MODESTO YUMUL, PROTESTANT AND APPELLANT, VS. GREGORIO PALMA, PROTESTEE AND APPELLEE.

This is an appeal taken by the protestant Modesto Yumul from
the order of the Court of First Instance of Tarlac granting the motion of
dismissal made by the protestee Gregorio Palma, and dismissing the protest with
costs against the protestant on the ground that the court lacked jurisdiction to
try the case.

In support of his appeal, the protestant assigns the following
alleged errors as committed by the lower court in the appealed order, to wit:

“1. The court below erred in disclaiming jurisdiction over the
motion of protest simply because no expression or indication is contained
therein to show that said motion of protest was filed within the legal period,
that is, within two weeks after the proclamation of the appellee.

“2. The court below likewise erred in holding it unnecessary to
discuss the allegations made in the motion of protest concerning the violation
of the secret of the ballot, for lack of jurisdiction thereof, and also in
holding that, at first sight, they cannot give rise to the nullity of the Votes
cast, but at most and in any case, only to criminal liability for the election.”

The pertinent facts necessary for the solution of the questions
raised by the appellant in his brief are as follows:

On June 25, 1928 Modesto Yumul filed the following motion of
protest with the Court of First Instance of Tarlac:

“Comes now the undersigned protestant, and to the Honorable
Court respectfully shows:

“That the protestant and the protestee are of age and reside in
the municipality of Concepcion, Province of Tarlac Philippine Islands, who,
having presented their respective certificates of candidacy within the required
period, were the only registered candidates voted for the office of municipal
president of the aforesaid municipality and province, at the general elections
held on June 5, 1928.

“That the municipal board of canvassers, acting in such a
capacity, certified in its resolution that the protestee is the municipal
president elect with 906 votes in his favor as against 707 in favor of the
protestant, but that in reality the latter, the protestant, should have received
a greater number of votes had it not been for the fraudulent anomalies and
machinations committed by the protestee and his partisans in election precincts
Nos. 6 and 7, for which reason the protestant contests the election of the
protestee on the following grounds:

“1. That in precinct No. 6 (barrio of Balas), the members of
the board of inspectors, acting in collusion with the partisans of the
protestee, all of whom are men of influence in that barrio, with the deliberate
purpose of obtaining a greater number of votes for the protestee, allowed and
permitted the latter’s said partisans to enter the booths in order to
electioneer, watch and see what the voters were writing; the said inspectors
also allowed and permitted said partisans of the protestee to see and read the
ballots of the electors who had not been accompanied by them at the time of
casting their votes before said votes were deposited in the ballot box, and thus
knew the candidate for whom said electors voted; therefore, the protestant
alleges that the 160 votes obtained by the protestee in said precinct No. 6, are
not the true expression of the will of the electors.

“2. That in election precinct No. 7 (barrio of Santa Monica)
the members of the board of inspectors together with the protesters partisans,
entered the booths to electioneer, watch and see what the electors wrote, thus
assuring a greater number of votes for the protestee, and the protestant
therefore, alleges that the 125 votes obtained by the protestee in said precinct
No. 7, likewise are not the true expression of the will of the electors.

“3. That if the elections held in precincts Nos. 6 and 7 above
mentioned are declared void upon the facts alleged in this motion, the result
would be that the herein protestant and not the protestee would have the greater
number of votes.

“Wherefore, the protestant respectfully prays the honorable
court:

“(a) To fix the bond to be filed by the protestant;

“(b) That
the municipal secretary of Concepcion, Tarlac, be ordered to forward immediately
to the court, the election lists, election returns, records, registers and other
papers used in precincts Nos. 6 and 7 in addition to the minutes or resolution
of the municipal board of canvassers with respect to the office of the municipal
president for their examination by the court in due time;

“(c) That judgment be rendered annulling the election held in
election precincts Nos. 6 and 7, and in consequence that the plurality of votes
be adjudicated to the protestant for the office of municipal president of
Concepcion, Tarlac, after notifying the municipal board of canvassers of said
municipality, and the interested parties of such decision of the court, with
costs against the protestee; and

“(d) That the provincial sheriff of Tarlac be ordered to summon
and notify the protestee immediately, delivering a copy of this motion to him;
and that the date for the hearing of said proceedings be set within the legal
period.

“Concepcion, Tarlac, June 25, 1928.

“MODESTO YUMUL
“Protestant
“Concepcion, Tarlac

“That I, Modesto Yumul, the protestant in this motion of
protest, after being duly sworn, depose and say: That I have tead the foregoing
motion and that everything alleged therein is true and correct, to the best of
my knowledge and belief.

“Tarlac, Tarlac, June 25, 1928.

