G.R. No.

L-13602 April 6, 1918

LEUNG BEN, plaintiff,

Thos. D. Aitken and W. A. Armstrong for plaintiff.

STREET, J.:

This is an application for a writ of certiorari, the purpose of which is to quash an attachment issued from
the Court of First Instance of the City of Manila under circumstances hereinbelow stated.

Upon December 12, 1917, an action was instituted in the Court of First Instance of the city of Manila by
P. J. O'Brien to recover of Leung Ben the sum of P15,000 alleged to have been lost by the plaintiff to the
defendant in a series of gambling, banking and percentage games conducted ruing the two or three
months prior to the institution of the suit. In his verified complaint the plaintiff asked for an attachment,
under section 424, and 412 (1) of the Code of Civil Procedure, against the property of the defendant, on
the ground that the latter was about to depart from the Philippine islands with intent to defraud his
creditors. This attachment was issued; and acting under the authority thereof, the sheriff attached the
sum of P15,000 which had been deposited by the defendant with the International Banking Corporation.

The defendant thereupon appeared by his attorney and moved the court to quash the attachment. Said
motion having dismissed in the Court of First Instance, the petitioner, Leung Ben, the defendant in that
action, presented to this court, upon January 8, 1918 his petition for the writ of certiorari directed
against P. J. O'Brien and the judges of the Court of First Instance of the city of Manila whose names are
mentioned in the caption hereof. The prayer is that the Honorable James A. Ostrand, as the judge having
cognizance of the action in said court be required to certify the record to this court for review and that
the order of attachment which had been issued should be revoked and discharged. with costs. Upon the
filing of said petition in this court the usual order was entered requiring the defendants to show cause
why the writ should not issue. The response of the defendants, in the nature of a demurrer, was filed
upon January 21, 1918; and the matter is now heard upon the pleadings thus presented.

The provision of law under which this attachment was issued requires that there should be accuse of
action arising upon contract, express or implied. The contention of the petitioner is that the statutory
action to recover money lost at gaming is that the statutory action to recover money lost at gaming is no
such an action as is contemplated in this provision, and he therefore insists that the original complaint
shows on its face that the remedy of attachment is not available in aid thereof; that the Court of First
Instance acted in excess of its jurisdiction in granting the writ of attachment; that the petitioner has no
plain, speedy, and adequate remedy by appeal or otherwise; and that consequently the writ of certiorari
supplies the appropriate remedy for his relief.

The case presents the two following questions of law, either of which, if decided unfavorably to the
petitioner, will be fatal to his application:
(1) Supposing that the Court of First Instance has granted an attachment for which there is no
statutory authority, can this court entertain the present petition and grant the desired relief?

(2) Is the statutory obligation to restore money won at gaming an obligation arising from "contract,
express or implied?"

We are of the opinion that the answer to the first question should be in the affirmative. Under section
514 of the Code of Civil Procedure the Supreme Court has original jurisdiction by the writ of certiorari
over the proceedings of Courts of First Instance, wherever said courts have exceeded their jurisdiction
and there is no plaint, speedy, and adequate remedy. In the same section, it is further declared that the
proceedings in the Supreme Court in such cases hall be as prescribed for Courts of First Instance in
section 217-221, inclusive, of said Code. This Supreme Court, so far as applicable, the provisions
contained in those section to the same extent as if they had been reproduced verbatim immediately
after section 514. Turning to section 217, we find that, in defining the conditions under which certiorari
can be maintained in a Court of First Instance substantially the same language is used as is the same
remedy can be maintained in the Supreme Court of First Instance, substantially the same language is
used as is found in section 514 relative to the conditions under which the same remedy can be
maintained in the Supreme Court, namely, when the inferior tribunal has exceeded its jurisdiction and
there is no appeal, nor any plain, speedy and adequate remedy. In using these expressions the author of
the Code of Civil Procedure merely adopted the language which, in American jurisdictions at least, had
long ago reached the stage of stereotyped formula.

In section 220 of the same Code, we have a provision relative to the final proceedings in certiorari, and
herein it is stated that the court shall determine whether the inferior tribunal has regularly pursued its
authority it shall give judgment either affirming annulling, or modifying the proceedings below, as the
law requires. The expression, has not regularly pursued its authority as here used, is suggestive, and we
think it should be construed in connection with the other expressions have exceeded their jurisdiction,
as used in section 514, and has exceeded their jurisdiction as used in section 217. Taking the three
together, it results in our opinion that any irregular exercise of juridical power by a Court of First
Instance, in excess of its lawful jurisdiction, is remediable by the writ of certiorari, provided there is no
other plain, speedy, and adequate remedy; and in order to make out a case for the granting of the writ it
is not necessary that the court should have acted in the matter without any jurisdiction whatever.
Indeed the repeated use of expression excess of jurisdiction shows that the lawmaker contemplated the
situation where a court, having jurisdiction should irregularly transcend its authority as well as the
situation where the court is totally devoid of lawful power.

It may be observed in this connection that the word jurisdiction as used in attachment cases, has
reference not only to the authority of the court to entertain the principal action but also to its authority
to issue the attachment, as dependent upon the existence of the statutory ground. (6 C. J., 89.) This
distinction between jurisdiction to issue the attachment as an ancillary remedy incident to the principal
litigation is of importance; as a court's jurisdiction over the main action may be complete, and yet it may
lack authority to grant an attachment as ancillary to such action. This distinction between jurisdiction
over the ancillary has been recognized by this court in connection with actions involving the
appointment of a receiver. Thus in Rocha & Co. vs. Crossfield and Figueras (6 Phil. Rep., 355), a receiver
had been appointed without legal justification. It was held that the order making the appointment was
beyond the jurisdiction of the court; and though the court admittedly had jurisdiction of the main cause,
the order was vacated by this court upon application a writ of certiorari. (See Blanco vs. Ambler, 3 Phil.
Rep., 358, Blanco vs. Ambler and McMicking 3 Phil. Rep., 735, Yangco vs. Rohde, 1 Phil. Rep., 404.)
By parity of reasoning it must follow that when a court issues a writ of attachment for which there is no
statutory authority, it is acting irregularly and in excess of its jurisdiction, in the sense necessary to
justify the Supreme Court in granting relief by the writ of certiorari. In applying this proposition it is of
course necessary to take account of the difference between a ground of attachment based on the
nature of the action and a ground of attachment based on the acts or the conditions of the defendant.
Every complaint must show a cause of action some sort; and when the statue declares that the
attachment may issue in an action arising upon contract, the express or implied, it announces a criterion
which may be determined from an inspection of the language of the complaint. The determination of
this question is purely a matter of law. On the other hand, when the stature declares that an attachment
may be issued when the defendant is about to depart from the Islands, a criterion is announced which is
wholly foreign to the cause of action; and the determination of it may involve a disputed question of
fact which must be decided by the court. In making this determination, the court obviously acts within
its powers; and it would be idle to suppose that the writ of certiorari would be available to reverse the
action of a Court of First Instance in determining the sufficiency of the proof on such a disputed point,
and in granting or refusing the attachment accordingly.

