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[ GR No. 5412, Feb 12, 1910 ]



15 Phil. 192

[ G. R. No. 5412, February 12, 1910 ]




This was an  action commenced to foreclose a  mortgage executed by the defendant to the plaintiff's assignor.  The trial of the cause was set for the 22d day of October, 1908. The defendant, who appeared  and answered in person, was sick on that day and notified the court  of his inability to be  present.  The court  thereupon adjourned the trial of the cause to the 2d day  of November following.  A notice of the adjournment, giving the date to which the cause had been continued, was sent to the defendant.   He claims that he did not receive it until after the day to which the cause was adjourned for trial.  As a result  a  default was taken against the  defendant,  the  usual proceedings were  had before the court, and on  the 6th day of November the usual judgment of foreclosure in the cause was rendered.

The defendant  upon receiving notice of the rendition and entry of the judgment made the following motion:
"The defendant in the above entitled cause appears and respectfully shows that  he asks upon  reasons of justice a new trial  upon the following ground:  For the reason that I have been the  victim of  an  accident which ordinary prudence  would not have been able to avoid, having been sick at the time of the trial and having for that reason been prejudiced in my legal  rights in the  case; therefore, the judgment is contrary to law."
In  order to  determine whether or not this court can review the evidence in this case, it is necessary to  decide whether the ground upon which the  above motion for a new trial  is based is a sufficient ground under section 497,[1]subdivision 2, of the  Code of Civil Procedure.  That sub-division reads as follows:
"2. If the excepting party  filed a motion in  the Court of First  Instance for a new trial, upon the ground that" the. evidence was insufficient to  justify the  decision, and the judge overruled said motion,  and due exception was taken to his overruling the same, the Supreme  Court may review the evidence and make such  findings upon the facts by a" preponderance of the evidence, and render such final judgment, as justice and equity may  require.  But,  if the Supreme Court shall be  of  the opinion that this exception is frivolous and not made in good faith, it may impose double or treble additional costs upon  the  excepting  party, and may order them to be paid by the counsel prosecuting the bill of exceptions, if in its opinion justice so requires."
Having in  mind the provisions of that section, we are of the opinion that  the motion is not sufficient to  permit this court to review the evidence.  Said motion is not based upon any of the grounds specified in said section.   A motion for a new  trial upon the ground that the  decision is contrary to law raises no question as to the sufficiency of the evidence to sustain the decision.

The court in deciding the case said:
"At the trial  of the case, the  defendant not  having appeared at the time fixed by the court and the plaintiff having proved the allegations of his complaint, which were  denied by the answer,  by means of documentary proofs, Exhibit A, Exhibit  Cause No. 45, relating to the. guardianship  of the children of  F. Suarez, as to  the payment to D. Angel Ortiz by the  defendant of  the sum of four hundred and ninety-five pesos and thirty-three centavos  (P495.33) and the interest at 10 per cent  annually from the 17th day  of November, 1906, to the time of its payment, with the costs of the present trial - It is ordered that  the  defendant deposit  the sum above named  in  the  clerk's  office  of this court, etc."
The part of the decision above  quoted contains all of the findings of fact.

The second  question in this case is whether or not such findings  are sufficient to support the decision.   The reference to Exhibit A in the decision, which Exhibit A is the mortgage being  foreclosed,  is not sufficient  to  make that mortgage a part of the decision.   We may not, therefore, examine said mortgage upon the theory that such reference incorporated it into the decision so as to become an integral part thereof.  Such mortgage could easily have  been made a part of the decision if appropriate words for that purpose had been used.   Such mortgage is not before us.

The  only finding of fact contained in the decision is the statement that the facts  alleged in the complaint were proved.   The weight of authority seems to be that the findings of the court may refer to the pleadings for the facts found if  such reference is sufficiently distinct and if  the facts are sufficiently stated  in  the  pleadings,  (McEwen vs. Johnson, 7 Cal., 258; Breeze vs. Doyle, 19  Cal., 101; Osment vs. McElrath, 68 Cal., 466; Knudson vs. Curley, 30 Minn., 433; School District No.  73 vs. Wrabeck, 31 Minn., 77; Downer vs. Sexton, 17 Wis., 29; Badger vs. Daenieke, 56 Wis., 678; McFadden vs. Friendly, 9 Mich., 222; Pollock vs. Pollock, 71 N. Y., 137.)

The third question to be decided is whether the facts in the  complaint are  sufficiently  stated;  in  other  words, whether the complaint states facts sufficient to constitute a cause of action.  The complaint says:
"First.  That the plaintiff, D. Angel Ortiz, is of full age and a resident of Manila, P.  L,  and is represented in this Province of Sorsogon, P. I., by D. Eduardo Roteache, of full age and a  resident of Sorsogon, Sorsogon, P. I.

"Second. That the defendant,  Ramon Garcia, is of full age and a resident of the municipality of Bacon, Sorsogon, P.I.

"Third. That the defendant is  indebted to the widow and daughters of F. Suarez in the sum of four hundred and ninety-five pesos and thirty-three centavos Philippine currency (P495.33), with interest at 10 per cent per annum from the 17th day of November, 1906, with a mortgage of a house, with its corresponding  lot, described as follows: (Here follows a description of the land.)

"Fourth. That the said  debt  and mortgage have been transferred by the widow and children of  F. Suarez to the plaintiff, D. Angel Ortiz.

"Fifth.  That said mortgage by its terms was to become due on or before one year and six months from the 17th day of November, 1906.

"Sixth.  That said mortgage became due on the 17th day of May, 1908, without the  plaintiff having been paid said sum of four hundred and ninety-five pesos and thirty-three centavos, Philippine currency (5M95.33)  or the interest at 10 per cent from the 17th day of November, 1906."
We are of the opinion that the  complaint states facts sufficient to constitute a cause of action.  It is not required in an action of foreclosure to state in detail every fact required by law to make the mortgage valid.  The allegation that  the  defendant  executed and delivered to the plaintiff a mortgage upon specified property is a sufficient allegation of the validity  of the mortgage and of every act required to be done  by either party thereto to  make that mortgage valid.  It is not necessary to allege evidentiary facts.   Only ultimate facts should be pleaded.  On the trial it is  necessary, of course, to prove  every fact required to make the mortgage valid and  enforceable.  We  conclude, therefore, that the finding of the court that the facts  stated in the complaint had been proved is a sufficient  finding of the facts, and as such is adequate to support the decision.

The judgment of the court below is therefore affirmed with  costs against the appellant.  So ordered.

Arellano, C. J., Torres, Johnson, and Carson, JJ., concur.

[1] Amended by  Act No. 1596.