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[No. 12647. November 26, 1917.]

JOSE LINO LUNA, petitioner and appellee, vs. EULOGIO

RODRIGUEZ and SERVANDO DE LOS ANGELES,
respondents. EULOGIO RODRIGUEZ, appellant.

1. JUDGMENT; NULLITY.—Held: Under the facts stated in

the opinion that, inasmuch as the judge, who wrote and
caused to be promulgated the decision and judgment, was
neither a judge de jure nor de facto, said judgment was a
nullity.

2. ID.; REQUISITES FOR VALIDITY.—In order that a

judgment may be valid and have legal effect it must be (a)
rendered by a court legally constituted and in the actual
exercise of judicial powers; and (6) by a judge or judges
legally appointed or elected, duly qualified and actually
acting either de jure or de facto. The absence of these
essentials renders a judgment a nullity.

3. WORDS AND PHRASES; "JUDGE DE JURE" DEFINED.

—A judge de jure is one who is exercising the office of a
judge as a matter of right. He is an officer of the law fully
vested with all the powers and functions, conceded under
the law to a judge, which relate to the administration of
justice within the jurisdiction over which he presides.

4. ID.; "JUDGE DE FACTO" DEFINED.—A judge de facto is

an officer who is not fully invested with all of the powers
and duties conceded to judges, but is exercising the office
of judge under some color of right. A judge de facto may be
said to be one who has the reputation of being the officer
he assumes to be yet is not a good officer in point of law,
that is, there exists some defect in his appointment or
election and in his right to exercise judicial functions at
the particular time.

APPEAL from a judgment of the Court of First Instance of

Rizal. Barretto, J.
187

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VOL. 37, NOVEMBER 26, 1917. 187

Lino Luna vs. Rodriguez and De los Angeles.

The facts are stated in the opinion of the court.

Sumulong & Estrada for appellant.
Ramon Diokno and Agapito Ignacio for appellee.

JOHNSON, J.:

The first question, presented by this appeal, is, Did the

opinion of the judge, which he signed on the 14th day of
January, 1917, become the decision of the court on the 17th
day of January, 1917, the date on which it was filed with
the clerk of the court? If it did, then the other questions
presented by the appellant must be decided now. If it did
not, then there is no decision in the case, and the record
must be returned to the court whence it came with
direction to proceed to a new trial and to render a judgment
in accordance with the law.
These proceedings grew out of an election contest for the
office of governor of the Province of Rizal. A protest was
duly presented, an answer was filed, and a trial was had
which closed on the 5th day of October, 1916, and the cause
was submitted to the court for decision. The record shows
that the opinion of the judge was signed by him on the 14th
day of January, 1917, but was not filed with the clerk of the
court until the 17th day of January, 1917. Notice of said
opinion was given to the respective parties on the 17th day
of January, 1917. On the 20th day of January, 1917, the
attorneys for 'the protestee presented the following motion:
"Now comes the respondent and, through the
undersigned attorneys, alleges:
"First. That he was notified by the clerk of this court
that a document said to be the judgment in the
aboveentitled case, dated January 14, 1917 and signed by
the Honorable Alberto Barretto as judge of the Court of
First Instance of the Eleventh Judicial District, was made
a part of the records.
"Second. That though the above-mentioned document
was signed by the Honorable Alberto Barretto, yet this was
done on or after the 16th day of January, 1917, when the
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Lino Luna vs. Rodriguez and De los Angeles.

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said Honorable Alberto Barretto had already ceased to be

