[No. 216. May 1, 1916.]
ESTEBAN DE LA RAMA, plaintiff in error and appelant, vs. AGUEDA BENEDICTO DE LA RAMA. 1
1.APPEAL; FROM PHILIPPINE SUPREME COURT; LOCAL PRACTICE; OBJECTIONS RAISED TOO LATE. — The Federal Supreme Court will not reverse a decree of the Supreme Court of the Philippine Islands on objections that a division of the conjugal property could not be asked in a divorce suit in the Philippine courts, but must proceed on the footing of a decree already made, and that the Judge of First Instance who decided the cause was illegally designated, where such objections were not presented to the court below, nor assigned as error on the appeal. aSDCIE
2.CONSTITUTIONAL LAW; DUE PROCESS OF LAW; PROCEDURE. — Due process of law does not forbid the hearing of a cause upon a transcript of evidence formerly heard in court, — especially where the course pursued has the assent of the parties.
3.APPEAL; FROM SUPREME COURT OF PHILIPPINE ISLANDS; FOLLOWING DECISION BELOW. — Taking the date of a divorce decree as the date for liquidating the wife's claim for a division of the conjugal property cannot be held erroneous on appeal to the Federal Supreme Court from a decree of the Supreme Court of the Philippine Islands, on the grounds that there was no formal decree of separation of the property, and no such inventory as was required by law, where there is nothing in the record sufficient to control the opinion of the latter court that the method adopted by the Judge of First Instance "in liquidating the assets of the conjugal partnership was substantially in accord with the method prescribed in the Code."
4.INTEREST; ON JUDGMENT; FROM WHAT TIME; JUDICIAL DISCRETION. — The allowance of interest on a decree for the division of the conjugal property from the date of a divorce decree in the wife's favor is within the discretion of the court, notwithstanding the success of the husband in reducing the amount on appeal, where that was the date at which, but for the delays of the law, the wife would have received her dues, the husband having had the use of the money in the meantime.
5.APPEAL; MODE OF REVIEW; DIVORCE SUIT. — Appeal, not writ of error, is the proper mode of reviewing in the Federal Supreme Court a decree of the Supreme Court of the Philippine Islands in a suit by a wife for divorce, alimony pendente lite, and a division of the conjugal property.
IN ERROR to and APPEAL from the Supreme Court of the Philippine Islands to review a decree which, on a second appeal, affirmed a decree in favor of the wife in a suit by her for divorce, alimony pendente lite, and a division of the conjugal property. Writ of error dismissed. Decree affirmed on appeal. See same case below, 25 Philippine, 437. CcTIDH
The facts are stated in the opinion.
Mr. Rufus S. Day submitted the cause for plaintiff in error and appellant. Messrs. Charles Edmond Cotterill and Edmund W. Van Dyke were on the brief:
The proceeding for divorce and the proceeding to secure a separation of the property were required by law in the Philippines to be instituted, if at all, in separate actions, and they were, therefore, improperly joined.
1 Ruiz Civil Code, p. 396; 1 Manresa, Comentarios al Código Civil Español, p. 396; 9 Code, pp. 769 et seq.
The failure of the Supreme Court below to hold that the suit ought to have been dismissed by the Court of First Instance — or to hold, at least, that that part of the demand of the plaintiff which relates to the separation of the conjugal partnership property ought to have been dismissed — is error of which this court may take cognizance even though not mentioned in the assignments of error.
Behn vs. Campbell, 205 U.S., 403; 51 L. ed., 857; 27 Sup. Ct. Rep., 502; Gsell vs. Insular Collector of Customs, 239 U.S., 93, ante, 163; 36 Sup. Ct. Rep., 39.
The courts below erred in attempting to liquidate the claim of the wife to a share in the conjugal partnership property as of July 5, 1902, the date of the judgment of divorce. The judgment with reference to the wife's claim to such share was a mere money judgment. There should have been an order or decree of separation of the property in question, as required by law, and the liquidation should have been made as of the date of that order or decree. In the absence thereof, neither the Court of First Instance of Iloilo nor the Supreme Court of the Islands had jurisdiction to render any judgment whatever in this branch of the case.
9 Manresa, pp. 687, 773; 9 Ruiz, Civil Code, pp. 184, 208;
The court below erred in affirming that part of the judgment of the Court of First Instance of Iloilo which allows interest on the amount stated therein from July 5, 1902. TAHCEc
Garrozi vs. Dastas, 204 U.S., 64; 51 L. ed., 369; 27 Sup. Ct. Rep., 224; Kneeland vs. American Loan & T. Co., 138 U.S., 509; 34 L. ed., 1052; 11 Sup. Ct. Rep., 426; Illinois C. R. Co. vs. Turrill, 110 U.S., 301; 28 L. ed., 154; 4 Sup. Ct. Rep., 5.
Messrs. Frederic R. Coudert and Howard Thayer Kingsbury submitted the cause for defendant in error and appellee:
The trial court had power to award a divorce and liquidate the conjugal property in the same suit.
De la Rama vs. De la Rama, 201 U.S., 303; 50 L. ed., 765; 26 Sup. Ct. Rep., 485; De Villanueva vs. Villanueva, 239 U.S., 293, ante, 293; 36 Sup. Ct. Rep., 109; De Lesdernier vs. De Lesdernier, 45 La. Ann., 1364; 14 So., 191; Lozengheim vs. Martin, 7 La. Ann., 180; Duncan vs. Brown, 18 N. M., 579; 139 Pac., 140; Howe vs. Howe, 4 Nev., 469; Harman vs. Harman, 1 Cal., 215; Kashaw vs. Kashaw, 3 Cal., 312; Rice vs. Rice, 31 Tex., 174.
