G.R. No.

112573 February 9, 1995

NORTHWEST ORIENT AIRLINES, INC. petitioner,

vs.
COURT OF APPEALS and C.F. SHARP & COMPANY INC., respondents.

PADILLA, 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.

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, Naka-ku, Yokohoma, 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 plaintiff's 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. 41-
45, 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 plaintiff's Notice of Appeal. 3

In its decision, the Court of Appeals sustained the trial court. It agreed with the latter in its
reliance upon Boudard vs.Tait 4 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 non-
resident 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 defendant-
appellee 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 (Iowa-Rahr vs. Rahr, 129 NW 494, 150 Iowa
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 in the 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 v. 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 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.7Being 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 so-called processual
presumption 10 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 proccess 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 Code 13 and Section
190 of the Insurance Code 14 clearly contemplate 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 Act 15 does not even speak 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 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 of 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 to accept the summons because, according to him, he was 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 Philippine's 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. Tait 18where 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.

xxx xxx xxx

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.

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. Nieto 19 and Dial
Corp. vs. Soriano, 20 as well as the principle laid down by the Iowa 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 to the Philippines is concerned, Raher is a thing of the past. In that case, a divided
Supreme Court of Iowa declared that the principle that there can be no jurisdiction in a court of a
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. Meyer 22 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 necessery 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' . . .
(which is one) not engaged in trade or bussiness 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 . . . (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 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(f), 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
Philippines — and 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:

. . . 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. . . .

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 . . .;" that it is considered as dwelling "in the place where its
business is done . . .," as being "located where its franchises are exercised . . .,"
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, 493].

In as much 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. 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 damaged. 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 attorneys fees, litigation expenses,
and exemplary damages but REVERSED insofar as in 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
L 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.
G.R. No. L-45193 April 5, 1939

EMILIE ELMIRA RENEE BOUDARD, RAYMOND ANTONIN BOUDARD,

GINETTE ROSE ADELAIDE BOUDARD and MONIQUE VICTOIRE BOUDARD, plaintiffs-
appellants,
vs.
STEWART EDDIE TAIT, defendant-appellee.

Ramirez and Ortigas for appellants.

Gibbs, McDonough and Ozaeta for appellee.

DIAZ, J.:

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 Renee 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 40,000piastras, 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 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 Exhibit 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 had 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 Jersy, 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., 741 [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, 485].) 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 his
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.)

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):0

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.
G.R. No. L-11796 August 5, 1918

In the matter of estate of Samuel Bischoff Werthmuller. ANA M. RAMIREZ, executrix-

appellant,
vs.
OTTO GMUR, as guardian of the minors Esther Renate Mory, Carmen Maria Mory, and
Leontina Elizabeth,claimant-appellant.

C. Lozano for executrix-appellant.

Thos. D. Aitken for claimant-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, Doña 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 cause 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 work "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 wife a a member of the family; and it is sufficiently shown by the evidence
adduced in this case that Samuel Bischoff tacitly recognized Leona a his daughter and treated
her as such. In the year 1895 Leona Castro was married to Frederick von Kauffman, a British
subject, born in Hong Kong, 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 sanitarium, 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 registrar's office in the district of Westminster, went through the forms of a
marriage ceremony before an officer duly qualified to celebrate marriage 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, name 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 extend of a one-third interest.
Ana M. Ramirez, as the widow of Samuel Bischoff and residuary legatee under his will, insists —
at 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 a untenable; and it is 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 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 uninterrupted 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 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
show 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 the 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 Doña 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 Catro 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, 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 right 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 he 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 the two younger
children, born after said marriage, would be the legitimate offspring of their mother, and would be
entitle to participate in their mother's portion of Mr. Bischoff's 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 a
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 person domiciled here, such marriage being indissoluble
under the laws then prevailing in this country.

The evidence shows conclusively that Frederick von Kauffman 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., 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., 366.)

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 a 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 have 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
reflect 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.