judge of the Court of First Instance of the Eleventh Judicial
District, inasmuch as he had qualified for, and taken
possession of, the position of Secretary of Finance of the
Government of the Philippine Islands.
"Third. That in order to conceal this fact, the said
Honorable Alberto Barretto deliberately caused the said
judgment to be dated as if it had been written and signed
at Pasig, Rizal, on the 14th day of January, 1917, thus
falsifying the essential fact concerning the date when the
referred to document was written and signed.
"Fourth. That the said document had not been written
nor signed at Pasig, Rizal, or within the territorial
jurisdiction of this Court, where according to law, the judge
of the Court of First Instance of the Eleventh Judicial
District should have his permanent official residence.
"Fifth. That whether the judgment referred to has been
written or signed on or after the 16th day of January, 1917,
as we maintain and are ready to prove, or on the 14th day
of January, 1917, the date which such judgment now bears,
said judgment is null and void and of no value, for the
latter date falls on Sunday, and for that reason, it has been
unduly filed with the records of this case.
"Sixth. That if the said judgment should be allowed to
remain with the records of this case, as it is at present, the
clerk of this court will enforce it and comply with the orders
contained therein as if it were a valid judgment effective
and binding on the parties, thus injuring the interests of
the respondent.
"Wherefore, he prays that, after taking the necessary
legal proceedings, this court declare null and void said
judgment, dated January 14, 1917 and signed by the
Honorable Alberto Barretto, and order the clerk of this
court to abstain absolutely from all proceedings tending to
comply with the provisions contained in the said judgment,
and provide for any other remedy which may be deemed
just and equitable."
A copy of said motion was delivered to the attorney for
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VOL. 37, NOVEMBER 26, 1917. 189

Lino Luna vs. Rodriguez and De los Angeles.

the appellee on the same day (January 20, 1917), and the
same was denied by the Honorable Manuel Vivencio del
Rosario, auxiliary judge, on the 22d day of January, 1917,

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and notice of said order was given to the respective parties

on the 23d day of January. Some question is raised in the
brief filed in this court by the appellee concerning the
failure of the appellant to give due notice of the hearing of
said motion. Even granting that said motion was not
brought on with proper notice for hearing, we deem that
fact unimportant in the discussion of the question whether
or not a proper judgment was rendered in the court below.
The appellant alleges that at the time said opinion was
filed and the decision promulgated, the judge who wrote
the opinion was not then judge of the Court of First
Instance of the Province of Rizal. We think the proposition
will not be denied, if, at the time the said opinion was
promulgated as the decision of the court, the judge was not
then a judge either de jure or de facto, that said decision
was null and void. The appellant asserts that the judge
who wrote the opinion was not judge of the Court of First
Instance of the Province of Rizal at the time said opinion
was filed with the clerk; that he had theretofore vacated
his office as judge of said court and had become "Secretary
of Finance," in the executive department of the
Government. These are the facts which constituted the
basis of the motion for a new trial presented by the
appellant in the court below and the facts which he desired
an opportunity to prove.
The rendition of a judgment or decree is the judicial act
of a court in pronouncing its decision, as distinguished from
the ministerial act of the clerk in recording the same. (Ex
parte Morgan, 114 U. S., 174.) The judgment is the act of
the court. The clerk records the judgment of the court, but
does not thereby render the judgment. (Ex parte Morgan,
supra.) The rendition of a judgment is necessarily a judicial
act of a court. It is essential to the validity and
conclusiveness of a judgment or decree that there should be
some judicial action, by the court, constitut-

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Lino Luna vs. Rodriguez and De los Angeles.

ing a rendition. (Ensminger vs. Powers, 108 U. S., 292.) It

is also essential to the validity and conclusiveness of a
judgment or decree that there shall be a legally constituted
judge or judges, either de jure or de facto, at the time said
judgment is rendered. (Hickey vs. Stewart, 3 How. [U. S.],
750; Rose vs. Himely, 4 Cranch [U. S.], 241; Pennoyer vs.

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Neff, 95 U. S., 714; Scott vs. McNeal, 154 U. S., 34.) It is

