EMILIANA MORTEEA VIUDA DE CALVO, PLAINTIFF AND APPELLANT, VS. THE CITY OF MANILA; JUAN POSADAS, JR., AS MAYOR OF SAID CITY; HIS EXCELLENCY MANUEL L. QUEZON, AS ACTING SECRETARY …

The question raised by the two motions for
reconsideration filed by the Solicitor-General on February 17, and
March 5, 1937, and the plaintiff’s opposition of February 23, 1937, is
whether or not the court’s resolution of February 12th of said year,
permitting the substitution in this case of the former Acting Secretary
of the Department of Public Works and Communications, His Excellency
Manuel L. Quezon, by the permanent Secretary, Honorable Mariano Jesus
Cuenco, should be sustained. The plaintiff asked for said substitution
and the Solicitor-General contends that it was and is improper because,
no appeal having been taken in time from the lower court’s decision
dismissing the case as against His Excellency, Manuel L. Quezon, as
Acting Secretary of the Department of Public Works and Communications,
said case should necessarily be considered terminated as to him.

For the resolution of the question, it is necessary first to
state, even briefly, the facts alleged in the complaint and the grounds
of the demurrer interposed by the Mayor of the City of Manila and of
the motion to dismiss the case as against the Secretary of the
Department of Public Works and Communications, filed in a special
appearance by the Solicitor-General in representation of the latter.

The case referred to a complaint filed by the appellant to compel the
Honorable Juan Posadas, jr., as Mayor of the City of Manila, His
Excellency Manuel L. Quezon, as Acting Secretary of the Department of
Public Works and Communications since he was so at the time of the
filing of said complaint (July 10, 1936), and the Honorable Jaime
Hernandez, as Auditor-General of the Philippines, to comply with the
alleged contract entered into by said plaintiff-appellant on the one
hand, and the defendants on the other, relative to the payment to the
plaintiff-appellant of the assessed value of her land (P38,938),
situated at the extension of the so-called Muelle del Banco Nacional
Filipino, which the City of Manila had bound itself to expropriate to
be able to carry out an improvement consisting in a wharf at said
extension. The preliminary steps leading to what the plaintiff
considers as a contract entered Mo between herself and the defendants
consisted in: (1) her offer to construct the proposed improvement upon
payment to her of the six of P12,000 by the Government; (2) the
endorsements of the Director of Public Works and of the City Engineer
of Manila favorable to the plaintiff; (3) the recommendation of the
Secretary of the Department of Commerce and Communications, which later
became the Department of Public Works and Communications; to the
auditor; and (4) the auditor’s recommendation to the then
Governor-General that the plaintiff be paid the assessed value of her
land, provided she ceded it to the City of Manila for public purposes
without asking for anything else. The Governor-General approved the
recommendation and, on January 28, 1933, permitted that the money to
pay for the plaintiff’s land be taken from the funds appropriated by
Act No. 2908. The plaintiff, who very willingly accepted the auditor’s
recommendation, as approved by the Governor-General, wrote her letter
of May 5, 1933; addressed to said auditor, to cede to the Government
of the City of Manila the portion; of her land necessary for the
extension of the wharf of the Philippine National Bank, on condition
that she be paid the assessed value thereof, assuring that she would
ask no indemnity for the improvements thereon. The plaintiff did so
upon the belief that the Mayor of the City of Manila would recommend
the appropriation of the funds necessary to pay her before the end of
the year 1934, having been made to understand by the city engineer
that she would be paid if not in 1933, at least in the following
year.;: As the authorities called upon to act thereon did nothing either
in 1934 or later, the plaintiff then went to the Secretary of the
Department of Public Works and Communications to ask him to set aside
from the gasoline funds allotted to the City of Manila the necessary
amount to pay her the value of her land; but by reason of the mayor’s
opposition, said department took no action, notwithstanding the
favorable recommendation of the Director of Public Works. When His
Excellency Manual L. Quezon, took charge of the Department of Public
Works and Communications as Acting Secretary, the plaintiff again
sought the allotment of the amount necessary to pay her the value of
her land in question. She then alleged, as she reiterated in her
complaint, that the Secretary of the Department of Public Works and
Communications had funds available for the construction of streets in
organized cities; that the City of Manila was then claiming said funds
and that, if they were turned over to it without first setting aside
the amount necessary to pay her, the judgment to be rendered in her
favor would be frustrated. Basing her opinion principally upon the
foregoing facts, the plaintiff prayed that her alleged contract with
the auditor be complied with; that the Mayor of the City of Manila set
aside the sum of P38,938 from the city funds to pay her the value of
her land; that in case the city has no funds for said purpose, the
Secretary of the Department of Public Works and Communications, who was
then His Excellency Manuel L. Quezon, provisionally, set aside the
necessary amount from the funds provided in Act No. 3992; that the
auditor be ordered to certify payment of said sum of P38,938 plus legal
interest thereon from May 5, 1932; that the defendants be ordered to
pay the costs, and that a preliminary injunction be issued in the
meantime, to prevent the Secretary of the Department of Public Works
and Communications and the Mayor of the City of Manila or their
successors from disposing of the funds collected by virtue of Acts Nos.
3248 and 3992.

