G.R. No. 1705. February 23, 1904

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3 Phil. 358

[ G.R. No. 1705. February 23, 1904 ]




This is an original action of certiorari in this court, brought
under the provisions of sections 514 and 217 et seq. of the Code of
Civil Procedure. Upon the filing of the complaint a temporary
injunction was issued on January 12, 1904, under the provisions of
section 517. On January 13 this court made an order that the defendant
appear within seven days and show cause why a writ of certiorari should
not be granted. The defendant appeared and showed cause by means only
of a demurrer to the complaint.

The matter sought to be reviewed in this case is the order of the
defendant appointing a receiver of the property of Tan-Tongco in the
case of Sergia Reyes vs. Tan-Tongco.

In the case of Bonaplata vs. Ambler (1 Off. Gaz., 607),[1]
which involved the same order, this court held that the defendant had
no power to appoint the receiver, and that in making such appointment
he was acting in excess of his jurisdiction. It necessarily followed
that the order was void. The only thing left undecided in that case was
the effect of this void order upon those creditors who had assented to

The rights of the plaintiff would be the same whether the order
appointing the receiver were made before or after the plaintiff
commenced his action; it was therefore not necessary to allege in the
complaint when it was commenced.

The defendant’s demurrer was based (1) upon a misjoinder of parties;
(2) upon the ground that the complaint did not state facts sufficient
to constitute a cause of action for five specified reasons, and (3)
because the complaint was vague and unintelligible. What has been said
covers the five reasons specified under the second ground. The
plaintiff, admitting that the demurrer was well taken on the first
ground, has asked leave to present, and the defendant has agreed that
he may present, an amended complaint in which the defendant McMicking
is eliminated as a defendant.

The third ground, that the. complaint is unintelligible, is not well taken.

The court has adopted a different practice in cases of certiorari
from that adopted in cases of mandate and prohibition. The latter take
the form of an ordinary action. In the former an order to show cause is
issued and upon its return, if no sufficient cause is shown, the order
provided for by section 217 is issued. In the present case we hold that
the cause shown is insufficient and the order provided for m the
last-named section must issue.

It is therefore ordered that the proposed amended complaint filed on
the 8th day of February, 1904, stand as the complaint in this action,
that the defendant, Byron S. Ambler, as judge of the Court of First
Instance of Manila, cause to be certified to this court within ten days
from this date a transcript of the record and proceedings which in any
way relate to the appointment or action of the receiver had or taken in
the case of Sergia Reyes vs. Tan-Tongco, No. 1451, in the Court of
First Instance of Manila, that
the same may be reviewed by this court, and in the meantime to desist
from any further proceedings in the matter to be reviewed until the
further order of this court.

Arellano, C. J., Torres, Cooper, Mapa, McDonough, and Johnson, JJ., concur.

[1] 2 Phil. Rep., 392.

Date created: January 17, 2019


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