leg eth vii

8/12/2019 Leg Eth VII

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Salcedo vs. Hernandez [G.R. No. L-42992. August 8, 1935]

Ponente: DIAZ, J.

FACTS:Attorney Vicente Francisco, representing the petitioner-appellant, inserted alleged contemptuousparagraph in his motion for reconsideration read as follows:

We should like frankly and respectfully to make it of record that the resolution of this court, denying ourmotion for reconsideration, is absolutely erroneous and constitutes an outrage to the rights of thepetitioner Felipe Salcedo and a mockery of the popular will expressed at the polls in the municipality ofTiaong, Tayabas. We wish to exhaust all the means within out power in order that this error may becorrected by the very court which has committed it, because we should not want that some citizen,particularly some voter of the municipality of Tiaong, Tayabas, resort to the press publicly to denounce,

as he has a right to do, the judicial outrage of which the herein petitioner has been the victim, andbecause it is our utmost desire to safeguard the prestige of this honorable court and of each and everymember thereof in the eyes of the public. But, at the same time we wish to state sincerely that erroneousdecisions like these, which the affected party and his thousands of voters will necessarily consider unjust,increase the proselytes of sakdalism and make the public lose confidence in the administration ofjustice.

The court required him to show cause, if any, why he should not be found guilty of contempt, giving hima period of ten days for that purpose. In his answer Atty. Francisco, far from regretting having employedthe phrases contained in said paragraph in his motion, reiterated them several times contending that theydid not constitute contempt because, according to him it is not contempt to tell the truth.

ISSUE:Whether or not respondent-appellee is guilty of contempt.

HELD:YES. Atty. Francisco ordered to pay a fine of P200.00 in ten days and reprimanded.

RATIO:As a member of the bar and an officer of this court, Attorney Vicente J. Francisco, as any attorney, is induty bound to uphold its dignity and authority and to defend its integrity, not only because it hasconferred upon him the high privilege, not right (Malcolm, Legal Ethics, 158 and 160), of being what he

now is.

It is right and plausible that an attorney, in defending the cause and rights of his client, should do sowith all the fervor and energy of which he is capable, but it is not, and never will be so for him to exercisesaid right by resorting to intimidation or proceeding without the propriety and respect which the dignity ofthe courts require. The reason for this is that respect of the courts guarantees the stability of theirinstitution. Without such guarranty, said institution would be resting on a very shaky foundation.

COBB-PEREZ vs. LANTIN

FactsThe respondent Ricardo P. Hermoso commenced civil case CFI Manila against thepetitioner Damaso P.Perez and one Gregorio Subong, for the recovery of the principal sum of P17,309.44 representing unpaidpurchases of leather materials used in the shoe manufacturing business of the said petitioner. Because atthe hearing neither the defendants nor their counsel appeared despite due notice to the latter, Hermosowas permitted to present his evidence ex parte.

On April 11, 1960 judgment was rendered ordering Perez and Subong to pay Hermoso jointly andseverally the sum of P17,309.44 with interest, attorney's fees and costs.

CA dismissed their appeal because it was filed beyond the reglementary period. Certiorari was denied bySC for lack of merit. Hermoso moved for execution of judgment, which was granted. Perez and Subongfiled apetition for relief from judgment, alleging excusable negligence. This petition was denied by therespondent Judge. Perez interposed an urgent motion to stay execution, alleging that the levy on saidshares was highly excessive and unjust, considering that said shares have a total value of more than


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P357,300 while the judgment debt was onlyP17,309.44. The respondent Judge suspended the sale onexecution pending resolution of the abovementioned urgent motion to stay execution. On September 29,1961 the respondent Judge promulgated two orders: the first denied the appeal of Perez and Subong fromthe abovementioned order of August 3, 1961rejecting their petition for relief from judgment, andthe second denied Perez' urgent motion to stay execution.

Second notice served by sheriff was cancelled by the Court of Appeals sustaining Perez' position with

respect to the extent of the levy at the same time that it upheld the denial of his motion to appeal.

