CARLOS VILLANUEVA, PETITIONER, VS. THE HONORABLE EMILIO ARANETA DIAZ, JUDGE ON DUTY OF THE COURT OF FIRST INSTANCE OF LA UNION, AND ARNULFO QUEZADA, RESPONDENTS.

The
purpose of this mandamus proceeding is to have an order issued by this
court, directing the respondent judge of the Court of First Instance of
La Union to reinstate the election protest presented by the petitioner
against the other respondent, Quezada, who had been proclaimed as
president elect of the municipality of Santo Tomas, La Union, and to
determine, after the proper proceedings, the merits of said protest in
accordance with law.

The petitioner alleges: (1) That on
July 15, 1925, he filed a motion, contesting the election of the
respondent as municipal president of the municipality of Santo Tomas,
La Union; (2) that by order of the lower court, the contestant gave a
bond on the 16th of the same month; (3) that on July 2, 1925, the
respondent Quezada filed a general denial against the motion of
protest; (4) that on July 13 of the same year, the respondent judge,
upon the motion of the other respondent Quezada, dismissed the motion
of protest; (5) that said order of dismissal is erroneous, illegal and
against the law, for the very reason that the pleadings of record show
that the motion of protest was presented within the time prescribed by
the law; (6) that the petitioner has no other expedient and legal
remedy in the ordinary course of law, except this mandamus proceeding.

To the foregoing complaint, the respondent filed a demurrer, alleging
that the facts therein set forth do not constitute a cause of action,
justifying the issuance by this court of the mandamus applied for.

It is a fact admitted by both parties in this proceeding that the
respondent judge dismissed the protest in question on the ground that
it was not alleged in the protest that the same was presented within
the legal period, nor was any evidence presented of this fact.

In his order dated July 13, 1925, the respondent judge, among other things, says:

“When
the case was called for trial, the attorney, for the protestant
presented evidence about the certificate, Exhibit A, of the municipal
board of canvassers stating the votes cast for municipal offices; about
the certificate of candidacy of the protestant, Exhibit B; a
certificate, Exhibit C, of the municipal secretary of Santo Tomas,
giving the names of the candidates who had filed their respective
certificates of candidacy for the different municipal offices of said
municipality; the proclamation of those elected for the municipal
offices of said municipality (Exhibit D); and the summons served upon
the respondents by the sheriff (Exhibit E). After the introduction of
this evidence the protestant rested, and the attorneys for the
respondent Arnulfo Quezada moved for the dismissal of the case on the
ground that the date of the filing of the protest was not proven, nor
was the date when the bond was given, which facts are jurisdictional
according to the protestee.

“The law provides that protests
of this nature must be presented within two weeks after the
proclamation of the candidates (sec. 479 of the Election Law, as
amended); it says nothing about the giving of the bond (sec. 482 of the
same law). An examination of the protest will show that there is not in
it any allegation that it was presented within the legal period above
mentioned, nor was any evidence introduced of this fact. About this
contention of protestee’s counsel, the attorney for the protestant
argues that there appeared stamped on the motion of protest a mark
which says ‘Court of First Instance, Received June 15, 1925, San
Fernando, La Union, P. I.’ and this shows that this protest was
presented on the date stated in said stamp. Upon this point the
protestant has not shown who uses this stamp, nor was the clerk of this
court presented to prove that it was he who received this protest on
the date of June 15th of this year stated in said stamp. Nor is there
in the protest any allegation that the same was filed within the legal
period.

“In view of the absence of this proof, the court
holds that the protestant has not proven the date of the filing of this
protest, and this proof being a fact essential for this court to
acquire jurisdiction in election contests, this protest is dismissed
with the costs against the contestant.”

As
the question involves a ruling of the lower court in a municipal
election contest wherein no appeal is allowed under the Election Law,
the protestant has come to this court through a mandamus proceeding.

“It
is a well recognized rule that where the performance of an official
duty or act involves the exercise of judgment or discretion, the
officer cannot ordinarily be controlled with respect to the particular
action he will take in the matter; he can only be directed to act,
leaving the matter as to what particular action he will take to his
determination. * * * ” (18 R. C. L., p. 124.)

But “if there is an arbitrary abuse of discretion, the courts recognize
that this is an exception to the general rule, and mandamus may issue
if there is no other adequate remedy, though the result is that the
court is called upon to review the exercise of a discretionary power.
As has been said in this connection it is not accurate to say that the
writ will not issue to control discretion, for it is well settled that
it may issue to correct an abuse of discretion, if the case is
otherwise proper. * * * ” (Id., p. 126.)

