June 1961 - Philippine Supreme Court Decisions/Resolutions
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G.R. No. L-15811 June 30, 1961 - IN RE: JUAN MANUEL, ET AL. v. REPUBLIC OF THE PHIL. :
EN BANC
[G.R. No. L-15811. June 30, 1961.]
IN RE: PETITION FOR CHANGE OF NAME. JUAN MANUEL, ET AL., Petitioners-Appellees, v. REPUBLIC OF THE PHILIPPINES, Oppositor-Appellant.
Priscilo Evanglista for Petitioners-Appellees.
Solicitor General for Oppositor-Appellant.
SYLLABUS
1. SPECIAL PROCEEDINGS; CHANGE OF NAME; AN UNACKNOWLEDGED NATURAL CHILD MAY NOT USE THE SURNAME OF THE NATURAL FATHER; EXCEPTION. — Under Art. 366 of the new Civil Code, a natural child may only use the father’s surname if he is acknowledged by both parents. Otherwise, he shall employ only the surname of the recognizing parents, unless the putative father has consented or acquiesced to the use by the illegitimate child of his surname.
2. ID.; ID.; VALENCIA CASE DISTINGUISHED WITH INSTANT CASE. — Firstly, the Valencia case was decided before the effectivity of the new Civil Code when there was no specific legal provision regulating the use of surname, whereas, under Art. 366 of the new Civil Code, a natural child may only use the father’s surname if he is acknowledged by both parents. Secondly, unlike in the Valencia case where the father was found to have acquiesced to the use by the illegitimate children of his surname, there is no evidence in the instant case that petitioner Juan Manuel has previously used the surname Eaton with the consent or acquiescence of the putative father.
3. APPEALS; PROCEDURE IN THE SUPREME COURT; JUDGMENT; FAILURE TO ASSIGN AS ERROR THE GRANTING OF A PETITION WHICH IS PLAIN TO THE COURT IS HARMLESS ERROR. — The failure of the oppositor Republic of the Philippines to assign as error in its brief the granting of the petition is considered a harmless error under section 5 of Rule 53 of the old Rules of court (now Sec. 5, rules 51 of the new Rules of Court) the same being plain enough for the court to take notice thereof.
2. ID.; ID.; VALENCIA CASE DISTINGUISHED WITH INSTANT CASE. — Firstly, the Valencia case was decided before the effectivity of the new Civil Code when there was no specific legal provision regulating the use of surname, whereas, under Art. 366 of the new Civil Code, a natural child may only use the father’s surname if he is acknowledged by both parents. Secondly, unlike in the Valencia case where the father was found to have acquiesced to the use by the illegitimate children of his surname, there is no evidence in the instant case that petitioner Juan Manuel has previously used the surname Eaton with the consent or acquiescence of the putative father.
3. APPEALS; PROCEDURE IN THE SUPREME COURT; JUDGMENT; FAILURE TO ASSIGN AS ERROR THE GRANTING OF A PETITION WHICH IS PLAIN TO THE COURT IS HARMLESS ERROR. — The failure of the oppositor Republic of the Philippines to assign as error in its brief the granting of the petition is considered a harmless error under section 5 of Rule 53 of the old Rules of court (now Sec. 5, rules 51 of the new Rules of Court) the same being plain enough for the court to take notice thereof.
R E S O L U T I O N *
BARRERA, J.:
In our decision promulgated on March 27, 1961, the petitions for change of name of Juan Manuel, to Juan M. Eaton, and of his children Alexander, Gloria, Jack and Victor, all surnamed Manuel, to Alexander Eaton, Gloria Eaton, Jack Eaton, and Victor Eaton, respectively, were denied, for the reason that John Eaton, Juan’s alleged natural father, does not appear to have acknowledged him. It was, therefore, held that pursuant to Article 366 of the new Civil Code, petitioner Juan Manuel is not allowed to use the surname of his alleged natural father.
Petitioners filed a motion for reconsideration claiming that following our ruling in the case of Valencia v. Rodriguez (47 O.G. No. 1, p. 180), an unacknowledged natural child may also use the surname of the natural father.
The ruling in the cited case of Valencia v. Rodriguez, supra, is not applicable to the one at bar. Firstly, the Valencia case was decided before the effectivity of the new Civil Code when there was no specific legal provision regulating the use of surnames, whereas, under the prevailing law, a natural child may only use the father’s surname if he is acknowledged by both parents. Otherwise, he shall employ only the surname of the recognizing parents. (Art. 366, new Civil Code.) There is nothing in the records to show that petitioner Juan Manuel was acknowledged by both his natural father and mother.
Secondly, unlike the Valencia case where the father was found to have acquiesced to the use by the illegitimate children of his surname, there is no evidence in the instant case that petitioner Juan Manuel has previously used the surname Eaton, with the consent or acquiescence of the putative father. On the contrary, his petition for change of name specifically admitted that he has always been using the name "Juan Manuel," and signified the intention to adopt his alleged natural father’s surname only in 1958 when he filed the petition, and after the demise of the latter.
As to the other ground of the motion, it may be stated that while it is true that the oppositor Republic of the Philippines failed to assign as error in its brief, the granting of the petition of Juan Manuel, the same is plain enough for us not to take notice thereof. Thus, under Section 5 of Rule 53, Rules of Court may properly pass upon said question. (Dilag v. Resurreccion, 76 Phil. 650).
The motion for reconsideration is denied, for lack of merit. So ordered.
Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Paredes, Dizon, De Leon and Natividad, JJ., concur.
Bautista Angelo, J., took no part.
Petitioners filed a motion for reconsideration claiming that following our ruling in the case of Valencia v. Rodriguez (47 O.G. No. 1, p. 180), an unacknowledged natural child may also use the surname of the natural father.
The ruling in the cited case of Valencia v. Rodriguez, supra, is not applicable to the one at bar. Firstly, the Valencia case was decided before the effectivity of the new Civil Code when there was no specific legal provision regulating the use of surnames, whereas, under the prevailing law, a natural child may only use the father’s surname if he is acknowledged by both parents. Otherwise, he shall employ only the surname of the recognizing parents. (Art. 366, new Civil Code.) There is nothing in the records to show that petitioner Juan Manuel was acknowledged by both his natural father and mother.
Secondly, unlike the Valencia case where the father was found to have acquiesced to the use by the illegitimate children of his surname, there is no evidence in the instant case that petitioner Juan Manuel has previously used the surname Eaton, with the consent or acquiescence of the putative father. On the contrary, his petition for change of name specifically admitted that he has always been using the name "Juan Manuel," and signified the intention to adopt his alleged natural father’s surname only in 1958 when he filed the petition, and after the demise of the latter.
As to the other ground of the motion, it may be stated that while it is true that the oppositor Republic of the Philippines failed to assign as error in its brief, the granting of the petition of Juan Manuel, the same is plain enough for us not to take notice thereof. Thus, under Section 5 of Rule 53, Rules of Court may properly pass upon said question. (Dilag v. Resurreccion, 76 Phil. 650).
The motion for reconsideration is denied, for lack of merit. So ordered.
Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Paredes, Dizon, De Leon and Natividad, JJ., concur.
Bautista Angelo, J., took no part.
Endnotes:
* Editor’s Note: See Decision in 1 SCRA 836.