The case was remanded for the second time to the court of origin the Sheriff published the third notice ofsale this time for only 210 shares of stocks, setting the public sale for January 24, 1963.

Then petitioner Mercedes Ruth Cobb-Perez, the wife of Damaso P. Perez, filed with the Court of FirstInstance of Rizal a complaint for injunction with ex parte writ of preliminary injunction against Hermoso,

the Republic Bank and the Sheriff of Manila (civil case 7532) wherein she contended that the leviedshares are conjugal assets which are not answerable for the judgment debt of Damaso Perez, anobligation contracted not for the benefit or interest of their conjugal partnership. On the following day,January 23, 1963, Judge Eulogio Mencias of the Court of First Instance of Rizal granted the ex parte writof preliminary injunction, enjoining once more the respondent Sheriff from carrying out the executionsale. However, on October 4, 1963, Judge Mencias lifted the writ, in obeisance to the doctrine enunciatedin Acosta vs. Alvendia (L-21719, October 31, 1960) to the effect that courts of first instance have no powerto restrain acts outside their territorial jurisdictions. Incidentally, the abovementioned civil case 7532 wasdismissed on November 9, 1963, upon motion of the complainant herself.

A month before the aforementioned writ was lifted, or on September 3, 1963, Mrs. Perez filed in thebasic civil case 39407 an urgent motion to recall or lift the writ of execution issued on August 15, 1961,alleging the same reasons she advanced in civil case 7532then pending in the Court of First Instance ofRizal, which are the self-same grounds upon which the herein petitioners anchor the petition at bartheconjugal nature of the levied shares of stock and the personal nature of the obligation of Damaso Perez.Neither Mrs. Perez nor her counsel attended the scheduled hearings. On October 19, 1963 the respondentJudge promulgated an order denying the motion on the ground that "Mercedes Ruth Cobb-Perez is not aparty in this case and that this (the motion to liftexecution) is not the remedy prescribed by the Rules ofCourt in its Section 15 of Rule 39for the protection of her right."

The respondent Sheriff caused the publication for the fourth time of a notice of sale setting the executionsale of 220 shares of stock.

Mrs. Perez filed with the respondent Sheriff a third-party claim over the aforesaid 220shares of stock, butthe latter was determined to proceed with the scheduled auction sale as he was protected by anindemnity bond filed by the respondent Hermoso. On October 25, 1963 Mrs. Perez, assisted by herhusband, commenced civil case 55292,denominated an action to vindicate third-party claim with petitionfor preliminary injunction, in Branch XXII of the Court of First Instance of Manila, presided by JudgeFederico Alikpala. As a consequence of the new action, projected execution sale was suspended for thefourth time. On November 8, 1963 Judge Alikpala denied the preliminary injunction prayed for in theaforesaid civil case 55292, on the grounds that (1) he has no power to interfere by injunction with thejudgment or decree of a court of concurrent or coordinate jurisdiction and (2) the remedy of plaintiff (Mrs.Perez) is to lodge the third party claim filed by her with the court which issued the execution, "as it hasthe inherent control of its ministerial officers and to do all things reasonably necessary for theadministration of justice." The aforesaid civil case 55292 was dismissed on March 20, 1964, uponagreement of the parties after the institution of the petition at bar.

On the same day (November 8, 1963), Damaso Perez filed in the basic civil case 39407an "Urgent Motionfor Reconsideration" of the order of October 19, 1963 which denied his wife's motion to recall thecontroverted writ of execution. In this latest motion, Perez adopted his wife's previous motion, and at thesame time offered in lieu of the levied stocks his alleged cash dividends in the Republic Bank in the sumof P19,985. In the same motion he asked for the suspension of the fifth scheduled auction sale set forNovember 11, 1963, which was granted ex parte.

On January 4, 1964, the motion for reconsideration was denied by the respondent Judge. After therespondent Sheriff had scheduled (for the sixth time) the execution sale of the levied 240 shares of stock,the herein petitioners on January 10, 1965 interposed the present petition, which was given due course.


