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[ Act No. 190, August 07, 1901 ]

AN ACT PROVIDING A CODE OF PROCEDURE IN CIVIL ACTIONS AND SPECIAL PROCEEDINGS IN THE PHILIPPINE ISLANDS

By authority of the President of the United States, be it enacted by the United States Philippine Commission, that:

PART I

CHAPTER I
GENERAL AND PRELIMINARY PROVISIONS

Section 1. Interpretation of Words. - In the interpretation of this Code, unless the context shows that another sense was intended, the word "person" includes a private corporation;"writing" includes printing; "oath" includes affirmation or other solemn declaration in such form as the court shall find to be obligatory upon the conscience of the witness; "of unsound mind" includes every species of mental deficiency or derangement; "bond" includes an undertaking or recognizance; "and" may be read "or," and "or" read "and," if the sense requires it; "writ" signifies an order or precept in writing issued in the name of the Government, or of a court or judicial officer, and the word "process" a writ or summons issued in the course of judicial proceedings; an "action" means an ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the redress or prevention of a wrong; every other remedy furnished by law is a special proceeding; "pleadings" are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court; words in the present tense include the future tense, and in the masculine gender include the feminine and neuter genders; and words in the plural include the singular, and in the singular include the plural number; the term "dollars" means the money of the United States, and the term "pesos" means Mexican or insular currency.

The phrase "territory of the United States," or "territories of the United States," includes any body politic and any territorial possession under the jurisdiction of the United States.

But this enumeration shall not be construed to require a strict construction of other general words.

Section 2. Construction of Code. - The provisions of this Code, and the proceedings under it, shall be liberally construed, in order to promote its object and assist the parties in obtaining speedy justice.

Section 3. Powers of Deputies. - The duty enjoined by statute upon a ministerial officer, and an act permitted to be done by him, may be performed by his lawful deputy.

Section 4. How time computed. - Unless otherwise specially provided, the time within which an act is required by law to be done shall be computed by excluding the first day and including the last; and if the last be Sunday or a legal holiday it shall be excluded.

Section 5. Provisions concerning process. - Process shall be under the seal of the court from which it issues, be styled "The United States of America, Philippine Islands, Province of ________________" to be signed by the clerk and bear date the day it actually issued.

Section 6. Rules of Court. - The judges of the Supreme Court shall prepare rules regulating the conduct of business in the Supreme Court and in the Courts of First Instance. The rules shall be uniform for all Courts of First Instance throughout the Islands. Such rules, when duly made and promulgated and not in conflict with the laws of the United States or of the Philippine Islands, shall be binding and must be observed, but no judgment shall be reversed by reason of a failure of the court to comply with such rules unless the substantial rights of a party have been impaired by such failure.

Section 7. Stamped Paper. - Stamped paper is not required for use in proceedings in any court. But, for uniformity and convenience of folding and filing papers, the rules of court may prescribe the size and form of sheets of paper to be used for all written and printed documents in legal proceedings.

Section 8. Disqualification of Judges. - No judge, magistrate, justice of the peace, assessor, referee, or presiding officer of any tribunal shall sit in any cause or proceeding in which he is pecuniarily interested, or related to either party within the sixth degree of consanguinity or affinity, computed according to the rules of the civil law, nor in which he has been counsel, nor in which he has presided in any inferior judicature when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.

No challenge as to the competency of any of the officials named in this section shall be received or allowed; but if it be claimed that the official is disqualified by the provisions of this section, the party objecting to his competency may, in writing, file with the official his objection, stating the grounds therefor, and the official shall thereupon proceed with the trial, or withdraw therefrom, in accordance with his determination of the question of his disqualification. His decision shall be forthwith made in writing and filed with the other papers in the case, but no appeal or stay of action shall be allowed from, or by reason of, his decision in favor of his own competency, until after final judgment in his court.

Section 9. Civil liability of Judges. - No judge, justice of the peace or assessor shall be liable to a civil action for the recovery of damages by reason of any judicial action or judgment rendered by him in good faith, and within the limits of his legal powers and jurisdiction.

Section 10. Publicity of proceedings and records. - The sitting of every court of justice shall be public, but any court may, in its discretion, exclude the public when the testimony to be adduced is of so indecent a nature as to require such exclusion in the interests of morality. The records of every court of justice shall be public records and available for the inspection of any party in interest, at all proper business hours, under the supervision of the clerk having the custody of such records, unless the court shall in any special case have forbidden the publicity of the records, in the interests of morality, by reason of their indecent character.

Section 11. Incidental powers of courts. - Every court shall have power:

1. To preserve and enforce order in its immediate presence;

2. To enforce order in proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority;

3. To compel obedience to its judgments, orders, and process, and to the lawful orders of a judge out of court, in an action or proceeding pending therein;

4. To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto;

5. To compel the attendance of persons to testify in an action or proceeding pending therein;

6. To administer or cause to be administered oaths in an action or proceeding pending therein, and in all other cases where it may be necessary in the exercise of its powers;

7. To amend and control its process and orders so as to make them conformable to law and justice.

Section 12. Official Language. - The official language of all courts and their records shall be the Spanish language, until the first day of January, nineteen hundred and six. After that date English shall be the official language. But the Supreme Court, or any Court of First Instance, may, in its discretion, order a duplicate record in the English language to be made and duly enrolled in any action or proceeding, whenever the court shall determine that such duplicate record would promote the public convenience and the interests of the parties.

Provided, That any party or his counsel may examine or cross-examine witnesses, or make an oral argument in English or a native dialect and the same shall be clearly interpreted into Spanish by a court interpreter; and a party or his counsel may submit a written or printed pleading or brief in English or a native dialect, if at the same time he accompanies it by a correct Spanish translation: And provided further, That in cases in which all the parties or counsel stipulate in writing, and the court consents, the proceedings may be conducted in English or a native dialect only, but in such case the record of the pleadings, bills of exceptions, and judgments shall be made in Spanish as well as in the language in which the cause was conducted.

CHAPTER II
LAWYERS, THEIR QUALIFICATIONS AND DUTIES

Section 13. Who may practice as lawyers. - The following persons, if not specially declared ineligible, are entitled to practice law in the courts of the Philippine Islands:

1. Those who have been duly licensed under the laws and orders of the Islands under the sovereignty of Spain or of the United States and are in good and regular standing as members of the bar of the Philippine Islands at the time of the adoption of this Code;

2. Those who are hereafter licensed in the manner herein prescribed.

Section 14. Qualification of applicants. - Any resident of the Philippine Islands, not a subject or citizen of any foreign government, of the age of twenty-three years, of good moral character, and who possesses the necessary qualifications of learning and ability, is entitled to admission as a member of the bar of the Islands and to practice as such in all their courts.

Section 15. Certificates of good character required. - Every applicant for admission as a member of the bar must produce before the Supreme Court satisfactory testimonials of good moral character, and must satisfactorily pass a proper examination upon all the codes of law and procedure in force in the Philippine Islands, and upon such other branches of legal learning as the Supreme Court by general rule shall provide. The Supreme Court by rule may require that applicants shall have regularly and attentively studied law for a fixed period before taking the examination, and may specify the kind of evidence necessary to establish the fact: Provided, nevertheless, That if the applicant has been admitted to practice law in the courts of the Philippine Islands, or in the courts of Spain, or any of its dependencies, during the period of the Spanish sovereignty in the Philippine Islands, he may be admitted to practice in the courts of these islands without further examination, except as in this section hereinafter provided, upon the production of his license and satisfactory evidence that such license has not been revoked, and that the applicant is of good moral character and professional standing; but the judges of the Supreme Court may, by general rules, provide that an applicant for admission under this proviso shall satisfactorily pass an examination upon the codes of law and procedure in force in these Islands.