also an essential element of the validity and conclusiveness
of a judgment or decree that it be rendered by a court in
the exercise of judicial power. (U. S. vs. Ferreira, 13 How.
[U. S.], 40; Ex parte Zellner, 9 Wallace [U. S.], 244; In re
Sanborn, 148 U. S., 222.)
In order that a court may promulgate a legal decision or
judgment two things are essential and necessary: (a) There
must be a court legally organized or constituted; and (6)
there must be a judge, or judges, legally appointed or
elected and actually acting, either de jure or de facto. If
either of these essentials is absent then the judgment
promulgated is a nullity. If there is no legal court there can
be no legal judgment. The same is true if there is no judge.
It is not sufficient that there has been a judge of the court.
There must be no one actually acting either de jure or de
facto.
It is an essential element to the validity of the acts of a
de facto judge, that he is actually acting under some color
of right. If he has ceased to be judge by actually accepting
and entering into some other office and has actually
entered upon the performance of the duties of the other
office, it is difficult to understand how he can still be
considered as actually occupying and performing the duties
of the office which he had abandoned and vacated. An
abandonment and a vacation of an office is inconsistent and
repugnant to the idea of actually continuing to perform the
duties of such office. There may be cases, however, where
the judge de jure has been appointed or elected to some
other office and has accepted said, other office without
actually entering upon the performance of the duties of the
other office and continues to act as judge.

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Lino Luna, vs. Rodriguez and De los Angeles.

In such a case he will be considered as a judge de facto.

(Woolside vs. Wagg, 71 Me., 207.) If he actually enters into
the other office and commences the performance of the
duties of the other office and ceases to act as judge, then
certainly he cannot be considered either a judge de jure or a
judge de facto. (State vs. Carroll, 38 Conn., 449; 9 Am. Rep.,
409; Brown vs. O'Connell, 36 Conn., 432; Butler vs.
Phillips, 38 Colo., 378; 9 L. R. A., 59; 14 L. R. A., N. S.,
638.)

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There may be cases where an opinion is promulgated as

the decision of the court after the judge thereof has ceased
to be judge. But an examination of such cases will generally
show that the parties had consented thereto and were,
therefore, estopped from denying their legal effect.
(Babcock vs. Wolf, 70 lowa, 676; Shenandoah Nat. Bank vs.
Read, 86 lowa, 136.) In that jurisdiction, however, no
provision like the provisions of section 13 of Act No. 867
exists.
If the opinion is properly filed with the clerk, all the
essentials existing, then, of course, the mere failure of the
clerk to perform his purely ministerial duty cannot defeat
said opinion from becoming the decision of the court. (1
Black on Judgments, section 113.)
With these propositions in mind, we proceed to ascertain
whether or not the judge who wrote the opinion was either
a judge de jure or de facto at the time the same was
promulgated as a decision of the court, accepting for the
present the facts alleged in said motion which have not as
yet been denied.
A judge de jure is one who is exercising the office of a
judge as a matter of right. He is an officer of a court which
has been duly and legally elected or appointed. He is an
officer of the law fully vested with all of the powers and
functions conceded under the law to a judge which relate to
the administration of justice within the jurisdiction over
which he presides.
A judge de facto is an officer who is not fully invested
with all of the powers and duties conceded to judges, but

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Lino Luna vs. Rodriguez and De los Angeles.

is exercising the office of judge under some color of right. A

judge de facto may be said to be one who has the reputation
of being the officer he assumes to be and yet is not a good
officer in point of law—that is, there exists some defect in
his appointment or election and in his right to exercise
judicial functions at the particular time. (King vs. Bedford
Level, 6 East [Eng. Com. Law Rep.], 356; Petersilea vs.
Stone, 119 Mass., 465; 20 Am. Rep., 335; State vs. Carroll,
38 Conn., 449; 9 Am. Rep., 409.)
A judge de facto is one whose acts, though not those of a
lawful officer, the law, upon principles of policy and justice
will hold valid so far as they involve the interest of the

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public and third persons, where the duties of the office

were exercised: (a) Without a known appointment or
election, but under such circumstances of reputation or
acquiescence as were calculated to induce people, without
inquiry, to submit to or invoke his action, supposing him to
be the officer he assumes to be; (5) under color of a known
or valid appointment or election, where the officer has
failed to conform to some precedent requirement or
condition, for example, a failure to take the oath or give a
bond, or similar defect; (c) under color of a known election
or appointment, void because the officer was not eligible, or
because there was a want of power in the electing or
appointing body, or by reason of some def fect or
irregularity in its exercise, such ineligibility, want of power
or defect being unknown to the public; and (d) under color
of an election, or appointment, by or pursuant to a public
unconstitutional law, before the same is adjudged to be
such. (State vs. Carroll, 38 Conn., 449; Wilcox vs. Smith, 5
Wendell [N. Y.], 231; 21 Am. Dec., 213; Sheehan's Case,
122 Mass., 445; 23 Am. Rep., 323.)
From the foregoing definitions it will be seen that both
de jure and de facto officers must be in the actual exercise
of the functions of the office of judge, either by an absolute
right or under a color of right. If at the time the opinion is
promulgated as a decision he is not acting either under an
absolute right so to do or under a color of rights then