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ISSUE:WON that the respondent judge committed grave abuse of discretion in refusing to recall the controvertedwrit of execution despite their avowal that the levied 240 shares of stock belong to their conjugalpartnership and as such cannot be made to answer for a judgment debt which is a personal obligationonly of Damaso Perez

After a thorough review of the record, we hold that the respondent Judge acted correctly in refusing toquash the writ in dispute.

It is conceded that courts have jurisdiction to entertain motions to quash their writs of execution becauseevery court has the inherent power, for the advancement of justice, to correct errors of its ministerialofficers and to control its own processes. However, the exercise of this power is well circumscribed. Thus,the proper court may quash the writ only in certain situations, as when it appears that (a) it has been

improvidently issued, or(b) it is defective in substance, or (c) it has been issued against the wrong party,or (d)the judgment debt has been paid, or (e) the writ has been issued without authority, or(f) there hasbeen a change in the situation of the parties which makes such execution inequitable, or (g) thecontroversy has never been submitted to the judgment of the court, and therefore no judgment at all hasever been rendered thereon. In the instant controversy, not one of these accepted grounds exists.

Significantly, the spouses have not questioned the intrinsic validity or regularity of the writ of execution.They have alleged none of the circumstances earlier enumerated or other similar grounds which maywarrant the quashal of the writ in dispute.

In reality, what they attacked is not the writ of execution, the validity and regularity of which areunchallenged, but the levy made by the respondent Sheriff. In this regard, the remedy is not the recall ofthe writ, but an independent action to enjoin the Sheriff from proceeding with the projected sale, inwhich action the conjugal nature of the levied stocks should be established as a basis for the subsequentissuance of a permanent injunction, in the event of a successful claim. Incidentally, in the course of theprotracted litigation, the petitioners had already availed of this remedy in civil cases 7532 and55292, onlyto abandon it as they incessantly sought other, and often simultaneous, devices of thwarting satisfactionof the judgment debt.

Are the respective shares conjugal property of the spouses and not liable for the payment of the judgmentdebt? And WON the petitioners are now estopped?

Considering the antecedent facts, particularly CA-G.R. 29962-R, even the remedy indicated above mustfail, as Damaso Perez is now estopped from asserting that the levied shares are conjugal assets. All alonghe has nurtured the impression that the said shares are his exclusive property, which representation wasenhanced by the fact that the same are registered in his name alone.

It bears emphasis that in CA-G.R. 29962-R, Damaso Perez practically asserted exclusive ownership of thelevied shares; although he challenged the legality and propriety of the levy with respect to its excessivecoverage, he never raised the question of the conjugal nature of the levied shares. Having representedhimself before the court a quo and in the Court of Appeals as the exclusive owner of the shares indispute, he is now precluded from asserting that the levied shares are conjugal assets, an assertion thathe should have advanced with expected alacrity when he first question the legality of the levy.

Coming now to the other petitioner, Mrs. Perez, although she was not a party in CA-G.R.29962-R, thejudgment therein similarly binds her for she stands in privity with her husband. Moreover, she cannotfeign utter ignorance of the affairs of her husband as to justify her delay in questioning the legality of thelevy on the ground afore stated in civil case 7532, which case was commenced only on January 22, 1963,17 months after the original levy was made on August 23, 1961.

Even granting that the court a quo could properly take cognizance of the said motion to quash the writof execution, the movants-petitioners failed to subtantiate their claim that the levied shares are conjugalassets and that the judgment debt is a personal obligation only of Damaso Perez.

