MANUEL DE LEON, PETITIONER, VS. VICENTE NEPOMUCENO, JUDGE OF FIRST INSTANCE OF TARLAC, AND SANTIAGO DE JESUS, PROVINCIAL SHERIFF, RESPONDENTS.

Judgment for costs was rendered in the Court of First Instance of Tarlac in
an election contest proceeding in the following terms:

“Las costas y gastos de la protesta se pagaran por el protestado y
tercerista. (The costs and expenses of the contest will be paid by the protestee
and the intervener.)”

The judgment entered in these contest proceedings was appealed to this court
and in due course the judgment, including the provision for the payment of costs
and expenses of the contest, was affirmed- The record was returned to the Court
of First Instance of Tarlac and upon its return the judgment became final.

Petitioner, the protestee, alleges that the sheriff of the Province of
Tarlac, with the express approval of the respondent judge of the court of first
instance of that province, is proceeding to enforce the above-cited judgment
against him as though it were a “joint and several” judgment for costs and
expenses and not merely a “joint” judgment, and petitioner prays that the
respondent be restrained from all further attempts to enforce the judgment for
costs as a “joint and several” judgment.

To the petitioner’s prayer for
relief the respondents demur, and in the course of the argument in support of
the demurrer various questions have been raised as to the nature and extent of
the authority of the courts to tax costs and expenses in election contests. It
is urged on the one hand that, when third persons are brought into election
contest proceedings by notice, the court may tax costs against them in like
manner to that in which costs are fixed against the losing parties in other
actions. On the other hand, it is contended that, when third persons are brought
into election contest proceedings by notice, the question of their liability for
costs depends wholly upon their conduct thereafter; and it is said that if they
decline to exercise their right to intervene, or if in fact they do not
voluntarily take any part in the proceedings the court should not tax any part
of the costs against them.

So also conflicting contentions have arisen in the course of the discussion
as to whether, in the event that such third persons do in fact intervene and
take an active part in the election contest, the court should tax the costs
jointly and severally against all the losing parties, or in proportion to the
costs and expenses resulting from their respective activities, or upon such
other basis as the particular circumstances of the case would seem to
require.

We are of opinion, however, that it is not necessary for us to consider or
decide any of those contentions at this time. The only question before us is
whether the judgment actually entered by the court below and affirmed upon
appeal is or is not a “joint and several” judgment. If it is “joint and several”
the petitioner has no cause of action in support of his prayer for relief from
its enforcement by the levy of execution upon his goods. If it is not a “joint
and several” judgment, and if, as the petitioner contends, it is merely a
“joint” judgment, he is clearly entitled to relief from any attempt in the court
below to enforce it as a “joint and several” judgment.

It is admitted by the demurrer, and clearly appears from the record that the
judgment has become final and unappealable. The parties cannot, therefore, be
heard at this time to urge that, under the law of the facts, some other judgment
should have been entered than that which was in fact entered, and which has long
since become final and unappealable. Contentions of this kind, if well founded,
should have been advanced while the judgment was open for reconsideration in the
court below, or while the record was before us on appeal. (Cf. Ruling upon
supplemental motion in Manila Railroad Co. vs. Alano, 36 Phil. Rep.,
500.)

Examining the language d¥ the judgment for costs, which is set out in the
foregoing statement of facts, it is manifest that it is merely a joint judgment
against the protestado y tercerista, and does not permit of construction or
interpretation as a “joint and several” judgment. No argument is necessary. It
is sufficient to cite here articles 1137 and 1138 of the Civil Code as to the
rule in this jurisdiction.

“Art. 1137. The concurrence of two or more creditors, or of two or more
debtors, in a single obligation, does not imply that each one of the former has
a right to ask, nor that each one of the latter is bound to comply in full with
the things which are the objects of the same. This shall only take place when
the obligation determines it expressly, being constituted as a joint and several
obligation.

“Art. 1138. If from the context of the obligation referred to in the
preceding article, any other thing does not appear, the credit or the debt shall
be presumed as divided in as many equal parts as there are creditors or debtors,
and shall be considered as credits or debts, each one different from the
other.”