We should not be understood, in anything that has been said, as intending to infringe the doctrine
enunciated by this court in Herrera vs. Barretto and Joaquin (25 Phil. Rep., 245), when properly applied.
It was there held that we would not, upon application for a writ of certiorari, dissolve an interlocutory
mandatory injunction that had been issued in a Court of First Instance as an incident in an action of
mandamus. The issuance of an interlocutory injunction depends upon conditions essentially different
from those involved in the issuance of an attachment. The injunction is designed primarily for the
prevention of irreparable injury and the use of the remedy is in a great measure dependent upon the
exercise of discretion. Generally, it may be said that the exercise of the injunctive powers is inherent in
judicial authority; and ordinarily it would be impossible to distinguish between the jurisdiction of the
court in the main litigation and its jurisdiction to grant an interlocutory injunction, for the latter is
involved in the former. That the writ of certiorari can not be used to reverse an order denying a motion
for a preliminary injunction is of course not to cavil. (Somes vs. Crossfield and Molina, 8 Phil. Rep., 284.)

But it will be said that the writ of certiorari is not available in this cae, because the petitioner is
protected by the attachment bond, and that he has a plain, speedy, and adequate remedy appeal. This
suggestion seems to be sufficiently answered in the case of Rocha & Co vs. Crossfield and Figueras (6
Phil. Rep., 355), already referred to, and the earlier case there cited. The remedy by appeal is not
sufficiently speedy to meet the exigencies of the case. An attachment is extremely violent, and its abuse
may often result in infliction of damage which could never be repaired by any pecuniary award at the
final hearing. To postpone the granting of the writ in such a case until the final hearing and to compel
the petitioner to bring the case here upon appeal merely in order to correct the action of the trial court
in the matter of allowing the attachment would seem both unjust and unnecessary.

Passing to the problem propounded in the second question it may be observed that, upon general
principles,. recognize both the civil and common law, money lost in gaming and voluntarily paid by the
loser to the winner can not in the absence of statue, be recovered in a civil action. But Act No. 1757 of
the Philippine Commission, which defines and penalizes several forms of gambling, contains numerous
provisions recognizing the right to recover money lost in gambling or in the playing of certain games
(secs. 6, 7, 8, 9, 11). The original complaint in the action in the Court of First Instance is not clear as to
the particular section of Act No. 1757 under which the action is brought, but it is alleged that the money
was lost at gambling, banking, and percentage game in which the defendant was banker. It must
therefore be assumed that the action is based upon the right of recovery given in Section 7 of said Act,
which declares that an action may be brought against the banker by any person losing money at a
banking or percentage game.

Is this a cause arising upon contract, express or implied, as this term is used in section 412 of the Code of
Civil Procedure? To begin the discussion, the English version of the Code of Civil Procedure is controlling
(sec. 15, Admin. Code, ed. of 1917). Furthermore it is universally admitted to be proper in the
interpretation of any statute, to consider its historical antecedents and its juris prudential sources. The
Code of Civil Procedure, as is well known, is an American contribution to Philippine legislation. It
therefore speaks the language of the common-law and for the most part reflects its ideas. When the
draftsman of this Code used the expression contract, express or implied, he used a phrase that has been
long current among writers on American and English law; and it is therefore appropriate to resort to that
system of law to discover the appropriate to resort to that system of law to discover the meaning which
the legislator intended to convey by those meaning which the legislator intended to convey by those
terms. We remark in passing that the expression contrato tracito, used in the official translation of the
Code of Civil Procedure as the Spanish equivalent of implied contract, does not appear to render the full
sense of the English expression.

The English contract law, so far as relates to simple contracts is planted upon two foundations, which
are supplied by two very different conceptions of legal liability. These two conceptions are revealed in
the ideas respectively underlying (1) the common- law debt and (2) the assumptual promise. In the early
and formative stages of the common-law the only simple contract of which the courts took account was
the real contract or contract re, in which the contractual duty imposed by law arises upon the delivery of
a chattle, as in the mutuum, commodatum, depositum, and the like; and the purely consensual
agreements of the Roman Law found no congenial place in the early common law system.

In course of time the idea underlying the contract re was extended so as to include from one person to
another under such circumstances as to constitute a justa cuas debendi. The obligation thereby created
was a debt. The constitutive element in this litigation is found in the fact that the debtor has received
something from the creditor, which he is bound by the obligation of law to return or pay for. From an
early day this element was denominated the quid pro quo, an ungainly phrase coined by Mediaeval
Latinity. The quid pro quo was primarily a materials or physical object, and its constituted the
recompense or equivalent acquired by the debtor. Upon the passage of the quid pro quo from one party
to the other, the law imposed that real contractual duty peculiar to the debt. No one conversant with
the early history of English law would ever conceive of the debt as an obligation created by promise. It is
the legal duty to pay or deliver a sum certain of money or an ascertainable quantity of ponderable or
measurable chattles.

The ordinary debt, as already stated, originates in a contract in which a quid pro quo passes to the
debtor at the time of the creation of the debt, but the term is equally applicable to duties imposed by
custom or statute, or by judgment of a court.