Anent their claim that the shares in question are conjugal assets, the spouses Perez adduced nota modicum of evidence, although they repeatedly invoked article 160 of the New Civil Code which providesthat "All property of the marriage is presumed to belong to the conjugal partnership, unless it be proved


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that it pertains exclusively to the husband or to the wife." As interpreted by this Court, the party whoinvokes this presumption must first prove that the property in controversy was acquired during themarriage. In other words, proof of acquisition during the coverture is a condition sine qua non for theoperation of the presumption in favor of conjugal ownership. Thus in Camiade Reyes vs. Reyes de Ilano, itwas held that "according to law and jurisprudence, it is sufficient to prove that the property was acquiredduring the marriage in order that the same may be deemed conjugal property." In the recent case ofMaramba vs. Lozano et al, this Court, thru Mr. Justice Makalintal, reiterated that "the presumption

under Article160 of the Civil Code refers to property acquired during the marriage," and then concludedthat since "there is no showing as to when the property in question was acquired ... the fact that the titleis in the wife's name alone is determinative." Similarly, in the case at bar, since there is no evidence as towhen the shares of stock were acquired, the fact that they are registered in the name of the husbandalone is an indication that the shares belong exclusively to said spouse.

Conceding, however, that the shares in question are conjugal assets, they must still prove that their

ganancial partnership is not liable for the payment of the aforesaid judgment debt. This, they were unableto do. Their contention that the judgment debt isa personal obligation of only one of them is devoidof evidentiary foundation. It is, to say the least, a futile attempt to rebut the presumption that thehusband, as head of the family and administrator of the conjugal partnership, contracts obligations forthe benefit of his family or the partnership. The aforesaid obligation was contracted in the purchase ofleather used in the shoe manufacturing business of the petitioner husband. Said business is an ordinarycommercial enterprise for gain, in the pursuit of which Damaso Perez had the right to embark thepartnership. It is well-settled that the debts contracted by the husband for and in the exercise of theindustry or profession by which he contributes to the support of the family, cannot be deemed to be hisexclusive and private debts.

We feel compelled to observe that during the protracted litigation below, the petitioners resorted to aseries of actions and petitions, at some stages alternatingly, abetted by their counsel, for the sole purposeof thwarting the execution of a simple money judgment which has long become final and executory. Someof the actions were file only to be abandoned or withdrawn. The petitioners and their counsel, far fromviewing courts as sanctuaries for those who seek justice, have tried to use them to subvert the very endsof justice.

ACCORDINGLY , the instant petition is dismissed, and the writ of preliminary injunction heretofore issuedis hereby dissolved. Treble costs are assessed against the petitioners, which shall be paid by theircounsel.

Motion for reconsideration:

A motion for reconsideration was filed in relation to the observation made by the court in its decisiondated May 22, 1968. The court assessed treble costs against the petitioners to be paid by their counsels.Attys. Baizas and Bolinao seek reconsideration of the decision in so far as it reflects adversely upon theirprofessional conduct and condemns them to pay the treble costs.

November 5, 1962 - Court of Appeals rendered judgment sustaining Damaso Perez position with respectto the extent of the levy, the subsequent proceedings interposed alternatingly by the petitioner spouseswere obviously quixotic maneuvers expected to be overthrown by the courts but calculated to delay anexecution long overdue.

The petitioners and their counsel chose to attack the execution in a piecemeal fashion causing thepostponement of the projected execution sale six times. Perez spouses as represented by their counselsought the issuance of preliminary injunctions to restrain the execution of the final judgment in civil case39407 fromcourts which did not have jurisdiction and which would, as expected, initially orultimatelydeny their prayer.

Issue:WON Attys. Baizas and Bolinao used devices to delay the execution of the judgment? YES

Ratio:Mrs. Perez and her counsel, knew or ought to have known beforehand that the Court of First Instance ofRizal did not have jurisdiction to issue the writ which Mrs. Perez herself sought, and, anticipating therecall of the writ improvidently issued, on September 3, 1963, a month before the said writ was actually


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lifted, filed in the basic civil case 39407 an urgent motion to lift the writ of execution issued on August15,1961, alleging as justification the conjugal nature of the levied shares of stock and the personal natureof Damaso Perez' judgment debt, the very same reasons advanced in civil case 7532 which was then stillpending in the Court of First Instance of Rizal

The circumstances relative to the motion for reconsideration clearly negates the avowal of the movantsthat "in none of the various incidents in the case at bar has any particular counsel of petitioners acted

with deliberate aforethought to delay the enforcement of the judgment in Civil Case No. 39407." The Perezspouses, coached by their counsels, had sallied forth on a strategem of "remedies" projected to foil thelawful execution of a simple money judgment.

