EN
BANC
ESTATE
OF THE
DECEASED GREGORIO NATIVIDAD.
CASIMIRO
NATIVIDAD,
ET AL.,
Petitioners-Appellants,
G.
R.
No. 28296
March
2, 1928
-versus-
ALFREDO
NATIVIDAD,
Appellee.
D
E C I S I
O N
MALCOLM,
J :
The appellants rely on
the sole assignment of error that the lower court erred in denying the
petition to set aside the order admitting to probate the pretended will
of Gregorio Natividad.
On May 30, 1926,
Gregorio
Natividad died at the advanced age of 88 years. Following his demise
one
of his heirs, Alfredo Natividad, offered for probate in the Court of
First
Instance of Camarines Sur the will of the deceased alleged to have been
executed on August 27, 1923. The will was a document of sixteen pages
and
disclosed that Gregorio Natividad was possessed of a considerable
fortune,
probably amounting to hundreds of thousands of pesos. A strong
predilection
for a natural grandchild, Alfredo Natividad, was apparent. Opposition
to
the probate of the will was filed on July 31,1926, by the attorney for
Casimiro Natividad, a son of the deceased.
Turning directly to
the record, it will be found that the case was called for trial at
Naga,
Camarines Sur, before the Honorable Pedro Tuason, Judge of First
Instance,
on July 31,1926. The following appearances were made of record: "El Sr.
Vicente Ribaya, por el solicitante; el Sr. Pablo C. Sibulo, por
Gregorio
Natividad y Casimiro Natividad; el Sr. Fernando Alvarez, por Casimiro
Natividad,
y el Sr. Jose Penas, por Casimiro Natividad." The subscribing witnesses
to the will and Alfredo Natividad were presented as witnesses by the
proponent
of the will. When the proponent closed his case, the record discloses
that
the following happened:
"COURT [to the
attorneys
for the oppositors, Messrs. Alvarez, Sibulo, and Penas]. Do you have
any
evidence?
"ALVAREZ. We waive
the right to present evidence, and we only pray your Honor that instead
of appointing the herein petitioner, Mr. Alfredo Natividad, as
administrator,
one of the children of the deceased be appointed; and for this purpose
we propose Mr. Casimiro Natividad, or at least, so far as we are
concerned,
we may announce for the sake of harmony, that we petition that Mr.
Casimiro
Natividad be appointed as co-administrator.
"COURT [to Mr.
Alvarez].
And then you withdraw your opposition to the probate of the will, is
that
it?
"ALVAREZ and
SIBULO.
We withdraw.
"ALVAREZ. We
withdraw,
but we pray the Honorable Court that Mr. Casimiro Natividad be
appointed
as co-administrator.
xxx
"COURT. Is there
any
thing else, Mr. Alvarez?
"ALVAREZ. Nothing
else.
"COURT. It is
ordered
that the will be admitted to probate, and Mr. Alfredo Natividad is
appointed
as executor. The amount of the bond to be given by him for the
performance
of his obligations is fixed at P20,000.
"RIBAYA. That's all.
"ALVAREZ. We submit
the case.
"COURT. The court
adjourns."
Casimiro Natividad was
not present at the hearing. However, the trial judge observed that he
was
in the courthouse. There is nothing to indicate that Casimiro Natividad
authorized his lawyers to compromise the litigation.
On the same date, that
is, on July 31,1926, that Casimiro Natividad filed an objection to the
allowance of the will and that the trial was had, the presiding judge
signed
an order in which, after making mention of the oppositors, Messrs.
Casimiro
Natividad and Gregorio Natividad, by means of their lawyers; having
withdrawn
their opposition, it was directed that the document Exhibit A be
admitted
to probate as the last will and testament of the deceased Gregorio
Natividad,
and in conformity with its dispositions appointed as administrator the
petitioner, Mr. Alfredo Natividad, under a bond of P20,000. Cadmiro
Natividad
alleges that he first became aware of the status of the case on
September
7, 1926. Accordingly, on December 14, I926, a petition pursuant to the
provisions of Section 113 of the Code of Civil Procedure to set aside
the
order, was presented in the Court of First Instance on behalf of
Casimiro
Natividad, Gregorio Estela, Maria Estela, and Miguel Estela, the latter
two minors and represented by their guardian. The petition was
supported
by an affidavit executed by Casimiro Natividad. The petition and a
subsequent
motion for reconsideration were denied by the Court. Hence this appeal.
It will have to be
frankly conceded right at the start that the appellee has in his favor
a very strong case. In open court, the regularly appointed attorneys
for
the oppositors withdrew the opposition to the legalization of the will
and acceded to what in effect constituted a confession of judgment.
With
such the state of the record the trial judge could not do anything else
than approve of the probating of the will. When later an attempt was
made
to open and vacate the judgment, the court, acting in good faith and in
the exercise of its best discretion, denied the petition.
