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G.R. No. L-12945           February 16, 1918
ANDRES GARCHITORENA vs. MANUEL CRESCINI -->

EN BANC

G.R. No. L-12945 February 16, 1918

ANDRES GARCHITORENA, petitioner-appellee, vs. MANUEL CRESCINI, respondent-appellant.

Manly, Goddard and Lockwood and Kincaid and Perkins for appellant.
Lawrence and Ross for appellee.

JONHSON, J.:

This an appeal from a decision of the Court of First Instance in an election contest for the office of governor of the Province of Anbos Camarines.chanroblesvirtualawlibrary chanrobles virtual law library

During the pendency of the appeal the appellee presented a motion that the bond given by the protestant in the court below be increased to P10,000 for the purpose of covering the extraordinary costs and expenses which he had incurred during the pendency of the protest. The appellant presented a motion praying that the decision of the lower court be declared null and that the cause be remanded to the court whence it came in order that a lawful and valid judgment may be rendered. Both of said motions were submitted to the court.chanroblesvirtualawlibrary chanrobles virtual law library

With reference to the second motion, the important facts necessary for a resolution of the same may be stated as follows: chanrobles virtual law library

1. That on the 6th day of June, 1916, an election was held for the office of the governor of the Province of Ambos Camarines.chanroblesvirtualawlibrary chanrobles virtual law library

2. That after the close of said election the votes were canvassed, and on the 21st day of June, 1916, the appellant was declared elected governor by the provincial board of canvassers.chanroblesvirtualawlibrary chanrobles virtual law library

3. That a protest against said election was duly filed on the 1st day of July, 1916, in the Court of First Instance of said province by the appellee. 4. That notice of said protest was duly given, issue was joined, a trial was had, the respective parties were duly heard and presented their proof; that the trial was closed, and the cause was finally submitted to the court for decision, and a decision was filed with the clerk on the 27th day of April, 1917, notice of which was duly given to the parties on the 30th day of April, 1917.chanroblesvirtualawlibrary chanrobles virtual law library

The contention of the appellant, as shown by his motion, is that at the time said decision was filed with the clerk the judge who prepared and filed it was not a judge of the court, neither de jure nor de facto. The facts relating to that contention may be stated briefly as follows:chanrobles virtual law library

1. That for sometime prior to the 31st day of March, 1917, the judge who filed said decision was one of the auxiliary judges of the Court of First Instance of the Province of Amboe Camarines.chanroblesvirtualawlibrary chanrobles virtual law library

2. That said judge, on the 31st day of March, 1917, having theretofore (January 27, 1917) been appointed Director of the Bureau of Lands (see Exhibit 4), took the oath of office as Director of Lands.chanroblesvirtualawlibrary chanrobles virtual law library

3. That Candelario Borja, having been appointed auxiliary judge of the Courts of First Instance of the Fourth Group, including the Province of Ambos Camarines, took the oath of office on the 16th day of March, 1917, and entered upon the performance of his duty as such auxiliary judge of said province on the 28th day of March, 1917.chanroblesvirtualawlibrary chanrobles virtual law library

Considering, therefore, the fact, that the judge, who filed the decision in question upon the 27th day of April, 1917, had taken the oath of office as Director of Lands on the 31st day of March, 1917, and began to draw his salary as such Director of Lands from the 28th day of March, 1917, in relation with the fact that his successor was appointed and had entered upon the performance of his duties as auxuliary judge on the 28th day of March, 1917, in substitution of the judge who filed the said decision, and there being no law providing for two auxiliary judges of the Court of First Instance of said province, we must conclude that, prior to the 27th day of April, 1917, said judge had ceased to be auxiliary judge of said province and was, therefore, without authority to promulgate decisions in said province. (Lino Luna vs. Rodriguez and De los Angeles, p. 186, ante. The judge who filed the decision cannot be considered a judge de jure, for the reason that another judge was actually acting in his place and stead and had been for nearly a month prior to the promulgation of the decision in question on the 27th day of April, 1917. Neither can he be considered a judge de facto, for the reason that there was a de jure judge actually discharging the functions of the office in question. (McCahon vs. Leavenworth County Commissioners, 8 Kan., 293; Powers vs. Commonwealth, 110 Ky., 386; 53 L. R. A., 245; Hallgren vs. Campbell, 82 Mich., 255; 21 Am. St. Rep., 557; 9 L. R. A., 408; Baker vs. Hobgood, 126 N. C., 149; 29 Cyc., 1391.) There cannot be a de facto judge when there is a de jure judge in the actual performance of the duties of the office. (McCahon vs. Leavenworth County Commissioners, 8 Kan., 293.) In order to be a de facto judge he must still be acting under some color of right. He cannot be actually acting under any color of the right when he has ceased to be judge and has actually vacated the office by the acceptance of another office and by actually entering upon the duties of the other office. (Lino Luna vs. Rodriguez and De los Angeles, p. 186, ante; 29 Cyc., 1391; Coopwood vs. Prewet, 30 Miss., 206; Smith vs. Baugh, 32 Ind., 163; Ketcham vs. Hill, 42 Ind., 64.) A judgment rendered by a judge after he has ceased to be judge and who has vacated his office, will be set aside on motion. (Cain vs. Libby, 32 Min., 491.) Where the term of office of a judge has terminated and his successor has qualified and he has ceased to act as judge his subsequent acts in attempting to dispose of business left unfinished by him before the expiration of his term are void. (State vs. Perkins, 139 Mo., 106; United States vs. Alexander, 46 Fed., 728.)chanrobles virtual law library

For the foregoing reasons, the decision and judgment of the lower court is hereby revoked, annulled and set aside, and it is hereby ordered and decreed that the record be returned to the court whence it came with direction that the judge thereof proceed at once to rendered a decision and judgment upon the evidence heretofore adduced and made a part of the record, in accordance with the law and the facts. In view of the conclusion which we have just reached, it is hereby ordered and decreed that the motion for an increase of the bond be referred to the lower court for the decision, and without any finding as to costs. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Arellano, C.J., Torres, Carson, Araullo, Street, Malcolm, Avanceña and Fisher, JJ., concur.