PATRICIO CONTRERAS AND JERUSALEM GINGCO, PETITIONERS, VS. ALFONSO FELIX, JUDGE OF FIRST INSTANCE OF MANILA, AND THE CHINA BANKING CORPORATION, INC., RESPONDENTS.

The case concerns a proposed modification of a final judgment. The
earnestness with which the petition is maintained will be our excuse for making
this decision more lengthy than the nature of the case in other circumstances
would warrant.

Patricio Contreras and Jerusalem Gingco brought a suit against the China
Banking Corporation, Inc., and Juan V. Molina and Teodora Arenas, husband and
wife, to annul a mortgage executed by the spouses in favor of the Bank and to
recover damages. The Court of First Instance of Manila, the Honorable Jose O.
Vera presiding, absolved the Bank and condemned the other two defendants to pay
various amounts in various concepts with certain deductions. The lower court’s
judgment in full is as follows:

“Por los hechos y razones expuestos, se dicta decision en esta causa,
declarando:

“(1) Que la hipoteca otorgada a favor de The China Banking Corporation es
valida, pues el banco obro de buena fe;

“(2) Condenando a Juan V. Molina y Teodora Arenas a pagar a Jerusalem Gingco
en concepto de indemnizacion de daños y perjuicios la cantidad de P2,000;

“(3) Obligando a los conyuges Juan V. Molina y Teodora Arenas a pagar la
deuda hipotecaria al banco The China Banking Corporation a fin de que las
accesorias y las dos puertas adicionales no tengan gravamen alguno. Si no lo
hacen dentro de treinta dias despues de quedar firme esta sentencia, Jerusalem
Gingco puede hacer ese rescate, cargando la deuda hipotecaria a cuenta de Juan
V. Molina y Teodora Arenas, pudiendo incluirse en la ejecucion que se expida en
esta causa el cobro de lo que Jerusalem Gingco pague al banco por dicha
hipoteca;

“(4) Del credito de Jerusalem Gingco contra Juan V. Molina y Teodora Arenas
de P4,836.31 en la causa No. 44960, se debe deducir el exceso de lo pagado por
Teodora Arenas en la subasta publica que hubo con motivo de la ejecucion
expedida en la causa No. 36669. Dicho exceso es de P576.25, que se debe deducir
de los P4,836.31.

“(5) Que los conyuges Juan V. Molina y Teodora Arenas paguen a Jerusalem
Gingco P2,520 por los alquileres de las dos puertas adicionales a razon de P30
mensuales (P15 por puerta), correspondiente al periodo del 4 de Septiembre de
1934 al 4 de Septiembre de 1941. Desde esta ultima fecha, dichos demandados
deberan pagar a Jerusalem Gingco P30 mensuales hasta que dichas puertas
adicionales sean entregadas a su propietaria Jerusalem Gingco.

“(6) Los demandantes, tan pronto hayan cobrado algo de los demandados Juan V.
Molina y Teodora Arenas, deben pagar los derechos de escribania por esta
causa.

“(7) Se condena a Juan V. Molina y a Teodora Arenas a pagar las costas del
presente juicio.”

From that judgment, the plaintiffs appealed, but not any of the defendants.
The parts of the decision to which the plaintiffs took exception were thus
specified in the notice of appeal:

“(a) En cuanto declara valida la hipoteca otorgada por los demandados
Juan V. Molina y Teodora Arenas a favor de su codemandada The China Banking
Corporation, y al no condenar a esta a pagar indemnizacion a los
demandantes.

“(b) En cuanto declara que, si los demandados Molinas dejaren de pagar
su deuda hipotecaria al Banco demandado a fin de que las accesorias en cuestion
esten libres de toda carga y gravamen, la demandante Jerusalem Gingco puede
hacer el rescate, pudiendo incluirse en la ejecucion que se expida en esta causa
el cobro de lo que esta pague al Banco por dicha hipoteca y,

“(c) En cuanto declara que, el credito de Jerusalem Gingco contra los
demandados Molinas a cuenta del importe de la sentencia en el asunto civil No.
44960 era solamente de P4,836.31 en vez de P6,951.31.”

In due time this court rendered judgment couched in these words:

“For all the foregoing, the deed of mortgage dated November 8, 1930, is
declared null and void as to the one-half of the mortgaged property belonging to
Jerusalem Gingco and rescinded as to the remaining one-half belonging to the
spouses Molina, and the appealed decision is modified by ordering all the
defendants to pay Jerusalem Gingco the amount of P6,951.31, plus the additional
amount of P30 monthly from September 4, 1934, to September 4, 1941, and to
continue paying the same monthly amount thereafter until the two new doors of
the accesoria in question are delivered to said Jerusalem Gingco. The
defendants shall also pay the filing fees of the complaint in the lower court
and the costs in both instances.” (Contreras and Gingco vs. China Banking
Corporation, 76 Phil., 709, 716, 717.)

After this judgment was entered, the case was sent back to the lower court
and execution was issued. The sheriff at first undertook to collect from the
China Banking Corporation one-half of the judgment, upon the indication, it is
claimed, of the plaintiffs’ attorney, but objection by the bank having been
filed with the court, the Honorable Alfonso Felix, judge, one of the respondents
herein, ordered that the portion of the judgment due from this defendant was
only one-third. The latter amount was later paid by the bank and turned over to,
and receipted for by, the plaintiffs’ counsel. It so happened that the other
defendants were insolvent, whereupon the execution creditors asked for an alias
execution against the bank for the unpaid balance of the judgment. That motion
was denied and the present petition for mandamus was the off-shoot.

It was contended below, and it is contended here, that the act of the bank
was tortuous and falls under the provision of article 1902 of the Civil Code so
that its liability is joint and several.

There is no dispute, and it can be said with confidence, that the China
Banking Corporation’s liability under the terms of the judgment of this court is
merely joint, joint in the sense in which the word is understood in the civil
law, “It is already a well-established doctrine in this jurisdiction that, when
it is not provided in a judgment that the defendants are liable to pay jointly
and severally a certain sum of money, none of them may be compelled to satisfy
in full said judgments.” (Oriental Commercial Co. vs. Abeto and Mabanag,
60 Phil., 723, citing De Leon vs. Nepomuceno and De Jesus, 37 Phil., 180,
and Sharruf vs. Tayabas Land Co. and Ginainati, 37 Phil., 655.) That
ruling is in entire harmony with articles 1137 and 1138 of the Civil Code.

