G.R. No. L-212




Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-212 March 12, 1946 NARCISA DE LA FUENTE and her husband, JOSE TEODORO, JR., petitioners, vs. FERNANDO JUGO, Judge of First Instance of Manila, LUIS BORROMEO, respondents. Jose Teodoro for petitioners. Sotto and Sotto for respondents. FERIA, J.: Although the petition in this case is for a writ of certiorari on the ground that the respondent judge exceeded his jurisdiction in denying the motion filed by the petitioners with the Court of First Instance of Manila presided over by said judge, praying that a writ of execution of the judgment rendered by the municipal court be issued pursuant to section 8, Rule 72, of the Rules of Court, because the respondent Luis Borromeo failed to deposit the rent for May 1945 — this is really a petition for mandamus to compel the respondent judge to issue said writ of execution under section 3, Rule 67, for if the petitioners' contention were well taken, the respondent judge, in denying petitioners' motion for a writ of execution, failed to perform a duty specifically enjoined by law. Petitioners obtained on April 25, 1945, a judgment from the municipal court which sentenced the defendant (now respondent) Luis Borromeo to vacate the premises leased to him by the petitioners and to pay a monthly rental of P40 from March 1, 1945. Defendant appealed to the court of first instance, and the latter on August 21, 1945, rendered judgment sentencing defendant to restore the possession of the premises to petitioners and to pay them the rents thereof at the rate of P40 a month from March 1, 1945, until defendant vacated the premises. Defendant appealed from said judgment of the court of first instance to this court, the appeal having been perfected on October 24, 1945, when the record on appeal was approved by said court. On October 30, 1945, said record was transmitted to this court. In view of the foregoing, it is evident that the court of first instance had no power or jurisdiction to grant the motion filed by petitioners on November 12, 1945, and order the execution of the judgment of the municipal court, and therefore mandamus does not lie to compel the respondent judge to do so, for the following reasons: First, because inasmuch as the judgment of the municipal court had been superseded by the judgment of the court of first instance rendered on August 21, 1945, the latter could not order the execution of said judgment of the municipal court which had become functus oficio. Section 8, Rule 72, of the Rules of Court provides that "should the defendant fail to make the payments above prescribed from time to time during the pendency of the appeal, the Court of First Instance, upon motion of the plaintiff, of which the defendant shall have notice, and upon proof of such failure, shall order the execution of the judgment appealed from . . . If the case is tried on its merits in the Court of First Instance, any money paid into court by the defendant for the purposes of stay of execution shall be disposed of in accordance with the provisions of the judgment of the Court of First Instance . . .." (Emphasis supplied.) According to section 9 of the same Rule 72, the judgment of the court of first instance may be executed during the pendency of the appeal to this court, if the defendant and appellant fails to pay "either to the plaintiff or into the appellate court the same amounts referred to in the preceding section to be disposed of in the same manner as as therein provided." And secondly, because when the motion for a writ of execution was filed by petitioners on November 12, 1945, the court of first instance had already lost jurisdiction over the case, in accordance with section 9, Rule 41, of the Rules of Court, which is applicable to ordinary as well as to special civil actions. For the respondent had appealed from the judgment of the court of first instance to this court, and the record on appeal filed by the defendant and appellant was approved on October 24, 1945. And as the court of first instance had already lost jurisdiction over the case when the motion for execution was filed, the respondent judge had no power and, consequently, can not be compelled by mandamus to order the execution of the judgment not only of the justice of the peace, assuming that it was still in force, but of the very court of first instance presided over by him. Petition is therefore denied with costs against petitioners. Ozaeta, Paras, Jaranilla, De Joya, Pablo, Perfecto, Hilado, Bengzon, and Briones, JJ., concur. The Lawphil Project - Arellano Law Foundation