Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-996             October 13, 1902

LUIS R. YANGCO, petitioner,

vs.
WILLIAM J. ROHDE, judge of the Court of First Instance of Manila, respondent.

Francisco Ortigas, for petitioner.

Fred. G. Waite, for respondent.

ARELLANO, C.J.:

The petitioner, Luis R. Yangco, filed in this court a petition for a writ of prohibition, alleging
that before Judge William J. Rohde, of the Court of First Instance of the city of Manila, a
complaint had been filed by Victorina Obin against the petitioner praying that she be declared
the lawful wife of the said Yangco, and that she be granted a divorce, an allowance for alimony,
and attorney's fees during the pendency of the suit; that the demurrer filed by the petitioner was
overruled by the said judge, said ruling being in part as follows: "I am of the opinion that the
marriage alleged in the complaint is valid under the laws in force, although the question is not
clear nor without doubt. The facts alleged in the complaint compel me to resolve the doubt in
favor of the plaintiff;" and that the petitioner, in answer to the complaint, denied the principal
allegation of fact therein, to wit, the mutual agreement to be husband and wife alleged by the
plaintiff to have been entered into before witnesses; that while the case was in this condition the
plaintiff filed a motion for a monthly allowance as alimony, costs, and attorney's fees; that on the
22nd of July last the said judge ordered the petitioner to pay the plaintiff, in advance, a monthly
allowance of 250 Mexican pesos from and after the 11th of March last past, and to pay on the 1st
day of August following all accrued allowances, in addition to the allowance for the said month,
amounting to the sum of 1,500 pesos; that the plaintiff in the said action owns no property, and
the judge not having required from her any security, it is certain that the petitioner, defendant in
the said action below, should judgment be rendered in his favor, would be unable to recover such
sums as the judge might compel him to disburse; that against the ruling of the court he had no
right of appeal or any plain, speedy, or adequate remedy; therefore he prays the court to render
judgment declaring the Hon. William J. Rohde, judge of the Court of First Instance of Manila,
has acted in excess of his jurisdiction in attempting to oblige petitioner to pay to the said
Victorina Obin the said allowance, and to direct that a writ of prohibition issue to the said
William J. Rohde prohibiting him from attempting to compel petitioner to pay the said amount.

Against this petition the attorney for the respondent, William J. Rohde, filed a demurrer and
motion to dismiss upon the following grounds: (1) That this court is without jurisdiction over the

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subject-matter of the action; (2) that the petition does not state facts sufficient to constitute a
cause of action. It is to be observed that in the oral argument and brief filed no denial was made,
but on the contrary the fact alleged by the petitioner was affirmed in that the ruling on the
demurrer in the Court of First Instance the respondent had expressed his opinion that "the
question (as to the alleged marriage) is not clear nor free from doubt."

Nevertheless, he says, "this being so, the said Victorina Obin acquired a right to all conjugal
rights, and in particular to the allowance of alimony pendente lite." And upon this supposition he
cited articles of the Civil Code as to rights enjoyed by a married woman by virtue of the
marriage, and those which she may further exercise by reason of divorce pending litigation and
those granted to her finally in case of a favorable judgment.

The entire theory developed by the demurrer now before us may be expressed in the following
terms: The respondents judge had jurisdiction to try the divorce case and its incidents, among
others that of alimony; in an interlocutory ruling he held that the alleged matrimony existed,
although it appeared to him to be a matter not clear or free from doubt; in another interlocutory
order, notwithstanding the fact that the existence of the marriage is not clear or free from doubt,
he directed the allowance of alimony pendente lite in favor of the plaintiff; against this
interlocutory order no appeal lies on behalf of the alleged husband who is to pay this allowance;
this alleged husband must pay it without any guaranty of recovery in the event that the proof
should established a contrary condition of affairs to that assumed to be correct, notwithstanding
the fact that the question is not clear or free from doubt; and as the judge is not devoid of
jurisdiction, and as no appeal lies against an interlocutory order, that such an opinion, such an
interlocutory order so rendered, although erroneous and causing irreparable damage, can not be
reviewed by any other court during the course of the trial.

