MARIA ELOISA ROCHA, PETITIONER AND APPELLEE, VS. EMILIATUASON Y PATIÑO, WIDOW OF JOSE GREGORIO ROCHA, OBJECTOR AND APPELLANT.

From the printed record in this case it appears that the appellee, on the 1st
day of September, 1914, moved the Court of First Instance of the city of Manila
for the appointment of an administrator for the estate of Jose Gregorio Rocha,
deceased. A citation was issued by the court in pursuance of the motion
directing the persons interested in the estate of the said decedent to show
cause in that court on the 19th day of September, 1914, why an administrator for
the estate of the said decedent should not be appointed. The hearing on the
motion seems not to have been held on the return day and the proceedings were
held in abeyance until the court should fix another day for the hearing. On the
3d day of October, 1914, the appellant filed a paper, called in the proceedings
a motion, objecting to the continuance of the proceedings for the appointment of
an administrator. This objection was amplified by two or three writings filed
later, called by the objector motions. Later upon motion of the appellee the
hearing on the application for the appointment of an administrator was set for
the 1st day of November, 1915, at 3 p. m., by an order dated the 26th of October
1915. This order of the 26th of October is as follows:

“The motion of Gutierrez Repide and Sodas as attorneys for Maria Eloisa Rocha
y Casal praying that this proceeding for the appointment of an administrator of
the deceased Jose Gregorio Rocha be brought on for a hearing and that the matter
proceed to a final liquidation and distribution of the estate of the deceased,
having been presented to the court together with the countermotion of Sr.
Varela, attorney for Emilia Tuason y Patino, in which he prays that the
proceeding be dismissed; and it appearing that commissioners to hear claims
against the estate had not been appointed and that for that reason this
proceeding cannot be terminated without the consent of all the parties
interested, and in view of the fact that the executors named in the will, Doña
Emilia Tuason y Patino and D. Ramon Despujol y Sabater are absent from the
Philippine Islands, and that the third executor D. Lorenzo Rocha de Icaza
died;

“The countermotion of Sr. Varela is denied.

“The 1st day of November, 1915, at 3 p. m., is hereby set for the hearing of
this proceeding to the end that the interested parties may indicate to the court
whom they desire shall be appointed administrator of the estate of the said
decedent and also the persons who should act as commissioners.

“Let this order setting the day for a hearing be notified to Gutierrez Repide
and Jose Varela Calderon, attorneys for the interested parties.”

From this order the appeal before us was taken.

The contention of the appellee is that the order appealed from is not
appealable and that the appeal should be dismissed.

We are satisfied that the appellee is right in her contention. An order of a
court setting a day for a hearing is not an appealable order. Such an order
decides no controversy, affects no rights, and determines nothing. It simply
gives the parties an opportunity to be heard and the court an occasion for
action.

Nor is that portion of the order which says “The counter-motion of Sr. Varela
is denied” appealable. The objection of the appellant to the continuance of the
proceedings for the appointment of an administrator was not in real sense a
motion; and the expression of the court is not to be taken literally when it
denied “the countermotion” of the appellant. The objection interposed by the
appellant to the continuance of the proceeding to appoint an administrator, as
stated in the objection papers, was valueless for any purpose. The proper
procedure for appellant was to appear on the day set for the hearing and present
her objections to the proceeding and support them by such evidence or argument
as she may have had. Then if the court had appointed an administrator over her
objections she would have had some definite ruling of the court, obtained in a
legal manner, that would have been subject to exception. But the mere objection
that a motion or proceeding be heard at all is neither a countermotion nor a
motion, nor does it have any effect whatever in law. As a result a mere
objection in a proceeding to appoint an administrator to the effect that the
court should not hear the proceeding has no value and produces no effect in law.
An interested person has a right to make a motion for the appointment of an
administrator of a deceased person, and it is not only the right but the duty of
a court to hear that motion. An objection that it be not heard is improper and
without force or effect.

These remarks are not intended to refer to their full extent to a case where
there is a failure to serve process on the respondent and where, accordingly, no
jurisdiction has been obtained over his person. In such case an objection,
properly made, on the day set for the hearing, that the hearing do not proceed
is proper and well founded.

That portion of appellant’s objections which asks that the proceeding be
dismissed before the hearing raises no question that the court could decide
prior to the hearing of the proceeding to appoint the administrator. If it was
worth anything at all, legally speaking, it was simply a defense to the
proceeding which should have been presented as such and determined on the
hearing of the proceeding to appoint.

The appeal is hereby dismissed, with costs against the appellant. So
ordered.

Torres, Trent, and Araullo, JJ., concur.

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CARSON, J., dissenting:

I dissent.

I think that the real question raised and determined in the court below was
whether or not an administrator should be appointed for the estate of the
deceased; and an order adjudicating such a question is an order which
constitutes a final determination of the rights of the parties thereunder,
within the meaning of section 783 of the Code of Civil Procedure, and as such,
appealable. (Cf. Sy Hong Eng vs. Sy Lioc Suy, 8 Phil. Rep., 594.)

The mere fact that the order, in addition to the determination of the
question as to whether an administrator should or should not be appointed,
contains a further provision fixing a day for a hearing as to the person who
should be appointed administrator, does not deprive an interested party of his
right to appeal from so much of the order as finally adjudicates the vital
question whether the estate should or should not be placed in the hands of an
administrator. The reasoning of the above cited case of Sy Hong Eng vs.
Sy Lioc Suy seems to me to be conclusive in this regard.