Under that doctrine the lower court has no legal authority under any
circumstances to make the change sought by the plaintiffs; and this court itself
may not make the change after the judgment has become executory. According to
that decision a mistake such as that here alleged, if it be a mistake, is not
clerical; it goes to the very substance of the controversy.

Only clerical errors, or mistakes or omissions plainly due to inadvertence or
negligence may be corrected or supplied after the judgment has been entered.
“The power of courts to correct clerical errors and misprisions and to make the
record speak the truth by nunc pro tunc amendments after the term does not
enable them to change their judgments in substance or in any material respect.
Consequently it is well settled that, in the absence of statute permitting it;
the law does not authorize the correction of judicial errors, however flagrant
and glaring they may be, under the pretense of correcting clerical errors.” (1
Freeman on Judgments, pp. 269-271.)

“The general power to correct clerical errors and omissions does not
authorize the court to repair its own inaction, to make the record and judgment
say what the court did not adjudge, although it had a clear right to do so. The
court cannot under the guise of correcting its record put upon it an order or
judgment it never made or rendered, or add something to either which was not
originally included although it might and should have so ordered or adjudged in
the first instance. It cannot thus repair its own lapses and omissions to do
what it could legally and properly have done at the right time. A court’s
mistake in leaving out of its decision something which it ought to have put in,
and something in issue of which it intended but failed to dispose, is a judicial
error, not a mere clerical misprision, and cannot be corrected by adding to the
entered judgment the omitted matter on the theory of making the entry conform to
the actual judgment rendered.” (Id., p. 273.)

Slight reflection will show the wisdom of this rule. The necessity of giving
finality to judgments that are not void is self-evident. The interests of
society impose it. The opposing view might make litigation “more unendurable
than the wrongs it is intended to redress.” It would create doubt, real or
imaginary, and controversy would constantly arise as to what the judgment or
order was. As this court has announced, “public policy and sound practice demand
that, at the risk of occasional errors, judgments of courts should become final
at some definite date fixed by the law. The very object for which courts were
instituted was to put an end to controversies.” (Layda vs. Legazpi, 39
Phil., 83; Dy Cay vs. Crossfield & O’Brien, 38 Phil., 521.)

We have no cause to depart from this rule. It is a rule that must be adhered
to regardless of any possible injustice in a particular case. It is not a legal
concept of the flexible kind, capable of being individualized to meet the needs
of varying conditions. “We have to subordinate the equity of a particular
situation to the overmastering need” of certainty and immutability of judicial
pronouncements. The loss to the litigants in particular and to society in
general “would in the long run be greater than the gain if judges were clothed
with power to revise” their decisions at will. “Perhaps, with a higher
conception” of the administration of justice and its needs, “the time will come
when even revision will be permitted if revision is in consonance with
established standards” of court functions, “but the time is not yet.”

It would be tedious to give illustrations of clerical mistakes, errors and
omissions, correction of which might be permitted. It suffices for the purpose
of this decision to say that the mistake under consideration, if it be a
mistake, is not of the apparent exceptions, at least in this jurisdiction.

In truth, there is no proper and sufficient showing here that the alleged
mistake was due to inadvertence on the part of the court. We have been through
with the decision and have not detected in it any clear purpose or intention to
make the defendants jointly and severally liable. In all probability, the nature
of defendants’ liability (whether joint or joint and several) was not touched
upon at all by the parties and was not even given thought by them or by the
court. The point was involved in obscurity. As the judgment of the lower court
plainly indicates, the case was very intricate, complicated by a multiplicity of
claims and counterclaims arising from different juridical acts and sought from
different parties who sustained diverse relationships to the plaintiffs and to
each other with reference to the separate items. It is not to be wondered at if
the finer point of solidarity among the defendants was swallowed up and lost in
the maze of these claims and counterclaims over the validity of which the
three-cornered contest was centered and bitterly waged. The uncontroverted facts
alone are so complex that more than one close reading of either decision is
needed to get a comprehensive grasp of them.

The fact that the plaintiffs’ attorney instructed the sheriff to levy
execution on the bank for only one-half of the judgment, when it could have
demanded the whole amount from that entity if its liability was joint and
several, offers itself as possible proof that in the mind of the petitioners
themselves this defendant was to bear only a pro-rata share of the
indebtedness. In other words, if the bank’s liability, in plaintiffs’ opinion,
was solidary, they had the option to exact the payment of the entire amount due
from any of the defendants, subject to the right of the payor to collect from
the others their proportionate shares of the obligation. It would seem that the
plaintiffs became wise to the question of solidarity among the defendants only
when the matter of whether the bank should pay one-half or one-third of the
judgment came before the court below.

It is said that the judgment is at variance with the context of the decision.
Granting this for the moment to be the case, yet the discrepancy pointed out is
not of the nature that would justify modification of the judgment. The
principles we have cited in the preceding paragraphs should put this matter at
rest. More to the point is another well-recognized doctrine, that the final
judgment as rendered is the judgment of the court irrespective of all seemingly
contrary statements in the decision. “A judgment must be distinguished from an
opinion. The latter is the informal expression of the views of the court and
cannot prevail against its final order or decision. While the two may be
combined in one instrument, the opinion forms no part of the judgment. So, * * *
there is a distinction between the findings and conclusions of a court and its
judgment. While they may constitute its decision and amount to the rendition of
a judgment, they are not the judgment itself. They amount to nothing more than
an order for judgment, which must, of course, be distinguished from the
judgment.” (1 Freeman on Judgments, p. 6.) At the root of the doctrine that the
premises must yield to the conclusion is perhaps, side by side with the needs of
writing finis to litigations, the recognition of the truth that “the trained
intuition of the judge continually leads him to right results for which he is
puzzled to give unimpeachable legal reasons.” “It is an everyday experience of
those who study judicial decisions that the results are usually sound, whether
the reasoning from which the results purport to flow is sound or not.” (The
Theory of Judicial Decision, Pound, 36 Harv. Law Review, pp. 9, 51.) It is not
infrequent that the grounds of a decision fail to reflect the exact views of the
court, especially those of concurring justices in a collegiate court. We often
encounter in judicial decisions, lapses, findings, loose statements and
generalities which do not bear on the issues or are apparently opposed to the
otherwise sound and considered result reached by the court as expressed in the
dispositive part, so called, of the decision.