“MODESTO YUMUL
“Protestant

“Subscribed and sworn to before me on this twenty-fifth day of
June, 1928. Affiant exhibited his cedula certificate No. F-1766284, issued in
Concepcion, Tarlac, on April 11, 1928.

“VlCTORIANO V. VALLE
“Clerk of Court“

On July 12, 1928, the protestee filed in the same court a
niotion for the dismissal of the protest on the following grounds: “(1) This
honorable court lacks jurisdiction over the case, the motion of protest failing
to allege facts necessary to confer jurisdiction; and (2) the motion of protest
does not allege facts sufficient to constitute a cause of action.”

Passing upon the preceding motion for dismissal, the lower
court issued the order from which this appeal was taken.

In the case of Ferrer vs. Gutierrez David and Lucot (43 Phil.,
795), this court laid down the following doctrine:

“2. ID.; FACTS ESSENTIAL TO CONFER ON A COURT JURISDICTION TO TAKE COGNIZANCE OP AN ELECTION CONTEST.—Sections 44 and 45 of Act No. B030,
amending sections 479 and 481 of the Election Law, and referring to contested
elections for any office in general and the procedure for such cases in court,
show the essential facts that confer jurisdiction upon the court to hear and
determine such kinds of causes, to wit: (a) That the protestant has duly
registered his candidacy and received votes in the election (Tengco vs. Jocson,
43 Phil., 715); (b) that the protestee has been proclaimed elected in said
election (Manalo vs. Sevilla, 24 Phil., 609); (c) that the motion of protest be
filed within two weeks after such proclamation (Navarro vs. Veloso, 23 Phil,
625; Manalo vs. Sevilla, supra; Hontiveros vs. Altavas, 39 Phil., 226); (d) that
all the candidates registered and voted in the election were properly notified
of the protest within twenty days following its filing; (e) that the notice be
served by the sheriff or his deputy in the manner prescribed by the law, failing
which, that the notice be published in a paper of general circulation in the
locality or by notices posted in conspicuous places of the town as may have been
ordered by the court.

“3. ID.; SUFFICIENCY OF PROTEST.—As regards the protestant, an
election protest is sufficient if the facts enumerated in clauses (a), (b), and
(c) of the preceding paragraph are alleged.”

In the case of Nisperos vs. Araneta Diaz and Flores (47 Phil.,
806) this court also laid down the following doctrine:

“ELECTIONS; ELECTION PROTEST; TIME FOR FILING OF; JURISDICTION; PLEADINGS.—The omission of the contestant to allege in his protest the fact
that the same was filed within the period fixed by the law does not prevent the
court from acquiring jurisdiction over the subject matter, if it appears in the
record that it was really presented within the period fixed by the law.”

It will be seen that in both cases it was held essential that
the motion of protest be filed within the two weeks following the proclamation
of the elected candidate and that such fact appears in the motion of protest,
either expressly or by implication. The legal provision that motions of protest
be filed within the two weeks following the proclamation of the elected
candidate is mandatory, and in contrast to the provisions of law upon the
prescription of ordinary actions, this defense of prescription of action cannot
be waived, so that if the protestant does not file his motion of protest within
said time, but afterwards, the court does not acquire jurisdiction over it, even
if the protestee does not plead said defense (37 Corpus Juris, 720, par. 40).
Therefore, since the period fixed by the law for the filing of a motion of
protest is a jurisdictional provision, the fact that said motion was filed
within such period must in some way appear in the motion of protest.

The
motion of protest quoted above does not show the date of the proclamation but
only the date on which the general elections were held. It appears, it is true,
that said motion was filed on April 25, 1928; but that fact alone does not
enable the court to determine whether the motion was filed within the two weeks
following the proclamation and whether it acquired jurisdiction to take
cognizance of it.

Therefore, since the motion of protest does not show either
expressly or by implication that it was filed within the two weeks following the
date of the proclamation of the elected candidate, the lower court did not
acquire jurisdiction over said motion of protest by its mere presentation, and
said court did not err in dismissing it for lack of jurisdiction.

Having arrived at this conclusion we deem it unnecessary to
discuss the second assignment of error.

In view of the foregoing, we are of opinion and so hold that
since it is a mandatory provision of law that an election protest must be filed
within the two weeks following the date of the elected candidate’s proclamation,
the compliance of such mandate is jurisdictional and must appear either
expressly or by implication in the motion of protest filed to that effect, and
its omission prevents the court where it is filed from acquiring jurisdiction
over it.

By virtue thereof, not finding any error in the appealed order,
the same is affirmed in all its parts, with costs against the appellant. So
ordered.

Avanceña, C. J., Johnson, Malcolm, Villamor, Ostrand, and
Romualdez, JJ., concur.
Street, J., reserves his vote.