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VOL. 37, NOVEMBER 26, 1917. 193

Lino Luna, vs. Rodriguez and De los Angeles.

he is acting neither as a judge de jure nor de facto. In the

present case it is charged and not denied that the judge
had ceased to be judge and was, at the time his opinion was
promulgated, actually in the exercise of another office,
outside of the judicial department, which he had accepted
and upon the performance of the duties of which he had
duly entered. While it is true that a judge may prepare his
opinion outside of the judicial district to which he had been
assigned and send it to the clerk of the particular district
for promulgation as a decision, yet, under the express
provision of the law, such opinion does not become a
decision of the court until it is actually and in fact filed
with the clerk. (Act No. 867, section 13.)
Section 13 of Act No. 867 makes provision in certain
cases by which the judge may sign a final judgment when

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he is outside the territorial jurisdiction of the particular

court. Said section provides that "it shall be lawf ful for him
(a judge), if the case was heard and duly argued or an
opportunity given for argument to the parties or their
counsel in the proper province, to prepare his judgment
after he has left the province and to send the same back
properly signed, to the clerk of the court, to be entered in
the court as of the day when the same was received by the
clerk, in the same manner as if the judge had been present
in court to direct the entry of the judgment." It will be noted
that said section permits a judge to prepare his judgment
"after he has left the province;" but there is no provision
permitting him to prepare his judgment after he has quit
the office of judge. It further provides that the opinion so
prepared does not become a judgment of the court until
"the day when the same was received by the clerk," with
the further provision that it is then received as a judgment
in the same manner as if the judge had been present
personally. Now, if the conditions exist which would
prevent him f from being present in court on said day when
the opinion is received by the clerk, by reason of his having
left the office of judge, by resignation, or death, or
otherwise, then it must follow that no such judgment can
be valid. The presumption of his
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Lino Luna, vs. Rodriguez and De los Angeles,

presence stated by the law, in the face of the fact of the

impossibility of his presence as judge, destroys absolutely
the possibility of such an opinion becoming a decision of the
court.
Whether or not an opinion signed on Sunday may be
promulgated as the decision, or judgment, or decree of a
court is a question which we do not now discuss or decide.
(Ball vs. United States, 140 U. S., 118.)
Under said section 13 (Act No. 867), it is clear the
Legislature intended that the judge, when he was given
permission to prepare his opinion in the manner therein
indicated, should still be judge at the time of the
promulgation thereof, or otherwise it would not have
provided that the opinion should be promulgated in the
same manner as if he were present at the time of the
promulgation. If he had ceased to be judge and had ceased
to be acting as judge, then, of course, he could not be

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present as judge at the time of the promulgation of the

opinion as a decision. In order to be a de facto judge he
must still be actually acting under some color of right. He
cannot be actually acting under any color of right when he
has ceased to be judge and has actually vacated the office
by the acceptance of another office and by actually entering
upon the duties of the other office. His acceptance of
another office is not inconsistent with the idea of his
actually continuing to act in his former office; but when he
actually accepts another incompatible office and actually
enters upon the performance of the other office, his
vacation of the former office is established thereby, unless
there is some proof to the contrary. No attempt is made,
even now, to show that the judge who prepared the opinion
in the present case had not actually ceased to be judge and
had not ceased to act as judge before the promulgation of
the opinion in question.
For the foregoing reasons the motion presented by the
protestee praying for a new trial should have been granted.
The protestee should have been given an opportunity to
prove his allegation that the judge who prepared the
opinion was not a judge at the time said opinion was
promulgated

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Lino Luna vs. Rodriguez and De los Angeles.

