474 SUPREME COURT REPORTS ANNOTATED

Maramba vs. Lozano

No. L-21533. June 29, 1967.

HERMOGENES MARAMBA, plaintiff-appellant, vs'.

NIEVES DE LOZANO, ET AL.. defendants-appellees.

Judgments; Final and executory judgment cannot be

corrected; Exception.—A judgment, which has become final and
executory, can no longer be amended or corrected by the court,
except for clerical errors or mistakes, However erroneous it may
be, it cannot be disobeyed; otherwise, litigations would be endless
and no question could be considered finally settled.
Same; When nunc pro tunc order is allowed.—An amendment
of a judgment which involves not merely clerical errors but the
very substance of the controversy, cannot be accomplished by
means of a nunc pro tunc order. The purpose of a nunc pro tunc
order is to make a present record of an order which the court
rendered at a previous term when the thing ordered has
previously been made but, by inadvertence, has not been entered.
When there was no such order previously made by the court,
there is nothing thereafter to be recorded.

475

VOL. 20, JUNE 29, 1967 475

Maramba vs. Lozano

Same; When liability of judgment debtor is joint only.—When

the judgment does not order the defendants to make a solidary
payment to the plaintiff, their liability is merely joint. No one of
them may be compelled to satisfy the judgment in full (Art 1137,
New Civil Code).
Husband and wife; Conjugal partnership; When property in
the name of one spouse is not presumed to be conjugal.—The
presumption that property is conjugal refers to property acquired
during the marriage. When there is no showing as to when the
property was acquired by a spouse, the fact that the title is in the
spouse's name is an indication that the property belongs
exclusively to said spouse.
Same; House constructed on separate lot of a, spouse does not
automatically become conjugal.—The construction of a house at
conjugal expense on the exclusive property of a spouse does not
automatically make it conjugal. It is true that, in the meantime,
the conjugal partnership may use both the land and building, but
it does so not as owner but as usufructuary. The ownership of the
land remains the same until the value thereof is paid. This
payment can only be demanded in the liquidation of the
partnership.
Appeals; Facts occurring after the appeal.—A petition filed in
the appellate court, during the pendency of an appeal, which
petition alleges facts occurring after the perfection of the appeal,
should be passed upon by the trial court in connection with the
implementation of the judgment rendered on appeal.

APPEAL from an order of the Court of First Instance of,

Dagupan City. San Diego, J.

The facts are stated in the opinion of the Court.

     N. Tanopo, Jr. and V. Millora for plaintiff-appellant.
     Manuel Ancheta and Bausa, Ampil and Suarez for def
endants-appellees.

MAKALINTAL, J.:

Appeal from an order of the Court of First Instance of

Dagupan City in its Civil Case No. 10485, dated June 28,
1961. This case was originally brought to the Court of
Appeals, but subsequently certified to Us on the ground
that the issues raised are purely legal.
It appears that on November 3, 1948, the plaintiff filed
an action against the defendant Nieves de Lozano and her
husband Pascual Lozano for the collection of a sum of
money. After trial, the court a quo on June 23, 1959
rendered its decision, the dispositive part of which is as
follows:

476

476 SUPREME COURT REPORTS ANNOTATED

Maramba vs. Lozano

"WHEREFORE, the court hereby renders judgment, sentencing

the defendants herein, Nieves de Lozano and Pascual Lozano, to
pay unto the herein plaintiff, Hermogenes Maramba, the total
sum of Three Thousand Five Hundred Pesos and Seven Centavos
(P3,500.07), with legal interest thereon from the date of the filing
of the instant complaint until fully paid.
With costs against the said defendants."

Not satisfied with the judgment, the def endants interposed

an appeal to the Court of Appeals but the appeal was
dismissed on March 30, 1960 for failure of the defendants
to file their brief on time. After the record of the case was
remanded to the court a quo, a writ of execution was
issued, and on August 18, 1960 levy was made upon a
parcel of land covered by transfer certificate of title No,
8192 of Pangasinan in the name of Nieves de Lozano. The
notice of sale at public auction was published in accordance
with law and scheduled for September 16, 1960.
On that date, however, defendant Nieves de Lozano
made a partial satisfaction of the judgment in the amount
of P2,000.00, and requested for an adjournment of the sale
to October 26, 1960. On October 17, 1960, she filed an
amended motion, dated October 14, alleging that on
November 11, 1952, during the pendency of the case,
defendant Pascual Lozano died and that the property
levied upon was her paraphernal property, and praying
that her liability be fixed at one-half (1/2) of the amount
awarded in the judgment and that pending the resolution
of the issue an order be issued restraining the Sheriff from
carrying out the auction sale scheduled on October 26,
1960.
On that date the sale proceeded anyway, and the
property of Nieves de Lozano which has been levied upon
was sold to the judgment creditor, as the highest bidder, for
the amount of P4,175.12, the balance of the judgment debt.
On October 27, 1960, plaintiff filed an opposition to the
defendant's amended motion dated October 14, 1960. And
on June 28, 1961, the trial court issued the questioned
order, the dispositive part of which is as follows:

"WHEREFORE, the court hereby grants the motion of counsel for

defendant Nieves de Lozano, dated October 5, 1960, which was
amended on October 14, 1960, and holds that the

477

VOL. 20, JUNE 29, 1967 477

Maramba vs. Lozano

liability of the said defendant under the judgment of June 23,

1959, is only joint, or P1,750.04, which is one-half (1/2) of the
judgment debt of P3,500.07 awarded to the plaintiff and that the
writ of execution be accordingly modified in the sense that the
liability of defendant Nieves de Lozano be only P1,750.04 with
legal interest from the date of the filing of the complaint on
November 5, 1948 until fully paid, plus the amount of P21.28
which is also one-half (1/2) of the costs taxed by the Clerk of Court
against the defendant spouses. Let the auction sale of the above-
mentioned property of defendant Nieves de Lozano proceed to
satisfy her liability of P1,750.04 with legal interest as above
stated and the further sum of P21.28 representing the costs,
unless she voluntarily pays the same to the judgment creditor
(herein plaintiff)."

Plaintiff interposed an appeal from the above-quoted order

and assigned several errors, which present three major
issues, to wit:

(a) whether or not the decision of the lower court dated

June 23, 1959 could still be questioned;
(b) whether or not the judgment was joint or solidary;
and
(c) whether or not the judgment debt could be satisfied
from the proceeds of the properties sold at public
auction.

Plaintiff-appellant submits that a "nunc pro tunc" order

should have been issued by the trial court dismissing, as of
November 11, 1952, the case against the late Pascual
Lozano by reason of his death, and that the lower court
should have corrected its decision of June 23, 1959, by
striking out the letter "s" in the word "defendants" and
deleting the words "and Pascual Lozano."
We do not think that the action suggested would be
legally justified. It would entail a substantial amendment
of the decision of June 23, 1959, which has long become
final and in fact partially executed. A decision which has
become final and executory can no longer be amended or
corrected 1 by the court except for clerical errors or
mistakes, 2 and however erroneous it may be, cannot be
disobeyed; otherwise litigations would be endless and no
ques-

_______________

1 Marasigan vs. Ronquillo, 94 Phil. 237.

2 Compañia General de Tabacos vs. Alhambra Cigar & Cigarette
Manufacturing Co., 33 Phil. 508; Golding vs. Balatbat, 36 Phil. 941.

478

478 SUPREME COURT REPORTS ANNOTATED

 Maramba vs. Lozano

3
tions could be considered f inally settled. The amendment
sought by appellee involves not merely clerical errors but
the very substance of the controversy. And it cannot be
accomplied by the issuance of a "nunc pro tunc" order such
as at sought in this case. The purpose of an order "nunc p
tunc" is to make a present record of an order which the
court made at a previous term. but which was not then
recorded. It can only be made when the thing ordered s
previously been made, but by inadvertence has not been
entered. In the instant case there was no order previous
made by the court and therefore there is nothing now to be
recorded.
Now ten, it is clear that the decision of June 23, 1959
does not specify the extent of the liability of each
defendant. The rule is that when the judgment does not
order the defendants to pay jointly and severally their
liability is merely joint, and none of them may be compelled
to satisfy the judgment in full. This is in harmony with
Articles 11 and 1138 of the Civil Code.
Plaint-appellant contends that in any event the entire
judgment debt can be satisfied from the proceeds of the
property sold at public auction in view of the presumption
that is conjugal in character although in the name of only e
of the spouses. The contention is incorrect. The
pressumption under Article 160 of the Civil Code ref ers to
proper acquired during the marriage. But in the instant
casthere is no showing as to when the property in question
as acquired and hence the fact that the title is in the wife's
name alone is determinative. Furthermore, appellant
himself admits in his brief (p. 17) that the property in
question is paraphernal.
Appellate next points out that even if the land levied
upon we originally paraphernal, it became conjugal
property by rtue of the construction of a house thereon at
the expee of the common fund, pursuant to Article 158
paragraph 2 of the Civil Code. However, it has been held by
this Court that the construction of a house at conjugal
expense d the exclusive property of one of the spouses