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 it report was
field 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, Doña 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 of the late Samuel Bischoff, and that his widow, Doña Ana Ramirez, was entitled to
the remaining two-thirds. From this decision both Doña 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 4,
1916. Thereafter, on April 1, 1916, von Kauffman, on behalf of the said minors, filed in the cause
a petition setting forth their right 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 9, 1915. Doña 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 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.
From this judgments an appeal was taken by Mr. Otto Gmur as guardian, no appeal having taken
by Doña Ama Ramirez.

Though the circumstance is now of no practical importance, it may be stated in passing that the
appeals of Doña Ana Ramirez and of Otto Gmur, guardian, from the decision of Judge Mariano
of December 9, 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 above-mentioned
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 oppossing 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 children — and indeed with even
greater force, — since this application was not made until the appeals from the decree of
December 9, 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 divested 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 a
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; Castañeda vs. Alemany, 3 Phil., 426;
Sahagun vs. De Gorostiza, 7 Phil., 347; JocSoy vs. Vaño, 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 a 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 a 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 legatee Doña 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. A 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, a 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.

So much of the judgment entered in the Court of First Instance, pursuant to the decision of Judge
Mariano of December 29, 1915, as admits Leontina Elizabeth Mory to participate in the estate of
Samuel Bischoff is reversed; and instead the von Kauffman children will be admitted to share
equally in one-third of the estate as provided in the decision of Judge Powell of November 14,
1916. In other respects the judgment of Judge Mariano is affirmed. The costs of this instance will
be paid out of the estate. So ordered.
G.R. 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.

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 Hawaii6 —
alleged 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
1avvphi 1

judgment was rendered as follows:

DEFAULT JUDGMENT

That Defendant WILLIAM B. BORTHWICK having fatted 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 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 unsuccessful — Borthwick
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

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
Trans-Pacific 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

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) 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 non-existence 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 summons 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
appealling 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 said Court observed, that situation is "ridiculous," it
being I "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.
G.R. No. L-3693 July 29, 1950

MARGARET QUERUBIN, recurrente-apelante,

vs.
SILVESTRE QUERUBIN, recurrido-apelado.

Manuel A. Argel en representacion del recurrente y apelante.

Maximino V. Bello en representacion del recurrido y apelado.

PABLO, J .:
Silvestre Querubin is from Caoayan, Ilocos Sur, of Filipino parents. In 1926 he left for the
United States in order to study but with the purpose of returning later to his native country.
He obtained the title of "Master of Arts and Sciences" at the "University of Southern
California," institution domiciled in Los Angeles, California, where the respondent began
living since 1934.
On October 20, 1943, Silvestre Querubin married the petitioner, Margaret Querubin, in
Albuquerque, New Mexico. As a result of this marriage was born Querubina Querubin, who,
at the time of the hearing of the case in the Court of First Instance of Ilocos Sur, was four
years old, more or less.
The appellant filed in 1948 a divorce suit against the respondent, based on "mental cruelty." On February 7,
1948, the divorce was granted to the husband by virtue of a counterclaim presented by him and based on the
infidelity of his wife. On April 5, 1949, and at the request of the defendant and counterclaim, (appealed in
habeas corpus) the Superior Court of Los Angeles issued an interlocutory order providing that:

It is therefore ordered, adjudged and decreed that the interlocutor and 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, Cherubina Cherubin, is hereby awarded to
defendant and cross-complainants;

(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 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.

The appellant left San Francisco on November 7, 1949, arriving in Manila on the 25th of the same month. On
the 27th of the previous month, she arrived in Caoayan, Ilocos Sur, where she currently lives, taking with her the
Cherubina girl, whom she brought to the Philippines because, as a father, she wanted to prevent the unseemly
behavior of her own from coming to her attention. mother. The respondent wanted his daughter to be educated
in an environment of high morality.