Attys. Baizas and Bolinao contends that if there was delay it was because they happened to be moreassertive, a quality of lawyers which is not to be condemned. The court replied that a counsel'sassertiveness in espousing with candour and honesty his client's cause must be encouraged and is to be

commended; what we do not and cannot countenance is a lawyer's insistence despite the patent futility ofhis client's position. It is the duty of a counsel to advise his clients if he finds that his client's cause isdefenseless, then it is his bounden duty to advise the latter to acquiesce and submit, rather than traversethe incontrovertible. A lawyer must resist the whims and caprices of his client, and temper his client'spropensity to litigate.

Decision: Attys. Crispin D. Baizas and A.N. Bolinao, Jr. shall pay jointly and severally the treblecosts assessed against the petitioners.

We feel compelled to observe that during the protracted litigation below, the petitioners resorted to aseries of actions and petitions, at some stages alternatingly, abetted by their counsel, for the sole purposeof thwarting the execution of a simple money judgment which has long become final and executory. Someof the actions were filed only to be abandoned or withdrawn. The petitioners and their counsel, far fromviewing courts as sanctuaries for those who seek justice, have tried to use them to subvert thevery endsof justice.

In re: Almacen

FACTS:Vicente Raul AlmacensPetition to Surrender Lawyers Certificate of Title, filed on Sept. 26, 1967, inprotest against what he therein asserts is a great injustice committed against his client by SupremeCourt. He indicts SC, in his own phrase, as a tribual peopled by men who are calloused to our pleas for

justice, who ignore without reasons their own applicable decisions and commit culpable violations of theConstitution with impunity. His clients he continues, who was deeply aggrieved by this Courts unjustjudgment, has become one of the sacrificial victims before the altar of hypocrisy.

He ridicules the members of the Court, saying that justice as administered by the present members ofthe Supreme Court is not only bline, but also deaf and dumb. He then vows to argue the cause of hisclient in the peoples forum, so that people may know of the silent injustices committed by this courtand that whatever mistakes, wrongs and injustices that were committed must never be repeated. Heends his petition with a prayer that:a resolution issue ordering the Clerk of Court to receive the certificate of the undersigned attorneythat at any time in the future and in the event we regain our faith and confidence, we may retrieve ourtitle to assume the practice of the noblest profession.

The genesis of this unfortunate incident was a civil case entitled Yaptichay v. Calero, in which Atty.Almacen was counsel for the defendant. The trial court rencered judgment agains his client. On June15, 1966 atty. Almacen receive acopy of the decision. Twenty days later on he moved for itsreconsideration but did not notify the latter of the time and plce of hearing on said motion. Meanwhile,onJuly 18, 1966, the plaintiff moved for execution of the judgment. For lack of proof of service, the trialcourt denied both motions. To prove that he did serve on the adverse party a copy of his first motion forreconsideration, atty. Almacen filed on August 17, 1966 a second motion for reconsideration, however,was ordered withdrawn by the trial court on August 30, 1966, upon verbal motion of Atty. Almacenhimself, who earlier, that is, on Aug. 22, 1966 had already perfected the appeal. Motion forreconsideration was denied by Court of Appeals.

ISSUE:


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Whether or not Atty. Almacen should be given disciplinary actions for his acts.

HELD:Well-recognized is the right of a lawyer, both as an officer of the court and as citizen, to criticize inproperly respectful terms and through legitimate channels the acts of courts and judges.

As a citizen and as officer of the court, a lawyer is expected not only to exercise the right, but also to

consider it his duty to avail of such right. No law may abridge this right. Nor is he professionallyanswerable for a scrutiny into the official conduct of the judges, which would not expose him to legalanimadversion as a citizen. Atty. Almacen is suspended from the practice of law until further orders.

