilocos Sur, el recurrido
declar que haba traido su hija a Filipinas porque quera evitar que ella tuviera
conocimiento de la conducta impropia y de la infidelidad cometida por la madre,
impidiendo que la viese convivir con el hombre que haba ofendido a su padre. El
recurrido dijo que quera que su hija se criase en un ambiente de elevada moral, y
que no se sancionara indirectamente la infidelidad de la esposa. Bajo la Ley de
Divorcio No. 2710, el cnyuge culpable no tiene derecho a la custodia de los hijos
menores. La legislacin vigente, las buenas costumbres y los intereses del orden
pblico aconsejan que la nia debe estar fuera del cuidado de una madre que ha
violado el juramento de fidelidad a su marido. Creemos que este Tribunal no debe
hacer cumplir un decreto dictado por un tribunal extranjero, que contraviene
nuestras leyes y los sanos principios de moralidad que informan nuestra estructura
social sobre relaciones familiares.
En el asunto de Manuela Barretto Gonzales contra Augusto Gonzales (58 Jur. Fil.,
72), se pidi por la demandante que el divorcio obtenido por el demandado en
Reno, Nevada, en 28 de noviembre de 1927, fuera confirmado y ratificado por el
Juzgado de primera instancia de Manila. Este juzgado dict sentencia a tenor de la
peticin Teniendo en cuenta el artculo 9 del Cdigo civil que dispone que "Las leyes
relativas a los derechos y deberes de familia, o al estado, condicin y capacidad
legal de las personas, obligan a los espaoles (filipinos) aunque residan en pas
extranjero" y el artculo 11 del mismo cdigo que dice
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133
en parte que "* * * las leyes prohibitivas concernientes a las personas, sus actos o
sus bienes, y las que tienen por objeto el orden pblico y las buenas costumbres, no
quedarn sin efecto por leyes o sentencias dictadas, ni por disposiciones o
convenciones acordadas en pas extranjero," este Tribunal, en apelacin, declar:
"Los litigantes, mediante convenio mutuo, no pueden obligar a los tribunales a que
aprueben sus propios actos, ni que permitan que las relaciones personales de los
ciudadanos de estas Islas queden afectadas por decretos de pases extranjeros en
una forma que nuestro Gobierno cree que es contraria al orden pblico y a la recta
moral," y revoc la decision del juzgado inferior.
Las sentencias de tribunales extranjeros no pueden ponerse en vigor en Filipinas si
son contrarias a las leyes, costumbres y orden pblico. Si dichas decisiones, por la
simple teora de reciprocidad, cortesa judicial y urbanidad internacional son base
suficiente para que nuestros tribunales decidan a tenor de las mismas, entonces
nuestros juzgados estaran en la pobre tesitura de tener que dictar sentencias
contrarias a nuestras leyes, costumbres y orden pblico Esto es absurdo.
En Ingenohl contra Olsen & Co. (47 Jur. Fil., 199), se discuti el alcance de la
cortesa internacional. El artculo 311 del Cdigo de Procedimiento Civil que es hoy
el artculo 48, Regla 39, fu la base de la accin presentada por Ingenohl. Pidi en
su demanda que el Juzgado de primera instancia de Manila dictase sentencia de
acuerdo con la dictada por el Tribunal Supremo de Hongkong. Despus de la vista
correspondiente, el juzgado dict sentencia a favor del demandante con intereses
legales y costas. En apelacin, se aleg que el juzgado inferior err al no declarar
que la decision y sentencia del Tribunal Supremo de Hongkong se dict y registr
como resultado de un error manifiesto de hecho y de derecho. Este Tribunal declar
que "Es principio bien sentado que, a falta de un tratado o ley, y en virtud de la
cortesa y del derecho internacional,
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134
una sentencia dictada por un tribunal de jurisdiccin competente de un pas
extranjero, en el que las partes han comparecido y discutido un asunto en el fondo,
ser reconocida y puesta en vigor en cualquier otro pas extranjero." Pero teniendo
en cuenta el artculo 311 del Cdigo de Procedimiento Civil que dispone que "la
sentencia puede ser rechazada mediante prueba de falta de competencia, o de
haber sido dictada sin la previa notificacin a la parte, o que hubo connivencia,
fraude o error manifiesto de derecho o de hecho," concluy: "En virtud de esa Ley
cuando una persona trata de hacer cumplir una sentencia extranjera, el demandado
tiene derecho a ejercitar cualquier defensa de esas, y si se llegara a demostrar que
existe propiamente alguna de ellas, destruir los efectos de la sentencia," Revoc la
decision del juzgado inferior y declar y fall que "la sentencia dictada por el
Tribunal de Hongkong, contra la demandada, constituy un error manifiesto de
hecho y de derecho, y, por tal razn, no debe exigirse su cumpli-miento en las Islas
Filipinas."
Si se concede la solicitud, la menor estara bajo el cuidado de su madre que fu
declarada judicialmente culpable de infidelidad conyugal; vivira 'bajo un techo
juntamente con el hombre que deshonr a su madre y ofendi a su padre; jugara y
crecera con el fruto del amor adulterino de su madre; llegara a la pubertad con la
idea de que una mujer que fu infiel a su marido tiene derecho a custodiar a su hija.
En semejante medio ambiente no puede criarse a una nia de una manera
adecuada: si llegara a saber durante su adolescencia que su padre ha sido
traicionado por su madre con el hombre con quien vive, esa nia vivira bajo una
impresin de inferioridad moral de incalculables consecuencias, y por ello nunca
sera feliz; y si, bajo la influencia de su madre, llegara a creer que la infidelidad de
una esposa es slo un incidente tan pasajero como cambiar de tocado, la nia ira
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135
dicin. Y la educacin moral que puede darle su padrasto dificilmente puede ser
mejor.
Si se deniega la solicitud, la nia vivira con su padre con el beneficio de un cuidado
paternal exclusivo, y no con la dividida atencin de una madre que tiene que
atender a su esposo, a sus dos hijas y a una tercera nia la protegida. Para el
bienestar de la menor Querubina, que es lo que ms importa en el caso presente,
su custodia por el padre debe considerarse preferente.
En los mismos Estados Unidos, el punto cardinal que tienen en cuenta los juzgados,
no es la reclamacin de las partes o la fuerza del decreto interlocutorio, sino el
bienestar del menor.
"A consideration of all the facts and circumstances leads to the conclusion that
comity does not require the courts of this state, regardless of the well-being of the
child, to lend their aid to the enforcement of the lowa decree by returning Winifred
to the custody of her grandmother. A child is not a chattel to which title and the
right of possession may be secured by the decree of any court. If the decree had
been rendered by a domestic court of competent jurisdiction, it would not have
conclusively established the right to the custody of the child. In a contest between
rival claimants, this court would have been free, notwithstanding the decree, to
award the custody solely with an eye to the child's welfare." (State ex rel. Aldridge
vs. Aldridge, 204 N. W. 324.)
"On habeas corpus by the mother to obtain possession from the father of two
children aged four and six years, whose custody she alleged had been awarded her
in divorce proceedings in another state, it appeared that the mother was without
property, and had no means of support save her personal earnings of $15 per
month, was in poor health, and lived with her mother, in immoral surroundings, and
that the father was an industrious and sober man, earning $100 per month. Held,
that the welfare of the children was the only thing to be considered, and a judgment
awarding their custody to the mother should be reversed." (Kentzler vs. Kentzler, 28
Pac., 370.)
La recurrente, como ltimo recurso, invoca la comity of nations. La reciprocidad, la
cortesa entre naciones no es absoluta. Rige cuando hay tratado y hay igualdad de
legislacin. Se adopta la doctrina de reciprocidad cuando el
136
136
tribunal extranjero tiene jurisdiccin para conocer de la causa, las partes han
comparecido y discutido el asunto en el fondo. Algunas veces se concede como
privilegio pero no como estricto derecho. La cortesa pedida no 'ha sido reconocida
por este Tribunal cuando declar que los derechos y deberes de familia, estado,
condicin y capacidad legal de las personas se rigen por las leyes de Filipinas y no
por las de America (Gonzales contra Gonzales, supra) y no di validez a la decision
del Tribunal Supremo de Hongkong porque era errnea en sus conclusiones de