At the request of the appellant Margaret, the Superior Court of Los Angeles, California, on November 30, 1949,
modified her order of April 5, 1949, providing that:

Under interlocutory decree of March 7, 1949, the child, a girl now 3 1/2 years old, was
granted to deft husband, but the child was to be kept in a neutral home; both parties were
given reasonable visitation 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 pft 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.

On the day of the hearing of this habeas corpus case in Ilocos Sur, the respondent stated that he never tried to
change his citizenship; that when he came to the country he had about P2,000 of savings; that three weeks after
his arrival, he received an offer to teach with a monthly P250 salary at the school established by Dr. Sobrepeña
in Villasis, Pangasinan; that he has never been deprived of parental authority by judicial decision, nor declared
absent from the Philippines, nor subject to civil interdiction. According to the a quo court, the respondent is of
irreproachable conduct.

On February 10, 1950, the appellant Margaret Querubin, through her lawyer, filed a writ of habeas corpus with
the Ilocos Sur Court of First Instance claiming the custody of her daughter Cherubina, citing the interlocutory
decree of the California court. who granted her such custody. After the corresponding hearing, the Juzgado a
quo, on February 28, 1950, denied the request. The appellant appeals to this Court.

The appellant maintains that under Article 48 of Rule 39, the Exhibit A-1 decree of the Los Angeles Court,
California, must be fulfilled in the Philippines. Its operative part says verbatim:

The interlocutory decree is modified so as to the provide that custody of the child shall be
awarded to ptf and deft shall have the right to reasonable visitation. Deft shall pay ptf for
the support of the child $30 each month on the 1st day thereof, commencing Jan. 1950.

An interlocutory decree on the custody of a minor is not a final decision. By its nature it is not firm. It is subject
to changes as circumstances change. In the first decree, the father was given custody of the minor. At the request
of the father, the decree of April 5 was issued forbidding the mother to call at least her home because she was
again in adulterous relationships with another man. When the respondent was no longer in Los Angeles, because
they had already come to the Philippines, the last order was enforced and custody was entrusted to the appellant,
paying the appellant $ 30 a month to support the child. The pension is not fixed and is increased or decreased as
the pensioner's needs increase or decrease or as the economic conditions of the one who gives it demand.

Because the interlocutory decree, Exhibit A-1, does not constitute a final decision, its fulfillment can not be
requested in the Philippines. In the same United States, an interlocutory order can not be requested in the court
of another state.

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.)

In general, a decree of divorce entrusting the custody of a child of the marriage to one of the spouses is
respected by the courts of other states "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 to the date of the decree; and
the courts of the last state may, in proper proceedings, award the custody otherwise upon proof of matters
subsequent to the decree which justifies the change in the interest of the child . " (20 A.L.R., 815.)

In the present case the circumstances have changed. Cherubina is no longer in Los Angeles but in Caoayan,
Ilocos Sur. He is under the care of his father. There is a huge distance from Los Angeles and the present
domicile of the minor and the cost of the ticket to that city would be very high, and it is still possible that this
was beyond the reach of the appellant. There is no evidence that she is able to pay for the travel expenses of the
minor and her companion. She is not a package of cigarettes that can be mailed to Los Angeles.

It does not appear that the circumstances that occurred in November 1949 in Los Angeles prevailed in the same
state until the moment the case was heard in the First Instance Court of Ilocos Sur. There is also no evidence
that the Complainant has sufficient funds to finance the trip of the Cherubina girl from Caoayan, Ilocos Sur, to
Los Angeles, California, and to answer for her food, care and education, and in the record that the father, more
than anyone, is interested in the care and education of your daughter, and has savings of more than P2,000
deposited in a bank, we believe that the Court will not err in denying the request.

