FRANCISCO VILLAESTAR, PETITIONER, VS. ADOLPH WISLIZENUS, JUDGE OF FIRST INSTANCE OF THE TWENTIETH JUDICIAL DISTRICT, RESPONDENT.

This is an action of mandamus to compel the Court of First, Instance of Cebu
to hear an election contest touching the office of municipal president which the
court had dismissed on motion of one of the respondents.

The plaintiff was contesting the election of Teofilo Libre. During the
progress of the proceeding the latter moved to dismiss the proceeding on the
ground that he had not been properly and duly notified of the contest as
required by section 578 of the Administrative Code. Upon the hearing of the
motion the court found as the facts of the case that Teofilo Libre was duly
proclaimed elected municipal president of Toledo, Cebu, at the elections held on
the 5th of June, 1916. Thereupon the defeated candidate, Francisco Villaestar,
plaintiff in this action, proceeded to contest the election of Libre in the
regular way. The contest was filed on the 17th day of June, 1916. The notice of
the hearing of the motion bears date the 14th of June, 1916. Notice of the
contest was given to Libre, and he acknowledged service of the same, on the 16th
day of June, 1916.

From these facts it will be observed that, while notice of the contest was
served on the respondent Libre on the 16th day of June, the contest was not
filed in the Court of First Instance until the following day, the 17th of June;
and that the notice served on the respondent bears date the 14th of June. The
court dismissed the proceeding on the motion of Libre based upon these facts,
upon the ground that at the time the notice was served on the respondent there
was no contest pending; in other words, that no contest had been instituted as
required by law and that, accordingly, the notice was not a notice of or in a
pending proceeding. The court argued that the notice was merely a notice of
something which contestant proposed to do, of a proceeding which he intended to
institute in the future; and that, it being impossible under the election Law to
give notice of the pendency of a contest to be filed in the future, the notice
to the respondent produced no legal effect and the court acquired no
jurisdiction to proceed with the contest.

We doubt the correctness of the decision of the trial court. While the
reasoning of the court has some elements of merit we do not believe that it is
conclusive. We do not believe that the failure to file the contest prior to the
giving of the notice vitiates the notice of contest and the service thereof
provided the contest is actually filed within a reasonable time after the
service of the notice. It is true, as the trial court argues, that a contestant
ought not to be permitted to give notice of a contest not yet filed, with all of
the resulting effects on the respondent naturally flowing therefrom, as such a
proceeding might permit a supposed contestant to cause the person elected to the
office contested a good deal of trouble and expense without himself incurring
the responsibilities which, under the law, accompany the filing of an election
contest. But where, as a matter of fact, the contest is filed immediately after
the service of the notice of contest, or within such time as shows the good
faith of the contestant and produces no prejudice to the respondent, we do not
believe the reasoning would apply. Of course, it is always best to follow the
steps required to be taken in an election contest logically and in sequence; but
when a slight departure is made therefrom and no prejudice results to the
respondent thereby we do not believe that such departure is fatal to the rights
of the contestant.

The contest having been erroneously dismissed on a preliminary objection, and
the contestant having, accordingly, been deprived of his day in court without
sanction of law, he is entitled to a mandamus to compel the court to take
cognizance of and go forward with the contest.

It is therefore adjudged that the plaintiff is entitled to the relief
demanded in the complaint; and it is hereby adjudged that a writ of mandamus
issue from this court directed to the Court of First Instance of the Province of
Cebu requiring it to take cognizance of and proceed with the election contest
referred to in the complaint in this action and entitled Francisco Villaestar
vs. Teofilo Libre and others, formerly pending in that court. No costs.
So ordered.

Torres, and Araullo, JJ., concur.

Trent, J., concurs in the result.

CARSON, J.:

I reserve my vote.