Section 16. Place and manner of examinations. - Such examinations shall be conducted at Manila, by the judges of the Supreme Court or by a committee of competent lawyers by them to be appointed, and shall be held at such times as the judges of that court shall provide by general or special rules.

Section 17. Admission. - If upon examination, the candidate is found qualified, the Supreme Court shall admit him as a member of the bar for all the Courts of the Philippine Islands, and shall direct an order to be entered to that effect upon its records, and that a certificate of such record be given to him by the clerk of the court, which certificate shall be his license.

Section 18. Oaths. - Before receiving a certificate the applicant shall take and subscribe in court the following oaths:

1. "I, _________________________, recognize and accept the supreme authority of the United States of America, and I do swear that I will maintain allegiance to that nation; that I will obey the existing laws which rule in the Philippine Islands, as well as the legal orders and decrees of the duly constituted authorities therein; that I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God."

2. "I do solemnly swear that I mill do no falsehood, nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless, or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, but will conduct myself in the office of a lawyer within the courts according to the best of my knowledge and discretion, with all good fidelity as well to the courts as to my clients. So help me God."

These oaths may be taken before any judge of the Supreme Court, and a certificate that the oath has been taken shall be set forth in the license.

Section 19. Admission from other jurisdictions. - Every resident of the Philippine Islands, not a citizen or subject of any foreign government, who has been admitted to practice law in the Supreme Court of the United States, or in any circuit court of appeals, circuit or district court therein, or in the highest court of any State or Territory of the United States, may be admitted to practice in the courts of these islands upon the production of his license and satisfactory evidence that such license has not been revoked and that the applicant is of good moral character and professional standing. But the judges of the Supreme Court may, by general rules, provide that an applicant for admission under this section shall satisfactorily pass an examination upon the codes of law and procedure in force in these Islands.

The applicant under this section shall take the oaths above provided before receiving his license.

Section 20. Lawyers' roll. - The clerk of the Supreme Court shall keep a roll of all the lawyers admitted to practice in the court, which roll shall be signed by the person admitted before he receives his license.

Section 21. Disbarments. - A member of the bar may be removed or suspended from his office as lawyer by the Supreme Court for any deceit, malpractice or other gross misconduct in such office, or by reason of his conviction of a crime involving moral turpitude or for any violation of either of the oaths aforesaid, or for the willful disobedience of any lawful order of the Supreme Court or Courts of First Instance, or for corruptly or willfully appearing as a lawyer for a party to an action or proceeding without authority so to do.

Section 22. Suspension of lawyers. - Courts of First Instance may suspend a lawyer from the further practice of his profession for any of the causes named in the last preceding section, and after such suspension such lawyer will not be privileged to practice his profession in any of the courts of the Islands until further action of the Supreme Court in the premises.

Section 23. Proceedings upon suspension. - Upon such suspension the judge of the Court of First Instance ordering the suspension shall forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full statement of the facts upon which the same was based. Upon the receipt of such certified copy and statement, the Supreme Court shall make full investigation of the facts involved and make such order revoking or extending the suspension, or removing the lawyer permanently from the roll, as it shall find the facts to warrant.

Section 24. Institution and costs of disbarment proceedings. - Proceedings for the removal or suspension of a lawyer may be taken by the court of its own motion, or upon the complaint of another in writing. It shall be the duty of the Attorney-General for the Islands to appear for the Government in all such proceedings in the Supreme Court, and to conduct prosecutions. The costs of the prosecution of such proceedings shall be paid by the Government; the cost of the defendant by himself.

Section 25. Hearing of charges. - No lawyer shall be removed from the roll or be suspended from the performance of his profession until he has had full opportunity to answer the charges against him, and to produce witnesses in his own behalf and to be heard by himself and counsel, if he so desires, upon reasonable notice. But if upon reasonable notice the accused fails to appear and answer the accusation, the court may proceed to determine the matter ex parte.

Section 26. Authority to appear. - No written power of attorney shall be required to authorize a duly enrolled lawyer to appear in court for his client, but the presiding judge may, on motion of either party, and on reasonable grounds therefor being shown, require any lawyer who assumes the right to appear in an action or proceeding to produce or prove the authority under which he appears, and to disclose, whenever pertinent to any issue, the name of the person who employed him, and may make any order that justice may require on such investigation; but, prima facie, lawyers shall be held properly authorized to represent any causes they may appear in.

Section 27. 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 can not, without special authority, compromise their client's litigation, or receive anything in discharge of a client's claim but the full amount in cash.

Section 28. Unauthorized appearances; contempt. - A lawyer willfully appearing in court for a person without being employed, unless by leave of the court, is guilty of a contempt of court, and may be fined a sum of not less than one hundred dollars and not more than one thousand dollars by the court in which such unauthorized appearance has been entered.

Section 29. Lawyer's fees. - A lawyer shall be entitled to have and recover from his client no more than a reasonable compensation for the services rendered, with a view to the importance of the subject matter of the controversy, to the extent of the services rendered, and the professional standing of the lawyer. But in such cases the court shall not be bound by the opinion of lawyers as expert witnesses as to the proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount of recovery if found by the court not to be unconscionable or unreasonable.

Section 30. Retention of client's funds. - When a lawyer unjustly retains in his hands money of his clients after it has been demanded, he may be dealt with as for contempt of court, and may, after due hearing, be imprisoned until he pays over his client's moneys ascertained to be unlawfully in his hands, but for a period not exceeding six months in all. But proceedings under this section shall not be a bar to a criminal prosecution for embezzlement.

Section 31. Inviolability of communications of clients. - A lawyer must strictly maintain inviolate the confidence and preserve the secrets of his client. He shall not be permitted in any court, without the consent of his client, given in open court, to testify to any facts imparted to him by his client in professional consultation, or for the purpose of obtaining advice upon legal matters.

Section 32. Change of lawyers. - A lawyer may retire at any time from any action or special proceeding, by the written consent of his client filed in court, and a client may at any time dismiss his lawyer or substitute another in his place. A lawyer may also retire at any time from an action or special proceeding, without the consent of his client, should the court, on notice to the client and lawyer, and on hearing, determine that he ought to be allowed to retire. In case of such substitution, the name of the lawyer newly employed shall be entered on the docket of the court in place of the former one, and written notice of the change shall be given to the adverse party.

Section 33. Procuradors or solicitors. - Procuradors or solicitors will no longer be recognized as officers of the courts, and the duties formerly appertaining to such office shall devolve upon lawyers.

Section 34. Employment of lawyers not required. - Any party may conduct his litigation in a court of a justice of the peace, in person or with the aid of an agent or friend appointed by him for that purpose, or with the aid of a lawyer; in any other court a party may conduct his litigation personally or by aid of a lawyer, and his appearance must be either personal or by the aid of a duly authorized member of the bar.

Section 35. Lawyers for destitute litigants. - The Supreme Court and Courts of the First Instance may, in their discretion, assign any lawyer to render professional aid to a party, in any pending action, free of charge, if such court, upon full investigation, shall find that the party is destitute and unable to employ a lawyer and that the services of counsel are necessary to secure the ends of justice and to protect the rights of the party. Upon such assignment, it shall be the duty of the lawyer assigned to render the required services, unless he shall be excused therefrom by the court for sufficient cause shown.