The Court could not, without satisfactory evidence, dispose without remorse of conscience the delivery of the
girl to the appellant's lawyer: it is her obligation to ensure the safety and well-being of her. It is not just about
resolving the preferential right of the father and mother in custody. The vital and transcendental question of the
future of the girl is superior to any consideration. The State watches over its citizens. Article 171 of the Civil
Code provides that "Courts may deprive parents of parental authority, or suspend the exercise of this, if they
treat their children with excessive harshness, or if they give them orders, advice or corrugated examples." In
Cortes v. Castillo and other (41 Jur. Fil., 495), this Court declared that the First Instance Court did not err in
appointing the grandmother, as guardian of two minors, instead of her mother who was convicted of adultery.
Article 154 of the Civil Code provides that "The father, and failing the mother, have power over their legitimate
children not emancipated." However, if this power is unduly exercised, the courts, as we have said, may deprive
it of and entrust the care of the minor to other institutions, as provided in Article 6 of Rule 100, which is a
reproduction of Article 771. of Law No. 190. In the case of Lozano v. Martinez and De Vega (36 Jur. Fil.,
1040), in which the first, in a writ of habeas corpus, claimed against his wife the custody of his minor child of
10 years, this Court, on appeal, declared that the court a quo not abuse of the discretion conferred on him by
Article 771 of the Code of civil procedure to deny the request. This interpretation of the article regarding the
proper exercise of the discretion of a Court of first instance has been reaffirmed in the case of Pelayo v. Lavin
(40 Jur. Fil., 529).
In the application filed, there is not even any allegation that the court a quo has abused its discretion. This Court
should not revoke its performance.

At the hearing of the case in the Court of First Instance of Ilocos Sur, the respondent stated that he had brought
his daughter to the Philippines because he wanted to prevent her from knowing about the misconduct and
infidelity committed by the mother, preventing her from seeing her. to live with the man who had offended his
father. The respondent said that he wanted his daughter to be raised in an atmosphere of high morals, and that
the infidelity of the wife was not indirectly sanctioned. Under Divorce Law No. 2710, the guilty spouse has no
right to custody of minor children. Current legislation, good customs and the interests of the public order advise
that the girl must be out of the care of a mother who has violated the oath of allegiance to her husband. We
believe that this Court should not enforce a decree issued by a foreign court, which contravenes our laws and the
sound principles of morality that inform our social structure on family relationships.
In the case of Manuela Barretto Gonzales against Augusto Gonzales (58 Jur. Fil., 72), the plaintiff requested that
the divorce obtained by the defendant in Reno, Nevada, on November 28, 1927, be confirmed and ratified by the
First Instance Court of Manila. This court issued a judgment in accordance with the petition. Taking into
account Article 9 of the Civil Code that provides that "The laws relating to family rights and duties, or to the
state, condition and legal capacity of persons, bind Spanish (Filipino) citizens even though they reside in a
foreign country" and article 11 of the same code that says in part that "... the prohibitive laws concerning
persons, their acts or their property, and those whose purpose is public order and good customs, shall not be
nullified by laws or regulations." dictates, nor by provisions or conventions agreed in foreign country, "this
Court, on appeal, I declare:" The litigants, by mutual agreement, can not force the courts to approve their own
acts, or to allow personal relationships of the citizens of these Islands are affected by decrees of foreign
countries in a way that our Government believes is contrary to public order and morals, "and revoked the
decision of the lower court r.