The mayor interposed a demurrer against the
plaintiff’s complaint, alleging that the facts stated therein did not
constitute a cause of action; that there was a defect or misjoinder of
parties, etc. and that the complaint was vague, ambiguous and
unintelligible.

The lower court sustained the demurrer in
question and granted the plaintiff a period of five days to amend her
complaint. Sometime later it, motu proprio, reconsidered its resolution
sustaining said demurrer, which, by the way, had been issued on August
26, 1936, in the sense stated in its order of October 30, 1936, for the
purpose of inserting a brief statement of the allegations of the
complaint and of setting forth the grounds of the demurrer. Inasmuch as
the plaintiff had signified her intention not to amend her complaint,
the court dismissed the case. However, it granted the plaintiff all the
time allowed by law to appeal from said order. Long before said
incident and even before August 26, 1936, the Secretary of the
Department of Public Works and Communications who then was His
Excellency Manuel L. Quezon, provisionally, and the Auditor General, in
a special appearance entered by them through the Solicitor-General,
prayed for the dismissal of the case as against both, for the reasons
then invoked by them. The court, acting upon their petition, issued its
order also of August 26, 1936, which reads as follows:

“Upon consideration of the pleading in
special appearance filed by the Solicitor-General in representation of
the defendants in this case, His Excellency Manuel L. Quezon and
Auditor-General Jaime Hernandez:

“The complaint filed in this case, in so far as it affects
said defendants, is in reality an action against the Insular Government
of the Philippines, without its previous consent, since they have been
joined in the complaint to effect payment with funds of the Insular
Government of a certain amount of money claimed by the plaintiff.
Furthermore, the courts of justice have no power to restrict or limit
the discretion with which the Secretary of Public Works and
Communications may distribute funds from the amounts appropriated under
Acts Nos. 3248 and 3992, much less to compel him to reserve a part of
said funds for a definite and fixed purpose, as the performance of an
obligation or payment of an indemnity. With respect to the defendant
His Excellency Manuel L. Quezon, although he is joined in this case as
Acting Secretary of Public Works and Communications, he cannot be
subject to the jurisdiction of the courts of justice of the Philippines
on the ground that he is temporarily performing the functions of said
office not by virtue of section 79 of the Administrative Code but as
President of the Commonwealth of the Philippines.

“The
present case is hereby dismissed as to the defendants His Excellency
Manuel L. Quezon, and Jaime Hernandez as Auditor-General.”

The plaintiff excepted to said order and then gave written notice
of her intention to appeal, by presenting to that effect the following
pleading which reads as follows:

“Comes now the plaintiff in the above-entitled case, through her undersigned attorney, and to the court respectfully states;

“1. That having received on the 27th instant copies of the three orders
issued by this honorable court on the 26th of this month, dismissing
the complaint as to the defendants His Excellency Manuel L. Quezon and
the Honorable Jaime Hernandez; sustaining the demurrer interposed by
the defendants City of Manila and the Honorable Juan Posadas, jr., and
denying the petition for the issuance of a writ of preliminary
injunction against all the defendants, the plaintiff respectfully
excepts to said orders and announces her intention to appeal therefrom
and from the final judgment to be rendered by this honorable court in
this case, to the Supreme Court of these Islands.

“2. That
as it is necessary that a final judgment be rendered in this case in
order to appeal it, the plaintiff respectfully prays this honorable
court to render such final judgment as soon as it deems convenient,
since the plaintiff does not desire to amend her complaint.

“3. That in order that the plaintiff may have time to prepare her bill
of exceptions, she be granted a period of fifteen (15) days therefor
from the date she receives notice of the final judgment to be rendered
in this case.”