Santa Pangan vs. Atty. Ramos

FACTS

In 1979, a pending administrative case filed by Santa Pangan against Atty. Dionisio Ramos was delayedbecause Atty. Ramos allegedly appeared before a court in Manila. When the records of the said case waschecked (one which Atty. Ramos appeared in), it was found that he used the name Atty. Pedro D.D.Ramos. In his defense, Atty. Ramos said he has the right to use such name because in his birthcertificate, his name listed was Pedro Dionisio Ramos. D.D. stands for Dionisio Dayaw with Dayaw beinghis mothers surname. However, in the roll of attorneys, his name listed was Dionisio D. Ramos.

ISSUE:Whether or not what Atty. Ramos did was correct.

HELD:No. The attorneys roll or register is the official record containing the names and signatures of those w hoare authorized to practice law. A lawyer is not authorized to use a name other than the one inscribed inthe Roll of Attorneys in his practice of law. The official oath obliges the attorney solemnly to swear that hewill do no falsehood. As an officer in the temple of justice, an attorney has irrefragable obligations oftruthfulness, candor and frankness. In representing himself to the court as Pedro D.D. Ramos insteadof Dionisio D. Ramos, respondent has violated his solemn oath and has resorted to deception. TheSupreme Court hence severely reprimanded Atty. Ramos and warned that a similar infraction will warrantsuspension or disbarment.

Berenguer vs. Carranza, 26 SCRA 210

FACTS:Atty. Pedro B. Carranza was filed a complaint against his acts of deception practiced in the Court of FirstInstance of Sorsogon. The alleged deception was the introduction of an Affidavit of Adjudication andTransfer of Title subscribed and sworn in Pasay City, which later turned out to be a falsity. Atty. Carranza

claimed that he took no part in the said falsified document. It was contested that due to the saidfalsehood, whether or not a lawyer took part from, must still be held liable for lack of prudence andmeticulous take on the matter, and as it had caused unnecessary delays in the administration of justice.

ISSUE:Whether or not Atty. Carranza should be held responsible of the said falsehood committed in court.

HELD:YES. Respondent was reprimanded.

RATIO:

There was a finding that there was nothing willful in the conduct pursued by the respondent inintroducing the document that turned out to be false. Nevertheless, the Supreme Court reminded that thelawyers oath is one impressed with utmost seriousness and should not be taken lightly. In its decision toissue reprimand, the respondent is warned that a more severe penalty will be imposed if the offense of thesame character is repeated again.

Occena vs. Marquez

FACTS:OCCENA seek to nullify order of MARQUEZ:


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a. In the matter of testate estate of William Ogan, in relation to OCCENAs claim for partial payment ofattorney fees P30,000 (November 2, 1966), fixing at P20,000 (covering March 1963-December 1965)and directing its payment minus P4,000 previously received by petitioners.

b. Order denying motion for reconsideration and modifying Nov. 2 1966 order by deleting the phrase:i. direct the said court to approve the release to them as attorneys fees amount P30,000

minus P4,000 already advanced to them by executrixii. allow petitioners to submit evidence to establish the total attorneys fees to which they are

entitled, in case no agreement thereon is reached between them and the instituted heirs

GROSS VALUE OF OGAN ESTATE IS P2,000,000.1. OCCENA are the lawyers for estate executrix, Mrs. NECITAS OGAN OCCENA.

i. Have been representing since 1963ii. Defended the estate against claims and protecting the interests of the estate.

3. EXPEDITE SETTLEMENT OF ESTATE:1. 7 instituted heirs compromised with claimants, including co-executor BINAMIRA, lawyers and wife.

i. Partial distributor of corpus and income made to heirs in total of P450,000.2. Estate and inheritance taxes were settled by executrix (Nov. 6)

i. Requisite tax clearance and discharge from liability was issued by Commissioner of InternalRevenue.