Such a theory was not possible in these Islands under its former Law of Civil Procedure, nor is it
possible now under the present Code of Civil Procedure. Under article 1591 of the old Code any
person believing himself entitled to that provisional alimony or support was required to file with
the complaint documents proving conclusively the title by virtue of which the same was sued for.
If the title was based upon a right created by law, it was necessary to present the documents
establishing the bond of relationship between the plaintiff and defendant or the circumstances
which gave a right to the alimony, such evidence to be completed by the testimony of witnesses
if necessary. The judge, under article 1592, could not admit the complaint unless the documents
referred to in the preceding article were submitted. It is evident from this that under the
provisions of the law then in force a suit for alimony could not prosper upon the mere opinion of
the judge expressed, not in a final judgment causing status, but in an interlocutory order which
has no other purpose than to facilitate the continuance of the trial. This, apart from the fact that
under the former procedural law ever interlocutory order not merely of practice was appealable,
and consequently the case of one finding himself prejudiced by an order capable of causing him
irreparable damage, such as that of paying an allowance without security or possibility of
recovery, could never arise under that system of legislation.

The necessity of founding the action for support or alimony on a title, and a title supported by
documentary evidence, is a consequence of the precepts of article 143 of the Civil Code cited by
the respondent judge himself. In this article the right to support is granted (1) to spouses inter se;

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(2) to legitimate descendants and ascendants inter se; (3) to parents and certain legitimated and
acknowledged natural children; (4) to other illegitimate children, and (5) to brothers and sisters.
In all these cases in is a civil status or a juridical relation which is the basis of the action for
support — the civil status of marriage or that of relationship.

In the present case the action for the support or alimony is brought by a woman who alleges that
she is a wife; therefore it is necessary for her to prove possession of the civil status of a spouse
— that is, a marriage, without which one has no right to the title to husband or wife. Marriages
celebrated before the adoption of the Civil Code must be proven by the means established by the
former laws (art. 53). "Marriages celebrated before the operation of the Code," says Q. Mucius
Scaevola, "must be proven by the canonical certificate." (Vol. 2, p. 137.) "Before the Council of
Trent," says Manresa, "no absolute provision of law required the parish priests to make entries in
their books with regard to the birth, marriage, or death of their parishioners ... . The council
required the parish priests to open books in which to record baptisms, marriages, and deaths ...
The State, the attention of which was called for the first time to the importance of the records
established by the provisions of the council, gave evidence of its interest by issuing the royal
order of March 21, 1794, according to which the prelates of the Kingdom were directed to
require the evidence referred to be kept exclusively in the churches." (Commentaries, vol. 1, p.
262.)

This evidence being lacking, and the civil status of marriage being in litigation, it is evident that
nothing can be taken for granted upon the point in issue. There is no law or reason which
authorizes the granting of alimony to a person who claims to be a spouse in the same manner as
to a person who conclusively establishes by legal proof that he or she is such spouse, and sues
for divorce or separation. In this case the legal evidence raises a presumption of law; in the
former there is no presumption, there is nothing but a mere allegation — a fact in issue — and a
simple fact in issue must not be confounded with an established right recognized by a final
judgment or based upon a legal presumption. The civil status of marriage being denied, and this
civil status, from which the right to support is derived, being issue, it is difficult to see how any
effect can be given to such a claim until an authoritative declaration has been made as to the
existence of the cause. It is evident that there is of necessity a substantial difference between the
capacity of a person after the rendition of a final judgment in which that person is declared to be
in possession of the status of marriage and his capacity prior to such time when nothing exists
other than his suit or claim to be declared in possession of such status of marriage. Any other
view would render useless all the legal effects which flow from the authority of res adjudicata.

Nor can such a theory be sustained under the Code of Civil Procedure now in force. It is true that
an interlocutory order such as that rendered by the respondent judge in the present case is not
appealable during the course of the trial, but only after a final judgment has been rendered
therein; but it is none the less true that it can not be the intention of the law, when prohibiting an
appeal against interlocutory orders, to give executory force to all kinds of interlocutory orders
which the judge may see fit to make in the course of a trial, and still less when the effect would
be to cause irreparable damage, such as that alleged by the petitioner in the present case, by
reason of the insolvency of the person in whose favor the granting of alimony has been ordered,
and which allegation has not been objected to or denied by the respondent. It is indeed a wise
rule of procedure which refuses to permit the interruption of a trial by means of incidental

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appeals; but, if the judge incidentally in the course of a trial proceeds without or in excess of his
jurisdiction, this rule which prohibits an appeal does not leave the party aggrieved without
remedy. The same Code of Civil Procedure establishes several means by which such excess may
be prevented.