But is there really any conflict between the considerations or findings and
the judgment of this court? It appears that the sole reliance of the petitioners
is on the statement in the decision, viz.: that “the assignment of error
is also well taken” and that “the China Banking Corporation must answer for the
amounts above-mentioned as a consequence of our conclusion as to the nullity of
the mortgage.” That statement had reference to the second assignment of error
which complained, in the words of this court, of the trial court’s “failure to
order the China Banking Corporation to indemnify Jerusalem Gingco in the amount
of P6,951.31, which was adjudicated in her favor in Civil Case No. 44960 of the
Court of First Instance of Manila, and which appellant failed to collect in view
of the third-party claim filed by said bank, and the rents which said appellant
failed to collect from accesorias Nos. 1635, 1630 (1637) and 1639 at the
rate of P65 a month, beginning from September 4, 1934.” That comment and the
second assignment of error did not exhibit any intention, let alone plain
intention, to hold the China Banking Corporation liable in solido. The
idea of solidarity is no more manifest than the idea of mere joint liability
among the co-obligors. If there was any intention to make the defendants’
obligation under the judgment solidary, it is not apparent from the language
employed. If there was inadvertence on the part of the court, the omission was
not so obvious as to justify rectification. Nowhere in the decision is there any
reference to article 1902 of the Civil Code, or unequivocal declaration that
each of the defendants was bound to the performance or payment of the entire
judgment.

Even if the liability of the bank arose from tort and is in solido, it
is now too late to enforce that liability in the manner specified in the
applicable provisions. When a claim or demand has been put in suit and has
passed on to final judgment, it is merged and swallowed up in the judgment and
loses its vitality. All the particular qualities of the claim are merged in the
judgment. And this rule applies to all claims or demand. (34 C. J., 752, 754.)
In another connection this court has ruled: “It is of no consequence that * * *
the obligation contracted by the sureties was joint and several in character.
The final judgment, which superseded the action brought for the enforcement of
said contract, declared the obligation to be merely joint, and the same cannot
be executed otherwise.” (Oriental Commercial Co. vs. Abeto and Mabanag,
supra.) It is immaterial, therefore, whether the obligation of the
defendants arose from law, contract or culpa. It is “the final judgment
(that) determines and is the source of the rights and obligations of the parties
* * *.” (Oriental Commercial Co. vs. Abeto and Mabanag,
supra.)

Emphasis is also laid on the fact that the spouses Molina and Arenas did not
appeal. The petitioners advance the proposition that since these defendants did
not appeal they were excluded from the appellate court’s jurisdiction. They go
so far as to insinuate or say that the China Banking Corporation alone is
answerable for the judgment rendered by this court The position thus taken by
the petitioners is highly untenable and inconsistent with their main thesis.

If Molina and Arenas did not question the trial court’s decision, the
plaintiffs did appeal from the judgment, not as it affected the bank only but
also the other defendants. The notice of appeal will show that the plaintiffs
opened up, among other questions, that of the extent of Molina’s and his wife’s
liability to the plaintiffs as well as the bank’s. The bank did not appeal
either, for that matter, but it was condemned nevertheless. That Molina and his
wife did not appear and Ale a brief in this court did not operate to rule them
out of the case. The best refutation of the petitioners’ contention is the fact
that the amounts which Molina and his wife were sentenced to pay by the court
below were increased by this court.

The authorities cited by the petitioners do not shed any light on this issue.
It can be seen at a glance that there is no analogy between this case and the
cases relied upon by counsel.

There is one feature of the case affecting the question of practice and
procedure which should not be allowed to escape our attention.

A motion for reconsideration styled “Motion for Clarification” was presented
in this court before the present petition was docketed. That motion was denied
on the grounds that clarification was unnecessary and that the judgment had
become final. (This, by way of parenthesis, may be said to mirror the concept
which this court had of the alleged error; namely, that the error, if it be
error, was of judicial and not clerical character.) By the motion for an alias
execution the petitioners were after exactly the same thing that we had refused
to grant them. They simply turned around and took a circuitous and narrower path
that led to the same goal. By appealing from the lower court’s denial to issue
an alias execution, the plaintiffs now try to obtain by indirection what they
failed to get directly. The procedure is indeed anomalous and success of the
petition would lead to anomalous consequences. How?

1. “It is well settled that a decision concurred in by the entire bench cannot
   be modified, except on regular reconsideration.” (5 C. J. S., 1485.) The change
   the petitioners would have us make would constitute modification of the
   judgment; they would have a new matter of substance inserted therein. This
   matter—that the bank’s liability is not joint but solidary—was not put in issue
   in the original case and there does not appear to have been any hearing or
   voting on this specific point. This matter goes to the merits, and hearing and
   voting thereon can properly be had only by going into the whole record of the
   main case. On the other hand, adequate study of the whole case can not be
   accomplished except on a regular motion for reconsideration such as the one we
   dismissed. In other words, for the purpose of modifying the judgment the
   proceeding must be direct and not, like the present proceeding, collateral.
   Direct proceeding on a regular motion for reconsideration would be all the more
   necessary, if the motion for amendment were to be entertained, because some of
   the justices who signed the decision have resigned and the new members who have
   taken their places did not have the benefit of hearing the arguments and going
   over the pleadings and evidence. The scope of our authority on a petition for
   mandamus, which is a special proceeding, is limited to an examination of the
   allegations therein and in the answer, and perhaps of the decision of this
   court, which was not attached to as part of the, petition. Under such petition
   the pleadings, the evidence and the briefs in the main cause are not legally
   brought before us. Quite apart from this technical barrier, the record of the
   case has actually been returned to the court of origin.