The reinstatement
of a cause has been held to be the exercise of a judicial function not
controllable by mandamus, an appeal generally lying where a justice has
wrongfully dismissed an action. So, it has been ruled, the dismissal of
proceedings for want of prosecution is discretionary with the court
before which the proceedings are pending, and a writ of mandamus will
not issue for the reinstatement thereof unless manifest injustice would
otherwise result. Nor, it has been held, will mandamus lie to compel a
court to reinstate a cause dismissed on the ground that the record
brought up was not submitted in the form prescribed by the rules of
court. On the other hand, it has been held that mandamus to compel the
reinstatement of a case erroneously stricken from the docket may be
issued to an inferior court by a supreme court in the exercise of its
general power of superintending control, but no order will be made as
to what decision the court shall render as to any question involved, or
as to the course it shall pursue in disposing of the cause. Thus, it
has been ruled, under its supervisory jurisdiction, an appellate court
has the authority to instruct a court of original jurisdiction to
reinstate a case dismissed on the ground and for the alleged reason
that the court is without jurisdiction, if it be manifest that the
court has jurisdiction, and the same power of general supervision over
inferior courts will be exercised to compel the reinstatement and trial
of a case, dismissed by the inferior court on the ground of
insufficiency in the pleading, where no appeal is possible. Where the
rights of a person beneficially interested in a suit would be
prejudiced by a dismissal by the plaintiff of record, mandamus will lie
to reinstate the case in the absence of another adequate remedy. (18 R.
C. L., pp. 312-313, par. 256.)

In the case of Nisperos vs. Araneta Diaz and Flores, R. G. No. 24552, recently decided by this court (September 10, 1925, p. 806, ante)
we have held, in the first place, that the time for filing a protest is
a matter of judicial record and the lower court having said record
under its control may determine by itself whether or not the protest
was presented within the legal period, irrespective of any allegation
that may be made in the protest relative to the time of the filing
thereof; and secondly, that the omission of the allegation relative to
the filing of the protest is not necessarily fatal to the protestant,
even under the doctrine laid down in Ferrer vs. Gutierrez David
and Lucot (43 Phil., 795), for the courts must not, upon a mere
technicality, shut their eyes to the reality. And in the body of the
opinion in the Nisperos case, supra, we said:

”
* * * What the law requires is that the protest should be filed with
the court within the legal term. It having been, as it is admitted in
the instant case by the respondent that the protest was presented
within the legal period, there can be no sufficient ground for raising
this question. If it is indisputable that the protest in question was
presented to the court within the legal period, then this essential
fact exists, which gives the court jurisdiction to try and decide said
protest.”

In the case of Ancheta and Aguilar vs. Judge of First Instance of La Union and Verceles (40 Phil., 73), these questions were raised: (a) Whether or not the bond was filed in due time; (b) whether or not the law authorized the judge to dismiss said protest; and (c)
whether or not mandamus should issue to compel the respondent judge to
reinstate said protest, and proceed to decide the questions at issue.
This court, after examining sections 479 and 482 of the Administrative
Code, rendered a per curiam decision, holding:

“While
the law prohibits the court from entertaining a motion of protest in
election cases, until the protestant gives a bond in amount to be fixed
by it, the bond need not be given within the time fixed for filing the
motion of protest. The bond may be given within a reasonable time after
the amount is fixed by the court.

“After the court has
acquired jurisdiction of an election protest by the presentation of the
motion of protest within time and proper notice is given and the bond
has been filed, it deprives the protestant of his right to be heard
upon the merits of his cause by dismissing the protest and mandamus
will issue to compel a reinstatement of the same and a hearing upon the
merits.”

In the case of De Castro vs. Salas and Santiago (34 Phil., 818), this court, in ordering and decreeing the issuance of the mandamus applied for, said:

“The
respondents further argue that the Court of First Instance having
jurisdiction in the premises to consider the questions presented by the
petitioner in his ‘motion,’ it had jurisdiction to decide all of the
questions presented. That contention is true if we limit his
jurisdiction to hear and determine questions presented upon their
merits. But when it is alleged that the court refused to consider the
questions upon their merits and erroneously dismissed the action upon a
construction of some question of law or of practice preliminary to a
final hearing, we have an entirely different question presented. No
rule of law is better established than the one that provides that
mandamus will not issue to control the discretion of an officer or a
court, when honestly exercised and when such power and authority is not
abused. A distinction however must be made between a case where the
writ of mandamus is sought to control the decision of a court upon the
merits of the cause, and cases where the court has refused to go into
the merits of the action, upon an erroneous view of the law or
practice. If the court has erroneously dismissed an action upon a
preliminary objection and upon an erroneous construction of the law,
then mandamus is the proper remedy to compel it to reinstate the action
and to proceed to hear it upon its merits. * * * “

Applying the doctrines cited in the case at bar, it seems to us clear
that the respondent judge, in refusing to take cognizance of the
protest in question, and dismissing it on the ground that the date of
the filing of the same had not been proven, has committed an abuse of
discretion in rejecting as evidence the stamp of the lower court marked
on the same protest, indicating the date when the same was filed. The
original protest filed in the clerk’s office is a part of the court’s
record, and when it appears from said stamp of the court that it was
presented within the legal period, there is every presumption in favor
of the proposition that it was really presented within that period, and
the party attacking said presumption has the burden of proof that the
stamp of the lower court has been unduly marked on the protest. When
from the record there appears “Court of First Instance, Received June
15, 1925, San Fernando, La Union,” there is no need of requiring the
protestant to present any further evidence of this fact.

For
all of the foregoing, it must be ordered and decreed that a writ be
issued from this court ordering the respondent judge, the Honorable
Emilio Araneta Diaz, to annul and set aside the order entered by him
dismissing the motion of the protestant, to reinstate said case and to
proceed with the trial thereof upon the merits and decide the same in
accordance with law. No special finding as to costs is made. So ordered.

Avanceña, C. J., Johnson, Street, Malcolm, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.