The existence of a debt supposes one person to have possession of thing (res) which he owes and hence
ought to turn over the owner. This obligation is the oldest conception of contract with which the
common law is familiar; and notwithstanding the centuries that have rolled over Westminster Hall that
conception remains as one of the fundamental bases of the common-law contract.
Near the end of the fifteenth century there was evolved in England a new conception of contractual
liability, which embodied the idea of obligation resulting from promise and which found expression in
the common law assumpsit, or parol promise supported by a consideration. The application of this novel
conception had the effect of greatly extending the filed of contractual liability and by this means rights
of action came to be recognized which had been unknown before. The action of assumpsit which was
the instrument for giving effect to this obligation was found to be a useful remedy; and presently this
action came to be used for the enforcement of common-law debts. The result was to give to our
contract law the superficial appearance of being based more or less exclusively upon the notion of the
obligation of promise.

An idea is widely entertained to the effect that all simple contracts recognized in the common-law
system are referable to a singly category. They all have their roots, so many of us imagine, in one
general notion of obligation; and of course the obligation of promise is supposed to supply this general
notion, being considered a sort of menstruum in which all other forms of contractual obligation have
been dissolved. This a mistake. The idea of contractual duty embodied in the debt which was the first
conception of contract liability revealed in the common law, has remained, although it was detained to
be in a measure obscured by the more modern conception of obligation resulting from promise.

What has been said is intended to exhibit the fact that the duty to pay or deliver a sum certain of money
or an ascertainable quantity of ponderable or measurable chattles — which is indicated by them debt —
has ever been recognized, in the common-law system, as a true contract, regardless, of the source of
the duty or the manner in which it is create — whether derived from custom, statue or some consensual
transaction depending upon the voluntary acts of the parties. the form of contract known as the debt is
of the most ancient lineage; and when reference is had to historical antecedents, the right of the debt to
be classed as a contract cannot be questioned. Indeed when the new form of engagement consisting of
the parol promise supported by a consideration first appeared, it was looked upon as an upstart and its
right to be considered a true contract was questioned. It was long customary to refer to it exclusively as
an assumpsit, agreement, undertaking, or parol promise, in fact anything but a contract. Only in time did
the new form of engagement attain the dignity of being classed among true contract.

The term implied takers us into shadowy domain of those obligations the theoretical classification of
which has engaged the attention of scholars from the time of Gaius until our own day and has been a
source of as much difficulty to the civilian as to the common-law jurist. There we are concerned with
those acts which make one person debtor to another without there having intervened between them
any true agreement tending to produce a legal bond (vinculum juris). Of late years some American and
English writers have adopted the term quasi-contract as descriptive of these obligations or some of
them; but the expression more commonly used is implied contract.

Upon examination of these obligations, from the view point of the common-law jurisprudence, it will be
found that they fall readily into two divisions according as they bear an analogy to the common-law debt
or to the common law assumpsit. To exhibit the scope of these different classes of obligations is here
impracticable. It is only necessary in this connection to observe that the most conspicuous division is
that which comprises duties in the nature of debt. The characteristic feature of these obligations is that
upon certain states of fact the law imposes an obligation to pay a sum certain of money; and it is
characteristic of this obligation that the money in respect to which the duty is raised is conceived as
being equivalent of something taken or detained under circumstances giving rise to the duty to return or
compensate therefore. The proposition that no one shall be allowed to enrich himself unduly at the
expense of another embodies the general principle here lying at the basis of obligation. The right to
recover money improperly paid (repeticion de lo indebido) is also recognized as belong to this class of
duties.

It will observed that according to the Civil Code obligations are supposed to be derived either from (1)
the law, (2) contracts and quasi-contracts, (3) illicit acts and omission, or (4) acts in which some sort ob
lame or negligence is present. This enumeration of sources of obligations and the obligation imposed by
law are different types. The learned Italian jurist, Jorge Giorgi, criticises this assumption and says that
the classification embodied in the code is theoretically erroneous. His conclusion is that one or the other
of these categories should have been suppressed and merged in the other. (Giorgi, Teoria de las
Obligaciones, Spanish ed., vol. 5 arts. 5, 7, 9.) The validity of this criticism is, we thin, self-evident; and it
is of interest to note that the common law makes no distinction between the two sources of liability.
The obligations which in the Code are indicated as quasi-contracts, as well as those arising ex lege, are in
the common la system, merged into the category of obligations imposed by law, and all are
denominated implied contracts.

Many refinements, more or less illusory, have been attempted by various writers in distinguishing
different sorts of implied contracts, as for example, the contract implied as of fact and the contract
implied as of law. No explanation of these distinctions will be here attempted. Suffice it to say that the
term contract, express or implied, is used to by common-law jurists to include all purely personal
obligations other than those which have their source in delict, or tort. As to these it may be said that,
generally speaking, the law does not impose a contractual duty upon a wrongdoer to compensate for
injury done. It is true that in certain situations where a wrongdoer unjustly acquired something at the
expense of another, the law imposes on him a duty to surrender his unjust acquisitions, and the injured
party may here elect to sue upon this contractual duty instead of suing upon the tort; but even here the
distinction between the two liabilities, in contract and in tort, is never lost to sight; and it is always
recognized that the liability arising out of the tort is delictual and not of a contractual or quasi-
contractual nature.

In the case now under consideration the duty of the defendant to refund the money which he won from
the plaintiff at gaming is a duty imposed by statute. It therefore arises ex lege. Furthermore, it is a duty
to return a certain sum which had passed from the plaintiff to the defendant. By all the criteria which
the common law supplies, this a duty in the nature of debt and is properly classified as an implied
contract. It is well- settled by the English authorities that money lost in gambling or by lottery, if
recoverable at all, can be recovered by the loser in an action of indebitatus assumpsit for money had
and received. (Clarke vs. Johnson. Lofft, 759; Mason vs. Waite, 17 Mass., 560; Burnham vs. Fisher, 25 Vt.,
514.) This means that in the common law the duty to return money won in this way is an implied
contract, or quasi-contract.

