Hagans vs. Wislizenus

A judge of the Court of First Instance is without authority to appoint assessors in a special proceeding, because the statutory provision allowing assessors applies only to an "action," and Act No. 190 expressly distinguishes an "action" from a "special proceeding."

Broadwell Hagans and Adolph Wislizenus, Judge of First Instance of Cebu, were parties to an original certiorari proceeding concerning the appointment of assessors in a special proceeding for the settlement of a decedent's estate. Act No. 190 supplies the provisions on assessors and defines "action" and "special proceeding"; the other cited statutes authorize assessors only in Manila or in criminal cases. The legal backdrop is the statutory distinction between an action and a special proceeding.

Broadwell Hagans filed an original petition in the Supreme Court for a writ of certiorari against Adolph Wislizenus, Judge of First Instance of Cebu, and others. The petition challenged an order of the respondent judge appointing assessors in a special proceeding. The appointment was made for the purpose of fixing the amount due to an administrator or executor for services and expenses in the care, management, and settlement of the estate of a deceased person.

The facts alleged in the petition were admitted by a demurrer. The respondent judge maintained that Act No. 190 permitted him to appoint assessors in special proceedings, while Hagans contended that no authority in law existed for such appointment. The sole question presented was whether a judge of the Court of First Instance, in special proceedings, was authorized under the law to appoint assessors for that purpose.

• No Statutory Authority: Petitioner contended that no authority in law exists for the appointment of assessors in special proceedings.

• Act No. 190 Authority: Respondent judge argued, in support of his demurrer, that the provisions of Act No. 190 permit him to appoint assessors in "special proceedings."

• Authority to Appoint Assessors in Special Proceedings: Whether a judge of the Court of First Instance, in special proceedings, is authorized under the law to appoint assessors for the purpose of fixing the amount due to an administrator or executor for services and expenses in the care, management, and settlement of the estate of a deceased person.
• Meaning of "Action" Under Act No. 190: Whether a special proceeding is an "action" within the meaning of section 154 of Act No. 190, such that the judge may appoint assessors thereunder.

• Authority to Appoint Assessors in Special Proceedings: No. A judge of the Court of First Instance is without authority to appoint assessors in a special proceeding, because the only possible statutory basis, sections 153-161 of Act No. 190, applies to an "action."
• Meaning of "Action" Under Act No. 190: No. A special proceeding is not an "action"; section 1 of Act No. 190 defines an "action" as an ordinary suit in a court of justice and every other remedy as a "special proceeding."

• Authority to Appoint Assessors in Special Proceedings: The only provisions of law authorizing the appointment of assessors are sections 57-62 of Act No. 190, sections 153-161 of Act No. 190, section 44(a) of Act No. 267, section 2477 of Act No. 2711, and section 2 of Act No. 2369. Section 44(a) of Act No. 267 and section 2477 of Act No. 2711 apply only to the City of Manila; Act No. 2369 provides for assessors in criminal cases only; and sections 57-62 of Act No. 190 provide for assessors in the court of justice of the peace. Thus, the only provisions that could possibly permit the appointment of assessors in special proceedings are sections 153-161 of Act No. 190. Section 154 thereof authorizes either party to an action to apply for assessors to sit in the trial. Because the present proceeding is a special proceeding, not an action, the judge had no authority to appoint assessors. The demurrer was therefore overruled and the order appointing assessors annulled.
• Meaning of "Action" Under Act No. 190: Section 1 of Act No. 190 provides that an "action" means an ordinary suit in a court of justice, while every other remedy furnished by law is a "special proceeding." The Legislature itself made a distinction between the two terms, and when it used the word "action" it did not mean "special proceeding." An action is a formal demand of one's legal rights in a court of justice in the manner prescribed by the court or by law, and the method of applying legal remedies according to definite established rules. A special proceeding is an application or proceeding to establish the status or right of a party, or a particular fact; usually no formal pleadings are required unless the statute expressly provides, and the remedy is generally granted upon an application or motion. Illustrations include proceedings for the appointment of an administrator, guardians, or tutors; contest of wills; to perpetuate testimony; to change the name of persons; and application for admission to the bar. Since the present proceeding is a special proceeding, section 154's reference to an "action" does not authorize the appointment of assessors.

