JOSE EMPEMANO ET AL., PLAINTIFFS AND APPELLANTS, VS. GREGORIO CABUNIAG ET AL., DEFENDANTS AND APPELLEES.

Plaintiffs
took this appeal from the decision of the lower court in civil case No.
3762 of the Court of First Instance of Tayabas, which absolved
defendants from the complaint filed therein whereby the former sought
to have declared null and void the judgment rendered by the justice of
the peace court of Candelaria, Tayabas, on June 12, 1933 in Civil case
No. 883; the order thereafter issued by said court for the execution of
the aforesaid judgment; and the sale at public auction of the five
parcels of land belonging to plaintiff by the sheriff of the Province
of Laguna on September 18, 1938 for the purpose of paying with the
proceeds of the sale the amount of said judgment which was for P195,
plus interest and costs, including the penalty of P50 for attorney’s
fees. Appellants assigned the following as errors committed by the
lower court:

“1. In holding that all the
defendants surnamed Empemano in civil case No. 383 of the justice of
the peace court of Candelaria, Tayabas, who are all minors, were duly
served with summons as required by law;

“2. In holding that all of said defendants were duly represented at the trial in the justice of the peace court.”

The facts which may be gathered from the decision appealed from are
briefly as follows: Plaintiff Asuncion Beredo is the widow of Patricio
Empemano and the other plaintiffs are their minor children. Patricio
Empemano, in life, became indebted to the defendant Gregorio Cabuniag
in the amount of P195 for the consideration stated in the document
executed in Tagalog on April 30, 1931, which, translated into English,
says:

“I received from Mr. Gregorio
Cabuniag, the sum of One Hundred and Ninety-five Pesos (P195)
Philippine Currency, which I will pay with my own coprax every period
of kilning before the 31st of December, 1931, and failure on my part to
comply will make me liable to the said Mr. Gregorio Cabuniag, for
damages, attorney’s fees, and costs of suit, if resort to the court
will be had.

“Candelaria, Tayabas, April 30, 1931

(Sgd.) “PATRICIO EMPEMANO

“P195.500”

Patricio Empemano not having paid the account aforementioned before his
death, Gregorio Cabuniag, his creditor, attempted to collect the same
from the defendants in said case No. 383 of the justice of the peace
court of Candelaria, Tayabas, who are the plaintiffs and appellants in
this case. Although the question that defendants were not duly served
with copies of the complaint was raised in that case, the justice of
the peace court proceeded to take cognizance of the same, declaring all
the defendants in default and sentencing them to pay plaintiff the sum
of P305.

In order to acquire jurisdiction over the persons
of the defendants surnamed Empemano, the justice of the peace court
appointed Asuncion Beredo as guardian ad litem of the other
five defendants because it knew that, with her exception, all were
minors. It is a fact, however, that she never accepted the appointment.
On the contrary, it appears in the return made by the sheriff that when
he tried to deliver to her a copy of the summons together with copies
of the complaint for each and every one of her codefendants, she
refused to receive the same, saying that she would have to consult
first a person who might be able to inform her.

It is true
that the law (section 396 of Act No. 190) allows, in the cases in which
a minor is defendant, the service of summons upon him by the sheriff
through delivery by the latter of the corresponding copies of the
summons to the minor himself, to his father, or his mother, or his
tutor, if he has one, and if not, to the person under whose care said
minor lives, whenever the latter is thirteen years of age or older.
Nevertheless, in order that a minor may have capacity to sue or be
sued, it is necessary that he be assisted by a guardian ad litem
or a tutor who may properly and adequately protect and defend his
rights. This, however, is not the case before us for while it is true
that the person named by the justice of the peace as guardian ad litem
of the defendants surnamed Empemano in the said case was their own
mother, she, however, does not have the requisite preparation or
knowledge to protect and defend their interests and rights. Moreover,
not having accepted the office to which she was named, the fact that
the sheriff may have delivered to her the copies of the complaint for
each of the defendants is of no importance. But this is not all. The
most serious error committed by the lower court in affirming the
decision of the justice of the peace court of Candelaria, Tayabas, was
when it sanctioned a procedure not allowed by law, namely, the bringing
of an action in the latter court for the recovery of a debt of a
deceased person against his widow and minor children. The law provides
that money claims against a deceased person should be presented in the
intestate or testate proceedings of such person, whichever may have
been commenced (sections 642, 685 to 690, and 695 of Act No. 190).

In view of the foregoing, the decision appealed from is reversed and
the summons issued by the justice of the peace court of Candelaria,
Tayabas to the appellants in case No. 883 of said court; the judgment
rendered against the latter in that case; the writ of execution issued
therein; and the sale made by the sheriff by virtue of said judgment
and writ of execution are hereby declared null and void, with costs
against the appellees. So ordered.

Avanceña, C. J., Villa-Real, Imperial, and Laurel, JJ., concur.