It is no argument to say in reply to this that the obligation here recognized is called an implied contract
merely because the remedy commonly used in suing upon ordinary contract can be here used, or that
the law adopted the fiction of promise in order to bring the obligation within the scope of the action of
assumpsit. Such statements fail to express the true import of the phenomenon. Before the remedy was
the idea; and the use of the remedy could not have been approved if it had not been for historical
antecedents which made the recognition of this remedy at one logical and proper. Furthermore, it
should not be forgotten that the question is not how this duty but what sort of obligation did the author
of the Code of Civil Procedure intend to describe when he sued the term implied contract in section 412.
In what has been said we have assumed that the obligation which is at the foundation of the original
action in the court below is not a quasi-contract, when judge by the principles of the civil law. A few
observations will show that this assumption is not by any means free from doubt. The obligation in
question certainly does not fall under the definition of either of the two-quasi- contracts which are
made the subject of special treatment in the Civil Code, for its does not arise from a licit act as
contemplated in article 1895. The obligation is clearly a creation of the positive law — a circumstance
which brings it within the purview of article 1090, in relation with article, 1089; and it is also derived
from an illicit act, namely, the playing of a prohibited game. It is thus seen that the provisions of the Civil
Code which might be consulted with a view to the correct theoretical classification of this obligation are
unsatisfactory and confusing.

The two obligations treated in the chapter devoted to quasi-contracts in the Civil Code are (1) the
obligation incident to the officious management of the affairs of other person (gestion de negocios
ajenos) and (2) the recovery of what has been improperly paid (cabro de lo indebido). That the authors
of the Civil Code selected these two obligations for special treatment does not signify an intention to
deny the possibility of the existence of other quasi-contractual obligations. As is well said by the
commentator Manresa.

The number of the quasi-contracts may be indefinite as may be the number of lawful facts, the
generations of the said obligations; but the Code, just as we shall see further on, in the
impracticableness of enumerating or including them all in a methodical and orderly classification, has
concerned itself with two only — namely, the management of the affairs of other person and the
recovery of things improperly paid — without attempting by this to exclude the others. (Manresa, 2d
ed., vol. 12, p. 549.)

It would indeed have been surprising if the authors of the Code, in the light of the jurisprudence of more
than a thousand years, should have arbitrarily assumed to limit the quasi-contract to two obligations.
The author from whom we have just quoted further observes that the two obligations in question were
selected for special treatment in the Code not only because they were the most conspicuous of the
quasi-contracts, but because they had not been the subject of consideration in other parts of the Code.
(Opus citat., 550.)

It is well recognized among civilian jurists that the quasi- contractual obligations cover a wide range. The
Italian jurist, Jorge Giorgi, to whom we have already referred, considers under this head, among other
obligations, the following: payments made upon a future consideration which is not realized or upon an
existing consideration which fails; payments wrongfully made upon a consideration which is contrary to
law, or opposed to public policy; and payments made upon a vicious consideration or obtained by illicit
means (Giorgi, Teoria de las Obligaciones, vol. 5, art. 130.)

Im permitting the recovery of money lost at play, Act No. 1757 has introduced modifications in the
application of articles 1798, 180`, and 1305 of the Civil Code. The first two of these articles relate to
gambling contracts, while article 1305 treats of the nullity of contracts proceeding from a vicious or illicit
consideration. Taking all these provisions together, it must be apparent that the obligation to return
money lost at play has a decided affinity to contractual obligations; and we believe that it could, without
violence to the doctrines of the civil law, be held that such obligations is an innominate quasi-contract. It
is, however, unnecessary to place the decision on this ground.
From what has been said it follows that in our opinion the cause of action stated in the complaints in the
court below is based on a contract, express or implied and is therefore of such nature that the court had
authority to issue writ of attachment. The application for the writ of certiorari must therefore be denied
and the proceedings dismissed. So ordered.

Arellano, C.J., Torres, Johnson and Carson, JJ., concur.

[G.R. No. 4089. January 12, 1909. ]

ARTURO PELAYO, Plaintiff-Appellant, v. MARCELO LAURON, ET AL., Defendants-Appellees.

J. H. Junquera, for Appellant.

Filemon Sotto, for Appellees.

SYLLABUS

1. RECIPROCAL OBLIGATION OF HUSBAND AND WIFE; SUPPORT. — Among the reciprocal obligations
existing between a husband and wife is that of support, which obligation is established by law.

2. ID.; SUPPORT OF STRANGERS. — The law does not compel any person to support a stranger unless
such person bound himself to do so by an express contract.

3. ID.; SUPPORT OF WIFE. — Where a husband whom the law compels to support his wife in living, the
father and mother-in-law of the latter are under no liability to provide for her.

DECISION

TORRES, J. :

On the 23d of November, 1906, Arturo Pelayo, a physician-residing in Cebu, filed a complaint against
Marcelo Lauron and Juana Abella setting forth that on or about the 13th of October of said year, at
night, the plaintiff was called to the house of the defendants, situated in San Nicolas, and that upon
arrival he was requested by them to render medical assistance to their daughter-in-law who was about
to give birth to a child; that therefore, and after consultation with the attending physician, Dr. Escano, it
was found necessary, on account of the difficult birth, to remove the fetus by means of forceps which
operation was performed by the plaintiff, who also had to remove the after birth, in which service he
was occupied until the following morning, and that afterwards, on the same day, he visited the patient
several times; that the just and equitable value of the services rendered by him was P500, which the
defendants refuse to pay without alleging any good reason there for; that for said reason he prayed that
judgment be entered in his favor as against the defendants, or any of them, for the sum of P500 and
costs, together with any other relief that might be deemed proper.

In answer to the complaint counsel for the defendants denied all of the allegations therein contained
and alleged as a special defense, that their daughter-in-law had died in consequence of the said
childbirth, and that when she was alive she lived with her husband independently and in a separate
house without any relation whatever with them, and that, if on the day when she gave birth she was in
the house of the defendants, her stay there was accidental and due to fortuitous circumstances;
therefore, he prayed that the defendants be absolved of the complaint with costs against the plaintiff.

The plaintiff demurred to the above answer, and the court below sustained the demurrer, directing the
defendants, on the 23d of January, 1907, to amend their answer. In compliance with this order the
defendants presented, on the same date, their amended answer, denying each and every one of the
allegations contained in the complaint, and requesting that the same be dismissed with costs.