Section 36. Judges as lawyers. - No judge of the Supreme Court or Court of First Instance, Attorney-General, Solicitor-General, assistant-attorney-general, or clerk of court shall be allowed to act as a lawyer or to give professional advice to clients while holding office.

Section 37. Lawyer's liens. - A lawyer shall have a lien upon all the funds and papers and documents of his client which may lawfully have come into his possession, and may retain the same until his lawful fees and disbursements due to him from his client have been paid, and may apply such funds to the satisfaction thereof. He shall also have a lien to the same extent upon all judgments and decrees for the payment of money, and executions issued in pursuance of such judgments and decrees which he has secured in a litigation of his client, from and after, but not before, the time when he shall have caused a statement of his claim of such lien to be entered upon the records of the court rendering such judgment or decree, or issuing such execution, and shall have caused written notice thereof to be delivered to the adverse party, and shall have the same right and power over such judgments, decrees, and executions to enforce his lien as his client had or may have, to the extent that may be necessary for the payment of his just fees and disbursements.

CHAPTER III

PRESCRIPTION : TIME OF COMMENCING ACTION

Section 38. To what this chapter does not apply. - This chapter shall not apply to actions already commenced, or to cases wherein the right of action has already accrued; but the statutes in force when the action or right of action accrued shall be applicable to such cases according to the subject of the action and without regard to the form; nor shall this chapter apply in the case of a continuing and subsisting trust, nor to an action by the vendee of real property in possession thereof to obtain the conveyance of it: Provided, nevertheless, That all rights of action which have already accrued, except those named in the last preceding paragraph, must be vindicated by the commencement of an action or proceeding to enforce the same within ten years after this Act comes into effect.

Section 39. Special limitations excepted. - Civil actions can only be commenced within the periods prescribed in this chapter after the cause of action accrues; but where a different limitation is prescribed by this Code, that shall govern.

Section 40. Period of prescription as to real estate. - An action for recovery of the title to, or possession of, real property, or an interest therein, can only be brought within ten years after the cause of such action accrues.

Section 41. Title to land by prescription. - Ten years actual adverse possession by any person claiming to be the owner for that time of any land or interest in land, uninterruptedly continued for ten years by occupancy, descent, grants, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to the persons under disabilities the rights secured by the next section. In order to constitute such title by prescription or adverse possession, the possession by the claimant or by the person under or through whom he claims must have been actual, open, public, continuous, under a claim of title exclusive of any other right and adverse to all other claimants. But failure to occupy or cultivate land solely by reason of war shall not be deemed to constitute an interruption of possession of the claimant, and his title by prescription shall be complete, if in other respects perfect, notwithstanding such failure to occupy or cultivate the land during the continuance of war.

Section 42. Exceptions in favor of persons under disability. - If a person entitled to bring the action mentioned in the preceding sections of this chapter is, at the time the cause of action accrues, within the age of minority, of unsound mind or in prison, such person may, after the expiration of ten years from the time the cause of action accrues, bring such action within three years after such disability is removed.

Section 43. Other civil actions; how limited. - Civil actions other than for the recovery of real property can only be brought within the following periods after the right of action accrues:

1. Within ten years: An action upon an agreement, contract, or promise in writing, or upon the judgment or decree of a court;

2. Within six years: An action upon a contract not in writing, whether such contract is express or implied, and an action upon a liability created by statute other than a forfeiture or penalty;

3. Within four years: An action for an injury to or trespass upon real estate. An action for the recovery of personal property. An action for the recovery of damages for taking, retaining, or injuring personal property. An action for injury to the person other than injuries resulting from assault, battery, or false imprisonment. An action for an injury to the rights of the plaintiff not arising on contract and not hereinafter enumerated. An action for relief on the ground of fraud, but the right of action in such case shall not be deemed to have accrued until the discovery of the fraud;

4. Within one year: An action for libel or slander, assault, battery, malicious prosecution, or false imprisonment. An action upon a statute, for a penalty or forfeiture; but where a different limitation is prescribed in the statute by which the remedy is given, the action must be brought within the period so limited.

Section 44. For other relief. - An action for relief not herein provided for can only be brought within ten years after the cause of action accrues.

Section 45. Rights saved to certain persons. - If a person entitled to bring any action mentioned in either of the two last preceding sections is, at the time the cause of action accrues, within the age of minority, of unsound mind, or in prison, such person may bring such action within two years after the disability is removed unless the right of action is one of those named in subdivision four of section forty-three, in which case it may be brought within one year after such disability is removed.

Section 46. When action deemed commenced. - An action shall be deemed commenced within the meaning of this chapter, as to each defendant, at the date of the filing of the complaint in court, but if an additional defendant is made after the commencement of the action, the action shall be deemed commenced within the meaning of this chapter, as to each defendant, at the date of the summons which is served on him.

Section 47. As to absent persons. - If, when a cause of action accrues against a person, he is out of the Philippine Islands, or has absconded or concealed himself, and has not known or visible property within the Islands; the period limited for the commencement of the action shall not begin to run until he comes into the Islands or while he is so absconded or concealed, or until he has known or visible property within the Islands; and if, after the cause of action accrues, he departs from the Philippine Islands, or absconds or conceals himself, the time of his absence or concealment shall not be computed as any part of the period within which time the cause of action should be brought.

Section 48. If barred at place where cause of action arose, barred here. - If, by the laws of the state or country where the cause of action arose, the action is barred, it is also barred in the Philippine Islands.

Section 49. Saving in other cases. - If, in an action commenced, or attempted to be commenced, in due time, a judgment for the plaintiff be reversed, or if the plaintiff fail otherwise than upon the merits, and the time limited for the commencement of such action has, at the date of such reversal or failure, expired, the plaintiff, or, if he die and the cause of action survive, his representatives, may commence a new action within one year after such date, and this provision shall apply to any claim asserted in any pleading by a defendant.

Section 50. What shall renew right of action. - When payment has been made upon any demand founded upon contract, or a written acknowledgment thereof or a promise to pay the same has been made and signed by the party sought to be charged, an action may be brought thereon within the time herein limited, after such payment, acknowledgment, or promise.

CHAPTER IV
PROCEDURE IN COURTS OF JUSTICE OF THE PEACE

Section 51. Summoning of defendants. - Defendants in suits before justices of the peace may be summoned to appear in the manner provided in articles seven hundred and four, seven hundred and five, seven hundred and six, seven hundred and seven, seven hundred and eight, and seven hundred and nine of the Code of Civil Procedure of the Philippine Islands, in force in the year eighteen hundred and ninety-eight, before the American occupancy. They may likewise be lawfully summoned in the manner provided in Chapter Fifteen of this Code.

Section 52. The Complaint. - The complaint shall state the name and residence of the plaintiff and that of the defendant, the substance of the claim made, the grounds of action, the amount sought to be recovered, and the date when the claim is presented to the court.

Section 53. Nonsuit. - If the plaintiff does not appear at the time and place designated in the summons, the justice may dismiss the action for failure to prosecute, and render judgment for the defendant to recover his lawful costs. But such dismissal without hearing shall not be a bar to subsequent action for the same cause.

