Republic of the Philippines
G.R. No. L-11994 March 14, 1917
STAPLES-HOWE PRINTING COMPANY, plaintiff-appellee,
MANILA BUILDING AND LOAN ASSOCIATION, ET AL., defendants.
JOHN C HOWE and IDA HOWE, appellants.
Wolfson and Wolfson for appellants.
Beaumont and Tenney for appellee.
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, which stock stood, at the time, in the name if Ida Howe, his wife. At the sheriff's sale of this property, it was purchased by the plaintiff company by whom this action was brought to compel 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 only interest whatever in the stock of the Manila Building and Loan Association 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 purchased 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 he 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 debt. (Art. 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 the 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 give 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 hands of the clerk of the 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 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 established 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.
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