hecho y de derecho (Ingenohl contra Olsen y Co., supra).
La reciprocidad entre los estados de la Union Americana no es absoluta. No es regla
inquebraritable. Los varios casos citados ms arriba lo demuestran. He ah otro
caso:
"On the question of comity, this court said in the habeas corpus case of In re
Stockman, 71 Mich. 180, 38 N. W. 876:
" 'Comity cannot be considered in a case like this, when the future welf are of the
child is the vital question in the case. The good of the child is superior to all other
considerations. It is the polar star to guide to the conclusion in all cases of infants,
whether the question is raised upon a writ of habeas corpus or in a court of
chancery.'" (Ex parte Leu, 215 N. W., 384.)
Ya hemos visto que la orden interlocutoria cediendo la custodia de la menor a la
recurrente est en pugna con las disposiciones expresas de la legislacin vigente en
Filipinas. En el primer decreto y en el enmendatorio se encomend la custodia de la
menor al padre y se prohibi, en la orden enmendada, a la madre llevar a la menor
a su casa porque estaba otra vez en relaciones ilegales con otro hombre. Pero el
ltimo decreto enmendatorio, contrario al sentido de justicia, a la ley, y a las
buenas costumbres, encomend la custodia de la menor a la que f u esposa infiel
porque ya estaba casada con quien cometi adulterio. Y bajo la doctrina de la
comity of nations, la recurrente contiende que debe cumplirse en Filipinas ese
decreto. Opinamos que por las varias razones arriba expuestas, la pretension es
insostenible.
137
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137
Muyot vs. Cabrera
Se confirma la sentencia apelada. La recurrente pagar las costas.
Ozaeta, Bengzon, Montemayor, y Reyes, MM., estn conformes.
TUASON, J.:
I concur in the result.