As a result of the evidence adduced by both parties, judgment was entered by the court below on the
5th of April, 1907, whereby the defendants were absolved from the former complaint, on account of the
lack of sufficient evidence to establish a right of action against the defendants, with costs against the
plaintiff, who excepted to the said judgment and in addition moved for a new trial on the ground that
the judgment was contrary to law; the motion was overruled and the plaintiff excepted and in due
course presented the corresponding bill of exceptions. The motion of the defendants requesting that
the declaration contained in the judgment that the defendants had demanded he professional services
of the plaintiff he eliminated therefrom, for the reason that, according to the evidence, no such request
had been made, was also denied, and to the decision the defendants excepted.

Assuming that it is a real fact acknowledged by the defendants, that the plaintiff, by virtue of having
been sent for by the former, attended as physician and rendered professional services to a daughter-in-
law of the said defendants during a difficult and laborious childbirth, in order to decide the claim of the
said physician regarding the recovery of his fees, it becomes necessary to decide who is bound to pay
the bill, whether the father and mother-in-law of the patient, or the husband of the latter.

According to article 1089 of the Civil Code, obligations are created by law, by contracts, by quasi-
contracts, and by illicit acts and omissions or by those in which any kind of fault or negligence occurs.

Obligations arising from law are not presumed. Those expressly determined in the code or in special
laws, etc., are the only demandable ones. Obligations arising from contracts have legal force between
the contracting parties and must be fulfilled in accordance with their stipulations. (Arts. 1090 and 1091.)

The rendering of medical assistance in case of illness is comprised among the mutual obligations to
which spouses are bound by way of mutual support. (Arts. 142 and 143.) .

If every obligation consists in giving, doing, or not doing something (art. 1088), and spouses are mutually
bound to support each other, there can be no question but that, when either of them by reason of
illness should be in need of medical assistance, the other is under the unavoidable obligation to furnish
the necessary services of a physician in order that health may be restored, and he or she may be freed
from the sickness by which life is jeopardized; the party bound to furnish such support is therefore liable
for all expenses, including the fees of the medical expert for his professional services. This liability
originates from the above-cited mutual obligation which the law has expressly established between the
married couple.

In the face of the above legal precepts it is unquestionable that the person bound to pay the fees due to
the plaintiff for the professional services that he rendered to the daughter-in-law of the defendants
during her childbirth is the husband of the patient and not her father and mother- in-law, the
defendants herein. The fact that it was not the husband who called the plaintiff and requested his
assistance for his wife is no bar to the fulfillment of the said obligation, as the defendants, in view of the
imminent danger to which the life of the patient was at that moment exposed, considered that medical
assistance was urgently needed, and the obligation of the husband to furnish his wife with the
indispensable services of a physician at such critical moments is specially established by the law, as has
been seen, and compliance therewith is unavoidable; therefore, the plaintiff, who believes that he is
entitled to recover his fees, must direct his action against the husband who is under obligation to furnish
medical assistance to his lawful wife in such an emergency.

From the foregoing it, may readily be understood that it was improper to have brought an action against
the defendants simply because they were the parties who called the plaintiff and requested him to
assist the patient during her difficult confinement, and also, possibly, because they were her father and
mother-in-law and the sickness occurred in their house. The defendants were not, nor are they now,
under any obligation by virtue of any legal provision, to pay the fees claimed, nor in consequence of any
contract entered into between them and the plaintiff from which such obligation might have arisen.

In applying the provisions of the Civil Code in an action for support, the supreme court of Spain, while
recognizing the validity and efficiency of a contract to furnish support wherein a person bound himself
to support another who was not his relative, established the rule that the law does impose the
obligation to pay for the support of a stranger, but as the liability arose out of a contract, the
stipulations of the agreement must be upheld. (Decision of May 11 1897.)

Within the meaning of the law, the father and mother law are strangers with respect to the obligation
that devolves upon the husband to provide support, among which is the furnishing of medical assistance
to his wife at the time of her confinement; and, on the other hand, it does not appear that a contract
existed between the defendants and the plaintiff physician, for which reason it is obvious that the
former can not be compelled to pay fees which they are under no liability to pay because it does not
appear that they consented to bind themselves.

The foregoing suffices to demonstrate that the first and second errors assigned to the judgment below
are unfounded, because, if the plaintiff has no right of action against the defendants, it is needless to
declare whether or not the use of forceps is a surgical operation.

Therefore, in view of the considerations hereinbefore set forth, it is our opinion that the judgment
appealed from should be affirmed with the costs against the Appellant. So ordered.
9
Mapa and Tracey, JJ., concur.

Arellano, C.J. and Carson. J., concur in the result.

ABELARDO BAUTISTA and ROBERTO TAN TING, petitioners-appellees,

Dante O. Tinga and Leopoldo V. Repotente, Jr. for petitioners-appellees.

SANCHEZ, J.:

Respondents-appellants seek to overturn the decision of the Court of First Instance of Rizal of January 6,
1966 granting petitioners-appellees' petition for relief from judgment, setting aside the July 23, 1965
decision of the Municipal Court of Mandaluyong, Rizal, in Civil Case 1365 and ordering a new trial.

The background facts are as follows:

On September 15, 1964, the Ford truck of petitioner Roberto Tan Ting driven by Abelardo Bautista, the
other petitioner, and the Volkswagen delivery panel truck owned by respondent Federico O. Borromeo,
Inc. (hereinafter called Borromeo) were involved in a traffic accident along Epifanio de los Santos
Avenue. In said traffic accident, Quintin Delgado, a helper in Borromeo's delivery panel truck, sustained
injuries which resulted in his instantaneous death. Borromeo had to pay Delgado's widow the sum of
P4,444 representing the compensation (death benefit) and funeral expenses due Delgado under the
Workmen's Compensation Act.

On June 17, 1965, upon the averment that the said vehicular accident was caused by petitioners'
negligence, Borromeo started suit in the Municipal Court of Mandaluyong, Rizal to recover from
petitioners the compensation and funeral expenses it paid to the widow of Quintin Delgado.1

At the scheduled hearing of the case on July 23, 1965, neither petitioners nor their counsel appeared.
Borromeo was thus allowed to present its evidence ex parte. On the same day, July 23, 1965, the
municipal court rendered judgment in favor of Borromeo and against the petitioners in the principal
sum of P4,444, and P500 attorney's fees, and costs. Respondents aver that this judgment has been
executed and satisfied.