“A joint obligation under the law of Louisiana binds the parties thereto only
for their proportion of the debt, whilst a solidary obligation, on the contrary,
binds each of the obligors for the whole debt.” (Groves vs. Sentell, 14
Sup. Ct., 898, 901; 153 U. S., 465; 38 L. Ed., 785.)

From what has been said, it is manifest that the demurrer must be overruled,
and that unless the respondents file an answer within ten days from the entry of
this opinion (which we do not anticipate) judgment should be entered securing to
petitioner the relief to which he is entitled upon the facts disclosed by the
petition.

Unless an answer is filed within ten days from the entry of this order, let
judgment be entered dissolving the preliminary injunction heretofore allowed in
these proceedings, and directing the respondents to refrain from any further
measures looking to the enforcement of the judgment for costs and expenses in
the election contest proceedings had in the Court of First Instance of Tarlac,
wherein Ernesto Gardiner was protestant, and Manuel de Leon was protestee, and
Cecilio Torres was cited to appear as intervener or tercerisia, as a “joint and
several” judgment for costs and expenses, and directing the respondent judge to
enter such orders as may be convenient or necessary to revoke and set aside any
order or orders heretofore entered in the Court of First Instance of the
Province of Tarlac looking to the enforcement of that judgment as a “joint and
several” judgment. The costs of these proceedings will be taxed against the
respondent sheriff, Santiago de Jesus. So ordered.

Arellano, C. J.,
Torres, Araullo, and Street, JJ., concur.

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MALCOLM, J., concurring:

The majority decision says only that this court will not disturb a certain
judgment entered by a Court of First Instance and affirmed upon appeal by the
Supreme Court. For fear that what is found in this decision may be taken as
indicating approval of such a judgment, I am constrained to explain my views
regarding the fixing of costs in election contests.

The facts herein are simple. Three candidates for provincial governor of
Tarlac. De Leon declared elected. Contest by Gardiner against De Leon with
notice to the third candidate Torres. Gardiner wins. Expenses and costs taxed.
It is found that Torres, the third candidate, is insolvent. The point, as
resolved by this court under certiorari and injunction proceedings, is that De
Leon is only liable under a “joint” judgment.

The law is plain. An election contest is a special, summary proceeding. It is
not an “action” as we think of this term in pleading and practice. The Election
Law provides within itself a complete procedure for the determination of
election contest. Sections 481 and 482 of the present Administrative Code state
explicitly how the costs shall be taxed. Although the practice in election
contests is well known, let us elucidate succinctly.

The contest of an election is begun by motion with notice. This is exactly
what Gardiner, the protestant, did in an endeavor to obtain possession of the
office of provincial governor. Torres, the third candidate, was merely an
unwilling party to the action. In reality, he was not technically a party to the
contest nor an intervener in the proceedings. Before the court could entertain
this motion, the party making the motion, i. e. Gardiner, was required to give
bond in an amount fixed by the court with two sureties satisfactory to it
“conditioned that he will pay all expenses and costs incident to such motion.”
The protestant is also permitted to deposit cash in lieu of such bond. If,
therefore, Gardiner had been unsuccessful, provision was made for the paying of
the costs by him. The law also looks after the opposite possibility. Thus, it is
provided that “if the party paying such expenses and costs shall be successful,
they shall be taxed by the court and entered and be collected as a judgment
against the defeated party.” This language is easily understandable. There
can be no question as to who or what is meant by “defeated party.” The person in
office, in this case De Leon, who is ousted, is the defeated party. The law thus
provides how the costs shall be paid if the protestant is unsuccessful, and how
they shall be paid if the protestant is successful. In neither instance is a
third party candidate involved. Suppose for example that in this particular
contest instead of Torres, the third candidate being found to be insolvent, it
had happened that De Leon was found to be insolvent, the result would be that
Torres, a candidate who received a few complimentary votes, who was brought into
the contest only by notice, and who had no chance of being declared elected,
would have been forced to pay all the costs of the proceedings.

The fixing of costs in election contests is therefore not a question of joint
or several liability or of joint liability, but is simply an application of the
precise provisions of the law to the facts.