as the decision of the.court. The error complained of is too

vital to be permitted to stand under a government of a free
people without investigation and correction, if the facts
alleged are true. The protestee, at least, should have been
given an opportunity to present proof.
For all of the foregoing reasons the judgment of the,
lower court is hereby revoked; and it is hereby ordered and
decreed that the record be returned to the lower court with
direction that it proceed with a new trial. It is f further
ordered and decreed that the evidence theretofore adduced
may be used in connection with the new trial, with the
condition ,that the parties are hereby permitted to adduce
such additional evidence as they may deem advisable and
necessary. (U. S. vs. Singuimuto, 3 Phil. Rep., 176.)
Without any finding as to costs. So ordered.

Arellano, C. J., Torres, Carson, and Araullo, JJ.,

concur.

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STREET, J., dissenting:

The court holds the judgment rendered in this cause by

Judge Alberto Barretto to be void because it was filed and
promulgated by the clerk of the court upon January 17,
1917, at which time Judge Barretto had already qualified
and entered upon the discharge of the duties of Secretary of
Finance, thereby vacating the office of judge. To the mind
of this writer, the vital question is not whether Judge
Barretto was a judge when the decision was promulgated
but whether he was clothed with judicial power at the time
when he wrote and signed the decision. If he had authority
under the law to adjudicate the cause and make a lawful
decision at the time when he assumed to do those things,
we are of the opinion that the judgment so rendered by him
was valid, although it was not filed and promulgated until
after he had ceased to be a judge.
It seems to us that by the proper interpretation of
section, 13 of Act No. 867, as amended, the contingency
which here happened is provided for. That section declares
that where a judge of the Court of First Instance has left
the province, but still remains in the Philippine Islands, he
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Lino Luna vs. Rodriguez and De los Angeles.

may write his decision and send it back through the mail,
properly signed, to be entered by the clerk of the court. The
mere circumstance that the clerk is required to file the
decision as of the date when it is received by him, "as if the
judge had been present in court to direct entry of the
judgment," does not, in the opinion of this writer, amount
to a requirement that the judge who writes the decision
should still be somewhere exercising the functions of judge
at the time when the decision is filed. As the question is
merely one as to the interpretation of this statutory
provision, it would seem hardly necessary to enlarge upon
the subject; but we find ample authority in the decisions of
American courts to support the view here advanced.
A plain distinction is established between the rendering
of judgment and its entry in the records of the court. The
act of making the decision or rendering the judgment of the
court is a judicial act; the act of entering the judgment is a
clerical or ministerial act. (Hamill vs. Gibson, 61 Ala., 261;
In re Cook, 77 Cal., 220; Crim vs. Kessing, 89 Cal., 478;
Sieber vs. Frink, 7 Colo., 148; Babcock vs. Wolf, 70 lowa,
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676; Shenandoah Nat. Bank vs. Read, 86 lowa, 136; Tracy

vs. Beeson, 47 lowa, 155; State vs. Henderson, 164 Mo.,
347; Comstock vs. Boyle, 134 Wis., 613.) The decisions here
cited fully sustain, in our opinion, the conclusion that if a
judgment is pronounced, according to law, by a person who
is clothed with judicial authority, the circumstance that it
may not be filed until after he ceases to be judge, does not
affect the validity of the judgment.
If this court had accepted the view just expressed, it
would have been necessary to decide the further question
whether or not the decision of Judge Barretto was invalid
by reason of the fact that it bears date upon Sunday. We do
not care to enter into this matter, but will merely make a
suggestion concerning the application of the American
decisions on this subject. It is well settled in many States,
though not in all, that a session of open court for hearing
and determining causes in ordinary course cannot be
lawfully held on Sunday. It follows that in these States any

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Lino Luna vs. Rodriguez and De los Angeles.

judicial act which can only be lawfully done in open court is

void if it appears to have been done on Sunday. But we are
not aware that any judicial act which is not required to be
done in open court has ever been held to be void because
done on Sunday.
In the practice of our own courts it is clear that the
writing of an opinion and the rendering of judgment in a
civil case are not acts which must be done in open court.
The trial, or final hearing on the merits, must of course
take place in open court, unless the parties otherwise
agree; but when the judge takes the case under
advisement, he goes to his private judicial office or to his
habitation and there prepares his decision. The parties
thereafter do not appear before him to hear the judgment
formally delivered; and in fact the next thing they learn
about the matter is when the clerk notifies them of the
decision. Even if it be admitted that a lawful session of
court can not be held on Sunday, it by no means follows
that the act of writing and signing a decision on that day is
void; and the writer is inclined to the view that a decision
signed on Sunday is in all respects as valid as any other.