The judgments of foreign courts can not be effective in the Philippines if they are contrary to laws, customs and
public order. If such decisions, by the simple theory of reciprocity, judicial courtesy and international civility are
sufficient basis for our courts to decide in accordance with them, then our courts would be in the poor position
of having to issue sentences contrary to our laws, customs and public order. This is absurd.
In Ingenohl v. Olsen & Co. (47 Jur. Fil., 199), the scope of international courtesy was discussed. Article 311 of
the Code of Civil Procedure that is today Article 48, Rule 39, was the basis of the action presented by Ingenohl.
He requested in his application that the First Instance Court of Manila issue a judgment in accordance with that
issued by the Supreme Court of Hong Kong. After the corresponding hearing, the court issued a judgment in
favor of the plaintiff with legal interests and costs. On appeal, it is alleged that the lower court erred in not
declaring that the decision and ruling of the Hongkong Supreme Court was handed down and recorded as a
result of a manifest error of fact and law. This Court stated that "It is a well-established principle that, in the
absence of a treaty or law, and by virtue of courtesy and international law, a judgment issued by a court of
competent jurisdiction of a foreign country, in which the parties have When a matter has been raised and
discussed in the fund, it will be recognized and enforced in any other foreign country. " But taking into account
article 311 of the Code of Civil Procedure that provides that "the sentence can be rejected by proof of lack of
competence, or have been issued without prior notice to the party, or that there was connivance, fraud or
manifest error of law or fact, "I conclude:" By virtue of that Law when a person tries to enforce a foreign
judgment, the defendant has the right to exercise any defense of those, and if it were proven that any of them
exists properly, It will destroy the effects of the sentence. " I revoke the decision of the lower court and declare
and rule that "the judgment rendered by the Hongkong Court, against the defendant, constituted a manifest error
of fact and of law, and, for this reason, its fulfillment should not be demanded in the Philippine Islands . "
If the request is granted, the minor would be under the care of her mother who was declared guilty of conjugal
infidelity; he would live under a roof together with the man who dishonored his mother and offended his father;
he would play and grow with the fruit of his mother's adulterous love; I would reach puberty with the idea that a
woman who was unfaithful to her husband has the right to guard her daughter. In such an environment a girl can
not be raised in an appropriate way: if she were to know during her adolescence that her father has been
betrayed by her mother with the man with whom she lives, that girl would live under an impression of moral
inferiority of incalculable consequences , and for that reason he would never be happy; and if, under the
influence of his mother, he comes to believe that the infidelity of a wife is just such a transient incident as
changing his headdress, the girl would go down the path of perdition. And the moral education your stepfather
can give you can hardly be better.

If the request is denied, the girl would live with her father with the benefit of exclusive parental care, and not
with the divided attention of a mother who has to attend to her husband, her two daughters and a third girl, the
protégé. For the welfare of the youngest Cherub, which is what matters most in the present case, custody by the
father should be considered preferred.

In the same United States, the cardinal point taken into account by the courts is not the claim of the parties or the
force of the interlocutory decree, but the welfare of the minor.

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 Iowa 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, earnings $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.)

The appellant, as a last resort, invokes the comity of nations. Reciprocity, courtesy between nations is not
absolute. It governs when there is a treaty and there is equality of legislation. The doctrine of reciprocity is
adopted when the foreign court has jurisdiction to hear the case, the parties have appeared and discussed the
matter in the merits. Sometimes it is granted as a privilege but not as a strict right. The requested courtesy has
not been recognized by this Court when I declare that the rights and duties of the family, state, condition and
legal capacity of the persons are governed by the laws of the Philippines and not by those of America (Gonzales
v. Gonzales, supra) and it did not validate the decision of the Hongkong Supreme Court because it was
erroneous in its findings of fact and law (Ingenohl v. Olsen and Co., supra).

The reciprocity between the states of the American Union is not absolute. It is not an unbreakable rule. The
several cases cited above prove it. There is another case:

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 welfare 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.)

We have already seen that the interlocutory order transferring custody of the child to the appellant is in conflict
with the express provisions of the legislation in force in the Philippines. In the first decree and in the
amendment, custody of the minor was entrusted to the father and the mother was forbidden, in the amended
order, to take the minor to her home because she was again in illegal relationships with another man. But the last
decree amending, contrary to the sense of justice, the law, and morality, entrusting the custody of the child who
was unfaithful wife because she was already married to who committed adultery. And under the doctrine of the
comity of nations, the appellant contends that this decree must be fulfilled in the Philippines. We believe that for
the several reasons stated above, the claim is unsustainable.

The sentence appealed is confirmed. The appellant will pay the costs.

Ozaeta, Bengzon, Montemayor and Reyes, MM., Are satisfied.

Tuason, J., concurs in the result.