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[CHINA INSURANCE v. JUDGE OP FIRST BRANCH OF COURT OF FIRST INSTANCE OP MANILA](https://lawyerly.ph/juris/view/c1bb0?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 45128, Aug 18, 1936 ]

CHINA INSURANCE v. JUDGE OP FIRST BRANCH OF COURT OF FIRST INSTANCE OP MANILA +

DECISION

63 Phil. 320

[ G. R. No. 45128, August 18, 1936 ]

CHINA INSURANCE & SURETY COMPANY, INC., AND C. KELLING, ASSIGNEE OF THE INSOLVENCY OF YU GUIOC LO & CO. AND YU PING KUN, PETITIONER, VS. THE JUDGE OP THE FIRST BRANCH OF THE COURT OF FIRST INSTANCE OP MANILA AND FAR EASTERN SURETY & INSURANCE COMPANY, INC., RESPONDENTS.

D E C I S I O N

RECTO, J.:

The China Insurance & Surety Co.  Inc., and  C. Kelling, assignee of the Insolvency of Yu Guioc  Lo &  Co. and Yu Ping Kun, ask for the issuance of a  writ of  mandamus addressed to the presiding judge of the First Branch of the Court of First Instance of Manila ordering him to approve, certify and give due course to a certain bill of exceptions presented  by them in said  insolvency  proceedings.   The respondent judge has not answered the  petition while the respondent company the  Far Eastern  Surety  &  Insurance Co., Inc., so did.  The latter admits the truth of the allegations contained in the petition  but claims that the remedy should be denied, and  prays that it be so ordered on the ground  that the order referred to in the bill of exceptions which the respondent judge has refused to certify to this court is not appealable.

The refcord shows: that in the insolvency proceedings  of Yu Guioc Lo & Co. and Yu Ping Kun, pending in the First Branch of the Court of First Instance of Manila, an  order dated March 28, 1935, was issued denying a petition presented by the China Insurance & Surety Co., Inc., and the assignee of the insolvency in question for the approval by the court of a certain  agreement entered  into  by  them assigning to the China Insurance & Surety Co.  Inc., for a certain consideration, two pieces of property  belonging to the  insolvent  Yu  Ping  Kun, described  in  transfer certificates of  title  Nos. 41123 and  15201, precisely on condition  that  all the  attachments and  liens thereon be dissolved  and  annulled;  that  the China Insurance and Surety Co.,  Inc., on the 19th of  the following June registered its exception thereto but did not proceed with its intended appeal,  and in lieu thereof it  filed a motion on October 29th of  said year praying the  court to  issue an order directing the  sheriff of  Manila to  dissolve the attachment  levied on said property upon petition of the Far Eastern  Surety & Insurance Co.; that this motion was denied by the court  in  an order of November 5,  1935, on the ground that it had been  implicitly denied in  the  order of May 23 1935; that a motion of the same tenor filed by the assignee on November  16,  1935,  as likewise denied in an order against which the herein petitioners registered their  exception and  presented  the bill of exceptions that gave rise to the filing of this petition because of the court's refusal to certify it.

It being admitted in the petition as well as in the answer that  the Insolvency  Law grants no right to appeal  from an order of  this nature, the only question to be decided  is whether or  not Article VIII of the Constitution and Act No.  3 of the Commonwealth  which became  effective on February 1, 1935, assuming that they have modified the Insolvency Law  by granting said  right a point which does not now demand resolution , should have affected a judicial order issued prior thereto in the sense of making it appealable, not being so on the date of the issuance thereof.

We are decidedly of the opinion that they did not.   Said order,  being unappealable, became final on the date of its issuance  and the  parties who acquired rights thereunder cannot be deprived  thereof by a constitutional provision enacted or promulgated subsequent thereto.   Neither the Constitution nor the statutes, except penal laws favorable to the  accused, have retroactive effect  in the sense of annulling or modifying vested rights, or altering contractual obligations.

"Provisions  (of the  Constitution)   *  *  *  creating or  abrogating  rights  of appeal,  *   *  *  do  not affect the rights of parties to pending actions at the  time  such provisions take effect, unless an intention to the contrary is clearly shown."   (12 C. J., 724.)

No clause showing such intent will be found in our  Constitution.  On the contrary so careful were, the authors thereof in avoiding the possibility of any doubt being harbored of what they desired to enact on this point that they expressly declared in one of its transitory provisions that all  cases, civil and, criminal, pending  in the courts at the time of the  adoption of this Constitution were to be heard, tried, and determined under the laws  then in  force.

It is argued that the provision of Act No. 3 of the Commonwealth which vests this court with authority to review and revise final judgments and decrees rendered in cases in which only errors or  questions of  law are involved, is procedural in nature and must be given a retroactive effect so that the right of appeal granted thereby for the  first time be  understood  as applicable to orders or judgments rendered  prior thereto.   We find no merit in this contention.   The laws  defining the  jurisdiction  of  the various courts are not procedural but  substantive in nature, as they do not refer to the manner of trying cases  but to the authority of the courts to hear and decide certain and definite cases in the  various instances of  which they are susceptible.   The purpose of section 138 (sec. 2) of Act No. 3 of the Commonwealth was not simply to confer a new right of appeal but to extend the appellate jurisdiction of this court.