Se confirma la sentencia. Querubin vs. Querubin, 87 Phil. 124, No. L-3693 Julio 29,
1950
Ramirez vs. Gmur

and exclusively by the Hamburg courts. From this it is argued that the Court of First
Instance erred in assuming jurisdiction of the action and that the case should have
been decided in accordance with the principles of German law.
It can not be admitted that a provision of this character has the effect of ousting the
jurisdiction of the courts of the Philippine Islands in the matter now before it. An
express agreement tending to deprive a court of jurisdiction conferred on it by law is
of no effect. (Molina vs. De la Riva, 6 Phil., 12.) Besides, whatever the effect of this
provision, the benefit of it was waived when the defendant company appeared and
answered generally without objecting to the jurisdiction of the court.
As regards the contention that the rights of the parties should be determined in
accordance with the law of Germany, it is sufficient to say that when it is proposed
to invoke the law of a foreign country as supplying the proper rules for the solution
of a case, the existence of such law must be pleaded and proved. Defendant has
done neither. In such a case it is to be presumed that the law prevailing in the
foreign country is the same as that which prevails in our own.
The judgment appealed from is affirmed, with costs against the appellant.So
ordered.
Torres, Johnson, Malcolm, Avancea, and Fisher, JJ., concur.
Judgment affirmed.
[No. 11796.August 5, 1918]

In the matter of the estate of Samuel Bischoff Werthmuller. Ana M. Ramirez,
executrix and appellant, vs. Otto Gmur, as guardian of the minors Esther Renate
Mory, Carmen Maria Mory, and Leontina Elizabeth, claimant and appellant.
1.Parent and Child; Illegitimacy; Presumption as to Capacity of Parents to Marry.
Where an illegitimate child is in fact
856
856
Ramirez vs. Gmur
recognized by the father, the presumption is that the parents had the capacity to
marry at the time the child was born or begotten, and that the child is a natural
child and therefore capable of recognition. The burden of proof to show the contrary
is upon the party impugning the legality of the act of recognition.
2.Successions; Recognized Child as Forced Heir.Where a person dies testate but
without legitimate descendants or ascendants, a recognized natural child for whom
no provision is made in the will is a forced heir and as such entitled to one-third of
the estate. (Art. 842, Civil Code.)
3.Divorce; Domicile of Parties; Jurisdiction of Foreign Court.The court of a country
in which neither of the spouses is domiciled and to which one or both of them may
resort merely for the purpose of obtaining a divorce has no jurisdiction to determine
their matrimonial status; and a divorce granted by such a court is not entitled to
recognition elsewhere. The voluntary appearance of the defendant before such a

