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FREDERICK
GARFIELD
WAITE,
Plaintiff-Appellee,
G.
R.
No. L-4125
February
5, 1908
-versus-
F. THEODORE ROGERS,
ET AL.,
Defendants-Appellants,
AND
J.J. PETERSON,
SHERIFF
OF THE CITY OF MANILA,
Plaintiff-Appellee,
-versus-
CHAS. P. NEWBERRY,
ET AL.,
Defendants-Appellants.
D E C I S I
O N
TRACEY, J:
In Peterson
vs. Newberry
[6 Phil. Rep., 260], it was decided that the fund in controversy should
go to Theodore Rogers as assignee of the American Bank in preference to
the other creditors of Fulgencio Tan Tongco. Before that judgment, the
fund had been paid out of the Court of First Instance to the attorney
for
Charles P. Newberry, W. H. Bishop, who together with C.W. O'Brien and
Choa
Tek Hee, had given a bond to make it good. This earlier action is now
before
Us consolidated with the later one brought by Frederick Garfield Waite
against Rogers, Bishop, O'Brien, Choa Tek Hee, and Joseph N. Wolfson,
as
adverse claimants. Waite claims as assignee of Antonio Torres, whom he
alleges to have been the true and beneficial owner of the subject of
the
original action, for whom Rogers held it only nominally in trust.
The serious questions
arising out of this contention and out of the counter-charge of fraud
have
been taken out of this case by means of a stipulation between Waite,
Rogers,
and Wolfson, providing for the division of the fund among them, so that
nothing remains of the controversy other than such questions as are
raised
by the bondsmen. After they were in default, they moved for leave to
serve
an answer, which was denied, and in denying it we think that the judge
of First Instance properly exercised the discretion vested in the
courts
by Section 113 of the Code of Civil Procedure. As an affirmative
defense
the proposed answer took the ground that the fund should not go to the
plaintiffs in this suit, but to the American Bank. The receiver of that
bank, being represented in court by his counsel, made no such claim.
The
question of the application of the fund they were to pay did not
concern
the bondsmen. All they were called upon to do was to pay back into
court
the money that they had received under the erroneous judgment of the
Court
of First Instance. Moreover, there is no exception to the Order denying
them leave to answer, which might properly bring their contention
before
Us.
The judgment of the
lower court is hereby affirmed, with the costs of this action against
the
defendants Bishop, O'Brien, and Choa Tek Hee. So ordered.
Arellano, C.J.,
Torres, Mapa, Johnson, Carson and Willard, JJ., concur. |