• Distinction Between "Action" and "Special Proceeding" — Under section 1 of Act No. 190, an "action" means an ordinary suit in a court of justice, while every other remedy furnished by law is a "special proceeding." The Court held that the Legislature deliberately distinguished the two, so a statutory provision referring to an "action" does not apply to a "special proceeding." An action is a formal demand of legal rights in a court of justice in the manner prescribed by the court or by law, and the method of applying legal remedies according to definite established rules. A special proceeding is an application or proceeding to establish the status or right of a party, or a particular fact; it usually requires no formal pleadings unless the statute expressly provides, and the remedy is generally granted upon an application or motion. Illustrations include appointment of an administrator, guardian, or tutor; contest of wills; perpetuation of testimony; change of name; and application for admission to the bar.
• Limited Statutory Authority to Appoint Assessors — The appointment of assessors is authorized only by sections 57-62 of Act No. 190 (court of justice of the peace), sections 153-161 of Act No. 190, section 44(a) of Act No. 267 (City of Manila only), section 2477 of Act No. 2711 (City of Manila only), and section 2 of Act No. 2369 (criminal cases only). Because sections 153-161 refer to an "action," a judge of the Court of First Instance may not appoint assessors in a special proceeding.

• "The only question presented is, whether or not a judge of the Court of First Instance, in "special proceedings," is authorized under the law to appoint assessors for the purpose of fixing the amount due to an administrator or executor for his services and expenses in the care, management, and settlement of the estate of a deceased person." — This passage frames the sole issue resolved by the Court.
• "In view of the interpretation given to the words "action" and "special proceeding" by the Legislature itself, we are driven to the conclusion that there is a distinction between an "action" and a "special proceeding," and that when the Legislature used the word "action" it did not mean "special proceeding."" — This passage states the ratio decidendi on the statutory distinction between an action and a special proceeding.
• "From all of the foregoing we are driven to the conclusion that in proceedings like the present the judge of the Court of First Instance is without authority to appoint assessors." — This passage states the Court's ultimate conclusion and the basis for annulling the order appointing assessors.

• People vs. County Judge, 13 How. Pr. [N. Y.], 398 — Cited for the definition of an action as a formal demand of one's legal rights in a court of justice in the manner prescribed by the court or by law, and as the method of applying legal remedies according to definite established rules.
• Porter vs. Purdy, 29 N. Y., 106, 110 — Cited for the definition of a special proceeding as an application or proceeding to establish the status or right of a party, or a particular fact.
• Chapin vs. Thompson, 20 Cal., 681 — Cited together with Porter vs. Purdy for the same definition of a special proceeding.

• Section 1, Act No. 190 — Defines "action" as an ordinary suit in a court of justice and "every other remedy furnished by law" as a "special proceeding." The Court applied this definition to hold that a special proceeding is not an action.
• Section 154, Act No. 190 — Provides that either party to an action may apply in writing to the judge for assessors to sit in the trial, and upon filing, the judge shall direct that assessors be provided. Because it refers to an "action," it does not authorize assessors in a special proceeding.
• Sections 153-161, Act No. 190 — The only provisions that could possibly permit appointment of assessors in special proceedings; construed as limited to actions, hence inapplicable.
• Sections 57-62, Act No. 190 — Provide for appointment of assessors in the court of justice of the peace; not applicable to the Court of First Instance special proceeding.
• Section 44(a), Act No. 267 — Authorizes appointment of assessors, but applies to the City of Manila only.
• Section 2477, Act No. 2711 — Authorizes appointment of assessors, but applies to the City of Manila only.
• Section 2, Act No. 2369 — Provides for appointment of assessors in criminal cases only.

Araullo, Malcolm, Avanceña, Moir, and Villamor, JJ., concurred.