AgencyDPFebruary32014

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Unformatted text preview: oizat and Gabriela Andrea de Coster y Roxas have not paid the principal or the stipulated interest from December 16, 1921, to date, which up to the 30th day of April, 1924, amounts to P27,925.34. Wherefore, it is prayed that the credit above­mentioned be taken into account when the second mortgage is foreclosed. No other plea of any kind, nature or description was filed by it. The record shows that a copy of this alleged plea was served upon the attorneys for the plaintiff bank. There is nothing in the record which shows or tends to show that a copy of it was ever served on either one of the defendants. Neither is there any evidence that either of the defendants ever appeared in the original action. In fact, judgment was rendered against them by default. Under such a state of facts, the judgment in favor of the Dominican Fathers cannot be sustained. In the first place, the plea above quoted filed on April 24, 1924, would not be sufficient to sustain a judgment. It does not even ask for a judgment of the foreclosure of its mortgage. In the second place, no copy of the plea was ever served upon either of the defendants, who were the real parties in interest, and against whom a judgment was rendered for the full amount of the note and the foreclosure of the mortgage. Such a proceeding cannot be sustained on any legal principle. Unless waived, a defendant has a legal right to service of process, to his day in court and to be heard in his defense. From what has been said, it follows that, if the transaction between the Dominican Fathers and Jean M. Poizat as attorney in fact for his wife was an original one and the P125,000 was actually loaned at the time the note and mortgage were executed and the money was in good faith delivered to the husband as the agent and attorney in fact of the wife, it would then be a valid exercise of the power given to the husband, regardless of the question as to what he may have done with the money. Paragraph 5 of the power of attorney specifically authorizes him to borrow money for and on account of his wife and her name, "and making all these transactions with or without mortgages, pledges or personal guaranty." It follows that the judgment of the lower court in favor of La Orden de Dominicos or PP. Predicadores de la Provincia del Santisimo Rosario is reversed, without prejudice to its right to either file an original suit to foreclose its mortgage or to file a good and sufficient plea as intervenor...
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