Section 54. Default. - If the defendant does not appear at the time and place designated in the summons, judgment may be rendered against him by default, and the court shall thereupon proceed to hear the testimony of the plaintiff and his witnesses as to the amount which the plaintiff is entitled to recover, and shall render judgment for the plaintiff to recover of the defendant such sum as he finds established by the evidence to be justly due with lawful costs.

Section 55. Vacating nonsuits and defaults. - Within two hours after the entry of a nonsuit or default as provided in the last two preceding sections, the court may strike off the entry of nonsuit or default and allow the party nonsuited or defaulted to have a trial upon the merits of the cause, if such party shall appear and make it manifest to the court that his failure to appear at the time designated occurred by reason of fraud, accident, or mistake.

Section 56. Trial. - The defendant may interpose any lawful defense, including a counterclaim or plea in offset, for any sum not exceeding the limit of a justice of the peace, verbally, without written pleadings. The plaintiff may make an opening statement by himself, his agent or counsel, if he so desires, explaining the character of his claim, and the defendant, personally or by his agent or counsel, may make a like opening statement, if he so desires, explaining the character of his defense or counterclaim. Upon the conclusion of the opening statement, the court shall hear the testimony of the plaintiff and his witnesses; afterwards, the testimony of the defendant and his witnesses, all under the sanction of an oath. Upon the conclusion of the testimony in behalf of the defendant, the plaintiff may offer rebutting testimony. When the testimony has been closed, the defendant or his agent or counsel shall be heard in argument, if he so desires, and upon the conclusion of his argument the plaintiff or his agent or counsel shall be heard, if he so desires.

Section 57. Assessors in justice courts; how Hhosen. - Within the first week of January of each year, the president and municipal council of each municipality shall prepare a list of residents of the municipality best fitted by education, natural ability, and reputation for probity, to sit as assessors in the trial of actions in courts of justice of the peace. Such list shall contain not less than ten and not more than twenty-five names, and shall be made in duplicate, one copy to remain in the hands of the municipal secretary and the other in the office of the justice of the peace. The name of any person may be stricken from the list, at any time, upon the order of a majority of the municipal council, upon its being made to appear that the name ought to be stricken out, by reason of the death, permanent disability, or unfitness of the person named; and in case names are so stricken out other names shall be added in their place, to be selected as in this section provided.

Section 58. Rights of parties to have assessors. - Either party to an action may apply in writing to the justice of the peace, who is to try the action, for assessors to sit in the trial. Upon the filing of such application the justice shall direct that assessors be provided. Thereupon the parties shall be notified forthwith to appear before the justice for the purpose of selecting assessors, who shall be selected from the list provided for in the preceding section, and shall be selected in the following manner in the presence of the justice: The plaintiff shall strike out from the list one name; then the defendant shall strike out one name, and so, alternately, the parties shall strike out names until but two remain on the list. The remaining two shall be the assessors to sit in the action; but if one or more of the two remaining are disqualified by law to sit as assessors, then the justice shall draw one or two names, as the case may be, by lot from those stricken out, and the person or persons thus drawn shall act as assessors, as the case may be.

Section 59. Summoning assessors. - The person so selected as assessors shall, under the direction of the justice of the peace, be summoned to attend and serve as assessors in the action, and a summons for that purpose shall be served in the same manner as other writs or summons.

If any person summoned to act as assessor fails, without reasonable excuse, to attend at the trial or any adjournment thereof, or to continue to serve throughout the trial, he shall be liable under a summary order of the court to a fine not exceeding ten dollars; but the justice may, on reasonable cause shown, excuse from attendance in any particular action any person summoned as assessor, and may, for like cause, discharge from attendance in any action, a person who is acting as assessor thereon. In case of any person so excused, the vacancy thus created shall be filled in the manner provided in section fifty-eight.

Section 60. Compensation of assessors. - Each assessor shall receive a compensation of two pesos per day for the actual time by him employed in the trial of the action and in advising the justice as to the decision thereof, to be taxed as cost against the defeated party, but to be paid primarily by the party demanding assessors.

Section 61. Oath of assessors. - Before entering upon the performance of his duties in any action, each assessor shall be sworn by the justice to the faithful and honest performance of his duties as such assessor.

Section 62. Duties of assessors. - The duties of assessors, when their aid is invoked as herein provided, shall be to sit with the justice upon the trial of the action and to advise him in the determination of all questions of law or fact involved in the case; but the final responsibility for the decision must rest with the justice. If the two assessors shall both be of the opinion that the finding of fact or judgment in any action is wrong, they shall certify in writing their dissent therefrom and their reasons for such dissent, and sign such certification, which shall be filed with the other papers in the action. In case such dissent is filed and the action is appealed, the dissent shall be filed with the other appeal papers in the Court of First Instance, and that court shall give to the dissent such weight as, in its opinion, it is entitled to.

Section 63. Testimony. - All testimony, except documentary, shall be given orally in court, at the time of trial, unless the written testimony of witnesses shall have previously been taken in accordance with general law upon that subject and produced at the trial in the form or depositions.

Section 64. Adjournment. - Justices of the peace shall have power to adjourn the hearing of an action from day to day as the interests of justice may require, but shall not have power to adjourn hearings for a longer period than one week for each adjournment, nor for more than three months in all.

Section 65. Power to punish for contempt of court. - A justice of the peace may summarily impose a fine not exceeding ten pesos, or sentence to imprisonment for a period not exceeding one day, or impose both of such punishments, upon a person guilty of misbehaviour in the presence of or so near the justice of the peace as to obstruct him in the performance of his judicial duties.

Section 66. Judgments. - At the conclusion of the trial, the justice shall render judgment for the plaintiff to recover such sum as he finds to be justly his due, with costs; or for the defendant to recover his costs, as the law and evidence may warrant. If there is a counterclaim or plea in offset the justice shall render judgment for the sum found in arrear from either party, with costs. But he may adjourn the disposition of the case to a stated day, not exceeding one week from the time of the conclusion of the trial, for the consideration of judgment, if he require time for consideration.

Section 67. Form of judgment. - The entry of judgment need not state the facts or conclusions arrived at by the justice, but shall be substantially in the following form only:

"Judgment for the plaintiff to recover . . . pesos damages and costs of the action;" or

"Judgment for the defendant to recover his costs," if he shall not be entitled to anything on a counterclaim; or, "Judgment for the defendant to recover . . . . pesos and his costs," if he shall have established a counterclaim in excess of the demand established by the plaintiff.

Section 68. Witnesses may be subpoenaed. - At the instance of either party the justice may at any time after the commencement of the action issue a subpoena directed to any witness whose testimony may be desired, requiring his attendance as a witness at a time and place therein specified, which subpoena shall be served upon the witness in the same manner as has been above provided for the service of a summons to the defendant, and his lawful fees as a witness shall, if he require it, be then tendered to him. If the witness fails to appear at the time and place specified in the subpoena, the justice may issue a warrant upon which he may be seized and brought before the justice and compelled to testify, and the costs of such warrant and seizure of the witness shall be paid by the witness if the justice shall determine that his failure to answer the subpoena was willful or without just excuse.

Section 69. Dockets. - Every justice of the peace shall keep a well-bound book, styled "Docket," upon each page of which shall be the entries as to two actions, entries as to one to occupy the upper half of the page, and, as to the other, the lower half. Upon it he shall enter the names of the plaintiff and defendant in any suit brought before him; the time of issuing process, and when returnable; the appearance or default of the person summoned to appear; the names of the witnesses sworn; the date and amount of the judgment; the date of issuing execution, when one is issued, and a copy of the return thereon; the appeal, when and by whom demanded, and, briefly, all the proceedings before him touching the suit.