2. Granting of the petition for mandamus would not be an amendment by this
   court of its decision. In form, it would be a command to the court below to do
   as the petitioners asked. In its implications, it would be a sanction for
   inferior courts, in the process of execution, to change judgments of courts of
   superior jurisdiction in the light of what they believe is the intention of the
   higher court as gathered from statements in the body of the decision. It would
   be taken as a green-light signal for inferior courts to probe into the decisions
   of superior courts to verify if the judgment conforms to the text. The result of
   such practice would be intolerable. That the lower court’s decision might be
   appealable would not remedy the situation greatly. In the present case there
   would be the added paradox that we would reverse the lower court for refusing to
   allow precisely what this court itself—the author of the decision which was in
   the best position to say what the decision meant—denied because the judgment was
   clear and had acquired finality.

For the foregoing considerations, the
petition is denied without costs.

Moran, C.J., Paras, Hilado, Bengzon, and Hontiveros, JJ.,
concur.

---

PADILLA, J.:

I concur with reluctance in the opinion of
the majority. I say with reluctance, because I am convinced that the liability
of the respondent bank is several (solidaria). It was the bank, as mortgagee,
that caused the failure of the petitioner Jerusalem Gingco to collect the money
judgment in civil case No. 44960 of the Court of First Instance of Manila
because of its third party claim filed with the sheriff. That liability is
tortious and not contractual as far as the petitioner Jerusalem Gingco is
concerned; and for that reason, the liability arising therefrom is exclusively
of the bank. Even assuming that the mortgage was valid, a mere mortgagee is not
entitled to file a third party claim, because it is only title to, or right to
possession of, the property levied upon execution that gives a party the right
to file such claim (section 451, Act No. 190; section 15 Rule 39), and because
the real right of the mortgagee is always protected and secured, if validly
executed and registered, against subsequent claims and levies upon execution. I
am also persuaded that the responsibility of the spouses Juan B. Molina and
Teodora Arenas is of one party and not of two, so that if by the terms of the
judgment the liability is joint (mancomunada), the bank’s share of the
responsibility must be one-half and not one-third. Nevertheless, I cannot but
give my assent to the principles enunciated in the opinion of the majority, for
there must be an end to a litigation, and the respondent court, when executing a
final judgment, must strictly adhere to its terms. The respondent court is not
authorized to construe a judgment by resorting to other parts of the decision
upon which such judgment is premised. While I regret the unfortunate result for
the petitioners, the benefits, however, to be derived from the observance of the
sound rules set forth in the opinion of the majority more than offset the wrong
intended to be remedied or redressed.

---

PERFECTO, J.:

Many years ago, giving expression to a concept of profound wisdom, Mr.
Justice Cardozo said:

“The law has outgrown its primitive stage of formalism when the precise word
was the sovereign talisman, and every slip was fatal. It takes a broader view
today.” (Wood vs. Lucy, New York.)

The present case shows a backward overleaping on the new concept chiseled by
Mr. Justice Cardozo with unsurpassed mastery. The decision of this case offers a
conclusive evidence of the need of rediscovering the legal truth already
revealed in the above quotation.

Only because the stringent and unyielding verbal formula of “jointly and
severally” has not been used, the victim of a fraud is unjustly deprived of
two-thirds of the indemnity due her for the damages suffered. Because the
hieratic words of the exorcismal shibboleth were omitted in a decision, full
responsibility cannot be exacted from the perpetrator of the fraud, who is to be
relieved and exempted from paying two-thirds of the damages caused. Again we are
under the magic spell of the sovereign talisman of the precise word. Under its
restored regime, while the victim of a fraud is made to suffer, the scoundrel is
happily rewarded. Verbal rigidity burkes right and enthrones wrong. The
hierograph of exorcism sanctifies fraud and smothers the claims of fairness,
justice and equity.

Emancipation from the shackles of empty formalism is an enterprise that
imposes new duties to the judiciary. That enterprise should be undertaken if
many failures of justice are to be avoided. The system of justice by mantras
belongs to the past. Right or wrong should not be judged upon the charm of a
syllable or a group of syllables, as the Hindus would synthesize the triple
constitution of the cosmos, the Absolute, the Relative and the relation between
them, in the single sound of om. Words are not geometrical figures by which
right or wrong may be measured with mathematical inflexibility. They are
manifestations of life, and life is never geometrical, algebraic or
mathematical. The law rules human relations, and human relations are expressed
and manifested with infinite variety incompatible with the fixity of ritualistic
words.

In the case of Contreras and Gingco vs. China Banking Corporation, the
Second Division of the Supreme Court rendered on May 25, 1946, a decision
declaring without effect the deed of mortgage, dated November 8, 1930, executed
by defendant spouses Juan B. Molina and Teodora Arenas, in favor of their
co-defendant, the China Banking Corporation and ordering “all the defendants to
pay Jerusalem Gingco the amount of P6,951.31, plus the additional amount of P30
monthly from September 4, 1934, to September 4, 1941, and to continue paying the
same monthly amount thereafter until the two new doors of the accesoria
in question are delivered to said Jerusalem Gingco.” (76 Phil., 709, 716,
717.)

Spouses Arcadio Gingco and Dolores Contreras were the owners of two
accesorias made of strong materials located at Sande St., Tondo, Manila.
On June 23, 1928, Dolores Contreras died, leaving as her only heirs her husband
and their daughter Jerusalem Gingco. On November 6, 1928, the widower sold the
accesorias to defendants Juan B. Molina and Teodora Arenas. On June 24,
1930, action was instituted against the buyers for the annulment of the sale,
and on August 22, 1930, the Court of First Instance of Manila rendered decision
declaring the sale null and void as to one-half of the accesorias which
belong to Jerusalem Gingco.

Notwithstanding said decision, on November 8, 1930, defendants Juan B. Molina
and Teodora Arenas mortgaged the two accesorias in favor of the China
Banking Corporation to answer for a loan of P2,000. The deed of mortgage was
drawn and executed in the law office of Attys. Feria and La O, who were the
attorneys of the China Banking Corporation and at the same time were the
attorneys who represented Juan B. Molina and Teodora Arenas in the case in which
the Court of First Instance of Manila declared null and void the sale of
one-half of the accesorias in question belonging to Jerusalem Gingco. At
the time of the execution of the deed of mortgage, the decision was not yet
final, because it was appealed, but it did soon become final and executory with
the withdrawal of the appeals on December 29, 1930.