There are, however,
equitable aspects to the case. It must not be forgotten that it was the
relief guaranteed by Section 113 of the Code of Civil Procedure which
was
invoked. The application therefor was made within the six months'
period
after the order was taken but came dangerously near to being outside of
what may be considered a reasonable time. The determining factor causes
us to consider another Section of the Code of Civil Procedure in
relation
with the question of the respective rights and powers of an attorney
and
his client.
Section 27 of the Code
of Civil Procedure reads as follows:
"Authority to bind
their clients. - Lawyers have authority to bind their clients in
any
action or proceeding, by any agreement in relation to the cause, made
in
writing and in entering appeals, and in all matters of ordinary
judicial
procedure. But they cannot, without special authority, compromise their
client's litigation, or receive anything in discharge of a client's
claim
but the full amount in cash."
The section just quoted
was derived from the Code of the State of Georgia [Secs. 4417, 4418].
Ordinarily,
therefore, We would look to the decisions of the Supreme Court of
Georgia
for guidance.
The
Supreme Court of
Georgia has taken an advanced position with reference to the power of
an
attorney to consent in open court to the entry of judgment against his
client in a pending cause. It has there been held that the counsel
representing
a party litigant is competent to represent his client in agreeing to a
consent verdict, and that the judgment so rendered is binding upon the
client in the absence of fraud or collusion upon the part of the
counsel
with whose consent such verdict and judgment is rendered (Webster vs.
Dundee
Mortgage & Trust Co. [1893],.93 Ga., 278; Adkins vs. Bryant [1909],
133 Ga., 465). It is to be noted, however, that in one of its more
recent
decisions the Supreme Court of Georgia has receded considerably from
its
previous stand in favor of the power of the lawyer (Davis vs. First
Nat.
Bank of Blakely [1913], 139 Ga., 702; 46 L. R. A. [N. S.], 750). It was
there said that the Civil Code "does not mean that when a client
employs
an attorney to bring or defend a suit, it ceases to be the client's
litigation,
that he has no power to say whether he will litigate or compromise his
suit, and that the attorney becomes the owner or absolute master of the
litigation, so as to be able to sell or give away his client's property
rights by contract, in spite of his client. This is a very different
thing
from the management of the litigation and agreements connected
therewith."
A comparison of the
Georgia statute with the Philippine statute discloses certain
differences.
For example, the Georgia statute is silent as to the limitation on
lawyers,
without special authority, having no right to compromise their clients'
litigation. As has been pointed out by a number of authorities, the
compromise
of causes and the confession of judgments appear to stand upon the same
footing. Inasmuch as the compromise may not be effected by counsel
without
special authority, so may not an agreement to permit judgment to be
entered
against his client be authorized except with the knowledge and at the
instance
of the client. The proceedings in Court to enforce the remedy, to bring
the claim, demand, cause of action, or subject matter of the suit to
hearing,
trial, determination, judgment, and execution, are within the exclusive
control of the attorney. The cause of action, the claim or demand sued
upon, and the subject matter of the litigation are all within the
exclusive
control of the client; and the attorney may not impair, compromise,
settle,
surrender, or destroy them without his client's consent. So when a
judgment
has been entered by consent of an attorney without special authority,
it
will sometimes be set aside or reopened. (6 C. J. pp. 643, 646-648; 76
Am. Dec., p. 259, note Holker vs. Parker [1813], 7 Cranch, 436, where
it
was held by the United States Supreme Court, speaking through Mr. Chief
Justice Marshall, that even though an unauthorized compromise by an
attorney
has assumed the form of a judgment at law, the injured party, if his
own
conduct has been blameless, ought to be relieved against it; and Jordan
vs. Russell [8 Ohio Dec. Reprint, 467], where a verdict and judgment
entered
upon compromise of a will contest, by an attorney for a contestant of
the
will, without authority, was set aside).
In connection with
a correct disposition of the case, the point should not be neglected
that
the rights of minors are involved. In the affidavit subscribed by
Casimiro
Natividad he solemnly avers that his nephews and niece have relied upon
him to object to the probate of the pretended will and that he had
agreed
to attend to the matter for them. If this be true, it is too plain for
argument that no lawyer would have the right to bind minors not
otherwise
represented at the hearing.
We reach the conclusion
that while Casimiro Natividad was negligent, his negligence under the
circumstances
of the case was excusable, and that the other petitioners have not been
negligent. A new trial to bring forth all the pertinent evidence would
thus be in order. It may be that such a proceeding will merely result
in
prolonging the litigation and that it will serve no good purpose. As to
that we cannot say. At least a judgment on the merits of the case is
preferable.
In the interests of justice, the judgment appealed from should be set
aside.
As responsive to the
foregoing, the orders of the trial court are vacated and the record
remanded
for trial to determine if the will of Gregorio Natividad should be
admitted
to probate, and without special finding as to costs in this instance,
it
is so ordered.
Johnson, Villamor,
Ostrand, Johns, Romualdez and Villa-Real, JJ., concur. |