Basa - v - Mercado
(G.R. No.
L-42226, July 26, 1935 (In re estate of the deceased Ines Basa de
Mercado. JOAQUINA BASA, ET AL., petitioners-appellants, vs. ATILANO
G. MERCADO, respondent-appellee. GODDARD, J.)
Facts:
1.
Honorable
Hermogenes Reyes, Judge of the Court of First Instance of Pampanga, allowed and
probated the last will and testament of Ines Basa, deceased.
2.
The
same judge approved the account of the administrator of the estate, declared
him the only heir of the deceased under the will and closed the administration
proceedings.
3.
Herein
petitioners-appellants filed a motion in which they prayed that said
proceedings be reopened and alleged that the court lacked jurisdiction to act
in the matter because there was a failure to comply with requirements as to the
publication of the notice of hearing prescribed in section 630 of the Code of
Civil Procedure.
Ø Although the trial judge ordered the
publication of the required notice for "three weeks successively"
previous to the time appointed for the hearing on the will. The hearing took place
twenty-one days after the date of the first publication instead of three
full weeks before the day set for the hearing.
Issue
No. 1: Whether or not the court has
jurisdiction. Held: Yes
-
Section
630 of our Code of Civil Procedure is taken from the Code of Civil Procedure of
the State of Vermont. The Supreme Court of that State, commenting on the phrase
"three weeks successively" on notice given by publication: "Public
notice” was sufficient. "Being in the nature of a proceeding in rem, it
binds everybody by its legal effect.”
-
The
language used in section 630 of the Code of Civil Procedure does not mean that
the notice, referred to therein, should be published for three full weeks
before the date set for the hearing on the will. The first publication of the
notice need not be made twenty-one days before the day appointed for the
hearing.
Issue
No. 2: Whether or not the trial court
erred in ruling that the weekly newspaper, Ing Katipunan, in which
the notice of hearing was published, was a newspaper of general circulation in
the Province of Pampanga. Held: No.
-
Ing
Katipunan is a newspaper of general
circulation in view of the fact that it is published for the dissemination of
local news and general information; that it has a bona fide subscription
list of paying subscribers; that it is published at regular intervals and that
the trial court ordered the publication to be made in Ing Katipunan precisely
because it was a "newspaper of general circulation in the Province of
Pampanga."
-
No
attempt has been made to prove that it was a newspaper devoted to the interests
or published for the entertainment of a particular class, profession, trade,
calling, race or religious denomination.
-
Also,
the law does not require that publication of the notice, referred to in the
Code of Civil Procedure, should be made in the newspaper with the largest
numbers is necessary to constitute a newspaper of general circulation.
Note: I made this case digest when I was still a law student. The ones posted on my blog were not due for submission as part of any academic requirement. I want to remind you that there is no substitute to reading the full text of the case! Use at your own risk.
Note: I made this case digest when I was still a law student. The ones posted on my blog were not due for submission as part of any academic requirement. I want to remind you that there is no substitute to reading the full text of the case! Use at your own risk.