MALCOLM, J., dissenting:

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FACTS.

Four dates are to be remembered. The trial of the election

contest terminated on October 5, 1916. The decision was
signed by Alberto Barretto on Sunday, January 14, 1917.
Barretto took the oath of office as Secretary of Finance on
Monday, January 15, 1917. The decision was received by
the clerk of the Court of First Instance of Rizal and filed by
him on January 17, 1917.

JUDGMENTS.

A judgment is what is considered and rendered by the

court. The entry is merely a memorial of what the
judgment consists. A judgment is the judicial act of the
court. The entry is the ministerial act of the clerk. The
judgment rendered is the judgment entered. The record of a
judgment should not be confused with the judgment it-
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Lino Luna vs. Rodriguez and De los Angeles.

self. The terms "rendition" and "entry" are used in different

senses. The distinction is that a judgment is rendered when
handed down by the court, and entered when actually
entered in the Judgment Book. A judgment derives its force
from its rendition by the judge. When so pronounced the
judicial act is complete. A judgment is operative from the
date of its rendition. The record is merely proof of the
judgment The validity of the judgment properly rendered is
not affected by the delay of the clerk in entering it in the
court record. Recording is not essential as between the
parties. So it has been held that it is not fatal to a
judgment that it is not entered by the clerk until after the
expiration of the term of office of the judge who rendered it.
(Ex parte Morgan [1885], 114 U. S. 174; Crim vs. Kessing
[1891], 89 Cal., 478; In re Cook [1888], 77 Cal., 220; 1 L. R.
A., 567; Austin vs. Austin [1908], 42 Colo., 130; State vs.
Henderson [1901], 164 Mo., 347; 15 R. C. L., pages 571 et
seq.)
Judgments can be rendered in different ways. One
method is by the judge signing. This is the Philippine
practice. Signing is then rendition. The judge is permitted
to render his judgment by signing even after he has left the
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province in which the session of court was held. This is

authorized by Act No. 575, as superseded by Act No. 867,
section 13, reading as follows:
"Whenever a judge of a Court of First Instance or a
justice of the Supreme Court shall hold a session, special or
regular, of the Court of First Instance of any province, and
shall thereafter leave the province in which the court was
held without having entered judgment in all the cases
which were heard at such session, it shall be lawful for
him, if the case was heard and duly argued or an
opportunity given for argument to the parties or their
counsel in the proper province, to prepare his judgment
after he has left the province and to send the same back
properly signed to the clerk of the court, to be entered in
the court as of the day when the same was received by the
clerk, in the same manner as if the judge had been present
in

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VOL. 37, NOVEMBER 26, 1917. 199

Lino Luna vs. Rodriguez and De los Angeles.

court to direct the entry of the judgment: Provided,

however, That no judgment shall be valid unless the same
was signed by the judge while Within the jurisdiction of the
Phillippine Islands. Whenever a judge shall prepare and
sign his judgment beyond the jurisdiction of the court of
which it is to be a judgment, he shall inclose the same in an
envelope and direct it to the clerk of the proper court and
send the same by registered mail."

JUDICIAL ACTS ON SUNDAYS.