The judge who rendered the judgment of December 5, 1910, had power to do so.
McDowell vs. United States, 159 U.S., 596; 40 L. ed., 271; 16 Sup. Ct. Rep., 111.
The appellant has no standing to attack in this court either the joinder of relief or the jurisdiction of the trial judge.
The Vaughan (The Telegraph vs. Gordon) 14 Wall., 258; 20 L. ed., 807; San Pedro & C. del A. Co. vs. United States, 146 U.S., 120, 138; 36 L. ed., 912, 916; 13 Sup. Ct. Rep., 94; McLoughlin vs. Raphael Tuck & Sons Co., 191 U.S., 267, 271; 48 L. ed., 178; 24 Sup. Ct. Rep., 105.
Mr. Justice HOLMES delivered the opinion of the court:
This is a suit by a wife for divorce, alimony pendente lite, and a division of the conjugal property. It has been before this court in the first aspect (201 U.S., 303; 50 L. ed., 765; 26 Sup. Ct. Rep., 485), and now comes here on matters affecting the division of property, beginning with the fundamental objection that the division could not be asked in the divorce suit, but must proceed on the footing of a decree already made. As to this it is enough to say that no such error was assigned as a ground for appeal, and the objection comes too late. At the previous stage the right of the plaintiff to her proportions of the conjugal property, to alimony pending suit, and to other allowances claimed, was said to be the basis of our jurisdiction. (201 U.S., 318.) (De Villanueva vs. Villanueva, 239 U.S., 293, 294, ante, 293, 295; 36 Sup. Ct. Rep., 109.) The Court of First Instance had jurisdiction of the subject-matter, and the separation or union of the two causes was merely a question of procedure and convenience. The defendant impliedly admitted the jurisdiction by pleading that there was no common property, and that "Therefore" the separation should be denied. After the matter had been adverted to by the trial judge and the joinder declared proper, it was dealt with as legitimate by the Supreme Court, and upon a petition for rehearing the only objections urged by the defendant concerned matters of detail. There is every reason that the local practice sanctioned in this case by the local courts should not be disturbed. TCcSDE
The next error alleged in argument also was not assigned. It is that Judge Norris, who first heard the evidence, having resigned, Judge McCabe, of the Court of First Instance, who finally decided the separation of conjugal property, was designated by Judge Ross (before whom otherwise the case would have come), on the ground that the latter was disqualified; and that Judge Ross had no power to do so under the Code of Civil Procedure then in force. Upon this point again we should not disturb the course adopted by the local tribunals without stronger reasons than are offered here, and therefore do not discuss the question at length. The parties could have agreed in writing upon a judge, and they did agree in writing at a later stage that Judge McCabe should decide the case without waiting for the action of the assessors whom the law provides to assist upon matters of fact. This objection, like the preceding, seems not to have been even suggested to the Supreme Court of the Philippines. To listen to it now would be not to prevent, but to accomplish, an injustice not to be tolerated except under the most peremptory requirement of law.
The next point argued, again not assigned as error, is that it seems from the opinion of the Judge of First Instance that the trial was had upon the evidence that had been offered before Judge Norris. If we are to assume the fact, it is a most extraordinary suggestion that, even though the parties seem to have assented to the course pursued, due process of law forbids a hearing upon a transcript of evidence formerly heard in court. We shall say no more upon this point.
The errors that were assigned may be disposed of with equal brevity. The first one is the taking of July 5, 1902, the date of the decree of divorce, afterwards affirmed, as the date for liquidating the wife's claim. It is urged that there was no formal decree of separation of the property, and that until such an order had been made the court had no right to enter a judgment. It also is argued that there was no such inventory as was required by law. But the testimony and other evidence are not before us, and, apart from our often-stated unwillingness to interfere with matters of local administration unless clear and important error is shown, there is nothing in the record sufficient to control the opinion of the Supreme Court of the Islands that "the method adopted by (the Judge of First Instance) in liquidating the assets of the conjugal partnership was substantially in accord with the method prescribed in the Code." (25 Philippine, 445.) We disallow the attempt to reopen some questions of detail, such as a charge of estimated profits, upon this and other grounds. (See Piza Hermanos vs. Caldentey, 231 U.S., 690; 58 L. ed., 439; 34 Sup. Ct. Rep., 253.)
The only remaining item is charging interest on the judgment from July 5, 1902. But that was the date at which but for the delays of the law, the wife would have received her dues, the husband has had the use of the money meanwhile, and we are not prepared to say that it was not at least within the discretion of the court to allow the charge, notwithstanding the success of the husband in reducing the amount on appeal. (Stoughton vs. Lynch, 2 Johns. Ch., 209, 219; Hollister vs. Barkley, 11 N. H., 501, 511. See Barnhart vs. Edwards, 128 Cal., 572; 61 Pac., 176; McLimans vs. Lancaster, 65 Wis., 240; 26 N. W., 566; Rawlings vs. Anheuser-Busch Brewing Co., 69 Neb., 34; 94 N. W., 1001.) A discretion is recognized even in actions of tort. (Eddy vs. Lafayette, 163 U.S., 456, 467; 41 L. ed., 225 229; 16 Sup. Ct. Rep., 1082; Frazer vs. Bigelow Carpet Co., 141 Mass., 126; 4 N. E., 620.) The judgment upon the appeal will be affirmed and the writ of error dismissed. (De la Rama vs. De la Rama, 201 U.S., 303; 50 L. ed., 765; 26 Sup. Ct. Rep., 485; Gsell vs. Insular Collector of Customs, 239 U.S., 93, ante, 163; 36 Sup. Ct. Rep., 39.)
Writ of error dismissed. HScAEC
Judgment affirmed.
1.241 U.S., 154; 60 L. ed., 932.