tribunal does not invest the court with jurisdiction.
4.Successions; Adulterous Children Incapable of Inheriting.The right to inherit is
limited to legitimate, legitimated, and acknowledged natural children, the offspring
of adulterous relations being excluded. The word "descendants," as used in article
941 of the Civil Code, cannot be interpreted to include illegitimates born of
adulterous relations.
5.Wills and Administration; Legitime of Forced Heir; Effect of Decree of Probate.
The right of a forced heir to his legitime is not divested by a decree admitting a will
to probate in which no provision is made for him. The decree of probate is
conclusive only as regards the due execution of the will. The question of the intrinsic
validity of its provisions is in no wise determined thereby.
6.Executors and Administrators; Distribution of Estate; Right of Heir to Participate in
Final Division.An heir who is not a party to the proceedings for the probate of a
will and the distribution of the testator's estate may intervene at any time while the
court yet retains jurisdiction over the estate and establish his right to participate in
the final division thereof.
APPEAL from a judgment of the Court of First Instance of Iloilo.Mariano, J.
The facts are stated in the opinion of the court.
C. Lozano for executrix and appellant.
Thos. D. Aitken for claimant and appellant.
Street,J.:
Samuel Bischoff Werthmuller, native of the Republic of Switzerland, but for many
years a resident of the Philippine Islands, died in the city of Iloilo on June 29, 1913,
leaving a valuable estate of which he disposed by will. A few days after his demise
the will was offered for probate in the Court of First Instance of Iloilo and, upon
publication of notice, was duly allowed and established by the court. His widow,
Dona Ana M. Ramirez, was named as executrix in the will, and to her accordingly
letters testamentary were issued. By the will everything was given to the widow,
with the exception of a piece of real property located in the City of Thun,
Switzerland, which was devised to the testator's brothers and sisters.
The first clause of the will contains a statement to the effect that inasmuch as the
testator had no children from his marriage with Ana M. Ramirez he was therefore
devoid of forced heirs. In making this statement the testator ignored the possible
claims of two sets of children, born to his natural daughter, Leona Castro.
The pertinent biographical facts concerning Leona Castro are these: As appears
from the original baptismal entry made in the church record of Bacolod, she was
born in that pueblo on April 11, 1875, her mother being Felisa Castro, and father
"unknown." Upon the margin of this record there is written in Spanish an additional
annotation of the following tenor: "According to a public document (escritura) which
was exhibited, she was recognized by Samuel Bischoff on June 22, 1877." This
annotation as well as the original entry is authenticated by the signature of Father
Ferrero, whose deposition was taken in this case. He testifies that the word
"escritura" in this entry means a public document; and he says that such document
was exhibited to him when the marginal note which has been quoted was added to
the baptismal record and supplied the basis for the annotation in question.
As the years passed Leona Castro was taken into the family of Samuel Bischoff and
brought up by him and his
858
858
Ramirez vs. Gmur
wife as a member of the family; and it is sufficiently shown by the evidence
adduced in this case that Samuel Bischoff tacitly recognized Leona as his daughter
and treated her as such. In the year 1895 Leona Castro was married to Frederick
von Kauffman, a British subject, born in Hongkong, who had come to live in the city
of Iloilo. Three children were born of this marriage, namely, Elena, Federico, and
Ernesto, the youngest having been born on November 10, 1898. In the month of
April 1899, Leona Castro was taken by her husband from Iloilo to the City of Thun,
Switzerland, for the purpose of recuperating her health. She was there placed in a
sanatorium, and on August 20th the husband departed for the Philippine Islands,
where he arrived on October 10, 1899.
Leona"Castro continued to remain in Switzerland, and a few years later informed
her husband, whom she had not seen again, that she desired to remain free and
would not resume life in common with him. As a consequence, in the year 1904, Mr.
Kauffman went to the City of Paris, France, for the purpose of obtaining a divorce
from his wife under the French laws; and there is submitted in evidence in this case
a certified copy of an extract from the minutes of the Court of First Instance of the
Department of the Seine, from which it appears that a divorce was there decreed on
January 5, 1905, in favor of Mr. Kauffman and against his wife, Leona, in default.
Though the record recites that Leona was then in fact residing at No. 6, Rue
Donizetti, Paris, there is no evidence that she had acquired a permanent domicile in
that city.
The estrangement between the von Kauffman spouses is explained by the fact that
Leona Castro had become attracted to Dr. Ernest Emil Mory, the physician in charge
of the sanatorium in Switzerland where she was originally placed; and soon after the
decree of divorce was entered, as aforesaid, Doctor Mory and Leona Castro repaired
to the City of London, England, and on May 5, 1905, in the
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859
Ramirez vs. Gmur
registrar's, office in the district of Westminster, went through the forms of a
marriage ceremony before an officer duly qualified to celebrate marriages under the
English law. It appears that Doctor Mory himself had been previously married to one
Helena Wolpman, and had been divorced from her; but how or under what