4. OCCENA FILED MOTION FOR PARTIAL PAYMENT OF ATTORNEY FEES (1965) to approve payment ofP30,000 as counsel since 1963; authorize executrix to withdraw amount from deposits of estate.

1. 3 heirs moved to defer consideration until total amounts of executrix fees and attorney fees are agreedupon.

i. In July 1966, 5 of 7 heirs filed manifestation, no objection to release P30,000 as partialpayment and recommending approval of OCCENA petition.

2. First motion (Nov. 18, 1965) still unresolved, filed 2ndmotion for release of P30,000.i. Deferred by QUIJANO and ARROYO for remaining 2 heirs until all heirs have agreed in writing

on total attorney fees.1. Filed for motion for reconsideration, payment of P30,000 would be chargeable against the fees they and

instituted heirs might agree to be their total fee.a. MARQUEZ order fixing total fees from 1963-1965 to P20,000.

i. MARQUEZ denied motion for reconsideration and also modified lawyer fees toP20,000.

5. OCCENA CONTEND THAT MARQUEZ ACTED WITH GRAVE ABUSE OF DISCRETION/ EXCESS OFJURISDICTION:

1. Motion submitted for resolution was only for partied payment of attorney feesi. Without prejudice to any agreement that might later be reached between them and instituted

heirs on question of total attorney fees, yet MARQUEZ resolved the question of total attorney fees.2. Considering only question raised by OCCENA for courts determination was of partial attorney fees, they

never expected the court to make a ruling on the question of total attorney fees.i. Consequently, OCCENA did not have the opportunity to prove to total fees to which they were

entitled.ii. Hence, they were denied due process of law.

3. 5 of 7 heirs agreed to OCCENA motion for partial payment while remaining 2 did not oppose the motion.4. MARQUEZ said he based the P20,000 on records of the case but amount of attorney fees cannot be

determined on sole basis of records for there are other circumstances that should be taken intoconsideration.

5. Contrary to MARQUEZ opinion, the fact that one of OCCENA is the husband of executrix does not denythem the right to fees to which they are entitled.

6. ONLY MARQUEZ IS NAMED RESPONDENT FOR ACCORDING TO PETITIONERS, NO PROPER PARTY ISINTERESTED IN SUSTAINING THE QUESTIONED PROCEEDINGS IN LOWER COURT.

7. MARQUEZ COUNTER-ARGUMENT:1. OCCENA proper remedy is appeal and not special civil action, considering there is already a final order on

motion for payment of fees.2. One of OCCENA is the husband of executrix.

i. Hence, pecuniary interest goes against pecuniary interest of 4 heirs he is representing in specialproceeding.

c. There are miscellaneous payments appearing in the compromised agreement and in the executrixsaccounting which cover expenses incurred by OCCENA for the estate- reason why MARQUEZ deleted1963-1965 from November 2 order.


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d. Co-executor BINAMIRA should be included as party respondent to comply with SEC 5, RULE 65 ofRevised Rules of Court.

e. Duty of MARQUEZ not to be very liberal to the attorney representing the executrix, who is the wife of saidcounsel and is herself an heir to a sizable portion of the estate, for it is his duty to see to it that the estateis administered frugally as economically as possible.

1. And to avoid a considerable portion of estate is absorbed in the process of such division in order thatthere may be a worthy residue for the heirs.

f. As special defenses, MARQUEZ alleged that 7 instituted heirs are indispensable parties in this case;mandamus cannot control the actuations of the trial court because they involved matters of discretion; noabuse of discretion can be imputed to respondent Judge for trying his best to administer the estatefrugally.

