EN
BANC
STAPLES-HOWE
PRINTING
COMPANY,
Plaintiff-Appellee,
G.
R.
No. 11994
March
14, 1917
-versus-
MANILA
BUILDING
AND LOAN ASSOCIATION, ET AL.,
Defendants
JOHN C.
HOWE AND
IDA HOWE,
Appellants.
D
E C I S I
O N
CARSON,
J:
The
plaintiff company,
a judgment creditor of the defendant, John C. Howe, procured the levy
of
execution upon the right, title, interest and participation which he
might
have in 25 shares of stock of the Manila Building and Loan Association
to transfer to it the stock standing upon their books in the name of
Ida
Howe. John C. Howe answering the allegations of the Complaint,
disclaimed
any interest whatever in the stock of the Manila Building and Loan
Association
and alleged that this stock is the sole property of his wife, Ida Howe.
Ida Howe, answering, denied that her husband, John C. Howe, had any
interest
or participation in this stock and alleged that it is her sole and
separate
property. The defendants, Roy and James Dixon, nephews of Mrs. Ida
Howe,
were permitted to intervene, and answering the allegations of the
Complaint
denied that either John C. Howe or his wife, Ida Howe, had any interest
in these shares of stock and claimed that they advanced all the money
used
in the purchase of the stock, but that the stock was placed in the name
of Ida Howe because, at the time of issuance, they were both under
legal
age.
The Court below found
that these shares of stock were the conjugal property of the
defendants,
John C. Howe and his wife, Ida Howe, having been purchased and acquired
by them since their marriage, and gave judgment in conformity with the
prayer of the complaint for the transfer of the stock in the name of
the
plaintiff company. The intervenors Roy and James Dixon did not appeal,
and the only question before us at this time is the contention of the
defendant,
Ida Howe, that the stock in question is her sole property held by her,
separate and apart from her husband, who, as she alleges, has no right,
title, or interest therein as conjugal property or otherwise.
The evidence discloses
and, indeed, it is admitted that this stock was purchase and placed in
the name of Ida Howe since her marriage to her codefendant, John C.
Howe;
and in the absence of proof to the contrary, the legal presumption
arises
under the provisions of Article 1407 of the Civil Code that it was a
part
of their conjugal property, as alleged by the plaintiff.
The only witness called
in support of Mrs. Howe's claim of ownership was her nephew, Roy Dixon,
whose testimony fails utterly to sustain her contention that this stock
was purchased by her with her separate funds, and tends rather to
sustain
a finding that an indefinite and uncertain part of the purchase price
of
the stock was money paid by the witness and his brother to their aunt,
Mrs. Howe, in consideration of board and lodging. The evidence of this
witness is vague and uncertain as to the amount of money paid over to
Mrs.
Howe by himself and his brother, as to the consideration for which this
money was paid, and as to whether it was or was not used in the
purchase
of the stock in question. But, admitting that these young men did turn
over to Mrs. Howe, by way of payment of board and lodging, some of the
money which was used in the purchase of the stock, the stock thus
purchased
would, under the law in force in this jurisdiction, constitute a part
of
the conjugal property of herself and her husband, and as such would be
subject to the payment of his debts. [Article 1401 of the Civil Code].
We agree with the trial
judge, however, that the testimony of this witness was so vague,
uncertain
and indefinite as to all the details of the transactions to which it
referred,
that it has little or no probative value for any purpose, and certainly
that it is not sufficient to sustain a finding in favor of Mrs. Howe's
claim of separate ownership of the stock in question.
The real contentions
of counsel for Mrs. Howe on this appeal are that the relief prayed for
should not be granted unless it appears that the stock in question was
the conjugal property of herself and her husband; that it was incumbent
upon the plaintiff company to establish its allegations to this effect
by a preponderance of the evidence introduced at the trial; that the
evidence
in support of this allegation of the complaint rests wholly upon the
legal
presumption established in Article 1407 of the Civil Code; but that
this
presumption is rebutted by the adverse presumption arising under
Section
334 of the Code of Civil Procedure as a result of the alleged willful
suppression
of evidence by the plaintiff company.
It appears that after
the institution of this action and before the trial, the plaintiff
company
took the depositions of Mr. and Mrs. Howe under Subsection 6 of Section
355 of the Code of Civil Procedure, and that, although these
depositions
had been duly certified to the Clerk of Court under the provisions of
Section
362 of that Code, they were not introduced in evidence at the trial.
Counsel
for Mrs. Howe contends that the failure of the plaintiff company to
introduce
these depositions into the record amounted to a willful suppression of
evidence on its part, which gives rise, under the provisions of
Subsection
5 of Section 334 of the Code of Civil Procedure, to a presumption that
the evidence thus suppressed would have been adverse to the plaintiff
company
had it been introduced.
We do not think that
under the circumstances, the mere failure of the plaintiff company to
read
these depositions into the record amounted to a willful suppression of
evidence giving rise to any presumption adverse to the contentions of
the
plaintiff.