circumstances this divorce had been obtained does not appear.
Prior to the celebration of this ceremony of marriage a daughter, named Leontina
Elizabeth, had been born (July 21, 1900) to Doctor Mory and Leona Castro, in Thun,
Switzerland. On July 2, 1906, a second daughter, named Carmen Maria, was born to
them in Berne, Switzerland, now the place of their abode; and on June 10, 1909, a
third daughter was born, named Esther. On October 6,1910, the mother died.
In the present proceedings Otto Gmur has appeared as the guardian of the three
Mory claimants, while Frederick von Kauffman has appeared as the guardian of his
own three children, Elena, Federico, and Ernesto.
As will be surmised from the foregoing statement, the claims of both sets of children
are founded upon the contention that Leona Castro was the recognized natural
daughter of Samuel Bischoff and that as such she would, if living, at the time of her
father's death, have been a forced heir of his estate and would have been entitled
to participate therein to the extent of a one-third interest. Ana M. Ramirez, as the
widow of Samuel Bischoff and residuary legatee under his will, insistsat least as
against the Mory claimants,that Leona Castro had never been recognized at all by
Samuel Bischoff.
In behalf of Leontina, the oldest of the Mory claimants, it was originally insisted in
the court below, that, having been born while her mother still passed as the wife of
Frederick von Kauffman, she was to be considered as a legitimate daughter of the
wedded pair. This contention has been abandoned on this appeal as untenable; and
it is
860
860
Ramirez vs. Gmur
now contended here merely that, being originally the illegitimate daughter of Doctor
Mory and Leona Castro, she was legitimated by their subsequent marriage.
In behalf of Carmen Maria and Esther Renate, the two younger of the Mory
claimants, it is argued that the bonds of matrimony which united Frederick von
Kauffman and Leona Castro were dissolved by the decree of divorce granted by the
Paris court on January 5, 1905; that the marriage ceremony which was soon
thereafter celebrated between Doctor Mory and Leona in London was in all respects
valid; and that therefore these claimants are to be considered the legitimate
offspring of their mother.
In behalf of the children of Frederick von Kauffman it is insisted that the decree of
divorce was wholly invalid, that all three of the Mory children are the offspring of
adulterous relations, and that the von Kauffman children, as the legitimate offspring
of Leona Castro, are alone entitled to participate in the division of such part of the
estate of Samuel Bischoff as would have been inherited by their mother, if living.
We are of the opinion that the status of Leona Castro as a recognized natural
daughter of Samuel Bischoff is fully and satisfactorily shown. It is proved that prior
to her marriage with Frederick von Kauffman she was in an un-interrupted
enjoyment of the de facto status of a natural child and was treated as such by
Samuel Bischoff and his kindred. The proof of tacit recognition is full and complete.
From the memorandum made by Padre Ferrero in the record of the birth, as well as
from the testimony of this priest, taken upon the deposition, it also appears that Samuel Bischoff had executed a document, authenticated by a notarial act,
recognizing Leona as his daughter, that said document was presented to the priest,
as custodian of the church records, and upon the faith of that document the
marginal note was added to the baptismal record, showing the fact of such
recognition. The original document itself was not produced in evidence but it is
shown that diligent
861
VOL. 42, AUGUST 5, 1918
861
Ramirez vs. Gmur
search was made to discover its whereabouts, without avail. This was sufficient to
justify the introduction of secondary evidence concerning its contents; and the
testimony of the priest shows that the fact of recognition was therein stated.
Furthermore, the memorandum in the baptismal record itself constitutes original
and substantive proof of the facts therein recited.
It will be observed that the recognition of Leona Castro as the daughter of Samuel
Bischoff occurred prior to the date when the Civil Code was put in force in these
Islands; and consequently her rights as derived from that recognition must be
determined under the law as it then existed, that is, under Law 11 of Toro, which
afterwards became Law 1, title 5, book 10, of the Novisima, Recopilacion. (See
Capistrano vs. Estate of Gabino, 8 Phil., 135, 139, where this statute is quoted in the
opinion written by Mr. Justice Torres.) Under that law recognition could be
established by proof of acts on the part of the parent unequivocally recognizing the
status of his offspring. (Cosio vs. Pili, 10 Phil., 72, 77.) In other words at tacit
recognition was sufficient. Under article 131 of the present Civil Code, the
acknowledgment of a natural child must be made in the record of birth, by will, or in
other public instrument. We are of the opinion that the recognition of Leona Castro
is sufficiently shown whether the case be judged by the one provision or the other.
But it is contended by counsel for Dona Ana Ramirez that only children born of
persons free to marry may possess the status of recognized natural children, and
there is no evidence to show that Felisa Castro was either a single woman or widow
at the time of the conception or birth of Leona. In the absence of proof to the
contrary, however, it must be presumed that she was a single woman or a widow.
Relative to this presumption of the capacity of the parents to marry, the author
Sanchez Roman makes the following comment:
"Furthermore, viewing the conception of natural child in connection with two