On August 6, 1965, petitioners received copy of the municipal court's decision.

On August 13, 1965, petitioners moved to set aside the decision. On August 14, 1965, this motion was
denied.

On August 16, 1965, copy of this order of denial was sent by registered mail to counsel of petitioners.
Said counsel did not receive this registered mail and the mail matter was returned to the court
unclaimed. However, said counsel learned of this denial on September 2, 1965 allegedly "in the course
of his investigation."
Petitioners filed a notice of appeal dated September 2, 1965. They, however, paid the appellate docket
fee and deposited their cash appeal bond only on September 28, 1965. Their appeal was consequently
turned down by the municipal court, for the reason that the deposit of the bond and the payment of the
docket fee were done after the lapse of the reglementary period.

Nothing was done by petitioners until October 26, 1965, when they lodged a petition for relief from the
inferior court's judgment in the Court of First Instance of Rizal.2 They there claimed excusable
negligence for the failure of petitioners' counsel to appear in the July 23, 1965 hearing at the municipal
court and asserted that they had a good and substantial defense in that "there was no contractual
relationship between the parties, whether express or implied." They sought preliminary injunction,
prayed for trial de novo on the merits. A restraining order was at first issued by the court; but the prayer
for preliminary injunction was eventually denied.

Respondents' answer contended that the petition for relief was filed out of time; that petitioners'
counsel's failure to attend the hearing of July 23, 1965 does not constitute excusable negligence; and
that the affidavits attached to the petition do not show good and substantial defense.

Petitioners thereafter moved for judgment on the pleadings. No objection thereto was interposed by
respondents. The lower court then rendered the judgment mentioned in the first part of this opinion.

A move to reconsider failed. Hence, this appeal.

We vote to reverse the lower court's judgment for the following reasons:

1. The petition for relief from judgment under Rule 38 of the Rules of Court is unavailable to petitioners.

A basic precept is that when another remedy at law is open to a party, he cannot sue out a petition for
relief under Rule 38.3 Thus, a petition for relief is not a substitute for appeal. It has been held that
where a defendant could have appealed — but did not appeal — from the decision of the inferior court
to the Court of First Instance but instead filed a petition for relief, his petition was inappropriate as it
"would amount to reviving his right to appeal which he had irretrievably lost through the gross inaction
of his counsel."4

Here, petitioners learned of the municipal court judgment on August 6, 1965, when they received a copy
of its decision. They moved to set aside that judgment on August 13, 1965. At that time, a petition for
relief could not be availed of because the judgment of the municipal court had not yet become final.5
But, on September 2, 1965, petitioners learned of the court's order of August 14, 1965 denying their
motion to set aside. They could have appealed. Because, nothing in the record suggests that the notices
to petitioners to take delivery of the registered envelope — containing the inferior court's resolution
denying petitioners' motion to set aside the decision — were ever served on said petitioners. On the
contrary, Teresita Roxas, secretary of petitioners' counsel, in her affidavit dated October 23, 1965,
Annex E of the petition for relief, categorically denied receipt of any such notice, thus: "That I have not
received any registry notice corresponding to a registered mail at the Manila Post Office containing an
order by the Municipal Court of Mandaluyong, Rizal, dated August 14, 1965."6

But petitioners did not perfect their appeal to the Court of First Instance on time — they paid the
appellate docket fee and deposited their appeal bond only on September 28, eleven (11) days late.
Clearly, their failure to seasonably appeal was through their own fault.
And, when they did file a petition for relief on October 26, 1965, it was way beyond the sixty-day period
from August 6, 1965, the time they first learned of the judgment to be set aside, as required by Section
3, Rule 38 of the Rules of Court.

We accordingly, rule that petitioners' petition for relief must fail.

2. Petitioners failed to make out a case of excusable negligence for counsel's non-attendance at
the July 23, 1965 hearing.

Their counsel, Atty. Leopoldo V. Repotente, Jr., explains his failure to attend the hearing in this wise —
"he relied on the assurance of his associate, Atty. Lucenito N. Tagle, that the latter will attend to the
case for him since on that same date he (Atty. Repotente) had another case before the City Court of
Quezon City." In his sworn statement, Atty. Tagle in turn stated that he was unable to attend the hearing
despite his promise to do so because, in his own words, "when I transferred to my new office at A & T
Building, Escolta, Manila, the record of this case was misplaced, mislaid or otherwise lost by my helpers
and was not among those turned over to my possession" and "it was only a few days after the date of
hearing on July 23, 1965, that I found the record of this case in one of the drawers of my table in my
former office and it was only then that I realized my failure to attend the hearing on July 23, 1965, ... ."

We cannot view such negligence of petitioners' two attorneys as excusable. There was no plausible
reason for Repotente to entrust the hearing of the case to another lawyer. His lame excuse was that he
requested Tagle to attend the hearing of said case for him because he had another hearing at the City
Court of Quezon City. This is unworthy of serious consideration. For, as respondents aver — and this is
not denied by petitioners — the hearing of July 23, 1965 before the municipal court was set in open
court during the initial date of hearing held on July 1, 1965 after Atty. Repotente consulted his calendar.
When Repotente agreed in open court to set the trial of the case for July 23, 1965, it may very well be
presumed that his other case in Quezon City was not yet calendared for hearing. He could not have, in
good faith, agreed to set the case for hearing on the day on which he had another previously scheduled
trial. Further, he failed to notify his clients of the hearing set for July 23, 1965; they also failed to appear
thereat. Certainly, Repotentes' inadvertence cannot be labeled as excusable.

Nor may Atty. Tagle offer as excuse the fact that the record of the case "was misplaced, mislaid or
otherwise lost." This is a stereotyped excuse. It is resorted to by lawyers in order to win new trial of the
case and thereby move farther away the day of reckoning. To be remembered is that the life of each
case is in its record. If the record of the case was misplaced, mislaid or lost, he should have nevertheless
attended the scheduled hearing and requested for a postponement by reason thereof. But he did not.
Appropriate it is to recall here that a prudent lawyer keeps a separate record or diary of hearings of
cases he handles and of his professional engagements. A lawyer's schedules of hearings — intended as
reminder — are not noted by the lawyer in his record of the case. That would be useless for the
purpose.