Section 70. Entry to identify docket. - Each justice of the peace shall, at the beginning and in front of all his entries in his docket, make and subscribe substantially the following entry, to wit:

"A docket of proceedings in matters civil and criminal before ____________, justice of the peace of the municipality of _______________, in the Province of _________________, in the Philippine Islands.

"Witness my signature,

"___________________
"Justice of the Peace."

Section 71. Final disposition of dockets. - Every justice of the peace whose term of office shall expire, or who shall resign, removed from the province, or otherwise go out of office, and the legal representative of every justice of the peace who shall die, shall, within ten days thereafter, deliver his docket, with all process and papers and books relating to his office, to the clerk of the Court of First Instance of the province; and if any justice of the peace or legal representative of any justice of the peace who shall die, refuse or neglect to deliver such docket, process, papers, and books to said clerk as required, he shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment for not more than six months, or by both. Said clerk shall keep in his office such docket, process, papers, and books as public records, and shall certify copies thereof, while kept by him, whenever lawfully demanded. While such docket, process, papers, and books are in the custody of the clerk, if there shall be on such docket any judgment unexecuted, the clerk may issue execution upon such judgment, and the execution so issued shall have the same effect as if issued by the justice who rendered the judgment.

Section 72. Execution. - If no appeal from a judgment of a justice of the peace shall be perfected as herein provided, the justice of the peace shall, at the request of the successful party, issue an execution for the enforcement of the judgment, at the expiration of the time limited by law for the perfection of an appeal.

Section 73. When justice is disqualified. - When a justice of the peace is disqualified from presiding, or when there is no justice of the peace in the municipality where the action is to be brought, or there is one and he refuses to serve, generally or in any particular case, and there is no auxiliary justice in the municipality competent and able to sit, any justice of the peace of the province shall be authorized to issue all process and to preside in the particular case and in the municipality in which the action shall be brought.

Section 74. Appeals. - Either party to an action before a justice of the peace, may appeal from the judgment of the justice of the peace to the next regular stated term of the Court of First Instance to be held within the province in which the judgment was rendered in the manner herein provided.

Section 75. Effect of appeals. - A perfected appeal shall operate to vacate the judgment of the justice of the peace, and the action when duly entered in the Court of First Instance shall stand for trial de novo upon its merits in accordance with the regular procedure in that court, as though the same never had been tried and had been originally there commenced.

Section 76. Appeals, how perfected. - Within five days after the rendition of a judgment by a justice of the peace, the party desiring to appeal may file with the justice a written statement that he appeals to the Court of First Instance, and shall, within said period of five days, give a bond with sufficient surety to be approved by said justice, payable to the opposite party, in the penal sum of one hundred dollars, conditioned for the payment of all such costs in the action as finally may be awarded against him. The filing of such statement and giving of such bond shall perfect the appeal.

Section 77. Copy of record to be transmitted. - The justice of the peace, upon the perfection of the appeal, shall prepare and certify his record to the following effect, namely:

"Copy of the record of the proceedings before ________________, a justice of the peace of the municipality of ______________, in the Province of ________________, in the case herein set forth, to wit: (Here copy the entries on the docket and certify as follows; namely:)

"Philippine Islands, Province of ________________, I, ________________, a justice of the peace of the said province, certify that the foregoing is a copy of the record and proceedings before me in the case stated therein as appears on my docket.

"Given under my hand this ____________ day of ___________, A.D. _____.

"__________________
"Justice of the peace."

Section 78. Papers to be delivered to clerk of Court of First Instance. - The justice of the peace from whose decision an appeal shall be taken shall, on or before the first day of the next term of the Court of First Instance for the province in which the same is returnable, transmit to the clerk of that court a certified copy of the record of proceedings, with all the original papers and process in the case, and the original appeal bond given by the appellant, and the clerk shall docket the same in the Court of First Instance, and shall be entitled to the same fees, upon such appeals, as for similar services in suits originating in said court. The justice shall at all times be allowed, and, in the interest of justice, may be required, by the Court of First Instance, to amend his return according to the facts.

Section 79. Settlement of appeal cases. - At any time after the perfection of an appeal from a judgment of a justice of the peace, and before the papers have been transmitted to the clerk of the Court of First Instance to which the action is appealed, the parties may adjust the controversy by agreement in writing, signed by both parties and lodged with the justice of the peace, who shall enter the same upon his docket, and no further proceeding shall thereafter be taken in the action. But if the appeal papers have already been transmitted to the clerk of the Court of First Instance, then the justice shall immediately transmit the compromise agreement to the clerk of the Court of First Instance, who shall file the same and enter a memorandum thereof upon his docket, and no further proceedings shall thereafter be taken in the action.

Section 80. Forcible entry into and detainer of land or buildings. - Anyone deprived of the possession of land, or a building, by force, intimidation, fraud, strategy, or stealth, and any landlord, vendor, vendee, or other person, against whom the possession of land or a building is unlawfully withheld, by his tenant, vendee, vendor, or other person, after the expiration of his right by contract, express or implied, to hold possession, and the legal representatives or assigns of him who is so deprived of possession, or from whom possession is so withheld, as against him who so obtains possession or withholds possession after the expiration of his rights, and all persons claiming to hold under him, shall, at any time within one year after such deprivation or unlawful withholding of possession be entitled to restitution of possession, and to damages, in a court of justice of the peace, in the manner hereinafter prescribed. The owner of the land, or of a building, occupied by a tenant, may likewise obtain restitution or possession of the premises, and recover rents due and damages, in the manner next hereinafter provided, when the tenant for thirty days after due demand for payment of rent due for the occupancy of the premises shall have refused or neglected to make payment of the same.

Section 81. The complaint. - The party turned out of possession, or held out of possession, shall institute an action before any justice of the peace of the municipality in which the land or building, or some part thereof, is situated, to recover possession thereof and damages. The complaint shall be substantially in the following form:

"The plaintiff (naming him) complains that the defendant (naming him) has unlawfully turned him out of possession (or unlawfully withholds from him the possession, as the case may be) of certain lands and building (here describe the premises) lying and being within said municipality, whereof he prays the possession, and he also prays for just damages and costs.

"______________________
"The plaintiff (naming him)."

The complaint shall be verified by the oath of the plaintiff, or his agent or attorney, and certified by the justice of the peace before whom the action is instituted. Process shall issue to and be served upon the defendant, as in other actions before a justice of the peace.

Section 82. Trial. - The action shall be tried in the same manner as other actions before a justice of the peace.

Section 83. Continuance, and obligation therefor. - No continuance shall be granted for a longer period than one week, unless the defendant applying therefor shall give an obligation to the adverse party, with good and sufficient sureties to be approved by the justice, conditioned for the payment of rent and damages that may accrue, if judgment be rendered against the defendant.

Section 84. Judgment. - If, upon trial, the court shall find that the complaint is not true, it shall enter judgment against the plaintiff for costs. If it finds the complaint to be true, it shall render judgment against the defendant in favor of the plaintiff for restitution of the premises, and costs of suit, and for all arrears of rent, or a reasonable compensation for the use and occupation of the premises.