The truth, however, is that the plaintiff and appellant perfected
her appeal by means of the bill of exceptions only on November 6, 1936,
when she presented the one bearing said date now attached to the
record. From August 29, 1936, the date of the plaintiff’s exception and
notice of appeal, to November 6,1936, more than two months elapsed. It
should be noted that in the bill of exceptions so presented by the
appellant, there is no longer anything actually connecting the case
either with the former Acting Secretary of the Department of Public
Works and Communications or with the now permanent Secretary, except
the substitution ordered in this instance by means of the resolution of
February 12, 1937, which is sought to be reconsidered.

While it is true that the plaintiff, in omitting the incidents
connected with the Secretary of the Department of Public Works and
Communications in her printed bill of exceptions, did so by virtue of
the lower court’s order of November 19, 1936, imposing upon her the
condition that her original bill of exceptions would be approved
provided she eliminated said incidents therein, and it is likewise true
that she did so with reservations, excepting as she in fact excepted to
said order, it is nonetheless true that once said incidents are
eliminated there is no way of taking them into consideration now at
this stage of the case. If she wanted them to be taken into account,
instead of acting as she did, she should have resorted to the remedy of
mandamus, which is undoubtedly the proper one in cases of that nature.

Long after the approval of the bill of exceptions now of record,
the Honorable Mariano Jesus Cuenco was appointed Secretary of the
Department of Public Works and Communications and, consequently, His
Excellency Manuel L. Quezon, ceased as such Acting Secretary. It was
because of His Excellency’s cessation as such Acting Secretary of the
Department of Public Works and Communications and the recent
appointment of the Honorable Mariano Jesus Cuenco as permanent
Secretary of said department that the plaintiff asked for the
substitution of the one by the other, as already stated.

The argument that the plaintiff excepted to the lower court’s
orders of August 26, 1936, one sustaining the demurrer of the Mayor of
the City of Manila, and the other ordering the dismissal of the case as
to the Secretary of Public Works and Communications and the auditor,
for the reasons alleged by the last two upon entering a special
appearance in the case, through the Solicitor-General, and that she
asked, as it so appears in fact in her above-stated pleading, for a
period of 15 days to file her bill of exceptions, which period was not
to commence running until she received notice of the final judgment
rendered in said case, is of no merit, because the act which may be
considered as judgment adverse to her in connection with the action
instituted by her against the Secretary of the Department of Public
Works and Communications appears precisely in one of said orders of
August 26, 1936, and it was precisely said judgment to which she
excepted and from which she gave notice of her intention to appeal. It
is so inferred from her said pleading of August 26, 1936, since, in
referring therein to the act to which she excepted and from which she
desired to appeal as soon as final judgment was rendered, she stated
that it was the order sustaining the demurrer interposed by the
defendant City of Manila and by the mayor thereof and in no way the
order decreeing the dismissal of the case as to the Secretary of the
Department of Public Works and Communications and the AuditorGeneral.
This should be so because, as the aforesaid order which put an end to
the case as to the official in quesiton, be he His Excellency Manuel L.
Quezon, or the Honorable Mariano Jesus Cuenco, had already been issued,
there was no necessity of rendering another final judgment.

The period within which the plaintiff could appeal from the order
issued, by virtue of the special appearance of the Secretary of the
Department of Public Works and Communications, dismissing the case as
to said official, was and is that prescribed in section 145 of Act No.
190, that is, 30 days if her purpose was to ask for a new trial; and if
she did not ask for a new trial because she considered such preliminary
step unnecessary for the appeal, then it was 10 days from August 29,
1936, the date on which she announced her intention to appeal. Not
having done so, the case must necessarily be considered terminated as
to the Secretary of the Department of Public Works and Communications ;
from which it follows that said official should not continue to appear
in this case as one of the defendants.

For the foregoing reasons which were unknown to this court when the
resolution of February 12, 1937, was rendered, said resolution is
reconsidered and this court now decides to deny, as it hereby denies,
the substitution sought by the plaintiff in her pleading of February
10,1937, ordering that this appeal be prosecuted to the exclusion of
the Secretary of the Department of Public Works and Communications as
defendant and appellee. So ordered.

Avancena, C. J., Villa-Real, Abad Santos, Imperial, Laurel, and Concepcion, JJ., concur.

Resolution of February 12, 1937, reconsidered.