There is then no excusable negligence to which the petition for relief can cling.

3. Even on the merits, petitioners' case must fall.

Borromeo paid the widow of its employee, Quintin Delgado, compensation (death benefit) and funeral
expenses for the latter's death while in the course of employment. This obligation arises from law —
Section 2 of the Workmen's Compensation Act.7 The same law in its Section 6 also provides that "[i]n
case an employee suffers an injury for which compensation is due under this Act by any other person
besides his employer, it shall be optional with such injured employee either to claim compensation from
his employer, under this Act, or sue such other person for damages, in accordance with law; and in case
compensation is claimed and allowed in accordance with this Act, the employer who paid such
compensation or was found liable to pay the same, shall succeed the injured employee to the right of
recovering from such person what he paid: ..."8

It is evident from the foregoing that "if compensation is claimed and awarded, and the employer pays it,
the employer becomes subrogated to and acquires, by operation of law, the worker's rights against the
tortfeasor."9

No need then there is to establish any contractual relationship between Quintin Delgado and herein
petitioners. Indeed, there is none. The cause of action of respondent corporation is one which does not
spring from a creditor-debtor relationship. It arises by virtue of its subrogation to the right of Quintin
Delgado to sue the guilty party. Such subrogation is sanctioned by the Workmen's Compensation Law
aforesaid. It is as a subrogee to the rights of its deceased employee, Quintin Delgado, that Borromeo
filed a suit against petitioners in the Municipal Court of Mandaluyong, Rizal. 10

FOR THE REASONS GIVEN, the appealed decision of January 6, 1966 under review is hereby reversed and
the petition for relief is hereby dismissed.

Costs against petitioners-appellees. So ordered.

EMETERIO CUI, Plaintiff-Appellant, vs. ARELLANO UNIVERSITY, Defendant-Appellee.

G.A.S. Sipin, Jr., for plaintiff-appellant.

CONCEPCION, J.:chanrobles virtual law library

Appeal by plaintiff Emeterio Cui from a decision of the Court of First Instance of Manila, absolving
defendant Arellano University from plaintiff's complaint, with costs against the plaintiff, and dismissing
defendant's counter claim, for insufficiency of proof thereon.chanroblesvirtualawlibrarychanrobles
virtual law library

In the language of the decision appealed from:

The essential facts of this case are short and undisputed. As established by the agreement of facts
Exhibits X and by the respective oral and documentary evidence introduced by the parties, it appears
conclusive that plaintiff, before the school year 1948-1949 took up preparatory law course in the
defendant University. After finishing his preparatory law course plaintiff enrolled in the College of Law of
the defendant from the school year 1948-1949. Plaintiff finished his law studies in the defendant
university up to and including the first semester of the fourth year. During all the school years in which
plaintiff was studying law in defendant law college, Francisco R. Capistrano, brother of the mother of
plaintiff, was the dean of the College of Law and legal counsel of the defendant university. Plaintiff
enrolled for the last semester of his law studies in the defendant university but failed to pay his tuition
fees because his uncle Dean Francisco R. Capistrano having severed his connection with defendant and
having accepted the deanship and chancellorship of the College of Law of Abad Santos University,
plaintiff left the defendant's law college and enrolled for the last semester of his fourth year law in the
college of law of the Abad Santos University graduating from the college of law of the latter university.
Plaintiff, during all the time he was studying law in defendant university was awarded scholarship
grants, for scholastic merit, so that his semestral tuition fees were returned to him after the ends of
semester and when his scholarship grants were awarded to him. The whole amount of tuition fees paid
by plaintiff to defendant and refunded to him by the latter from the first semester up to and including
the first semester of his last year in the college of law or the fourth year, is in total P1,033.87. After
graduating in law from Abad Santos University he applied to take the bar examination. To secure
permission to take the bar he needed the transcripts of his records in defendant Arellano University.
Plaintiff petitioned the latter to issue to him the needed transcripts. The defendant refused until after
he had paid back the P1,033 87 which defendant refunded to him as above stated. As he could not take
the bar examination without those transcripts, plaintiff paid to defendant the said sum under protest.
This is the sum which plaintiff seeks to recover from defendant in this
case.chanroblesvirtualawlibrarychanrobles virtual law library

Before defendant awarded to plaintiff the scholarship grants as above stated, he was made to sign the
following contract covenant and agreement:chanrobles virtual law library

"In consideration of the scholarship granted to me by the University, I hereby waive my right to transfer
to another school without having refunded to the University (defendant) the equivalent of my
scholarship cash.

(Sgd.) Emeterio Cui".

It is admitted that, on August 16, 1949, the Director of Private Schools issued Memorandum No. 38,
series of 1949, on the subject of "Scholarship," addressed to "All heads of private schools, colleges and
universities," reading:

1. School catalogs and prospectuses submitted to this, Bureau show that some schools offer full or
partial scholarships to deserving students - for excellence in scholarship or for leadership in extra-
curricular activities. Such inducements to poor but gifted students should be encouraged. But to
stipulate the condition that such scholarships are good only if the students concerned continue in the
same school nullifies the principle of merit in the award of these
scholarships.chanroblesvirtualawlibrarychanrobles virtual law library

2. When students are given full or partial scholarships, it is understood that such scholarships are
merited and earned. The amount in tuition and other fees corresponding to these scholarships should
not be subsequently charged to the recipient students when they decide to quit school or to transfer to
another institution. Scholarships should not be offered merely to attract and keep students in a
school.chanroblesvirtualawlibrarychanrobles virtual law library

3. Several complaints have actually been received from students who have enjoyed scholarships, full or
partial, to the effect that they could not transfer to other schools since their credentials would not be
released unless they would pay the fees corresponding to the period of the scholarships. Where the
Bureau believes that the right of the student to transfer is being denied on this ground, it reserves the
right to authorize such transfer.