mutually interrelated circumstances,
862
862
Ramirez vs. Gmur
to wit, the freedom of the parents to intermarry, with or without dispensation, at the
time of the conception of the offspring stigmatized as natural, the first of these, or
freedom to marry, is a point upon which there is, according to the jurisprudence of
our former law whose spirit is maintained in the Code, an affirmative presumption
which places the burden of proving the contrary upon those who are interested in
impugning the natural filiation." (Vol. 5 Derecho Civil, pp. 1018-1019.)
The contrary presumption would be that Felisa Castro was guilty of adultery, which
cannot be entertained. If such had in fact been the case, the burden of proving it
would have been upon the persons impugning the recognition of the child by her
father. (Sec. 334, par. 1, Code of Civil Procedure.)
From the fact that Leona Castro was an acknowledged natural daughter of her
father, it follows that had she survived him she would have been his forced heir, he
having died after the Civil Code took effect. (Civil Code, article 807 [3], art. 939;
Civil Code, first transitory disposition); and as such forced heir she would have been
entitled to one-third of the inheritance (art. 842, Civil Code).
With reference to the rights of the von Kauffman children, it is enough to say that
they are legitimate children, born to their parents in lawful wedlock; and they are
therefore entitled to participate in the inheritance which would have devolved upon
their mother, if she had survived the testator.
As regards the Mory claimants, it is evident that their rights principally depend upon
the effect to be given by this court to the decree of divorce granted to von Kauffman
by the Court of First Instance of the City of Paris. If this decree is valid, the
subsequent marriage of Doctor Mory and Leona Castro must also be conceded to be
valid; and as a consequence then two younger children, born after said marriage,
would be the legitimate offspring of their mother, and would be entitled to
participate in their mother's portion of Mr. Bischofs estate. With respect to Leontina
Elizabeth, the older one of the Mory claimants, there would in the case still be the
insuperable obstacle which results from the fact that she was the offspring of
adulterous intercourse and as such was incapable of legitimation (art. 119, Civil
Code).
We are of the opinion that the decree of divorce upon which reliance is placed by
the representation of the Mory children cannot be recognized as valid in the courts
of the Philippine Islands. The French tribunal has no jurisdiction to entertain an
action for the dissolution of a marriage contracted in these Islands by persons
domiciled here, such marriage being indissoluble under the laws then prevailing in
this country.
The evidence shows conclusively that Frederick von Kauff-man at all times since
earliest youth has been, and is now, domiciled in the city of Iloilo in the Philippine
Islands; that he there married Leona Castro, who was a citizen of the Philippine
Islands, and that Iloilo was their matrimonial domicile; that his departure from Iloilo
for the purpose of taking his wife to Switzerland was limited to that purpose alone,
without any intent to establish a domicile elsewhere; and finally that he went to
Paris in 1904, for the sole purpose of getting a "divorce, without any intention of
establishing a permanent residence in that city. The evidence shows that the decree
was entered against the defendant in default, for failure to answer, and there is
nothing to show that she had acquired, or had attempted to acquire, a permanent
domicile in the City of Paris. It is evident of course that the presence of both the
spouses in that city was due merely to the mutual desire to procure a divorce from
each other.
It is established by the great weight of authority that the court of a country in which
neither of the spouses is domiciled and to which one or both of them may resort
merely for the purpose of obtaining a divorce has no jurisdiction to determine their
matrimonial status; and a divorce granted by such a court is not entitled to
recognition elsewhere. (See Note to Succession of Benton, 59 L. R. A.,
864
864
Ramirez vs. Gmur
143) The voluntary appearance of the defendant before such a tribunal does not
invest the court with jurisdiction. (Andrews vs. Andrews, 188 U. S., 14; 47 L. ed.,
36S.)
It follows that, to give a court jurisdiction on the ground of the plaintiff's residence in
the State or country of the judicial forum, his residence must be bona fide. If spouse
leaves the family domicile and goes to another State for the sole purpose of
obtaining a divorce, and with no intention of remaining, his residence there is not
sufficient to confer jurisdiction on the courts of that State. This is especially true
where the cause of divorce is one not recognized by the laws of the State of his own
domicile. (14 Cyc, 817, 818.)
As has been well said by the Supreme Court of the United States marriage is an
institution in the maintenance of which in its purity the public is deeply interested,
for it is the foundation of the family and of society, without which there could be
neither civilization nor progress. (Maynard vs. Hill, 125 U. S., 210; 31 L. ed., 659.)
Until the adoption of Act No. 2710 by the Philippine Legislature (March 11,1917), it
had been the law of these Islands that marriage, validly contracted, could not be
dissolved absolutely except by the death of one of the parties; and such was the law
in this jurisdiction at the time when the divorce in question was procured. The Act to
which we have referred permits an absolute divorce to be granted where the wife
has been guilty of adultery or the husband of concubinage. The enactment of this
statute undoubtedly reflects a change in the policy of our laws upon the subject of
divorce, the exact effect and bearing of which need not be here discussed. But
inasmuch as the tenets of the Catholic Church absolutely deny the validity of
marriages where one of the parties is divorced, it is evident that the recognition of a
divorce obtained under the conditions revealed in this case would be as repugnant
to the moral sensibilities of our people as it is contrary to the well-established rules
of law.
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VOL. 42, AUGUST 5, 1918

