Flores vs. Zurbito, et al.

In an election contest, the statutory requirement that the proceeding be “upon motion with notice” does not prescribe a mandatory method of giving notice; actual notice and receipt of a copy of the protest, or a protestee’s voluntary appearance without expressly objecting to jurisdiction over his person, satisfies or waives the notice requirement.

Bernabe Flores, Jose Zurbito, Antonio Rocha, and Rosendo Gabionsa were candidates for governor of Sorsogon in the June 6, 1916 election. Election contests were governed by statutory provisions requiring that the proceeding be “upon motion with notice,” but the law did not prescribe the method by which notice had to be given. The present appeal was the second time the parties had been before the Supreme Court in relation to the same election protest.

On June 6, 1916, an election was held in the Province of Sorsogon for the office of governor. Bernabe Flores, Jose Zurbito, Antonio Rocha, and Rosendo Gabionsa were candidates. At the close of the election the votes were canvassed, and on July 8, 1916 the provincial board of canvassers proclaimed Jose Zurbito duly elected.

On July 19, 1916, Bernabe Flores presented a protest in the Court of First Instance against the election, alleging that many frauds had been committed and praying for a recanvass of the votes and an investigation of the frauds. Notice of the protest was given to Jose Zurbito, Antonio Rocha, and Rosendo Gabionsa by sending each a copy by registered mail, which each received. In addition, a copy of the protest was delivered to Jose Zurbito and received by him personally (Exhibit C, p. 95). Antonio Rocha and Rosendo Gabionsa failed to appear, answer, or defend the protest in any manner at any time during the pendency of the action in the lower court.

Jose Zurbito appeared in court on July 25, 1916 and presented a motion relating to the custody of the ballot boxes during the pendency of the protest; the motion was granted the same day. On July 27, 1916, he again appeared and, without making any pretense that he had not appeared to defend the protest, presented another motion praying that the protest be dismissed because it was signed by the attorney for the protestant and not by the protestant himself. On August 7, 1916, after hearing the parties, Judge Fernando Salas granted the motion and dismissed the protest with costs against the protestant. The protestant appealed to the Supreme Court and obtained a reversal on December 27, 1916; the cause was remanded with direction that the protest be reinstated and heard on its merits.

After reinstatement, a time was set for trial and witnesses were subpoenaed. At the time fixed for trial, Jose Zurbito again appeared and presented another motion praying that the protest be dismissed because proper notice had not been given to the protestees. The lower court found that the candidates had not given legal notice of the protest and, on March 16, 1917, dismissed the protest with costs against the protestant. The present appeal was perfected from that order.

The facts pertinent to the question presented are undenied. The record shows that a copy of the protest was delivered to Jose Zurbito and received by him personally on July 27, 1916 (Exhibit C, p. 95). The lower court’s dismissal rested on its finding that the candidates had not been given legal notice, while the record also showed actual notice to all candidates and Zurbito’s prior appearances in the case.

• Legal Notice Given: Petitioner contended that the notice required by law had been given.
• Merits Hearing: Petitioner contended that his protest should have been heard upon its merits.

• Lack of Notice: Respondent moved to dismiss the protest on the ground that all candidates voted for governor had not been given notice of the protest.

• Legal Notice: Whether the protestees had been given legal notice of the protest presented by the protestant and appellant.

• Legal Notice: Yes. All candidates received actual notice and a copy of the protest; Jose Zurbito also received personal delivery and, by appearing and filing motions without expressly objecting to jurisdiction over his person, waived any objection to the lack or manner of notice.

• Legal Notice: The law provides that the mode of procedure in election contests shall be “upon motion with notice” under Sec. 27, Act No. 1582; sec. 2, Act No. 2170; sec. 578, Act No. 2657; and sec. 481, Act No. 2711, but it contains no provision as to the method of giving notice. Although the provisions of Act No. 190 (section 396) may be followed for convenient proof that notice was given, it has never been held that notice of the protest must be given in accordance with that Act. Campos vs. Wislizenus and Aldanese, 35 Phil. Rep., 373. Service of a copy of the protest and notice is important and necessary, but receipt may be waived. The record shows that all candidates received actual notice and a copy of the protest, and that Zurbito personally received a copy on July 27, 1916 (Exhibit C, p. 95). Moreover, if a protestee voluntarily appears by a general appearance without specially and explicitly objecting to the lack of notice, he thereby gives the court jurisdiction over his person, and an objection thereafter on the ground that no notice was received will not avail him. A voluntary appearance is a waiver of the necessity of formal notice. An appearance in whatever form, without expressly objecting to the jurisdiction of the court over the person, waives want of process and service of notice. The formal method of entering an appearance is not necessary; a party may appear by filing a motion, plea, or answer. When the appearance is by motion objecting to jurisdiction over the person, it must be for the sole and separate purpose of objecting to that jurisdiction; if the motion is for any other purpose, the party submits himself to the court’s jurisdiction. Taking any proceedings other than a special appearance or a motion or plea objecting to jurisdiction is equivalent to a general appearance. A special appearance by motion to object to jurisdiction over the person will be held to be a general appearance if the party also asks for dismissal on another ground. In the present case, Zurbito appeared three times: first, to move regarding custody of the ballot boxes; second, to move to dismiss the protest on the ground that it was not signed by the protestant personally; and third, to move to dismiss on the ground that he had not been duly notified. The first and second appearances were sufficient to give the court jurisdiction over his person and authority to decide the questions presented. With respect to the third appearance, the record shows by Exhibit C that he had actually received notice of the protest together with a copy of the protest filed in court. His appearance without objecting to the jurisdiction of the court waived all objections to the form and manner of service of notice. Provident et. Association vs. Ford, 114 U.S., 635, 639. The dismissal was accordingly revoked.