In another case, on February 28, 1934, Jerusalem Gingco secured from the
Court of First Instance of Manila a decision ordering the spouses Molina to pay
her the amount of P4,836.31, one-half of the rents of the accesorias
pertaining to Jerusalem Gingco and collected by the spouses Molina, plus rents
the defendants may continue collecting on the property from November, 1933. The
decision was affirmed by the Supreme Court on May 10, 1935. To make said amounts
effective, execution was issued and the sheriff announced a public auction of
one-half of the accesorias belonging to the spouses Molina. The public
auction was stopped because the China Banking Corporation, represented by Attys.
Feria and La O, the same representing the spouses Molina, filed a third party
claim, thus defeating the collection by Jerusalem Gingco of the several thousand
pesos ordered by final decision to be paid to her by the spouses Molina.

One of the grounds for our decision, which was concurred in by Mr. Justice M.
H. de Joya, Mr. Justice Emilio Y. Hilado, and Mr. Justice Cesar Bengzon, to
declare null and void and rescind the deed of mortgage executed on November 8,
1930, by the spouses Molina in favor of the China Banking Corporation, was that
the said mortgage was fraudulent, both parties in the contract of mortgage
having been equally guilty of the fraud. Even Mr. Justice Ozaeta, who dissented
from the rescission of the mortgage with respect to one-half of the property
belonging to the spouses Molina, concurred with our conclusion that with respect
to one-half of the property belonging to Jerusalem Gingco the mortgage has been
executed “in bad faith.” The China Banking Corporation cannot escape from this
pronouncement because at the time the mortgage was negotiated and executed, the
bank was represented by the same attorneys who were representing the spouses
Molina and in the very case where the decision intended to be defeated by the
mortgage was rendered, and it was in their law office where the fraudulent deed
of mortgage was drafted and signed.

As Jerusalem Gingco was unable to collect from the spouses Molina the amount
of P6.951.31 and other amounts mentioned in our decision, because of the third
party claim filed by the China Banking Corporation on the strength of the
fraudulent mortgage, there should not be any doubt that the China Banking
Corporation is fully responsible for said amounts in favor of Jerusalem Gingco.
The responsibility of said bank cannot be affected, increased or diminished,
upon the character of the responsibility of the spouses Molina or their ability
to pay said amounts. The responsibility of the bank is independent from the
responsibility of the spouses Molina. Each one of the parties to a fraud is
solidarity answerable for all the harms and damages caused by the fraud.

“A person who by an act or omission causes damage to another by his fault or
negligence shall be answerable for the damage caused.” (Article 1902, Civil
Code.)

“Moreover, we are of the opinion that both the owner and agent
(naviero) should be declared to be jointly and severally liable, since
the obligation which is the subject of this action had its origin in a tortious
act and did not arise from contract. Article 1137 of the Civil Code, declaring
that joint obligations shall be apportionable unless otherwise provided, has no
application to obligations arising from tort.” (Verzosa and Ruiz, Rementeria y
Cia. vs. Lim and Siy Cong Bieng & Co., 45 Phil., 416,
423.)

After the case was remanded to the Court of First Instance of Manila for the
execution of our decision, the respondent judge issued on July 23, 1946, an
order for the execution of the decision, but with instructions to the sheriff
that in carrying out the order of execution, the China Banking Corporation shall
be made to pay only “one-third” of the total amount of the judgment of the
Supreme Court.

Petitioners came to us to secure a mandamus against the lower court,
to compel it to order the execution for the total amount of the judgment against
the China Banking Corporation.

The pivotal question in this case, undisguised by technical trappings, is
whether a party to a fraudulent transaction should be granted the benefits of an
exemption from the payment of two-thirds (2/3) of the reparation and
indemnification due to the victim of the fraud.

Presented in another form, the question we are called upon to answer is
whether we are empowered to disregard article 1902 of the Civil Code, by
reducing to one-third (1/3) the responsibility therein provided for damages
caused by fault, in the present case aggravated by “bad faith.”

The dispositive part of our decision in Contreras and Gingco vs. China
Banking Corporation, supra, the execution of which against the China
Banking Corporation is in issue, is as follows:

“For all the foregoing, the deed of mortgage dated November 8, 1930, is
declared null and void as to the one-half of the mortgaged property belonging to
Jerusalem Gingco and rescinded as to the remaining one-half belonging to the
spouses Molina, and the appealed decision is modified by ordering all the
defendants to pay Jerusalem Gingco the amount of P6,951.31, plus the additional
amount of P30 monthly from September 4, 1934, to September 4, 1941, and to
continue paying the same monthly amount thereafter until the two new doors of
the accesoria in question are delivered to said Jerusalem Gingco. The
defendants shall also pay the filing fees of the complaint in the lower court
and the costs in both instances.”

Respondents would like to have it interpreted to the effect that the China
Banking Corporation shall have to pay only “one-third” of the amounts
adjudicated, following the rules of interpretation set in articles 1137 and 1138
of the Civil Code, which read:

“Article 1137. The concurrence of two or more creditors, or of two or more
debtors, in a single obligation does not imply that each of the former has a
right to ask, or that each of the latter must give, in their entirety the things
which are the object of such obligation. This shall obtain only when the
obligation so expressly determines, by being constituted with the character of a
solidary obligation.

“Article 1138. If from the context of the obligations referred to in the
preceding article the contrary is not shown, the credit or the debt shall be
presumed as divided into as many equal parts as there are creditors or debtors,
each part to be considered as a distinct credit or debt from the
others.”

Respondents’ position is based on the doctrine laid down in the case of
Oriental Commercial Co. vs. Abeto and Mabanag (60 Phil., 723) decided on
October 10, 1934, the said doctrine having been firstly enunciated in the case
of De Leon vs. Nepomuceno and De Jesus (37 Phil., 180), decided about
thirty years ago, on November 24, 1917.

An analysis of the decision in the case of De Leon vs. Nepomuceno,
supra, will lead us to the conclusion that the doctrine was laid down on
wrong foundations and, therefore, is liable to topple down at the slightest
touch.