865
Ramirez vs. Gmur
As the divorce granted by the French court must be ignored, it results that the
marriage of Doctor Mory and Leona Castro, celebrated in London in 1905, could not
legalize their relations; and the circumstance that they afterwards passed for
husband and wife in Switzerland until her death is wholly without legal significance.
The claims of the Mory children to participate in the estate of Samuel Bischoff must
therefore be rejected. The right to inherit is limited to legitimate, legitimated, and
acknowledged natural children. The children of adulterous relations are wholly
excluded. The word "descendants," as used in article 941 of the Civil Code cannot
be interpreted to include illegitimates born of adulterous relations.
An important question arises in connection with the time within which the claims of
the two sets of children were presented to the court. In this connection it appears
that the will of Samuel Bischoff was probated in August, 1913. A committee on
claims was appointed and its report was filed and accepted February 20, 1914.
About the same time Otto Gmur entered an appearance for the Mory claimants and
petitioned the court to enter a decree establishing their right to participate in the
distribution of the estate. The executrix, Doa Ana Ramirez, answered the petition
denying that said minors were the legitimate children of Leona Castro and further
denying that the latter was the recognized natural daughter of Samuel Bischoff.
Upon the issues thus presented a trial was had before the Honorable Fermin
Mariano, and on December 29, 1915, he rendered a decision in which he held (1)
that Leona Castro was the recognized natural daughter of Samuel Bischoff; (2) that
the minor, Leontina Elizabeth, is a legitimate daughter of Leona Castro; and (3) that
the minors Carmen Maria and Esther Renate are illegitimate children of Leona
Castro.
From these facts the court drew the conclusion that Leontina Elizabeth was entitled
to one-third of the estate ofthe late Samuel Bischoff, and that his widow, Doa Ana
Ramirez, was entitled to the remaining two-thirds. From this decision both Doa Ana
Ramirez and Otto Gmur, as guardian, appealed.
Shortly after the appeals above-mentioned were taken, Mr. Frederick von Kauffman
made application to the Court of First Instance of Iloilo by petition filed in the
proceedings therein pending upon the estate of the late Samuel Bischoff for
appointment as guardian ad litem of his minor children, the von Kauffman heirs,
which petition was granted by order dated March 24, 1916. Thereafter, on April 1,
1916, von Kauffman, on behalf of the said minors, filed in the cause a petition
setting forth their rights to share in the estate. This petition was answered by Mr.
Otto Gmur, guardian, on April 26, 1916, the sole contention of said answer being
that the matter to which the petition relates had been disposed of by the decision of
the Court of First Instance rendered in said proceedings by Judge Mariano on
December 29, 1915. Dona Ana Ramirez answered denying all the allegations of von
Kauffman's petition.
The trial of the petition of von Kauffman, as guardian, came on for hearing before
the Court of First Instance of Iloilo on the 10th day of August, 1916. Upon the
evidence taken at that hearing the Honorable J. S. Powell, as judge then presiding in
the Court of First Instance of Iloilo, rendered a decision under date of November 14,
1916, in which he found as a fact that Leona Castro was the acknowledged natural
daughter of Samuel Bischoff and that the minors, Elena, Fritz, and Ernesto, are the
legitimate children of Frederick von Kauffman and the said Leona Castro, born in
lawful wedlock. Upon the facts so found, Judge Powell based his conclusion that all
that portion of the estate of Samuel Bischoff pertaining to Leona Castro should be
equally divided among the children Federico, Ernesto, and Elena, thereby excluding
by inference the Mory claimants from all participation in the estate.
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Ramirez vs. Gmur
From this judgment an appeal was taken by Mr. Otto Gmur as guardian, no appeal
having been taken by Doa Ana Ramirez.
Though the circumstance is now of no practical importance, it may be stated in
passing that the appeals of Doa Ana Ramirez and of Otto Gmur, guardian, from the
decision of Judge Mariano of December 29,1915, and the appeal of Otto Gmur,
guardian, from the decision of Judge Powell, of November 14, 1916, were brought to
this court separately; but the causes were subsequently consolidated and have
been heard together. The parties to the litigation have also stipulated that all the
"evidence, stipulations and admissions in each of the two proceedings abovementioned may be considered for all purposes by this court in the other." The case
is therefore considered here as though there had been but one trial below and all
the issues of law and fact arising from the contentions of the opposing claimants
had been heard at the same time.
Upon the facts above stated it is insisted for Ana M. Ramirez that her rights to the
estate under the will of Samuel Bischoff were at the latest determined by the final
decree of December 29, 1915; and that it was thereafter incompetent for the court
to take cognizance of the application of the Mory claimants. If this contention is,
sustainable, the same considerations would operate to defeat the later application
filed on behalf of the von Kauffman childrenand indeed with even greater force,
since this application was not made until the appeals from the decree of December
29, 1915, had actually been perfected and the cause had been transferred to the
Supreme Court.
Two questions are here involved, one as to the effect of the probate of a will upon
the rights of forced heirs who do not appear to contest the probate, and the other
as to the conclusiveness and finality of an order for the distribution of an estate, as
against persons who are not before the court.
Upon the first of these questions it is enough to say that the rights of forced heirs to
their legitime are not di868
868
Ramirez vs. Gmur
vested by the decree admitting a will to probate,and this regardless of the fact
that no provision has been made for them in the will, for the decree of probate is
conclusive only as regards the due execution of the will, the question of its intrinsic
validity not being determined by such decree. (Code of Civil Procedure, sec. 625;
Castaeda vs. Alemany, 3 Phil., 426; Sahagun vs. De Gorostiza, 7 Phil., 347; Joy vs.
Vafio, 8 Phil., 119; Limjuco vs. Ganara, 11 Phil., 393, 395; Austria vs. Ventenilla, 21
Phil., 180.)
Indeed it is evident, under the express terms of the proviso to section 753 of the
Code of Civil Procedure, that the forced heirs cannot be prejudiced by the failure of
the testator to provide for them in his will; and regardless of the intention of the
testator to leave all his property, or practically all of it, to his wife, the will is
intrinsically invalid so far as it would operate to cut off their rights.
The question as to the conclusiveness of the order of distribution can best be
considered with reference to the von Kauffman children, as the solution of the
problem as to them necessarily involves the disposition of the question as to the
Mory claimants.
It is evident that the von Kauffman children cannot be considered to have been in
any sense parties to the proceeding at the time Judge Mariano rendered his
decision. So far as the record shows the court was then unaware even of their
existence. No notice of any kind was served upon them; nor was any person then
before the court authorized to act in their behalf. Nevertheless, as we have already
shown, upon the death of Samuel Bischoff, the right to participate in his estate
vested immediately in this children, to the extent to which their mother would have
been entitled to participate had she survived her father. If the right vested upon the
death of Samuel Bischoff, how has it been since divested?
The record shows that the decision of December 29, 1915, in which Judge Mariano
holds that the estate should be divided between Leontina Elizabeth and the
residuary lega869
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Ramirez vs. Gmur
tee Doa Ana Ramirez, was made without publication of notice, or service of any
kind upon other persons who might consider themselves entitled to participate in
the estate.
The law in force in the Philippine Islands regarding the distribution of estates of
deceased persons is to be found in section 753 et seq., of the Code of Civil
Procedure. In general terms the law is that after the payment of the debts and
expenses of administration the court shall distribute the residue of the estate
among the persons who are entitled to receive it, whether by the terms of the will or
by operation of law. It will be noted that while the law (sec. 754) provides that the
order of distribution may be had upon the application of the executor or
administrator, or of a person interested in the estate, no provision is made for
notice, by publication or otherwise, of such application. The proceeding, therefore,
is to all intents and purposes ex parte. As will be seen our law is very vague and
incomplete, and certainly it cannot be held that a purely ex parte proceeding, had
without notice by personal service or by publication, by which the court undertakes
to distribute the property of deceased persons, can be conclusive upon minor heirs
who are not represented therein.
Section 41 of the Code of Civil Procedure provides that ten years actual adverse
possession by "occupancy, grant, descent, or otherwise" shall vest title in the
possessor. This would indicate that a decree of distribution under which one may be
placed in possession of land acquired by descent, is not in itself conclusive, and
that, as held in Layre vs. Pasco (5 Rob. [La.], 9), the action of revindication may be
brought by the heir against the persons put in possession by decree of the probate
court at any time within the period allowed by the general statute of limitations.
Our conclusion is that the application of the von Kauffman children was presented in
ample time and that the judgment entered in their favor by Judge Powell was
correct. The Mory claimants, as already stated, are debarred from participation in
the estate on other grounds. Ramirez vs. Gmur, 42 Phil., 855, No. 11796 August 5,
1918