• Election protest notice; no mandatory method — In election contests, the statutory mode is “upon motion with notice,” but the law does not prescribe the method of giving notice. Act No. 190, section 396 may be followed for convenient proof, but compliance is not mandatory. Service of a copy and notice is important and necessary, but receipt may be waived. Applied: all candidates received actual notice and a copy; Zurbito personally received a copy, so the notice requirement was satisfied.
• Voluntary appearance as waiver of lack of notice — A protestee who voluntarily appears by general appearance without specially and explicitly objecting to lack of notice gives the court jurisdiction over his person; an objection thereafter on the ground that no notice was received is too late. An appearance in any form without expressly objecting to jurisdiction over the person waives formal notice. Applied: Zurbito filed motions relating to ballot-box custody and dismissal on the signature defect before objecting to notice; those appearances gave jurisdiction and waived objections.
• Special appearance rule — A special appearance by motion to object to jurisdiction over the person must be solely for that purpose. If the motion seeks any other relief, including dismissal on another ground, it becomes a general appearance and submits the person to the court’s jurisdiction. Applied: Zurbito’s motions were not limited to objecting to jurisdiction over his person; they sought affirmative relief and dismissal on other grounds, so they operated as general appearances.

• "While the law provides that the node of procedure, in election contest, shall be 'upon motion with notice' (Sec. 27, Act No. 1582; sec. 2, Act No. 2170; sec. 578, Act No. 2657; sec. 481, Act No. 2711) it does not contain any provision as to the method of giving notice." — This states the statutory gap that allowed actual notice and waiver to control, rather than a mandatory mode of service.
• "If he voluntarily appears, by a general appearance, without specially and explicitly objecting to the lack of notice, etc., he thereby gives the court jurisdiction over his person, and an objection thereafter made upon the ground that no notice was received will not avail him." — This is the ratio for rejecting Zurbito’s later objection to notice after he had already appeared and filed motions.
• "A voluntary appearance is a waiver of the necessity of a formal notice." — This is the canonical formulation of the waiver doctrine applied to Zurbito.
• "Considering, therefore, (a) that all of the candidates received actual notice of the protest as well as a copy of the protest, and (b) that Jose Zurbito not only received actual notice of the protest together with a copy of the same, but actually appeared in court and thereby gave the court jurisdiction over his person, it is hereby ordered and decreed that the judgment dismissing the protest be revoked and that the cause be remanded to the court whence it came with direction that said protest be reinstated for the purpose of deciding the issues presented by the same upon their merits." — This is the dispositive rationale, combining actual notice and voluntary appearance as the grounds for reversal.

• De Castro vs. Salas and Santiago, 34 Phil. Rep., 818 — Followed in the first appeal to reverse the dismissal of the protest on the ground that it had been signed by the protestant’s attorney rather than by the protestant personally.
• Campos vs. Wislizenus and Aldanese, 35 Phil. Rep., 373 — Cited to hold that the notice of an election protest need not be given in accordance with Act No. 190, although its provisions may be followed for convenient proof of notice.
• Provident et. Association vs. Ford, 114 U.S., 635, 639 — Cited for the rule that an appearance without objecting to the jurisdiction of the court waives all objections to the form and manner of service of notice.
• Elliott vs. Lawhead, 43 Ohio St., 171 — Cited for the rule that a special appearance by motion to object to jurisdiction over the person becomes a general appearance if the party also asks for dismissal on another ground.

• Sec. 27, Act No. 1582; sec. 2, Act No. 2170; sec. 578, Act No. 2657; sec. 481, Act No. 2711 — Provide that the mode of procedure in election contests shall be “upon motion with notice.” The Court noted that these provisions do not prescribe the method of giving notice, so actual notice and waiver could satisfy the requirement.
• Section 396, Act No. 190 — Its service provisions may be followed for convenient proof that notice was given, but compliance is not mandatory for the validity of notice in an election protest. The Court relied on this to reject the claim that notice had to conform to Act No. 190.

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