Three candidates ran for provincial governor of Tarlac: De Leon, Gardiner,
and Torres. De Leon was declared elected. Gardiner protested, with notice to
Torres, who was an unwilling party, having received a few complimentary votes
and had no chance of being declared elected. Gardiner won the contest. Under
sections 481 and 482 of the Administrative Code, the law then applicable, the
costs shall be taxed “against the defeated party,” which was De Leon. It
happened, notwithstanding, that the Court of First Instance decided that the
costs shall be paid “by the protestee and the intervenor.” The decision was
wrong, because, under the law, the costs shall be taxed only “against the
defeated party” and it could not refer to anybody but De Leon. The wrong
judgment was erroneously affirmed by the Supreme Court. Mr. Justice Malcolm then
said: “The fixing of costs in election contests is therefore not a question of
joint liability or joint and several liability, but is simply an application of
the precise provisions of the law to the facts.”

But the majority of the Supreme Court proceeded to set the doctrine that,
unless the judgment should use the sacramental phrase “joint and several,” the
amount adjudged to be paid by two or more persons, shall be apportioned among
them in equal parts, and each one shall pay only his quota and no more.

To lay down the doctrine, articles 1137 and 1138 of the Civil Code and the
Law of Louisiana as stated in Groves vs. Sentell (14 Sup. Ct., 898-901;
153 U. S., 465; 38 Law ed., 785), were invoked.

It can be seen, therefore, that the doctrine is the result of the mental
operation of disguising an error with the appearance of correctness by
committing a second error tending to justify the first one. Refusal to admit or
confess an error is very general human weakness. Even tribunals are not always
free from that weakness. They are human institutions and it is natural that
human virtues and weaknesses should be manifested in them.

In Sharruf vs. Tayabas Land Co. and Ginainati (37 Phil., 655) articles
1137 and 1138 of the Civil Code have been correctly applied, because the issue
there referred to a promissory note, and that is the reason why the Supreme
Court declared: “We agree with the appellant that this promissory note evidences
a joint and not a joint and several obligation, but it appearing that the trial
judge correctly rendered judgment holding the defendants ‘jointly’ liable, there
is no necessity for any modification of the terms of the judgment in that
regard.”

Evidently, we are facing here a case of forgetfulness when respondents failed
to remember that articles 1137 and 1138 of the Civil Code are circumscribed in
their application only to contractual obligations, but never to quasi-contracts
nor to tortious obligations. Manresa, the most weighty authority on Civil Code,
invoking a decision of the Supreme Court of Spain, declared that articles 1137
and 1138 of the Civil Code are not applicable to obligations born from
quasi-contracts which by their very nature, are solidary. (Vol. VIII, pp. 193,
194, 3d ed.) And this very Supreme Court had already decided that article 1137
of the Civil Code has no application to obligations arising from tort, such as
the obligation of the China Banking Corporation to pay Jerusalem Gingco, the
amounts adjudicated in our decision. (See Verzosa and Ruiz, Rementaria y
Cia. vs. Lim and Siy Cong Bieng & Co., 45 Phil., 416, 423, quoted
elsewhere in this opinion.)

The obligation of the China Banking Corporation to pay the amounts in
question have arisen from a tortious act, committed with evident bad faith, and
not from a contract. It is evident that the bank cannot profit by the exemptions
or deductions authorized by articles 1137 and 1138 of the Civil Code.

We do not see any reason why, in reading the plain words of the dispositive
part of the decision in question, resort should be made to any unusual or
abstruse means of interpretation, when the words of the decision are so clear to
be understood by any common man. There is nothing so confusing, so irksome and
distressing than when tribunals, pretending to voice the wisdom of the oracles,
decide to reveal the riddle of a meaning which is beyond the ordinary
understanding and shocks the sense of the common people. There is nothing to
discredit so much the administration of justice.

The decision ordered “all the defendants to pay Jerusalem Gingco” the
specified amounts. Is it not clear that each and every one of the defendants is
responsible for the payment of all the amounts? Is there any word in the
decision to support the idea that any one of the defendants, say the China
Banking Corporation, is liable to pay but “one-third” of the amounts? The
suggestion is so preposterous and repugnant to common sense to merit the dignity
of a judicial pronouncement. According to the best lexicographic authority,
“all,” as adjective, means “every member or individual component of;
each one of;—used with a plural noun.”

The fraudulent character of the transaction from which the obligation of the
China Banking Corporation to pay the amounts in question has arisen appears in
the body of the decision and before the last paragraph containing the
dispositive part. It is suggested that the dispositive part should be singled
out as if, in effect, embodying the whole decision, and that the preceding
paragraphs should be considered as superfluous decorative appendix. Invoking the
authority of Freeman, it is suggested that the findings and conclusions in the
body of a decision should be distinguished from the judgment in the dispositive
part to the extent of making it completely apart from the judgment Thus, in this
case, as the pronouncement of fraudulence is not embodied in the dispositive
part of our decision, it should be completely ignored in reading and construing
said dispositive part. The opinion, which may appear plausible under American
statutes and jurisprudence, is completely out of place within the Philippine
legal system.

Section 12 of Article VIII of our Constitution provides:

“No decision shall be rendered by any court of record without expressing
therein clearly and distinctly the facts and the law on which it is
based.”

It is as clear as crystal that judicial decisions should not be read and
construed piecemeal. The findings and conclusions of fact and law not inserted
in the dispositive part are as part of the decision as the latter, and it is so
by constitutional mandate. Severance cannot be made without violating the
Constitution. Therefore, the pronouncement on fraudulence is as part of our
decision as the last paragraph where we ordered the China Banking Corporation,
with the other defendants, to pay the amounts in question.

There is much to deplore the fact that this case happens to be decided upon
the assumption that petitioners are seeking a change in the dispositive part of
our decision in question. There is nothing in the prayer at the bottom of the
petition to support such an assumption. This initial error serves as a premise
to reasonings that lead to mistaken conclusions.