The decisions regarding judicial acts performed on Sundays

and legal holidays are not uniform. In the absence of
statute, it is the general rule that a judgment rendered on
a legal holiday is valid. Other courts have said that a
judgment rendered on Sunday is void. Trials conducted on
holidays have been held lawful. Judgments entered on
Sundays have been upheld; the United States Supreme
Court found otherwise in Ball vs. United States ([1890] 140
U. S., 118). The American cases generally concern judicial
acts which can only be lawfully done in open court. As
under our facts the judgment of Judge Barretto was not
entered on Sunday, but was signed on that day, and as
rendition in open court is here not required, most of these

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cases are not in point. (See 19 L. R. A., Notes, pages 316 et

seq.)
In the Philippines, Sundays are legal holidays. Sessions
of courts are convened on "work days." On holidays, the law
provides the courts shall be closed. However, overtime
work is permitted for Government officers and employees
on holidays. (Administrative Code of 1917, sections 29, 161,
563, and 566.) There is no law prohibiting a judge from
laboring, or from performing the manual work of signing a
judgment, on a Sunday.

DE FACTO JUDGES.

A de facto judge is one who exercises the duties of a judicial

office, under color of title. The acts of a judge de facto are
not open to attack. To illustrate with one case. The
Constitution of Massachusetts provided that,
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200 PHILIPPINE REPORTS ANNOTATED

Lino Luna vs. Rodriguez and De los Angeles.

"No judge of any court * * * shall, at any time, have a seat

in the Senate or House of Representatives/' One Hawkes,
while holding the office of special justice, was elected a
representative to the General Court, duly qualified, and
took his seat, and was such representative when the
petitioner in this case was convicted. The petitioner
contended that by accepting the seat in the Legislature,
Hawkes ceased to be a justice, and that the conviction and
commitment was therefore illegal. The Supreme Court of
Massachusetts found Hawkes to be judge de facto, and
upheld the regularity of the proceedings resulting in the
conviction of the accused. (Sheehan's Case [1877], 122
Mass., 445. See also Woodside vs. Wagg, 71 Me., 207; and
Cocke vs. Halsey [1842], 16 Peters, 71.) We need not,
therefore, determine if Barretto was a judge de jure. It is
sufficient if he was a judge de facto.

APPLICATION OF PRINCIPLES TO FACTS.

Between October 5,. 1916, when the trial terminated, and

January 15, 1917, when Barretto took the oath as
Secretary of Finance, was a period of three months. We
cannot fairly presume that in this complicated election
contest Barretto spontaneously and off-hand dictated his
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decision on January 14. It must have been "prepared by

him during this three months period while a judge de jure.
The case was then judicially "considered" by him. This
judgment in its fundamentals consequently emanated from
the bosom of "Judge" Barretto and not from "Secretary"
Barretto. To make the judgment valid, all that Judge
Barretto had to do was to sign the judgment. Had he done
so on Saturday, January 13, no question could be raised.
Nevertheless, on Sunday, January 14, he was still not only
in possession of the office of judge of first instance under
some color of title, but was in actual possession. The law
also permitted him to render the judgment outside of his
district. When he signed on Sunday, January 14, he still
being judge of first instance, the judicial act was complete
and the judgment may have been valid from every
viewpoint. However this may be,

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VOL. 37, NOVEMBER 26, 1917. 201

United States vs. Ampar.

and admitting that he could not lawfully render a judgment

on Sunday, at least from midnight of January 14 until the
time he took the oath of office, on January 15, a secular
day, he was looked upon as a judge of first instance. All
that remained for him on Monday when he was abandoning
his office of judge of first instance was the manual act of
transmitting the judgment prepared and signed by him as
judge of first instance. Even on Monday, January 15, after
he had taken the oath as Secretary of Finance, he could be
considered, for the purposes of this judgment, as a judge de
facto of the Court of First Instance of Rizal. The fact that
the judgment did not reach the clerk and was not filed by
him until Wednesday, January 17, is absolutely of no
importance.

CONCLUSION.

We are convinced that the alleged judgment prepared and

signed by Alberto Barretto is a valid judgment of a judge of
first instance which it is the duty of this court to consider
on appeal. As a practical matter it may further be
suggested that the result of holding this judgment void is
merely to make for delay, because all the evidence
necessary for a decision is in, and because all that the
present judge of first instance will have to do is again to

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render a judgment, after which no matter what the

decision, without doubt, the case will once more come
before us.
Judgment reversed; new trial ordered.

_______________

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