Section 85. The execution. - When the judgment of restitution shall be entered by the justice, he shall, at the request of the plaintiff, his agent or attorney, issue a writ of execution thereon, which shall be in the following form, as near as practicable:

"The Philippine Islands.
"Province of ________
"Municipality of __________

"To any officer authorized to serve process in the municipality of __________

"Whereas, in a certain action for the forcible entry and detention (or forcible detention, as the case may be) of the following-described premises, to wit, (here describe them) lately tried before me, wherein _______________ was plaintiff and ________________ was defendant, judgment was rendered on the ______ day of ________ ___________, A.D _____, that the plaintiff have restitution of the premises, and also that he recover damages to the amount of _________ dollars; also that he recover costs in the sum of _____________ dollars. You are therefore hereby commanded to cause the defendant to forthwith remove from said premises, and that the said plaintiff have restitution of the same; also that you levy upon goods and chattels of the said defendant and collect from him the rent, damages, and costs aforesaid, and costs of this execution and service thereof, in due form of law.

"Witness my hand this ___________ day of _______________, A.D. _______.

"___________________
"Justice of the peace."

But such execution shall not issue within five days from the date of the judgment, nor if an appeal to the Court of First Instance has been perfected, together with the due execution and delivery of the obligation referred to in section eighty-eight.

Section 86. Service of execution. - The officer shall, upon receiving the execution, execute the same, by restoring to the plaintiff the possession of the premises, and shall levy and collect the rent, damages, and costs awarded, and make return, as upon other executions.

Section 87. Such judgment not conclusive in another action. - A judgment rendered in a suit of unlawful entry and detainer, either for the plaintiff or defendant, shall not bar an action in the Court of First Instance between the same parties respecting title to the land or building; nor shall any judgment given therein be held conclusive of the facts found in another action between the same parties.

Section 88. Appeal. - Either party may appeal from the judgment of the justice to the Court of First Instance and the suit shall therein be conducted as appeals from justices in other civil actions; if the plaintiff recovers possession of the premises in the Court of First Instance, he shall have judgment for the amount of rents or damages then due. If the defendant appeals from the judgment of the justice he shall give security by an obligation, with sufficient securities, to be approved by the justice, to the plaintiff to enter the action in the Court of First Instance, and to pay rent then due, and intervening rent, damages, and costs, and the defendant and the sureties shall be liable upon their obligation for such rent, intervening rent, damages, and costs, down to the time of the final judgment in the action. The appeal shall not be allowed until such obligation has been filed with the justice, and the obligation shall be transmitted by the justice with the other papers to the clerk of the Court of First Instance to which the action is appealed.

PROCEDURE IN COURTS OF FIRST INSTANCE IN ACTIONS

CHAPTER V
PLEADINGS

Section 89. Pleadings. - The only pleading allowed on the part of the plaintiff shall be:

1. The complaint;

2. The demurrer to the answer;

And on the part of the defendant:

1. The demurrer to the complaint;

2. The answer.

Section 90. Complaint. - The complaint is a statement in a methodical and logical form of the circumstances which constitute the plaintiff's cause of action. The complaint must contain:

1. The name of the court and province in which the action is brought, and the names of the parties to the action;

2. A brief statement of the facts constituting the cause of action, in ordinary and concise language. If the complaint contains more than one cause of action, each distinct cause of action must be set forth in a separate paragraph containing all the facts constituting the particular cause of action;

3. A demand for the relief which the plaintiff claims.

If the recovery of money or damages is demanded, the amount demanded must be stated. If special relief, such as an order for the specific restitution of property, or the specific enforcement of a written contract for the sale of property, or an injunction is sought, the ground of demanding such relief must be stated and the special relief prayed for. But there may be added to the statement of the specific relief demanded a general prayer for such further or other relief as shall be deemed equitable.

Section 91. Demurrer to the complaint. - The demurrer is an allegation that, admitting the facts of the preceding pleading to be true, as stated by the party making it, he has yet shown no cause why the party demurring should be compelled by the court to proceed further. It imports that the objecting party will not proceed, but will wait the judgment of the court, whether he is bound so to do. The defendant may demur to the complaint, or to the statement of any distinct cause of action therein set forth, within the time fixed by general rules of court for such pleadings when it appears upon the face thereof, either:

1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or

2. That the plaintiff has no legal capacity to sue; or

3. That there is another action pending between the same parties for the same cause; or

4. That there is a defect or misjoinder of parties, plaintiff or defendant; or

5. That the complaint does not state facts sufficient to constitute a cause of action; or

6. That the complaint is ambiguous, unintelligible, or uncertain.

The demurrer must distinctly specify the grounds upon which any of the objections to the complaint, or to any of the causes of action therein stated, are taken.

Section 92. Matters not apparent of record. - When any of the matters enumerated in section ninety-one do not appear upon the face of the complaint, the objection can only be taken by answer.

Section 93. Effect of failure to object. - If no objection be taken to the complaint, either by demurrer or answer, the defendant shall be deemed to have waived all objections, excepting only the objection to the jurisdiction of the court over the subject-matter, and that the complaint does not state facts sufficient to constitute a cause of action.

Section 94. The answer. - The answer is a defense in writing, made by a defendant to the charges contained in a complaint filed by the plaintiff against him. The answer of the defendant shall contain:

1. A general or specific denial of the material allegations of the complaint, controverted by the defendant. A general denial only puts in issue the material allegations of the complaint;

2. A statement of any new matter constituting a defense or counterclaim. A material allegation of the complaint which is neither generally nor specifically denied in the answer shall be deemed to have been admitted.

Section 95. Defendant having counterclaim. - The defendant may set forth by answer as many defenses and counterclaims as he may have, whatever their nature. They must be separately stated, and the several defenses must refer to the cause of action which they are intended to answer, in a manner by which they may be intelligibly distinguished. The defendant may also answer one or more of the several causes of action stated in the complaint, and demur to the residue.

Section 96. Character of counterclaim. - A counterclaim, to be available as a defense in an answer, must be one in favor of all the substantial defendants and against all the substantial plaintiffs in the action.

Section 97. Effect of omission to set up counterclaim. - If the right out of which the counterclaim arises exists at the time of the commencement of the action and arises out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or is necessarily connected with the subject of the action, neither the defendant nor his assignee can afterwards maintain an action against the plaintiff therefor, if the defendant omits to set up a counterclaim for the same. But if the counterclaim arises out of transactions distinct from those set forth in the complaint as the foundation of the plaintiff's claim and not connected with the subject of the action, the defendant shall not be barred from any subsequent action upon such counterclaim by reason of his failure to set it up in his answer to the pending action.

Section 98. Cross complaint. - Whenever the defendant seeks affirmative relief aside from the payment of money against any party, he may in addition to his answer, file at the same time, or by permission of the court subsequently, a cross complaint. The defendants to the cross complaint may demur or answer thereto as they would to an original complaint.

Section 99. Demurrer to answer. - The plaintiff may, within a period to be fixed by general rules of court, demur to the answer of the defendant or to one or more of the several defenses or counterclaims set up in the answer, so as thus to test the legal sufficiency of the answer.

Section 100. Grounds of demurrer to answer. - The demurrer may be taken upon one or more of the following grounds:

1. That the answer does not state facts sufficient to constitute a defense or counterclaim;

2. That the answer is ambiguous, unintelligible, or uncertain.

The demurrer must distinctly specify grounds upon which any of the objections to the answer are taken.