To the majority it is not enough that this Court should have adjudged the
China Banking Corporation guilty of bad faith in entering into a contract of
mortgage with the spouses Molina. It is not enough that this Court should have
rescinded and annulled the fraudulent mortgage. It is not enough that the
victim, Jerusalem Gingco, should have been defrauded, thanks to the fraudulent
mortgage and to the third party claim based on it, the amounts stated in the
dispositive part of our decision. It is not enough that articles 1137 and 1138
of the Civil Code should only be made applicable to contracts. It is not enough
that this very Supreme Court had already held that said articles are not
applicable to obligations arising from tortious acts, such as the ones committed
by the China Banking Corporation, in connivance with spouses Molina, and with
the active help of the common lawyers of both parties. It is not enough that the
wrongdoer is legally responsible to the full extent of the damages caused by his
fraud. It is not enough that in the dispositive part of our decision we made it
clear in plain and simple words, understandable to any body who can read
English, that the China Banking Corporation, including the other defendants, the
spouses Molina, should pay to Jerusalem Gingco all the amounts therein
specified. Not even the combined presence and concurrence of all the above facts
is sufficient, according to the majority, to entitle Jerusalem Gingco to collect
all the amounts from the China Banking Corporation, because the spouses Molina
are insolvent, and they became insolvent after the fraudulent mortgage had been
executed and the China Banking Corporation filed the third party claim that
frustrated the execution of the final judgment in favor of Jerusalem Gingco for
the collection of the amounts in question. The majority would require, besides,
as an essential element, a condition sine qua non, that in the
dispositive part of our decision should also appear the ritualistic words:
“jointly and severally.” This is the indispensable hierogram, without which the
judicial grace cannot be obtained. Shall justice be administered by shibboleths?
Shall the substance of justice be sacrificed for the sake of an empty
technicality? Shall the rights of litigants be measured by rigid linguistic
formulas, as if by algebraic equations? Are we to return to medieval darkness
when judgments were rendered upon fire tests and stupid exorcismal ceremonies?
How nonsensical it is.

With such an absurd way of thinking, the resulting decision cannot but be a
revolting travesty of justice. How can we arrive at a fair conclusion upon a
preposterous proposition, upon ideas that have no place in healthy reason, upon
twisted logic? How can anyone accept that in our decision where we wrote that
the China Banking Corporation should pay to Jerusalem Gingco the amounts therein
stated, not only any portion of the amounts, there should be read as if we had
written one-third (1/3) of the amounts? Can it be done without misrepresenting
facts? Can it be done without choking the truth?

The majority decision cannot fail to produce trepidation. The injustice of
depriving Jerusalem Gingco of two-thirds (2/3) of the amounts due her, to enrich
correspondingly with them the China Banking Corporation, co-author of the fraud
inflicted on her, is obvious. But it might not be so obvious to everybody that
the decision, in effect, is a reward to fraud. Such a decision in the present
incipient stage of our Republic, generally speaking, is demoralizing. The Augean
state of affairs in some of our official agencies, the carrion smell in some
social activities, shall make it so in superlative manner.

We vote for the
annulment of the lower court’s order, illegally reducing to one-third the
amounts that, according to the decision of this Court, should be paid by the
China Banking Corporation to Jerusalem Gingco and that a mandate be issued so
that in the execution of our decision rendered in the case of Contreras and
Gingco vs. China Banking Corporation (76 Phil., 709), the China Banking
Corporation be required to pay all the amounts adjudicated to be paid to said
Jerusalem Gingco.

---

BRIONES, M., con quien esta conforme PABLO,
M.:

Tanto en la ponencia como en la disidencia del Magistrado Sr. Perfecto los
hechos se hallan expuestos con todo detalle; asi que me creo relevado de
repetirlos en esta breve opinion disidente. Tiene razon el ponente cuando dice
que se trata de hechos bastante complejos; pero, para los efectos de la
resolucion del presente asunto, creo se puede reducirlos a una proposicion
juridica harto sencilla, a saber: que la responsabilidad del Banco demandado no
ha nacido de contrato, ni siquiera de cuasi-contrato, sino de un acto doloso, de
culpa. Su responsabilidad es exigible bajo el articulo 1902 del Codigo Civil que
reza: “El que por accion u omision causa daño a otro, interviniendo culpa o
negligencia, esta obligado a reparar el daño causado”. Y es elemental que esta
clase de responsabilidad, cuando se comparte con otro, no es solo mancomunada
sino solidaria. Por tanto, se equivoca la mayoria al declarar aplicables a este
caso los articulos 1137 y 1138 del Codigo Civil, los cuales se refieren
evidentemente a obligaciones contractuales. Asi que en el asunto de Verzosa y
Ruiz, Rementeria y Cia. contra Lim y Siy Cong Bieng & Co. (45 Jur.
Fil., 437, 444, Nov. 15, 1923) hemos sentado categoricamente el siguiente
pronunciamiento: “El articulo ll37 del Codigo Civil que declara que las
obligaciones mancomunadas seran a prorrata, a menos que se disponga otra cosa,
carece de aplicacion a las obligaciones nacidas de culpa.”

Sin embargo, se arguye que no estamos autorizados para enmendar la parte
dispositiva de una sentencia ya firme; que lo mas que se permite es la
correccion de errores de forma (clerical error), citandose autoridades en
apoyo de esta asercion; que, de otro modo, los litigios resultarian
interminables y habria caos, confusion; que, por tanto, aun a trueque de alguna
que otra injusticia aislada resultante de error judicial, razones de politica,
de orden publico aconsejan que se mantenga con todo rigor la regla clasica sobre
la inmutabilidad de las sentencias firmes y definitivas.