_______________

3 Dais vs. Bustos, 94 Phil. 913.

479

VOL. 20, JUNE 29, 1967 479

 Maramba vs. Lozano

does not automatically make it conjugal. It is true that in

the meantime the conjugal partnership may use both the
land and the building, but it does so not as owner but in the
exercise of the right of usufruct. The ownership of the land
remains the same until the value thereof is paid, and this
payment can only be demanded in the liquidation of the
partnership (Coingco vs. Flores, 82 Phil. 284; Paterno vs.
Bibby Vda. de Padilla, 74 Phil. 377; Testate Estate of
Narciso Padilla, G.R. No. L-8748, Dec. 26, 1961). The
record does not show that there has already been a
liquidation of the conjugal partnership between the late
Pascual Lozano and Nieves de Lozano. Consequently, the
property levied upon, being the separate property of
defendant Nieves de Lozano, cannot be made to answer for
the liability of the other defendant.
On May 18, 1967 counsel for defendants-appellees filed
with Us a petition alleging, inter alia; that prior to the
expiration of the redemption period and pursuant to an
order of the lower court defendants filed a surety bond in
the amount 01 P3,175.12 as the redemption price, which
bond was duly approved by the lower court; that sometime
last September 1966, defendants filed a petition before the
lower court praying that the sheriff of Pangasinan be
ordered to execute the corresponding deed of redemption in
favor of defendant Nieves de Lozano represented by her
judicial administrator or that, in the .alternative, the
Register of Deeds of Dagupan City be directed to cancel
Entries Nos. 19234 and 20042 at the back of TCT No. 8192;
and that said petition was denied by the lower court. The
same prayer made below is reiterated in the said petition of
May 18, 1967.
The foregoing petition of May 18, 1967 alleges facts
which occurred after the perfection of the present appeal
and which should therefore be submitted to and passed
upon by the trial court in connection with the
implementation of the order appealed from, which is
hereby affirmed, with costs.

          Concepcion, C.J., Reyes, J.B.L., Dizon, Bengzon,

J.P., Zaldivar, Sanchez and Castro, JJ., concur.

Order affirmed.
480

480 SUPREME COURT REPORTS ANNOTATED

 Maramba vs. Lozano

Notes.—The phrase nunc pro tunc signifies "now for then",

or that a thing is done now that shall have the same legal
effect as if done at the time it ought to have been done. A
court may order an act done nunc pro tunc when it, or one
of its immediate ministerial officers, has done some act
which for some reason has not been entered of record or
otherwise noted at the time the order or judgment was
made or should have been made to appear on the papers or
proceedings by the ministerial officer (Secou vs. Leroux, 1
N. M. 388, 389, cited in Lichauco vs. Tan Pho, 51 Phil. 862,
880).
The object of a nunc pro tunc, is not the rendering a new
judgment and the ascertainment and determination of new
rights, but is one placing in proper form on the record, the
judgment that had been previously rendered, to make it
speak the truth, so as to make it show what the judicial
action really was, not to correct judicial errors, such as to
render judgment which the court ought to have rendered,
in place of the one it did erroneously render, nor to supply
nonaction by the court, however erroneous the judgment
may have been. (Wolmerding vs. Corbin Banking Co., 28
So. 640, 641, 126 Ala. 268).
A nunc pro tunc entry in practice is an entry made now
of something which was actually previously done, to have
effect as of the former date. Its office is not to supply
omitted action by the court, but to supply an omission in
the record of action already had, but omitted through
inadvertence or mistake. (Perkins vs. Haywood, 31 NE 670,
672).
In this jurisdiction there is no positive rule or statute
governing nunc pro tunc orders (Lichauco vs. Tan Pho,
supra).
In order that a court may enter a nunc pro tunc order,
that is to say, an order in writing containing what was
previously ordered verbally, it is necessary that there
should be a basis for said nunc pro tunc order, that is, some
circumstance in the record relative to the order which is
sought to be supplied by the nunc pro tunc, whether said
circumstance relates to the whole of the order or to a point
thereof, in such a way that the part not found in the
481

VOL. 20, JUNE 29, 1967 481

People's Surety & Insurance Co., Inc. vs. Court of Appeals
 record may be a necessary part, an inevitable and ordinary
consequence of the point appearing therein. (Syllabus,
Lichauco vs. Tan Pho, supra).
Where judicial approval for a lease was required, but it
was neither obtained in due time nor subsequently,
inasmuch as the approbatory nunc pro tunc order impliedly
entered in the judgment appealed from is invalid on
account of having been entered without a sufficient legal
basis therefor, said lease is void (Lichauco vs. Tan Pho,
supra).
However, the omission to state in the dispositive part of
a judgment, rendered in a case for the foreclosure of a
mortgage, that the mortgagor should pay the amount of the
judgment to the court within a period not less than three
months, as provided in section 256 of the Code of Procedure
(now section 2, Rule 68, Revised Rules of Court), may be
corrected even after the said judgment had become final
and the expiration of the term during which. it was
rendered (Rodriguez vs. Caoibes, 62 Phil. 142).
Another case regarding nunc pro tunc order is
Philippine Long Distance Telephone Company vs. Medina,
L-24340, July 18, 1967 ante.
As to trial court's ministerial duty to execute final
judgments, see Republic vs. De los Angeles, L-26112, June
30, 1967, post.

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