Section 101. Proceedings on demurrer. - When a demurrer to any pleading is sustained, the party whose pleading is thus adjudged defective may amend his pleading within a time to be fixed by the court, with or without terms, as to the court shall seem just; but if the party fails to amend his pleading within the time limited or elects not to amend, the court shall render such judgment upon the subject-matter involved in the pleading and demurrer as the law and the facts of the case as set forth in the pleadings warrant. If the demurrer is overruled, the court shall proceed, if no answer is filed, to render such judgment as the law and the facts duly pleaded warrant. But after the overruling of a demurrer to a complaint, the defendant may answer within a time to be fixed by general rules of court; and after the overruling a demurrer to an answer the plaintiff may amend his complaint, if necessary, to meet new facts or counterclaims set forth in the answer.

Section 102. Authentication of pleadings. - Every pleading must be subscribed by the party or his attorney and a copy thereof must be forthwith furnished to the adverse party or his attorney.

Section 103. Actions and defenses based upon written instruments. - When an action is brought upon a written instrument and the complaint contains or has annexed a copy of such instrument, the genuineness and due execution of the instrument shall be deemed admitted, unless specifically denied under oath in the answer; and when the defense to an action, or a counterclaim stated in an answer, is founded upon a written instrument and the copy thereof is contained in or annexed to the answer, the genuineness and due execution of such instrument shall be deemed admitted, unless specifically denied under oath by the plaintiff in his pleadings.

Section 104. Plaintiff's reply to new matter contained in answer. - The plaintiff may reply to any new matter or special defense set up in the defendant's answer by an amendment to his complaint, which may be filed as a matter of course and without terms, within a period to be fixed by general rules of court. If the plaintiff does not amend his complaint, as provided in this section, he shall be deemed to have controverted every material statement of the answer.

Section 105. Supplemental complaint or answer. - The plaintiff and defendant, respectively, may be allowed, on motion to make a supplemental complaint or answer, alleging facts material to the case occurring after the filing of the original complaint or answer.

Section 106. Pleadings to be liberally construed. - In the construction of a pleading, for the purpose of determining its effects, its allegations shall be liberally construed, with a view to substantial justice between the parties.

Section 107. Sham or irrelevant pleadings. - Sham and irrelevant answers, and irrelevant, redundant, or indecent matter inserted in a pleading, may be stricken out, upon such terms as the court may, in its discretion, impose.

Section 108. Specifications. - The court may, in its discretion, at any time, upon motion, order either party to make his pleading more definite, or to file specifications of his items of account or other claims involved in the pleading, so as to furnish the adverse party with complete information as to the claim which he is required to meet.

Section 109. Variance. - An immaterial variance between the allegation in a pleading and the proof shall be disregarded, and the facts found according to the evidence, and the pleading shall be forthwith amended in accordance with the facts found, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that a variance is material and that a party has been misled, courts shall not dismiss the action by reason of the variance, but shall, upon such terms as may be just, order the pleadings to be forthwith amended in accordance with the facts, and determine the action upon the actual facts as established. The amendments provided in this section may be made either in the Court of First Instance or in the Supreme Court, at any stage of the action.

Section 110. Amendments in general. - The court shall, in furtherance of justice, and on such terms, if any, as may be proper, allow a party to amend any pleading of proceeding and at any stage of the action, in either the Court of First Instance or the Supreme Court, by adding or striking out the name of any party, either plaintiff or defendant, or by correcting a mistake in the name of a party, or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. The court may also, upon like terms, allow an answer or other pleading to be made after the time limited by the rules of court for filing the same. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard.

Section 111. When name of defendant is unknown. - When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, and such defendant may be designated in any complaint or proceeding by any name. When his true name is discovered, the pleading of proceeding must be amended accordingly.

Section 112. Proceedings in cases of appeal from justice courts. - When a perfected appeal from a judgment of a justice of the peace has been duly entered in the Court of First Instance, new pleadings shall be filed in the action in that court, and the pleadings in such action shall be in all respects governed by the same rule as though the action had been originally commenced in the Court of First Instance. But the plaintiff may, if he so elects, rely upon his complaint as originally filed before the justice of the peace, instead of filing a new one.

Section 113. Relief From effect of judgments and orders. - Upon such terms as may be just the court may relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect: Provided, That application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken.

CHAPTER VI
PARTIES TO ACTIONS

Section 114. Parties to actions. - Every action must be prosecuted in the name of the real party in interest. But in the case of an assignment of a right of action by the assignee shall be without prejudice to any set-off or other defense existing at the time of or before notice of the assignment; but this last provision shall not apply to a negotiable promissory note, or a draft or a bill of exchange, transferred in good faith and upon good consideration before maturity. And an executor or administrator or legal representative of a deceased person, or a trustee of an express trust, or a person expressly authorized by law so to do, or a lawfully appointed guardian of a person of unsound mind, or of a minor, may sue or be sued without joining with him the person for whose benefit the action is prosecuted or defended.

Otherwise than as provided in this section, all persons having an interest in the subject of the action and in obtaining the relief demanded shall be joined as plaintiffs.

Any person should be made a defendant who has or claims an interest in the controversy or the subject-matter thereof adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein.

If any person having an interest in the subject of the action, and in obtaining the relief demanded, refuses to join as plaintiff with those having a like interest, he may be made a defendant, the fact of his interest and refusal to join being stated in the complaint.

Section 116. Married woman as a party. - When a married woman is a party, her husband must be joined with her, except:

1. When the action concerns her property, in which her husband can have no interest or right;

2. When the action is between herself and her husband;

3. When for just cause she is living separate and apart from her husband or by reason of an agreement in writing entered into between them.1aшphi1

In either of which cases she may sue or be sued alone.

Section 116. Infants, spendthrifts, and persons of unsound mind. - When an infant or a person of unsound mind or a person judicially decreed to be a spendthrift is a party to an action, he must appear either by his general guardian or by a guardian ad litem appointed by the court in which the action is pending. A guardian ad litem may be appointed in any case when it is deemed by the court in which the action or proceeding is prosecuted expedient to represent the infant, spendthrift, or person of unsound mind in the action or proceeding.

Section 117. Guardian ad litem. - Such guardian ad litem may be appointed by the court of its own motion, and shall be appointed upon the application of a relative or friend of the infant, spendthrift, or person of unsound mind. The court may, in its discretion, allow to a guardian ad litem a reasonable compensation for his services as such guardian, to be paid out of the estate of the ward.

Section 118. Numerous parties. - When the subject-matter of the controversy is one of common or general interest to many persons, and the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. But in such case any party in interest shall have a right to intervene in protection of his individual interest, and the court shall make sure that the parties actually before it are sufficiently numerous and representative so that all interests concerned are fully protected.

Section 119. Death of party. - In case a party to an action dies while the action is pending, the action shall not abate by reason thereof, but the court on motion may allow the action or proceeding to be continued by or against his executor, administrator, or other legal representative, and the judgment; if it be for the payment of costs and against the executor, administrator, or other legal representative, shall be that he pay in due course of administration: Provided, nevertheless, That if the action is for the recovery of money, debt, or damages against the deceased, it shall be discontinued, and the claim thereafter be prosecuted as provided in section six hundred and eighty-six.

Section 120. Interpleading. - Whenever conflicting claims are or may be made upon a person for or relating to personal property, or the performance of an obligation or any portion thereof, so that he may be made subject to several actions by different persons, unless the court intervenes, such person may bring an action against the conflicting claimants, disclaiming personal interest in the controversy, to compel them to interplead and litigate their several claims among themselves, and the court may order the conflicting claimants to interplead with one another and thereupon proceed to determine the right of the several parties to the interpleading to the personal property or the performance of the obligation in controversy and shall determine the rights of all parties in interest.