that defendant herein received a copy of this memorandum; that plaintiff asked the Bureau of Private
Schools to pass upon the issue on his right to secure the transcript of his record in defendant University,
without being required to refund the sum of P1,033.87; that the Bureau of Private Schools upheld the
position taken by the plaintiff and so advised the defendant; and that, this notwithstanding, the latter
refused to issue said transcript of records, unless said refund were made, and even recommended to
said Bureau that it issue a written order directing the defendant to release said transcript of record, "so
that the case may be presented to the court for judicial action." As above stated, plaintiff was,
accordingly, constrained to pay, and did pay under protest, said sum of P1,033.87, in order that he could
take the bar examination in 1953. Subsequently, he brought this action for the recovery of said amount,
aside from P2,000 as moral damages, P500 as exemplary damages, P2,000 as attorney's fees, and P500
as expenses of litigation.chanroblesvirtualawlibrarychanrobles virtual law library

In its answer, defendant reiterated the stand it took, vis-a-vis the Bureau of Private Schools, namely,
that the provisions of its contract with plaintiff are valid and binding and that the memorandum above-
referred to is null and void. It, likewise, set up a counterclaim for P10,000.00 as damages, and P3,000 as
attorney's fees.chanroblesvirtualawlibrarychanrobles virtual law library

The issue in this case is whether the above quoted provision of the contract between plaintiff and the
defendant, whereby the former waived his right to transfer to another school without refunding to the
latter the equivalent of his scholarships in cash, is valid or not. The lower court resolved this question in
the affirmative, upon the ground that the aforementioned memorandum of the Director of Private
Schools is not a law; that the provisions thereof are advisory, not mandatory in nature; and that,
although the contractual provision "may be unethical, yet it was more unethical for plaintiff to quit
studying with the defendant without good reasons and simply because he wanted to follow the example
of his uncle." Moreover, defendant maintains in its brief that the aforementioned memorandum of the
Director of Private Schools is null and void because said officer had no authority to issue it, and because
it had been neither approved by the corresponding department head nor published in the official
gazette.chanroblesvirtualawlibrarychanrobles virtual law library

We do not deem it necessary or advisable to consider as the lower court did, the question whether
plaintiff had sufficient reasons or not to transfer from defendant University to the Abad Santos
University. The nature of the issue before us, and its far reaching effects, transcend personal equations
and demand a determination of the case from a high impersonal plane. Neither do we deem it essential
to pass upon the validity of said Memorandum No. 38, for, regardless of the same, we are of the opinion
that the stipulation in question is contrary to public policy and, hence, null and void. The aforesaid
memorandum merely incorporates a sound principle of public policy. As the Director of Private Schools
correctly pointed, out in his letter, Exhibit B, to the defendant,

There is one more point that merits refutation and that is whether or not the contract entered into
between Cui and Arellano University on September 10, 1951 was void as against public policy. In the
case of Zeigel vs. Illinois Trust and Savings Bank, 245 Ill. 180, 19 Ann. Case 127, the court said: 'In
determining a public policy of the state, courts are limited to a consideration of the Constitution, the
judicial decisions, the statutes, and the practice of government officers.' It might take more than a
government bureau or office to lay down or establish a public policy, as alleged in your communication,
but courts consider the practices of government officials as one of the four factors in determining a
public policy of the state. It has been consistently held in America that under the principles relating to
the doctrine of public policy, as applied to the law of contracts, courts of justice will not recognize or
uphold a transaction which its object, operation, or tendency is calculated to be prejudicial to the public
welfare, to sound morality or to civic honesty (Ritter vs. Mutual Life Ins. Co., 169 U.S. 139; Heding vs.
Gallaghere 64 L.R.A. 811; Veazy vs. Allen, 173 N.Y. 359). If Arellano University understood clearly the real
essence of scholarships and the motives which prompted this office to issue Memorandum No. 38, s.
1949, it should have not entered into a contract of waiver with Cui on September 10, 1951, which is a
direct violation of our Memorandum and an open challenge to the authority of the Director of Private
Schools because the contract was repugnant to sound morality and civic honesty. And finally, in Gabriel
vs. Monte de Piedad, Off. Gazette Supp. Dec. 6, 1941, p. 67 we read: 'In order to declare a contract void
as against public policy, a court must find that the contract as to consideration or the thing to be done,
contravenes some established interest of society, or is inconsistent with sound policy and good morals
or tends clearly to undermine the security of individual rights. The policy enunciated in Memorandum
No. 38, s. 1949 is sound policy. Scholarship are awarded in recognition of merit not to keep outstanding
students in school to bolster its prestige. In the understanding of that university scholarships award is a
business scheme designed to increase the business potential of an education institution. Thus conceived
it is not only inconsistent with sound policy but also good morals. But what is morals? Manresa has this
definition. It is good customs; those generally accepted principles of morality which have received some
kind of social and practical confirmation. The practice of awarding scholarships to attract students and
keep them in school is not good customs nor has it received some kind of social and practical
confirmation except in some private institutions as in Arellano University. The University of the
Philippines which implements Section 5 of Article XIV of the Constitution with reference to the giving of
free scholarships to gifted children, does not require scholars to reimburse the corresponding value of
the scholarships if they transfer to other schools. So also with the leading colleges and universities of the
United States after which our educational practices or policies are patterned. In these institutions
scholarships are granted not to attract and to keep brilliant students in school for their propaganda
mine but to reward merit or help gifted students in whom society has an established interest or a first
lien. (Emphasis supplied.)

WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered
sentencing the defendant to pay to the plaintiff the sum of P1,033.87, with interest thereon at the legal
rate from September 1, 1954, date of the institution of this case, as well as the costs, and dismissing
defendant's counterclaim. It is so ordered.chanroblesvirtualawlibrary
Maria Elisha G. Inting
Block 96, Lot 23
Jaranilla Street, Katarungan Village
Muntinlupa City

School of Law Dean’s Office

Subject: Authority to add and drop subject/s

To whom it may concern,

I, Maria Elisha G. Inting hereby authorize Ms. Venice Z. Pastolero to act on my behalf in adding
and dropping of my subjects as I am unable to process it today due to unforeseen circumstances.

Sincerely,

Maria Elisha G. Inting