In this case the remedy of prohibition is invoked. (Art. 516 in relation with 226.) This remedy
must be based upon a lack of jurisdiction or an excess in the exercise of jurisdiction in order that
the judge may be prohibited from continuing the proceedings. This remedy having been
established by the Code of Civil Procedure now in force, it is not allowable to apply the theories
and principles concerning the lack of jurisdiction or an excess in its exercise which prevailed in
the law of these Islands prior to the promulgation of that Code. We must of necessity apply the
theories and principles which prevail in the law which has established the remedy, or the
authorities which, in the American law, establish the doctrine upon the subject, and more
especially the views prevailing in the State of California, whose Code of Procedure is strictly in
accord with the Code in these Islands as to the remedy in question, with respect to which it may
be said that the California Code is its true legal precedent.

To this end and as an illustration of the case as to the propriety of the remedy by prohibition, we
may cite a decision of the supreme court of California of July 9, 1890 (Havemeyer & Co.,
petitioners, vs. the Superior Court, Judge Wallace, respondent.)

This was a case of quo warranto brought by the attorney-general of the State against a California
corporation, the American Sugar Refinery Company, for the cancellation of its charter, and in
which case judgment was rendered on the 8th of January, 1890; an incident having arisen as to
the appointment of a receiver to take charge of the property of the company pending the taking
of an appeal or to proceed to distribute the same according to law in case an appeal should not be
taken, inasmuch as the corporation had been dissolved and its corporate rights forfeited, the
judge made an order appointing a receiver. The receiver attempted to take possession of the
sugar refinery, which he found in the possession of Messrs. Havemeyer & Co, who claimed to
have purchased it in the month of March, 1889, and asserted that since that time they had been in
full and complete possession as absolute owners in their own exclusive right. After several other
incidental proceedings the judge made an order directing the sheriff to put the receiver in
possession of the locus in quo. Havemeyer & Co. then applied to the supreme court for a writ of
prohibition, which was issued. "The question now remains," says the court in its decision,
"whether the superior court had jurisdiction to make an order appointing the receiver and
ordering him to take from the possession of the petitioners certain property, the petitioners not
having been a party to the quo warranto proceedings and alleging a right of their own to the said
property."

In disposing of this question the court holds that the judge was without jurisdiction to make this
order, and continues: "We now come to the question as to the remedy. Prohibition arrests the
proceedings of an inferior judicial tribunal or officer when such proceedings are without or in
excess of the jurisdiction of such tribunal or officer, and the writ issues in all cases where there is
not a plain, speedy, and adequate remedy in the ordinary course of the law. We have shown that
the superior court in appointing a receiver exceeded its jurisdiction, and there is no question that
the petitioners are seriously injured by the enforcement of the order. If then they have no plain,

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speedy and adequate remedy in the ordinary course of law, they are clearly entitled to the benefit
of the writ of prohibition to arrest the proceedings under the void order." The court, to fortify its
decision, takes up and discusses various objections, such as the following: (1) That the
petitioners might have bowed to the authority of the receiver, giving him possession, and then
obtained leave from the court to sue him in ejectment; (2) that the order appointing the receiver
was appealable, and that, therefore, the remedy for prohibition would not lie; (3) that before
availing themselves of this remedy petitioners should show that an objection to the order in
question had been overruled. With respect to the first point the court says: "It is true petitioners
might have done this, but the remedy would have been neither speedy nor adequate. They had
the right not merely to get their property back after along and expensive litigation — they had a
right to keep it. The wrong with which they were threatened when they applied for the writ and
when the writ issued was the deprivation of the possession and the use of their property. To give
the property up in the hope of being allowed by the superior court to sue for it and to recover it
after years of litigation was neither an adequate nor speedy remedy. It would be as reasonable to
say that an injunction should never issue to restrain a threatened injury because the injured party
may always have his action for damages." As to the second point the court states: "There must
not only be a right of appeal but the appeal must furnish an adequate remedy in order to prevent
the issuance of the writ. A number of cases have been decided in this court in which writs of
prohibition have been refused because there was a right of appeal, but in all of those cases the
appeal afforded a complete and adequate remedy for the threatened excess of jurisdiction."

With respect to the third point the court says that "the following propositions applicable to the
case are fully supported by the decision in the case of the Mayor of London vs. Cox, L.R., H.L.,
278-280: (1) If a want of jurisdiction is apparent on the face of the proceedings in the lower
court, no plea or preliminary objection is necessary before suing out the writ of prohibition. (2) If
the proceeding in the lower court is not on its face without the jurisdiction of such court, but is so
in fact by reason of the existence of some matter not disclosed, such matter ought to be averred
in some proper form in order to make the want of jurisdiction appear. (3) But this is not essential
to the jurisdiction of the superior court to grant prohibition. It is only laches which may or may
not be excused, according to circumstances.