Section 364 of the
Code of Civil Procedure provides that when a deposition has been taken,
it may be read by either party and is then deemed to be the evidence of
the party reading it. It follows that if these depositions were
admissible
at all, the defendants were at perfect liberty to introduce them in
evidence.
They cannot, therefore, be heard to charge the plaintiff with a willful
suppression of evidence, which they themselves did not see fit to make
use of, although this evidence was in the Clerk of Court, subject to
their
call at any stage of the proceedings. The plaintiff company, having
made
out its case without the aid of these depositions, had no need to
introduce
them in evidence; whereas if there was anything in the depositions
favorable
to the defendants it was of vital importance to them that they should
exercise
their right to make use of them. It would seem, therefore, that if the
failure to introduce these depositions into the record justifies any
presumption
as to the nature of their contents, the presumption would be adverse to
the defendants themselves. Upon them rested the burden of overcoming
the
presumption that the stock in question was a part of their presumption
that the stock in question was a part of their communal property, and
they
and not the plaintiff company had need of the depositions as evidence,
if there was anything therein favorable to their contentions or
unfavorable
to the contentions of the plaintiff company.
Section 364 of the
Code of Civil Procedure which authorizes either party to read
depositions
taken under the provisions of that Code, further provides that when
read
into the record such depositions are to be deemed the evidence of the
party
reading it. The depositions in question contained the testimony of the
defendants themselves, and it would be absurd to hold that the failure
of the plaintiff company to call these adverse witnesses to the stand
and
to make them its own witnesses amounted to a willful suppression of
evidence,
despite the fact that the defendants themselves could have introduced
the
depositions or gone on the witness stand themselves to testify as to
any
fact which their counsel conceived to be material and favorable to
their
contentions. The truth would seem to be that the counsel for the
defendants
would like to eat his cake and have it too. He would like to get the
benefit
of the testimony of the defendants without exposing them to the risk of
cross-examination in open court. But without deciding what effect would
have been given to the manifest adverse position of the defendants had
plaintiff called them to the witness stand and attempted to challenge
the
truth and accuracy of their testimony, We are of opinion that in no
event
can his failure to make them his own witnesses be treated as a willful
suppression of evidence since his action in that regard did not and
could
not deter them from testifying in their own behalf.
It appears that Mrs.
Howe was present in court during the trial and it nowhere appears that
Mr. Howe was at that time beyond the jurisdiction of the Court or that
his presence could not have been procured at the time of the trial. The
depositions were taken under authority of Subsection 6 of Section 355
of
the Code, and under the express provisions of that subsection the
depositions
could not have been offered in evidence, since the presence of these
witnesses
could have been secured at the trial, unless it were held that the
depositions
might also be treated as depositions taken under the provisions of
subsection
1 of that section. We do not, however, deem it necessary to discuss or
decide that question which was not raised in the court below by an
attempt
by either party to make use of the depositions, because the admitted
presence
of Mrs. Howe at the time of the trial [if for any reason it should be
held
not to preclude the use of the depositions altogether] conclusively
destroys
any presumption of a willful suppression of her testimony by the
plaintiff;
and a like conclusion follows as to the testimony of Mr. Howe, it not
appearing
that his presence could not be procured at the time of the trial.
The facts upon which
our ruling was based in the case of United States vs. Kosel [24 Phil.
Rep.,
594] which is relied upon by the counsel for the defendants in support
of his contentions, are clearly distinguishable from the facts in the
case
at bar. In that case, a criminal proceeding, after all the evidence for
both the Government and the defendant had been submitted, and after the
Government had rested, the defendant had secured a suspension of the
trial
for ninety days to take the deposition of a witness, absent in the
United
States, to contradict and rebut certain evidence relied upon by the
prosecution.
When the case was again called for trial, counsel for the accused,
without
offering any explanation for his action, declined to make use of the
opportunity
furnished him to introduce the deposition into the record. Under such
circumstances,
the failure to offer the deposition of the absent witness was held to
sustain
a presumption that the contents of the deposition did not sustain the
claim
of counsel as to the fact which he expected to establish by the
deposition
when he secured the continuance, and that this deposition, had it been
introduced, would corroborate rather than rebut the testimony of the
prosecution
already in the record.
It will be observed
that unlike the case at bar, the former case was a criminal proceeding,
and that the deposition of the absent witness which the court
authorized
the defendant to submit in evidence could not have been used by the
prosecution
over the objection of the defendant; and further, that there was an
imperative
need for its introduction by the defendant if it was favorable to him
and
tended to sustain his claim that this testimony, if it could be
secured,
would rebut the evidence of the prosecution already in the record.
The grounds upon which
the former ruling was based cannot be invoked in support of counsel's
contentions
in the present case, and the former case is not, therefore, authority
for
the application of the former ruling to the facts disclosed by the
record
now before Us.
The judgment entered
in the court below should be affirmed, with the costs of this instance
against the defendant and appellant Ida Howe. So ordered.
Torres, Trent and
Araullo,
JJ., concur.
Moreland, J.,
concurs in the result. |