Hasta cierto punto estoy conforme con esta manera de razonar. Pero es que en
el presente caso no se trata de alterar o enmendar sustancialmente la sentencia:
se trata solo de dar efectividad al espiritu, al sentido esencial embebido en la
misma. Es indudable que en nuestra decision que es ahora objeto de controversia,
se condena al Banco demandado a pagar una indemnizacion a la demandante
Jerusalem Gingco, no como resultado de algun contrato que aquel hubiera tenido
con esta—pues, no hay tal contrato—sino porque el Banco tuvo parte esencial en
un acto doloso que causo daño a dicha Jerusalem Gingco en una suma mayor de
P6,000; en otras palabras, el Banco presento un escrito de terceria en unos
procedimientos de ejecucion en que Jerusalem era la ejecutante y ejecutados los
esposos Molina, co-demandados del Banco, a sabiendas de que la terceria dimanaba
de una hipoteca fraudulenta. Como resultado de esta terceria, la ejecucion se
dejo sin efecto y consiguientemente Jerusalem dejo de cobrar los P6,000 que
tenia derecho a recibir de los Molina. Todo esto aparece clarisimo en el texto
de nuestra sentencia discutida, faltando solo en la parte dispositiva las
palabras sacramentales “mancomunada y solidariamente”. La pregunta ahora en
orden es la siguiente: ¿es bastante esta omision para derrotar el objetivo
esencial de la sentencia que no es otro sino el de que la demandante pueda
cobrar de los demandados toda la cantidad que se le debe, a tenor de
dicha sentencia? En otros terminos: ¿es dicha omision sustancial, o es solo de
forma, es decir, inadvertencia de amanuense, clerical error?

Creo que es solo de forma. Creo que lo aqui debe regir, prevalecer, es el
texto inconfundible, inequivoco de la sentencia. Creo que cuando hay vaguedad,
deficiencia en la parte dispositiva (judgment) de la sentencia, ello se
puede suplir con la lectura del texto. Hay que tener en cuenta que el
“judgment” no es como el alma de Garibay suspendida en el aire, usando
una locucion vulgar. El “judgment” es la conclusion de un silogismo, por
decirlo asi; per tanto, presupone premisas, mayor y menor, y estas tienen que
estar necesariamente en el texto de la sentencia. Lo que en todo caso no es
parte de la sentencia es el obiter dictum. Estrictamente hablando todo lo
que se pide en el presente recurso es que ampliemos la parte dispositiva
de la sentencia con el concepto de la solidaridad, pero este concepto no es un
elemento nuevo, extraño a la sentencia, sino que esta embedido en ella; en
realidad, es el leit-motiff, es la ratio decidendi misma del
asunto. Y lo es porque es la ley misma la que dice que cuando la obligacion nace
de dolo o culpa, la responsabilidad es solidaria. Y esta clase de
ampliacion la podemos hacer, la hemos hecho ya en otro asunto anterior,
el de Rodriguez contra Caoibes (62 Jur. Fil., 152-159, Septiembre 24,
1935). En este asunto se dijo lo siguiente:

“La presente causa es de ejecucion de hipoteca. Fue tramitada como tal tanto
en el Juzgado de Primera Instancia de Batangas como en esta Corte en apelacion.
Al revocar la decision apelada, por omision involuntaria, no se ordeno la
consignacion en la escribania del Juzgado de origen, dentro de un plazo no menor
de tres meses, el importe de la sentencia, y, en su defecto, la venta de las
propiedades hipotecadas para hacer efectivo el pago de la deuda hipotecaria y
las costas. Esta omision involuntaria de un mandato imperativo del articulo 256
del Codigo de Procedimiento Civil, arriba transcrito, no puede alterar la
naturaleza de la accion, y puede pedirse la enmienda de la decision para
subsanar el defecto, puesto que tal provision es parte necesaria de ella.

“Sobre el particular, la jurisprudencia americana ha sentado la siguiente
doctrina:

” ‘A judgment or decree of foreclosure may be corrected after its rendition
in respect of an error or ommission, so as to make it conform to the
intention of the court or the facts of the case, * * *.’ (42 Corpus Juris,
158.)

” ‘If anything has been omitted from the judgment which is necesarrily or
properly a part of it, and which was intended and understood to be a part to
it, but failed to be incorporated in it through the negligence or
inadvertence of the court or counsel, or the clerk, the omission may be
supplied by an amendment even after the term. * * *’ (34 Corpus Juris, 235.)

*             *             *             *             *       
     *             *

“Aunque el auto del Juzgado de Primera Instancia de Batangas de fecha 12 de
marzo de 1934, arriba transcrito, contiene una orden mas amplia que la parte
dispositiva de la sentencia de esta Corte, y aunque lo mas procedente hubiera
sido el que se hubiese presentado una mocion ante esta Corte pidiendo que se
enmendara dicha parte dispositiva, supliendo la omision, no habiendose causado
perjuicio alguno con tal ampliacion, no creemos necesario revocar la
mencionada orden enmendatoria, bastando que hagamos nuestra la ampliacion, como
lo hacemos por la presente.” (Las cursivas son nuestras.)

Por la analogia se puede decir que en el asunto que nos ocupa la omision
involuntaria puede subsanarse, puesto que la enmienda no añade nada nuevo a
la sentencia. Derivandose de la misma ley el caracter solidario de la
responsabilidad del Banco demandado, estrictamente hablando no habia por que
declararlo en la parte dispositiva de la sentencia. Lo importante era establecer
el hecho de la responsabilidad—la ley se aplica automaticamente. Se comprende
que en las obligaciones contractuales sea absolutamente necesario el declarar la
calidad de in solido, pues siendo la solidaridad mas onerosa que la
simple mancomunidad no puede naturalmente presumirse sino que es preciso que
haya habido previamente una manifestacion expresa de la voluntad al
efecto.

Mucho me temo que con el fallo de la mayoria se este sacrificando la
substancia, el fondo de la justicia, a la sombra de un formulismo. Es realmente
deplorable que la demandante, despues de batallar por mas de 10 años para cobrar
lo que se le debe en virtud de un acto doloso de los demandados, encuentre ahora
que no puede cobrar mas que un tercio por una inadvertencia, una
omision a todas luces involuntaria de esta Corte, usando las
mismas palabras empleadas en el asunto de Rodriguez contra Caoibes,
supra.

Se que hay casos en que la falibilidad humana puede causar
injusticias irremediables, pero el presente no es indudablemente uno de ellos.
Aqui podriamos reparar facilmente los efectos de nuestra falibilidad, de nuestra
omision, sin causar injusticia contra nadie incluso el Banco demandado, y sin
vulnerar ningun principio sano de politica publica. Todo lo mas que quedaria
afectado seria un fetiche—el fetiche de una discutible inmutabilidad.