Section 121. Intervention. - A person may, at any period of a trial, upon motion, be permitted by the court to intervene in an action or proceeding, if he has legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both. Such intervening party may be permitted to join the plaintiff in claiming what is sought by the claimant, or to unite with the defendant in resisting the claims of the plaintiff, or to demand anything adverse to both the plaintiff and defendant. Such intervention, if permitted by the court, shall be made by complaint in regular form, filed in court, and may be answered or demurred to as if it were an original complaint. Notice of the motion for such intervention shall be given to all parties to the action, and notice may be given by publication, in accordance with the provisions of this Code relating to publication, in cases where other notice is impracticable.

Section 122. Necessary parties. - The court may determine any controversy between parties before it if it can be done without prejudice to the rights of others or by preserving their rights for future action; but when a complete determination of the controversy can not be had without the presence of other parties, the court must order them to be brought in, and to that end may order amended or supplemental pleadings, or a cross complaint, to be filed and summons therein to be duly issued and served.

CHAPTER VII
VARIOUS PROCEEDINGS IN COURTS IN FIRST INSTANCE

Section 123. Interlocutory and incidental orders. - No interlocutory or incidental ruling, order, or judgment of the Court of First Instance shall stay the progress of an action or proceeding therein pending, but only such ruling, order, or judgment as finally determines the action or proceeding; nor shall any ruling, order, or judgment be the subject of appeal to the Supreme Court until final judgment is rendered for one party or the other.

Section 124. Judgment in case of several plaintiffs or defendants. - Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and the court may, when the justice of the case requires it, conclusively determine the ultimate rights of the parties on each side, as between themselves, and may require such parties to file adversary pleadings as between themselves.

Section 125. Several judgments. - In an action against several defendants the court may in its discretion, render judgment against one or more of them, upon default or confession, or otherwise leaving the action to proceed against the others whenever a several judgment is proper.

The court may, in its discretion, order execution to issue upon such several judgment.

Section 126. Kind of relief to be granted. - The relief granted to the plaintiff, if there be no answer, can not exceed that which he shall have demanded in his complaint; but, in any other case, the court may grant him any relief consistent with the case made by the complaint and supported by the evidence and embraced within the issue, requiring the necessary amendments.

Section 127. Dismissal of actions. - An action may be dismissed, with costs to the defendant, in the following cases:

1. By the plaintiff himself, by written request to the clerk filed among the papers in the case, at any time before trial, upon payment of the costs; provided a counterclaim has not been made, or affirmative relief sought by the cross complaint or answer of the defendant, or provided the judge shall not decide that the defendant has made such preparation for trial that it would be unjust to permit a dismissal without a trial on the merits;

2. By the court, when the plaintiff fails to appear at the time of trial, and the defendant appears and asks for the dismissal;

3. By the court, when the plaintiff fails, for an unreasonable length of time to pr></p>

In either of these three cases a dismissal of the action shall not be a bar to another action for the same cause;

4. The court may also, in its discretion, allow a plaintiff to dismiss the action on payment of the costs after the trial has begun and at any time before final judgment, if the interests of justice so require, and in this case the dismissal shall not be a bar to another action for the same cause. The dismissal shall be entered on the docket of the court and shall be effective, when so entered, to end the action.

Section 128. Default. - In case a defendant fails to appear at the time required in the summons, or to answer at the time provided by the rules of court, the court shall, upon motion of the plaintiff, order judgment for the plaintiff by default which shall be entered upon the docket; and the court shall thereupon proceed to hear the plaintiff and his witnesses and assess the damages or determine the other relief to which the plaintiff may be entitled, including the costs of the action, and render final judgment for the plaintiff to recover such sum or to receive such other relief as the pleadings and the facts warrant. If the taking of a long account be involved in determining the amount to which the plaintiff shall be entitled, the court may, in its discretion, order a reference to some suitable person to take the account and report to the court, and upon the coming in of such report, such final judgment shall be rendered as the facts require.

Section 129. Default on cross complaint. - If the plaintiff fails to answer a cross complaint within the time limited by the rules of court, judgment by default may be entered against him upon that cross complaint and the same proceedings shall be had upon such default as though the cross complaint had been the original complaint.

Section 130. Postponement. - The court may, in its discretion, for cause, and with or without terms, postpone a trial from day to day, or to a stated time during the term of the court, or to the next succeeding term.

Section 131. Adjournment. - Court may adjourn from day to day, and to any stated time, as the expeditious and convenient transaction of business may require.

Section 132. Order of trial. - The trial must proceed in the following order, unless the judge, for special reasons, otherwise directs:

1. The plaintiff, after stating the issue and his case, must produce the evidence on his part; but he may read the complaint as his statement of the case, if the judge so directs;

2. The defendant shall then state his defense and offer his evidence in support thereof; but he may read his answer as his statement of defense, if the judge so directs;

3. The parties may then respectively offer rebutting evidence only, unless the court, for good reason, in the furtherance of justice, permits them to offer evidence upon their original case;

4. When the evidence is concluded, unless the parties on either side or both sides agree to submit it without argument, the plaintiff or his counsel may make the opening argument, the defendant or his counsel may follow, and the plaintiff or his counsel may conclude the argument. Two counsels may, if desired, be heard upon each side, but in the order herein prescribed;

5. If several defendants, having separate defenses, appear by different counsel, the court must determine their relative order in the evidence and argument, but in any event the plaintiff is entitled to the opening and closing argument.

Section 133. Findings of facts. - Upon the trial of a question of fact, the decision of the court must be given in writing and filed with the clerk; but the statement of facts must contain only those facts which are essential to a clear understanding of the issues presented and of the facts involved.

Section 134. Agreed statement of facts. - The parties may, in any action or special proceeding, agree, in writing, upon the facts involved in the litigation, and require the judgment of the court upon the questions of law arising from such agreed statement of facts, without the introduction of testimony. The ruling and judgment of the court upon such agreed statement of facts shall be subject to exception, like all other rulings of the court. When an agreed statement of facts is entered into by the parties, no other finding of facts need be made by the court.

Section 135. Reference. - By written consent of both parties, filed with the clerk, the court may order an action to be referred to one or more referees, to be agreed upon by the parties or to be appointed by the court.

Section 136. Commission to referees. - In such case, the clerk shall issue, under the seal of the court, a commission to the referees named, directing them to proceed with the trial of the action and to report the findings of law and fact to the court at or before a time named in the commission.

Section 137. Oath of referees. - Referees, before commencing the performance of their duty, shall be sworn to a faithful and honest performance thereof, and the fact that they have taken such oath shall be certified to on the commission by the authority administering the oath. The oath may be administered by the judge or clerk of the court or by any justice of the peace or notary public in the province.

Section 138. Trial before referee. - Trial may occur at any convenient place within the province, and the time and place for trial shall be fixed by the referee and reasonable notice thereof shall be given by him to the parties. The referee is hereby authorized to administer oaths to witnesses, and the trial before him shall proceed in all respects as though the same had been had before the court.

Section 139. Report of referee. - Upon the completion of the trial, the referee shall report, in writing, to the court the facts found by him and all such of his rulings as the parties shall request him to report.

The Lawphil Project - Arellano Law Foundation

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