Accordingly, we find that frequently a failure to plead in the lower court was excused for
the reason that it appeared that the plea would have been rejected if made.

By judgment of the 12th of December, 1891, the same supreme court in a similar proceeding
against the superior court of San Francisco, Judge Wallace used the following language:

Prohibition lies in all cases where there have been proceedings "without or in excess" of
jurisdiction, and there "is not a plain, speedy, and adequate remedy in the ordinary course
of law." Jurisdiction is usually defined as "the power to hear and determine;" but, of
course, it is difficult to express in abstract terms a statement of the distinction between
error in exercising jurisdiction and jurisdiction itself that can be readily applied to all
cases as they may arise. The law endeavors to fix definitely everything that can in its
nature be so fixed, so as to leave as little as possible to the judgment or caprice of those
who administer it. But as many future events can not, in the nature of things, be foreseen

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 and provided for, it follows necessarily that much must be left to the discretion of courts
and other tribunals.

This doctrine was applied to the procedure of the judge who had taken action upon a void
information presented by a grand jury which by reason of its defective organization was not
regarded as a legally existing body, and the court decided "that the jury not being a legal body
and the so-called indictment being void, the court below was without jurisdiction to try the
accused upon such an indictment, hence the attempted action of the court was without and in
excess of its jurisdiction." As to whether the petitioner had any other prompt, speedy, and
adequate remedy in the ordinary course of law, the court said:

If there be such remedy, it must be by appeal. But it would be a difficult proposition to

maintain that a defendant in a criminal case, forced through all the stages of a trial for
felony without any indictment against him, or, which is the same thing in effect, upon a
void indictment, would have a plain, speedy, and adequate remedy, because, after
conviction and judgment, and perhaps after suffering the ignominy of imprisonment in
the state prison, he could have the illegal proceeding reversed on appeal. ... We are of
opinion, therefore, that there is no jurisdiction in the respondent to proceed with the trial
of petitioner; that the latter has no "plain, speedy, and adequate remedy in the ordinary
course of law," and that prohibition is the proper remedy.

Mr. Justice Garmette added:

The case of Quimbo Appo vs. People, 20 N.Y., 542, received an exhaustive consideration
from the court of that State, and, after referring to many authorities upon the question as
to when the writ of prohibition should issue, it said: "These cases prove that the writ lies
to prevent the exercise of any unauthorized power in a cause or proceeding of which the
subordinate tribunal has jurisdiction, no less than when the entire cause is without the
jurisdiction." And again: "This shows that the writ was never governed by any narrow,
technical rules, but was resorted to as a convenient mode of exercising a wholesome
control over inferior tribunals. The scope of this remedy ought not, I think, to be
abridged, as it is far better to prevent the exercise of unauthorized power that to be driven
to the necessity of correcting the error after it is committed."

In its decision of December 8, 1890, the same supreme court in a proceeding similar to that now
before us, instituted, by J.M. McDowell against Aaron Bell, judge of the superior court of Shasta
County, upon the ground that this judge in an incidental proceeding similar to that which now
occupies our attention directed that certain property claimed by a third person be subjected to the
satisfaction of a judgment rendered against the grantee, held as follows:

In this the respondent exceeded his jurisdiction and the jurisdiction of his court. His only
power in the premises was to make an order authorizing the judgment creditor to institute
an action in the proper court against the parties claiming the property for the recovery of
the property and the subjection of the same to the satisfaction of the debt, and forbidding
a transfer of the property until such action could be commenced and prosecuted to
judgment.

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This indicates what is meant by an act without or in excess of jurisdiction in accordance with the
principles upon which article 226 of the present Code of Civil Procedure is based.

The court below had jurisdiction to try the divorce suit, but he was without jurisdiction to grant
alimony when the right to claim alimony had not accrued in accordance with the provisions of
the Civil Code. This Code only grants the rights to alimony to a wife. This status not appearing
by a final judgment, the court is without jurisdiction to make any order in the matter. Therefore
mandamus is the proper remedy upon the facts related.

It is not necessary to decide at this time if an exception could be made with respect to a case in
which the fact of the marriage is admitted of record by the defendant. In the case before us this
fact was denied. The motion and demurrer are overruled and the defendant is authorized to
answer the complaint within twenty days from this date.

Torres, Willard, and Ladd, JJ., concur.

Smith and Mapa, JJ., did not sit in this case.

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