8. Since SAMUEL OCCENA AND JESUS OCCENA are husband and father-in-law of executrix, NECITASOGAN OCCENA, JESUS OCCENA cannot oppose claim for attorney fees, thus leaving co-executor(BINAMIRA) as the lone party to represent and defend the interests of estate.

a. BINAMIRA filed for motion for leave to intervene, granted in 1967.i. OCCENA filed motion for reconsideration of AUG 9 1967 resolution and opposition to

BINAMIRAs motion for leave to intervene:1. BINAMIRA ceased to be co-executor upon his resignation in 1965.9. Intervenor (BINAMIRA) filed Reply to Executrixs Opposition and Opposition to Executrixs Motion for

Reconsideration; filed Intervenors Comments on Petitioners Motion for Reconsideration of Resolution(AUG 9 1967).

a. OCCENA filed against BINAMIRA, Petition for Contempt asking to hold BINAMIRA in contempt of court.i. Court required BINAMIRA to comment.

b. OCCENA filed Supplemental Petition for Contempt.i. BINAMIRA responded, asking court to dismiss OCCENAs motion for indirect contempt and hold

them guilty of indirect contempt for gross breach of legal ethics.1. Action deferred until case is considered on merits.

ii. Exchange of petitions for contempt between BINAMIRA and OCCENA.1. Charge of false averments against BINAMIRA.

ISSUE:WON the Court made a grace abuse of discretion upon modifying attorney fees?Is there a conflict on interest on the testate proceedings considering one of petitioners is husband ofexecutrix?

HELD:PETITION FOR CERTIORARI GRANTED. COURT A QUO IS DIRECTED TO HOLD A HEARNG TODETERMINE HOW MUCH TOTAL ATTORNEY FEES PETITIONERS ARE ENTITLED TO.BINAMIRA, WHO APPEARED AS INTERVENOR, IS DECLARED GUILTY OF CONTEMPT ANDSENTENCED TO PAY COURT P500.

1. On BASIS PETITION OF ATTORNEY FEES:1. GENERAL RULE: When lawyer rendered legal services to executor/administrator to assist in execution of

his trust, attorney fees may be allowed as expenses of administration.i. Estate not directly liable for his fees.

ii. Liability of payment rests on executor.iii. If executor/administrator pays, he may reimburse from the estate.iv. In case of failure to pay:

1. File an action against him in his personal capacity and not as administrator2. File a petition in testate or intestate proceedings asking court to direct payment of fees as expenses of

administrationv. *Whichever action chosen, heirs will have to right to inquire into the value, of the services of the

lawyer and on necessity of his employment.2. NO AUTHORIZATION IN THE COURT to fix amount of lawyer fees entitled without according to lawyer the

opportunity to prove the legitimate value of his services.3. IMPORTANCE OF RECORD IN DETERMINING ATTORNEY FEES:1. Whatever attorney fees may have been approved by the Court were result of compromise and were the

written consent of all heirs and of all signatories. The record can reflect what an attorney has done.2. However, in fixing attorney fees solely on basis of records of the case, without allowing OCCENA to bring

evidence to prove what is the proper amount of attorney fees they are entitled to, MARQUEZ hascommitted a grave abuse of discretion correctable by certiorari. Other factors in assessing lawyer fees:


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i. Amount and character of service renderedii. Labor, time and trouble involved

iii. Nature and importance of litigation or business services were renderediv. Responsibility imposedv. Amount of money or value of property affected by controversy/involved in employment

vi. Skill and experience in performance of servicesvii. Professional character and social standing

viii. Results secured3. An attorney may properly charge a much larger fee when it is contingent than when it is not.4. BINAMIRA DELIBERATELY MADE FALSE ALLEGATIONS WHICH TEND TO IMPEDE OR OBSTRUCT

ADMINSITRATION OF JUSTICE:1. Claimed to have duly executed mortgage which in reality is only a proposed mortgage not signed by

parties.2. Record showed only a certain P50,000 loan and not P100,000 as he claimed against the petitioners.3. Stated that SAMUEL OCCENA became president of Bohol Land Transport after making the P100,000

load. Corporate secretary of Bohol Land said otherwise.4. Stated a certain income distributed to heirs when no income existed.5. Said that executrix failed to state assets which are actually gifts or furniture payments to the executrix

personally.6. Mentioned that petitioners and executrix did not pay him when there was a receipt signed.

leg eth vii

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