It may be contended that the order for the review of which the appellate jurisdiction of this court is invoked is  dated November 23, 1935, and was rendered after Article VIII of the Constitution became effective.  Section 2 of this article, as claimed, grants the remedy of  appeal therefrom, which is not recognized by the Insolvency  Law. Neither is this argument of any  account.  The order of November 23rd is nothing but  a reiteration of the order issued on  the 5th of said month, and both  a reiteration of the order of the 28th of the preceding May.   It happens in this case that the China Insurance & Surety  Co., Inc., and the assignee of the Insolvency of Yu  Guioc Lo & Co. and  Yu  Ping Kun, for  the  third time on  November 16th, petitioned the lower court for what they had vainly sought therefrom on October 29th  and March  29th, without having become discouraged or admonished by the former refusals.  But not because the third and last attempt was made shortly after Article VIII  of the Constitution became effective can it  be correctly said that the benefit of the new right allegedly granted by the Constitution extends to the order rendered in consequence thereof reiterating the former two orders.  The courts in their mission to administer justice must consider  the merits of  the  controversies, not the  form thereof, particularly when the form does  not  serve to maintain a legal right  duly vested but to destroy it.  The motions of November 16th and October 29th  are  essentially the same as that of March 29th and the judicial order of November 23rd, as to its merits, is the same as those of November 5th  and  May 28th.  An attempt was twice made to change the form of the original motion but  the  essence thereof has  remained  unaltered. Were we to give weight to the argument advanced on this point the result would be to reopen records already finished and filed so that the parties, who had  been affected by similar orders from which they could not appeal because it was not then allowed by the law could file the proper motions in  the lower  courts and  be able, upon the denial thereof,  to bring to this court the corresponding appeal of the authors  of the Constitution.

On more than one  occasion we have held that when a motion is filed, which,  although entitled a .motion  for a new trial, is  essentially nothing  but a motion for reconsideration based substantially on grounds already alleged  in a former motion for reconsideration which had already been denied, the time that elapsed  while the court had the second motion under advisement  does not  suspend the period fixed  by  law for the various proceedings  for perfecting the appeal.   The court,  in so holding, has taken into account the fact that the second motion was identical to the first and the filing thereof was merely prompted by one of these two motives, none of which is praiseworthy, namely: either to delay the suit, or to  speculate on a possible change of opinion of the court.' The same thing may be said in the case under consideration.

Lastly we are  of the  opinion that even if the order of November 23rd did not  retro-act to the prior dates of the issuance of other orders having the same scope and effect, and even if it were considered as a new order and not a reiteration of former ones, the same ruling would have to be  laid down in  accordance with  Article XV, section 3, of the Constitution which  provides that all cases, civil or criminal, pending in the Philippine courts at the time of the adoption of the Constitution would be heard, tried,  and determined under the laws then in force.  It will be noted that this section immediately follows  as  qualifying  and restricting section 2 of  said article,  which  provides that all laws of the Philippine Islands shall continue in force until the inauguration of the Commonwealth of the Philippines; thereafter,  such laws shall remain operative,  unless  inconsistent  with  the Constitution,  until  amended, altered, modified, or repealed by the National Assembly.

Therefore said provision of section 2 of  Article XV  had to be inserted in  anticipation of the existence, upon the adoption of the Constitution of some provision in the laws then  in force, which  might conflict with a provision of the Constitution, because if no such conflict occurred the transitory provision in question would be without any purpose and absolutely useless.  While the words "although in conflict with the Constitution" are not stated, they are under- stood in  said section  2.

The decision of this court  in People vs. Linsangan  (62 Phil., 646),  cannot  be invoked as a precedent.  In said case  a retroactive effect was given to the  constitutional provision against the  imprisonment for nonpayment  of cedula tax, notwithstanding  the fact that  the  violation charged  had been committed  prior to the adoption of  the Constitution, because it involved a criminal offense and it happened that the provision in question was favorable to the accused.

The petition is dismissed with the costs to the petitioners. So ordered.

Avanceña, C. J., Abad Santos, Imperial, Diaz, and Laurel, JJ., concur.



CONCURRING

VILLA-REAL,  J.:

I concur with the majority in the dispositive part of their opinion on the ground that the order of June  19,  1935, denying the joint motion  filed by the assignee of the Voluntary Insolvency of Yu Guioc Lo & Co. and Yu Ping Kun, and China Insurance  & Surety Company,  Inc., praying for the approval of the assignment made by said receiver to said China Insurance  & Surety Company, Inc., of two pieces of property belonging to  Yu Ping Kun which were mortgaged to said China Insurance & Surety Co., Inc., precisely on condition that all  the attachments and liens thereon be dissolved and annulled, is not appealable either under the provisions  of section 123 of Act No. 190, or under section 89 of Act No.  1956, otherwise known as the Insolvency Law, as amended, or under Article VIII, section 2, paragraph  (5), of  the  Constitution of the  Philippines,  said order not  being  final  but interlocutory.

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