Borthwick Vs

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Borthwick vs.

The facts are stated in the opinion of the Court.

"That Defendant WILLIAM B. BORTHWICK having failed to plead or otherwise defend

unsuccessfulBorthwick was "always out on official business"the sheriff effected

7 Rollo, p. 68; also p. 63.

VOL. 152, JULY 23, 1987

12 Rollo, pp. 104-105.

VOL. 152, JULY 23, 1987

SUPREME COURT REPORTS ANNOTATED

23 Fernandez v. Fernandez, et al. 88 Phil. 162; Comilang v. Delenela, et al., 10 SCRA

VOL. 152, JULY 23, 1987

EMILIE ELMIRA RENE BOUDARD, RAYMOND ANTONIN BouDARD, GINETTE ROSE

VOL. 67, APRIL 5, 1939

The facts are stated in the opinion of the court.

VOL. 67, APRIL 5, 1939

Judgment affirmed. Orient Protective Assurance Association vs. Ramos., 67 Phil.

Northwest Orient Airlines, Inc. vs. Court of Appeals

VOL. 241, FEBRUARY 9, 1995

As found by the Court of Appeals in the challenged decision of 10 November 1993,1

1 Annex "A" of Petition. Per Associate Justice Antonio M. Martinez; concurred in by

VOL. 241, FEBRUARY 9, 1995

VOL. 241, FEBRUARY 9, 1995

On this premise, defendant appellee is a non-resident corporation. As such, court

VOL. 241, FEBRUARY 9, 1995

not. Accordingly, the presumption of validity and regularity of the service of

agreement or stipulation, executed by the proper authorities of said company in

VOL. 241, FEBRUARY 9, 1995

16 Decision of the Court of Appeals, 2; Rollo, 29.

19 125 SCRA 758 [1983].

VOL. 241, FEBRUARY 9, 1995

26 203 SCRA 9,18-20 [1991].

VOL. 241, FEBRUARY 9, 1995

presumption, SHARP may be deemed a resident of Japan, and, as such, was

27 36 Am Jur 2d Foreign Corporations 516 (1968).

VOL. 241, FEBRUARY 9, 1995

MARGARET QUERUBIN, recurrente y apelante, contra SILVESTRE QUERUBIN,

VOL. 87, JULY 29, 1950

Querubin vs. Querubin

Silvestre Querubin es de Caoayan, Ilocos Sur, de padres filipinos. En 1926 se

VOL. 87, JULY 29, 1950

En 10 de febrero de 1950 la recurrente Margaret Querubin, por medio de su

VOL. 87, JULY 29, 1950

VOL. 87, JULY 29, 1950

VOL. 87, JULY 29, 1950

VOL. 87, JULY 29, 1950

del Tribunal Supremo de Hongkong porque era errnea en sus conclusiones de

VOL. 87, JULY 29, 1950

I concur in the result.

Ramirez vs. Gmur

[No. 11796.August 5, 1918]

recognition elsewhere. The voluntary appearance of the defendant before such a

VOL. 42, AUGUST 5, 1918

VOL. 42, AUGUST 5, 1918

"Furthermore, viewing the conception of natural child in connection with two

VOL. 42, AUGUST 5, 1918

VOL. 42, AUGUST 5, 1918

VOL. 42, AUGUST 5, 1918

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